In Mercury Casualty Co. v. City of Pasadena, published August 24, 2017, the Second District Court of Appeal, Division 3 reversed a court judgment holding the defendant city liable for inverse condemnation. A parkway tree that was over 100 feet tall grew in the parkway in front of Mercury's insured's house. In an unusual storm in which hurricane-force winds blew, the tree blew over onto the house. Mercury sued the city as its insured's subrogee. The trial court ruled that the tree was a public improvement, and that the city was therefore strictly liable in inverse condemnation for the damage it caused to the house.
The appellate court ruled that the tree was not a public improvement. A tree constitutes a work of public improvement for purposes of inverse condemnation liability if the tree is deliberately planted by or at
the direction of the government entity as part of a planned project or design serving a public purpose or use, such as to enhance the appearance of a public road. Although the parkway was public property, there was no evidence showing who planted the tree. it was not the assigned type of city tree for that street. Although an ordinance directed city care of parkway trees, it post-dated the tree's planting. The city's maintenance of the tree through general maintenance of its urban forest did not turn the tree into a public improvement.
The court also ruled that there was no evidence that the city's maintenance plan established a taking. To establish inverse condemnation through maintenance, the plaintiff must show that the plan of maintenance of an improvement was deficient in light of a known risk inherent in the improvement. There was no evidence the city's maintenance plan was deficient. The city could still be held liable in tort for a fallen tree, e.g. under a dangerous condition of public property theory.
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