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Careful assessment needed on inverse condemnation claims

There is good news on the California wildfire front. Officials report that as of earlier this month, the Thomas Fire is now 100 percent contained. That does not mean it is out. A number of other fires also remain on the active list, but the Thomas incident is notable because of its size. At nearly 282,000 acres, In addition to the loss of a life, the fire destroyed more than 1,000 structures.

The cause remains under investigation, and as we noted in a previous post, the risk of possible landslides remains high. Many property owners likely have concerns about what option they may have if the worst occurs and soil lacking erosion-controlling plant cover gives way under even a single heavy rainfall. Inverse condemnation may be one legal means by which to seek recovery for property loss. However, many factors need to be thoughtfully assessed to determine the likelihood of success.

Potential layers of liability

The mere occurrence of property loss resulting from a debris flow or mudslide is not in itself a solid cause for bringing an inverse condemnation claim. One thing that makes such actions complex is that the alleged "taking" or "damage" that occurs is inadvertent. Unlike condemnation under eminent domain in which the government takes property for public use and is required to pay just compensation, inverse condemnation represents a claim of loss that was unintentional. The government may have only exercised police power to assign property use on behalf of some other entity – such as an electrical utility company.

A successful claim depends on being able to show that the damaging landslide didn't just happen naturally. That is, a broad set of scientific data needs to be assembled to show that the landslide resulted from a compilation of factors. In addition, it must be shown that government action, such as would be in play in support of electrical grid infrastructure, contributed significantly to creating the conditions that led to the landslide.

As we've noted, the cause of the Thomas Fire remains in question. Until a determination is made, it may be premature for property owners to make a call on whether to initiate inverse condemnation action. At the same time, it is not too early to begin examining what options may exist.

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