ELR Citation: 41 ELR 20277
No(s). E050452 (Cal. App. 4th Dist. Aug 24, 2011)

A California appellate court affirmed a lower court decision dismissing homeowners' inverse condemnation claim against a county for damages they sustained following storm-induced floods in 2003 and 2004. The homeowners alleged that during both storms, a county roadway concentrated and exacerbated the natural flow of water, thereby causing substantial damage to their properties. They claimed that the roadway, including an unimproved dirt alignment, was a public improvement for purposes of inverse condemnation law, and that the county's installation of "K-rails" along the roadway prior to the 2004 flood constituted a further public improvement. The lower court properly dismissed the claims. The dirt alignment was not a public improvement for purposes of inverse condemnation, and to the extent the lower, paved roadway was a public improvement, the homeowners failed to submit any evidence that it was a cause of their injuries during the 2003 flood. As for the 2004 flood, the installation of the K-rails was a public improvement and the improvement caused the residents to suffer damages, but substantial evidence demonstrates that the county acted reasonably in installing the K-rails. The homeowners argued that the court should apply a strict liability standard instead of the reasonableness test. But if liability for acting—i.e., installing the K-rails—could be imposed on the county based on strict liability, the county could well have decided to take no action. Therefore, as a matter of public policy and common sense, some protective action (even if it should ultimately be insufficient) should not be discouraged. Accordingly, the lower court correctly applied the reasonable standard, not the strict liability standard, in this case.