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Marion v. 396 Investment Co.5/17/2005
cause of the injury, loss, or harm."
In addition, the judge also instructed the jury: "If you find that the City of Anaheim's conduct was a substantial factor in bringing about an injury, loss, or harm to the plaintiff, but that the immediate cause of the injury, loss, or harm was the conduct of another person or entity, the City of Anaheim is not relieved of liability for such injury, loss, or harm if: (1) at time of such conduct the city realized or reasonably should have realized that another person or entity might so act, or the risk of harm suffered was reasonably foreseeable; or (2) a reasonable person, knowing the situation existing at the time of the conduct of another person or entity, would not have regarded it as highly extraordinary that such person or entity had so acted; or (3) the conduct of another person or entity was not extraordinarily negligent and was a normal consequence of the situation created by the City of Anaheim. [ ] `Extraordinary' means unforeseeable, unpredictable and statistically extremely improbable."
(b) Substantial Factor
Anaheim insists that it was prejudiced by these instructions and that the instructions it sought were modeled after language in Souza v. Silver Development Co., supra, 164 Cal.App.3d 165 and Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d 550. In Souza v. Silver Development Co., supra, 164 Cal.App.3d 165, the appellate court stated that "there must be a showing of `a substantial cause-and-effect relationship excluding the probability that other forces alone produced the injury.' [Citations[,]]" and also that " he use of the public improvement need not be the sole cause of the injury; a public entity may be liable even if its project was only one of several `substantial' concurring causes of the damage. [Citations.]" (Id. at p. 171, fn. omitted.) Anaheim focuses on the first portion of the quote, attempting to minimize the latter portion pertaining to "substantial concurring causes."
It makes the same mistake in reading Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d 550. In Belair, the Supreme Court, quoting from Souza v. Silver Development Co., supra, 164 Cal.App.3d 165, stated: "Thus, in order to establish a causal connection between the public improvement and the plaintiff's damages, there must be a showing of `"a substantial cause-and-effect relationship excluding the probability that other forces alone produced the injury." [Citations.]' [Citations.] Where independently generated forces not induced by the public . . . improvement . . . contribute to the injury, proximate cause is established where the public improvement constitutes a substantial concurring cause of the injury, i.e., where the injury occurred in substantial part because the improvement failed to function as it was intended. The public improvement would cease to be a substantial contributing factor, however, where it could be shown that the damage would have occurred even if the project had operated perfectly . . . ." (Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d at pp. 559-560.)
Again, Anaheim emphasizes the first sentence of the quote and de-emphasizes the second sentence. (Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d at pp. 559-560.) In Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, the court made reference to the discussion in Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d at pages 559 to 560, and summed up as follows: "A public entity can be liable for inverse condemnation if the public improvement is a substantial cause of the injury, even if it is only one of several concurrent causes. [Citation.]" (Pacific Bell v. City o
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