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On January 5, Michigan Governor Rick Snyder declared a state of emergency for the city of Flint and the surrounding Genesee County based on the ongoing health and safety concerns surrounding the city's water supply. Extremely elevated levels of lead have been found in residents' drinking water and in their blood, causing a number of serious health problems and the possibly contributing to a deadly outbreak of Legionnaires' disease.
State officials have announced a "thorough, exhaustive and independent" investigation into the crisis, and the first class action lawsuits against the governor and other state and city officials have already been filed. So who can be held liable for contaminated drinking water?
The source of the contaminated water in Flint has been traced to the city's decision to switch its water source from water from Lake Huron, which it had been using for decades, to water from the Flint River. The problem was that the Flint River water had not been treated with the same anti-corrosion chemicals with which the Lake Huron water had been treated. This allowed rust, iron, and lead from aging pipes to leach into residents' tap water.
The decision to switch water supplies came in early 2014. Flint was under the control of an emergency manager appointed by Gov. Snyder, and the city was trying to save money. Complaints about foul-smelling, bad-tasting, and discolored water began almost immediately after the switch. And the Washington Post reported that local, state, and even federal authorities ignored, denied, or in some cases covered up the problem for over a year.
The first class action filed in the Flint water crisis was based on a violation of substantive due process, alleging that the decision to switch from clean, healthy water to inadequately treated water caused or increased the risk of harm to citizens. Lawsuits based on lead poisoning could also be standard negligence claims, alleging that city and state officials had a duty of reasonable care to provide clean water to residents and breached that duty by switching to unsafe water.
And, in some cases, courts have found that water is a good, with an implied warranty of merchantability (meaning it is fit for the purpose for which it is sold) and municipalities can be liable for breaching that implied warranty. The law on water contamination lawsuits varies by jurisdiction, so if you've been injured by contaminated drinking water, you should contact an experienced injury attorney near you.