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Quote of the Day - Science may have found a cure for most evils, but it has found no remedy for the worst of them all--the apathy of human beings. - Helen Keller

Is There A Remedy For Every Wrong?

If you're Wes and Shirley Tilton, then right about now you're pretty sure there's not.  Here's the setup for their sad tale of woe.  They own two parcels of residential real estate in Contra Costa County.  A local Reclamation District decided to build a levee across their properties.  In turn, Mr. and Mrs. Tilton built two homes on top of the levee. 

Then the problems started.

Apparently, the levee wasn't constructed properly and didn't provide appropriate subjacent support for the homes.  The foundations cracked and part of the house pulled away from the rest of the house and started to sink into the bay.  The Tiltons submitted an administrative claim for damages, which the Reclamation District denied.  Then they sued in Court, alleging damages for inverse condemnation, negligence, trespass, nuisance, failure to provide lateral and “subjacent” support, maintaining public property in a dangerous condition, and a violation of 42 United States Code section 1983 (civil rights violations).

The trial court dismissed all the counts, and the appellate court upheld the dismissal.  Ouch.

The courts based their decision on prior cases that essentially immunized the government from damages for its negligence.  Quite surprisingly, none of these cases were cited by the parties in their briefs to the court of appeals - the court found those cases on their own.  Here's the language from the 1959 case of Hayashi v. Alameda County Flood Control District that turned out to be the pivotal turning point against the Tiltons:  "In [Hayashi] the district did not cause the original break in the levee, nor is it charged that such occurred by reason of negligence.  Negligent design or construction is not charged, nor did the district deliberately divert the water onto the plaintiffs’ lands. It is charged with negligent failure to act thereafter, that is, with negligence in the operation and maintenance of its property. In our opinion that does not charge a taking of property for public use under the Constitution.”

The appellate court next went on to address the other tort causes of action, and dispatched those as well with equal ease.  The court reasoned that since the Reclamation District had no mandatory duty to maintain the levee (that's for me hard to believe), then it could not be sued because it breached no duty.  It just doesn't make sense that any government agency could build a levee designed to keep floodwaters out and then claim that it had no mandatory duty to maintain it.  If that was the case, then why build it in the first place?

The reasoning in the case is difficult to stomach, especially when the Tiltons are looking at losses exceeding $1,000,000.  Yes, I understand it's not the damages that determine whether a party has a remedy or not, but it's the government's failure to do its job that should have provided the compensation.  Beyond the court's result, the opinion has a number of grammatical defects that further call its reasoning into question.  As just one example, the opinion uses "as to" at least ten times.  Ugh.

Oh yes, did I forget to mention one of the sections of the California Civil Code?  Here's one the court didn't cite:  California Civil Code section 3523.

Posted by J. Craig Williams on 9/9/2006 at 11:51 Comments (0)


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