Deschner v. State, Dept. of Highways

Deschner v. State, Dept. of Highways, 2017 MT 37 (Feb. 28, 2017) (Shea, J.) (7-0, aff’d)

Issue: Whether the district court properly instructed the jury on inverse condemnation.

Short Answer: Yes.


Facts: On October 9, 2010, a sandstone slab fell from the Rims that weighed roughly two million pounds and measured approximately sixty feet long, thirty feet wide, and eight feet deep. It fell on Deschner and Lodge’s home and rendered it uninhabitable.

At trial, Deschner and Lodge contended that the State’s construction and placement of Highway 3 and Culvert 239 caused an unnatural increase in the amount of water that ran off the highway onto the rockfall site, ultimately causing the slab to fall onto their home. Deschner and Lodge called two experts who concluded that Culvert 239 increased the amount of water at the fall site, causing the slab to fall.

Plaintiffs proposed two alternative instructions on inverse condemnation, each of which focused on the water flowing from Culvert 239 as a proximate cause of Ps’ damages.

The district court rejected both, instructing instead on the Albers factors adopted by the Court in Rauser v. Toston Irrigation District, 172 Mont. 530, 565 P.2d 632 (1977).

Procedural Posture & Holding: The jury found: (1) the State was not negligent; (2) Deschner and Lodge’s negligence was a substantial factor in bringing about their own damages; (3) the State contributed 0% and Deschner and Lodge contributed 100% to the cause of Deschner and Lodge’s damages; and (4) the State did not inversely condemn Deschner and Lodge’s property.

Reasoning: Deschner and Lodge argue the District Court erred in giving Instruction No. 29 because it is not a full, fair, and accurate representation of inverse condemnation law in Montana. Deschner and Lodge contend that inverse condemnation claims require satisfaction of only four elements: (1) a compensable property interest; (2) damage to that property interest; (3) a public improvement; and (4) causation., and that of those, only the 2nd and 4th elements were jury issues.

In Rauser, the Court held that Montana does not require negligence in the face of intentional acts, and adopted the five Albers factors as guides. “Our holding in Rauser is more noteworthy for establishing what is not required to bring a claim for inverse condemnation—negligence—than what is required. Although we adopted the Albers Factors as guides in an inverse condemnation claim, we did not actually apply them in Rauser, nor have we applied them in any case since Rauser.” ¶ 17. Therefore, jury instructions were wrong.

But because the jury allocated 0% liability to the state, the plaintiffs failed to prove causation. The Court concludes the District Court’s refusal to give Deschner and Lodge’s proposed jury instruction does not constitute reversible error because Deschner and Lodge failed to establish that the State caused their damages.

“The elements a plaintiff must prove in an inverse condemnation claim are (1) that the public improvement was deliberately planned and built; and (2) that, as planned and built, the public improvement proximately caused damage to the plaintiff’s property. Juries should be so instructed.” ¶ 22.