• County Not Liable For Damage From Flooding And Debris That Occurred After It Installed An Improvement To Try To Protect Neighborhood
  • September 16, 2011 | Authors: William T. Chisum; Jeffrey L. Massey; Hanspeter Walter
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In Gutierrez v. County of San Bernardino (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., August 24, 2011), a court of appeal considered whether property owners stated a claim for inverse condemnation for damage to their properties caused by a second flood after the county installed K-rails to protect residences because a previous flow of water, sediment, and debris had caused substantial damage. The court of appeal held that the property owners did not state a claim for inverse condemnation because the county acted reasonably when it attempted to protect the private property owners from a risk created by nature and the improvement did not expose the “properties to a risk of flooding that did not otherwise exist.”

    Several properties along Greenwood Avenue in the Devore area of the County of San Bernardino (“County”) were inundated with water, dirt, and debris from flooding. Prior to the floods, 80 percent of Greenwood Avenue was paved. The 20 percent that was not paved lies just south of the mountains and this portion is inaccessible to vehicular traffic. A large canyon drains to the base of the mountains just north of the unpaved portion and this area is known as the Greenwood alignment. In October 2003, a large fire destroyed vegetation in the mountains. It was approximately two months later when the water flowed down Greenwood Avenue and brought with it large amounts of sediment and debris.

    Shortly after the 2003 flood, County installed K-rails along both sides of the paved portions of Greenwood Avenue in an attempt to protect the residents from further damage. In October 2004, more rain in the area caused water, sediment, and debris to flow down Greenwood Avenue. Some of the flow escaped the confines of the K-rails and caused damage to properties along the avenue. The owners of the damaged properties (“Owners”) brought a lawsuit against County alleging inverse condemnation.

    The trial court granted judgment in favor of County. The court rejected the Owners’ argument that County was strictly liable for the damage because it installed the K-rails and concluded that County acted reasonably.

    The court of appeal affirmed the decision of the trial court. As to the 2003 flooding, the court of appeal held “the Greenwood alignment was not a public improvement for purposes of inverse condemnation,” and “to the extent the lower, paved Greenwood Avenue was a public improvement, [Owners] failed to submit any evidence that it was a cause of their injuries.” As to the October 2004 flooding, the court found the “surface water was diverted into a temporary fixed channel consisting of the paved roadway bordered on both sides by K-rails.” Although the channel did in fact constitute a public improvement, the court held “the appropriate legal standard to apply is that of reasonableness, and that substantial evidence supports the trial court’s conclusion that the County acted reasonably relative to its installation of the K-rails.”

    The California Constitution provides that a governmental entity can only take or damage private property after it pays the owner. The Constitution further provides, “When there is incidental damage to private property caused by governmental action, but the governmental entity has not reimbursed the owner, a suit in ‘inverse condemnation’ may be brought to recover monetary damages for any ‘special injury,’ i.e., one not shared in common by the general public. . . .” Owners asserted a claim for inverse condemnation on the grounds that during both the 2003 and 2004 storms Greenwood Avenue functioned as it was intended and designed to channel the storm’s flow down the avenue but that water and debris escaped to damage their property.

    The court rejected Owners’ argument that the entire length of Greenwood Avenue, including the alignment, is a public improvement. The parties agreed that the paved portion was a County road that had been improved by paving. The court found that the alignment is unimproved. Before the floods, the alignment was “nothing more than raw land.” “[M]ere ownership of undeveloped land, without more, cannot form the basis for an inverse condemnation claim.” Furthermore, there was no evidence that County took a particular plan of maintenance or course of action toward the unimproved land. Although the paved portion of Greenwood Avenue is a public improvement, the paved status of the road was not a substantial cause in bringing about the damage to the Owners’ properties. As to the 2003 storm, the sole cause of damage to the Owners’ property was the breaking of a dam.

    In regard to the 2004 flood, the trial court found the installation of the K-rails was a public improvement but that County’s action in installing them was reasonable. The court of appeal found that the trial court was correct in applying the rule of reasonableness. “When alterations or improvements on upstream property discharge an increased volume of surface water into a natural watercourse, and the increased volume and/or velocity of the stream waters or the method of discharge into the watercourse causes downstream property damage, a public entity, as a property owner, may be liable for that damage.” The primary consideration is whether, under all the circumstances, the upper landowner’s conduct was reasonable.” The rule applies to public and private landowners.

    Where flood control is at issue, a “public agency is liable only if its conduct posed an unreasonable risk of harm to the [landowners] and that unreasonable conduct is a substantial cause of the damage to [the landowner’s] property.” The rule of strict liability does not apply because it would discourage the construction of public improvements. In order to show a governmental entity is liable, a plaintiff “must demonstrate that the efforts of the public entity to prevent downstream damage were not reasonable in light of the potential for damage posed by the entity’s conduct, the cost to the public entity of reasonable measures to avoid downstream damage, and the availability of and the cost to the downstream owner of means of protecting that property from damage.” A court should consider the following factors when determining the reasonableness of the governmental entity’s conduct: (1) the public purpose of the project; (2) how much a landowner’s loss is offset by the project’s benefits; (3) feasible alternatives to the project; (4) the severity of the “damage in relation to risk-bearing capabilities;” (5) “the extent to which damage of the kind the [landowner] sustained is generally considered as a normal risk of land ownership;” and (6) how “similar damage is distributed at large over other beneficiaries of the project or is peculiar only to the [landowner].”

    The appellate court held the evidence supported the conclusion that County’s actions were reasonable. County installed the K-rails to protect a local neighborhood. County had to act quickly after the fire and flood in 2003 to deal with the situation and decided to install the K-rails. The evidence supported that decision because without the K-rails, the damage would have been greater.