Pacific Bell v. City of San Diego
| Decision Date | 13 June 2000 |
| Docket Number | No. D033640.,D033640. |
| Citation | 81 Cal.App.4th 596,96 Cal.Rptr.2d 897 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PACIFIC BELL, Plaintiff and Appellant, v. The CITY OF SAN DIEGO, Defendant and Respondent. |
Pacific Telesis Group Legal Department and J. Scott Paisley, San Diego, for Plaintiff and Appellant.
Casey Gwinn, City Attorney, Anita M. Noone, Assistant City Attorney, and Grant Richard Telfer, Deputy City Attorney, for Defendant and Respondent.
Plaintiff Pacific Bell's facility suffered substantial damage when a corroded cast-iron water pipe servicing a fire hydrant burst and the escaping water flooded the facility. The pipe was owned and maintained by defendant City of San Diego (City) and would not have burst had it not been corroded.
Pacific Bell sought inverse condemnation damages from City. Pacific Bell asserted that because City had no preventive maintenance plan to inspect or monitor the effect of corrosion on old cast iron pipes, burst pipes resulting in damage to adjoining private property was an inevitable consequence of City's water delivery system as designed, constructed and maintained.
There are two principal issues. First, do the immunities under the Tort Claims Act (Gov.Code, § 810 et seq.),1 including the so-called fire hydrant immunity (§ 850.4),2 bar an inverse condemnation claimant from recovering damages caused by a burst pipe providing water service to a fire hydrant? Second, if the Tort Claims Act immunities do not apply, under inverse condemnation principles is City strictly liable for damages caused by its bursting pipe or must the claimant establish City's unreasonable conduct?
City contends it is immune from liability for damage to Pacific Bell's facility because the gravamen of Pacific Bell's claim is City's negligent maintenance program, which must be prosecuted under the Tort Claims Act, and the fire hydrant immunity bars any claim against City under the Tort Claims Act. Pacific Bell contends the Tort Claims Act and its immunities do not apply to its inverse condemnation claim. Pacific Bell further argues that McMahan's of Santa Monica v. City of Santa Monica, (1983) 146 Cal.App.3d 683, 194 Cal.Rptr. 582 (McMahan's) is controlling and that under inverse condemnation City must pay for the damage without proof of fault. City contends McMahan's has been substantially undercut by a trio of California Supreme Court cases that replaced McMahan's inverse condemnation strict liability rule with a reasonableness rule under which a private party damaged by a public entity's water system must show the public entity acted unreasonably in constructing or maintaining the system.
The dispositive facts are undisputed. City's water delivery system has approximately 2,700 miles of pipes, about 180 miles of which are made of cast iron. The burst cast-iron pipe that resulted in damage to Pacific Bell's facility was installed in 1958.
Cast-iron pipes are subject to a corrosive process known as graphitization, in which the iron component of the pipe is leached into the soil, leaving brittle shell of graphite. Graphitization makes the pipe less able to withstand water pressure fluctuations and more susceptible to breakage. Because of the high number of graphitization-caused breaks in older cast-iron pipes,3 City has concluded that all cast-iron pipes in its system need to be replaced.
City has no program or method for testing or inspecting cast-iron pipes to identify those needing immediate replacement. Instead, City learns a cast-iron pipe needs replacement only when it breaks. City replaces an old cast-iron pipe if it breaks, or if there is a change of service, or in conjunction with replacing the water main to which it is attached.
In the 10-year period before 1997, the city council denied 28 requests for a water rate increase to fund City's water pipe repair and rehabilitation efforts, including replacing cast-iron pipes. Under City's current schedule, it will take between 10 and 15 years to replace all of the cast-iron pipes.
City installed, owned and maintained a fire hydrant near the corner of Sixth and Robinson. Water to the hydrant was provided by a six-inch cast-iron pipe installed by City in 1958. Prior to April 1997 the hydrant had been knocked over six times and City installed bumper posts around the hydrant to protect against future knockovers. City also fitted the hydrant with a breakaway check valve, known as a flapper valve, which is designed to automatically snap shut in the event the hydrant is knocked over, thereby minimizing the loss of water.
On April 11, 1997, an automobile struck the Sixth and Robinson hydrant and knocked it over. The flapper valve snapped shut as intended. However, the resulting spike in water pressure caused the cast-iron pipe to burst or disintegrate near its junction with the main water line. The pipe burst only because it was corroded; the pipe would have withstood the pressure change but for its severely corroded condition.
It took between one and two hours to completely shut off water flowing from the broken pipe into the basement of Pacific Bell's facility. Pacific Bell suffered damages and clean-up costs of more than $170,000.
Pacific Bell filed a multi-count complaint against City to recover the damages to its facility. City's answer asserted numerous defenses, including the fire hydrant immunity (§ 850.4). At trial Pacific Bell dismissed all counts except its count alleging inverse condemnation. The court informed the parties of its intention to enter judgment for City, and Pacific Bell timely requested a Statement of Decision. The court concluded that: (1) under Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 41 Cal.Rptr.2d 658, 895 P.2d 900 (Customer) a claim may not be brought under inverse condemnation if the same claim would be barred by the statutory immunities described in the Tort Claims Act; (2) Pacific Bell did not demonstrate a deliberate act undertaken in fulfillment of a public purpose necessary to establish an inverse condemnation claim under the California Constitution; and (3) under Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432, 63 Cal.Rptr.2d 89, 935 P.2d 796 (Bunch), a plaintiff asserting an inverse condemnation claim based on flood damage caused by a public improvement is required to show the public entity acted unreasonably and Pacific Bell did not show City's maintenance program was unreasonable.4 The court entered judgment for City and Pacific Bell appeals.
The determinative facts in this case are undisputed and we address only issues of law. Accordingly, we review de novo the trial court's legal conclusions. (San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal. App.4th 517, 528, 86 Cal.Rptr.2d 473.)
An inverse condemnation action, in contrast to a condemnation action initiated by the condemning public agency, is an eminent domain action initiated by one whose property was taken or damaged for public use. The principles of eminent domain law apply to inverse condemnation proceedings. (Belmont County Water Dist. v. State of California (1976) 65 Cal. App.3d 13, 19, fn. 3, 135 Cal.Rptr. 163.) The fundamental policy underlying the concept of inverse condemnation is that the costs of a public improvement benefiting the community should be spread among those benefited rather than allocated to a single member of the community. (Belair, supra, 47 Cal.3d at p. 558, 253 Cal.Rptr. 693, 764 P.2d 1070.)
A successful inverse condemnation claimant must prove that a public entity has taken or damaged its property for a public use. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 939-940, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Article I, section 19 of the California Constitution has been interpreted by our Supreme Court to mean that "any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed is compensable ... whether foreseeable or not." (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263-264, 42 Cal.Rptr. 89, 398 P.2d 129.) Damage caused by the public improvement as deliberately conceived, altered or maintained may be recovered under inverse condemnation (Barham v. Southern Cal. Edison Co. (1999) 74 Cal.App.4th 744, 755, 88 Cal.Rptr.2d 424) and the presence or absence of fault by the public entity ordinarily is irrelevant. (Marshall v. Department of Water & Power supra, 219 Cal.App.3d at p. 1138, 268 Cal.Rptr. 559.)
The burst water pipe causing damage to Pacific Bell's facility was part of City's firefighting equipment. The courts have concluded that section 850.4 provides the government absolute immunity against claims under the Tort Claims Act for injury to persons or property caused by firefighting equipment. (See, e.g., Cochran v. Herzog Engraving Co. (1984) 155 Cal. App.3d 405, 409, 205 Cal.Rptr. 1 [].) Thus, in Razeto v. City of Oakland (1979) 88 Cal.App.3d 349, 151 Cal. Rptr. 791, vandals turned on a fire hydrant, which act caused water damage to plaintiffs home. Plaintiff sued the city, alleging negligent installation and maintenance of the hydrant under the Tort Claims Act. The court found section 850.4 conferred immunity on the city from claims under the Tort Claims Act. (Id. at pp. 351-353,151 Cal.Rptr. 791.)
However, the immunities provided by the Tort Claims Act do not insulate a public entity from liability for inverse condemnation; the constitutional provisions requiring compensation for property taken or damaged by a public use overrides the Tort...
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