This document discusses the differences between torts and takings in the context of government actions on private property. It provides examples of cases where government argued an action was a tort (damage) rather than a taking, including a sewer leak, temporary workspace, and unauthorized improvements. The key factors courts consider are whether there was a physical invasion or appropriation of property for public use, even if temporary. The government may be liable for a taking even if the action was quickly remedied or the property owner initially consented. Distinguishing between a trespass and taking depends on the specific facts of the case.

1. Tort or Taking?

2. It depends on how you look at it!

3. Model Scenarios

5. Model Scenerios Sewer leak Emergency Flood Mitigation Temporary Workspace Driveway Harmonization Unauthorized Improvements Public Safety

6. What is a trespass?

15. Q: How do you keep a Tampa Bay Buccaneer from trespassing in your yard? A: Put in an end zone

16. What is a taking?

19. 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

20. 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

21. Nature of the Taking Permanent physical invasion clearly recognized as a taking Temporary takings clearly recognized since 1987 What about a temporary physical invasion?

22. Government Perspective

23. The Arguments Taking verses Damage Public Purpose Sovereign Immunity

24. 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

25. 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”

26. State Road Dept. v. Darby “Damage necessary incident to the prosecution of the work” Government must acquire the necessary interests Temporary construction easements

27. 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.

28. 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

29. Tort or Taking? What’s the answer?

30. FourCases 1976 KenworthTractor Trailer Truck Associates of Meadow Lake White v. Pinellas County Edwards Dairy, Inc.

31. 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

32. 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

33. 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

34. 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

35. 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?