Attorney's fees driving lawsuits against cities

Inverse condemnation lawsuits against cities in Montana are motivated by money, Columbia Falls city attorney Justin Breck told the city council on Nov. 17.

“The prospect of attorney’s fees is often what drives plaintiffs to claim inverse condemnation,” he said.

Article II Section 29 of the Montana Constitution states that “private property shall not be taken or damaged for public use without just compensation” and that “just compensation shall include necessary expenses of litigation.”

Breck, who attended the Montana Municipal Interlocal Authority’s Defense Counsel Summit in Helena on Sept. 16, came back with some unusual examples of inverse condemnation lawsuits for the councilors.

One involved a property owner in Billings who sued the city after crews slip-lined sewer lines to prevent stormwater from entering through cracks in older pipes, which can overload the treatment plant during rainstorms.

The property owner complained that as a result of the slip-lining, there was nowhere for stormwater to go during a deluge, causing neighborhood flooding.

“The plaintiff’s attorneys took the position that all they have to show is causation — if the city owns the sewer system, it’s foreseeable that something will go wrong, so when it does, the city is liable,” Breck said.

Some attorneys take on these kinds of cases in hopes of developing a theory based on precedence “that cities are liable for every failing in their infrastructure,” Breck said.

Many plaintiffs in these lawsuits believe the law does not require proof of intent by the city, but case law in many jurisdictions indicates that at least some showing of intent is required, he said.

“If there is knowable, inevitable and foreseeable damage, especially in premises liability cases where the city derived some benefit from the action, it has in some cases been compensable,” Breck said.

In a case out of Dallas, Texas, city crews unclogged a sewer main which resulted in wastewater backing up into the plaintiff’s home. The judge ruled that the damage was the accidental result of the city’s intentional act, but there was no public benefit to causing wastewater to flow back to the plaintiff’s home, and so there was no taking.

“There is such a thing as an accident,” Breck said. “Just because there was an accident and damages occurred does not mean there was a taking.”

Cities can sometimes protect themselves from negligence cases by employing the public duty doctrine — that governments owe duties to the public at large rather than to an individual — but it’s not an available defense in inverse condemnation cases.

Breck described a case in Miles City where a young girl fell off some playground equipment and was disabled by a head injury. The plaintiff’s attorney argued that the wood chip layer under the playground equipment was not thick enough to cushion the fall, a condition that was foreseeable, so the public duty doctrine should not apply.

The district court granted summary judgment to the city based on the public duty doctrine, but the Montana Supreme Court reversed that decision, ruling that it was reasonable to expect the city to maintain its parks, and because the city was viewed as a landowner for premises liability. On remand, however, the district court again granted summary judgment to the city.

The public duty doctrine came into play in Columbia Falls when the widow of a man who died following a skateboarding accident sued the city and the developers of the Cedar Pointe subdivision.

Casey Kent suffered a significant head injury after he fell while skateboarding on a steep, curved section of the subdivision’s bike path in June 2008. That case is not over, according to deputy city attorney Stephanie Breck.

“The district court judge’s grant of summary judgment to the city was appealed by the plaintiff to the Montana Supreme Court,” she said. “All briefing has been completed, and we are simply awaiting a decision.”

Montana’s recreational use statute also affords some protection to cities from lawsuits. That statute restricts the liability of a landowner when a person “does not give a valuable consideration to the landowner in exchange for recreational use of the property.”