Case of the Day – Monday, January 23, 2017



One of the many badges that marks us as curmudgeons, according to a recent book, is our preoccupation with proper language. It irritates us no end when people say “irregardless” when they mean “regardless,” say “affect” when they mean “effect,” or use “like” every third word or so. And don’t get us started about made-up nonsense like “Mx.” As far as we’re concerned, “MX” will always be a missile program.

But what metaphorically drives us batty is the casual and improper use of the word “literally.” The word means “actually” or “without exaggeration.” Believing as we do that the widespread devaluation of like every corner of the English language is like literally going to send us to hell in a handcart, we were surprised to see that today’s case ­– well over 50 years old – featured a witness describing “literally thousands of bees inside the trunk” of the decayed tree.

We were fascinating that, with such a swarm pursuing him, the witness took the time to count the bees, at least until he passed 2,000. That took nerves of steel. Literally.

Beyond our disquiet over the witness’s imprecise and flawed language, we were interested in the application of both Hay v. Norwalk Lodge No. 730, B. P. O. E., 92 Ohio App. 14, 109 N.E.2d 481 (Sup.Ct.Ohio 1951) and Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231 (3rd Cir. 1951). While those decisions, which we’ve discussed in recent posts, related to injury to passing motorists, the court here couldn’t see any practical difference between the landowner’s duty to a motorist and to a parked car. Furthermore, it found that the tree was so obviously dead and dangerous that the landowner was chargeable with knowing about its condition, although he’d only owned the property for a few weeks.

How many bees? Literally thousands ...

How many bees? Literally thousands …

The court said that a few weeks was not so legally insufficient a period time for him to have gotten over and inspected the place that the factfinder was wrong for finding him liable.

The trend here is clear: the law was moving toward holding that a property owner had an affirmative duty to inspect the land. Actual or constructive knowledge wasn’t enough. The absentee owner should have done a drive-by, the court decided by implication. And thus, the evolution of a requirement that an owner affirmatively care for his or her property continued.

Turner v. Ridley, 144 A.2d 269 (Ct.App.D.C. 1958). Turner owned a house facing a street on which automobiles were regularly parked. The small front yard featured a single large tree. On a fall evening, Ridley’s friend parked Ridley’s car at the curb in from of Turner’s house. Early the next morning, with no inclement weather to blame for the event, the tree toppled and fell across the sidewalk, striking Ridley’s car.

At the time the tree fell, according to the man who had parked Ridley’s car – a man named Reid ­–the tree ‘was rotten and looked like it was dead and had very few leaves on it.’ and on the night before it fell he had remarked to a friend ‘that tree looks like it is going to fall some day.’ The tree in falling broke off even with the ground, and then it was observed that the tree was hollow and badly decayed with ‘literally thousands of bees inside the trunk.’

Turner testified he had purchased the property through an agent at a foreclosure sale a month before the mishap, that the property had been vacant since he purchased it, that he had never seen the property or the tree, and that he had no notice or knowledge that the tree was in a dangerous or rotten condition. The trial court awarded judgment to Ridley for the damages he sustained.

Turner appealed.

Held: Turner was liable for the damage to Ridley’s car. While prior cases diverge somewhat, the Court found the Ohio decision in Hay v. Norwalk Lodge No. 730, B. P. O. E., instructive, holding that “an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway.”

Knowledge could either be actual or, as held in Brandywine Hundred Realty Co. v. Cotillo, constructive, “if such condition was known or by the exercise of ordinary care could have been known by the defendant.”

The car was the first casualty ... but not the only one.

The car was the first casualty … but not the only one.

The Court admitted that Hay and Brandywine dealt with personal injuries to travelers on the highway, but it observed that there is “no distinction in principle between the case of personal injury to one lawfully traveling on a highway and the case of property damage to a vehicle lawfully parked on the highway.” The issue was whether the owner – who had only owned the property for a few weeks and who had never seen it before – could be charged with constructive knowledge of the tree’s condition. There was no question that the tree was obviously dangerous and quite dead. The Court acknowledged that “[a] three-week period is no great length of time, but we cannot rule that such period was legally insufficient time for appellant to look over his property and observe the condition of the tree and take steps to prevent its fall. We think the evidence presented a factual question as to notice and lack of care.”

“Hard cases are the quicksands of the law,” as an old maxim put it. Here, the intersection of an absentee owner, an obviously defective tree, a fairly minor damage bill, a colorful witness and lack of any defense by Turner, combined to bring about a holding that imposed additional duties on a landowner.


And Now The News …



forestmap170123Woodworking Network, January 22, 2017: Forest Service counts 96.6 billion trees in latest tally of U.S. forests

Trees outnumber people 300 to 1 in the United States, with woodlands covering one-third of the country in the U.S. Forest Service’s latest census. Only trees at least 5 inches in diameter are counted in the U.S. Forest Service Forest Inventory and Analysis National Program, which has continuously counted the forest population since 1930. An acre with at least 10 percent tree canopy qualifies are a forest for purposes of the census, reports Jo Craven McGinty in the Wall St. Journal. Dennis May, a U.S. Forest Service program manager, tells McGinty the census was established to answer the question, “Are we wisely using the forest without impacting its health, condition and stature.” The U.S. exported $8.7 billion in forest products in 2016 – lumber, paper, logs, veneer, pulp, wood pellets, casegoods and other items – putting the sector right up there with soy beans and corn…

Ft. Lauderdale, Florida, Sun-Sentinel, January 20, 2017: How a Delray Beach neighborhood worked together for the sake of one tree

At the edge of a short dead-end street, at the bottom of a hill in the city of Delray Beach, a sausage tree grows 30 feet high, with red blossoms, green leaves and thick, sturdy vines. It’s African in origin, ornamental to boot, a home for birds and iguanas, growing long oval fruit. Michael Sebastian owns more than an acre and has plans to build homes. So he needed the street to continue, right through the tree. But all of the eight homeowners who live on the block want to see the tree live, preferably in the same spot. “The tree should never have been there in the first place,” Sebastian said. It sits on top of sewer lines and in the path of the road. It was improperly planted and the city planned for the street “years and years ago,” he said. But Sebastian isn’t the “big, bad developer” some residents see, he said. He’s an avid nature photographer and at first didn’t want the through-street, he said…

ukvandal170123London, UK, The Sun, January 22, 2017: Mystery tree chopper fells 200 ancient beeches leaving environment chiefs ‘devastated’

A MYSTERY tree feller chopped down around 200 ancient beeches – leaving horrified environment bosses stumped. The hedgerow beeches are thought to be around 150-200 years old and their felling has been called “devastating”. Inspectors were visiting countryside in Blackwood, near Caerphilly, South Wales, when they came across a field of the stumps. Natural Resources Wales have launched an investigation into the felling, and have said anyone wanting to chop down so many veteran trees would need a license…

Elyria, Ohio, Chronicle-Telegram, January 22, 2017: Lorain Council, residents view tree conditions at park

A small crowd walked through Oakwood Park on Saturday afternoon to see and hear about the condition of the trees that are slated to be removed. Safety-Service Director Dan Given said he called the meeting as a way for City Council and residents to see that many of the remaining trees are past their useful life as they get closer to 100 years of age. Parks and Recreation Crew Leader and city arborist Mark McIlwaine said the pin oaks throughout the park have a similar lifespan to that of a human — anywhere from 70 to 100 years — but there’s no way to tell when the end will actually come. “Just because you don’t necessarily see rot in the trunk when you cut a tree down, doesn’t mean it’s not getting ready to die,” he said. “If the tree is leaning or if you can see rot in the branches, that’s a pretty good indication that the process has already begun though…”

advocate170120San Jose, California, Mercury-News, January 19, 2017: Landmark old-growth Advocate Tree felled by storms

The Advocate Tree, a 1,000-year-old landmark redwood tree in the Forest of Nisene Marks State Park, was toppled by last week’s storms. On Monday, hikers clambered over a slick log jam in Aptos Creek to pay their respects to the 260-foot goliath, which lay broken into several monumental pieces. A bouquet of red roses rested on the tree’s 40-foot-tall root ball. “This was my favorite tree. I used to come here all the time,” said Eric Chitwood of Aptos, who had brought his children and their friends out to see the fallen redwood. The Advocate Tree grew at the bottom of a steep slope on the Old Growth Trail, roughly half a mile from the state park’s entrance station parking lot…

Green Bay, Wisconsin, WGBA-TV, January 19, 2017: Family won’t take down Christmas Tree while the Packers are winning

A Green Bay family is keeping their Christmas Tree up while the packers are winning. Tyler and Hilary Krueger put the tree up the weekend the Packers beat the Eagles on November 28th. Since then team has won eight straight games. “We’re as confident as we were last week. This a magical season and as long as the magic tree is up, the packers will keep it up,” said Tyler Kueger…

pecan170120Austin, Texas, Monitor, January 19, 2017: Developer, city arborist agree on heritage tree removal

In a rare exception to the city’s 95 percent preservation rate for heritage trees, the Planning Commission approved staff’s recommendation of a variance during its Jan. 10 meeting that would permit applicant Stantec Inc. to remove two heritage trees in order to construct a new hotel at 400 Josephine St. In fact, the applicant plans to remove a total of five heritage trees, but the other three do not have any stems greater than 30 inches in diameter, so their removal can be approved administratively by the city. The other two heritage trees, pecan trees #908 and #919, are large enough that a variance was required. Zach Hunter, the landscape architect on the project, said that multiple building layouts were drafted to determine which design would have the least harmful effect. “The layout that we have affects the two trees that we found to be in the least healthy condition,” he said at the meeting…

Angus, Scotland, BBC, January 19, 2017: Man killed felling tree was ‘a genuine tragic accident’

The death of a man killed when he was crushed by a tree he was cutting down has been ruled “a genuine tragic accident” by a sheriff. John Phillips died aged 29 on land in Angus owned by the family of his life-long friend, David Cochrane. The two men were felling trees beside a road at Auchindorie Farm, near Kirriemuir, on 14 March, 2013 when the incident happened. Sheriff Gregor Murray said that the accident “could not have been avoided.” In a written judgement following a fatal accident inquiry last December, Sheriff Murray said: “Self-evidently, tree felling is an inherently dangerous process…

bugs170119St. Paul, Minnesota, Pioneer Press, January 17, 2017: Cabin-owner alert: Chinese-made log furniture has bugs

Rustic log furniture imported from China into Minnesota and Wisconsin has been found to be infested with invasive insects that could damage native trees. Both states’ agriculture departments on Tuesday confirmed multiple incidents of two different species of Chinese bugs hitchhiking on rustic, whole-log furniture in 2016. The brown fir beetle was found in rustic pine log furniture imported from China, while the velvet longhorned beetle was discovered in rustic walnut log furniture, wrongly described as hickory, also from China. “We’ve had invasive insects imported into the state in other material, but this is pretty much a first with furniture,” said Mark Abrahamson, an entomologist with the Minnesota Department of Agriculture…

Oxford, Mississippi, Eagle, January 18, 2017: Tree farmers center of landscape ordinance discussion

As the city of Oxford continues to eye land further out in Lafayette County for annexation, city leaders are being met with obstacles on how much to require large landowners to meet current city ordinances dealing with tree removal and mitigation. Before the Oxford Board of Aldermen voted on approving an amendment to the city’s Landscaping and Tree Preservation code during Tuesday’s regular board meeting, Mayor Pat Patterson brought up a concern shared by himself and Alderman John Morgan in regards to tree farmers, who are currently outside of city limits, and the kind of hardships they could encounter if annexed into the city…

pawpaw170119Appalachian Magazine, January 18, 2017: America’s forgotten fruit tree: The Appalachian Banana

It’s difficult to even begin to comprehend the amount of mountain knowledge that has been lost over the past half-century in the hills of Appalachia — so many of the basic skills for simply surviving have vanished with the dying off of our region’s old timers and many fear we have lost basic skill sets that will take generations to re-learn. Today, very few people living in the mountains of Appalachia even know how to identify sassafras, let alone make it into a tea. Same thing goes for a dozen other effective home remedies that are now ancient history, tucked away in some dusty book one seldom reads. One of the greatest losses of mountain knowledge over the past generation is, in my opinion, how our country simply forgot about what was once upon a time its favorite fruit tree: The Paw Paw. The largest edible fruit to grow in the United States, the paw paw was often referred to as “the poor man’s banana” and is native to 26 different states…

Chattanooga, Tennessee, Times-Free Press, January 17, 2017: Tree trimmer falls to his death off Signal Mountain bluff

Emergency responders on Wednesday afternoon recovered the body of a man who fell to his death while trimming trees off the side of Signal Mountain earlier in the day. Shortly before 3 p.m., a team of firefighters and rescue personnel could be seen from the road near the east-facing bluff, working together to hoist the body with a rope system at the scene in the on Forest Park Drive. Four men heaved solemnly on the rope between the trees, walking several yards back through the woods until the body had been pulled high enough to carry it to a nearby ambulance. Recovery efforts were underway by early afternoon after an employee of Big Woody’s Tree Service reported at 11:22 a.m. the man had fallen about 150 feet while working on private property, according to a news release…

bermuda170118Hamilton, Bermuda, Royal Gazette, January 17, 2017: Look after your tree, it will grow on you

Trees: we often take them for granted, without any thought of their value and usefulness. They are found on the coastline, along roads in woodlands and, of course, our gardens, and yet do we ever stop to think how and why they got there and what is their purpose? Trees improve spaces by bringing aesthetic value, especially in areas of hard landscaping; they delineate spaces of differing use. They can assist in circulation and guide movement in both vehicular and pedestrian areas, to inform direction and destination. In Bermuda, they are ideal for giving shade. The main factors to consider when selecting trees are location, reason for planting and type of tree. Most properties do not have the area of land for planting medium or large trees; only larger properties and open spaces have the capacity to accommodate such species. Trees around buildings are likely to cause problems, especially from the extensive root zones found on trees. The “rule of thumb” is that they equal the top growth at the drip line of foliage. Pruning back branches does nothing in prohibiting root growth, so the exercise is a waste of time…

Greenville, S.C., News, January 17, 2017: Outdated landscape practices

Landscape practices and techniques evolve over time. I remember back in the Dark Ages when I first got my feet wet in the glorious world of landscaping, old timers were full of advice for me about the best way to do things. Some of these ancient practices are tried and true, and are some of the best methods ever devised for successful gardening. However, time has proven that other of these practices have turned out to be somewhat less than desirable. Take pruning paint, for instance. Apparently, sometime back in the forties, it was the rage to paint all your pruning cuts with a black tar-like sealer. I’m only guessing this ancient practice began in the forties. Believe it or not, I wasn’t even born then. I suppose this practice began in the forties because in the seventies literature began to appear in scientific publications that pruning paint provided no benefit. However, to a young twenty-something way back then, old timers who learned their techniques in the forties thought that it was sacrilegious to make a pruning cut without applying a liberal dose of tar to the wound. The argument was that pruning paint would seal the cut and keep insects at bay…

tree170118Lincoln, Nebraska, Daily Nebraskan, January 17, 2017: UNL creates strategy for tree infestation

UNL’s City and East campuses have a combination of 9,000 trees—368 of which are ash trees. That population is in danger of the Emerald Ash Borer, a beetle that has infested ash trees across the country since 2002 and now poses a threat to ash trees in Nebraska. “It’s a discreet little insect; it’s not something that you’ll see everywhere,” said Jeff Culbertson, assistant director of operations in Landscape Services. “The damage done to the trees takes some time, it doesn’t happen overnight. It’s kind of a slow death for the ash. In preparation for that, we’ve come up with a plan.” Culbertson has aided the university in developing a strategy to deal with this issue. Initially, the university plans on using insecticide on 10 percent of the ash trees on campus, Culbertson said. After that comes taking a look at the remaining population…

Discover Wildlife, January 17, 2017: Does tree sap freeze?

When water freezes it expands, so ice formation within the confines of a tree trunk is potentially lethal. Tree heartwood, formed from annual rings of water-transporting xylem, is made of dead cells, and water can freeze within these without fatal damage (though in extreme conditions ice expansion has been known to split trunks). The real hazard comes from water freezing in the narrow zone of living cells that lie just below the bark, and are essential for the tree’s survival and regrowth in the spring. Each of these cells has a rigid, dead wall enclosing a bag of living sap that’s confined within a delicate membrane…


Looking for an older news story we featured on this page? Check our Prior News Links page.


Case of the Day – Friday, January 20, 2017


Lesprit140422Ah, l’esprit d’escalier! Those biting, snappy comebacks we wish we had said at the time. You know, those retorts that sound like Donald Trump’s tweets.

Today’s case is about something akin to that, not rapier ripostes, but rather one of those rather important contract terms — how long the multi-year agreement would last — that both parties kind of wished they had discussed at the time they first made their deal.

And maybe one of them did. To be sure, each probably had what is today called an “exit strategy” in mind. But neither brought it up. And what’s worse, nothing was in writing on the parties’ joint venture to raise and harvest peaches. Samuel Goldwyn was right when he observed that “a verbal contract isn’t worth the paper it’s printed on.”

What’s surprising is that their verbal deal lasted as long as it did. Invariably, however, problems ensued. When Miami Valley Fruit Farm wanted to terminate the deal after about 20 years, Southern Orchards protested that the length of the venture was for the useful life of the trees, meaning that the deal would go on until the trees were worn out. It sort of turns the old Stripes line on its head: you can’t go … until all the plants die.

The Court agreed, because that was the only interpretation that made sense to it. You see, without a contract in black and white, everything was pretty gray. Think of how much they saved on lawyers by not writing up a detailed contract. Probably less than 5% what they spent litigating the issue 20 years later …

verbalk140422Miami Valley Fruit Farm, Inc. v. Southern Orchard Supply Co., 214 Ga.App. 624, 448 S.E.2d 482 (Ga.App., 1994). Southern Orchard Supply Co. and Miami Valley Fruit Farm entered into an oral agreement whereby Miami Valley, which owned the 295 acres of land, purchased peach trees, and Southern Orchard planted, cultivated and harvested the trees. Under the agreement, which has been in effect about 20 years, the parties equally divided the net profits from the sale of each year’s peach crop.

After the 1993 peach crop was harvested and sold, Miami Valley told Southern Orchard that it was terminating the oral agreement and that Southern Orchard would not be allowed to cultivate and harvest the 1994 peach crop. Southern Orchard sued for an injunction, arguing that it had made substantial investments in the planting and cultivation of the peach trees and in equipment and packing facilities based on the mutual understanding of the parties that the agreement would continue for the “economic life” of the peach trees.

The evidence showed that after a peach tree orchard is planted, the trees have to be cultivated for years before they mature enough to bear fruit and begin to produce profitable, full crops. Once mature, the trees have an “economic life” for an indefinite period of years, during which they produce profitable crops each year until their fruit production declines to the point where they are no longer profitable and new trees must be planted. The “economic life” of the trees varies based on factors such as the variety of the peach and cultivation techniques. The trees at issue still had years of “economic life” remaining.

Southern Orchard argued the agreement had to last for the “economic life” of the trees in order to provide for recoupment of its expenses. Miami Valley argued there was no agreement between the parties for any specific duration of the contract, that the parties considered the agreement to run from year-to-year, and that in any event the “economic life” of a peach tree could not provide the agreement with a definite term since the duration of the life cannot be determined with any degree of certainty. Accordingly, Miami Valley argued it had the right to terminate the agreement.

The trial court held that there was an enforceable oral contract for Southern Orchard to cultivate and harvest the peach trees on the land at issue for the “economic life” of the trees, and because Southern Orchard had no adequate remedy at law for the breach of the agreement, the trial court could grant injunctive relief, ordering Miami Valley not to interfere with Southern Orchard’s performance of the agreement for the 1994 peach crop. Miami Valley appealed.

stitch140422Held: The injunction against Miami Valley is upheld. The Court of Appeals held that the question as to the length of time the contract remains in force is governed by the circumstances of each particular case. Here, the Court said, evidence showed that the parties intended the employment contract to continue for more than a single crop season. Considering the particular circumstances and expenses incurred to plant, cultivate and harvest the peach trees, the Court found, the parties agreed that the employment contract would continue for as long as the trees produced reasonably profitable crops, the “economic life” of the peach trees.

The old aphorism that a “stitch in time saves nine” is worth recalling here. A little consideration to all of the material terms of the agreement at the outset – maybe a few bucks spent on a lawyer whose forte is thinking about all the “what ifs” that the parties aren’t considering ­– would have saved a lot of time and expense two decades down the road.


Case of the Day – Thursday, January 19, 2017


prison151202Funny we should be mentioning dishonorable discharge today, on the heels of President Obama’s commutation of sentence for former Army Private Chelsea Manning. Speaking of “formerly,” when Manning was sentenced, he was a boy named Bradley. Now he’s a girl, just one who happened to steal about three quarters of a million military and diplomatic files. But Manning’s sorry. This is a nation of second chances.

Our topic today is another institution built on second chances, bankruptcy. Bankruptcy is one of the important developments of our modern society, a means to give people who have made a lot of financial mistakes a fresh start. You’d be surprised who’s gone down. P.T. Barnum went banko, and then got into the circus business. Walt Disney got wiped out in bankruptcy, losing his Laugh-o-Gram business. He went to Hollywood and got into animation. For that matter, with Donald Trump becoming president in a little more than 24 hours, the old Boffin of Bankruptcy himself (four times to the courthouse for companies he controlled) will join august company. Abe Lincoln went bust in 1833. Ulysses S. Grant was financially embarrassed after he left the presidency, and wrote his memoirs to pay off the debts. Harry Truman’s haberdashery failed, and it took him years to pay off his creditors (he refused the dishonorable but efficient bankruptcy route).

There are those who persuasively argue that American bankruptcy laws encourage the kind of risk-taking that benefits the economy. Nevertheless, it’s not all roses: some try to take advantage of the bankruptcy laws. The statutes provide a protection against bad apples wanting to use bankruptcy to regain undeserved polish. We’ll look at one such bulwark today, the Act’s prohibition against debtors discharging debts resulting from willful and malicious injury to someone else.

busted151202The difference is important. A debtor who injured someone else because he or she negligently ran into that someone’s tree with a car could have the debt discharged. But if he or she deliberately came on someone else’s land, for example, to cut down a Christmas tree and carry it home, the debt that misconduct represented would not be forgiven.

Sometimes the line isn’t that clear, such as in today’s case. The debtor, Ken Harper, got sued because when he had 47 acres of his own timber harvested, the crew he hired also harvested trees on 30 acres belonging to his neighbor. A state court jury had found him liable for trespass and conversion of timber, and had awarded punitive damages and treble damages. The Bankruptcy Court found that the debt couldn’t be discharged, because trespass was an intentional tort (in that the trespassing party intended to go where his feet took him, whether he knew it was his neighbor’s land or not) and because timber conversion required a willfulness to exercise ownership over the property (whether or not the actor knew it was someone else’s to begin with).

fico151202As for the maliciousness of the injury, the Bankruptcy Court found that it was enough that the state court jury had assessed punitive damages against Harper. The jury couldn’t have done that, the Bankruptcy Court said, unless it was clear that Harper knew his conduct was likely to cause harm. And as for the treble damages, the Court said, those are part of the judgment, and those aren’t dischargeable either.

Harper151202In re Harper, 378 B.R 836 (Bankr. E.D.Ark., 2007). Ken Harper owned Real Estate Development, Inc. (“REDI”). REDI bought about 47 acres of land from Quadrangle, leaving Quadrangle with about 1,200 acres of land surrounding REDI’s purchase. REDI hired Arkansas Timber & Logging to log timber on REDI’s land. On or about the same time that this logging occurred, Arkansas Timber logged several acres of Quadrangle’s property. Quadrangle sued Harper, REDI and Arkansas Timber for trespass and malicious conversion of timber on 30 acres, asserting that Harper hired Arkansas Timber to cut timber on REDI’s own lands, and that this agreement became a collusive effort to harvest and convert timber from Quadrangle’s land.

The jury did not find that the defendants acted in collusion, but it did return a verdict finding that Harper was guilty of trespass and conversion. The jury was instructed that trespass required that the defendants be found to have intentionally entered Quadrangle’s property. It held that Harper continued his trespass conduct with malice or in reckless disregard of the consequences, or that Harper intentionally pursued a course of conduct for the purpose of causing injury or damage. Quadrangle was awarded compensatory, treble and punitive damages against Harper, who went bankrupt without paying the judgment.

Quadrangle filed a complaint in the bankruptcy to determine whether Harper could discharge its judgment against him in bankruptcy.

pig151202Held: The judgment could not be discharged in bankruptcy. Quadrangle argued that the judgment obtained against Harper was nondischargeable under 11 U.S.C. § 523(a)(6) as a debt for a “willful and malicious injury by the debtor to another entity.” Here, the issue was whether Harper’s actions constituting trespass and conversion of timber were willful and malicious, as required to except a debt from discharge under § 523(a)(6).

Quadrangle argued that the jury instructions, jury questionnaire and judgment supported a finding of willful and malicious injury on their face. Harper argued that the mens rea requirement of intent was missing from the state court proceeding, and the issue should be tried in the bankruptcy court. The Court said that a “willful” act was “deliberate or intentional,” and the “willful” element is satisfied if the injury is the result of an intentional tort. The malicious element is satisfied if, in committing the intentional tort, the perpetrator intended the resulting harm, or the harm was substantially certain or nearly certain to result. In this case, the Court said, the jury instructions regarding trespass and conversion clearly established that the element of willfulness was presented to the jury. The jury instruction regarding the intent necessary for a finding of trespass specifically stated, “[t]he intent necessary to commit a trespass is that to be on a particular piece of land that does not belong to you.”

With respect to conversion, the jury was instructed that Harper must have had the “intent to exercise dominion or control over the goods that is in fact inconsistent with Quadrangle’s rights.” Finally, the jury instruction for “malicious conversion of timber” requires a finding that the Debtor “acted with intentional and deliberate disregard for the plaintiff’s property rights.” All of these standards describe a willful injury, the Court said, the purposeful invasion of another’s legally protected interests. As well, trespass and conversion are considered intentional torts under Arkansas law, and are therefore willful acts. The Bankruptcy Court found that the jury’s findings with respect to trespass and conversion established that Harper’s actions were willful, but not necessarily malicious. But because the jury awarded punitive damages — that the action was taken with either the intent to cause harm or with the knowledge that harm was substantially certain to occur — it was clear that the likelihood that Harper knew that harm was substantially certain to occur as a result of his intentional actions, was decided by the jury.

Although Harper argued that the treble damages were dischargeable, the Supreme Court determined that treble damages are encompassed by the term “debt” as it is used in the Bankruptcy Act.


Case of the Day – Wednesday, January 18, 2017


newspaper140421The year 1929 ended badly for a lot of people, with the stock market crash wiping out millions. It started just as badly for one Lou Cotillo (not to be confused with Lou Costello), when a chestnut tree on suburban land being developed by a real estate firm crashed onto the road. Under the spreading chestnut tree was Mr. Cotillo’s car, which, unfortunately enough, contained him and a passenger.

It turned out the chestnut in question, a rather big specimen, had been dead for a few years. However, the Court noted, “beyond its deadness, [it] bore no exterior evidence of decay.”

Deadness? Is that even a word?

Maybe not, but the jury had little trouble determining that the tree’s obvious “deadness” made the real estate developer liable for the accident. Brandywine appealed, arguing that the trial court should have taken the case away from the jury and thrown it out. It argued that, as a matter of law, it wasn’t liable for the results of a tree’s natural condition (that is, it’s “deadness”).

Applying what little Delaware law the United States Court of Appeals for the Third Circuit could find, the appellate panel upheld the jury verdict. The Court held that responsibility for an owner’s property is one of the burdens of ownership, and, as a landowner has the right to enjoy his property unhampered by the actions of his neighbor, his neighbor – ­whether a landowner or a highway traveler ­– is similarly entitled. The trial court told the jury that Brandywine had a duty to keep its property from being a source of danger to the travelers on the highway “to the extent that reasonable care can guard against” the danger. The jury decided that Brandywine had breached its duty. Game, set and match.

This case was an early decision in the general trend of imposing a duty of reasonable care on non-rural landowners. The issue in negligence cases such as this one is always the nature of the duty owed by the defendant. Defendants – such as Brandywine Hundred Realty in this case – want the duty to be as minimal as possible – where plaintiffs want the jury charge to describe a duty of the first water. From the “trees will be trees” laissez faire approach of the 19th century, where owners generally had no duty whatsoever to protect passers-by from hazardous trees, to a modern view that while not guarantors of their trees, property owners had a duty to correct problems of which they had actual or constructive knowledge.

chestnutdown140421Brandywine Hundred Realty v. Cotillo, 55 F.2d 231 (3rd Cir. 1931). On a dark winter night in January 1929, Mr. Cotillo and a passenger were driving forested suburban land owned by Brandywine Hundred Realty, Inc. A chestnut tree, standing about 10 feet from the road, fell suddenly, crushing Mr. Cotillo’s car and killing his passenger. The tree had been dead for four years, but, “beyond its deadness, bore no exterior evidence of decay.”

Cotillo sued, and the case went to trial. The real estate company asked the judge to take the case from the jury and find in its favor as a matter of law, because the natural condition of the tree caused the accident, and it had no duty to Mr. Cotillo. The judge disagreed, and instead told the jury that Brandywine had a duty to exercise reasonable care in the use of its property, so as not to harm neighboring landowners or motorists. The jury found for Mr. Cotillo.

Brandywine appealed, arguing that the trial court had misdefined its duty.

Held: The trial court was correct in its definition of Brandywine’s duty. The appellate court said that “[a]fter all is said and done, this case turns on the application of the time honored principle of law, ‘sic utere tuo ut alienum non laedas’–so use your own as not to injure another.” It held that Mr. Cotillo had a right to use the highway, and that Brandywine had the duty “to so use his property on his own land that it shall not cumber the highway and endanger the safety of those using it …” It agreed with the trial court’s charge to the jury that “ the owner of property abutting on a public highway is under a duty to keep it from being a source of danger to the public or to the travelers on such highway, to the extent that reasonable care on his part can guard against.”

Negligencedef140421The Court of Appeals also concurred that the fact the tree had died of natural causes, rather than because of Brandywine’s conduct, had no effect on the realty company’s duty. Regardless of how the tree ended up in a condition of “deadness,” if its deadness was known by Brandywine or could have been known “by the exercise of ordinary case … then it became the duty of the defendant to exercise reasonable care and diligence to prevent the tree from falling and injuring those who might have occasion to use the public highway.”

Thus, the question of Brandywine’s alleged negligence was for the jury to pass upon. It did so, and found negligence. The Court found no basis for disturbing that finding.

As for “deadness” as a word – the dictionaries give the Court a pass on it, but as far as we’re concerned, the jury’s still out on that one …

The dismissal of this ridiculous suit was upheld.


Case of the Day – Tuesday, January 17, 2017


bikefall140418All right, time to work off our over-indulgences of the holidays (turkey, stuffing, pumpkin pie, college football, and too much champagne on New Year’s Eve). Time for sober reality (yeah, we mean the Inauguration).

We’ll start with a simple warm-up – considering two dumb adult stunts. The first stunt was Tom Alexson’s ill-advised decision, when he saw a tree branch laying on his bike path, to ride by and smoothly push it out of the way with his hand as he passed. Kids, please don’t attempt this at home! Of course, it didn’t work, and he crashed into and over the limb, hurting himself badly.

The second dumb adult trick was Alexson’s unwillingness to accept the blame for his own stupidity. He didn’t, of course. Who does, these days? Instead, he sued the White Memorial Foundation, which owned the land and museum that stood on it.

The Foundation defended under the Connecticut Recreational Use Act, asking that the case be dismissed because no fee for use of the Foundation property, and Alexson was on the land for a recreational purpose. Alexson’s crafty mouthpiece argued that the Foundation didn’t qualify, because it charged a fee to enter the museum. But the Court ruled that it didn’t charge Alexson to ride his bike around the grounds, and that was good enough. After all, he didn’t fall in the museum attic.

Aha140418A-ha, the lawyer cried, riding a bike isn’t listed as a specific recreational activity in the statute. Horse hockey, the Court said. The statute clearly doesn’t limit recreational activities to the one listed. Lance Armstrong, after all, thinks bike riding is very recreational (and for years thought that taking banned drugs was not doping).

Yeah, argued Alexson, but the Foundation’s failure to warn me of the danger was willful or malicious. Maybe so, the Court said, but Alexson needs to do more than just give the Court his rather slanted opinion that it’s so.

The case was tossed, as it should have been. Dumb adult stunts, indeed.

Alexson v. White Memorial Foundation, Inc., Not Reported in A.2d, 2008 WL 803423 (Conn.Super., Mar. 5, 2008). Workmen for the White Memorial Foundation were notified that a tree had fallen across a roadway on Foundation property. The workmen began to cut up fallen tree, but failed to complete the task before Alexson – who was riding his bicycle on the White property – saw some of the tree still blocking the roadway and decided that he could push the obstruction aside as he passed. Instead, he collided and badly hurt himself.

Alexson sued, alleging that the Foundation was careless and negligent in only partially removing the branch from a portion of roadway and that the Foundation’s failure to warn or guard against the obstruction was willful and intentional. The Foundation moved for summary judgment on the ground that General Statutes §52-557g, known as the recreational land use statute, made the Foundation immune.

Held: The Foundation was protected by the Connecticut Recreational Use Act. The Act provides that a landowner is immune from liability for simple negligence where: (1) the defendant is the owner of the land in question; (2) the defendant has made all or part of the land where the plaintiff was injured available for use to the public free of charge; and (3) the plaintiff, at the time that he was injured, was using the land for a recreational purpose.

Alexson argued that there was a genuine issue of material fact as to whether the Foundation made the land available to the public free of charge. In addition, Alexson alleged that there was a genuine issue of material fact as to whether the exception to the recreational land use immunity statute, codified in §52-557h, applied to the defendant because, as alleged by the plaintiff, the defendant willfully and maliciously failed to warn against a dangerous and defective condition.

The Foundation said the land on which Alexson was injured was always available for recreational use to the public without charge. Alexson admitted that on the day he was injured, he was not charged by the Foundation, and conceded that the only time he has been charged a fee was when he went inside the museum. The Court found that there was thus no genuine issue of material fact that the defendant Foundation made the part of the property on which Alexson was injured available, free of charge, to the public.

biketree140418The final prong of the statute required that the land be available for recreational purposes. Section 52-557f(4)(a) provides a list of activities that constitute a “recreational purpose,” and the list doesn’t include bicycle riding. The Court observed, however, that, the statute clearly stated that “[r]ecreational purpose includes, but is not limited to, any of the following …” It was evident, the Court held, that the enumerated activities set forth in the statute were not exclusive.

Riding a bicycle, the Court said, fell within the penumbra of activities considered “recreational” for the purpose of the statute. Therefore the Foundation satisfied the third prong of the statute. Thus, the defendant is entitled to statutory immunity, unless Alexson could show the Foundation had engaged in a willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. The Court said the phrase “willful or malicious” meant conduct which must encompass both the physical act proscribed by the statute and its injurious consequences.

Willful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. Its characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Alexson’s conclusory statements in his complaint, coupled with the conclusory statements in his affidavit (the admissibility of which the Court found to be dubious at best) did not raise a genuine issue of material fact. The Court said the complaint was “bereft of the factual predicate necessary to lead a reasonable person to infer that the workmen intended to injure passers by, and this plaintiff in particular, by their actions.”

The dismissal of this ridiculous suit was upheld.