Real Estate & Property Law

When Pleading An Inverse Condemnation Cause Of Action, You Should Probably Use The Term "Inverse Condemnation"

By Robert Thomas (inversecondemnation.com)

File this one in the obvious category. In Brown v. City of Pocatello, No. 35992 (Apr. 1, 2010), the Idaho Supreme Court held that a property owner's complaint that her home was flooded as a result of roadwork by the city did not properly plead a cause of action for inverse condemnation.

Generally, if the government causes a physical invasion by water of property, it can be liable for compensation and damages on an inverse condemnation theory. The property owner's complaint, however, asserted only a negligence claim against the city. Only after the city sought summary judgment did the property owner claim that the complaint also contained nuisance and inverse condemnation causes of action.

The Idaho Supreme Court held that even under its very loose "notice pleading" standards, a complaint which only identifies "negligence" as the theory of liability does not sufficiently put the defendant on notice of other claims against it. To make the point that neither nuisance nor inverse condemnation theories were raised, the court quoted the entire complaint on pages 6-8 of the slip opinion. While a complaint need not formally identify the theories of relief the court held, "the opposing party must be provided with notice of the underlying theories being pursued against them in order to adequately prepare for trial." Slip op. at 8.

True enough, and in these situations the remedy would seem to be to allow for amendment of the complaint. The only question we have is why the plaintiff didn't seek to do so. The opinion indicated that doing so might have made the failure to adequately plead a inverse condemnation cause of action harmless:

This Court also notes that when the decision was made to raise the issues of inverse condemnation and nuisance it would have been prudent to prepare an amended complaint alleging those causes of action and then seek permission to file that amended complaint. We express no opinion as to whether those claims have merit under the facts of this case, nor whether they would avoid the planning and design immunity provided by I.C. § 6-904(7), but at least those issues would have been preserved.

Slip op. at 11.

Full post as published by inversecondemnation on April 05, 2010 (boomark / email).