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Pacific Bell v. The City of San Diego6/13/2000
ty without fault for damages caused by public improvements, but that Albers had exempted from its strict liability rule those types of cases in which the state had at common law a "right to inflict damage" (the so-called "Archer" line of cases). (Albers, supra, 62 Cal.2d 250.) The common law, in the "unique province of water law," conferred on a private landowner an absolute privilege to erect defensive barriers to protect his property from floodwaters even though it caused lower landowners damage because of increased volumes or velocities of flood waters. (Belair, supra, at pp. 563-564.) The issue in Belair was whether the state should enjoy the same absolute privilege. The Belair court concluded:
"Although, as noted, we expressly excepted the Archer line of decisions from Albers's rule of liability without fault, we also cautioned against the 'facile' assumption that an activity which is 'privileged' when performed by a private party is equally privileged when undertaken by a public entity. (Holtz v. Superior Court, supra, 3 Cal.3d at pp. 307-308, fn. 13.) Different policy considerations, we noted, inform the public and the private spheres. . . .
"Thus, while we recognized in Albers that strict inverse condemnation liability may not be appropriate in the case of flood control improvements, we emphasized in Holtz that such improvements should not be cloaked with the same immunity as private flood control measures. The question, therefore, is what standard applies in such cases. We draw the answer from prior case law, public policy and common sense.
"On the one hand, a public agency that undertakes to construct or operate a flood control project clearly must not be made the absolute insurer of those lands provided protection. On the other hand, the damage potential of a defective public flood control project is clearly enormous. Therefore, as we observed in Holtz, the courts have consistently held that 'even when a public agency is engaged in such "privileged activity" as the construction of barriers to protect against floodwaters, it must [at least] act reasonably and non-negligently. [Citations.]' (Holtz v. Superior Court, supra, 3 Cal.3d at p. 307, fn. 12, italics added; . . . .) Contrary to plaintiffs' position, the fact that a dam bursts or a levee fails is not sufficient, standing alone, to impose liability. However, where the public agency's design, construction or maintenance of a flood control project is shown to have posed an unreasonable risk of harm to the plaintiffs, and such unreasonable design, construction or maintenance constituted a substantial cause of the damages, plaintiffs may recover regardless of the fact that the project's purpose is to contain the 'common enemy' of floodwaters. [Citations.]" (47 Cal.3d at pp. 564-565.)
Thus, Belair concluded that when a public flood control improvement does not function as intended and proximately causes damage to properties historically subject to flooding, the public entity does not have absolute immunity as did private parties at common law. However, the property owners may not recover in inverse condemnation from the public entity absent proof that the failure was attributable to some unreasonable conduct on the part of the public entity.
Six years after Belair, the court in Locklin v. City of Lafayette (1994) 7 Cal.4th 327 extended the Belair analysis to property owners along a natural watercourse. The Locklin plaintiffs owned properties along a creek that suffered damages because the public entity's actions or improvements contributed to increased volume and velocity of water in the creek above the natural volume and velocity, and this increased volume and velocity were substantial factors in
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