Confronted with a bevy of wildfire and flood claims, public and private utilities frequently contend that the instrumentality responsible for causing damage does not constitute a “public use” required for an inverse condemnation claim. The California Court of Appeals, Second Appellate District, in the City of Pasadena v Superior Court recently addressed whether a tree constituted a “public improvement” as required for an inverse condemnation cause of action. The case arose in the context of a windstorm, causing a tree to fall and damage a home. After paying the first-party claim, Mercury Casualty Company subrogated against the City of Pasadena alleging inverse condemnation and nuisance. After unsuccessfully seeking summary adjudication of the inverse cause of action, the City of Pasadena sought a writ of mandate. The City’s principal argument, citing Albers v County of Los Angeles (1965) 62 Cal. 2d 250, was that a tree is not “deliberately designed and constructed” a prerequisite to establishing proximate cause in an inverse case.
In denying the writ, the City of Pasadena court distinguished Albers as proximate cause was not challenged by the City of Pasadena. The City of Pasadena court noted that to constitute a public improvement, there must be deliberate action by the state and a taking for public purposes. The court relied on a California Supreme Court case holding that the planting of trees to beautify public streets benefits the public and serves the public purpose of improving public roads. The City of Pasadena court concluded that the subject tree was part of a City forestry program to enhance its residents’ and visitors’ quality of life. This decision is significant in its expansion of “public use” to include trees, not typically thought of as “instrumentalities” of the state.