On August 24, 2017, the California Court of Appeal held that the City of Pasadena was not liable for damages caused by a City tree falling onto a house in a suit for inverse condemnation because there was no record that the City planted the tree as part of a public improvement project. While the City owned the tree, and the tree was planted in a public parkway and subject to the City’s tree maintenance program, there was no record of the City planting the tree as part of a construction project serving a public purpose. Therefore, the City could not be liable under an inverse condemnation theory because inverse condemnation requires that a “public improvement” damage private property. While this is certainly a positive result for the City of Pasadena, it has the negative effect of establishing that cities may be liable under inverse condemnation for falling trees where it can be shown that the city planted the tree that fell as part of a public improvement project. Inverse condemnation is a much easier case to prove against a city than a dangerous condition of public property case. Accordingly, municipalities should be aware that they can be liable for damages caused by trees they plant, even absent a showing that the tree was dangerous and that it was negligently maintained.
Facts of the Case
In 2011, hurricane-force winds toppled a city-owned tree onto a residence in the City of Pasadena, causing significant damage. While the City asserted ownership of and maintained the tree, which was located in a public parkway, there was no record of who actually planted the tree. Mercury Insurance Company sued the City for $800,000 in insurance benefits paid to the homeowners under an inverse condemnation theory. Mercury Insurance prevailed at the trial court level. The trial court found that the tree that fell was a public improvement, that this public improvement proximately caused the damage to the residence, and that the City was strictly liable for the damages.
Inverse condemnation is a legal theory of recovery grounded in the Takings clause of the California Constitution, which allows a property owner to recover “just compensation” from a public entity for private property that is “taken or damaged for a public use.” Under this theory, a public entity is generally strictly liable for damage to private property caused by a public improvement. This means that a plaintiff need not necessarily establish any wrongdoing or negligence on the part of the public entity in order to recover. A plaintiff need only establish that a “public improvement” proximately caused the damages.
Dangerous Condition of Public Property
In contrast, a claim under Government Code section 835 for damages caused by a dangerous condition of public property requires that the plaintiff first establish that the public property that caused the injury was in a dangerous condition. This can be a difficult legal standard to meet. Moreover, even if the plaintiff can meet this evidentiary burden, he or she must then establish that a public employee acted negligently to create the dangerous condition or that the public entity had notice of the dangerous condition and had sufficient time prior to the injury to correct it. A plaintiff must argue and prevail on each of these points in order to recover under Section 835. As such, if a plaintiff can simply establish a “public improvement” caused injury to private property, inverse condemnation is a preferred theory of recovery.
The Court’s Ruling
Here, the Court of Appeal reversed the trial court, finding that the city-owned tree was not a public improvement because there was no evidence that it was planted as part of a construction project serving a public purpose, such as a roadway beautification project. The Court noted that prior case law assumed that planting trees along public roadways for roadway beautification purposes would qualify as a “public improvement.” The Court of Appeal made this determination explicit. To qualify as a “public improvement,” the Court found the project must be a deliberately designed improvement that is constructed in furtherance of a public purpose. Because there was no evidence that the City of Pasadena planted the tree that fell on the residence, Mercury could not establish that the City took deliberate action to design the streetscape for beautification or other public purposes.
The Court also held that merely owning and pruning the tree as part of the City’s tree maintenance ordinance did not constitute a “deliberate design” for a public improvement because the ordinance was adopted long after the tree was planted. Finally, because the City’s tree maintenance program exceeded the standards in use by most other cities, Mercury failed to establish a claim for inverse condemnation based upon a deficient public improvement maintenance plan.
While municipalities have always been subject to claims for inverse condemnation for property damage caused by public improvements, this case makes it clear that trees that fall that were planted by a municipality to serve a public purpose can give rise to inverse condemnation liability. This case also makes clear that unless a plaintiff can establish that a municipality deliberately planted the tree as part of a streetscape plan or for some other public purpose, he or she will not prevail under an inverse condemnation theory.
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 Mercury Casualty Co. v. City of Pasadena, 2017 Cal. App. LEXIS 732.