A plaintiff bringing such a claim must at minimum identify a violation of some common public right, i.e. "damage to property, damage to human health, or damage to anything remotely approximating a 'right common to the general public.'" See id.;see also B W Mgmt., 451 A.2d at 881 (noting that public nuisance claims also traditionally covered "a variety of minor criminal offenses that interfered, for example, with the public health, safety, morals, peace, or convenience"); Tucci v. District of Columbia, 956 A.2d 684, 696 n. 11 (D.C. 2008) (noting that "some examples of public nuisances include storing explosives in the middle of a city or maintaining a pond in which malarial mosquitoes are breeding"). If a plaintiff fails to allege interference with a common public right, a court is justified in dismissing a case for failure to state a claim.

We decided two landlord and tenant cases in the 1990s, and looked to Maryland law for the proposition that “nuisance ordinarily is not a separate tort in itself but a type of damage,” we also cited Totten, supra.Bernstein v. Fernandez, 649 A.2d 1064, 1072 (D.C.1991) (internal quotation marks and citation omitted) (leaking and falling ceilings in a ground-floor apartment); Woodner v. Breeden, 665 A.2d 929, 934 n. 6 (D.C.1995)opinion amended on denial of reh'g,681 A.2d 1097 (D.C.1996) (rental to condo conversion and tenant complaints about poor housing conditions) (citing Bernstein and Reese, supra ). The 2000 decade produced three cases with varying factual contexts: District of Columbia v. Beretta, 872 A.2d 633 (D.C.2005) (en banc) (lawsuit by the District against manufacturers of firearms), Tucci v. District of Columbia, 956 A.2d 684 (D.C.2008) (residential property owner's lawsuit against District of Columbia relating to trash and vermin); Wood, supra, 979 A.2d 64 (case involving residential property owners and the impact of a water proofing project). We relied on nuisance definitions from the Restatement and generally followed our more recent decisions in B & W Management, Woodner, and Bernstein in Beretta, 872 A.2d at 646, and in Tucci, 956 A.2d at 696–97.

Finally, we note that compliance with § 12-309 is only a necessary, but not sufficient, condition of a waiver of sovereign immunity by the District of Columbia. See Tucci v. District of Columbia, 956 A.2d 684, 696 (D.C. 2008). Though "there is an undeniable connection between a statute like D.C. Code § 12-309 and the doctrine of sovereign immunity," id. at 695, the plaintiffs compliance with § 12-309 will not, on its own, prevent the District of Columbia from raising the defense of sovereign immunity.

According to the District, once the six- month window for providing notice had passed, the District had a vested right in its sovereign immunity from Williams's claim.To be sure, where the notice requirement of 12–309 applies, the D.C. Court of Appeals has instructed that “compliance with [it] is a condition precedent which, if not met, will prevent the destruction of sovereign immunity,” Tucci v. District of Columbia, 956 A.2d 684, 695 (2008) (quotation marks and citation omitted). The District here argues that consequently, because its sovereign immunity is a substantive right, the amendment cannot be applied retroactively to its detriment.

Next, even if the Hospital is entitled to shared immunity, that immunity must not be waived by statute. See Tucci v. Dist. of Columbia, 956 A.2d 684, 695 (D.C. 2008) (recognizing that sovereign immunity may be waived by statute). Finally, the Hospital may claim sovereign immunity only for alleged actions that are discretionary, not ministerial.

See Williams v. District of Columbia, 646 A.2d 962, 963 (D.C.1992) (summary judgment for defendant affirmed in case where plaintiff fell after her heel was caught in one-half inch gap between bricks on median strip, holding that “[e]ven if a genuine issue of fact remained [about whether defendant had notice], as a matter of law appellant could not recover because any defect was de minimis.”); Tucci v. District of Columbia, 956 A.2d 684, 699 (D.C.2008) (“Damages of this type are not enough, by themselves, to show an ‘unreasonably dangerous' condition or negligence on the part of the District.”); District of Columbia v. Freeman, 477 A.2d 713, 718–19 (D.C.1984) (“The existence of prior notice,” is not enough, however; a plaintiff must demonstrate that the street is “in fact unreasonably dangerous.

The District of Columbia Court of Appeals has repeatedly observed that the pre-suit notice requirement is not a waiver of sovereign immunity, but is instead “ ‘purely a notice provision.’ ” Tucci v. District of Columbia, 956 A.2d 684, 694 (D.C.2008) (quoting Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C.1981)); see also Barnhardt v. District of Columbia, 8 A.3d 1206, 1214 (D.C.2010). It is, plain and simple, the means by which the District of Columbia has prescribed the “terms and conditions imposed ... on [its] waiver of its immunity.”

The court recognized that the Sierra Club "invoked the general equitable jurisdiction of the Superior Court, and sought equitable relief requiring the District to comply with the law." Id. at 359; see also Tucci v. District of Columbia, 956 A.2d 684, 690-91 (D.C. 2008) (applying Sierra Club analysis to request for injunctive relief). Here, however, Baumann is not seeking injunctive relief to compel MPD to comply with a statutory duty.

In its reply brief, the District makes an argument different from its "private right of action" claim; it relies on the principle that agency decisions not to prosecute or not to enforce are presumptively unreviewable. E.g., Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); Tucci v. District of Columbia, 956 A.2d 684, 690 (D.C. 2008); J.C. Assocs. v. District of Columbia Bd. of Appeals Review, 778 A.2d 296, 309 (D.C. 2001); Sierra Club, 670 A.2d at 360. We have no quarrel with this proposition as a general matter.

Section 12-309 operates as a "condition precedent" to the District's waiver of sovereign immunity. See Tucci v. District of Columbia, 956 A.2d 684, 695 (D.C. 2008). Employees of a sovereign, however, are not themselves entitled to that immunity when sued in their individual capacities.