Floods, Fires, and Inverse Condemnation

59 Pages Posted: 2 Aug 2021 Last revised: 3 Mar 2022

See all articles by Walter W Heiser

Walter W Heiser

University of San Diego School of Law

Date Written: 2021

Abstract

This Article examines the proper application of the doctrine of inverse condemnation in two important areas: flood damage to private property caused by a public improvement (e.g., a flood control, storm drain, or sewer project), and wildfire damage to private property caused by a project (e.g., electricity or telephone lines) undertaken by either a public or privately-owned utility. Under the doctrine of inverse condemnation, a plaintiff may recover for a physical injury to private property caused by a public improvement as deliberately designed, constructed, or maintained.

Inverse condemnation provides an important means of obtaining compensation for government harm to private property, through the vehicle of civil litigation. One of the most important legal and policy issues in inverse condemnation cases is the proper standard of liability, given the enormous potential liability for damages to property and people. With respect to inverse condemnation cases generally, most jurisdictions have endorsed a strict liability standard as the fairest method of vindicating the relevant loss-distribution and deterrence policies. However, in cases seeking compensation for damage caused by certain flood improvement projects, courts have recognized competing policy concerns and adopted a multi-factored “reasonableness” standard. In wildfire cases, the proper standard of liability—whether strict liability or some sort of reasonableness test—will have significant repercussions for government entities, utilities, property owners, and the public.

How courts define the standard of liability in inverse condemnation cases will become increasingly important in both the flooding and wildfire contexts. The continuing nature of climate change will likely mean more flooding in some areas of the United States and more wildfires in others. This Article examines issues concerning the standard of liability in both contexts with the goal of determining their proper resolution by the courts.

Keywords: inverse condemnation, flood damage, public improvement, wildfire damage, standard of liability

JEL Classification: K11, K00

Suggested Citation

Heiser, Walter W, Floods, Fires, and Inverse Condemnation (2021). NYU Environmental Law Journal, Vol. 29, No. 1, 2021, San Diego Legal Studies Paper No. 21-029, Available at SSRN: https://ssrn.com/abstract=3895334

Walter W Heiser (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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