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  • Flooding Damage

  • The possibility of ravages by flooding are often overlooked in southern California. Flooding can occur by natural causes or by human causes. If a person, corporation or government alters the natural flow of water across land, a cause of action against the one causing the alteration can result when damage occurs. If a person or entity causes an alteration in the natural flow of a river or stream, flooding can be the consequence, ­resulting in liability. The stream alteration may even have occurred a considerable distance from the victim landowners property ­ still resulting in liability. Moreover, if a person or entity alters the ability of land to absorb water (ie: by installing pavement or buildings), thereby adding an increased volume of water into a river or stream, they may be the legal cause of flooding damages. The problematic alteration of land permeability can be a considerable distance from the victim property, and causation can still be proven. Flooding can be caused by a variety of sources, as follow:

    SURFACE WATER INTRUSION:

    Water can be directed from nearby or even more remote property as a consequence of grading alterations or drainage devices, and enter the property of another, causing damage. This will result in liability on the part of the property owner from which the intruding water came. Such an alteration in the water­flow from an area of land is measured by an engineering formula: Q = CIA. “Q” is the quantity of water flow, which is calculated by the formula which multiplies the coefficient of runoff (“C”: based upon the permeability of the land), by the intensity of rainfall (“I”: based upon published maps/charts for a given rainfall intensity), by the area in acres or “A”.

    UNDERGROUND WATER INTRUSION:

    If grading alterations or artificial drainage devices cause water to enter the subgrade on the land of another, this water can find its way onto your property. The presence of this underground water can persist for a substantial length of time before damage is seen. A technically competent attorney can identify such a source of water by site and topographic map review. Such a finding would then be placed before hydrological and geological consultants for confirmation by additional analysis.

    RIVER an STREAM WATER INTRUSION:

    Water can flow from a river or stream onto property during periods of heavy rain. If a private party, corporation or government alters the hydrology of the river or stream they can be found liable for damage caused by such water intrusion. A hydrological consultant can perform computer simulations of the river or stream flow with a program known as HECRAS. Thereby, the consultant can model the flow of the river or stream with and without the problematic alterations or drainage devices.

    FUTURE HARM:

    Flooding can also result in future harm. The onset of flooding may result in fairly limited damages, but place the land in a vulnerable position given a future earthquake. An expert can quantify the loss of property value in such a case.

    TAKING OF LAND:

    If a river or stream is diverted in such a way as to widen or change the stream or river, land may be essentially “taken” by a government under environmental law principles. This would obviously result in a loss of property value. If the effective taking of land is caused by government drainage or other man­made devices, an action in inverse condemnation may be filed. If the stream widening is caused by non-governmental forces, other causes of action may be available.

    LEGAL CONSIDERATIONS:

    Monumental costs of repair and tremendous losses in value can be caused by flooding. If flooding occurs, it is critical that the victim landowner immediately contact an attorney who is competent in this very technical area. Statutes of limitation (time limits on the filing of a claim or lawsuit) can be very short. If the considered action is against a government, a tort claim must be filed and rejected (formally or by lapse of time), before an actual lawsuit can be filed. Failure to timely file a tort claim in an action vs. a government is usually fatal to the cause of action. It is critical that an attorney who is fluent in engineering and the science of hydrology be retained in such an action. In addition, the attorney who is employed must be familiar with the intricacies of the causes of action. The technical and legal knowledge of the attorney must be woven together, and the nuances of both must be addressed in order to have a hope of success. The Supreme Court of California has established that damage caused by the un­natural flow of water from an upper property to a lower property, can result in a simple liability cause of action subject to a reasonableness test (easier to prove in court). Keys v. Romley (1966) 64 Cal. 2d 396; Locklin v. City of Lafayette (1994) 7 Cal. 4th 327. However, damage caused by the natural flow of water from one property to another cannot result in liability.