Is there Strict Liability for Loss of Lateral Support Without Excavation Activity in California?

As discussed in the recent California appellate decision of Quinn v. Coulton, after a 100-year storm dropped over five inches of rain on San Francisco in 24 hours, a retaining wall—which separated the backyards of two uphill neighbors from the backyards of two downhill neighbors failed, “causing soils from the uphill properties to crash down into the backyards of the downhill properties,” filling the downhill properties with mud and debris.

The uphill neighbors sued the downhill neighbors, proceeding in part on a theory of strict liability; the downhill neighbors countersued.

Following the trial court’s ruling on a motion in limine excluding the strict liability claim, the court entered judgment against the uphill neighbors and awarded litigation costs, including expert fees, to the remaining downhill neighbor Mary Coulton.

On appeal, the uphill neighbors challenged the trial court’s in limine ruling and the award of expert fees.

Because California law does not recognize a strict liability claim for loss of lateral support absent some excavation activity, the appellate court rejected the uphill neighbors’ challenge to the in limine ruling, but agreed that the award of expert fees was incorrect.

Therefore, it affirmed the judgment but reversed the order awarding litigation costs to the extent it included expert fees.

Elizabeth Quinn and Caroline Ayres own residential property next door to Greg Gruszynski and Derrlyn Tom (the uphill neighbors), and their properties sit directly above and uphill from the properties owned by Elysa Stein and Neil Straghalis and their next door neighbor Coulton (the downhill neighbors).

The backyards of the properties were separated “by a 10-inch-thick, concrete retaining wall” that ran diagonally between the uphill and downhill properties for approximately 125 feet. The wall varied in height between eight and 10 feet, and the parties estimate that it was built in the 1940s before they purchased their properties and had never been modified.

In December 2022, after a “100 year rainstorm that was bookend[ed] by atmospheric rivers” produced so much rainfall “that people were kayaking through the streets” of San Francisco, the retaining wall failed.

Approximately 10 cubic feet of dirt and debris from the uphill backyards slid into the downhill backyards resulting in significant damage to all four properties.

Several days after the wall failed, the San Francisco Department of Building Inspection (DBI) issued notices of violation for unsafe building conditions to the owners of all four properties and required them to rebuild the wall.

In March 2023, Gruszynski and Tom contacted DBI, which abated the notices of violation for the uphill neighbors only, and this litigation ensued.

In July 2023, the uphill neighbors filed their operative first amended complaint, asserting claims for nuisance, negligence, and “loss of lateral and subjacent support.”

The amended complaint sought monetary relief for physical damage to the properties, out of pocket costs for repairs, loss of use and value, and emotional distress.

In August 2023, the downhill neighbors filed their operative first amended cross-complaint for nuisance, negligence, and trespass, seeking compensation for property damages, loss of use, and emotional distress.

As a basis for the loss of lateral support claim, the uphill neighbors cited Civil Code section 832, which provides, in part: “Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining

land to make proper and usual excavations on the same for purposes of construction or improvement.”

In July 2024, Coulton filed a motion for judgment on the pleadings and a related request for judicial notice seeking dismissal of the uphill neighbors’ third cause of action for removal of lateral support.

The uphill neighbors opposed the motion, arguing that that common law provided an “ ‘absolute right’ ” to lateral support, which was subsequently codified by Civil Code section 832 as a “statutory right of support.”

On reply, Coulton argued that Civil Code section 832 codified common law applicable to the excavation of land from neighboring properties and thus had no application to this case since there was no excavation work performed or even alleged in the uphill neighbors’ amended complaint.

After a hearing in August 2024, the court denied the motion, explaining that even though excavation is not an issue in this case, so the exceptions provided for in Civil Code section 832 are not applicable, plaintiffs at a minimum stated a cause of action for negligence.

In this appeal, the uphill neighbors did not challenge the court’s August 2024 ruling.

In advance of the October 2024 trial, the parties filed several motions in limine, including, as relevant here, Coulton’s motion in limine for an order excluding claims for strict liability or negligence per se based on Civil Code section 832.

Coulton anticipated that the uphill neighbors would argue that Civil Code section 832 provides for strict liability.

Rather, according to Coulton, the applicable standard for a finding of liability is negligence, not strict liability.

Coulton further asserted that the uphill neighbors could not establish a claim for negligence per se, especially where there is no excavation at issue, because Civil Code section 832 applies only in the context of excavation.

The uphill neighbors opposed the motion, arguing Civil Code section 832 codified an absolute right to lateral support and thus downhill neighbors were strictly liable for any damages from loss of lateral support: even if a retaining wall failure is unintended and unforeseeable, and even if the downhill neighbor used the utmost care and skill to prevent a wall failure, when a wall failure nonetheless occurs and removes lateral support, the downhill neighbor is liable for any consequential damages.

On the first day of trial, the court granted the motion in part, explaining that it respectfully and totally disagreed with the uphill neighbors’ strict liability theory and stated it would not be giving that instruction to the jury.

Earlier that same day, the uphill neighbors had voluntarily dismissed with prejudice their nuisance and negligence claims against Coulton.

Thus, “Given the court’s ruling and given that [the uphill neighbors had] dismissed [their] first two causes of action,” counsel for the uphill neighbors suggested Coulton move to dismiss the remainder of the case.

Coulton’s counsel did so and “ask[ed] the court to enter a judgment in favor of Defendant [Coulton].” The uphill neighbor’s counsel verbally stated that they “oppose[d]” the motion, which the court granted “Over [the uphill neighbors’] objection.” 

The trial court entered judgment in Coulton’s favor in October 2024, and the uphill neighbors filed a timely notice of appeal.

This appeal presented two issues.

First, the uphill neighbors argued that the trial court erred in deciding there was no strict liability lateral support claim.

Second, the uphill neighbors contended that Coulton’s expert fees should have been taxed because “lump- sum joint offers to multiple plaintiffs that required them to apportion the amounts among themselves” are “invalid as a matter of law.”

The appellate court disagreed with the uphill neighbors on the first point: In California, there is no claim for strict liability claim for loss of lateral support absent excavation.

The uphill neighbors’ strict liability theory was premised on the incorrect belief that, under common law, the right to lateral support exists independently of excavation activities.

Thus, to demonstrate that the uphill neighbors’ strict liability theory lacks any legal basis, the appellate court explained the origin of the common law right to lateral support and its subsequent modification through Civil Code section 832.

Lateral support is the support received by a parcel of real property from the sides by adjacent pieces of real estate or, as in this case, a retaining wall.

At common law every owner of land was entitled to lateral support of that land from every other coterminous owner. This was an absolute right incident to the land itself.

Thus, a coterminous owner who excavated upon his property, by the exercise of proper care and the application of proper means of support, was compelled to protect adjoining property in its natural state from sliding into the excavation.

This liability for excavation irrespective of negligence is referred to as strict liability.

At common law a coterminous owner was strictly liable for damages resulting from the withdrawal of lateral support.

There are some limitations to this common law “absolute right” to lateral support that implicates strict liability.

To start, the right extends to the protection of “the land in its natural state, without the added weight of a building upon it.”

Similarly, under common law, an injured landowner cannot recover damages caused by excavation on noncontiguous property unless the damages resulted from the negligence of the excavator.

Even with these limitations, by the 1870s, the expansive nature of strict liability had become burdensome and unrealistic among changing conditions involving the growth of urban communities, and the commonplace necessity of surface excavation for building purposes.

Thus, the Legislature enacted Civil Code section 832 to “relax” the common law rule by eliminating absolute or strict liability for excavation in specified circumstances.

However, Civil Code section 832 did not change the baseline rule that a landowner who negligently excavated would be liable for any damage to the property and/or improvements.

All that said section does is to permit a land owner to excavate, freed from the absolute common law right of lateral support provided that negligence of the excavator is not the proximate cause of damage.

One who negligently withdraws lateral support of another’s land or the buildings on that land is subject to liability for harm resulting to the land or the buildings.

And where an excavation has caused the removal of lateral support, the subsequent transfer of the excavated property to a third party does not necessarily relieve the excavating party from liability.

This liability remains because the damage to the surface land from the removal of [lateral] support occurs at the time of the excavation, even though “he cause of action does not accrue until subsidence.

Thus, a landowner who took title and possession after the occurrence of the act causing the removal of the lateral support, and uncontrovertedly did not participate in the act that resulted in the removal of the support, is not responsible in damages.

To summarize, under California common law, the default rule is that the party who removes the lateral support is absolutely liable for damages caused by subsidence and a subsequent owner will not be liable absent independent negligence.

Here, the uphill neighbors disavow negligence as the basis for their claim, and there are no allegations or evidence that Coulton conducted any excavation activity.

Accordingly, the uphill neighbors’ strict liability claim fails because Coulton did not engage in any excavation activities to which liability may attach.

LESSONS:

1.         Lateral support is the support received by a parcel of real property from the sides by adjacent pieces of real estate or, as in this case, a retaining wall.

2.         At common law every owner of land was entitled to lateral support of that land from every other coterminous owner. This was an absolute right incident to the land itself.

3.         California law does not recognize a strict liability claim for loss of lateral support absent some excavation activity.

4.         Civil Code section 832, which provides, in part: “Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction or improvement.. 

5.         Civil Code section 832 did not change the baseline rule that a landowner who negligently excavated would be liable for any damage to the property and/or improvements.