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<br />002829 <br /> <br />1. was of such type or size as to be unforeseeable and the business did not <br />act negligently with respect to dealing with a foreseeable event; and <br /> <br />2. was foreseeable and the defendant took all reasonable actions to prevent <br />harm, but nonetheless damage still occurred. <br /> <br />It can be argued that landslides (other than those triggered by a seismic <br />event) are less an "act of God" than are earthquakes, and therefore, success <br />of such defense in a lawsuit is less likely. <br /> <br />Recent court decisions have identified the developer or his consultants as <br />primarily responsible for damage due to land failure. The prudent developer <br />will avoid landslide-prone areas or institute control measures before movement <br />begins, where it appears that these measures will be adequate in stabilizing <br />the area. <br /> <br />The overall consequences to individuals, professionals, and governments is <br />explained in W.J. Kocke1man's review of a recent earthmoving damage case. The <br />California Court of Appeals First District (1984) has held that it is the duty <br />of ' a real-estate broker selling a house to conduct a reasonably competent and <br />diligent inspection of the property and disclose to the buyer any defects <br />revealed by the inspection. <br /> <br />The California State Constitution (1979), as interpreted in various court <br />decisions, guarantees that the appropriate unit of government must pay for an <br />after-the-fact condemnation of private property that is either taken or <br />damaged for a public purpose. This theory or remedy of adverse condemnation <br />was substantially broadened by the California Supreme Court (1965), when it <br />held that it was irrelevant whether Los Angeles County could have been <br />expected to foresee a disaster after it did road grading at Portuguese Bend in <br />Palos Verdes. This resulted in an award of 7 million dollars in damages to <br />the homeowners. Recent court decisions are placing increased responsibility <br />for landslide losses on public agencies in Palos Verdes, Ma1ibu, Pacific <br />Palisades and other southern California communities. Cox (1984) reported that <br />one of the plaintiff's attorneys in a multimillion dollar series of lawsuits <br />in Ma1ibu's Big Rock Mesa is arguing that "the county should have designed a <br />water system that would have withstood earth movements rather than breaking <br />." and dumping water into already saturated clay and sand." <br /> <br />- 44 - <br />