Legal Brief Does Recent Flooding Raise Inverse Condemnation Concerns for Public Agencies? By Brad Kuhn, chair of Nossaman’s Eminent Domain & Valuation Group, and Jillian Friess Leivas, an associate of Nossaman’s Eminent Domain & Valuation Group
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he recent storm events in California led to excessive quantities of rainfall and, by extension, flooding. This flooding raises the question of whether or not public agencies could face inverse condemnation liability from any flooding related damages. In California, the basic elements of an inverse condemnation claim include the substantial participation in a public project that results in the taking or damaging of real property. The burden of establishing these elements is on the plaintiff in an inverse condemnation action. The causation element is the source of much of the controversy when it comes to inverse condemnation liability for public agencies and is often the element most difficult for a plaintiff to prove.
General Inverse Condemnation Liability
Traditionally, California inverse condemnation law imposed a strict liability standard for damage proximately caused by a public improvement as deliberately designed and constructed. This resulted in the imposition of inverse condemnation liability even when the direct cause may be an unprecedented event such as flooding or wildfires. However, in 2019, this strict liability standard was modified by the California Supreme Court. Now, in order for a claim of inverse condemnation to succeed, the property owner must show more than just a causal link between
the existence of a public improvement and damage to private property – it must demonstrate that “the property damage was the probable result or necessary effect of an inherent risk associated with the design, construction, or maintenance of the relevant public improvement.” (City of Oroville v. Superior Court (2019) 7 Cal.5th 1091.) This California Supreme Court recognized the burden that would be placed on public agencies if strict liability was the ongoing standard, so instead it raised the bar by undertaking a more rigorous analysis focused on the reasonableness of the public agency’s actions and the potential responsibility of the private property owner as a result of its acts or omissions that may have played a role in the damages. In Oroville, the property owners failed to install a backwater valve that was legally required under the municipal code, and which could have prevented or substantially diminished the property damage. As such, the Court considered the reasonableness of both the public agency’s actions and the potential responsibility of the property owner. Therefore, if a property owner’s actions, or lack of action, also play a role in the damages, that may impact a finding of inverse condemnation liability.
Inverse Condemnation Liability for Flooding
Inverse condemnation liability in flooding cases has historically been held to a different standard. The general
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