What will they think of next?
Those of us who know inverse condemnation understand that because the cause of action is based in the constitution, that the usual tort concepts such as negligence and comparative fault aren’t part of the equation. Generally speaking, under California law, liability is triggered when government conduct is a “substantial cause” of the damage.
The California Assembly wants to change all that. It has introduced Assembly Bill No. 1402 (Feb. 27, 2015), which would, in the bill’s words, “apply the doctrine of comparative fault to inverse condemnation actions and would require a court or arbitrator to reduce the compensation paid to a plaintiff in an inverse condemnation proceeding in direct proportion to his or her percentage of fault, if any, in the damaging of property that constitutes a taking.”
Bad idea, and certainly not one that merely codifies “existing law” as the second sentence of subsection (1) claims.
Apparently this isn’t the first time a bill like this has been introduced, and our colleagues at the California Eminent Domain Report did a good write-up and analysis of an effort to get a similar measure adopted in 2011. See “The ‘Tortification’ of Inverse Condemnation?” (Feb. 18, 2011).
Hopefully, AB No. 1402 suffers the same fate as the earlier bill.
California Assembly Bill No. 1402 (Feb. 27, 2015)