The New York Times carries an interesting column by Adam Liptak, on how influential are the opinions of state courts beyond the boundaries of their own states (Around the Country, High Courts Follow California’s Lead, 3/11/08, at A12). The leader turns out to be the California Supreme Court, and its decision that tops them all in being cited and followed by courts in other states is Dillon v. Legg, 68 Cal.2d 728 (1968). Dillon was a tort case holding that a mother who witnessed her daughter’s injury by a negligently driven car was entitled to recover damages in her own right, irrespective of whether she was physically injured herself or even touched in the accident. So what does that bit of old tort law have to do with this blog that deals with eminent domain? As it turns out, quite a bit. Read on.
One of the arguments facing the court in Dillon was that allowing recovery in cases of that type would open the floodgates to costly but unverifiable claims of personal harm, and would allow unscrupulous plaintiffs to fleece defendants. But the California Supreme Court firmly rejected this contention, pointing out that even though the courts may be fallible at times in distinguishing the substantial from the frivolous, that does not justify “an abdication of judicial responsibility to award damages for sound claims.” Doing that, said the court, would destroy the public’s confidence in the courts. That sounds pretty good. But does the California Supreme Court follow this approach in eminent domain cases? Answer: hell, no.
In condemnation cases the Court sings an altogether different tune. When it comes to awarding “just compensation” the Court takes the position that it is its duty, no less, to limit the extent of condemnees’ recovery for economic harms actually suffered by them but deemed to be noncompensable. In condemnation cases, says the Court, the courts have assumed the burden and responsibility of limiting the extent of “just” compensation because they need to see to it “that the cost of public improvements involving the taking and damaging of private property for public use be not unduly enhanced.” People v. Ricciardi, 23 Cal.2d 390, 396. To do otherwise, said the Court in People v. Symons, 54Cal.2d 728, 737 (1960), would impose “a severe burden on the public treasury and, in effect, place ‘an embargo upon the creation of new and desirable roads.’ ” No court, to the best of our knowledge, has ever substantiated the imminence of such an “embargo” – it’s all judicial talk of the “parade of horribles” variety. When freeway construction was curtailed in California, it was not because the owners of the land taken for them were fully compensated (they weren’t), but because of community resistance and because of former Governor Jerry Brown’s misbegotten notion that allowing traffic conditions to worsen would force Californians to use public transit instead of their cars. So the state stopped or sharply curtailed the construction of highways with predictable results.
Mind you, the Court has never said that such losses are not real. On the contrary, the decisional law acknowledges that these noncompensable damages, though suffered are, well, noncompensable. So why this disparity of treatment of tort claimants as opposed to condemnees who are ostensibly protected by the “just compensation” clause of the Constitution? After all, in eminent domain cases the government doesn’t just pay damages — it gets a quid pro quo for its money, so that it only exchanges one asset (money) for another one (land at its judicially determined fair market value), so that except for transactional costs, it winds up as well or better off than it was before the taking, so it effectively pays nothing.
In partial taking cases, the Court says that damages for personal inconvenience and annoyance are noncompensable even where they translate into lowered property values which in theory are compensable. But it’s another story in cases of private torts against property. In those cases “There seems to be no sound reason to refuse an award of damages for discomfort and annoyance where the only injury is to the real property since it is obvious that such an injury may cause discomfort and annoyance without also causing an actual physical injury to the person.” Kornoff v. Kingsburg Cotton Oil Co., 288 P.2d 507, 513 (Cal. 1955), emphasis added. So why the disparity of treatment? We have trouble understanding this judicial attitude because the Court’s justification is that its rule denying such damages to condemnees is based on the principle that damages are noncompensable in eminent domain when they are also noncompensanble in cases of privately caused harm, i.e., “where there would be no recovery for damages caused by the construction of an improvement if undertaken by a private citizen on adjoining property.” People v. Symons, 54 Cal.2d 855 (1960). But Kornoff makes clear that in private tort cases, damages for personal annoyance are recoverable when inflicted by a private party, even in the absence of harm to the person.
So how come the Court isn’t worried that its denial of just compensation fully compensating condemnees for economic harms inflicted on them by the taking of their property will destroy public confidence in the courts?