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Inverse Condemnation
Strict
liability for flooding of areas not "historically subject to
flooding".
In Akins vs. State (1998) 64 Cal.App.4th, 71 CR2d 314, the
"reasonableness test" articulated in Belair vs. Riverside County
Flood Control District (1988) 47 Cal.3d 550, 253 CR 633, has
been limited to cases involving flooding occurring in areas
which were "historically subject to flooding."
Historically, in Albers vs. County of Los Angeles (1965) 62
Cal.2d 250, the Supreme Court held a public entity will be strictly
liable for the taking of private property pursuant to a public
works project.
In Belair, the Supreme Court held plaintiffs must prove unreasonable
conduct on behalf of the public entities for flooding of areas
"historically subject to flooding". Recently in Bunch vs. Coachella
Valley Water District (1997) 93 P2d 796, 63 Cal.Rptr.2d 89,
the Supreme Court left open the issue of strict liability for
public work projects which flooded areas that were "not historically
subject to flooding". In Akins, the Supreme Court in remanding
the case back to the Third District Appellate Court, has reasserted
the strict liability standard.
In applying Akins to our recent El Nino winter, property which
has been flooded due to the channeling of surface runoff onto
private property is once again compensable under the strict
liability standard first articulated by the Supreme Court in
Albers. Most cities and counties have flood control systems
which use as a conveyance the streets and gutters in conjunction
with flood control channels, levees and retention basins, to
manage surface runoff during heavy storms. If that surface runoff
backs up into private property causing extensive damages, and
claims are paid under homeowners policies, subrogation exists
to recover from the public entities the damages associated with
the temporary flooding of private property. In adjusting flood
claims, special attention should be paid to eye witness accounts
of how the property flooded and the sources of the runoff. Overtopping
of flood control levees and dikes as well as undersized flood
control channels allow for subrogation under Inverse Condemnation.
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