YOU’RE BREATHING MY AIR

Last summer, I undertook a home construction project (imagined and ramrodded by my wife of 47 years, of course). I found myself trimming back some gargantuan arborvitae belonging to my neighbor, whom I will call “John” because that’s his name. The arborvitae were just puny little bushes when Andy and Allwyn, next-door residents two neighboring homeowners ago, planted them, but in the quarter century since they were mere shrubs planted a foot or so on John’s side of the property line, they’ve grown into towering, misshapen monsters.

On my side of the property line, they have swollen well into my airspace.

My airspace? Sounds a bit pretentious, doesn’t it? But that’s what we’re really talking about when we discuss overhanging branches and limbs. We all know about adverse possession, where a sufficiently brazen squatter can gain title to your property if he or she waits you out, and even prescriptive easements, where the same trespasser can acquire rights to use your property.

What if my neighbor had stalked out his back door last weekend and claimed his branches had been overhanging my property (and messing up the roof of my shed) for more than 21 years, giving him a prescriptive easement to my airspace? So while it’s still my air, he gets to use it. And breathe it. And there is nothing I can do about it? Whither the Massachusetts Rule?

A prescriptive easement over your neighbor’s airspace is indeed a novel argument. Fortunately for me, if my neighbor stalks out of his back door, he is much more likely to confront me with a basket of zucchini or a big butternut squash than he is with a wacky airspace easement argument. He is a pretty fine neighbor.

But not everyone is blessed with a neighbor as congenial as mine. That’s lucky for me, in a sense, because, as the Kansas Court of Appeals observed, when neighbors cannot get along, the courts protect property rights. And when courts do that, I have something to write about. Neighbor disputes that end up in court happen frequently enough to keep me going five days a week. And there are plenty of cases I never get to.

But how about that airspace argument? In today’s case, the owner of a tree that leaned over his neighbor’s yard claimed his 75-year-old pecan tree had acquired a prescriptive easement over his neighbor’s airspace. Take that, Massachusetts Rule!

Cuius est solum, eius est usque ad coelum et ad inferos (Latin for “whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell”), a principle of property law, holds that property holders have rights not only to the plot of land itself, but also the air above and (in the broader formulation) the ground below. (Note to self: insert here a nod of thanks to my sainted Latin teacher of yore, Emily Bernges, or else I couldn’t translate that – I loved that woman!). The principle is often referred to in its abbreviated form as the ad coelum doctrine. So was the airspace claim clever lawyering, or just a lot of hot air? Let’s see whether the Court abrogated the ad coelum doctrine or brought the defendant back down to earth instead.

Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (Kansas Ct.App. 1985). Jim Pierce and Paul Casady are adjoining landowners with a 75-year-old pecan tree between them. The pecan trunk and root flare are on Paul’s land – but only a foot from the property line – and the tree leans toward Jim’s place. In fact, Jim says about three-quarters of the tree overhangs his land, ominously, given the substantial split in the tree’s fork (which also overhangs Jim’s property).

The split is four feet on one limb and about two feet on the other. If the tree fell due to the split, it would fall on Jim’s house, garage, and any cars in the driveway. Trimming the tree at the property line is not practical – unless one does not mind killing the tree in the process – because of the tree’s location and the angle at which it leans.

Jim sued for a declaratory judgment that he had the right to cut the overhanging branches back to the property line or, in the alternative, to declare the tree a nuisance to be abated by removal. Paul claimed he had acquired a prescriptive easement to Jim’s airspace. The trial court disagreed, ruling that Paul had no prescriptive right to the airspace the tree occupied and that the tree constituted a nuisance that rightly caused Jim to fear for his safety. Paul was ordered to abate the nuisance by removing the tree either at its base or at the point where it crosses plaintiffs’ property line.

Paul appealed.

Held: An easement by prescription cannot be acquired by overhanging tree branches. Furthermore, a landowner may trim branches that overhang the landowner’s property even if the trunk is on a neighbor’s land, but the landowner may not enter the neighbor’s land to remove any part of the tree without the neighbor’s permission.

Trees constitute a nuisance if overhanging branches cause substantial harm or create an imminent danger. If a tree is a nuisance, a landowner may compel a neighbor to abate it or, if an injury occurs, seek damages from the neighbor as allowed by law.

The court of appeals rejected Paul’s argument that he had acquired an easement through Jim’s airspace because such an easement cannot be obtained by prescription, that is, by simply occupying the airspace without permission for a long enough period of time.

Jim argued that the tree could not be a nuisance. That did not affect Paul’s right to trim branches that were overhanging his property even though the trunk of the tree was on Paul’s land. The Court said the landowner may not go onto the neighbor’s land and remove the tree, or any part of it, without the neighbor’s permission.

If the tree is a nuisance, the landowner may compel the neighbor to abate it or, if injury occurs, seek damages allowable by law. In this case, the Court observed, it appeared that if the tree is trimmed at the property line it would be killed. The trial court recognized this and gave Paul the option to trim back to the property line or simply remove the whole tree.

The Court held that whether the tree constituted a nuisance was a question of fact. Generally, a tree is a nuisance when it constantly drops branches and requires constant maintenance. Or, a tree is a nuisance when there is a statute so defining it. Finally, a tree becomes a nuisance when it does substantial harm or creates an immediate danger of causing harm, the Court held, relying on Whitesell v. Houlton, the case that defined the Hawaii Rule.

Kansas recognizes that trees constitute a nuisance if the overhanging branches do substantial harm or the overhanging branches create an imminent danger.

Here, the Court said, the tree was a danger to Jim, reasonably causing him to fear for his safety. The evidence supported the reasonableness of his apprehension: the split in the tree’s fork above his property, the squeaking sound when the wind blows, the angle at which the tree leans toward Jim’s property, and expert testimony.

Paul argued that cables and bolts could make the tree safe. The Court was unimpressed, holding that even that work would have to be done in Jim’s airspace. Paul had no right to enter Jim’s property to do that work for the same reasons Jim had no right to enter Paul’s property to trim or cut down the tree.

Paul was thus ordered to cut the tree off at the property line or remove it altogether.

The Court admitted that “the result reached here will be distasteful to all who treasure trees. The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each property owner’s rights as far as possible. Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.”

– Tom Root

WHERE’D THE TREES GO?

Don and Susan Sanders loved the beautiful wooded subdivision in Grapevine, Texas, where they had bought their new house. The helpful salesperson had assured them that developer Weekley Homes intended for the subdivision to have a wooded, country atmosphere and “would take ordinary care” to preserve existing trees. After all, the sales flack said with treacly sincerity, Weekley planned to include wooded home sites as amenities. Not to worry, the syrupy agent smarmed them, because even if that weren’t true, everyone knew the City of Grapevine, Texas, had a tough tree ordinance that would be enforced strictly against Weekley.

Well, apparently not. The ordinance had teeth like a crocodile, but that’s little solace unless the city enforces it. Here, as soon as the Sanderses moved in, the trees started moving out. They complained that Weekley apparently had no intention of complying with the promises to keep the trees standing – they were tipped off by the shriek of the chainsaws – and the City seemed to have no intention of enforcing the tree ordinance. The Sanderses tried to resolve the problem by writing a few letters and attending City Council meetings, but all that bought them was harassment by the City and the developer.

So they sued, going after the developer for misrepresentation and after the city and a gaggle of city officials for not enforcing the tough tree preservation law they had heard so much about. There’s nothing that’ll wake up a developer and city officials like the robust aroma of a freshly filed lawsuit.

Weekley apparently responded rather weakly, but the City took strong exception to the suit. Grapevine claimed it was immune from liability to its citizens for the City’s failure to enforce its tree laws. In other words, if city officials chose to look the other way when Weekley cut trees down daily, the Sanderses had just better get used to the unfiltered Texas sun.

The Court of Appeals agreed, insofar as monetary damages were concerned. The Texas Tort Claims Act protected Grapevine officials. But the Sanderses had asked for a declaratory judgment, too. Although their filings were not very clear, the Court surmised that the Sanderses wanted a judicial finding on what rights they had, if any, under the City’s tree law.

Grapevine was not immune from a declaratory judgment action, the Court held. And while there are no money damages awarded in a declaratory judgment action, a clear judicial finding that the City fell down on the job of enforcing its ordinances could have substantial political effects. What mayor wants a judicial finding that he or she hasn’t enforced a law that most citizens fully support?

Sanders v. City of Grapevine, 218 S.W.3d 772 (Ct.App. Tex., 2007). Don and Susan Sanders sued the City of Grapevine, Texas, and a number of individuals over the City’s alleged failure to enforce its tree preservation ordinance. They had bought a home constructed by David Weekley Homes in the Silverlake Estates Subdivision, primarily due to its “wooded” and “country atmosphere.” The Sanderses claimed that a sales consultant for Weekley Homes had assured them that Weekley Homes intended for the subdivision to have a wooded, country atmosphere, that Weekley Homes “would take ordinary care” to preserve existing trees, that the City of Grapevine had “an extremely tough tree ordinance,” and that the amenities for the subdivision would include wooded home sites.

But after they moved into their new home, it became clear to the Sanderses that Weekley Homes had no intention of complying with, and the City had no intention of enforcing, the tree ordinance, after Weekly Homes cut down numerous trees within the subdivision. The Sanderses brought claims for breach of contract and local tree preservation act violations against Weekley Homes — and for fraud, negligence, and negligent misrepresentation against all of the defendants — due to Weekley Homes’s failure to comply with, and the City’s failure to enforce, the City’s tree ordinance. They alleged the City was liable under § 101.0215 of the Texas Civil Practice and Remedies Code for damages arising from its governmental function of enforcing the tree ordinance. The Sanderses also asked for a declaratory judgment.

The City argued that the Sanderses’ claims against it should be dismissed because the City is entitled to governmental immunity. The individual defendants filed a motion to dismiss the claims against them with prejudice under the election of remedies section of the Texas Tort Claims Act. The trial court agreed, and the Sanderses appealed.

Held: The Court of Appeals held that the city was immune from liability to the Sanders for negligence and fraud claims under the Texas Tort Claims Act, but it was not immune to a declaratory judgment action.

The Court observed that in determining whether a city is subject to suit and liability under the Texas Tort Claims Act, the Court of Appeals must first determine whether the alleged conduct falls within the list of governmental functions listed in the Act, and if it does, the Court must then look to see whether the conduct falls within one of the other provisions of the Act that waives immunity. Here, the Court said, the City’s alleged conduct in failing to enforce a tree preservation ordinance clearly did not fall within the area of conduct for which governmental immunity was waived under the Texas Tort Claims Act. Waivers of immunity for negligence referred to conduct involving property damage, personal injury, or death, not alleged negligence in enforcing a statute on tree preservation. What’s more, the Act did not waive immunity for intentional torts, precluding an immunity waiver on the fraud claim.

The Sanderses also sued for a declaratory judgment determining what rights they had as homeowners under the City’s tree preservation statute. The Court agreed with them that the City was not immune from such an action, holding that a party does not need legislative permission to sue a governmental entity to determine its rights under a statute or ordinance, because the declaratory judgments action did not seek to impose damages or other liability on the city.

– Tom Root

WHEN ARM’S LENGTH ISN’T QUITE FAR ENOUGH

When I was a mere first-grader, I had an uncle – a Wharton School grad – who taught me a business aphorism he had learned in B-school. Everyone thought it was cute to hear a 6-year-old try to say, “infamous machinations”, much like the Teddy Ruxpin creator picked the bear’s name because he figured so many children would mispronounce it so cutely.

But six decades later, I remember what Uncle Harl taught me through his omnipresent swirls of cigar smoke: “Always deal with your business associate at arm’s length. For if he be an honest man, he will respect your caution…”

Speaking of our regular discussions about independent contractors, you, Harry and Harriet Homeowner may think you are being prudent by hiring your vendors and service providers as such. After all, we all know homeowners aren’t liable for the negligence of independent contractors.

Our neighbors will certainly respect our caution.

In today’s case, however, the Svensons discovered, to their chagrin, that trespass ain’t negligence. As a result, they got no respect. When the independent contractor tree service hired by their independent contractor architect – making the tree service something akin to an independent contractor once removed – cut down a pair of boundary trees, the Svensons were sued along with the architect and the tree service. They figured they were insulated. It was the contractors’ fault, after all, not theirs.

But one can be dinged for trespass, or for causing someone else to trespass. The fact that the party that has been caused to trespass may be liable, like an eight-ball going into a side pocket, does not absolve the person who directed the trespass. Like the cue ball that put the eight ball into motion, the party who caused the trespass was indispensable to the tort. And regardless of the relationship between the director and the directee, both may share liability.

Oh, and one other thing, Svensons… if you have a good argument to make on appeal, make sure you make the same argument before the trial court. Like l’esprit de l’escalier, thinking of a great argument for the first time on appeal is about 10 minutes too late.

Swegan v. Svenson, 960 N.Y.S.2d 768,104 A.D.3d 1131(Sup.Ct.A.D., 2013). The Svensons were remodeling their place. They did it right. They hired an architect to design the project and manage the contractor. The architect hired a tree service to remove two trees. The tree service did exactly as it was instructed.

But the trees were boundary trees, partly in the Svensons’ yard and partly in the touchy neighbors’ yard. It didn’t take a New York minute for the neighbors to sue everybody involved for conversion and trespass.

The Svensons moved for summary judgment, based on the novel argument that they could not be held liable for the trespass because the architect was not their agent but rather an independent contractor, and tree service certainly was not their agent but instead was an independent contractor, too. The trial court denied their motion.

The Svensons appealed.

Held: The Svensons were not entitled to summary judgment. The court held that regardless of the architect’s status as an independent contractor, the Svensons may be held liable for the trespass and ensuing conversion if they “directed the trespass or such trespass was necessary to complete the contract” between Svensons and the architect. Here, the Swegans had raised an issue of fact as to whether the Svensons “directed the trespass or whether such trespass was necessary to complete the contract.”

For the first time on appeal, the Svensons argued that, as joint owners, they had the right to remove the trees because they were structurally unsafe and created a safety hazard or private nuisance. At any rate, they claimed, they should not be assessed treble damages under RPAPL 861 because no evidence showed they acted recklessly, willfully or wantonly. The court did not consider either contention because neither had been raised in the trial court.

– Tom Root

WE ALWAYS MEANT IT

An entire e-cottage industry has grown up around the notion that there are some areas of the law – incorporation, wills, real estate transactions, contracts, divorce – where all you need to do is download some PDF fillable forms, answer a few simple questions, and save yourself a ton of money by representing yourself. When we complain about it, our admonitions are written off as self-interest.

But we always meant it. So, using an argument you might correctly characterize as reductio ad absurdum, we give you Nellie Francis.

Nellie believed she was suffering from encroaching trees belonging to her neighbor, Joshua. So she did what any red-blooded American would do: she sued.

After all, how hard can this be? Nellie filed a complaint, sent off a few motions, and called some witnesses. That’s all that a real lawyer would do, after all, and he or she would charge you $10,000 to do it.

Whoa, Nellie! She filed all sorts of motions, kept trying to amend her complaint, and even added damages for which she had already been paid, other damages which she never suffered, or – in one case – damages that happened to someone else, but she claimed it anyway.

The trial court sanctioned Nellie, requiring her to pay the defendant’s legal fees for one particularly egregious and frivolous filing. Undaunted, Nellie filed a demand that the defendant pay her legal fees, not the least inconvenienced by the fact that she was representing herself – that is, she was pro se – and so she had no legal fees.

For that matter, at trial, she could not even prove that the fallen branches had come from defendant Joshua’s trees. That seems kind of basic, the notion that you don’t sue unless you have some proof that the defendant is the one who caused you harm.

Those are the kind of technicalities that lawyers worry about. That’s why, Legal Zoom or not, they continue to be a necessary evil. Just ask Nellie…

Francis v. Brown, 836 A.2d 206 (R.I. 2003). A simple dispute between two abutting landowners and allegations of negligence in maintaining trees running along the property line between them brought Nellie S. Francis, representing herself, and Joshua Brown into court.

Nellie S. Francis lives at 16 Miller Avenue in Providence. The rear of her property is bordered by a 100’ fence, part of which abuts Joshua Brown’s place at 21-23 Verndale Avenue. A row of mature maple trees stands along the boundary between Nellie’s and Josh’s.

Nellie sued Josh, contending he was negligent for failing to maintain the trees or to prune rotted limbs that constantly fell into her backyard, causing injury to herself, her children, her dog and her elderly mother, as well as damages to her fence, two cars, a concrete floor of a torn-down garage, a swing set, and a doghouse. Josh denied all of Nellie’s allegations.

In February 2000, Josh moved to enter Nellie’s land to remove trees on his property. She objected to his entry unless he assumed liability for any damage the work crews caused. Nell filed her own motion to compel Josh to cut down the trees on his property. As a result, Josh filed a motion for sanctions based on Nellie having proposed orders inconsistent with prior court rulings and having filed frivolous motions to compel Josh to do things that  she simultaneously had opposed. The hearing justice agreed and further found that Nell had caused unnecessary delay and increased Josh’s cost of litigation. She was ordered to pay $350 to defense counsel by June 9, 2000.

Along with her blizzard of pretrial motions, Nellie found time to move to amend her complaint on more than one occasion to add further damages. She also appealed to try to review an order denying her motion for reconsideration of an order granting Joshua’s motion for assessment of legal fees against Nellie. Undaunted by the prospect of the trial court sanctioning her for her vigorous and unschooled courtroom antics, Nellie sought leave to amend her complaint for a second time, this time incorporating diverse and sundry damages not included in her first amended complaint. The trial court turned her motion down, finding it was “too late [and] inappropriate,” and prohibiting her from bringing forth any incidents not referred to in her first amended complaint. What’s more, the trial judge ruled that Nellie would be precluded from presenting any medical evidence relating to animals or persons not named as complainants. Finally, he ruled that the jury would not receive any information about insurance coverage, so it would decide the case on the merits rather than on the defendant’s ability to pay.

Neophyte Nellie fared little better at trial. She called several witnesses, including herself and her daughters, but conceded she did not know what caused the branches to fall, nor could she state with certainty whether the branches shown to her in photo exhibits came from Joshua’s property or the vacant property next door. She admitted that she did not own the two vehicles damaged by trees for which she sought compensation. Neither of her daughters could pinpoint which property the fallen branches came from, and neither testified about what caused the branches to fall. Louis Bobola, the director of forestry for the City of Providence, testified that the trees were not on city property. He also said the trees needed pruning but that he did not see any decay.

Joshua’s lawyer introduced evidence that, six years earlier, Nellie’s insurance carrier had already paid her for some of the tree damage she now claimed. At the end of the trial, the judge granted Joshua judgment as a matter of law, holding that Nellie had utterly failed to prove her claim:

“The problem with the entire case is there is no evidence before the jury with regard to any damages sustained in this case by the plaintiff or her property… [T]here is not a scintilla of evidence before this court as to what tree or trees occasioned the alleged injury, on whose property they were located, were they on the defendant’s property or were they on the abutting property on the boarded-up house. And throughout the case, while there are certain inferences that can be drawn that branches do not fall on their own from trees, it simply in this [c]ourt’s view is not sufficient to be able to predicate a finding of negligence on the part of the defendant simply because this event has occurred… Mere ownership of trees that may or may not have caused damages does not impute negligence to the owner.”

The unsinkable Nellie filed for reconsideration, which the judge treated as a motion for a new trial. The court, charitably noting that Nellie had undertaken the difficult task of representing herself, found that the record lacked any objective damage for the jury to consider, even if she had satisfied the first two requirements of negligence and proximate cause.

Nellie appealed to the Supreme Court.

Held: The trial court was upheld in every regard.

After reciting a litany of Nellie’s failings, the Court upheld the trial court’s evidentiary rulings, its refusal of Nellie’s repeated amendments, and its judgment for Joshua. As for Nellie’s amendments, the Court agreed with the trial judge that she had been allowed to amend once, the trial date was upon the parties, and the amendment was flawed, with “many of the proposed incidents that plaintiff sought to add occurred several years previously. We believe that plaintiff was aware of their occurrence well before she filed her original complaint.”

After all of that, the trial court’s modest $350.00 sanction of Nellie seemed restrained. Noting that Joshua “was awarded $350 in fees as a sanction against plaintiff for filing motions and making pretrial objections for inappropriate purposes,” the Supreme Court held that “the trial justice awarded a reasonable fee, well below the amount requested by defendant, for the purpose of giving ‘a warning’ to the plaintiff. We believe the sanction was justified and well within the trial justice’s discretion.”

Nellie made her own demand that Joshua pay her a “pro se” fee for the work she had done on her own case. The Court drily said, “We decline to address the plaintiff’s appeal from the denial of her motion for an award of pro se fees. The plaintiff has not supplied this Court with an adequate record on which to review the issue, and therefore, we deny and dismiss her appeal on this issue.”

– Tom Root

SO WAS MARY ANNE AN EMPLOYEE?

Every red-blooded American boy (and girl, for that matter) knows the story of Mike Mulligan and Mary Anne. Work had dried up for the pipe-smoking Mike and his redoubtable steam shovel, so they took a job in Popperville digging the new town hall basement. Mike pitched the town’s selectmen (this happened back in the day when steam shovels were female but governing officials were not) by promising to dig the new town hall cellar in only one day, a task that everyone involved agreed would take 100 shovel-wielding men at least a week to complete.

The selectmen — especially one named Henry B. Swap — were dubious of Mike’s claim that Mary Anne could dig the basement so quickly, so they made a deal with Mike: He wouldn’t get paid unless he completed the work in the time allotted.

Mike missed the deadline, but the story still had a happy ending. Such was not the case for Terry W. Henry. Terry, an experienced timber harvester, needed work. He asked Bobby Hubbard, who ran a timber company working several tracts of leased land, for a job. Now Bobby appears to be one of those employers, you know the kind, guys who “try out” people and then find them deficient, not hiring them and, for that matter, not paying them for the “tryout” period. On top of that, Hubbard made everyone working for his timber operation an independent contractor, paying them in cash with no withholding and no tax reporting whatsoever.

While Terry Henry was on his one-day “tryout” — the deal being that he would get paid if Hubbard found his work acceptable —  a tree branch fell on him. Of course, “Captain All-heart” Hubbard refused to pay him for the day’s work and fought Henry’s workers’ compensation claim. The Board found that under the law, Henry was an employee, despite the conditional promise of payment. Hubbard argued that Henry would have become, at best, an independent contractor and been ineligible for workers’ comp. But he abandoned that argument at the Workers’ Comp board level, and the Supreme Court wouldn’t let his lawyer resurrect it after the Court of Appeals had already heard the case. If he had made the independent contractor argument, he might have been off the hook, but it’s hard to see the “independent contractor” argument as anything more than a tax-and-responsibility dodge.

Still, Hubbard’s lawyer flubbed the case procedurally by not keeping the issue alive. Maybe Hubbard had his mouthpiece working under a “tryout” deal, too, and he won’t have to pay his solicitor.

Hubbard v. Henry, 231 S.W.3d 124 (Sup.Ct. Ky., Aug. 23, 2007). Henry had operated a bulldozer and cut timber for about ten years. He responded to an ad that Hubbard, a licensed master logger who leased the right to harvest timber from landowners, had placed. Hubbard usually employed four workers to operate a bulldozer and cut and load the timber under written employment contracts. The workers were independent contractors and supplied their own saws, chaps, and safety equipment, while he provided the bulldozer, skidder, gasoline, chains, and files.  Hubbard paid them weekly in cash for days worked, and he did not withhold taxes or issue a Form 1099 for their pay.

Because Hubbard wanted to be certain that Henry could do the job, Henry agreed to work on a trial basis for a couple of days and to receive no pay unless Hubbard was satisfied with his work. Henry recalled that they discussed pay of either $10.00 per hour or $100.00 per day (which Hubbard disputed) and said Hubbard never told him he would be hired as an independent contractor. Henry cut several poplars, and one fell into a sycamore tree. Another worker then showed Henry how to do a hinge cut, and a branch from the sycamore struck him on the head, injuring him severely.

Henry later asked Hubbard to pay him for the day that he worked. Hubbard refused but gave him some money later (except he did not say that it was payment for the work). Henry filed for workers’ compensation payments, asserting he was hired and working as an employee when he was injured.  Hubbard countered that Henry had not been hired and was working on a trial basis only or — even if he had been hired — he was an independent contractor rather than an employee.

The ALJ found Henry was working on a trial basis when he was injured. Noting that state law premised employee status on the existence of a contract for hire, the ALJ also found that Henry failed to show a meeting of the minds sufficient to impute an implied contract for hire or to show that he expected to be paid for the work that he performed on the date of his injury.

Henry appealed to the Workers’ Comp Board, asserting that the ALJ erred by concluding that there was no implied contract for hire, by that he worked on a trial basis but was not hired, and by failing to determine that he worked as an employee. The Board held as a matter of law that Henry was Hubbard’s employee, noting the undisputed evidence that Hubbard’s outfit was a logging company in the business of harvesting lumber for profit and that, at the time of Henry’s injury, he was harvesting timber at a job site that Hubbard controlled.

The Court of Appeals affirmed, and Hubbard appealed.

Held: Henry got his workers’ compensation benefits. The workers’ compensation statute defines “employee,” for coverage purposes, to include every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury. It is intended to protect workers who are injured while performing work in the course of an employer’s business by considering them to be “employees,” despite the lack of a formal contract for hire unless the circumstances indicate that the work was performed with no expectation of payment.

Under the statute, Henry was an “employee” when he was injured during his tryout for employment as a timber cutter, despite the fact that Hubbard would owe Henry nothing if Hubbard was dissatisfied with the work. There was a contract of sorts: Henry would be hired and paid unless Hubbard was dissatisfied with his work. A co-worker did not say he would have discouraged Hubbard from hiring Henry, and Hubbard did not indicate he was dissatisfied with Henry’s work or that he would not have hired him had he not been injured.

Hubbard did not preserve the issue of whether Henry was an independent contractor in the course of an employer’s trade, business, profession, or occupation — who by law had effectively elected not to be covered by the Workers’ Compensation Act — so that matter could not be considered.

– Tom Root

EXPERT TESTIMONY

I spent the better part of last week trying to line up a couple of expert witnesses for an Ohio civil case. The eye-glazing episode made me think of Mark Twain’s aphorism: “an expert is just somebody from out of town.”

As I was reminded in my quest for some experts in rather arcane disciplines, it’s a little more complicated than what Twain may have thought. But not that much: certified arborists, tree-trimming service operators, even just guys from out of town, just about anyone can be qualified by courts as an expert witness.

And what good is an expert witness? Primarily, experts testify not to facts, but rather to opinions. Juries like opinions. Opinions sway juries.

In today’s case from Arkansas, a frolicking bulldozer operator wiped out a bunch of a neighbor’s trees. Clearly, she was entitled to damages. But how much would the damages be? She hired the county extension agent to testify as to the value of the trees that had been cut down. The defendant complained that the expert relied on timber sales reports written by others, but the Court of Appeals accepted his opinion and, in doing so, explained the type of research process it wanted to see as the basis for an expert opinion.

Of course, the state’s treble damages statute, which tripled the value of the lost timber, made the expert’s opinion all the more important to both sides. Incidentally, the defendant argued that there was no proof the bulldozer operator was his agent, but that was a mere sideshow: the evidence overwhelmingly supported that point.

Jackson v. Pitts, 93 Ark.App. 466, 220 S.W.3d 265 (Ct.App. Ark. 2005). Richard Jackson owns land just north of Nora Pitts’s property. Pitts claimed that Jackson or people acting for him bulldozed trees on her land where it borders Jackson’s.

Lloyd Pitts, Nora’s son, saw John Moore operating a bulldozer in the area where the timber was destroyed, along Pitts’s property line with Jackson’s land. Lloyd said he walked along his mother’s land shortly afterward and saw holes where trees had been removed from the bulldozed ground. Another witness saw the bulldozer activity on Pitts’ property and said that the bulldozer operator told him that he had been directed by Jackson to perform the work. The trial court found that Jackson and Moore trespassed on Pitts’ land and destroyed marketable timber, valuing the destroyed timber at $1,157.20. Treble damages allowed under §18-60-102 of the Arkansas Code increased the judgment to $3,471.60. Jackson appealed.

Held: The trial court judgment was upheld. Jackson claimed that treble damages were unjustified, but the Court disagreed. Treble damages in a trespass action for trees damaged, broken, destroyed, or carried away require a showing of intentional wrongdoing, although intent may be inferred from the offending party’s carelessness, recklessness, or negligence.

Here, the Court said, the evidence was sufficient to support a finding that an agency relationship existed between Jackson and the bulldozer operator, making Jackson liable for the operator’s damage to Pitts’ timber. Lloyd Pitts saw the bulldozer operating on his mother’s property near the damaged timber and saw Moore operating it. Another witness said Moore said he was working for Jackson. Jackson admitted he hired Moore to work on his property with a bulldozer and that, if any trees were removed from Pitts’ property, Moore would have done it.

As for the amount of damages, the Court said, the evidence in each trespass case determines what measure of damages should to be used to value trees damaged, broken, destroyed, or carried away. Timber is generally valued at its “stumpage value,” the value of the timber standing in the tree. Here, Pitts’ expert witness testified to the estimated number of trees Moore destroyed and their market value at the time. The Court said the evidence was admissible, even though the opinion relied in part on hearsay. The expert described his methodology for computing timber value within a specified area, including diameter measurements of randomly selected trees, an estimate of timber volume multiplied by the number of trees in that area, and a university timber market report to obtain an estimated market value.

What’s more, the Court observed that the expert testified he personally walked the area to take his measurements, then walked off the bulldozed area and into the woods next to it to measure a similar amount of land and count the trees within it. The Court said an expert witness may base an opinion on facts or data otherwise inadmissible, as long as the facts or data are of the type reasonably relied on by experts in that particular field.

– Tom Root