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District of Columbia v. Beretta4/21/2005
mplicit in "statute or municipal regulation , or in the Constitution." Id. at 164. More important for present purposes, in succeeding cases divisions of the court have declined to apply this cause of action where the policy in question was not implicit - i.e., embodied in some related statute - but rather was "explicit and [might] apply directly" through a statute expressly addressing the matter. Freas v. Archer Servs., Inc., 716 A.2d 998, 1002 (D.C. 1998) (rejecting application of Carl as unnecessary where suit was based on statutorily banned and actionable retaliation for exercising rights under the Workers' Compensation Act); see also McManus v. MCI Communications Corp., 748 A.2d 949, 957 (D.C. 2000) (noting and applying the court's previous rejection of "the argument . . . that a public policy exception to the at-will doctrine applies to an alleged statutory violation"). That deference to the legislative role commends itself to us in this case as well. The existence of § 7-2551.02 reinforces our unwillingness to relax basic "liability-limiting" standards, Lacy, supra, of duty, foreseeability, and causal remoteness to recognize the cause of action for common-law negligence the plaintiffs advocate.
IV. Public Nuisance
Much of what we have said so far explains why we also reject on the pleadings the claim for public nuisance brought by the District of Columbia alone. The RESTATEMENT (SECOND) OF TORTS § 821B (1) (1979) defines that tort as "an unreasonable interference with a right common to the general public." The District argues that this cause of action does not derive from its negligence claim, but is an independent cause of action with distinct elements, namely, (1) an interference with a public right (2) that is unreasonable. Although this court referred to that definition of the tort in B & W Mgmt., Inc. v. Tasea Inv. Co., 451 A.2d 879 (D.C. 1982), the defendants and their amici argue that we have never recognized a public nuisance claim that did not involve either ownership (and control of) real property, criminal violations, or independently tortious conduct such as negligence - none of which is alleged, or sufficiently alleged, in this case.
As an independent tort, claims of nuisance have indeed not been viewed favorably by this court. In recent cases we have even said that "nuisance is a type of damage and not a theory of recovery in and of itself," Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 934 (D.C. 1995), so that recovery in such cases, "if at all, [must be] on the theory of negligence," Bernstein v. Fernandez, 649 A.2d 1064, 1072 (D.C. 1991) (citation and quotation marks omitted), or another theory such as intentional infliction of emotional distress. Jonathan Woodner Co., supra. The District argues that these statements were made in the context of claims for private, not public, nuisance but our decision in Bernstein noted that, "for the purpose of our holding in this case," the point did not depend on "whether the alleged nuisance is public or private." Bernstein, 649 A.2d at 1072 n.8. Even the RESTATEMENT definition explains "nuisance" by "reference to two particular kinds of harm - the invasion of two kinds of interests[, public and private] - by conduct that is tortious only if it falls into the usual categories of tort liability." RESTATEMENT (SECOND) OF TORTS § 821A cmt. c (1979) (emphasis added).
The defendants here do not dispute, however, that a separate tort of public nuisance is cognizable in the District of Columbia, or that the RESTATEMENT provides the appropriate definition: "an unreasonable interference with a right common to the public." We accept the case before us on that basis. The question, nevertheless, is whether the Distric
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