Tort Or Taking


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Tort Or Taking

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