This case involved the perfect storm of events resulting in the flooding of the plaintiffs' properties and an ensuing legal tempest. Plaintiffs sued the county in court claiming that the flooding was a result of county's failure to maintain a county road, from which the runoff spilled. Plaintiff claimed that the county's neglect of the road constituted a taking and inverse condemnation. In Gutierrez v. County of San Bernardino, the Fourth District Court of Appeals grappled with the application of the "reasonableness" takings test that applies to flood control projects. The court concluded that the county acted reasonably, and therefore, there was no taking.


In October 2003, a wildfire eliminated all of the trees on a section of the mountains north of the unincorporated community of Devore, where plaintiff Michael T. Gutierrez and other plaintiffs resided. In December 2003, it rained, causing water to flow down the mountain trapping debris and sediment in its wake. The water flowed across Greenwood Avenue and brought the debris and sediment to plaintiffs' properties. In an attempt to protect the properties from further flooding, the county placed concrete K-rails along the sides of the paved portion of the street on which plaintiffs' live. Unfortunately, another large rain storm passed through and the K-rails failed to contain all of the debris and settlement.

Plaintiffs brought this action against the county on the grounds that the county's actions in maintaining the street in 2003 and 2004 caused the flooding, and thereby, constituted a taking. The trial court found in favor of the county, and plaintiffs appealed.


On appeal, the appellate court divided the case into two separate issues: was there a taking in 2003, and was there a taking in 2004 by implementation of the K-rails? The court quickly dismissed the issue of the 2003 taking because the road that brought the debris and settlement was still in its natural state and never maintained by the county, and therefore it was not a "public improvement" for purposes of inverse condemnation. As to the part of the road that was paved, plaintiffs failed to present any evidence as to how this road caused the damage to their properties. 

The court spent more time discussing the issue of the 2004 flooding. All parties and the court agreed that the K-rails installed in 2004 constituted a public improvement, and the court accepted the trial court's conclusion that the K-rails caused damage to plaintiffs' properties. Thus the only remaining issue, the one that took up most of the court's opinion, is whether strict liability or the "reasonableness test" applied. As stated in Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, 565, "a public agency that undertakes to construct or operate a flood control project clearly must not be made the absolute insurer of those lands provided protection." For this reason, courts apply the reasonableness test to flood control improvements, which requires the court to evaluate whether "the design, construction or maintenance of the flood control project…posed an unreasonable risk of harm to the plaintiffs."

The appellate court found that the K-rails constituted the type of flood control project to which the reasonableness test applied, and strict liability was not proper. After reviewing the record of evidence, the court found that "substantial evidence supports the trial court's conclusion that the county acted reasonably relative to its installation of the K-rails," and the trial court's decision was upheld in its entirety.

The Case: Gutierrez v. County of San Bernardino (2011) 198 Cal.App.4th 831. Filed August 24, 2011. 

Cori Badgley is an attorney with the firm of Abbott & Kindermann, LLP, of Sacramento.