Daily Development for
Thursday,September 12, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EMINENT DOMAIN; DAMAGES; COMPARATIVE FAULT: California court rules that comparative fault is irrelevant to an eminent domain claim for damages for landslide caused in part by excavation and water flow resulting from public works project. If public agancy's activities are proximate cause of injury, it is jointly and severally liable with other defendants for 100% of the damages, despite fact that landowner is found 32% responsible for damages.

Ellis v. State of California Dept. Of Transportation, 51 Cal. Rptr. 2d 458 (Cal. App. 1996)

Homeowner's property was destroyed in a landslide caused in part by road cuts made by state, in part by road cuts made by city, and in part by city's failure to prevent incursion of water into the landslide mass. The trial court found the state to be 27% responsible, the city to be 38% responsible, and the homeowner to be 32% responsible. It reduced the total damages award by 32% and found state and city jointly and severally liable for the balance of the damages.

The homeowner settled with the city for $1 million, but the state appealed on several grounds, including the joint and several liability finding. The homeowner cross appealed, claiming that the trial court had erred in reducing the damages on the basis of homeowner's comparative fault.

Held: In a sweeping victory for the homeowner, the court held that the state was jointly and severally liable and that damages could not be reduced by the amount of the homeowner's comparative fault.

Although California has already recognized the application of comparative fault to tort claims against public agencies, the court here concludes that it is inappropriate to do so when the claim lies in eminent domain. Inverse condemnation liability is not based upon fault. The question of liability for flood and landslide damages often is based upon whether the impact on the neighboring property is "reasonable," but this is not the same as determining whether the conduct causing the impact was "negligent." The conduct could be totally innocent or totally purposive, and liability would still lie. The only question is whether the action of the public agency is a "proximate cause" of the claimed injury.

Here the court found that proximate cause was shown, and that consequently both public agencies were jointly and severally liable for the injuries in question. It also upheld the award of attorney's fees of $358,000.

Comment: Comparative fault concepts are new enough around the country that the DIRT editor assumes that this issue has not been fully resolved in other jurisdictions. Obviously is has a profound impact upon the landowner's decision as to whether to pursue a claim against a public agency defendant for damages caused by that agency's construction activities.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233.

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.