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California Court of Appeal Reverses Trial Court Decision Finding City Tree was a Work of Public Improvement that Supported an Inverse Condemnation Claim

On August 24, 2017, the California Court of Appeal decided Mercury Casualty Company v. City of Pasadena and reversed a trial court judgment that had found the City of Pasadena (“City”) liable under a theory of inverse condemnation for damage to a resident’s home by a city-owned tree which had fallen during a storm. The Court held that a city tree is a work of public improvement only when 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.

As a preliminary note, we note that this case arises out of separate lawsuit than the one that resulted in the Court of Appeal decision in City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, which considered whether a trial court properly denied the City’s motion for summary adjudication. However, this case involves the same plaintiff, Mercury Casualty Company, and defendant, the City, and similar facts and theory of liability: that the City was liable for inverse condemnation because of a City tree that fell on a resident’s home.

In 2011, a storm with hurricane-force winds uprooted more than 2,000 trees in the City. One tree fell on the home of Sarah and Christopher Dusseault, causing significant damage. In 2012, the Dusseaults’ insurer, Mercury Casualty Company (“Mercury”) sued the City for inverse condemnation and nuisance. After a bench trial, the trial court found in Mercury’s favor and awarded Mercury damages in the amount of insurance benefits paid as well as costs. The City appealed both the trial court’s decision as well as the order awarding costs.

The Court of Appeal reviewed the evidence at trial: The City owned more than 60,000 trees as part of its “urban forest”. In 1940, the City published the “Official Street Tree List” which designated an official tree for each street in the City, but did not include an inventory of the City’s then-existing trees or establish any maintenance procedures or guidelines for City-owned trees. In 1976, the City adopted a “Master Street Tree Plan”, which listed the official tree for each street and included an inventory of the City’s then-existing trees. The Master Street Tree Plan did not include any maintenance procedures or guidelines for City-owned trees. In 1992, the City adopted an ordinance that established city-wide policies for protecting, maintaining, and removing trees that are part of the City’s urban forest. The ordinance differentiated between public trees which are located in a place or area under the ownership or control of the city (including streets, parkways, open space, parkland, and property under the operational control of another entity) and street trees which are any public trees whose trunk is located primarily within any parkway, public sidewalk, street median, traffic island, or other right or way under the ownership or control of the city. It did not, however, establish any specific design standards or any maintenance or pruning schedules for street trees. In either 2005 or 2010, the City implemented a policy of inspecting and maintaining its street trees every five years. A certified arborist testified that this schedule was consistent with industry standard, and in fact, exceeded the standards used by most cities.

The tree at issue, referred to at trial as Tree F-2, was one of four Canary Island Pines, which stood in a City-owned parkway that separated the Dusseaults’ property from the street. The trees were planted in the late 1940s or early 1950s by an unknown party. The City did not dispute that the City owned the trees at the time of the incident because they were located in a public parkway. The City inspected the trees on three occasions between 2006 and 2008. Tree F-2 fell in the early hours of December 1, 2011 as a result of a storm that struck the City during the evening of November 30, 2011.

Based on this evidence, the Court of Appeal found that Tree F-2 was not a work of public improvement as that term is used in the inverse condemnation context. The Court noted that there was no evidence to suggest that the City planted Tree F-2 as part of a planned project or design that served some public purpose. There was also no evidence that the City took a calculated risk by planting Tree F-2, and in fact, other than some pruning, there was no evidence that the City took any deliberate action before Tree F-2 fell. Instead, the Court explicitly held that “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.”

The Court also rejected an argument that the ordinance adopted by the City to establish policies for protecting, maintaining, and removing trees converted Tree F-2 into a work of public improvement. First, the Court noted that the ordinance was adopted decades after the tree was planted and therefore, had no bearing on how or for what reason Tree F-2 was planted. Second, the ordinance did not establish any specific design standards, parameters, or maintenance schedules. As such, the ordinance did not constitute a design for a public project or improvement and did not convert Tree F-2 into a work of public improvement.

Furthermore, the Court affirmed that the City’s tree maintenance plan did not establish a taking for inverse condemnation purposes because there was no showing that the plan of maintenance was deficient in light of a known risk inherent in the improvement. Instead, the Court found that the City’s five year cycle for inspecting and caring for its trees was not only adequate, but exceeded the industry standard.

Finally, the Court highlighted that its decision did not immunize the City from all forms of liability for damage caused by its trees. The Court noted that a property owner or subrogee may still sue a public entity for, among other claims, dangerous condition of public property.

COMMENT

This decision clarifies when a tree can be considered a work of public improvement for the purpose of inverse condemnation liability. Based on this decision, it is clear that a tree, when planted as part of any planned project, such as a road improvement project or road beautification plan, can give rise to inverse condemnation liability. As such, cities and municipalities should implement the following policies and procedures relating to its trees:

1) Maintain an up-to-date inventory of all city trees, indicating, in particular, those trees that were planted as part of a planned project of design, even if simply for beautification purposes.

2) Create a plan for inspecting and caring for city trees. Following the guidance in this decision, a five-year cycle is more than adequate.

3) Retain appropriate records and plans relating the city projects and design plans so that the source of each city tree is known to the extent possible.

However, some questions remain as to the interaction of this Court’s decision with Streets and Highways Code section 5600, et seq. and municipal tree ordinances. For example, in Jones v. Deeter (1984) 152 Cal.App.3d 798, 806, the court stated, in conclusion, that if a city “tire[d] of its responsibility to care for [street trees], this task may be passed on to abutting owners under the procedure established by Streets and Highways Code, sections 5600 et seq.” As such, a question remains: if responsibility to maintain a street tree, which was planted as part of a planned project, was passed on to an abutting homeowner pursuant to Streets and Highways Code section 5600 et seq. or some other local ordinance, would the public entity still be liable for inverse condemnation for damages caused by this tree? Under a strict reading of the Court’s decision, the answer would appear to be yes. If true, this decision may undermine traditional methods for cities and municipalities to transfer risk with regard to maintenance of street trees.

This document is intended to provide you with general information about legal developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact Kimberly Chin at 415-697-3455 or at kchin@aghwlaw.com. This communication may be considered advertising in some jurisdictions.