tort or taking
TRANSCRIPT
Tort or Taking?
It depends on how you look at it!
Model Scenarios
Model Scenerios
• Sewer leak• Emergency Flood Mitigation• Temporary Workspace• Driveway Harmonization• Unauthorized Improvements• Public Safety
What is a trespass?
Q: How do you keep a Tampa Bay Buccaneer from trespassing in your yard?
A: Put in an end zone
What is a taking?
Taking Defined
“Entering on Private property for more than a momentary period and, under the warrant or color of legal authority, devoting it to public use . . .” Department of Health and Rehabilitative Services v. Scott
Inverse Condemnation
1) Cause of action by a property owner;
2) To recover the value of property;3) Taken by a government authority;4) Where there has been no formal
exercise of eminent domain
Nature of the Taking
• Permanent physical invasion clearly recognized as a taking
• Temporary takings clearly recognized since 1987
• What about a temporary physical invasion?
Government Perspective
The Arguments
• Taking verses Damage• Public Purpose• Sovereign Immunity
Taking Verses Damage
• Government may “damage” property in Florida without incurring liability for a taking.
• “Damages” are the consequences of a legal act that come about as a result of no physical invasion. Kirkpatrick v. City of Jacksonville
Paty v. Town of Palm Beach
• Palm Beach constructed a “groin” to protect Ocean Boulevard
• The “groin” changed the natural action of the ocean in such a way as to cause the erosion on the plaintiff’s land
• Distinction between “affected” and “invaded”
State Road Dept. v. Darby
• “Damage necessary incident to the prosecution of the work”
• Government must acquire the necessary interests
• Temporary construction easements
Public Purpose Argument
• Kirkpatrick: Government argued that they took the property, but that compensation was not required because it was not for a public purpose. Court disagreed.
• Might be different story in a taking verses trespass scenario– See Hendler and Edwards Dairy, Inc.
Immunity Considerations
• Sovereign Immunity is governed by Fla. Stat. § 768.28 and applies to torts (trespass) but not takings
• Law enforcement cases• Surveyors and engineers are allowed
to enter by statute
Tort or Taking?
What’s the answer?
Four Cases
• 1976 Kenworth Tractor Trailer Truck• Associates of Meadow Lake• White v. Pinellas County• Edwards Dairy, Inc.
Kenworth Case
• Truck was impounded for a period of two years
• Government argued that plaintiff’s claim was for a tort
• The court rejected the argument and said that plaintiffs raised a meritorious takings claim
Associates of Meadow Lake
• Flooding case decided after First English
• Trial Court found no taking because the city remedied the flooding
• Fifth District disagreed and said landowners were entitled to compensation for the denial of any reasonable use that occurred from the flooding
White v. Pinellas County
• Trial court granted summary judgment finding no taking when agents entered private property and cut down trees
• Supreme Court disagreed saying that if it was done for a public purpose then a taking occurred
• Supreme Court relied in part on Darby
Edwards Dairy, Inc.
• Dispute over permission to lay a pipe• Trial court found no taking when
landowner consented, but Second District said consent is irrelevant
• “Taking” consists of both an entry and appropriation
• The test is not precise• In addition to standard elements of
inverse condemnation, the following may be required to distinguish a trespass from a taking:– Entry– Appropriation– Public Purpose
Conclusions?