In Witman v. City of Billings, No. DA 20-0609 (July 5, 2022), the Montana Supreme Court rejected an inverse condemnation damaging claim after a grease clog in city sewers resulted in 1000 gallons of raw sewage flooding the Witman home. Ugh.
Despite rules that limit what is supposed to go into sewage systems, people put all kinds of stuff, including grease, into toilets and drains. The city cleans the pipes out every year, but "experiences ten to fifteen [Sanitary Sewer Overflow events] annually."
The trial court denied the owner summary judgment on liability, and instead held that the city was not liable as a matter of law because it had not undertaken "deliberative affirmative action."
The Supreme Court rejected the owner's argument that purposeful action may be necessary in eminent domain takings, but not in inverse, and an invitation to adopt the California approach to inverse. The owner asserted that Montana's inverse law recognized a strict liability approach, where "it is enough" for a plaintiff "to prove the City's sewer system caused incidental, inadvertent, or consequential damage to their property, even 'passively' damaged them." Slip op. at 10.
Relying on a decision of the Oregon Supreme Court, the Montana court held that even inverse claims must show some intentional act by the government. After trying to find some common threads in the existing inverse decisions, the court came up with this:
Generally summarizing these eminent domain principles implicated by Wittmans’ arguments, an inverse condemnation claim requires a plaintiff to demonstrate a public project was deliberately planned and built in such a way that the taking or damaging of private property was foreseeable, and, as planned and built, the project damaged the plaintiff’s property. For a damage claim less than a complete taking, the property must have been damaged to such a degree as to constitute a permanent taking of the property, and not merely have caused an infringement upon enjoyment of the property, a temporary damage, or a damage common to the public at large.
Slip op. at 20.
So this isn't tort (but to us it sure sounds really, really torty). To us, the thing that has always driven these cases is on one hand the Armstrong theory (the cost of public benefits should be borne by the public), and on the other the courts' view that facts like these feel more tort-like and that a strict application of the cost-distribution principle would, you know, cost the public too much.
The other shoe: "[w]e conclude upon the record of this case that Wittmans have not established the sewer backup was a constitutional damaging of their basement for public use, and thus, a condemnation." Id.
You might want to take some time and review the extensive (67 pages!) dissenting opinion, which in our quick review focuses on the difference between a plain old taking, and a damaging (since the Montana Constitution prohibits takings and damagings without compensation). The dissent (no "respectfully" included) gets a bit salty:
However, in disregard of our own prior admonitions in Less and Rauser, the Court today indiscriminately fritters away and eviscerates the fundamental or damaged protection of private property provided by Article II, Section 29. It does so based on our historical, and now continuing, failure since Rauser to clearly and consistently articulate the essential elements of consequential damaging claims, distinct from categorical taking claims (whether based on actual physical appropriation of private property for public use or by consequential physical damage to or interference with its use and enjoyment so substantial to be tantamount to a physical appropriation) and regulatory taking claims. From Rauser on, we have failed to clearly and consistently define and apply the causation element common to Montana consequential taking and damaging claims derived from common law tort causation
Dissent at 25.
Witman v. City of Billings, No. DA 20-0609 (Mont. July 5, 2022)
