When is a tree a “public improvement” for purposes of inverse condemnation?  According to one court, when the tree was planted by a city as part of a forestry program and maintained over a period of time.  City of Pasadena v. Superior Court (Mercury Casualty Co.) (2014) California Second District Court of Appeal No. B254800.

A tree planted on public property in Pasadena blew over in a strong windstorm, damaging the home of a nearby resident.  The resident’s insurance company paid for the repairs and sued Pasadena on theories of inverse condemnation and nuisance.

Under California inverse condemnation law, a public entity is liable for damage to private property caused by a “public improvement.”  Typically, such damage is caused by a defective sewer, street, sidewalk, or other public work.  Pasadena argued that a tree is not a “public improvement” for these purposes.

The court found that Pasadena had planted the tree by design as part of its forestry program, which included some 60,000 trees.  In addition, city records showed the tree had been trimmed twice in the preceding decade.  These factors made the tree a “public improvement” and damage caused by the tree could be the city’s responsibility.  The case was returned to the Superior Court for trial.

This decision offers strong protection for property owners that are near public property.  But it leaves many unanswered questions: What about trees located on municipal property but were not planted as part of a deliberate program?  What about trees that are located on private property but overhang a public street?  Are unusually high winds an “Act of God” that would exempt a public entity from liability?  These questions are left to future cases.

For further information about this blog or related matters, please contact Mark D. Hudak at 650.342.9600 or mhudak@carr-mcclellan.com.