Eminent Domain Report

A new bill -- AB 238 -- is working its way through the State Assembly which would require a reduction in compensation payable to a successful plaintiff in an inverse condemnation action in direct proportion to the owner’s percentage of fault in causing damages to the owner’s property.  While the doctrine of comparative fault is one of the cornerstones of tort law, it is rarely applicable to inverse condemnation actions. 

Ever since the seminal decision in Albers v. County of Los Angeles (1965) 62 Cal.2d 250, there has been a more or less bright line distinction between the strict liability standard for recovering in inverse condemnation and general tort doctrines such as negligence, foreseeability and comparative fault.  The only two exceptions to this rule involve non-compensable damages inflicted in the proper exercise of the police powers and those situations in which the state at common law had the right to inflict the damage, such as for public flood control projects.

Generally, liability for inverse condemnation will lie so long as the government’s project, as designed and constructed, is a substantial cause of damages.  The fact that the property owner is partially at fault for creating those damages in the first instance is largely irrelevant.  (Blau v. City of Los Angeles (1973) 32 Cal.App.3d 77, 84-85).  That is to say, under current law, a public entity will be held liable for 100% of the damages where its project causes physical damage to private property, regardless of whether others, including the owner, contributed to those damages. 

This strict liability standard has not been without controversy.  It is based upon a sort of loss distribution interpretation of the takings clause of the California Constitution (Article 1, § 19).  Its goal is to to distribute throughout the community the loss inflicted upon the individual by the making of public improvements.  (Bacich v. Board of Control (1943) 23 Cal.2d 343, 350).  On the other hand, it has been argued that to not apply comparative fault principles to inverse condemnation actions unfairly penalizes public entities for the wrongful conduct of others.  The cost of the public improvement would be evenly distributed throughout the community, and the owner of the damaged property would bear no more than his or her fair share, if the public entity’s liability was limited to the portion of the damages caused by the project itself. 

This later policy argument has found little support in the case law, outside of the arcane area of water law.  However, AB 328 would change all of this.  This common law doctrine of comparative fault would be enshrined in the Code of Civil Procedure as the new Section 1000 of Chapter 3.4 Comparative Fault in Inverse Condemnation.  Whether this bill gains traction remains to be seen, but we will be following it with great interest.