With the recent rains, an upcoming El Nino winter, and rising high tides, property owners and public agencies in California are experiencing and preparing for property damage associated with floods, mudslides, high tides, and other water intrusion events. When that damage occurs, the next question is typically who is responsible – is it simply an extreme weather event or natural disaster, is there insurance coverage, or is a public agency responsible? The concept of inverse condemnation has become a new theme in these types of matters. But when does inverse condemnation apply, and are there unique rules with floods?
A Storm Alone Does Not Create Public Liability
A public agency is not automatically responsible for property damage simply because a property floods during a major storm or because a public drainage or flood-control system is nearby. But liability can arise when a public improvement plays a substantial role in causing the damage.
- In the flood-control context, there is a different standard of review than with standard inverse condemnation claims. California courts generally look at whether the public entity acted reasonably in the design, construction, maintenance and operation of the system and whether the improvement was a substantial cause of the loss. That makes the facts on the ground particularly important. Did a storm drain concentrate water onto private property? Did a culvert become inadequate as upstream development increased runoff? Did a channel or levee redirect water? Did a public road or drainage system increase the volume or velocity of water reaching a property? Those questions can turn what initially looks like a natural disaster into a much different property-rights issue.
- For mudslides and landslides, the same general concern can arise when heavy rains trigger slope failures. Rain may be the immediate trigger, but that does not necessarily answer the causation question. A public road, drainage facility, grading project or other public improvement may have altered drainage, concentrated runoff or affected slope stability. California’s landmark Albers v. County of Los Angeles decision itself involved homes damaged by a landslide associated with a county road project. The broader lesson remains important: when private property is physically damaged, liability does not automatically attach – instead, a property owner must demonstrate that a public improvement materially contributed to the conditions that produced the loss.
- Sea level rise, combined with high tides and large swells, have produced significant damage up and down California’s coast. This has also resulted in coastal erosion and drainage problems. Sea level rise itself creates inverse condemnation liability. But as public agencies build, modify and operate seawalls, drainage systems, roads and other coastal infrastructure, difficult questions can arise about how those improvements affect neighboring private property. For agencies, those issues should increasingly be part of infrastructure planning and risk assessment. For property owners, the relevant question may not simply be whether the ocean or rainfall caused the damage, but whether public infrastructure changed how that water or erosion affected the property.
Investigate Early
Flood, erosion and landslide cases are extremely fact dependent—and the best evidence can disappear quickly. Water recedes. Mud is removed. Roads reopen. Drainage facilities are cleared. High-water marks disappear. Damaged slopes are repaired. For both public agencies and property owners, early investigation can be critical. Photographs, videos, drainage patterns, maintenance and inspection records, design plans, rainfall data and observations made immediately after an event may ultimately be far more important than they initially appear. Retaining the right experts to analyze causation, and doing so early on, may be key to the analysis.
Having represented public agencies as well as property owners in inverse condemnation matters, I have seen the same lesson from both perspectives: the fact that a major storm occurred does not end the analysis. It is often where the analysis begins. When flooding, erosion or a landslide occurs, the important question is not simply how much rain fell; it is what caused the damage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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