SCHUMAN, P.J.
Defendant, the City of Milwaukie, appeals from a judgment awarding plaintiff $58,333 plus attorney fees as compensation for damage to her home resulting from raw sewage that backed up through bathroom fixtures when the city "hydrocleaned" a nearby sewer line. The theory on which plaintiff prevailed was "inverse condemnation"—that is, a claim that, by inflicting the damage, the city effected a taking of her property by substantially interfering with her use of it and therefore owed her just compensation under Article I, section 18, of the Oregon Constitution.
In reviewing the denial of defendant's motion for a directed verdict, we view the evidence and reasonable inferences drawn from it in the light most favorable to plaintiff. Greist v. Phillips, 322 Or. 281, 285, 906 P.2d 789 (1995). Our review "is circumscribed by the case actually presented to the jury through pleadings, evidence, and jury instructions." Northwest Natural Gas Co. v. Chase Gardens, Inc., 333 Or. 304, 310, 39 P.3d 846 (2002).
In August 2005, two city workers were performing a routine "hydroclean" of the sewer lines in plaintiff's neighborhood as part of the city's regular sewer maintenance. Hart, the senior employee, inserted the hose from an aquatech truck ("a big truck with a thousand-gallons or so water tank on the back") into a manhole and blasted water into
Plaintiff, in her home located between the two manholes, heard a "loud roar," felt the house shake, and witnessed "[b]rown and gray gunky sewer water that stunk" shooting from her toilets and bathroom faucets. Within seconds, the "gunky" water was dripping from the ceilings and "three or four inches thick" on the bathroom floor, "flowing" into the rest of her home. Plaintiff ran outside and saw the second city utility worker standing next to a "City of Milwaukie" truck. Plaintiff explained what happened and, although the employee was "shocked" to learn that plaintiff's home had just filled with sewage, she offered plaintiff some towels but no additional assistance or explanation. Plaintiff refused the towels, returned to her home, and spent most of the night "sucking up the water stuff" with her wet and dry vac. The city employees' report for the day listed plaintiff's address and the notation, "Blew water out of their toilet."
After cleaning her house, plaintiff "thought [she] had it taken care of" and did not immediately contact the city. Although the sewer water had soaked her woolen area rugs, she thought that she could have them cleaned; she did not notice any other property damage at the time. However, a few months later, around January 2006, plaintiff noticed a "sewer smell" in her home that seemed to coincide with use of her furnace. She also noticed that her hardwood floors "were buckled up" and wet, her "wallpaper had bubbled up in [the] entryway and [the] dining room," and her vents were "blowing up wet moisture." After consulting with various experts and contractors to determine the cause and extent of the damage, plaintiff contacted the director of the Milwaukie Utility Department and was advised to file a claim with the city's risk management office. She did so. The city denied the claim, and plaintiff filed this action.
In her complaint, plaintiff alleged a variety of tort claims as well as a claim for inverse condemnation under Article I, section 18, alleging that the city had "substantially constructively deprived [plaintiff] of her interest in [her] real property." The trial court dismissed the torts claims as untimely, and the inverse condemnation claim proceeded. Plaintiff presented evidence of the damage to her house and called an appraiser to testify that its value had decreased as a result of the sewage intrusion incident. The appraiser attributed that loss in part to the actual property damage and in part to the stigma that buyers would associate with the property after plaintiff disclosed the sewage incident. The appraiser estimated that the difference in the home's value pre- and post-sewage intrusion was about $100,000.
At the close of plaintiff's case, defendant moved for a directed verdict, arguing that plaintiff had failed to show that the city intended to take her property or that she had sustained damages sufficient to constitute a taking. The trial court denied defendant's motion. Ultimately the jury returned a verdict for plaintiff and awarded her damages of $58,333.
As noted above, under Article I, section 18, of the Oregon Constitution, if a state government entity takes private property for a public use, it must provide the owner with just compensation. Typically, actions involving Article I, section 18, revolve around a government entity exercising its power of eminent domain by condemning private property; the dispute is generally about the adequacy of the compensation. However, if government, in the process of performing some act for the benefit of the public, inflicts a substantial interference with the use and enjoyment of private property, that act can amount to a taking and give rise to a claim by the property owner for compensation. See Morrison v. Clackamas County, 141 Or. 564, 571-72, 18 P.2d 814 (1933). To prevail in such a claim, however, the property owner must prove that the government intended to cause damage, Vokoun v. City of Lake Oswego, 335 Or. 19, 26, 56 P.3d 396 (2002), and that the damage amounted to a substantial interference with the owner's use and enjoyment of the property, Hawkins v. City of La Grande, 315 Or. 57, 68-69, 843 P.2d 400 (1992). Defendant argued below, and argues again on appeal, that plaintiff failed to adduce
Defendant's argument regarding intent— as well as plaintiff's responses—derive from Vokoun. In that case, the plaintiffs argued that they could prevail without proving intent. The Supreme Court reviewed the history of inverse condemnation in Oregon courts and rejected that claim: "This court long has held that a claim for inverse condemnation requires a showing that the governmental acts alleged to constitute a taking of private property were done with the intent to take the property * * *." Vokoun, 335 Or. at 27, 56 P.3d 396. More significantly for purposes of this case, however, the Court also held that "[a] factfinder may infer the intent to take from the governmental defendant's action if, as this court stated in Morrison, the natural and ordinary consequence of that action was the substantial interference with property rights." Id. at 29, 56 P.3d 396 (emphasis added).
The governmental action at issue in Vokoun was Lake Oswego's construction of a storm drain upstream from the plaintiffs' land. Id. at 21-22, 56 P.3d 396. That drain, according to the plaintiffs, diverted water in a manner that caused erosion to a hillside near the plaintiffs' property. Over some period of time, the erosion resulted in a landslide that damaged the plaintiffs' house. In ruling that the plaintiffs had presented sufficient evidence to overcome the city's motion for a directed verdict, the court explained:
Id. at 30, 56 P.3d 396 (emphasis added).
Following Vokoun, the question in this case is whether "there is evidence" that the sewage intrusion was the natural and ordinary consequence of the city's hydrocleaning. Id. The city contends that the situation here is analogous to the situation in Worman v. Columbia County, 223 Or.App. 223, 225, 195 P.3d 414 (2008), where we reviewed the trial court's grant of summary judgment for the defendant, Columbia County, on the plaintiffs' inverse condemnation claim. In that case, the plaintiffs "suspected that someone had sprayed some type of herbicide into their yard, but they were unable to identify the culprit." Id. They then filed a complaint alleging, "An unknown person sprayed a mix of Round Up + Cross Bow beginning at our property boundary at front of house and around side of property line[.]" Id. at 226, 195 P.3d 414. The county moved for summary judgment, and the trial court granted the motion. On appeal, we affirmed:
Id. at 236-37, 195 P.3d 414 (emphasis in original).
We are not persuaded that this case is similar to Worman. Unlike the plaintiffs in Worman, plaintiff here did not argue at trial that the city's program was negligently designed, nor that the city's employees maliciously or negligently carried out that program.
It is true, as defendant argues, that the city workers testified that backflow into homes is unusual. That fact is not dispositive. The question is not whether the harmful result occurs frequently; it is whether the result is a natural and ordinary consequence of the government's action at the time and place where that action occurred. Thus, for example, the question in Vokoun was not whether landslides undermining homes occur frequently following the construction of drainage ditches; the question was whether the undermining landslide was a natural and ordinary consequence of the construction of the drainage ditch adjoining the plaintiffs' property—a consequence that was the last link in a chain of events that began with the governmental action and proceeded, without unnatural or extraordinary intervening causes, to produce the damage. With that understanding, a reasonable inference from the evidence in the present case is that the sewage intrusion plaintiff experienced was the natural and ordinary consequence of the city's high-pressure hydrocleaning of the sewer lines running in front of her house. In sum, we are satisfied that the record contains evidence sufficient to support the jury's verdict.
Defendant's next contention is that, intent notwithstanding, the trial court erred in denying defendant's motion for a directed verdict because plaintiff presented evidence of merely "repairable damage," which is insufficient to show a "substantial interference" with plaintiff's use and enjoyment of her property. We do not agree.
Defendant cites Moeller v. Multnomah County, 218 Or. 413, 345 P.2d 813 (1959), for the proposition that mere damage cannot constitute a taking. In that case, the plaintiffs brought an inverse condemnation claim against Multnomah County "for damages to their property by blasting operations conducted by the county at their rock quarry" near the plaintiffs' home. Id. at 414, 345 P.2d 813. The county appealed following a jury verdict in the plaintiffs' favor. On review, the Supreme Court reversed, holding that the plaintiffs' evidence of property damage at trial did not amount to a taking. The evidence showed that the blasting had caused cracks
Id. at 415-16, 345 P.2d 813. The court concluded:
Id. at 427, 430-31, 345 P.2d 813.
We agree with defendant that Article I, section 18, does not expressly define a "taking" as "property damage," and that Moeller provides some support for its position. However, defendant's argument sets out only a truncated analysis of the case law interpreting a valid claim for inverse condemnation under Article I, section 18. That law has evolved significantly in the 52 years since Moeller. Even before that case, the Supreme Court had held that "[i]t is not necessary that the owner of property be actually dispossessed or that the property be completely destroyed in order to constitute a taking within the meaning of the constitutional provisions." Morrison, 141 Or. at 569, 18 P.2d 814. More recently, the Supreme Court, explaining Moeller, acknowledged that "property is not `taken' if it is simply damaged," Hawkins, 315 Or. at 68, 843 P.2d 400, but went on to elaborate that a "taking" requires "`destruction, restriction or interruption of the necessary use and enjoyment of [the] property,'" id. (quoting Moeller, 218 Or. at 431, 345 P.2d 813) (brackets in Hawkins), and that "[m]ost cases boil this definition down to a test of whether there has been a `substantial' interference with property rights," id. Most recently, the Supreme Court has summarized: "To establish a taking by inverse condemnation, the plaintiff is not required to show that the governmental defendant deprived the plaintiff of all use and enjoyment of the property at issue. See Morrison * * *. A `substantial interference' with the use and enjoyment of property is sufficient." Vokoun, 335 Or. at 26, 56 P.3d 396 (quoting Hawkins, 315 Or. at 68-69, 843 P.2d 400). In a somewhat different vein, the court has explained:
Lincoln Loan v. State Hwy. Comm., 274 Or. 49, 56, 545 P.2d 105 (1976) (quoting Thornburg v. Port of Portland, 244 Or. 69, 73, 415 P.2d 750 (1966)).
With that broader statement of the law in mind, we turn to the record, viewed in the light most favorable to plaintiff. Vokoun, 335 Or. at 21, 56 P.3d 396. Sewer water flowed into plaintiff's home, immediately damaging area rugs and causing lasting damage to her ventilation system, hardwood floors, wallpaper, and sheetrock. On the advice of a heating contractor, plaintiff stopped using her furnace, relying instead on space heaters, and also closed off certain rooms during colder months to conserve heat. A hardwood floor expert verified that plaintiff's hardwood floors had sustained water damage and might need to be removed and reinstalled. Another contractor testified to finding "an enormous amount of water damage" and recommended that plaintiff replace sections of sheetrock in her entryway, hallway, and bathrooms. Further, plaintiff presented abundant evidence that the sewage intrusion significantly diminished the value of her home. An appraiser testified that, because of damage and stigma, the home lost approximately $100,000 in value. In sum, we conclude that plaintiff presented evidence to support a finding that plaintiff experienced a
Defendant's final assignment of error challenges the jury instruction that the trial court gave explaining the requisite intent for an inverse condemnation claim. We review jury instructions, as a whole, for legal accuracy and will not reverse "unless [we] can fairly say that the instruction[s] probably created an erroneous impression of the law in the minds of the [jurors] which affected the outcome of the case." Waterway Terminals v. P.S. Lord, 256 Or. 361, 370, 474 P.2d 309 (1970). The instruction that defendant challenges provided:
Defendant argues that the instruction "effectively removed the intent element of the claim for inverse condemnation" by giving the impression that "an unconstitutional taking can occur without any fault." In response to plaintiff's assertion that this court upheld the exact instruction in the Vokoun case on remand, defendant avers that Vokoun "included additional instructions not given in this case."
Both parties are correct: the Vokoun court upheld multiple jury instructions, which included—verbatim—the instruction defendant challenges here. Vokoun v. City of Lake Oswego, 189 Or.App. 499, 503-04, 76 P.3d 677 (2003), rev. den., 336 Or. 406, 84 P.3d 1082 (2004). In this case, the trial court provided additional instructions as well, and explained the law to the jury as follows:
(Emphasis added.) Given that instruction, we cannot fairly say that the jurors probably went to the jury room with an erroneous impression of the law—namely, the impression that intent was not an element of plaintiff's claim.
We therefore hold that plaintiff presented a legally sufficient claim of inverse condemnation to the jury and that the evidence in the record supports its verdict in plaintiff's favor.
Affirmed.
