Case of the Day – Wednesday, October 22, 2014


Filthy_animal140324Any fan of the Christmas comedy hit of the 1990s, Home Alone, remembers Angels with Dirty Wings. It was the film noir movie that the kid protagonist played repeatedly, the mobster’s taunt – “Keep the change, ya filthy animal” – punctuated with a spray of .45 cal. bullets from a Model 1928 Thompson submachine gun, being used as part of the boy’s plot to keep the bad guys at bay.

In today’s case, the angel is Angel’s Path, a developer, and the dirt on its wings slid off a big mound the company put right on its property line as it built houses. The neighbors didn’t much like the dirt sliding into their back yard, and weren’t big fans of the stagnant water that collected after every rainstorm. But when Angel’s Path asked for summary judgment on the trespass and nuisance claims the Peters brought, for some reason they opposed it on the cheap, with an affidavit from Mr. Peters and a bare letter from their engineer.

It’s seldom a good idea, saving money at the most crucial moment in the litigation. Better to adhere to the old law school maxim, “too much is not enough.” You have affidavits from five experts? Use ‘em all. You have five boxes of documents? Attach ‘em. Opposing a motion for summary judgment is no time to spare the horses. Here, Mr. Peters should have had an affidavit from his engineer, his own survey done by a registered surveyor and recorded down at the county building, and enough pictures of shifting dirt piles and standing water to start his own site.

angelsfight140324But he didn’t. The trial court granted summary judgment to Angel’s Path, finding the survey of property lines — showing the dirt piles on its own land — more persuasive than Mr. Peters’ affidavit claim that the dirt had sloughed over the line. Peters’ affidavit was “self-serving,” the trial judge complained.

The Court of Appeals reversed. Sure the affidavit may be a little self-serving, the Court said, but for purposes of summary judgment — a fairly high bar for a defendant to leap — the Court had little problem believing that a property owner knew where his own boundary lay. The summary judgment test, after all, is whether the evidence, taken in the light most favorable to the party against whom summary judgment is sought, shows there’s no material question of fact.

This standard required that the trial court assume that any reasonably detailed facts Mr. Peters raised in his affidavit were true. If after doing this, the court still believes that Peters was not entitled to a judgment, then summary judgment could go for Angel’s Path. It was pretty clear that Mr. Peters was going to need a whole lot more persuasion at trial to pull the halo off Angel’s Path, but for now – at the summary judgment stage– his showing was enough to stay in the hunt. Just barely.

Incidentally, this case was brought with a companion case from the Kramers, who sued Angel’s Path, too. That decision is an interesting study in nuisance and trespass. We’ll consider that decision tomorrow.

angelspath140324Peters v. Angel’s Path, L.L.C., Slip Copy, 2007 WL 4563472 (Ohio App. 6 Dist., 2007). Clarence and Nanette Peters said that Angel’s Path, LLC, a developer, damaged their two residential properties. As a result of residential property development by Angel’s Path, dirt mounds at the edge of the development property caused water run-off and flooding on their adjacent land. They sought restraining orders to prevent Angel’s Path from trespassing on their properties or continuing to alter the natural flow of water, as well as damages.

Angel Path filed a motion for summary judgment, arguing that the earth mounds did not cause run-off to appellants’ property or any sinkhole conditions, and therefore, were not a nuisance; and that their surveyor said that the mounds did not encroach upon appellants’ property, so no trespass had occurred. The trial court also granted summary judgment against the Peters on both their nuisance and trespass claims. The Peters appealed.

Held: Summary judgment was reversed. A “nuisance” is the wrongful invasion of a legal right or interest. A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. In order for a private nuisance to be actionable, the invasion must be either intentional and unreasonable, or unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

If the private nuisance is absolute, strict liability will be applied. By contrast, a qualified nuisance is premised upon negligence, essentially a negligent maintenance of a condition that creates an unreasonable risk of harm. To recover damages for a qualified nuisance, negligence must be averred and proven. A qualified nuisance is a lawful act so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.

Where damage to one property by water run-off from an adjacent property is alleged, Ohio has adopted a reasonable-use rule. A landowner isn’t allowed to deal with surface water as he or she pleases, nor is the owner absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Instead, each landowner over whose property water flows is allowed to make a reasonable use of the land, even though the flow of surface waters is altered thereby and causes some harm to others. He or she incurs liability only when the harmful interference with the flow of surface water is unreasonable.

nonuisance140324In answer to Angel’s Path’s motion for summary judgment, Mr. Peters provided an affidavit along with referenced photos that claimed the mounds created by Angel’s Path had slid across the common property onto his property. Peters’ affidavit also said that Angel’s Path workers entered onto his property to cut the weeds because the slope of the mounds didn’t allow appropriate maintenance without entering onto his land. Finally, the Peters affidavit stated that the back portion of his property now flooded and would not dry out, preventing his use of the land for a rental or for farming. Peters also included as a letter from his expert stating the mounds blocked the natural flow of the water, creating a “permanent pond,” and suggesting possible ways to eliminate the problem.

The Court said that Mr. Peters’ testimony about the location of his property lines, although perhaps not the best evidence to rebut a commercially prepared survey, was something presumably within the property owner’s personal knowledge. Therefore, despite the fact that he had not yet had a separate survey done, the Court would not disregard the affidavit. At the same time, the Court criticized the trial judge for placing too much weight on the fact that Angel’s Path plans had been approved by the local county engineers. The Court of Appeals said that while the county engineer and other agencies approved the Angel’s Path development plans, including the projected effects that it might have on surrounding properties, “such facts are of little consequence and comfort when examining the real-world results of the construction …”

Here, for the purposes of summary judgment, the Court concluded that the Peters had presented prima facie evidence to establish causes of action for private nuisance and trespass. Whether Angel Path’s actions were reasonable, intentional, or negligent, the Court said, are decisions to be made in a trial, not on summary judgment.




And Now The News …



EAB141022Public Radio International, October 21, 2014: The invasive emerald ash borer has killed millions of trees, but researchers hope a wasp can save some of the survivors

A swampy forest in the floodplain of the Merrimack River is one of the first places in New Hampshire where the dreaded emerald ash borer was discovered. These days, Molly Heuss of the New Hampshire Division of Forestry and Lands knows just how to find the tree-munching beetles lurking in green and black ash …

St. Louis, Missouri, KMOV-TV, October 21, 2014: Ash trees on arch grounds to be removed in coming weeks

As the arch grounds renovation project continues, 800 ash trees are targeted to be removed and replaced with London Plane trees. The removal of the ash trees is a proactive measure against the Emerald Ash Borer, a beetle that can be deadly to the trees. Crews plan on removing the trees within the coming weeks. The London Plane trees that will replace the ash trees were shipped from New Jersey, but will not be planted until 2016 when the park construction will be finished. By that point, the trees will be near 25 feet tall and six inches in diameter …

Bangor, Maine, Bangor Daily News, October 21, 2014: Plan to harvest trees from Falmouth town forests called ‘outrageous’

After hearing about a plan for harvesting trees at the Blackstrap Hill Community Forest and Woods Road Community Forest, the Falmouth Town Council recently decided that consultation from a forest ecologist is necessary before any decision can be made. However, the council cannot deny harvesting in the forests, because the Department of Inland Fisheries and Wildlife mandates harvesting every 10 years. The council discussed the issue at its Oct. 15 meeting. The plan, as explained by town forester Paul Larrivee, would draw from the individual 2013 open space management plans for both properties. A selective cut in both properties would “take out less desirable trees and encourage new species to exist there,” Larrivee said. The Woods Road plan would call for harvesting likely up to one-third of the trees in a 36-acre zone, to create an area where deer can find food. A 100-acre zone in the forest would be left alone, so the deer could have shelter. “I just think that’s outrageous,” Anderson said with regard to the number of trees being harvested …

Sammamish, Washington, Sammamish Review, October 21, 2014: Temporary law makes it more difficult to cut down trees

Residential developers could have a more difficult time building homes in Sammamish — at least for the next few months — after the City Council took action last week. In a unanimous vote Oct. 14, the council passed an interim ordinance regarding tree retention standards. The laws could change again after the council holds a public hearing in December — about the same time the city’s planning commission finishes studying the issue — but for now, developers will have more restrictions to deal with. City officials said they’re looking to balance state-mandated growth targets with the wishes of residents who say too many trees are being cut down. “This is not intended to impose a moratorium,” City Manager Ben Yazici said. “It is not intended to discourage development. It is intended to save more trees …”

redpinescale141021Northampton, Massachusetts, Daily Gazette, October 20, 2014: Red pine insect the size of fleck of pepper killing trees in Northamptons

A tiny insect the size of a fleck of pepper is wreaking havoc on red pine trees in the city’s watershed lands, forcing the Department of Public Works to hire a forester to survey the trees and develop a harvesting plan for early next year. Known as red pine scale, the non-native insect has been present in the state for some time but was only recently detected in the city’s water supply property located in six communities, including highly visible spots off major roads. “Within a year or two, all of the red pines will be dead. Many are already dead,” said City Engineer James Laurila, referring to the red pines on city property…

Tulsa, Oklahoma, KOTV, October 20, 2014: Landscaping ‘A Gathering Place’: Over 4,000 new trees to be planted

Officials behind A Gathering Place for Tulsa say more than 80 different species of trees will be planted as the plans for a world-class park are realized. They’re using a Tulsa company – Preaus Landscape – to oversee the planting of more than 4,380 trees during the park’s construction. Brothers Bill and Ken Preaus have more than 35 years of experience in landscaping, a news release states. “Preserving these existing trees and combining them with the amount and variety of new trees to be planted, is going to make A Gathering Place one of the most unique and beautifully forested areas in Oklahoma and the region,” Bill Preaus said …

dragontree141021Amman, Jordan,, October 20, 2014: Haunting dragon trees from Yemen bleed when cut

If I were in charge of promoting tourism in Yemen, I’d be using the native dragon tree, or Socotra tree, as my mascot. Native to the Socotra Island these unusual trees have evolved in isolation over millions of years. The Latin name of the endangered Socotra dragon tree or dragon blood tree is Dracaena cinnabari and it is native to the Socotra archipelago of islands in Yemen in the Indian Ocean. It is called a dragon tree due to the red sap that the trees produce …

Biloxi, Mississippi, WLOX-TV, October 21, 2014: State ag officials surveying citrus trees

The Louisiana Department of Agriculture and Forestry is checking Plaquemines Parish citrus trees for 13 pests and diseases. Commissioner Mike Strain says two inspectors began door-to-door surveys on Monday to check all commercial and residential property. The survey will continue through next summer, starting in the south and moving northward toward Belle Chasse. The main focus will be citrus canker, citrus greening and the insect that carries citrus greening …

caldrought141020NBC News, October 19, 2014: Trees vs humans: In California drought, nature gets water first

It seems like a sin of nature that trees may be adding to the misery of California’s extreme drought. But that may be the case, according to researchers from the University of California. The problem is with forests that have grown denser with trees and brush over time in California’s Sierra Nevada mountains. What’s good for the trees may be bad for people. That’s because the trees are soaking up a lot more water that would normally be filling up many of the state’s reservoirs, which are at very low levels because of three years of severe drought …

Toledo, Ohio, Toledo Blade, October 20, 2014: Scientists seek odds-defying ash trees

Federal scientists now believe there are a few extra hardy ash trees out in nature that have — for reasons unknown — defied the odds and held up against the highly destructive, green metallic beetle from China known as the emerald ash borer. They want the public’s help in finding those “survivor” trees — and are starting their research in seven northwest Ohio counties and 10 southeast Michigan counties …

Goshen, Indiana, The Goshen News, October 19, 2014: Prune trees at the right time in the right way

This past week I spent some time with the mowing crew, limbing up young trees in a couple of parks. It’s kind of a hard job to keep up with since we’ve planted so many young trees in the past several years. But it’s necessary. The machines begin to skin up branches as they grow out from the tree, and the mowers have told me that from time to time one of those branches will place a well-aimed slap right on their face if they’re not watching.So we worked on some of the trees in Mullet Park, which I last pruned two winters ago, and then moved over to Hay Park, which was also pruned two winters ago. It is really remarkable and gratifying to see how these young trees respond to some thoughtful care. In most cases the prune wounds have healed over entirely in that time, and only a small scar is visible. In another year or two, even the scars will disappear beneath bark and new cambial growth. The pruning from two years ago also helped these trees to form good growing habits, with dominant central leaders — or trunks — and good branching structure …

Columbus, Ohio, Dispatch, October 19, 2014: Trees wearing better colors this fall

Mother Nature is blinding us with science as trees in Ohio put on their best fall colors in several years.  “It’s definitely better than last year,” said Casey Burdick, forester for the Ohio Department of Natural Resources.   “Last year, every time we started to get color, we had really strong rain and wind, which knocked the leaves down,” Burdick said. But this year, the weather in September “was absolutely perfect for what we needed for the most vibrant colors …”

startrees141017Salem, Oregon, Willamette University, October 16, 2014: Star Trees lighting hiatus intended to give trees time to recover from stress

To ensure the continuing health of the Star Treesespecially those on the windward north side — Willamette University will take a hiatus from the traditional Star Trees lighting. According to the Office of the President, the trees are healthy but showing signs of stress. The grounds team has expressed concerns about the cumulative effects of light installation and the use of heavy cabling, which may cause damage to the trees during winter storms. The hiatus is intended to give the trees a respite and time to recover …

Columbus, Indiana, The Republic, October 16, 2014: State, federal agencies plan treatments to prevent spread of disease that kills red oak trees

State and federal agencies are teaming up in northern Michigan forests to fight oak wilt, a disease that kills red oak trees. It has shown up across much of the state. It spreads when root systems of infected trees graft with those of healthy trees …

Green Bay, Wisconsin, WFRV-TV, October 16, 2014: Chemically damaged trees will be removed from local golf course

At near peak time for fall foliage in Door County, Peninsula State Park Golf Course offers a fantastic view of the colors. But over the next few weeks, dozens of trees will disappear. According to park leaders, 139 conifer trees are marked for removal. They were damaged by the herbicide, Imprelis, manufactured by DuPont. It was used at the course back in 2011. At the time, the chemical was approved by the EPA, but later, they learned of its damaging effects …

Youngstown, Ohio, Vindicator, October 16, 2014: Stink bugs can damage trees, shrubs and much more

Stink bugs are true bugs meaning they go through incomplete metamorphosis. When the eggs hatch, they are nymphs, resembling the adult bug, unlike bugs that go through complete metamorphosis such as beetles, moths and butterflies. They are about 1/2- to 2/3-inch long, and have the ability to release a chemical with a foul odor when they feel they’re in danger. They have the ability to cause significant damage to fruit trees, citrus, persimmon, raspberries, grapes, sweet corn and more. They will also feed on various perennials, trees and shrubs, such as honeysuckle, lilac, linden, maple, oak, rose and sycamore, to name a few …

Portland, Oregon, Tribune, October 16, 2014: Street trees under scrutiny in St. Helens planning

The St. Helens City Council and St. Helens Planning Commission met Wednesday evening to discuss the draft version of the city’s corridor master plan, a document intended to lay out how the city hopes to improve main thoroughfares and key intersections in the Houlton and Old Town districts through future projects … Some officials expressed concerns Wednesday about parts of the plan calling for street trees in certain areas. Planning Commission Chairman Al Petersen said any trees that are planted will have to be proven “suitable for poor soil,” due to the high basalt bedrock underlying most of St. Helens …

jailyard141016Lenoir City, Tennessee, Associated Press, October 16, 2014: Woman sent to jail over neglected trees and bushes in overgrown yard

A Tennessee woman who fell behind on her yard work was cited by code enforcers and has served a stint in jail over her overgrown yard. Karen Holloway tells WVLT that the issue started in the summer, when the city sent a citation. She admits she didn’t properly maintain her yard in Lenoir City in East Tennessee and says it had overgrown trees and bushes, but she says she didn’t deserve jail time. She says she fell behind because of personal family issues …

West Union, Ohio, People’s Defender, October 15, 2014: How to tell good trees from bad trees

Counting sheep to relax yourself isn’t nearly as effective as plowing your way through the American Nursery & Landscape Association (ANLA) American Standard for Nursery Stock, a 129-page book that explains in detail how woody plants should be priced and graded. As dull as this book may be, it’s full of charts and diagrams detailing exactly how to classify each type of woody plant and then grade it. Understanding these standards is essential for nurserymen who buy and sell trees sight-unseen …

Des Moines, Iowa, WHO-TV, October 15, 2014: Eldora area trees on the comeback

In 2009 a hailstorm came through Hardin County damaging windows, buildings, and trees. Property damage has been repaired for the most part, but the trees will take longer to fix. At Pine Lake State Park crews have had to cut down and remove 500 trees which were damaged by the storm. In 2012, a new effort was announced to save the park. “For the most part the park has fared well since Iowa Parks Foundation we put together a plan to bring Pine Lake back from the Hailstorm,” said Park Manager Don Primus. “During that time 7,000 trees various ages and heights were planted here …”

Boulder, Colorado, Daily Camera, October 16, 2014: Trees plant hope in Boulder County

If you’ve been wringing your hands over the onslaught of thugs attacking our trees and wondering how you can help, the time has arrived for you to take action. One simple act will go a long way to keeping our urban forest thriving: plant a tree. The warm weather is giving us a gentle end to the season, one that gardeners should take advantage of if they would like to put a young tree in the landscape. The soil still is easy to turn, and roots will find their way easily through the ground to establish saplings before the cold of winter …

urbanforestdetroit141015Lansing, Michigan, State Journal, October 14, 2014: Trees hauled to Detroit to jump-start urban forest

Trees are being trucked to Detroit as part of an effort to create an instant, forest-like setting in one neighborhood. The work aims to show what trees planted for the Hantz Woodlands project might look like a decade from now. In May, hundreds of people planted 15,000 saplings on land bordered by burned-out homes and abandoned apartments for the larger project …

Washington, D.C., Post, October 14, 2014: Champion trees have their fans in Montgomery County

Joe Howard and Carole Bergmann are tree huggers. Literally. Hang out with them long enough, you will be a tree hugger, too.“We always make them hug the trees,” Carole tells me as we stand under an Osage orange at Woodlawn Manor, a historic property in Silver Spring. She means people who take the Montgomery County Champion Tree tour the pair offer twice a year. Carole, a botanist with the county’s parks department, and Joe, a member of the county’s forestry board, oversee Montgomery’s efforts to find and recognize its largest examples of nearly 200 species of trees, from red alder to Japanese zelkova …

Vancouver, B.C., Sun, October 14, 2014: Researchers urge public to help find B.C.’s biggest trees

There’s a good chance that the province’s largest trees still haven’t been identified, and researchers are inviting the public to join the search. The B.C. Big Tree Registry has moved online with the goal of making information about big trees more accessible. “In just the past six months, the second-largest Douglas fir has been identified [near Port Renfrew] and the third-largest Sitka spruce was just found and measured on Haida Gwaii,” said Sally Aitken, professor of forests and conservation sciences at the University of British Columbia. “So there are big trees out there …”, October 14, 2014: This experiment teaches us to fear trees

Here’s a terrifying experiment that will haunt your dreams, especially as winter comes on. You know those picturesque holiday cards that show pine trees in the snow? Those trees conceal literal death traps. The heavy branches around the tree shelter the trunk from snow, and make what’s known as a “tree well.” Duck under the branches of a pine tree and there’s a little hollow where the snow level drops. Because the branches have diverted the snow around the tree, the snow forms a gentle slope downwards. At the trunk of the tree, the ground can be totally bare …

Southern Maryland Online, October 14, 2014: Want clean rivers? Plant trees

Streams with tree-lined banks are two to eight times more capable of processing nutrients and organic matter than streams without a healthy fringe of trees. That’s what scientists at the Stroud Water Research Center in Pennsylvania tell us. It doesn’t matter if that organic matter comes from a sewage treatment plant or the back end of a cow. Why? Streams flowing through woods have a thriving aquatic ecosystem full of microbes and insects that consume nutrients and organic matter. Forested streamsides, at least in the temperate Eastern United States, are a necessary component of healthy riverine systems …

motorcycle141014Salt Lake City, Utah, KSTU-TV, October 12, 2014: Motorcyclist killed by tree cut down by boy scouts who were away from group

A man from Colorado was killed while driving a motorcycle on State Route 12 in Utah Saturday when he collided with a falling tree that was felled by a group of Boy Scouts, and on Monday more details relating to the crash emerged …

Toledo, Ohio, Blade, October 14, 2014: Commentary: Metroparks battle threat to oak trees

Oaks are prized everywhere they are present — in parks, forests, or front yards. Symbols of strength, beauty, and longevity, oaks are more than just trees. So when something threatens the oaks, it is serious business. Pockets of the fatal scourge oak wilt have shown up in Wildwood Preserve Metropark, where about 60 trees are infected with the fungal disease. To defend the rest of the Wildwood stock from oak wilt, the parks have gone on the offensive. An aggressive program is in motion to halt the spread …

Mumbai, India, Times, October 14, 2014: Money grows on trees with great walnuts of China

Grinning with pride, a Chinese farmer held out two precious walnuts — globes so precisely symmetrical that consumers in search of hand massages value them more highly than gold. “Prices have skyrocketed,” said Li Zhanhua, standing in the shade of the leafy green walnut trees which have made him a small fortune. “Years ago, we could never have imagined this.” Rolling a pair of walnuts between palm and fingers — believed to improve circulation — has been a Chinese pastime for centuries …

Ann Arbor, Michigan,, October 13, 2014: U-M sets date for $400,000 transplantation of 200-year-old burr oak tree

The costly, months-long process of uprooting a 65-foot-tall, 250-year-old tree will culminate later this month as the University of Michigan has set a move day for the history burr oak at the Ross School of Business. Officials announced today that the relocation of the tree is scheduled to take place Saturday, Oct. 25, weather permitting. A crew began the $400,000 process of excavating and moving the legacy burr oak tree in July in order to make way for the school’s $135 million, donor-funded expansion at the school. The cost was factored into the overall cost of the project before it was approved by the Board of Regents …

birch141013Anchorage, Alaska, Alaska Dispatch News, October 11, 2014: Summer trees, invasive insects take toll on interior Alaska birch trees

Interior Alaska’s hot and dry summer of 2013, coupled with an invasion of insect pests that proliferated in number this year, has taken a steep toll on the region’s birch trees, experts say. Had it not been for the heavy rains that swept in during the second half of this summer, a large number of the trees might have been doomed, said Glenn Juday, a professor of forest ecology at the University of Alaska Fairbanks …

Ringgold, Georgia, Times-Free Press, October 13, 2014: Ringgold mayor asks council to protect his old trees

After seeing the Japanese ginkgo tree in Toyko 33 years ago, Joe Barger planted one in the center of town. It was later joined by a second one. The beautiful trees are now 18 inches in diameter, but they are slated to be destroyed for downtown renovation

Salt Lake City, Utah, Tribune, October 11, 2014: Trees ‘retrofit our cities for happiness,’ forester says

Trees play a special, though somewhat contradictory role in the human psyche. Among the first thing Mormon pioneers did upon reaching the treeless Salt Lake Valley in 1847 was plant crops, but also the trees that became Utah’s first urban forest. “This is an impressive story of how a forest city can be developed. It shows how the relationship between forest and city doesn’t have to be a negative one,” and Cecil Konijnendijk, a Dutch forester addressing an international research conference Saturday at the Salt Palace convention center …

Buffalo, New York, WGRZ-TV, October 12, 2014: Many trees did survive October surprise 8 years ago

It was eight years ago that Western New York came under the assault of the surprise October storm which dumped inches of wet, heavy snow and took down numerous trees and power lines across the area. It took days to restore the power, but the trees really suffered the most damage. But, as Paul Maurer of the Re-Tree Western New York program points out, some did survive the onslaught and have since recovered …

New York City, Wall Street Journal, October 11, 2014: Ancient trees: A new book from photographer Beth Moon showcases trees that are up to 4,800 years old

The biggest challenge in photographing ancient trees can be finding them. When the California-based photographer Beth Moon set out to capture some of the Earth’s oldest trees, she found herself hiking up steep mountains, scrambling over rocks and walking hours down roads where cars couldn’t go. She showcases her findings from the past 14 years in a new book, “Ancient Trees …”

graffiti141010Kalamazoo, Michigan, Western Herald, October 9, 2014: Vandals strike Western Michigan University construction site to draw attention to trees

Sometime in the night of Oct. 9 or early morning hours of Oct. 10, vandals broke into the construction site of East Campus Hall and wrote “I miss the Trees” in a blocky, graffiti style text on the large concrete retaining wall. “I think whoever wrote this was missing what is being accomplished,” Cheryl Roland, Executive Director of University Relations said. Roland stated that before the renovations began arborists and landscape specialists were brought in to analyze the terrain and make recommendations based on the historical landscaping and original trees that were on site. Roland stated that they found that many of the trees and bushes on the hill did not belong there and had grown up over time …

Public Radio International, October 9, 2014: Here’s how cutting down West African trees made us vulnerable to Ebola

Scientists say that more than six out of 10 infectious diseases in humans were transmitted from animals. And that transmission, or “disease spillover,” gets worse the more humans alter the environment and disturb animal populations — like, say, when they cut down trees that house Ebola-carrying fruit bats. “The situation in West Africa is that there has been intensive deforestation,” says Jonathan Epstein, a veterinarian and epidemiologist with EcoHealth Alliance, a New York-based conservation group “With deforestation, there’s more exposure between people and wildlife, more opportunity for contact …”

Tecumseh, Oklahoma, Countrywide News & Sun, October 9, 2014: Memorial trees cut down in oversight; Apologetic school official ‘Hates it happened’

Within days of the horrific Oklahoma City Murrah Building bombing on April 19, 1995, students at Tecumseh Middle School were out on their school’s lawn trying to do something positive in the midst of tragedy and grief. They planted young trees, mostly redbuds, along Hwy. 9 and the creek that flows through the school property. Each year, as the unique pinkish-purple blooms appear, many Tecumsehans remember why the trees are there. But unfortunately, not everyone remembered. Early this week, outraged former students contacted metro television stations after at least two of the memorial trees were cut down with no notice and no discussion. A chagrined Superintendent Tom Wilsie said Tuesday that he was “not aware they were planted for the bombing … We wouldn’t have done it if we’d known.” It has been almost two decades since the trees were planted, and Wilsie was superintendent of another school district at the time. There was another principal at the middle school. Teachers have retired. “I hate that it happened,” Wilsie said. “I take responsibility … We were trying to work with the new electronic sign. A couple of the trees were too large, and some smaller ones weren’t in good shape due to the drought …”

Corpus Christi, Texas, Caller, October 9, 2014: Invasive trees deceptively beautiful

Fall is tree planting season. Unfortunately, several trees that have spectacular color are some of the worst invasive species. Don’t let their good looks deceive you. These trees need to be avoided and removed and replaced with a noninvasive species if planted in your yard. The five biggest threats in the Coastal Bend include golden rain tree, Chinese tallow, Chinaberry, Brazilian pepper tree and salt cedar …

Miami, Florida, Herald, October 9, 2014: Doral residents blast Trump over wall of trees

More than 250 angry residents flooded Doral City Hall Wednesday night to complain about billionaire Donald Trump’s decision to block their golf views with a wall of leafy trees. The new areca palms have been stumping more than 2,500 homeowners since the beginning of Trump’s beautification project early last year. Former views of green, curvy hills or glassy waters are now blocked by trees that grow dozens of feet high …

Chicago, Illinois, University of Chicago Maroon, October 9, 2014: Midway trees ambushed by ash borer beetles

The Midway Plaisance retains a quiet air of significance—as the longest stretch of green space within the University, it serves as a community space for students. While the grass on the Midway is here to stay, the emerald ash borer beetle is ravaging the Plaisance perimeter and killing off the ash trees lining the lawn …

A face only a mother could love ...

A face only a mother could love …

Honolulu, Hawaii, October 8, 2014: Incinerators to burn beetle-infested trees You could call it a beetle burner. An incinerator is the latest weapon in the war on the invasive pest. Millions of federal and state dollars are being spent to eradicate the coconut rhinoceros beetle. A low-emission air curtain incinerator is one of five the navy will be using to burn the infested trees. 120 palms that have been chopped down at Pearl Harbor …

Lakeland, Florida, Ledger, October 8, 2014: New citrus trees resist greening The U.S. Department of Agriculture has released five new citrus varieties that appear to tolerate the fatal bacterial disease citrus greening better than existing varieties. All five new releases are rootstocks, or citrus varieties bred primarily for specific soil conditions. The canopy of a commercial citrus tree comes from other varieties of oranges, grapefruit or tangerines grafted onto the rootstock just above ground level. However, all five new rootstocks show superior tolerance to greening only on flatwood soils in the Indian River and Gulf Coast growing regions along the Florida coasts, according to USDA documents. Results of field tests showed no advantages over existing rootstocks grown in the sandier soils along the Central Florida Ridge …

Davenport, Iowa, Quad City Times, October 8, 2014: MidAmerican pruning of oak trees raises questions about timing Although there are conflicting recommendations as to when the best time to prune oak trees is, a plant pathologist at Iowa State University says it probably is OK to do so anytime after mid-September. Timing is an issue because pruning leaves open wounds that, in oak trees, attract a sap-feeding beetle that can spread the often-deadly oak wilt fungus. Iowa State University Extension and Outreach recommends that, to be completely safe, one should prune only in December, January and February. That is why Moline resident Kurt Meyer was upset Tuesday to find a contractor for MidAmerican Energy Co. pruning oaks on his property. Meyer also is an owner of Meyer Landscape & Design …

Accra, Ghana, October 8, 2014: Ghana to start electronic tagging of trees to check illegal logging Ghana is to begin the electronic tagging of trees in its forests as part of measures to check illegal logging. The Minister of Lands and Natural Resources, Nii Osah Mills, who disclosed this to Radio Ghana, said the project involves satellite mapping that works by scanning bar codes stamped unto trees creating an electronic paper trail that helps to track trees whether in the forests or out for exports …

canker141007Associated Press, October 7, 2014: Jury: Department of Ag must pay Orange County homeowners $20 million for lost citrus trees Florida’s agriculture department must pay Orlando area homeowners more than $20 million in compensation for cutting down healthy citrus trees during an effort to eradicate citrus canker. An Orange County jury on Monday determined that about 60,000 citrus trees cut down were worth almost $345 each …

San Diego, California, KNSD(TV), October 7, 2014: New Trees to Replace Beloved Chopped Ones in Coronado New green will grow from the Coronado site where four sugar gum eucalyptus trees are being uprooted, much to the chagrin of residents who call the trees “old friends.” The Coronado City Council voted Tuesday to replace the trees along E Avenue with lemon-scented or sugar gum eucalyptuses …

Time Magazine, October 8, 2014: Garlic Is Being Used in the U.K. to Cure Trees of Deadly Diseases It might not be great for vampires, but it turns out garlic can be very good for trees. Trees in the U.K. are being injected with a garlic extract to cure them of deadly diseases, the BBC reports. The garlic bulbs contain the compound allicin, which can fight bacterial and fungal infections …


Case of the Day – Tuesday, October 21, 2014



Lon Chaney was not a part of this lawsuit.

Lon Chaney was not a part of this lawsuit.

It’s hard to feel too much sympathy for Mr. Chaney (Dave Chaney, not Lon Chaney) in today’s case. He and his wife lived in a hollow on the Ohio River, downhill from the Wilsons.

When the Chaney homestead filled with mud because of a landslide, the Chaneys saw green where most homeowners would just see brown. They sued the hilltop Wilsons, complaining that their neighbors had trespassed and cut down some 400 trees, many of them belonging to the Chaneys. The Chaneys alleged that the removal of the trees — insulting enough on its own — led to the hillside ending up in the Chaneys’ living room.

The trial court got the two sides to agree that their surveyors would decide on the proper boundary. The surveyors did so, and concluded that Mr. Wilson had cut down his own trees, not Chaney’s trees. Meanwhile, The Chaneys lost or fired their attorney — we’re unclear what happened, but regardless, it came at a bad time — and proceeded to lose on summary judgment. They then appealed, arguing for the first time that they hadn’t agreed to have their surveyor work with the other side’s surveyor.

The Court of Appeals ruled against the Chaneys, holding that their allegation was too little, too late. Because it hadn’t been raised in the trial court (where it could have been corrected), the argument could not be raised on appeal. Besides, the Chaneys’ lawyer had agreed to the two-surveyor mechanism, and that agreement was binding on the parties.

There may have more to the Court’s repudiation of the Chaneys’ position. The trial judge was clearly a little put off that the Chaneys had told their insurance company that the landslide was caused by rain, thus collecting a cool $200,000 for the damage. (The Chaneys had had quite the living room) Now, the Chaneys were saying that the mudslide resulted the Wilsons’ alleged tree cutting. The shifting story didn’t especially smack of sincerity.

Most people see a mudslide as a disaster ... the Chaneys saw it as a ticket to Easy Street.

Most people see a mudslide as a disaster … the Chaneys saw it as a ticket to Easy Street.

It is considered poor form to try to collect twice.

Chaney v. Wilson, Not Reported in S.W.3d, 2007 WL 2019673 (Ct.App. Ky., July 13, 2007). Philip and Michaelynn Wilson owned property adjacent to David Chaney’s property in Maysville, Kentucky. The Chaneys lived at the bottom of a steep hill near the banks of the Ohio River. The Wilsons lived at the top of the hill, overlooking the river.

The Chaneys charged that the Wilsons caused timber to be cut and removed from the Chaneys’ property, and that such actions caused the removal of lateral and subjacent support, either causing or aggravating a landslide that damaged their property. At the behest of the trial court, two surveyors surveyed and agreed on boundary line between the parcels. The surveyors also concluded that any trees that had been cut were in fact on the Wilsons’ property.

The Chaneys may have been perfectly honest with the insurance company ... but if they were, it meant they were trying to snooker the court.

The Chaneys may have been perfectly honest with the insurance company … but if they were, it meant they were trying to snooker the court.

The trial court entered a final order, incorporating by reference the surveyors’ agreed description as the disputed boundary line and granting the Wilsons’ motion for summary judgment. Regarding the Chaneys’ claim that some 400 trees had been cut, the trial court found that the physical evidence on the site did not support the allegation, and, “based upon the boundary line as agreed and established by the parties two independent surveyors, any minimal cutting of trees occurred on the defendant’s side of the established boundary line, effectively negating any claims of improper ‘cutting of timber’ as alleged in the Complaint.”

The court also took judicial notice of a separate legal proceeding filed by the Chaneys against their insurance company in which they also alleged that their home was damaged by a landslide in March 1997 – nine months before the Wilsons cut down any trees –which had been triggered by heavy rains. The Chaneys had received a settlement of $200,000 from their insurer for the landslide damage.

The trial court dismissed the Chaneys’ complaint. An appeal followed.

Held: The summary judgment was upheld. On appeal, the Chaneys — who had lost their attorney during the proceedings — only made one argument, that they did not authorize counsel to agree to the surveyors’ collaborating on the legal description of the disputed boundary line. But the Court held that while an attorney cannot substantively settle a case without his client’s express authority, a party is nonetheless bound by the procedural agreements and stipulations of its attorney in the conduct of the litigation for which that attorney was hired. The agreement entered to have the surveyors conduct a joint survey was such a procedural agreement, and was within the attorney’s authority.

What’s more, the Chaneys never complained in the trial court that their attorney lacked the authority to make the agreement. The Court noted that an issue not timely presented to the trial court may not be considered for the first time on appeal.




Case of the Day – Monday, October 20, 2014


Those tin hats really work -- it's just that THEY want you to think there's something wrong with wearing 'em ...

Those tin hats really work — it’s just that THEY want you to think there’s something wrong with wearing ‘em …

Could you say that “it’s not paranoia if they’re really out to get … your trees?”  Put on your tin foil hat, conspiracy enthusiasts!  Or not, if you think that’s an aluminum industry conspiracy. 

In today’s case, the Riehl family had what could be fairly described as a mania for not trimming their trees and bushes.  Their preoccupation with the natural look made the neighbors’ use of a common roadway rather tough.   As a result, the Riehls were sued in the 1970s, and while the neighbors were found to have an easement, the court didn’t force the Riehls to trim the trees. 

Some 15 years later, the City of Rossford passed a nuisance ordinance aimed at people who didn’t trim their trees along streets.  And the odor of conspiracy wafted through the town, spread by black UN helicopters …

The City sued the Riehls in 1997, but then cut a deal with them by dismissing the action and trimming the Riehls’ trees itself.  But in subsequent years, aided no doubt by the Illuminati and Council for Foreign Relations, the City cited the Riehls almost annually, hired contractors to cut the trees down, and then billed the Riehls for the trimming.  Finally, the Riehls had had enough, and — proving that a man who acts as his own lawyer has a fool for a client — they filed their own complaint, alleging everything from fraud to contract breaches to infliction of emotional distress to multiple Constitutional law violations.  And they sued the City, the prosecutor and all of their neighbors. 

The trial court (probably in the pockets of the New World Order) threw out the suit even with respect to defendant who didn’t answer.  The Court of Appeals agreed, expressing bafflement as to why the neighbors were even named, and finding that the fact that the City made a deal in 1997 didn’t mean that it couldn’t come back every year after. 

 Time for the Riehls to raise their own militia … and maybe set them to work trimming the bushes.

conspiracyalert140321 Riehl v. City of Rossford, Slip Copy, 2007 WL 2164158 (Ct.App. Ohio, July 27, 2007).  This case is the latest installment in the ongoing dispute between property owners in Eagle Point Colony about an undedicated access road/alley commonly known as Thirwal Drive. The Riehls owned property along Thirwal Drive, and their perpetually untrimmed trees and bushes encroached on the road to the detriment of other property owners who use it, as well as delivery and trash truck servicing all of the owners along the road.  In 1977, a number of the other residents sued the Riehls seeking to enjoin them from clogging, choking or narrowing the width of Thirwal Drive.  The court ruled that the other owners had an easement by prescription over the Riehls’ land in the form of Thirwal Drive and permanently enjoined the Riehls from clogging, narrowing, or impeding the use of Thirwal Drive. 

But when the neighbors filed a contempt motion because the Riehls weren’t cooperating, the trial court determined that the Riehls didn’t have the obligation to remove or trim the bushes and trees, or otherwise to repair or maintain the easement. 

Thereafter, in 1995, Rossford City Council passed Ordinance No. 94-045, which held that “[e]very occupant of land shall maintain his property so that no brush, trees, bushes or obstructions extend into, on or over any public or private way generally used for the passage of persons or vehicles so as to obstruct or interfere with the passage of such persons or vehicles, or with the ingress and egress of emergency, maintenance, repair or service vehicles or equipment.”  Pursuant to the ordinance, the City cited the Riehls in 1997 but later dismissed the case.  Thereafter, it cited the Riehls virtually every year, trimmed the trees and bushes itself, and billed the Riehls for the cost. 

Finally, in 2005, the Riehls sued the City, the prosecutor, and all of the other neighboring property owners.  The poorly-drafted complaint alleged the City had breached a contract by passing an ordinance charging the Riehls for the trimming, committed fraud, violated the Riehls’ property rights, and retaliated against them by enforcing the nuisance ordinance.  The trial court dismissed the action on all counts as to all defendants.   The Riehls appealed.

Held:  The dismissal was affirmed. The Court said the current litigation, reduced to its essence, was simple: it involved the Riehls’ continuing violation of Rossford’s nuisance ordinance, which was passed after the 1978 decision.  Nothing in the prior decision of the trial court had any effect on the subsequently-passed ordinance.  And, the Court held, the Rossford nuisance ordinance had a real and substantial relation to the safety and general welfare of the public and is neither unreasonable nor arbitrary.  It seeks to prevent Rossford property owners from obstructing any public or private way that is used for the passage of persons or vehicles, including emergency, maintenance, repair or service vehicles or equipment. The nuisance ordinance applies equally to the Riehls and all other residents of Rossford. 

At its heart, the Riehls’ complaint alleged that the 1997 judgment granting the city’s motion to dismiss the first nuisance action filed against the Riehls, amounted to a res judicata determination that the Riehls never again had an obligation to trim their bushes and trees and prevent them from obstructing Thirwal Drive.  However, the Court held, a political subdivision or an employee of a political subdivision is immune from liability in a civil action for injury or loss to property when the claims are in connection with the political subdivision’s or employee’s performance of legislative or quasi-legislative functions, or the enforcement or nonperformance of any law.  What’s more, the Supreme Court of Ohio has expressly stated that “[t]here are no exceptions to immunity for the intentional torts of fraud and intentional infliction of emotional distress …” 

Because the Riehls’ claims against the city arose out the city’s performance of governmental functions, and because no exceptions to immunity apply with regard to the Riehls’ claims against the city for fraud and intentional infliction of emotional distress, the city was entitled to summary judgment on those claims. 

 The city’s immunity doesn’t extend to contracts.  The Riehls argued that in 1997 the city of Rossford entered in to a settlement agreement with the Riehls approved by Judge Dwight Osterud.  They claim that the city agreed to trim the Riehls’ bushes and trees that encroached on Thirwal Drive.  Nevertheless, in 2003 and 2004, the city of Rossford passed ordinances assessing the costs of trimming against the Riehls’ real estate. The Riehls claim that the February 1997 judgment entry amounted to a contract and that through their actions, the governmental defendants breached this contract with the Riehls.  

blackhelicopter140321 The Court rejected their argument.  It held that there was no enforceable plea agreement.  The City got no benefit and the Riehls suffered no detriment from the deal.  Thus, the Court held, there was no consideration for the contract, and thus there could be no contract.   The Riehls also argued that assessing them for trimming their trees constituted an unconstitutional taking of their property without compensation.  But the Ohio Supreme Court has held that the government must pay just compensation for total regulatory takings “except to the extent that ‘background principles of nuisance and property law’ independently restrict the owner’s intended use of the property.”  That’s all that was happening here.  There was evidence that the nuisance ordinance had been enforced against other residents, too, so the Riehls’ claim of disparate treatment failed as well.  Finally, there was no evidence that the city had enforced the tree nuisance ordinance against the Riehls as punishment for their voicing their views pursuant to their First Amendment rights.

 Just like everyone else in Rossford, the Riehls must keep their bushes and trees trimmed at their own expense.




Case of the Day – Friday, October 17, 2014


We liked our lunch at Jimmy John's, and didn't discover that we were really victims - not patrons - until more than a year later.

We liked our lunch at Jimmy John’s, and didn’t discover that we were really victims – not patrons – until more than a year later.

Last week, we learned that we had been grievously injured a year or so ago when we ate a Jimmy John’s sub sandwich in Winston-Salem, North Carolina.  Sure, at the time, the sub tasted pretty good, and we seem to recall that we left the place feeling like we had gotten our money’s worth.

Boy, were we ever wrong!  It turns out that we may have gotten a sandwich that may have been advertised as having alfalfa sprouts, but did not.  We don’t really remember what sandwich we ate, and if alfalfa sprouts were omitted (and if that had been important to us), we imagine we would have noticed.  No matter, we are members of a class of consumer harmed by high-handed chicanery, alfalfa sprout deprivation that shocks the conscience!

There’s much about the current class action lawsuit against Jimmy John’s that we don’t understand.  ccording to the information we’ve gleaned from the settlement documents, we’re maybe going to get a coupon for a free pickle, or maybe a bag of chips.  The lead plaintiff gets $5,000 for her trouble, and her lawyers get about $400,000.  Regardless of the amount of damages that may someday flow our way to heal our psyches, we were intrigued.  It made us wonder about causation and damages. And, of course, about trees …

America's right to alfalfa sprouts – vindicated by the majesty of the law.

America’s right to alfalfa sprouts – vindicated by the majesty of the nation’s legal system.

Back in the early days of the last decade, Georgia Power was building a new transmission line through some swampland. The utility mapped out an area in which, due to environmental considerations, trees had to be cut by hand instead of machine. The area was larger than the minimum required by law. While an employee of one of its contractors was cutting down trees, a branch fell from behind him and paralyzed him.

So what caused the injury? The fact the worker didn’t watch the trajectory of what he was cutting? Just bad luck? His employer’s lousy safety program? Maybe a sproutless sandwich from Jimmy John’s? Or was it the fact – as Rayburn argued at trial – that Georgia Power insisted more trees be cut by hand than the law mandated? Or maybe it was the fault of the consumers whose need for more electricity caused the building of the power line? Or maybe mainstream religion, for rejecting an Amish lifestyle that would eschew electricity?

You get the idea … when someone is badly hurt (and often when they’re not hurt at all), it’s good sport to look around for someone to blame, someone with deep pockets. But here, the Court refused to stretch the limits of causation unreasonably. And while not conceding that tree cutting was inherently dangerous, the Court nevertheless said in essence that the Plaintiff was a consenting adult, and he freely agreed to assume the risks.

pickle141017The lesson, kiddies, is this (and we don’t care what the slick lawyer’s ad on the back of your phone book says): Someone else doesn’t have to pay every time you get hurt. Here, have a pickle …

Rayburn v. Georgia Power Co., 284 Ga.App. 131, 643 S.E.2d 385 (Ct.App. Ga., 2007). Georgia Power set out to build a new transmission line. The coastal plain on which the power line was being built included wetlands and rivers. Because of Army Corps of Engineers concerns with destruction of wetlands, Georgia Power maintained a policy of clearing wetland buffers of trees by hand rather than with machines, which tended to tear up root mats and the ground. As well, the Georgia Erosion and Sedimentation Act required at least a 25-foot buffer to be cleared by hand on each side of a warm water stream, and at least a 50-foot buffer for trout streams, within which vegetation must be cleared by hand. In one case, a Georgia Power environmental supervisor specified a 50-foot buffer because the area was especially sensitive, but his assistant, an environmental analyst, marked in her notebook that they put 100-foot buffers on the stream. She set out flags showing the buffers. At some point, Georgia Power staff moved the wetland buffer to the edge of the right of way.

Caffrey Construction won a contract to clear timber, having taken into account that several areas in the project had to be hand-cleared. While working in a buffer zone, Rayburn was struck from behind by a limb from another tree. Rayburn sued Georgia Power, contending that the company’s negligence caused his injury. The trial court granted summary judgment for Georgia Power, holding that Rayburn’s injury was “the product of a normal risk faced by persons employed to cut down trees.” The court held that the decision to extend the buffer did not cause Rayburn’s injury, the cause of which was either his decision to cut down the tree in the circumstance presented, or else an unforeseen occurrence for which no one was responsible. The court also declined to find that tree-cutting is an “inherently dangerous” occupation or that Georgia Power directed the time and manner of Caffrey’s work. Rayburn appealed.

lawgold141017Held: Georgia Power was not responsible for Rayburn’s injury. The Court noted that the employer of an independent contractor owes the contractor’s employees the duty of not imperiling their lives by the employer’s own affirmative acts of negligence. However, the employer is under no duty to take affirmative steps to guard or protect the contractor’s employees against the consequences of the contractor’s negligence or to provide for their safety. This is especially true where a plaintiff has assumed the risk. An injured party has assumed the risk where he or she (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself or herself to those risks.

Here, Rayburn argued that Georgia Power owed him a legal duty not to expose him to unreasonable risks of harm by requiring hand-clearing in an area that could have been more safely cleared by machine, and that it breached this duty. He submitted evidence that clearing timber by hand is more dangerous than clearing it by machine. While state regulations only required a 25-foot buffer to be hand-cleared on each side of a creek, Georgia Power marked a buffer line more than 100 feet from the stream. Rayburn complained that, despite the option of a safer means of tree cutting, Georgia Power “directed that the work be performed by inherently dangerous methods in extremely hazardous conditions contrary to accepted construction industry standards.” Therefore, he argued, Georgia Power’s decision to hand-clear this section of property regardless of the danger to Caffrey’s employees should make it liable for his injury.

The Court held that notwithstanding all of this, Georgia Power could not have appreciated the dangers better than he did. The Court said that exposing someone to harm generates liability only when the person exposed does not appreciate the harm or is helpless to avoid it, which was not the case here. While Rayburn’s experts concluded that the working conditions were “abhorrent,” the Court said, none of the witnesses said that the conditions were out of the ordinary for that part of the state. If the contractor’s employees can ascertain the hazard known to the entity hiring the contractor, the contractor need not warn the employees of the hazard. Rayburn argued that, even if he knew the general risk involved in felling trees with a chain saw, he did not assume the specific risk that the particular branch that hit him would do so.

Chainsawb&w140225Rayburn was hired to cut trees. He had experience cutting trees. He testified that he observed the conditions and would have spoken to his supervisor if he thought they were unsafe. He already knew that cutting trees with a chain saw was hazardous, and therefore Georgia Power had no duty to warn him that he could get hurt by doing the job which presented hazards that he fully understood. He had actual knowledge of the danger associated with the activity and appreciated the risk involved.

Rayburn also argued that OCGA §51-2-5 made Georgia Power  liable for Caffrey’s negligence, because the work was “inherently dangerous,” and because it controlled and interfered with Caffrey’s method of performing the job. But the Court said the statute only makes an employer liable for the contractor’s negligence, and here, Rayburn has not established that Caffrey’s negligence led to his injury. Even if he had, Rayburn had not shown that Georgia Power retained the right to direct or control the time and manner of clearing the timber. Georgia Power’s on-site supervisor visited the property once or twice a week, but did not direct the Caffrey employees in how or when to do their jobs. The Court observed that merely taking steps to see that the contractor carries out his agreement by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable.






Case of the Day – Thursday, October 16, 2014


bikecrash141015Young Michael Rivera and his buddies were riding around, when one of them decided to cut off the sidewalk onto what could charitably be called a “beaten path” through some woods in the large Glen Oaks Village residential cooperative. Young Rivera was said to be an experienced rider, but this young BMX’er was no match for the big hole in the trail.   He fell and was hurt.  Then, of course, he sued.

That’s when the extreme lawyering commenced. The co-op argued that it was protected by the New York recreational user statute, because bicycling was one of the activities specifically mentioned in the law, and the trial was suitable as a bike trail. Not so, young Rivera’s mouthpiece claimed. The trail was just a path in the middle of a large residential community not designed for cycling.

The trial court, perhaps sympathetic to the young man’s crash found New York’s recreational user statute didn’t apply. But in an impressive piece of circular reasoning, the Appellate Division said that the trail was suitable for bicycling chiefly because Rivera and his buds were biking on it and other people had, too.

This reminds us somewhat of our mothers asking us whether we’d jump off a cliff just because our friends did, too. Anyway, shaky reasoning or not, the Appellate Division did justice to the intent of the recreational use statute: to protect landowners from liability when they make unimproved land available for the use of, as the Court put it, “recreationists.” The dictionary says it’s a good word, and the outcome in this case is probably a good result.

cliff141015Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.3d 817, 839 N.Y.S.2d 183, 2007 N.Y. Slip Op. 05718 (N.Y.A.D., 2007). Rivera and two of his friends went bicycling on a dirt trail located in a two-acre wooded area, which was part of a large residential cooperative community. The trail was 500 feet long and 10 feet wide, and “bumpy.” After traveling about 30 to 40 feet on the trail, Rivera came upon a 2 x 3’ hole in the ground. Rivera was unable to avoid the hole, and his front wheel went into the hole, causing him to be thrown over the bicycle’s handlebars and into the hole. He only saw the hole “maybe a second” before he fell into it. As a result of his fall, Rivera was injured. His family sued the owner of Glen Oaks Village Owners, Inc., the residential cooperative community, to recover damages. The trial court denied Glen Oaks’ motion for summary judgment, made on the basis that the New York recreational use statute applied and that the youth had assumed the risk of injury. Glen Oaks appealed.

Held: The case was reversed. The appellate court found that New York’s General Obligations Law §9-103, commonly known as the recreational use statute, applied to this case. The Court said that the sole purpose of the statute was to induce property owners – who might otherwise be reluctant to do so for fear of liability – to permit persons to come on their property to pursue specified activities. In return for opening up their lands for public use, property owners are provided immunity from liability. The statute applies whenever a user engaged in one of activities identified in statute, and he or she is recreating on land suitable for that activity. The requirement that property be physically conducive to a particular recreational activity — for purposes of determining whether a landowner is protected by the statute against claims of ordinary negligence — is satisfied when the property is the type which is not only physically conducive to a particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation.

bikecrashb141015The Court ruled that this so-called suitability test was a question of statutory interpretation and, therefore, a question of law for the court. The Court said that a substantial indicator that the property is physically conducive to a particular recreational activity is whether recreationists have used the property for that activity in the past. Such past use by participants in the sport manifests the fact that the property is physically conducive to it. Here, the recreational use statute applied to Rivera’s bicycle riding on dirt trail in large residential cooperative community because bicycling was an activity included in statute, and the trail was physically conducive to bicycling. Rivera’s use of the dirt trail — as well as the use by his friends — and the physical characteristics of the trial, established that it was physically conducive for bicycling.

The Court rejected Rivera’s claim that the fact that the trail was in the middle of a large private residential cooperative community rendered it unsuitable for bicycling. It held instead that the recreational use statute should be applied liberally to public and private land, to rural or urban property, whether developed or undeveloped.





Case of the Day – Wednesday, October 15, 2014


swinger140320Sounds like a Craigslist come-on, doesn’t it? But morals weren’t loose here, just one of the fittings on a swingset.

A little boy and his father were at a Salt Lake City park, where the boy was swinging on a “toddler swing.” He fell and hit his head on a concrete lip surrounding the swing.

His father sued the City for negligence — after all, he couldn’t get jurisdiction over Sir Isaac Newton to sue for negligent gravity — and the City raised as a defense the Utah Limitation of Landowner Liability-Public Recreation Act. That mouthful of an act is Utah’s recreational user statute, and was intended to encourage public and private owners to open unimproved parklands to the public without charge by protecting them from liability for natural conditions.

The trial court made short work of Dad’s lawsuit, holding that he was a non-paying user of the facilities and that the City thus owed his son no duty of care. But on appeal, the Utah Supreme Court reversed. The Supreme Court held that the City hadn’t opened the park in response to the legislature’s encouragement. Rather, the park was opened long before the recreational user statute passed. The governmental immunity act already permitted suing for a city for negligence because of conditions in the park.

The Utah Limitation of Landowner Liability-Public Recreation Act was not intended to apply to an improved city park already covered by other laws. Plus, the Utah Supreme Court said, despite the patchwork of decisions across the country as to what was improved and what was not improved land, it appeared that an improved city park — one that included a swingset apparatus like the kind on which the boy was injured — took the city park outside of the protections of the Utah recreational user statute.

An inherently dangerous undertaking?

An inherently dangerous undertaking?

This may seem to be a great win for a poor little kid with a concussion, but not much attention is paid to the losers. Those would be the taxpayers who fund the settlement that’s sure to follow, as well as everyone who will have one less place to go when the City – flummoxed by the confusing state of the law – finds it easier and cheaper just to close the parks.

De Baritault v. Salt Lake City Corp., 913 P.2d 743 (1996). Young Marc De Baritault was on the toddler swing at Laird Park is a city-owned park located in Salt Lake City. He fell and injured his head on a concrete ridge surrounding the play area.

His father sued on his behalf, arguing that City had designed, constructed and maintained the playground negligently. The City argued that because the boy was a recreational user of public lands held open without charge to the general public, the City had no duty toward him under the Utah Limitation of Landowner Liability-Public Recreation Act.

De Baritault argued the Act didn’t apply because its purpose was to encourage private landowners to open up their lands for public use. Although the Act was amended in 1987 to apply to both public and private landowners, De Baritault maintained the Act didn’t apply to Laird Park because the City had not opened the park in reliance upon the Act.

The trial court granted summary judgment on the grounds that Marc was a nonpaying recreational user of Laird Park, and that under the Act, Salt Lake City owed no duty of care to the boy. The court also concluded that there was no evidence of deliberate, malicious, or willful conduct by the City, which would have resulted in liability under section 57-14-6 of the Act.

De Baritault appealed.

Held: The Act did not protect the City. The Utah Supreme Court held that the Utah Limitation of Landowner Liability-Public Recreation Act did not apply to a small, improved city park, and thus, did not preclude Marc’s recovery for his injuries. The Court held that extending the Act’s application to improved city parks which, unlike many private wilderness lands, were not opened to the public in response to the Act, and which were already covered by other laws – such as the Governmental Immunity Act – would serve neither the legislative intent nor the purpose of the statute.

In Utah, courts that have focused on the nature of the land itself have found some combination of following characteristics must be present before immunity under the recreational use statute applies: the land must be (1) rural, (2) undeveloped, (3) appropriate for the type of activities listed in the statute, (4) open to the general public without charge, and (5) the type of land that would have been opened in response to the statute.