Tort or Taking?

It depends on how you look at it!

Model Scenarios

Model SceneriosSewer leakEmergency Flood MitigationTemporary WorkspaceDriveway HarmonizationUnauthorized ImprovementsPublic 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 Condemnation1) 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 TakingPermanent physical invasion clearly recognized as a takingTemporary takings clearly recognized since 1987What about a temporary physical invasion?

Government Perspective

The ArgumentsTaking verses DamagePublic PurposeSovereign Immunity

Taking Verses DamageGovernment 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 BeachPalm Beach constructed a “groin” to protect Ocean BoulevardThe “groin” changed the natural action of the ocean in such a way as to cause the erosion on the plaintiff’s landDistinction 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 ArgumentKirkpatrick: 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 scenarioSee Hendler and Edwards Dairy, Inc.

Immunity ConsiderationsSovereign Immunity is governed by Fla. Stat. § 768.28 and applies to torts (trespass) but not takingsLaw enforcement casesSurveyors and engineers are allowed to enter by statute

Tort or Taking?What’s the answer?

FourCases1976 KenworthTractor Trailer TruckAssociates of Meadow LakeWhite v. Pinellas CountyEdwards Dairy, Inc.

Kenworth CaseTruck was impounded for a period of two yearsGovernment argued that plaintiff’s claim was for a tortThe court rejected the argument and said that plaintiffs raised a meritorious takings claim

Associates of Meadow LakeFlooding case decided after First EnglishTrial 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 CountyTrial court granted summary judgment finding no taking when agents entered private property and cut down treesSupreme Court disagreed saying that if it was done for a public purpose then a taking occurredSupreme Court relied in part on Darby

Edwards Dairy, Inc.Dispute over permission to lay a pipeTrial 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 preciseIn addition to standard elements of inverse condemnation, the following may be required to distinguish a trespass from a taking:EntryAppropriationPublic PurposeConclusions?