the entire claim be submitted to the Court, the special verdict form was revised to include inquiries directed to the matter of proximate cause. These inquiries were patterned upon those set forth in Skeen v. State, 550 S.W.2d 713, 715 (Tex. Civ. App. 1977), which concerned an inverse condemnation claim based upon facts comparable to those underlying plaintiffs' claim in this case.
As set forth above, the jury affirmatively answered each of the inquiries regarding plaintiffs' inverse condemnation claim. That is, the jury found that both the 1978 elevation of Thorndale Road and the modification and extension of the culvert beneath it caused water to accumulate and overflow the water drainage canal onto the Warner property, and that the flooding in turn caused damage to plaintiffs' property. In light of these findings, which establish that DuPage's conduct in making modifications to public improvements was a proximate cause of damage to Warner's property, the Court finds that there has been a compensable damaging of Warner's personal property for a public use
and that DuPage is therefore liable to plaintiffs in inverse condemnation. Cf. Hillsborough County v. Gutierrez, 433 So. 2d 1337, 1340 (Fla. App. 1983) (in inverse condemnation action, where court found that drainage ditches adjacent to plaintiffs' property were constructed by county in such a way as to create flood conditions on the property, plaintiffs were entitled to recover value of personal property damaged by flooding); Skeen, 550 S.W.2d at 715 (where jury found that elevation of highway and manner of construction of culverts and service roads caused an overflow of flood waters onto plaintiffs' property on two occasions, resulting in damage to plaintiffs' real and personal property, plaintiffs were entitled to recover damages on theory of inverse condemnation); Granone v. County of Los Angeles, 231 Cal. App. 2d 629, 42 Cal. Rptr. 34, 46 (1965) (where evidence disclosed that drainage channel and culverts had not been designed and constructed consistently with sound engineering practice and were negligently maintained, resulting in accumulation of debris, blockage of flow during rainstorm, and flooding of plaintiffs' land and destruction of plaintiffs' crops, defendants were liable in inverse condemnation). See also Marshall, 268 Cal. Rptr. at 567 ("a governmental entity may be held strictly liable, irrespective of fault, where a public improvement constitutes a substantial cause
of the plaintiff's damages even if only one of several concurrent causes").
B. Reduction for Warner's Contributory Negligence
On the eve of trial, the parties stipulated to the amount of damages which plaintiffs had incurred, based upon the Court's prior rulings as to the correct measure of damages. The amount agreed upon was $ 4,160,385.00.
Plaintiffs have prevailed on both of their claims, although the jury concluded that Warner was 70 percent contributorily negligent. Plaintiffs concede that to the extent that an award of damages is based upon their negligence claim, it must be reduced by 70 percent to reflect Warner's contributory negligence. This reduction would entitle plaintiffs to recover $ 1,248,115.50 on their negligence claim (subject to setoff under the Contribution Act for the prior settlements, as discussed in the following section). DuPage argues that the same reduction should apply to the inverse condemnation claim, thereby precluding plaintiffs from recovering a greater amount under that theory. Plaintiffs contest application of comparative fault principles to their inverse condemnation claim, arguing that because such a claim is not based upon tort theory, tort principles such as comparative fault should not apply.
At the outset, the Court must dispose of DuPage's threshold argument that having prevailed upon their negligence claim, plaintiffs are barred from an alternate recovery upon their claim of inverse condemnation. DuPage suggests that because inverse condemnation arose as a means to circumvent the doctrine of sovereign immunity which typically barred tort claims against governmental entities, see Van Alstyne, "Inverse Condemnation: Unintended Physical Damage," 20 Hastings L. J. 431, 440-41 & n. 51 (1969); Granone v. County of Los Angeles, supra, 42 Cal. Rptr. at 45, it should be unavailable in cases where this immunity does not apply.
This contention is incorrect. A similar argument was rejected in Lanning v. State Highway Commission, 15 Ore. App. 310, 515 P.2d 1355 (1973). There the plaintiffs alleged that the defendant's failure to keep the base of a bridge clear from debris had caused water to back up onto their land, and asserted alternate claims of negligence and inverse condemnation against the defendant. The defendant raised an argument which is the mirror image of the argument DuPage makes here: it contended that because plaintiffs had a remedy in inverse condemnation, they had no remedy in tort. The court disagreed:
While inverse condemnation may have developed as a remedy because of the existence of sovereign immunity, the removal of sovereign immunity means, under appropriate circumstances, that alternative remedies now exist for a plaintiff whose property may have been damaged by the tortious act of a public body. The fact that plaintiffs may have an alternative remedy is no grounds for finding the remedy he [sic] has chosen should not lie.
515 P.2d at 1359. Accord Ingram v. City of Redondo Beach, 45 Cal. App. 3d 628, 119 Cal. Rptr. 688, 690 (1975) ("Private property owners who have suffered damages as a consequence of a public work may rely for relief on [the eminent domain provision] of the California constitution. The owner of property is not restricted to a tort recovery based on negligence.") (citations omitted). Thus, inverse condemnation remains available to plaintiffs as a distinct cause of action despite their ability to recover under a negligence theory. See generally Aetna Life & Cas. Co. v. City of Los Angeles, 170 Cal. App. 3d 865, 216 Cal. Rptr. 831, 835 (1985) (noting differences between claims of negligence and inverse condemnation).
Nevertheless, although inverse condemnation represents a distinct cause of action, its overlap with tort principles cannot be ignored. As the court noted in Aetna Life & Cas. Co., inverse condemnation "has its roots in the principles of tort and property law." 216 Cal. Rptr. at 835. See also Granone, 42 Cal. Rptr. at 44-45 ("the taking or damaging of private property without compensation first being paid is in the field of tortious action"); Van Alstyne at 440-41. Thus, to the extent that tort principles have been incorporated into inverse condemnation theory, there is no apparent reason to think that the tort-based doctrine of comparative fault should not be applied to an inverse condemnation claim.
Two California decisions have indicated that a plaintiff's negligence should not be a complete bar to recovery on a claim of inverse condemnation; however, these cases did not address whether such negligence might be considered in determining the extent of the plaintiff's recovery. In Blau v. City of Los Angeles, 32 Cal. App. 3d 77, 107 Cal. Rptr. 727, 733 (1973), the court concluded that the trial court had committed reversible error in instructing the jury that if it found that a substantial cause of the landslide which had damaged plaintiffs' property was the conduct of the plaintiffs or their predecessors in interest, it could not award damages against the defendant city. The court reasoned that as long as the city's conduct was a substantial cause of the landslide, it could be held liable despite the presence of other substantial causes. 107 Cal. Rptr. at 733.
Citing Blau, the court noted in Ingram v. City of Redondo Beach, supra, 119 Cal. Rptr. at 691 n. 4, that to the extent the trial court's finding for the defendant in an inverse condemnation case had rested upon the doctrine of contributory negligence or a duty upon the part of the plaintiffs to take affirmative action in order to avoid injury, it may have been erroneous. These cases make it clear that a governmental agency cannot escape liability in inverse condemnation merely because there may have been other substantial causes of the injury to the plaintiff's property in addition to the public improvement. However, they do not address the precise question presented here -- whether the damages for which the government is held liable may be reduced to the extent the plaintiff or a third party has contributed to the injury. See Doyle v. Rhodes, 101 Ill. 2d 1, 77 Ill. Dec. 759, 766-67, 461 N.E.2d 382, 389-90 (1984) (drawing distinctions between doctrines such as contributory negligence and indemnity, which shift entire loss from defendant to another party, and those such as comparative negligence and contribution, which shift only part of the loss based upon the relative culpability of the parties).
Although the Court has found no reported case which expressly considers this issue, County of San Mateo v. Berney, 199 Cal. App. 3d 1489, 245 Cal. Rptr. 738, 741-42 (1988), suggests that a governmental agency should not be held entirely liable for a plaintiff's injury when other parties contributed to the damage. In Berney, the court held that a county sued on a theory of inverse condemnation could properly cross claim against a third party for equitable indemnity. The county had allegedly planned and caused to be constructed a sidewalk adjacent to the plaintiffs' property which destroyed the lateral support to the property and caused it to subside and slide away. The county's proposed cross claim was against the real estate developer which had actually built the sidewalk as part of the subdivision which included plaintiff's home, and the claim alleged that the developer had knowingly used improper fill material and had concealed this fact from the County when seeking approval of its proposed subdivision map. The court held that under these circumstances, a cross claim for indemnity was proper. 245 Cal. Rptr. at 741. "While it is true that a public entity is liable in inverse condemnation for 'any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed,' where, as is here alleged, a third party's fraudulent concealment caused or contributed to the injury, the third party should indemnify the public entity to the extent such conduct has contributed to a damage award against the public entity." Id. at 741-74 (citation omitted) (emphasis in original). Berney thus indicates that it is consistent with inverse condemnation theory to permit a governmental agency held liable for inverse condemnation to shift its responsibility for the damages to the party which is actually responsible for the plaintiff's injury.
Comparative negligence would function similarly, reducing the plaintiff's recovery in inverse condemnation when the plaintiff itself is partly responsible for its damages. Indeed, comparative negligence would operate on a more equitable basis, for in contrast to indemnity, it would not completely exonerate the public entity from liability, but merely apportion responsibility for damages according to the degree of culpability borne by each party. See Doyle, 77 Ill. Dec. at 767, 461 N.E.2d at 390.
There are further hints in the case law that the plaintiff itself may be held to account for conduct which contributed to its injury. Thus, in Marin v. City of San Rafael, 111 Cal. App. 3d 591, 168 Cal. Rptr. 750, 752 (1980), although the court held that as long as a public improvement constituted a proximate cause of the damage to the plaintiffs' property, it was "of no moment" whether other parties or factors had contributed to the damage, the court also observed that in the case before it, "no contention is made, nor could any reasonably be made, that plaintiffs' damages were proximately caused by their own act, fault, or negligence." Moreover, in Albers v. County of Los Angeles, 62 Cal. 2d 250, 42 Cal. Rptr. 89, 101, 398 P.2d 129 (1965), the California Supreme Court, in holding that inverse condemnation plaintiffs could recover for the expenses they had incurred in attempting to minimize or prevent the damage to their property, relied in part upon "the general rule . . . that an owner whose property is taken or damaged by a public entity is under a duty to take all reasonable steps available to minimize his loss."
With apparently the sole exception of Iowa, ( Wilson v. Fleming (1948), 239 Iowa 718, 31 N.W.2d 393, 398-399) the cases are uniform in upholding this requirement. (See, e.g., United States v. First Nat. Bank (D.C.M.D. Ala. 1918) 250 F. 299, 302; State v. Pahl (1959), 254 Minn. 349, 95 N.W.2d 85, 91; Town of Cape Charles v. Ballard Bros. Fish Co. (1959), 200 Va. 667, 107 S.E.2d 436, 440; City & County of Denver v. Noble (1951), 124 Colo. 392, 237 P.2d 637, 639; American Woolen Co. v. State (1925), 125 Misc. 186, 211 N.Y.S. 149, 169).
42 Cal. Rptr. at 101. See Kelly v. Chicago Park Dist., 409 Ill. 91, 98 N.E.2d 738, 742 (1951) (duty of property owner to minimize losses "'finds its application in virtually every type of case in which the recovery of a money judgment or award is authorized'"). See also Arkansas State Highway Commission v. Frierson, 269 Ark. 81, 598 S.W.2d 420, 421 (1980) (condemnee has duty to mitigate damages to the extent he reasonably can); Department of Transportation v. Sequoyah Land Inv. Co., 169 Ga. App. 20, 311 S.E.2d 488, 490 (1983) (condemnee has duty to take reasonable steps to minimize damages); Brown Bros. Equipment Co. v. State, 51 Mich. App. 448, 215 N.W.2d 591, 593 (1974) (despite state's breach of agreement to settle or lessen consequential damages to plaintiff's business resulting from condemnation of underlying land, plaintiff was not entitled to recover relocation costs where it had been aware of breach and nonetheless did not attempt to minimize its damages). Cf. United States v. Dickinson, 331 U.S. 745, 751, 67 S. Ct. 1382, 1386, 91 L. Ed. 1789 (1947) (where landowners sought damages for erosion to their land which resulted when government raised height of river channel and lands which formed new river bank eroded, the Court held that "if the resulting erosion . . . was in fact preventable by prudent measures, the cost of that prevention is a proper basis for determining the damage"). These cases belie the contention that a plaintiff's own negligence has no bearing upon its claim for inverse condemnation and lend support to DuPage's contention that when the plaintiff has contributed to its own injury, the extent of its recovery from a governmental agency may be reduced commensurately.
Finally, the Illinois supreme court's decision in Doyle v. Rhodes, supra, 77 Ill. Dec. 759, 461 N.E.2d 382, supports application of comparative negligence principles to relieve the defendant of strict liability for an injury to which other parties have contributed. The plaintiff in that case had been struck by an automobile in the course of his work as a highway flagman. He sued the driver of the automobile, who in turn filed a third-party complaint for contribution against the plaintiff's employer, alleging that the employer had been negligent and had violated the Illinois Road Construction Injuries Act (the "RCIA"). After concluding that the employer could be held liable to the driver pursuant to the Illinois Contribution Act (see subsection C, infra), the Illinois supreme court considered the extent of the employer's liability. The driver contended that if the plaintiff's employer had indeed violated the RCIA, it should bear total responsibility for the plaintiff's damages even if the driver's negligence had also contributed to the injury. Relying upon prior authorities which had emphasized the special protective nature of the RCIA and which had rejected contributory negligence as a defense to liability under that statute, the driver argued that the plaintiff's employer should not be able to escape responsibility by attempting to shift the burden for damages to other parties who were also negligent. The supreme court disagreed. Although it reaffirmed that contributory negligence was not a defense to liability under the RCIA, it stressed that doctrines such as comparative negligence and contribution were different in that they did not operate in an all or nothing fashion but rather with the goal of equitably distributing responsibility for compensating the plaintiff among all parties who bear partial responsibility for the plaintiff's damages:
In Illinois, as under the common law, contribution is based on "equitable principles [which] require that ultimate liability for plaintiff's injuries be apportioned on the basis of the relative degree to which" the conduct of the various defendants "proximately caused" the injuries ( Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 14, 15 Ill. Dec. 829, 374 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 98 S. Ct. 2849, 56 L. Ed. 2d 787). . . .
. . . We believe that Skinner points to the direction in which the law should move in Illinois regarding contribution. An action for contribution shifts only part of the loss depending on the comparative responsibility of the parties and can be harmonized with the purpose of a safety statute, which is typically to fix liability on those who create a situation in which inattentiveness by others may result in injury.