FALL IN MOOSE RIVER, MAINE

With the autumn leaves popping, it’s a perfect time to drive up U.S. Route 201 a pretty good way, up past Jackman and Wood Pond. There, you’ll happen on beautiful little Moose River, Maine, population 219. Located about 10 miles as the crow flies from the Canadian border, the little town is everything simple and natural that a harried city dweller could imagine such a bucolic place would be.

Being a little backwater has some disadvantages. Too small for municipal buildings, the town officials are expected to greet the public and transact the town’s business from their homes. That’s what Elizabeth Bell, the town clerk, did. One January day in 2004, Linda Rodriguez – who had just moved there from Arizona and perhaps was unfamiliar with the concept of winter – was leaving Elizabeth’s home cum office when she slipped on the steps. Unfortunately, the handrail was missing. Liz had noticed it was wobbly, and her hubby removed it for repair. Being a spouse of the male persuasion, he hadn’t quite gotten around to fixing it yet. You know, the World Series, CFP rankings just came out, that kind of thing… he’d been busy.

Liz didn’t have homeowners’ insurance for personal injury claims because she believed “neighbors don’t sue… neighbors.” Sadly, it turned out that some of them – the ones from Arizona – do. Liz defended herself by claiming that she was protected by governmental employee immunity. The Town, on the other hand, argued it was her house, and the Town had no control over it, so it had no liability. Even in friendly small towns in rural Maine, it’s “every dog for himself” when the subpoenas start flying.

The trial court found that Liz was not immune from liability, but the Town was. On appeal, the Maine Supreme Court agreed that her failure to replace the handrail had nothing to do with her government function. As for the Town, the Court said, like it or not, Liz’s place was a public building, and the Town could be liable for negligence. And judging from the comments on the news report, some Maine residents see it as another case of “flatlanders” messing things up in Maine.

Rodriguez v. Town of Moose River, 922 A.2d 484 (Sup.Ct. Me., 2007). The Town of Moose River has about 230 residents. Like other small towns in Maine, the Town does not own an office building suitable for conducting Town business. As a condition for holding office, the Town required the town clerk to conduct official duties at her personal residence. The Town conducts its selectmen’s meetings at a selectman’s home.

In March 2000, Elizabeth Bell was elected town clerk and tax collector. Accordingly, she opened her home to the public to conduct Town business. The Town brought its computer, file cabinets, desk, and office supplies to Liz’s home. She placed a sign on the side of her house, which read, “Moose River Town Clerk and Tax Collector.” Shel received about $300 per month as compensation for her work for the Town. During an average year, approximately 200 people would enter her home to conduct Town business.

On January 23, 2004, newcomer Linda Rodriguez went to Liz’s home with her husband and two children to register two motor vehicles. She had called Liz beforehand to schedule the appointment. There was some snow and ice on the sides of the steps leading into the Bell home, but the middle of the steps was clear. During the registration process, Linda had to leave the home office to retrieve her checkbook. After conducting her business, Linda exited the home carrying one of her children in a car seat. She fell when she stepped down to the middle cement step outside, injuring her leg as a result of the fall.

Before Linda’s fall, a handrail had been on Bell’s front steps. Liz’s husband had removed the handrail when he noticed that it was wiggling but did not check with the Town before doing so. Linda sued Moose River and Liz, alleging they negligently failed to properly maintain the Bell property. The trial court denied Liz’s motion for summary judgment, holding that she was entitled only to discretionary function immunity. The trial court granted the Town’s motion for summary judgment, finding that Liz’s residence was not a “public building” pursuant to the immunity exception of the Maine Tort Claims Act, 14 M.R.S. § 8104-A(2).

Liz and Linda both appealed.

Held: Liz was denied immunity, and the dismissal of the Town as a defendant was reversed.

The Maine Supreme Court said that whether discretionary function immunity applies depends on whether the challenged act, omission, or decision (1) necessarily involves a basic governmental policy, program or objective; (2) is essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of them; and (3) requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. Of course, the governmental agency involved possesses the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision.

On Liz’s entitlement to discretionary function immunity, the Court said, the question was whether her failure to install or replace the handrail on her front steps constituted a discretionary act “reasonably encompassed” by her duties as town clerk and tax collector. Generally, operational decisions, such as those regarding the safety or maintenance of premises, fall outside the scope of discretionary function immunity unless those decisions serve some other government policy or purpose. Here, Liz’s decision about the handrail did not involve a basic governmental policy related to her duties as town clerk, was not essential to carrying out that policy, and did not require policy evaluation, judgment, or expertise. Instead, her choice not to replace the handrail (or rather, her acquiescence in her husband’s sloth) resembled a decision ordinarily made by the general population, relating to the duty of care a landowner owes to the people who enter upon his or her property. Thus, she was not entitled to discretionary function immunity.

However, Liz was entitled to limited liability as a government employee. Pursuant to 14 M.R.S. §8104-D, the personal liability of an employee of a governmental entity for negligent acts or omissions within the course and scope of employment is subject to a limit of $10,000 for any claims arising out of a single occurrence. Because she was required to open her home to the public as part of her duties as town clerk and tax collector, the Court found Liz’s failure to replace the handrail on her stairs was an act within the scope of her employment.

As for the Town, the Maine Tort Claim Act holds that governmental entities are liable for negligent acts or omissions in the construction, operation or maintenance of any public building or the appurtenances to any public building. For all intents and purposes, the Court said, Liz’s home functioned as both a public building and her private residence. By its plain meaning, a “public building” includes “[a] building that is accessible to the public.” Here, the residents of Moose River had no choice but to go to Bell’s home to perform legally necessary Town business, such as registering motor vehicles and paying taxes. Liz put a sign on her home, allowed residents to come into her home to conduct official Town business, and did not restrict her hours of service. The Court concluded that on the specific facts of this case, her home was a “public building” within the meaning of the Tort Claims Act.

– Tom Root

YOU CAN’T TOUCH THIS

Oh, how good it is to be king!

I recall my shock as a naïve law student when I learned that you couldn’t sue the government unless it gave you permission to do so. Huh? What if you, an individual, could wrap your arms around your man purse and tell a putative plaintiff, “You can’t touch this?” Sweet.

If one had the power to deny someone else the right to sue, who – I wondered in my first-year law cluelessness – would ever give anyone else permission to sue? 

The answer, of course, is the government.

The Federal Tort Claims Act and the various state tort claims acts are wonders of obfuscation. At first reading, it seems the governments are taping a big “kick me” sign to their virtual backs, inviting people to go for the really deep pockets. But then you read the fine print and slowly realize the right to sue has more holes than a cheese grater.

Still, occasionally, a political subdivision will discover that even with all of the exemption loopholes in your typical state tort claims act, it’s still wriggling on the hook. Note in today’s case – in which a motorcycle rider blames some county commissioners for not trimming the trees around a stop sign – how the county tries mightily to hide behind the Oklahoma Governmental Tort Claims Act. Somehow, even with a host of exceptions written into the Act, the Board of County Commissioners could not find a shield against liability.

Lopez v. Board of County Commissioners of Cherokee County, 383 P.3d 790 (Okla.Civ.App. 2016). Teresa Lopez was a passenger on a motorcycle operated by Glen Baker when he turned left, failing to yield to a stop sign. Tom Molloy struck Glen’s Harley, seriously injuring Teresa. She sued Glen and Tom, and for good measure also named the Board of County Commissioners of Cherokee County Board, claiming that it was negligent in failing to trim the vegetation that she said obstructed the view of both drivers. Teresa maintained that the Board “had a duty to maintain advance warning signs and [sight] line vegetation control” at the intersection.

The Board filed a motion for summary judgment, arguing that it was immune from suit for Teresa’s claims under the Oklahoma Governmental Tort Claims Act and that it could not be held liable for any claims related to placing traffic control signs at the intersection. Teresa argued that the OGTCA exemptions do not apply and that the Board had a duty to maintain foliage around its county road intersections, including its rights-of-way and beyond.

The trial court granted the Board’s motion for summary judgment, finding the OGTCA exemptions applied.

Teresa appealed.

Held: The Board was not immune under the OGTCA.

The first exemption the Board relied on for immunity was § 155(4), which states “a political subdivision shall not be liable if a loss or claim results from… adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy.”

The Board argued that Teresa complained it had “failed to adopt a policy that would require its mowers to mow beyond the 16½-foot statutory right-of-way.” Teresa responded that she did not claim that a lack of policy was to blame for the overgrown foliage, but rather the “negligent manner in which they cleared the subject intersection.”

The Board asserted as an undisputed fact that the obstructing foliage was located on private property and that it “only mows foliage within its statutory right-of-way, not on the land of other property owners.” The Court held, however, that “evidence in the record does show the Board, as it has in the past, could have sought permission from the landowner to remove the vegetation but did not in this case.” But other evidence suggested that Board employees never mowed over 5 feet on either side of the road because of the width of the mowing equipment. “Based on this record,” the Court said, “the Board has not established that it mowed the entire width of its ‘statutory-right-of-way’ at this intersection.”

Even if the foliage on the intersection’s east side was located on private property outside the right-of-way, the Board did not establish the absence of overhanging limbs or shrub overgrowth within the right-of-way for which it has admittedly assumed responsibility. The Court held Teresa was entitled to the inference that some of the foliage and vegetation obstructing the motorcycle drivers’ views was located in the County’s right-of-way. Therefore, the Court said, a dispute of material fact remains regarding the applicability of this exemption, and summary judgment pursuant to 51 O.S. § 155(4) on this question was improper.

The second exemption the Board relied on is § 155(5), which states “a political subdivision shall not be liable if a loss or claim results from… performance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees.” The Board argued that the decision whether to mow the area at all was discretionary.

The state and its political subdivisions are specifically exempt from liability if the loss results from the performance or failure to perform a discretionary act or service. But the discretionary function exemption from governmental liability is limited to initial policy level or planning decisions. On the other hand, the Court ruled, “operational level decisions made in performance of policy are considered ministerial, and the government is not exempt from liability with respect to operational decisions.”

Put simply, the Court said, a municipality has the discretion whether to do or not to do a public work or improvement… The duty is discretionary up to the time that it is determined to do the work or improvement.” However, “after the work is ordered and involves merely the execution of a set task, nothing remains for discretion: the duty becomes ‘ministerial’ or ‘operational’ and requires the municipality to do the work with reasonable care and in a non-negligent manner.”

Here, one of the board members testified he could refuse to do any mowing district-wide if he so chose, but he admitted he had never refused to do so. In fact, he conceded that “mowing is part of the operational responsibilities of Cherokee County” and that, ordinarily, the County would “try to stick with the right-of-way” because otherwise it would “catch trouble” from property owners.

Neither party disputed that the County had in the past and could have, in this instance, sought the property owner’s permission to clear the vegetation and foliage that Teresa claimed was obstructing visibility at this intersection. “These actions do not fall under the County’s discretionary function exemption but constitute operational responsibilities,” the Court held, and thus § 155(5) did not apply to this case.

The third exemption claimed by the Board was under § 155(10), which provides, “The state or a political subdivision shall not be liable if a loss or claim results from… natural conditions of property of the state or political subdivision.” The Board argued that “it is clearly undisputed that the growth of vegetation is a natural condition of Board property.” The Board did not cause the vegetation to grow; it was “a natural process of all vegetation throughout the world.” To the extent that Teresa’s claim arose from “the natural growth of vegetation on the statutory right-of-way,” the Board said, it was “exempt from liability from the claim under” § 155(10).

The Court, however, held that “natural conditions” were simply conditions over which a person has no control. “The vegetation here was clearly not a condition ‘over which [a person] has no control’,” the Court ruled, “because the Board admittedly had the responsibility to mow and maintain its statutory right-of-way at the intersection.” Therefore, § 155(10) did not apply.

Finally, the Board contended § 155(13) shielded it from liability because a “claim based on failure to inspect government property at regular intervals is exempt from liability.” The Board characterized Teresa’s claim as being “essentially a claim that the Board did not properly inspect the road to determine whether additional mowing of vegetation needed to be done.”

The Court disagreed, holding that “maintenance of property is not the same thing as inspection of property for § 155(13).” A landowner may be liable for negligent maintenance of property irrespective of its inspection powers or functions, the Court said. Thus, an exemption arising from an inspection power or function could not include becoming aware of circumstances “in a general sense without also bringing many types of negligence cases within the class of exempted claims.” To hold otherwise, the Court said, “would put in doubt the viability of every OGTCA claim based upon what a defendant should have known…” and thus expand the application of § 155(13) to the point “that many other provisions of § 155 would be superfluous.”

The inspection exemption in § 155(13) describes the exercise of a particular governmental “power” or “function,” not a simple familiarization with one’s own property. Governmental entities exercise inspection powers and functions in many contexts, the Court observed, but not where inspection would merely familiarize the Board with its own property.

The Board seemed to assert that failure to inspect the road to determine whether additional mowing was needed constituted an inspection function covered by § 155(13). The Court said, “Because no particular governmental inspection power or function is at issue in this case, we conclude § 155(13) is not applicable.”

Teresa was able to take the Board to trial.

– Tom Root

ERR IN HASTE … 

“Haste makes waste,” the old saw goes, and did it ever for the Warrens of Iron County, Missouri.

They finally realized their dream, buying land they had rented for years as cattle pasture for their dream home. First, logically enough, they wanted to mark the land’s boundaries. The Warrens asked their neighbors, the Hales, to pay for half of the survey, but the Hales declined. Why should they pay? They knew where their boundaries lay.

So the Warrens went ahead on their own. Their surveyor couldn’t find the section corner marker, which had been described in some 19th-century surveys as laying certain distances on certain radials from streams and trees that weren’t there anymore. So he made his best guess, but didn’t use the technique Missouri law required.

Hard to believe, but the surveyor blew it big time, marking a boundary that was way off the traditional boundaries the parties used. In fact, his boundary included big chunks of the Hales’ land, such as their entire driveway, landscaping and front lawn and nearly their house. The day after the surveyor placed his little pink flags, Mrs. Hale complained to the Warrens that their surveyor was nuts, and she’d get another surveyor to straighten it all out. She even showed them some old 19th-century abstracts, which clearly showed her ancestors had owned some of the land the Warrens now thought was theirs.

Here’s where the Warrens blundered. Mrs. Hale might have been wrong, but her complaints, her intention to get another surveyor, and the Hales’ historical use and occupancy of the land the Warrens now thought was theirs were enough to give a reasonable person some pause — at least for a few days while the issues were sorted out. But the Warrens weren’t the waitin’ type. A family member showed up the next day with his bulldozer and started tearing up the Hales’ front yard and landscaping.

The Hales got an injunction, litigation ensued, and another surveyor took a whack at the boundary. Oops. The Warrens’ surveyor screwed it up, the court said, failing to use the prescribed method for finding a corner where the original corner was lost. The disputed land really belonged to the Hales, and the Warrens—who had torn up things too quickly—were socked with treble damages under a Missouri statute applying where one destroyed another’s trees or landscaping without probable cause to believe the land was his. The unseemly haste of the Warrens to bulldoze the disputed tract, where there seemed to be no need for such fast-track excavation, evidently played a role in the Court’s determination.

Act in haste, repent in leisure.

Hale v. Warren, 236 S.W.3d 687 (Mo.App. 2007). The Warrens bought 64 acres in Iron County, Missouri, that they had rented for the previous nine years, intending to build a home on the land and to continue to graze their cattle there. The Hales owned 80 acres or so next to the Warrens, land that had been in that family for over 150 years.

After buying the property, the Warrens wanted to have it surveyed before beginning on the house, so they asked the Hales to share the cost. When the Hales refused, the Warrens went ahead on their own. Their surveyor determined that part of the Hales’ yard and their entire driveway lay on the Warrens’ property, along with other areas. The surveyor marked the boundary with pink flags.

The next day, Mrs. Hale contacted Mrs. Warren about the pink flags, telling her that she disagreed with the survey, especially with one of the section corners from which measurements were taken. Nevertheless, the Warrens began bulldozing and clearing the land the next day, including right in front of the Hales’ home and along the western border of their property, within the area set out by the pink flags. By the next day, the Hales had obtained a temporary restraining order against the Warrens, barring them from “further bulldozing or other acts of destruction and possession …” The Hales then hired their own surveyor, who found that a section corner used in old surveys had been lost and — applying Missouri law — calculated a starting point by a procedure known as “double proportional measurement.” At the same time, they sued the Warrens to quiet title and for trespass.

The trial court found that the Hales owned Tracts 1, 2, and 3 by adverse possession, and that the Warrens’ survey was “not accurate and correct” but that the Hales’ survey was. The trial court entered a permanent injunction against the Warrens, prohibiting them from entering onto the land in question and assessing treble damages in favor of Hales under V.M.S.A. § 537.340 for $6,300.00. The Warrens appealed.

Held: The trial court was upheld. Much of the decision addressed the appropriate use of the “double proportional measurement” system under Missouri law, an interesting but technical discussion. However, the Court’s treatment of the treble damages award in favor of Hales is relevant to arboriculture law. The Court agreed with the trial court that the Warrens lacked probable cause to believe that the property being bulldozed was their own.

Section 537.340 of the Missouri Code imposes treble damages for the wrongful cutting down of trees, without any showing of negligence or intent required. The Court observed that §537.340 “is a penal statute which must be strictly construed.” It is tempered by § 537.360, which holds that if defendant had probable cause to believe land was his own, plaintiff shall receive only single damages, with costs.”

A party would have ‘probable cause’ under the statute if there was such cause as would induce a reasonable person to believe he had the right to remove trees from another’s land. Here, the evidence showed the Hales’ driveway had always been in its present location and that the Hales had maintained the area since 1966 as part of their yard, planting trees and shrubbery there as well. The tracts had been owned by the Hales and their predecessors since 1855, and fencing had marked the boundary until the Warrens wrongfully removed it. The Hales had harvested timber and cut firewood on the disputed land since they purchased the property from their family in 1966.

After the pink flags were placed by the Warrens’ surveyor, Mrs. Hale showed Mr. Warren a land abstract in which her grandfather had deeded off a portion of the disputed land for a school building. She showed him the abstract to “show them that obviously this had been in our possession since the 1880’s. This particular tract of land that’s in dispute.” She told the Warrens that she disputed their survey, and that she would speak to a surveyor herself.

The Court found there was sufficient evidence to rebut the Warrens’ assertions they removed the trees and landscaping at issue because they had probable cause to believe they owned the property. First, the Court said, for all the years the Warrens had possessed the land as owners or renters, it was only reasonable to conclude they should have become familiar with Hales’ general use of the property. Richard Warren admitted that when they purchased the property, he knew the Hales stored cars and maintained a large scrap metal pile on the land. Further, when they purchased the property, the Warrens knew the location of Hales’ driveway and yard and their general use of the land. Second, the Hales disputed the Warrens’ survey as soon as it was surveyed. Mrs. Hale informed the Warrens that she was contacting Smith & Company about the survey because she believed it was incorrect, and she showed them an old abstract relating to the prior use of the property. When the Warrens began bulldozing right away after their survey was done, it was clear that the Warrens knew of the Hales’ open and actual possession and use of the property, and knew that the Hales had issues with the survey lines at the time the bulldozing began.

The Court said it was “difficult… to believe that ‘a reasonable person’ would ‘believe he had the right to remove trees from another’s land,’ where he was faced with: a mowed yard and maintained driveway; areas that were clearly used by the landowner for storing scrap metal and other items; open protests and disputes by the landowner; and a survey which obviously did not comport with historically used property lines.” The Warrens did not meet their burden of proving they had probable cause to believe they owned the land in question when they bulldozed the trees and shrubs at issue.

 – Tom Root

 

THE GUY FROM OUT OF TOWN

Mark Twain is reputed to have once said that an expert is just some guy from out of town. Unlike many of the quotes attributed to him, this one is probably authentic. 

There are a lot of guys like that in the legal system, as cases rely more and more on esoteric problems that a jury just can’t understand on its own. It is axiomatic in legal circles that witnesses can’t give their opinions, but instead must confine themselves to the facts. Legend incorrectly has it that Sgt. Friday said as much: just the facts, ma’am. And the rules of evidence, both state and federal, largely confine witnesses to “just the facts.”

But those same rules of evidence let certain witnesses, known as “experts,” give their opinions. Naturally, as soon as a good idea like expert witnesses was rolled out, lawyers started to abuse it. Remember the “Twinkies defense?” It relied on an expert to explain to the jury the junk science behind the notion that crème filling was a foreseeable cause of death, murder, and mayhem.

Notwithstanding the occasional black eye lawyers and their experts can give the legal system, expert witnesses are crucial as cases get more and more complex. That’s as true in tree law as in most other tort (and many contract) cases. Whether a witness can be qualified as an expert is for the court to determine and depends on the witness’s education, experience, and qualifications. Once qualified as an expert, the witness can give opinions based on a written report provided to the other party. Those opinions must be based on sufficient data and be the product of reliable principles and methods applied reliably to the facts of the case.

The rules of evidence have effectively moved decisions that control the outcome of a case to a time well prior to the seating of the jury. Today’s case is a good example. Hiram Hyde’s family sued the maker of a stump grinder after the late Mr. Hyde fell in and … well, we’ll leave it to your imagination. The Hydes’ expert witness wanted to testify that putting a clutch mechanism — kind of a cut-off handle like one finds on a rotary mower — on the grinder was easy, economical, and logical. The maker’s expert wanted to argue just the opposite.

Both parties went at the other’s experts, questioning their qualifications and opinions. The federal district court referred the matter to a magistrate judge, a kind of assistant judge intended to handle pre-trial and other tedious matters, who ground through the competing claims without being stumped. He concluded that the experts were qualified, but the stump grinder’s guy couldn’t testify to some of his conclusions because they were based on unreliable data.

Hyde v. Vermeer Mfg. Co., 2007 WL 2329688 (W.D.Tex. Aug. 7, 2007). Hiram B. Hyde died when, while attempting to grind a tree stump using a stump cutter, he became entangled in the cutting and grinding wheel of the stump cutter. His wife and adult kids sued under the Texas Wrongful Death and Survival Statute, arguing that the stump cutter — a Vermeer model SC252 designed, manufactured, and distributed by Vermeer Manufacturing Company — was defective.

They sued Vermeer for money damages under the doctrine of strict product liability for alleged defects in the stump cutter; negligence in the design, manufacture, sale, and marketing of the stump cutter, negligence in failing to give adequate or proper warnings or instructions for the stump cutter, negligence based on failure to recall the stump cutter, breach of warranty that the stump cutter was fit for the purposes for which it was intended, and for punitive damages based on gross negligence.

Because no one witnessed the accident, the trial of this case was going to depend on the jury’s consideration of expert opinions about the design of the stump cutter. Each side moved to exclude the other party’s expert witnesses. The trial court referred the matter to a magistrate judge for a recommended decision.

Held: Some of the proposed testimony from one of Vermeer’s experts should be excluded, but none of the expert witnesses should be thrown out.

The Magistrate Judge noted that Federal Rule of Evidence 702 provided for the admissibility of expert testimony if it will assist the trier of fact to understand the evidence or to determine a fact in issue, and if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Rule 703 provides that an expert’s opinion is generally admissible so long as the facts and data underlying that opinion are of a type reasonably relied on by experts in the field.

The Hydes offered Russ Rasnic as an expert to testify about feasible alternative designs that Vermeer could have incorporated into the SC252 stump cutter to reduce the risk of an operator contacting a rotating cutter wheel. Vermeer moved to exclude Rasnic’s testimony on the grounds that Rasnic was not qualified to render his proposed opinions, and his proposed opinions were unreliable. Vermeer complained that prior to this litigation, Rasnic’s experience with stump cutters was limited to using a handlebar stump cutter to cut less than 10 stumps and observing a worker operate a hydraulic stump cutter. Vermeer also complained that since the litigation began, Rasnic’s experience with the SC252 consists of only 2.8 hours of operating a stump cutter. Finally, Vermeer argued that Rasnic has never worked for a manufacturer of stump cutters.

The Magistrate Judge observed, however, that a witness can qualify under Rule 702 as an expert even though he lacks practical experience, provided that he has received suitable training or education or has otherwise gained the requisite knowledge or skill. The absence of hands-on experience with the particular equipment is relevant to the determination of whether to accept a witness as an expert, but it is not determinative. Here, Mr. Rasnic was a qualified mechanical engineer with expertise in industrial equipment, machine design, hydraulics, guarding, and safety engineering. He has designed machinery using clutch brakes, the safety device on which he would testify. He has numerous professional memberships and has evaluated a number of machines in his forensic engineering practice for both plaintiffs and defendants. He had used a handlebar stump cutter to cut stumps on his property and observed a hydraulic stump cutter in operation before using one that he modified for purposes of testing the safety feature he was recommending in this case. While Mr. Rasnic may have limited experience with hydraulically-controlled stump cutters, the Magistrate Judge said, that was most likely a characteristic shared by most mechanical engineers. His credentials, training, and experience were sufficient to qualify him as an expert on guarding systems for the Vermeer SC252 stump cutter.

Vermeer designated Michael Gililland as an expert to rebut the Hydes’s argument about the need for a cut-out switch and to testify about the adequacy of the warnings on the SC252. In his expert’s report, Gililland argued that the addition of the cut-out switch will cause operators to defeat the switch and that the SC252 is not unreasonably dangerous and the warnings on the machine are adequate. Since preparing his report, Gilliland interviewed five people who had participated in a Vermeer test of an SC252 stump cutter modified with Rasnic’s proposal. Gililland stated that his interviews confirmed the opinions expressed in his expert report. The Hydes have moved to exclude Gililland’s testimony about the 5-user test because he failed to supplement his report, and the plaintiffs did not learn about the 5-user test until after the discovery period had closed, leaving them unfairly surprised by the new information.

The Magistrate Judge agreed that the 5-user test report should be excluded. Rule 703 holds that experts may rely on three sources of information to form their opinions: (1) first-hand observation by the witness, (2) presentation at trial, and (3) presentation of data to the expert outside of court and other than by his own perception. Here, Gililland did not participate in, or observe the 5-user test. Instead, his knowledge of the 5-user test was presented by Vermeer outside of court and was obtained by interviewing the five operators. That testimony was hearsay, the Magistrate Judge said, because Vermeer sought to use statements by the five operators to support Gililland’s opinion of the Rasnic proposal to add a cut-out switch to the SC252.

Under 703, an expert can discuss as the basis for an opinion either facts or data which are otherwise inadmissible hearsay if the basis is of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. In this case, Vermeer did not show that Gililland’s testimony about his interviews with the five operators was of a type reasonably relied upon by experts in his field. First, Gililland had no control over the test. He did not modify the SC252 stump cutters used in the 5-user test, he did not observe the modification of the stump cutters, he did not know who modified the stump cutters, and he did not know who took his photos of the modified machines. He did not record the interviews with the five operators, but instead, he recorded the interviewees’ answers to his questions on a checklist form. In at least two cases, the checklist suggested the desired answer. Finally, his testimony was based on information about a test developed and conducted by his client in anticipation of litigation.

In his report, Gililland advanced several opinions about why Mr. Hyde’s actions constituted negligence and why Vermeer was not negligent. The Magistrate Judge said his opinions were legal conclusions that Gililland was not qualified to advance. The jury would determine the parties’ negligence in this case, and Gililland would not be permitted to testify about his conclusions about the parties’ respective negligence.

– Tom Root

YOU SNOOZE, YOU LOSE

This past weekend was sunny, brisk and glorious, one that called for enjoying the fall splendor. College football continued its topsy-turvy season but my Buckeyes had the weekend off, so I spent my time raking up the fall splendor instead. A lot of it. By 7 o’clock Sunday night, I was nodding off to sleep.

I used to have the same problem many decades ago in Property Law, a required course for first-year law students. All of those terms I had happily lived 22 years without knowing: fee simple absolute, livery of seizen, life estates, enfeeoffment, trespass quare clausum fregit… Contract law made great sense, civil procedure had a certain elegance,  but property…

More often than they should have, my eyes glazed over, my head slumped, and I slumbered while Professor Prosser droned. Even without first raking leaves. Ah, how education is wasted on the young.

Speaking of slumber, the defendant in today’s blast from the past did just that. Like your author, he paid too little attention to Byzantine concepts like life estates. When the owner of a life estate gave him permission to harvest timber on her land, Hempy slept on his rights. The owner of the life estate died, whereupon Hempy awoke from his slumber and figured maybe he had better get those trees cut.

Too little, too late. A life estate lasts only as long as the person holding the life estate does. While the holder lives, the life estate can create real mischief, but once the life expires, so does the estate. And so do any rights the estate holder may have granted.

But the reason the timber cutting was a trespass is not terribly relevant to today’s case. Instead, it is only the setup for the real issue, which is how to value the damages.

Koonz v. Hempy, 120 N.W. 976 (Supreme Court, Iowa, 1909). Koonz sued Hempy for cutting timber on property in which he had recently obtained an interest following the death of his mother. Apparently, Koonz’s mother, who had held a life estate in the property granted by her deceased husband, had contracted with Hempy to remove timber on the property. However, Hempy did not harvest the timber until after the mother had died. The trial court ruled that Mom’s demise meant that Hempy had lost his right to cut the timber because the life estate was extinguished with her passing, and Koonz was now in possession. The court awarded damages to Koonz, and both parties appealed.

Held: Hempy was liable to pay the value of the harvested timber to Koonz. However, Hempy argued that if he was liable at all, it was only for the reduction in the value of the property after he removed the timber. The Court disagreed, ruling that “where the thing destroyed or removed from real property, although it is part of the realty, has a value which can be accurately measured … without reference to the soil on which it stands, the recovery may be of the value of the thing thus destroyed or removed, and not for the difference in the value of the land.”

Applying this rule, the Court held that the trial court had properly measured damages in terms of the value of the timber alone. Throwing a bone to Hempy, the Court ruled that the trial court properly denied treble damages because Hempy’s actions failed to demonstrate the requisite willfulness to warrant such an award.

– Tom Root

YOUR RESPONSE STINKS

This case is the septic equivalent to the old doctor’s advice of “take two aspirin and call me in the morning.”

Mrs. Hubbell was a resident of Xenia, a small city in southeastern Ohio (Motto: “One of America’s only cities to start with ‘x’)”. One unfortunate day, Mrs. Hubbell discovered that ‘x’ didn’t just stand for “Xenia.” It stood for ‘x’crement, too.

When Mrs. Hubbell’s basement, bathroom and kitchen all started filling up with some pretty nasty effluent from the sewer line, she called the emergency helpline the City of Xenia maintained for homeowners with such smelly problems. But it was the weekend, and the sewer department worker on duty wasn’t too keen on going out in the rain to check out her problem. He figured that it was just the rain backing things up, and if it were really bad, Mrs. Hubbell would call again.

Well, it was really bad, and Mrs. Hubbell did call again an hour later, to catalog all of the types of malodorous waste bubbling into rooms all over her house. That time, the worker did come. When he and his assistants pulled a manhole cover off the sewer main around the corner, a fountain of filth erupted, and the liquid waste in the Hubbell home started draining away. It turned out that tree roots had jammed up the sewer main, and the City’s maintenance program hadn’t gotten around to clearing them away.

Mrs. Hubbell was unhappy with the Sewer Department’s lackadaisical response, so she sued. The City claimed immunity under Ohio’s governmental immunity statute because its inspection program was an exercise of discretion. True, the Court agreed, but nothing required special expertise in the lazy worker’s refusal to respond when Mrs. Hubbell reported a problem. The problem, the Court said, is that almost everything required some discretion, and to accept the City’s argument meant that everything a governmental entity did would be immune.

Here, the City had a kind of a contract with its residents. The City offered an emergency number, and the implied deal was that if a local taxpayer called, the City would respond. The worker’s decision to let the stink build — and to be sure, it was a real problem worthy of his attention on a Sunday afternoon — could easily be negligence. The Court said Mrs. Hubbell was entitled to her chance to prove that to a jury.

Hubbell v. Xenia, 175 Ohio App.3d 99, 885 N.E.2d 290 (Ct.App. Ohio 2008). Water and sewage began flowing into Mrs. Hubbell’s home through drains in a shower, a toilet, and a bathroom sink. Believing that the stinking problem was likely caused by a malfunction in the sewer system maintained by the City of Xenia. She called the City’s emergency services, and the call automatically transferred to the Xenia Police Department. The police paged an on-call sewer and waste maintenance worker, but he refused to do anything, suspecting that the problem was likely the result of heavy rainfall that day.

Sewage and dirty water continued to flow into Mrs. Hubbell’s home, and she desperately called again for help several hours later. This time, the on-call worker decided to respond and investigate the problem, and a service crew was brought in.

Hubbell’s home is located at the intersection of Monroe and Home Avenues. The house is connected to the sewer main on Home Avenue, which in turn connects to the main on Monroe Avenue. The service crew examined the Home Avenue main line and found it was flowing freely, but when they removed the Monroe Avenue manhole cover, the backup into Hubbell’s house promptly subsided. The crew removed tree roots that had invaded the main. Sewer Department officials conceded that the roots may have contributed to the blockage.

Hubbell sued, alleging that Xenia was negligent in maintaining and operating its sewer line because it failed to inspect the Monroe Street main, allowing tree roots and collected refuse to obstruct and clog the line and cause the backup into her home. She also said the sewer condition constituted a nuisance for which Xenia was liable. Xenia claimed immunity from liability under the Political Subdivision and Tort Liability Act.

The trial court refused to throw the case out, and Xenia appealed.

Held: The City was not entitled to dismiss the case without a trial. Generally, the Court said, where a municipal corporation assumes the management and control of a sewer, it is required to exercise reasonable diligence and care to keep the system in repair and free from conditions that will cause damage to private property. If it fails to do so, the municipality may be liable for damages caused by its negligence.

However, a municipal corporation’s liability is subject to the defense of governmental immunity provided by §2744.01 of the Ohio Revised Code if any of the five exceptions or defenses to immunity set out in the statute apply.

Here, the Court ruled, Xenia’s ongoing inspection and cleaning of its sewer lines were entitled to governmental immunity because the execution of the program involved judgment and discretion as to how extensive and in what manner the program would be executed. However, routine decisions requiring little judgment or discretion and which, instead, portray inadvertence, inattention, or neglect, are not covered by the statute’s grant of immunity.

The City maintenance worker’s decision not to respond to Mrs. Hubbell’s call regarding the sewer backup incident, due to his belief that her problem resulted from excess rainfall, wasn’t an act of judgment or discretion for which the city was entitled to governmental immunity. Instead, the City’s contractual agreement with its residents to provide emergency services to those to whom it provided sewer services gave rise to a duty to perform such emergency services with ordinary care.

When one undertakes a duty to perform an act, and another reasonably relies on that undertaking, the act must generally be performed with ordinary care. The Court said a genuine issue of material fact existed as to whether the City was negligent in performing its duty to provide emergency services to Mrs. Hubbell, and that matter could only be settled at trial.

– Tom Root