Can You Sue The Government For Flood Damage In California?

Yes, you can. You should be able to sue the government under Government Code § 835, Civil Code § 3479, Cal. Const. art. I, § 19, or all three.

Know that we’re talking about state and local government, not the federal government. Here’s what else you should know.

The General Rule

The general rule is limited sovereign immunity, which means the government isn’t liable for anything unless a state statute makes it liable. See Government Code § 815. This is the heart of the Government Claims Act, which covers almost all causes of action brought against the government. That rule is subject to exceptions.

Exceptions To The General Rule

These are the most common exceptions to the general rule, at least when it comes to flood damage.

• Dangerous condition of public property under Government Code § 835. This is a statutory exception to the general rule.
• Nuisance under Civil Code § 3479. This is another statutory exception, although it sits outside the Government Code and the Government Claims Act. But some of the defenses under the Act still apply.
• Inverse condemnation under Cal. Const. art. I, § 19. This is a constitutional claim and sits outside the Government Claims Act.

What Does Dangerous Condition Of Public Property Mean?

Great question, and this gets a bit complicated. Basically, a “dangerous condition” means a condition of public property that creates a substantial risk of injury to the public. See Government Code § 830(a). Also, the “dangerous condition” must create a foreseeable risk of harm .The government must have known about it and did nothing. That “notice” part is one of the more difficult elements to show. But it can be done. Notice can be either actual or constructive, meaning the government should have known.

An example of a flooding claim under Government Code § 835 would be a City-controlled channel that’s been clogged with trash, sediment, and vegetation for years. Although residents told the City about it, City did nothing. Heavy rain caused the clogged channel to overflow and flood the residents’ homes.

How Can A Flood Be A Nuisance?

It’s easy. Nuisance is about the effect on your property. Under California law, anything that interferes with the use and enjoyment of your land or property is a nuisance. That broad definition fits almost anything. See Civil Code § 3479 and CACI 2021. A flood certainly falls under that definition.

Flooding And Inverse Condemnation

Inverse condemnation and flooding claims are particularly complicated. The case law is contradictory and difficult to understand. But there are rules. Basically, the general rule is that the public improvement had an inherent risk in the way that the government designed, constructed, or maintained it, and that itself was a substantial cause of plaintiffs’ damage. When it comes to flooding, however, the rule is almost always one of reasonableness if the lands at issue were subject to flooding.

This area is particularly complicated. But you can certainly sue the government for flooding under inverse condemnation.

Consider these posts for more info:

• What Is Inverse Condemnation In California?
• How To File A Flooding Claim Against The City Of San Diego
• Who Is Responsible For Water Main Breaks In San Diego?

Questions?

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