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~ITY OF SAN BER~ARDINO 0_
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MEMORANDUM
To
JAMES F. PENMAN From
City Attorney
Claim of San Bernardino Westside Community Date
Development Corp., 86B-135
JOHN F. WILSON
Deputy City Atty
June 9, 1987
Subject
Approved
Date
700.84
Due to a backup in the sewer maintained by the City of San
Bernardino, water damage was suffered at the Westwide CDC offices
located at 1777 West Baseline on November 11, 1986. A claim for
the cleanup was submitted by Ms. Pope-Ludlam in the amount of
$1,084.20. The claim was approved for payment.
On or about February 13, 1987, a second claim, timely filed, was
submitted by Westside CDC for damage to the carpet. The carpet had
shrunk after the initial drying period and the seams between the
carpet now created a hazardous condition at the location. Upon
review of the location by Kevin Sovereign of the Risk Management
office and an expert in carpet drying, it was determined that the
shrinkage was caused by improper methods of cleanup. On that basis
the claim for the damage to the carpet was denied.
It would be my analysis that the cleanup of the carpet was an
independent intervening act. As stated in Witkin:
"Where, subsequent to the defendant's
negligent act, an independent intervening force
actively operates to produce the injury, the
chain of causation may be broken. It is usually
said that if the risk of injury might have been
reasonably foreseen, defendant is liable, but
that if the intervening act is highly unusual or
extraordinary, not reasonably likely to happen
hence, not foreseeable, it is a superseding cause,
and the defendant is not liable. "
4 Witkin Summary of California Law 8th Ed.,
Tort Section 628.
It was clearly foreseeable that following the intrusion of the
water into the premises that a cleanup would be required. If the
cleanup was done in a manner which caused further damages to the
premises it would appear under the above cited authority that the
City would be liable for such damage.
It was the analysis of the Risk Management office that because
expert cleanup was offered by the City, and refused by the party,
that the City's liability was removed. This was deemed to be
especially true in light of the fact that the company that
performed the cleanup at the location is apparently owned by Ms.
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Pope-Ludlam. This may be something to be considered in mitigation
of the amount of damages, however, it would not eliminate the
liability of the City for the damages resulting from the improper
cleanup of the flooding.
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JpHN F. WILSON
geputy City Attorney
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