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?