Reading through the Alabama Supreme Court’s recitation of the facts in a case about inverse condemnation, City of Daphne v. Fannon, No. 1180109 (Dec. 6, 2019), you can’t help but be reminded of the convoluted chain of events in that old warhorse tort case, Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928) and the Cardozo-Andrews split on how far liability extends. You remember that one, where a guy running for a train was helped by railroad workers and a package fell from his hands and exploded, causing a scale on the other end of the platform to fall over onto Ms. Palsgraf injuring her. Tort liability turned on how foreseeable it was that helping someone onto a train would result in injury to a different party.
In Fannon, a similarly unusual chain of events results in private property being flooded. The City installed a pipe in a right of way near Fannon’s property, Fannon installed his own swale, and nearly a decade later after a massive two-day rain, several trees whose roots were eroded by the increased water flow fell on Fannon’s house. Inverse or not? No, according to the court:
In this case, the City installed a 48-inch pipe in the right-of-way near the Fannons’ house. Shortly thereafter, David installed a swale in the right-of-way, and there were no erosion problems for approximately nine years. However, an unprecedented rain event occurred on April 29 and 30, 2014, and it caused erosion in the right-of-way. Some of that erosion was around tree roots, which caused trees growing in the City’s right-of-way to fall onto the Fannons’ house and damage the house. Although experts for the Fannons and the City testified that some erosion from the installation of the 48-inch pipe was possible, neither testified that it was foreseeable or ascertainable at the time of the installation of the 48-inch pipe that trees in the right-of-way would fall onto the Fannons’ house and damage it nine years later. In fact, the Fannons did not present any evidence to establish that it was ascertainable, or foreseeable, during the construction of the drainage project nine years earlier, that erosion would occur and cause trees from the City’s right-ofway to fall onto and damage the Fannons’ house.
Slip op. at 20-21.
According to the court, this was too remote — too unforeseeable — at the time the city installed the pipe years earlier. No inverse liability.
But as if to further muddle the line between torts and takings, however, the court also rejected the city’s argument which sought to overturn the trial court’s entry of judgment as a matter of law in favor of the the property owner on trespass and negligence:
In entering the judgment as a matter of law in favor of David as to the City’s trespass counterclaim, the trial court specifically found that the Fannons presented undisputed evidence that Campbell told David to “do what you have to do to protect your property” and that neither she nor anyone else limited that permission to cutting trees or restricted them from doing work in the right-of-way to protect their property. When granting the judgment as a matter of law as to the City’s negligence counterclaim, the trial court specifically found that the Fannons had presented undisputed evidence that they believed that another big rain event was coming before they had the 30-inch pipe installed, that the City was in the process of determining where the boundary lines were and was not doing anything to alleviate the drainage and erosion problems, and that David installed the 30-inch pipe as an emergency measure to alleviate the drainage and erosion problems in the short term pursuant to the permission from Campbell to do what he had to do to protect his property. As the trial court noted, the City did not present any evidence to refute the Fannons’ position that there was an emergency situation, as defined in the City’s right-of-way ordinance, and that David took steps to protect their property until the City could take remedial action. We agree that the City did not refute the Fannons’ evidence as to its trespass and negligence counterclaims, and we conclude that the trial court did not err in entering a judgment as a matter of law as to those counterclaims.
Slip op. at 25-26 (footnote omitted).
City of Daphne v. Fannon, No. 1180109 (Ala. Dec. 6, 2019)