 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wong v. 396 Investment Co.5/17/2005
r in declining to give the requested instruction.
As explained in Pacific Bell v. City of San Diego, supra, 81 Cal.App.4th 596, " he concerns that animated the rejection of the strict liability rule in the context of public flood control projects has no counterpart here. Belair, Locklin and Bunch [v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432] reasoned that strict liability for failure of a public flood control improvement would make the public entity an insurer against floods; the potentially enormous exposure could deter the public entity from building flood control projects and thereby deprive the public as a whole, including the damaged landowner, of protection against flooding. Because the landowner would suffer some flood damage in the absence of the flood control project or if the constructed project failed, the principle requiring compensation if the damaged landowner bore a disproportionate cost of the public benefit did not require a strict liability approach; instead, compensation was required only if the project exposed him to an unreasonable risk of harm. [Citation.] [ ] Unlike flood control improvements, the purpose of a water delivery system is not to protect against the very injury that its failure caused. . . . Because damages caused by failure of a water delivery system do not resemble damages caused by failure of a flood control system, we conclude the Belair, Locklin and Bunch reasonableness test should not be extended to the facts of this case . . . ." (Id. at pp. 614-615, fn. omitted; see also Akins v. State of California (1998) 61 Cal.App.4th 1, 17-18 [rule of reasonableness inapplicable when plaintiffs' properties not historically subject to flooding in absence of public works at issue].)
(5) Exclusion of Evidence
(a) Introduction
Anaheim argues that the court abused its discretion in excluding certain evidence on causation, notably, (1) Mark McLarty's proffered slope stability calculations, which Anaheim says would have proven without a doubt that the slope would have failed even in the absence of the reservoir seepage, (2) 2001 groundwater data, which Anaheim states showed a dramatic increase in groundwater due to heavy rains, (3) data derived from borings Anaheim took on its own property and on streets located in the City of Orange (with permission from that city), but without providing notice to other litigants of intent to perform the borings, which data Anaheim asserts showed the impact of irrigation and rainwater on the slope failure, and (4) evidence of the development plans of a non-party developer pertaining to the slope and the construction of new residences thereon, which Anaheim contends demonstrated that the reservoir would have posed no danger had the plaintiffs' properties been developed and used with due care.
(b) McLarty Slope Stability Calculations
Anaheim says that McLarty was prepared to testify as to certain computer-generated slope stability calculations. Anaheim explains that, in order to arrive at his calculations, " ll McLarty did was input parameters of [396's expert witness Hetherington] into the computer stability program, change one parameter - groundwater level (to the level measured after the Reservoir's draining) - and run the program. [Citation.] The answer `kick out' demonstrated that the slope still failed without the claimed Reservoir impact - proving the Reservoir did not cause the failure. [Citation.]"
The parties address at length whether McLarty's testimony should have been excluded as inadmissible because he was not a licensed engineer. This we need not decide. Suffice it to say, "even where evidence is improperly excluded, the error is not reversible
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|