Both a jury and the Court of Appeals concluded that the City of Milwaukie, Oregon, was liable in inverse condemnation for $58k because when it cleaned out the city's sewer lines, it cause you-know-what to back up into Ms. Dunn's house. The City asserted that it wasn't liable -- it didn't mean to cause the stuff to invade her home -- and took the case to the Oregon Supreme Court, which, in Dunn v. City of Milwaukie, No. SC S059316 (May 8, 2014), agreed.
Apparently, "hydrocleaning" the city's sewer system (the court's description of a process which sounds to us non-sanitation engineers as nothing more than a giant municipal enema) in this part of town was supposed to be done on low pressure, but higher pressure (1500-2000 psi) was used, with horrible results. Ms. Dunn "heard a 'loud roar,' felt her house shake, and then 'brown and gray gunky sewer water that stunk' came out of her toilets and bathroom fixtures. Soon afterwards, water was dripping from her bathroom ceiling and was three to four inches deep on the bathroom floor, flowing down the hallway and into her living room. ... About six or seven months after the sewage water backup, plaintiff began to notice that her wood floor felt clammy (and eventually began to buckle), her wallpaper began to peel, and at times she smelled a sewage-like scent." Slip op. at 1-2.
Talk about your "physical invasion." Mrs. Loretto had it good with just a cable TV box.
Dunn asserted both negligence and inverse condemnation, but the trial court dismissed the negligence claim before trial because under Oregon law, if you sue a municipality for negligence, you've got to give the government notice within 180 days, and she had not. The court rejected the city's motion for directed verdict, and let the case go to the jury which awarded the abovementioned $58k. The Court of Appeals affirmed, and up they went to the Oregon Supreme Court, which framed the issue as one of "intent."
Under an earlier decision (Vokown v. City of Lake Oswego, 56 P.3d 396 (Or. 2002), a inverse condemnation plaintiff seeking relief under Oregon law must show the government has acquisitory intent. According to the Oregon Supreme Court, that's because a "taking" inherently is different than mere "damage" to property, and Oregon's takings clause, unlike many sister state constitutions, only requires compensation for a taking, and not a "taking or damaging."
The opinion is long (30 pages), and, in truth, is a bit of a chore to read, because it somehow takes the issue and reduces it to a metaphysical exercise or word game: to be "intentional" and thus actionable as a taking, a physical invasion caused by intentional government action -- here, the sewer cleaning -- must also be the "natural and ordinary consequence" of the government act. The Court of Appeals concluded that the sewage explosion in Dunn's house was a natural and ordinary consequence, because the government's intentional act of cleaning the sewers was the "cause-in-fact" of the disaster. It didn't matter that the sewer cleaners really could not explain why this hadn't happened before, or why this time it did. But the Supreme Court rejected that formulation:
That articulation and application of the natural and ordinary consequences test is not faithful to what the test was designed to convey. The phrase itself -- natural and ordinary consequences -- imports a stronger relationship between the government's act and the result that follows. In particular, it conveys that, in the ordinary course of events, a certain act will naturally have a certain consequence. That consequence, because it is the natural one that will ordinarily follow, is the necessary or inevitable result of undertaking a particular act, unless some other force or event comes into play to alter what will otherwise occur. That is how Morrison understood and applied the phrase, as we have explained. 141 Or at 566 (complaint adequately alleged that natural and "necessary" effect of jetty construction was to alter flow of river across plaintiff's land during seasonal flooding). It is also consistent with the relationship between the government's act and the resulting injury to property required by the cases that Morrison cited with approval, which looked to whether the resulting injury was the inevitable and necessary result of the government''s act in the sense that it was sure to follow. Miller, 47 NJ Eq at 66067, 20 A at 63; Great Northern Ry. Co., 102 Wash at 365, 173 P at 43. And, finally, a test that looks to the inevitability or certainty with which particular results will follow from particular government action appears consistent with the way that the natural and ordinary consequences has been understood by courts in general, and federal courts in particular.
Slip op. at 21-22 (footnotes omitted). At the same time, the court also rejected the City's argument that the "natural and ordinary consequences" test calls for an examination of the government's subjective intent. See id. at 22 (declining invitation to adopt test that a person acts "intentionally" when he "desires to cause consequences of his act," or "believes that the consequences are substantially certain to result from it"). The test adopted by the Supreme Court is that government action is intentional (and thus actionable as a taking) "if the invasion to a property owner's interests was the necessary, substantially certain, or inevitable consequence of the government's intentional acts." Slip op. at 24. This test is, in the court's words, "exacting," and while a plaintiff need not show the government actually harbored intent, it "still must show that the government intentionally undertook its action and that the inevitable result of those actions, in the ordinary course of events, was the invasion of the plaintiff's property that is the basis for the plaintiff's inverse condemnation claim." Id.
Clear as mud, those of you drafting jury instructions?
Given that articulation of the test, you can see where this is going. The court concluded that just because the government wasn't negligent (as noted above, this had not happened before ... much), but that doesn't mean it acted intentionally. The court concluded the sewage intrusion could have been the result of neither negligence nor intentional conduct, and that was merely "accidental or inadvertent."
And here, in its final pages, is where the opinion to us loses any cohesion it might have had. Because as we see it, this is the court's rationale: government negligence isn't enough because to show inverse condemnation, the plaintiff has to show some acquisitory intent by the government. (Which itself is a strange test when you think about it, since this inverse condemnation, a cause of action for a de facto taking, where the government, by defintion, does not have acquistory intent because it has not employed its power of eminent domain. The government's intent should not be the central point of the inverse analysis, since it is the impact on the property and its owner that should be the focus when trying to analogize the situation to an exercise of eminent domain). But no matter. Even if you accept this formulation, a plaintiff does not need to show the government actually had an acqusitory motive, but it can also show the government kinda, shoulda known because it was pretty much certain to happen. Which sounds a lot like negligence, to our Palsgraf-addled mind. Or maybe negligence-plus. Or something. Your guess is as good as ours, because even though the court apprently believed it charted a middle course between negligence and subjective intention, it seems to us that in reality it has erected a very high hurdle for an inverse condemnation plaintiff to overcome. The natural consequence ("foreseeable," in other words) of a government action must be entirely and utterly predictable, with no other outcome ("inevitable").
The short story here is that the court held that as a "matter of law" (in other words, no remand for a new trial under this new standard), Ms. Dunn was out of luck since she had not shown the City's sanitation engineers were wrong when they couldn't explain why this happened (gee, you think?), and it had only happened a few times before. Slip op.at 27 ("No one could explain why this backup into plaintiff's house occured while, day in and day out, the city hydrocleans sewers without similar backups occurring."). All Ms. Dunn had offered to the jury was the "but for" causation, and short of evidence establishing "the likelihood of that invasion with greater certainty," she had not demonstrated the requisite government intent. Id. at 28.
In the opinion's last two pages, we finally get down to brass tacks. The court explained that "plaintiff and other property owners who suffer property damage under circumstances of this kind are not necessarily without any remedy," because Oregon has waived sovereign immunity for these type of torts. Slip op. at 29. Provided you bring your claim within 180 days. Which Ms. Dunn had not. Although it is not in the opinion, the news reports about the case indicate that the reason she missed the deadline was that she tried to remedy the situation herself, using disinfectant to clean up the place, and that she only noticed the persistent damage later. This decision was her reward for not being a sue-happy citizen.
One final note. It seems to us that tort is not the best model for this situation. The purpose of negligence law is allocation of risk, and here, you can't say that Ms. Dunn could have done anything to avoid the risk of sewage exploding out of her plumbing fixtures. Instead, this seems like a situation where the takings rationale is especially applicable: an innocent homeowner has been forced to shoulder the entire burden of a public good (sewer maintenance), a financial burden that should, "in all justice and fairness," be diffused across the entire tax base. Instead, the Oregon Supreme Court imposed an overly formalistic test that is nearly impossible to meet, and as a result forced her to carry the load herself.
So, Oregon lawyers, here you go: if this happens to your client, bring both a negligence claim and a claim in inverse condemnation, but realize that your court has just made the latter a very steep climb. But worry not, your tort claim is still a good one. Just don't let that six-month statute of limitations pass, or you will be as s**t out of luck as Ms. Dunn.