Dunn v. City of Milwaukie
250 P.3d 7
Or. Ct. App.2011Background
- Plaintiff sued the City of Milwaukie for inverse condemnation under Article I, section 18, after raw sewage backed into her home during a city hydrocleaning of nearby sewers.
- Evidence showed city workers used high pressure (1,500–2,000 PSI) hydrocleaning, directing flow toward a second manhole near plaintiff's home.
- Plaintiff experienced immediate sewage intrusion and ongoing damage to floors, walls, and ventilation, with later symptoms and damages appearing months later.
- Appraiser estimated total loss due to actual damage and stigma at about $100,000; plaintiff sought compensation at trial, with damages awarded $58,333 plus attorney fees.
- Trial court denied defendant’s motion for a directed verdict on the inverse condemnation claim; the jury returned a verdict for plaintiff.
- The court instructed the jury on intent and taking, and the defendant challenged the verdict on lack of intent and lack of substantial interference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the record support intent to take? | Dunn showed the natural and ordinary consequences of hydrocleaning caused damage. | No evidence of intentional taking; damage alone is insufficient. | Record supports intent or inference of intent sufficient for taking |
| Was there a substantial interference with use and enjoyment? | Sewage intrusion caused substantial interference and reduced FMV. | Damage was repairable and not a substantial interference. | Yes, substantial interference shown; damages supported inverse condemnation |
| Is the sewage intrusion a natural and ordinary consequence of hydrocleaning? | High-pressure hydrocleaning can cause intrusion into homes as a natural result. | Unclear if such intrusion is a natural consequence of hydrocleaning. | There is evidence the intrusion was a natural and ordinary consequence |
| Was the jury instruction on intent correct? | Instruction reflected applicable law from Vokoun. | Instruction removed requirement of fault or intent. | Instruction not error; it did not misstate law given context |
| Does the record support the verdict for inverse condemnation? | Evidence of $100k value loss and substantial interference supports taking. | Evidence did not prove a taking or substantial interference. | Yes; record supports legally sufficient inverse condemnation claim |
Key Cases Cited
- Morrison v. Clackamas County, 141 Or. 564 (1933) (taking may occur without complete dispossession; substantial interference test developed)
- Hawkins v. City of La Grande, 315 Or. 57 (1992) (taking requires destruction, restriction or interruption of use and enjoyment)
- Vokoun v. City of Lake Oswego, 335 Or. 19 (2002) (factfinder may infer intent from natural and ordinary consequences; substantial interference standard)
- Worman v. Columbia County, 223 Or. App. 223 (2008) (summary judgment on intent/deemed lack of proof for natural consequences lacks similarity)
- Moeller v. Multnomah County, 218 Or. 413 (1959) (damages alone do not constitute taking; need substantial interference)
- Lincoln Loan v. State Hwy. Comm., 274 Or. 49 (1976) (test: substantial interference and direct, peculiar effects can support compensation)