David Robinson | Holland & Knight
Suppose a city repaves a street, puts in new storm drains or builds a flood channel nearby. Soon after, a nearby building floods for the first time. Is the government responsible? In California, the answer is often yes, even if no one at City Hall was careless. But there are important exceptions, and they can determine whether a property owner is entitled to compensation.
The Basic Rule: The Government Pays for Damage Its Public Projects Cause
California’s Constitution says the government must pay “just compensation” when it takes or damages private property for public use. When the government damages property without first going through formal condemnation, the owner can bring a claim called “inverse condemnation” to seek compensation.
The leading case is Albers v. County of Los Angeles (1965). The Supreme Court of California held that the government must pay for “any actual physical injury to real property proximately caused by the improvement as deliberately designed and constructed,” whether the damage was foreseeable or not. In practice, this works much like strict liability. Property owners usually do not have to prove the government was negligent or did anything wrong. Instead, an owner needs to show:
- ownership of the damaged property
- that a public project caused the damage
- the damage came from the project as it was designed and built
- the project was a substantial cause of the harm, though it need not be the only cause
The idea behind this rule is fairness. One property owner should not have to carry a disproportionate share of the cost of a project that benefits the whole community. The government can also be responsible when a private developer performs the work, as long as the developer followed plans the government approved.
Exception 1: The Common Enemy Rule for Flood Protection (Archer)
Albers recognized two exceptions to its strict rule. The first comes from Archer v. City of Los Angeles (1941). It covers situations where the government, under traditional law, “had the right to inflict the damage.” This exception grew out of water law. Floodwater (as opposed to surface water runoff, however great) has long been treated as a “common enemy,” and every landowner has the right to build barriers against it. Under this rule, if those barriers sent more water onto a neighbor’s land, the neighbor had no claim.
The government does not get unlimited protection here, though. In Belair v. Riverside County Flood Control District (1988), the Supreme Court of California said public flood control projects should not get the same complete protection as private barriers. A public agency building flood protection “must [at least] act reasonably and non-negligently.” The fact that a levee fails or a dam bursts is not enough by itself to make the government pay. An owner may recover if the project’s design, construction or maintenance posed an unreasonable risk of harm and was a substantial cause of the damage. Courts decide what is “reasonable” by weighing the public benefit against the private harm, case by case.
This matters most for property that has always been prone to flooding. On the other hand, if a project sends water onto land that did not flood before, the owner generally does not have to prove the system failed to work as intended.
Exception 2: Emergency-Type Government Action (Gray)
The second exception comes from Gray v. Reclamation District No. 1500 (1917). Damage caused by a legitimate use of the government’s “police power” may not have to be paid for as long as the government stays within the power’s “proper limits.” In Gray, that power was used for flood control, navigation and land reclamation. Gray involved temporary flooding while reclamation work was underway. The court contrasted it with a dam that permanently flooded someone’s land, which counts as a taking that must be paid for. In sum, for the government to assert “police power” as a defense, it must prove that it had no choice but to act “under the pressure of public necessity and to avert impending peril” (House v. Los Angeles County Flood Control Dist. (1944)); “unnecessary damage resulting from … inadequate and negligent planning [and] construction” does not qualify.
Exception 3: Ordinary Carelessness Is Not Inverse Condemnation
Inverse condemnation covers damage that is a necessary result of the public project as it was designed. It does not cover everyday mistakes in running the project. If the harm came from “negligence in the routine operation having no relation to the function of the project as conceived,” an owner may need to bring a different kind of claim. That usually means a claim for a “dangerous condition of public property” under Government Code Section 835.
Exception 4: Design Immunity
When an owner sues for a dangerous condition of public property, the government will often raise “design immunity.” Under Government Code Section 830.6, the government is not liable for injury caused by the plan or design of a public improvement if three things are true:
- The Design Was Approved in Advance. A city council or an official with authority approved the design before construction or the design followed previously approved standards.
- The Design Was Reasonable. A court finds substantial evidence that a reasonable official could have approved it.
- The Design Caused the Damage. There is a causal link between the design and the injury.
The government must prove all three. If it fails on any, the defense fails.
Design Immunity Has Real Limits
No Approved Plan, No Immunity: In Mozzetti v. City of Brisbane (1977), a city rebuilt a street, and a motel and trailer park ended up “in a hole” that flooded. The city had approved only a one-page surface drawing. Major changes were made during construction without approval, so the city could not claim design immunity.
Bad Construction or Poor Maintenance Is Not Covered: If damage comes from improper construction or maintenance rather than the design itself, the government can still be liable. Clogged drains or poorly maintained trash guards are examples.
Immunity Can Be Lost: If conditions change so that the design becomes dangerous and the government knew or should have known about the danger and had time to fix it, the immunity can disappear. Repeated complaints and records of past flooding can be key evidence.
It May Not Block Inverse Condemnation: Section 830.6 protects against liability “under this chapter,” meaning claims for dangerous conditions of public property. It is not necessarily a complete defense against a constitutional inverse condemnation claim.
Practical Takeaways
Write Down Your Property’s History: Whether your property flooded before the project can change which rules apply.
Report Problems to the Government in Writing: Notice can matter when arguing that design immunity was lost or a dangerous condition existed.
Limit the Damage Where You Reasonably Can: An owner who could have reduced the damage and did not may be unable to recover for the extra loss. Reasonable costs of reducing the damage can be recovered.
Watch the Deadlines: Damage claims against a public entity often require a written government claim filed within a short period before a lawsuit can be filed.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 801.641.8304, or email experts@adviseandconsult.net.