City Can Demolish Building in Emergency

“On appeal, the plaintiff claims that the court erred when it (1) made various findings of fact that were unsupported by the evidence introduced at trial, (2) did not find that provisions of the municipal and state building codes that the defendant violated constituted a ‘policy’ supporting a claim of municipal liability under 42 U.S.C. § 1983, (3) concluded that the defendant’s actions did not constitute a taking of property for which the plaintiff was entitled to just compensation, (4) placed the burden of proof on the plaintiff, and (5) did not draw an inference in the plaintiff’s favor on account of the defendant’s failure to preserve evidence critical to the plaintiff’s case.”

Appellate Court Concludes City can Demolish Building in an Emergency

Plaintiff’s first argument essentially was that the trial court should have given certain evidence more weight than other evidence. The Appellate Court concluded that, although there may have been conflicting evidence as to some issues, the conflict did not render the trial court’s findings unsupported.

As to plaintiff’s second argument, the court noted that “‘it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged.'” The state and city building codes, which gave the inspector discretion to demolish a building determined to be unsafe, do constitute a municipal policy in respect of such buildings. But, that policy itself was not unconstitutional because it was not the moving force behind the demolition of plaintiff’s building. Rather, the moving force was the inspector’s exercise of his discretion in favor of demolition.

“‘Where … a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.’ … ‘[W]here the policy relied upon is not itself unconstitutional, considerably more proof than [a] single incident [of unconstitutional activity] will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the ‘policy’ and the constitutional deprivation.'” The court concluded that “[b]ecause the identified municipal policy itself is not unconstitutional, the plaintiff was required to prove more than a single exercise of [the inspector’s] discretion to impose liability on the defendant.” The court rejected the claim because the incident involved only a single exercise of the inspector’s discretion.

With respect to plaintiff’s “taking” argument, the court noted that the demolition was a valid exercise of police power, which would require compensation only if “no reasonable use may be made of the property and it becomes of little or no value to the owner.” It concluded that “[t]here was no testimony or other evidence indicating that ‘’no reasonable use may be made of the [subject] property’; … such as evidence that the plaintiff was prevented from rebuilding. In light of the dearth of evidence tending to show that the defendant’s exercise of its police power was unreasonable or confiscatory, the trial court properly concluded that there was no taking when it ruled in the defendant’s favor on the plaintiff’s inverse condemnation claims in counts five and six.”

Plaintiff’s fourth argument was a contention that the Superior Court action was a substitute for the administrative hearing that it never received and the agency would have had the burden of proof in such a hearing. The court rejected this argument because there was no supporting authority for the “substitution” claim.

Plaintiff’s fifth argument was “that the court erred when it did not draw an inference in the plaintiff’s favor on account of the defendant’s failure to preserve evidence critical to the plaintiff’s case—namely, the defendant’s demolition of the building without taking any measurements or detailed photographs.” The court noted that “the trier of fact may [but is not obligated to] draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.” The court rejected the argument because “[t]here was sufficient evidence in the record, in the form of [the inspector’s] testimony regarding his predemolition assessment of the building and his determination that it posed an imminent danger, to support the court’s decision not to draw an adverse inference.”

Other Things to Note

In footnote 4, the court addressed the possibility that the appeal was moot. More specifically,”[w]e raised the issue of mootness to consider whether the [trial] court’s finding that the plaintiff failed to prove damages, which the plaintiff does not challenge, is an independent basis for the judgment, which would prevent this court from providing practical relief on appeal.” The court “conclude[d] that the [trial] court’s finding regarding damages did not independently support the judgment because proof of actual damages was not a necessary element of the plaintiff’s causes of action. Notwithstanding its failure to prove actual damages, the plaintiff could have prevailed and received nominal damages.”