In Skoumbas v. City of Orinda, (— Cal.Rptr.3d —, 2008 WL 2929769, Cal.App. 1 Dist., July 31, 2008), a California Court of Appeal considered whether the trial court erred when it granted summary judgment to a city against the claims of a property owner who claimed water discharge from a storm drain damaged their property and sought damages for inverse condemnation, nuisance, and trespass. The Court of Appeal concluded that the trial court did error in granting summary judgment to the city because the question was not whether the entire drainage system was a public improvement, but whether the city acted reasonably in its maintenance and control over those portions of the drainage system it owns.
The Skoumbases are property owners of several undeveloped parcels of land in a subdivision known as Oak Springs on a hillside in the City of Orinda (“City”). Running through part of the subdivision is Candlestick Road, which is a publicly dedicated street. The Skoumbas property is located to the west, and downhill from Candlestick Road.
Surface water from the surrounding area flows onto Candlestick Road and is collected in a catch basin that channels the water into an underground metal pipe. The metal drainpipe runs down toward the Skoumbas’ property, where near the uphill border of the property the water is discharged to the surface. It is the surface water discharge from the drainpipe that has allegedly caused substantial erosion and damage to the Skoumbas’ property.
While City owns Candlestick Road, the catch basin, and the first 40 feet of drainpipe, the remainder of the drainpipe, which eventually dispels the surface water discharge near the top of the Skoumbas’ property, is privately owned. The Skoumbas sued City and the uphill owners whose property is traversed by the pipe running from Candlestick Road for the damages caused to their property by the water discharge. The complaint alleges nuisance and trespass against all defendants, and inverse condemnation against City only. City successfully moved for summary judgment because the trial court found that City never accepted the lower segments of the drainpipe as a public improvement. The Skoumbases appealed.
The California Court of Appeal began by explaining the standard of review for an appeal from a granting of summary judgment. The court reviewed the evidence “in a light favorable to the plaintiff as the losing party” of the summary judgment motion, and “strictly scrutinized” the evidence relied upon by City. If a defendant can show that “one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action” the burden shifts to the plaintiff to prove “one or more material facts exists as to that cause of action or defense.”
The Court of Appeal proceeded to examine the “liability of a public agency’s diversion of surface water.” The California Constitution provides that private property can by “taken or damaged for public use . . . only when just compensation . . . has first been paid.” (Article I, § 19). When governmental activity incidentally damages private property and the government has not reimbursed the property owner, a “suit of inverse condemnation will lie to recover monetary damages.”
However, a unique exception developed peculiar to water law, because “a landowner ha[s] a right to inflict damage upon the property of others for the purpose of protecting his or her own property.” The land owner is “immunized . . . from liability for resulting damage to downstream property.” This immunity available to private landowners has been extended to the government in the past.
However, recent decisions indicate that a “public agency is liable only if its conduct posed an unreasonable risk of harm to the plaintiffs, and that unreasonable conduct is a substantial cause of the damage to plaintiff’s property.” In addition, the immunity afforded to private landowners is not absolute because “When a landowner diverts surface waters in an unnatural manner and damages a lower property, the upper landowner is liable . . . to the extent he or she failed to take reasonable care in the use of the upper property.”
The Court of Appeal reviewed the granted summary judgment motion and noted that for City to be liable for inverse condemnation, the “damage to the [Skoumbas’] property must occur as a result of a public improvement, public work, or public use.” The City acknowledged that it owned Candlestick Road, the catch basin, and the first 40 feet of drainpipe; however, it contends that it is not liable to the Skoumbases because it does not own the lower stretches of drainpipe. The court disagreed that this argument qualified as a complete defense. Specifically, the court thought the issue was whether the improvements controlled by City were “unreasonable or posed an unreasonable risk of harm to the [Skoumbases], and whether [City]’s unreasonable conduct was a substantial cause of the damage to [the Skoumbas] property.”
The Court of Appeal concluded that it is immaterial if City owned the last length of piping that expelled the water onto the Skoumbas property. The court found that there was a “substantial cause-and-effect relationship” between City’s improvements and the damage sustained to the Skoumbas’ property. The court finished in saying that the examination of the relative reasonableness of City’s and the Skoumbas’ conduct is “highly factual” and is therefore “unsuited as the basis for summary judgment.” As a result, the Court of Appeals reversed the trial court’s summary judgment in favor of City.