In the week of Hurricane Harvey, it might be appropriate that we turn our attention to some of the laws and rules that apply when an uprooted tree causes damage to the property of someone other than the owner of the tree. Of special interest is the situation when a publicly-owned tree falls upon and damages private property. I don’t know what Texas law has to say about such occurrences; but, not surprisingly, California has some of its own special rules. As it would happen, these came into play in the just-published decision regarding Mercury Casualty Company v. City of Pasadena (Second Appellate District, August 24, 2017).
Most readers are no doubt familiar with the concept of eminent domain. It provides for the ability of a government jurisdiction to “take” private property for a “public purpose” (such as building a road or a dam). The Fifth Amendment requires that “just compensation” be paid for the private property. An eminent domain proceeding is often referred to as a “condemnation.”
On the other hand, if government action, without adequate compensation, has greatly reduced the value or use of private land, that may lead to an “inverse condemnation” suit brought by the private landowner against the government.
The California constitution provides for inverse condemnation if private property has been taken, or damaged, in pursuit of a public use when there has not been just compensation.
The case of Mercury v. Pasadena is an inverse condemnation case, and it has to do with falling trees.
In November of 2011, a storm with hurricane-force winds (measured nearby at 79 — 101 miles per hour) struck the city of Pasadena. More than 5,000 city-owned trees were damaged, 2,000 of which were uprooted. A city-owned tree, 110 feet tall, fell on the home of Sarah and Christopher Dusseault. The Dusseaults’ insurer, Mercury Casualty, paid them more than $700,000 in benefits. The Dusseaults subrogated their rights to Mercury, and, in July of 2012, Mercury sued Pasadena for inverse condemnation. After a four-day bench trial, the court ruled in favor of Mercury. It explained, “The Canary Island pine tree that fell on and damaged the [Dusseaults’] residence was a work of public improvement and subjects the City to liability for inverse condemnation. The damage to the residence of Mercury’s insured was proximately caused by the public improvement. The City’s maintenance of a 110-foot-tall Canary Island pine tree only 60 feet away from the insured’s residence exposed that property owner to a peril from the falling of the tree, caused by whatever event, to which she would not otherwise have been exposed. Because the tree fell causing private property damage, and was a work of public improvement, the City is strictly liable for the property owner’s loss under inverse condemnation.”
The city of Pasadena owns more than 60,000 trees as part of its ‘urban forest.’ In 1940 it published the “Official Street Tree List,” in which it designated an official tree for each street in the city. The list did not include an inventory of trees or establish any procedure or guidelines for maintaining them.
In 1976, the city adopted a “Master Street Tree Plan.” That did include an inventory, but again lacked any guidelines or maintenance procedures. Then, in 1992, the city adopted a “City Trees and Tree Protection” ordinance, with policies for “protecting, maintaining, and removing trees that are part of the urban forest.
The ordinance prohibits members of the public from pruning, removing, or otherwise injuring any “street trees.” The tree that fell on the Dusseaults’ house came within the definition of a “street tree.” Records show that the trees (four Canary Pines) on the city parkway in front of the Dusseaults’ house were inspected by the city 3 times between 2006 and 2008. In April, 2007, the city pruned 2 of the trees, including the one that later fell. In 2008 the city removed one tree after it died.
This all sounds like a slam-dunk for Mercury, right? Wrong.
Pasadena appealed the trial court ruling. They contended that the tree in question was not part of a public improvement as required for an inverse condemnation suit. While it acknowledged that the city owned the tree, the city pointed out that the tree was planted sometime in the late 1940s or early 1950s by an unknown party. Hence, it could not have been a part of a public improvement project which had not yet been undertaken.
Moreover, the Appellate Court rejected Mercury’s argument that it didn’t matter who planted the tree, it became a part of the public improvement project when the city assumed maintenance responsibility. But the Appellate Court said, “Quite simply, the Ordinance [that prescribed the maintenance] does not constitute a design for a public project or improvement, nor does it convert [the subject tree] into a work of public improvement that subjects the City to inverse condemnation liability.”
The trial court was reversed.
If there was any good news in this ruling it was this, “Our holding, of course, does not immunize the City from all forms of liability for damage caused by its trees. In a case like this, a property owner (or subrogee) may still sue the public entity for, among other claims, dangerous condition of public property.”
