In Deschner v. State of Montana Dep't of Highways, No. DA 15-693 (Feb. 28, 2017) the Montana Supreme Court agreed with the plaintiffs, who argued on appeal that the trial court had improperly instructed the jury about the requirements of inverse condemnation law. But the court affirmed the jury's verdict of no inverse liability, because the jury had concluded that the Department wasn't negligent, and hadn't caused the damage to the home.
The Department maintained a highway on a bluff that apparently is some kind of attraction. Deschner's home was at the bottom of the bluff, and one day, a two million pound sandstone slab crashed down on the home and destroyed it. As the photo above shows, the home was a total loss. The owners brought suit, alleging both inverse condemnation and negligence. The jury eventually ruled for the Department on both claims.
The homeowners appealed, alleging the trial court's instruction setting out the elements of inverse condemnation under Montana law was wrong. Inverse plaintiffs only need prove (1) they own property, (2) the property was damaged, (3) there was a public improvement that (4) caused the damage.
Instead, the jury was instructed that (1) the damage must be foreseeable, (2) the damage was remote, (3) the damage to the property was the "proximate result" of the public works, (4) the cost of the damage is better absorbed by the public, and (5) the plaintiffs "go uncompensated they would contribute more than their proper share to the public undertaking."
Given those confusing set of five factors, is it any wonder the Montana Supreme Court concluded that the instructions presented to the jury didn't cut it? Although based on an earlier Montana case, the court held the holding in that case "is more noteworthy for establishing what is not required to bring a claim for inverse condemnation--than what is required." Slip op. at 8 (emphasis original). The court agreed with the homeowners that "the test for inverse condemnation must be evaluated within the context of [the Montana Constitution], ... and the five factors "should not be strictly applied as elements of an inverse condemnation claim." Slip op. at 9. All the plaintiffs needed to prove was that the Department caused the damage to their house. So far so good.
But that wasn't the end of the court's analysis. The jury had also been presented with a negligence claim, and concluded that the Department was "0% at fault" when asked what percentage, if any, each party contributed to the plaintiffs' damages. Yes, the jury answered this question in the context of negligence, but that's just a technical difference: the jury had been asked whether the Department had caused the damages, and concluded no:
Instruction No. 29 incorrectly required Deschner and Lodge to prove elements to their inverse condemnation claim beyond that which Article II, Section 29 of the Montana Constitution and our case law subsequent to Rauser require. Nevertheless, when read in the context of the given instructions in their entirety, in connection with the evidence presented at trial, and in light of the jury’s answer regarding causation on the special verdict form, we conclude that the District Court’s refusal to give Deschner and Lodge’s proposed jury instruction does not constitute reversible error because Deschner and Lodge failed to establish that the State caused their damages. Therefore, Deschner and Lodge’s substantial rights were not affected and they were not prejudiced by the given instruction and the District Court’s refusal of their alternative instructions.
Slip op. at 11.
End result: no-harm, no-foul, and inverse condemnation law is now squared away for future cases; but for these plaintiffs, no luck at all.
Deschner v. State of Montana, Dep't of Highways, No. DA 15--693 (Mont. Feb. 28, 2017)
