Case of the Day – Friday, June 2, 2023


A lone pine ... but not in Lone Pine, California.

A lone pine … but not in Thousand Oaks

Alert reader Rock Maple wrote us recently with a very good question. His inquiry is deceptively simple. He has a lone pine in Thousand Oaks, California. Rock asks: “I have a 50-year-old pine tree and it is now overhanging on the neighbor’s property. He wants it trimmed back. I have refused. Can he legally trim my tree back?”

“Well, sure he can!” the rest of you readers say. After all, you’re fairly expert at the Massachusetts Rule. Normally we would agree. But this is California we’re talking about, so nothing’s simple.

We’ll answer Rock’s question over the next three days, looking at how common-law notions of self-help enshrined in Michalson v. Nutting, the grand-daddy of encroachment cases that gave us the Massachusetts Rule, are applied in California.

In today’s case, Bonde v. Bishop, Mr. Bishop had a big old white oak tree he loved as much as our reader is attached to his pine. But the oak was overhanging his neighbor’s place, and his neighbor wanted it trimmed back. Sound familiar? But Mr. Bishop’s oak had some problems. It shed branches quicker than Elon Musk loses attorneys. It had already taken out Mr. Bonde’s fence, his garage, and (very nearly) his head. Cleaning up after the tree was a daily chore, and the old tree was so dangerous that the Bondes wouldn’t leave their baby on the patio (probably a good idea, tree or no tree, but that’s a parenting decision).

The Bondes asked Mr. Bishop for permission to trim the tree, but he told them to touch not a single bough, or he’d sue. So they sued Mr. Bishop first, this being California (or just this being America), asking the Court to declare the tree a nuisance and force him to remove it.

The Court agreed. California does indeed follow the Massachusetts Rule, which meant that the Bondes had the right to trim the tree’s branches overhanging their property. But here, the problem went beyond that. Mr. Bishop’s white oak was a nuisance under California law, the Court held, because of the pervasive damage it caused. The Court, perhaps reacting to the extent of the mess as well as Mr. Bishop’s intransigence, ruled that a tree owner is liable for damage — even insignificant damage — is caused to his neighbor.

So, as we knew all along, our reader’s neighbor would have the right to trim the tree back to the property line. In fact, if the 50-year-old pine is a persistent branch-shedder, it might be a nuisance, and our reader’s refusal to let the neighbor trim it could leave him in Mr. Bishop’s position: having to remove the offending branches himself.

But — and this is California, so there’s always an “on the other hand” — as we will see tomorrow, there are limits on what the neighbor can do, even on his own property.

The Bondes could no longer park their kid on the back patio, out of fear that a falling branch would bean him. The infant was not amused ...

The Bondes could no longer park their kid on the back patio, out of fear that a falling branch would bean him. The bambino was not happy …

Bonde v. Bishop, 112 Cal.App.2d 1, 245 P.2d 617 (Ct.App. Div. 1, 1952). Some of the branches of Bishop’s white oak tree were overhanging Bonde’s property by 25 feet, about 40 feet off the ground. Early one September morning, a large limb broke loose from the tree, smashed through Bonde’s garage, and destroyed a section of fence. Bishop said it was not his responsibility, and Bonde’s insurance paid for the repair. The tree continually dropped smaller branches on Bonde’s roof, driveway and patio. One small branch almost hit Bondes while he was standing in the middle of his driveway. During the rainy season, it became a two-hour job every Sunday to clear tree debris from the gutters and the drain spouts. The Bondes were afraid of the overhanging limbs and stopped leaving their baby out in the patio.

The debris required the Bondes to sweep the patio and driveway daily and rake the lawn before mowing. They put screens on the gutters so they would not be required to clean them. When Mrs. Bonde told Mr. Bishop that the Bondes desired the tree cut back to their line, he not only refused but warned her that if they had it cut back and damaged the tree in any way, he would sue them. Nevertheless, after the limb fell Bishop had the foliage thinned out. Finally, Bonde sued Bishop, asking the trial court to declare that Bishop’s tree was a nuisance.

The court agreed and ordered Bishop to abate the nuisance and awarded damages.

Bishop appealed.

Mr. Bishop's white oak dropped branches with regularity.

Mr. Bishop’s white oak dropped branches with regularity.

Held: The Court agreed the tree was a nuisance and ordered Bishop to abate the nuisance. The Court explained the rule in California generally is that to the extent that limbs or roots of a tree extend upon adjoining landowner’s property, the adjoining owner may remove them, but only to the property boundary line. Nevertheless, the remedy isn’t exclusive. An owner of a tree, the branches of which overhang adjoining property, is liable for damages caused by overhanging branches. The Court said that even insignificant damage is enough for the statute — might this include falling leaves in the fall, one wonders — because the significance of the damages goes to the amount the plaintiff can recover, not to whether the plaintiff has a case on which to sue to begin with.

But, the Court said, absent the tree being a nuisance, no landowner has a cause of action from the mere fact that branches overhang his premises. Instead, the adjoining landowner’s right to cut off the overhanging branches is a sufficient remedy, indeed, the only remedy. In order to obtain a court owner that the tree’s owner do something, an adjoining landowner must show that the tree is a nuisance under the nuisance statutes.

The Court observed sadly that “apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do.”

– Tom Root


And Now The News …

Cleveland, Ohio, Plain Dealer, May 31, 2023: Tree falls, kills golfer sitting in cart on Ohio course

A 35-year-old man was killed Saturday when a tree fell on his cart as he was playing a round of golf at a course in Mahoning County. WKBN Channel 27 reports Brian Costantini, of Boardman, was in the cart with his brother-in-law, Jordan Hardwick, 35, on the 17th hole at Mill Creek Golf Course at about 9 a.m. when the tree fell. Hardwick was able to get out of the cart unassisted, but Costantini was pronounced dead at the scene, WFMJ Channel 21 reports. It took rescuers several hours to remove the tree, which was estimated to be between 80 and 100 feet tall, reports say. The trunk of the tree was about 3 feet thick. Boardman Assistant Fire Chief Rob John tells WKBN he estimates the tree weighed about 20,000 pounds. “We had to cut all the limbs off the tree to get it down to a trunk — a manageable size that that large loader could even lift that trunk of the tree,” John tells WKBN. Authorities say the tree appeared to be in good health and did not show any signs of rot…

T&D World, May 16, 2023: The Past and Future of Safety in UVM

The science of safety has changed much since the early 1900s, and yet, we still see some of the old practices used in our profession. What started with Frederick Taylor’s The Principles of Scientific Management was somewhat furthered by the work of Herbert Heinrich’s classic work in 1931, Industrial Accident Prevention: A Scientific Approach, which drove most of the safety world for the greater part of a century. Although “Taylorism” brought forth some good ideas from the production aspect of work, it created or at least strengthened, the divide between the worker and management. An extreme simplification of the Taylor view was that the worker wasn’t smart enough and, therefore, should play no role in the planning of the work. Heinrich’s work added to this by, in essence, blaming workers for their “behavior” and creating an oversimplification of the relationship between behaviors and outcomes. This led to the graphic of the safety pyramid, or triangle, which attempted to explain the relationship between behaviors, low-severity, and high-severity incidents. The fundamental flaw with the safety pyramid concept is that it assumes that the same underlying behaviors cause low-, medium- and high-severity injuries or fatalities. This faulty thinking led to a connection between the severity of incidents; that is, the more lower severity incidents occurred, the greater likelihood of a severe one or fatality. The data just didn’t support this connection…

Redding, California, Record Searchlight, June 1, 2023: How to protect your cherry, other fruit trees from hungry birds while keeping them safe

Q: What sort of netting can I use on a cherry tree that will prevent birds from eating the cherries, and also doesn’t snag birds? Also, will ground squirrels chew up the netting?
A: Your concerns about netting trapping birds are warranted as most of the bird netting sold for use in the home orchard traps birds and other wildlife. Because of the number of animals trapped in bird netting, some locations in Australia have banned various types of agriculture nettings to prevent harm to wildlife, including birds, lizards, snakes, and bats. The black plastic netting most commonly sold as bird nettings seems to be the worst one for trapping wildlife. Two types of netting are suggested to prevent the entanglement of birds: Relatively stiff netting (think screen material) or flexible material with very small openings…

People Magazine, June 1, 2023: Calif. Woman Has ‘No Feeling from the Chest Down’ After Being Struck by Tree Limb on Vacation

A California nursing director will soon be returning to the United States after she was hospitalized following a freak accident on vacation. Deanne Niedziela was on vacation in Costa Rica with her husband on Sunday when she was “struck by a falling tree limb” during a waterfall hike, according to a GoFundMe campaign. The couple was touring La Paz Waterfall Gardens Nature Park at the time, according to ABC affiliate KABC-TV. “This thing came slamming to the ground,” the Orange County man told the outlet. “And I looked over and saw Deanne laying on the ground.” Deanne “suffered a nearly fatal spinal cord injury,” according to the GoFundMe page. After being hospitalized, she underwent nine hours of surgery on Monday, per KABC-TV…

Lansing, Michigan, MLive, May 31, 2023: Historic derecho was 25 years ago today: Its 130 mph winds snapped trees and collapsed homes

It was 25 years ago today that a historic derecho raced across Michigan’s Lower Peninsula, leaving a path of destruction and killing four people. Michiganders woke on Sunday, May 31, 1998, to find snapped trees, downed power lines and even collapsed buildings in some of the hardest-hit areas, according to National Weather Service records. The wreckage spanned hundreds of miles. In addition to the four deaths, 146 people were injured. In addition to the four deaths, 146 people were injured. The squall line of thunderstorms, also known as a derecho, had an average speed of 70 mph with a wall of winds between 60 and 130 mph, NWS said. It first touched Michigan at 4:45 a.m. and had crossed the peninsula by 8 a.m. Five tornadoes developed in Northern lower Michigan. The storm began in South Dakota and continued to New York, but “of all the regions affected by the derecho, the greatest damage and the greatest number of casualties occurred in Lower Michigan,” NWS said…

Oak Ridge, Tennessee, The Oakridger, May 30, 2023: Property owners beware: Vines are killing your trees

In Oak Ridge, trees are being strangled, suffocated and swallowed by vines. Kudzu. Virginia creeper. Poison ivy vines. Grapevines. Trumpet vines. Wisteria vines. English ivy vines in wooded yards. “Vines are climbers,” said Chuck Coutant, a biologist who co-wrote with Bob Compton an article on the problem published on the front page of the May newsletter for the Tennessee Citizens for Wilderness Planning (TCWP). He explained that most vines climb trees to get closer to the canopy where they can soak up more sunlight. He added that vines reaching the tops of trees may suffocate their hosts by covering their leaves and preventing photosynthesis. This vital process enables trees to make carbohydrates that travel throughout the tree and to the roots, nourishing them and causing them to grow. Wisteria vines can circle and strangle a tree trunk, keeping it from expanding…, May 31, 2023: Short-lived solutions for tall trees in Chile’s megadrought

For more than a decade, forests across much of Chile have been experiencing a megadrought, its effects overprinted on an already warming and drying climate. High in the Andes, stands of giant Nothofagus obliqua trees, also known as roble or southern beech, are stretching themselves to survive—and bucking a global forest trend. Many trees have experienced decreased growth rates, but some Chilean beeches, which can grow to heights of 40 meters (131 feet), have not. However, researchers report in a new study, not all stands stand equal chances of success in coping with the climate. Urrutia-Jalabert et al. studied five stands of N. obliqua across a 500-kilometer-long section of the Chilean Andes that spans both Mediterranean and temperate climates. The researchers analyzed carbon and oxygen isotopes in the trees as well as the widths of tree rings dating from 1967 to 2017. These indicators reflect the amount and source of precipitation a tree has received, and together they can reveal how a tree has survived…

Sioux Falls, South Dakota, KELO-TV, May 31, 2023: What tree should I plant in Sioux Falls?

Surrounded by trees older than 100 years and trees as new as this spring, Bryan Peterson wondered what Sioux Falls could look like if the rest of the city modeled tree planting after McKennan Park. Peterson, the city’s urban forestry specialist, was armed with an iPad full of data regarding all the trees planted in the more than 80 different city parks. He highlighted how McKennan Park has always had a diversity of trees and five years after the Emerald Ash Borer was first confirmed in northern Sioux Falls, the park does not have a single ash tree. “Looking around the park and visiting the park, you can hardly tell the difference,” Peterson told KELOLAND News. “There are certainly a few stump sites. For residents in the neighborhood, I’m sure you know where there were ash trees and where there were not…”

Houston, Texas, Chronicle, May 30, 2023; My neighbor’s tree is hanging over my property, what can I do?

Q: My house is next door to an empty lot owned by a contractor. There is a tall tree near the property line that leans toward my property and house, with the larger branches actually over my property. I have asked the owner to trim the tree, but they have refused to do so. Although the tree is healthy, I worry that it might fall over in bad weather and destroy my home and possibly hurt me. What can I do?
A: The contractor who owns the lot next door has no duty to trim a healthy tree. If you want the branches to be trimmed, you will need to pay someone to do that work for you. The branches can be trimmed up to the property line. You should be sure the company you hire does not kill the tree because you could possibly be held liable…

Axios, May 30, 2023: Why Chicago’s shrinking tree canopy hurts communities

Why it matters: Urban tree canopy improves air quality by removing harmful gasses from the air and storing CO2, according to a recent report from environmental information newsroom Climate Central. It also absorbs stormwater, decreases flood risk and creates connections to nature that improve physical and mental health. By the numbers: Chicago’s tree canopy cover shrank in the city proper from 2010 to 2020. Trees covered just 16% of the city’s land in 2020, trailing behind New York and Los Angeles, per the Morton Arboretum. While canopy cover decreased, the tree population in the greater Chicago area grew from 157 million in 2010 to 172 million, according to the arboretum. State of play: On average, each year Chicago has lost about 10,000 more trees than it has planted since 2010, per a 2020 analysis by the Sun-Times. The decrease was mostly driven by pests and disease. To combat the losses, former Mayor Lori Lightfoot pledged last year to plant 15,000 new trees annually. But her rush to get it done in cold, non-ideal planting weather last December left some worrying the execution would stifle root growth…

The Atlantic, May 30, 2023: The Trees Don’t Care About Us

Silent observers of our lives, trees are on most peoples’ radar only at moments of transition or death: We mark springtime’s budding and autumn’s flamboyance; note somberly the tree felled by a storm or by the tiny, ravenous ash borer. Although emblematic of nature, they nonetheless are seen with the goggles of our human-centered vision, and thus barely seen at all. With a rush of popular fiction and nonfiction on the sociality of trees, we are starting to recognize the extent of what we’re missing. Whether the simplest details—the plain fact of their presence more below ground than above it—or the awareness of their constant inter-arboreal communications, trees have officially entered our contemporary awareness as more than just a background to our human dramas…

Charlotte, North Carolina, Observer, May 26, 2023: More than Bradford Pears: These are invasive trees to watch out for in your NC yard

Bradford Pear trees may have a lock on publicity among invasive plants, with their stinky blooms drawing attention annually, but there are other problematic trees found in North Carolina too, wildlife experts say. In addition to being a nuisance to gardeners and homeowners, invasive trees can also damage ecosystems and pose health risks. But there are also steps you can take to clear your space and help control the spread if you spot an invasive tree on your property. Here’s what to know about invasive trees found in North Carolina and what to do about them: What is an invasive species? Invasive species are defined by the U.S. Department of Agriculture, as “plants, animals, and other living organisms” that are introduced to ecosystems where they are “non-native” or “alien,” which “causes or is likely to cause economic or environmental harm or harm to human health.” In addition to the Bradford Pear, there are other invasive trees that threaten North Carolina, the state Forest Service says, including: Tree of Heaven, AKA Ailanthus altissima: Native to China, this tree has “aggressively naturalized in many parts of the USA and all areas of North Carolina,” the NC State Extension says. “The leaves are the best way to identify this tree as the large compound leaves have a glandular, notched base on each leaflet and the serrations or tooths on the margin appear toward the base of the leaf,” per the extension…”, May 29, 2023: What happens when conflicting priorities collide and potentially compromise trees, woodland and forests?

Case of the Day – Thursday, June 3, 2021


truck141121The Andersons were livin’ large in the (very) flatlands of far north Minnesota … at least until the swampland next to theirs got sold to the State.

The Minnesota DNR built the Halma Swampland Wildlife Management Area for tourists from down south. You know, just a place to watch birds, hunt deer and bear, and be drilled by mosquitoes the size of floatplanes.

If that wasn’t bad enough, the State then put up signs to stop visitors — including the neighboring Andersons — from racing their ATVs, cars, and pickups up and down the wildlife trails. A year later, the State fenced off the boundaries, right across one of the trials.

Sadly, the Andersons’ raison d’être – a Minnesota term meaning “it’s what we live for” – for living next to the swamp was to race their ATVs, cars, and pickups up and down the wildlife trails. So they hired one of them fancy-pants city slickers with an armful of lawbooks. He told the Anderson clan that they had a prescriptive easement, that is, a right to run their pickups and cars up and down the WMA trails, because they had done it for so long.

The State unsurprisingly took a dim view of the Andersons’ activities, arguing that the recreational use statutes — not to mention Minnesota’s policy of encouraging private recreational use of land (but probably not pickup trucks being driven up and down trails) — meant that no one could acquire a prescriptive easement on recreational lands.

There are only 78 people in Halma - so if you don't drive your pickup through the swamp muck, there's not a lot to do.

There are only 78 people in Halma – so if you don’t drive your pickup through the swamp muck, there’s not a lot to do.

The Court had to balance competing interests here. Although one might expect that the judiciary would bend over backward in favor of a state-run recreational area, it played the case right down the middle. The Andersons won their prescriptive easements, but the court held the easements were not transferable, and they would expire on the deaths of the particular Andersons named in the suit.

Anderson v. State, 2007 Minn. App. Unpub. LEXIS 911, 2007 WL 2472359 (Minn.App. Sept. 4, 2007). Since the 1930s, the Andersons had owned a piece of land next to property now owned by the State of Minnesota. The state bought its parcel from a private owner in 1989 and created the Halma Swamp Wildlife Management Area. The WMA is managed by the Department of Natural Resources.

The DNR put up signs prohibiting motorized vehicles on the property and fenced across a trail where it enters the WMA. Because the Andersons had used the trails on what was now state land for more than 60 years, often driving cars, pick-up trucks, and all-terrain vehicles on them, they sued the state, claiming a prescriptive easement. The trial court found the Andersons had a prescriptive easement by motor vehicle over five trail segments in a section of the WMA. The court held that the right is not assignable and will terminate with the lives of the named Andersons. The state appealed.

solomonic141121Held: The Andersons had a right to the prescriptive easement. The Court described an easement as an interest in land in the possession of another which entitles the easement owner to a limited use or use of the land in which the interest exists. Whether a prescriptive easement exists is determined in a manner similar to title by adverse possession.

A prescriptive easement may be found if the person claiming the easement has acted in a manner “hostile and under a claim of right, actual, open, continuous, and exclusive.” Adverse possession may be maintained by “tacking,” when the current adverse possessor obtained the property through transfer or descent from a prior adverse possessor. The state argued that the trial court erred by granting an easement to the Andersons when Minnesota law encouraged landowners to permit public recreation on their land and purported to protect landowners from claims arising from such recreational use. The trial court was not unsympathetic to the argument, but because the recreational-use statute was passed in 1994, it applied only to causes of action arising on or after that time.

The Court of Appeals agreed, noting that while Minnesota encouraged public use of lands and waters for beneficial recreational purposes since 1961, only in 1994 was the law changed to prohibit the creation of adverse easements on private recreational lands. The Andersons had used the property and trails beginning in the 1930s, and use continued uninterrupted until 2002, when the DNR installed signs, and 2003, when the DNR erected a fence across a trail. The evidence showed that the Andersons’ adverse use of the trails extended for 15 or more years before the state’s ownership of the land.

goodtimes141121The state argued, however, that the trial court erred by concluding that the Andersons had established a prescriptive easement because, since recreational use is encouraged by Minnesota law, the element of hostility could not be shown. What’s more, the state contended, the district court erred by determining that respondents’ adverse use of the WMA was visible.

The Court held there was ample evidence that the Andersons developed and used the trails, and it has long been recognized in Minnesota that a person who purchases land with the knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement. There is no dispute that there were existing trails when the state bought the land in 1989. That fact was sufficient to sustain the trial court’s findings.

A dissenting judge said the Andersons’ use of the land was permitted by statute and state policy, and was neither inconsistent with the rights of the property owners and was not hostile. Because the Andersons’ use was not hostile, he argued, he reasoned, they have not obtained a prescriptive easement. As we all know, the dissenting opinion is the losing jurist’s lament (if not whine), and – while sometimes interesting and often scathing – doesn’t really count.

– Tom Root


Case of the Day – Wednesday, May 31, 2023


We dimly recall those halcyon days of first-year law school, when our minds were exposed to all of the many ways people could own the land. There were divided interests, undivided interests, partitions, fee tails, tortious fees, tenancies in common… We also recall there was a bar across the street from the law school, and often we would flee the property law classroom for the comfort of a tall, cold one.

That was not always such a good idea. Had we retreated instead to the library, we might have appreciated some of the nuances of real estate ownership better than we did. Had logger Richard Lessard’s attorney appreciated those finer points, his client might have been saved becoming one of the actors in today’s case.

Duane Henry owned 40 acres in Winneshiek County, Iowa. He also co-owned another 120 acres with his four adult kids, with Dad owning 60% and the four children each having an undivided 10% interest. The arrangement may have been some lawyer’s idea of estate planning, or even a protection against the state forcing a sale if senior citizen Richard needed Medicaid for long-term nursing home care.

Whether the ownership would have shielded the land from a Medicaid claim is beyond our ken, and when the questions have come up in our parents’ affairs, we willingly hired lawyers who do nothing but elder law. We do know, however, that whatever its merit as an estate planning tool, this kind of ownership – a cotenancy – plays havoc with getting anything done with the land.

When Dad Duane needed money for a nursing home, he signed a deal with logger Richard Lessard to cut enough timber to pay the bill. Richard knew about the cotenancy, but he thought that Duane could sign the contract.

Richard started to work, but within a day was thrown off the property by one of Duane’s kids. The kids apparently didn’t much like the deal Dad had made from his nursing home bed. They later took bids on timbering the land, and all of the owners – the kids and Dad – signed a deal with another company.

Richard’s problem was this: in a cotenancy, all of owners may have interests, but none of them is automatically an agent for the others. A contract for timber has to be ratified by all of the owners, even that third cousin once removed who lives in Jerkwater, West Dakota, that no one has seen for a decade.

If you’re cutting timber, buying an easement, or making some other deal to materially affect the value of the property, be sure that you know who the owners are and that you have signatures from everyone who needs to sign. Your lawyer can advise you, and the bill will be a lot lower than the costs of being wrong.

Lessard v. Henry, 804 N.W.2d 315 (Ct.App., Iowa, 2011). Duane Henry co-owned 120 acres with his four adult children. Duane owned an undivided 60% of the acreage, and each child owned an undivided 10% interest.

Duane hired Richard Lessard, a logger, to cut timber on Duane’s own 40 acres, and on the 120 acres he owned with his children. Richard Lessard knew that the 120 acres were owned in the 60-10-10-10-10 cotenancy. The contract Duane and Richard signed specified that Lessard Logging would cut down mature trees on Richard’s 40 acres and the 120-acre cotenancy. Duane would receive 60% of the profits, and Lessard 40%. The agreement also provided Duane’s children would each receive 5% percent of Duane’s share. Duane was in a nursing home at the time they entered into the agreement and wanted the money to help pay nursing home bills.

One or two days after the contract was signed, Richard moved a skidder to the property. Duane’s son, David, told him to remove the skidder, which he promptly did. Soon after that, Richard learned that Duane and his children were taking bids for logging on their property. Eventually, another person entered into a contract with Duane and his children to cut 345 trees on the property.

Richard sued, but he lost in the trial court, because Duane’s children, as cotenants of the property, had not authorized or ratified the contract. The court found the children “had given their father no authority to enter into any kind of a logging agreement with the Plaintiff as to the parcels of land in which they have an ownership interest.”

Richard appealed.

Held: Richard’s contract was no good. The appeals court said that the existence of a cotenancy does not imply an agency relationship between the cotenants. One cotenant owner cannot ordinarily bind cotenants by contracts with third persons or transfer or dispose of the interest of another cotenant in such a manner as to be binding, unless authorized to do so or unless his act is thereafter ratified by other cotenants.

Richard had no evidence that Duane was authorized by his kids to enter into the timber contract, and there was no proof they had ever ratified the contract after the fact. “Where there has not been authorization or ratification,” the Court of Appeals said, “any dealing on the part of one cotenant in relation to the common property is a nullity insofar as their interests are concerned.”

Richard also argued for the first time in the court of appeals that logging contracts do not require cotenants’ assent. He maintained that Duane could agree to sell 60% of the timber – his share of it – without the kids’ OK. The Court noted that this has once been the law, but the courts now held that a cotenant may not sever timber from the land without consent of the other cotenants. But since Richard had not raised the argument in the trial court, the Court of Appeals refused to reach the issue.

– Tom Root


Case of the Day – Tuesday, May 30, 2023


Snooze141120The whole issue of “conflict of laws” is about as dry as toast, at least until someone’s injury will go uncompensated because the wrongdoer is immune from liability.

In today’s case, Mr. Cain — a Mississippian — worked for a Mississippi tree-trimming company. The company signed on with a Louisiana public utility to trim trees along a right-of-way in Louisiana. Mr. Cain was hurt when his bucket truck came into contact with an electric line, and he collected on workers’ comp from the Mississippi company. But he sued the electric utility for his injuries, too.

We have no basis for saying that the utility was or was not negligent, and thereby whether it was or was not liable for his injuries. What we do know is that the utility company and Cain’s employer had entered into an agreement that made Cain a “statutory employee” of the utility while he was working on the job, although he really remained an employee of the tree-trimming service.

Whether someone is a “statutory employee” – like beauty – is in the eye of the beholder. Someone who is a statutory employee for IRS purposes may or may not be a statutory employee under state law. Under Louisiana law, the utility was immune from Cain’s suit, because as a statutory employee, his remedies were limited to what he could collect from workers’ comp. But under Mississippi law, companies couldn’t use the “statutory employee” dodge to avoid liability. The trial court said that Louisiana law applied because the accident happened there. Pretty logical, huh? The U.S. Court of Appeals for the Fifth Circuit in New Orleans didn’t think so.

The Court said that while normally that would be the case, Louisiana state law provided an exception, that it would not apply where there was a conflict with another state’s law, and the other state’s policies would be seriously harmed by applying Louisiana law. Mississippi had a strong policy in favor of protecting the subcontractor’s worker — and that policy carried the day. The lesson here for companies working across state lines — or hiring out-of-state companies to work in their home states — is to check carefully beforehand to be sure that protective measures like “statutory employees” really will work. What goes on in Vegas stays in Vegas … but what goes on at home sometimes doesn’t really travel well.

Does this make conflict of laws clear to you? We thought so ...

Does this make conflict of laws clear to you? We thought so …

Cain v. Altec Industries, Inc., 236 Fed.Appx. 965 (5th Cir.,  2007). Francis Cain, a Mississippi resident, worked for Carson Line Service, Inc., a Mississippi corporation. Carson signed a contract with Washington – St. Tammany Electrical Co-operative (“WST”), a Louisiana corporation, under which Carson agreed to clear rights-of-way for WST’s power lines.

Working on this project, Cain was trimming trees along a power line in St. Tammany Parish, Louisiana, when his aerial truck boom came into contact with an energized WST power line. Cain was badly hurt.

Cain got workers’ compensation benefits under Mississippi’s workers’ compensation law through Carson’s insurance carrier, but that wasn’t enough. He and his wife decided to raise cain with WST, too, so they sued.

WST filed a third-party claim against Carson for defense and indemnity. WST filed a motion for summary judgment claiming tort immunity based on the “statutory employer doctrine” in Louisiana’s workers’ compensation law. That law lets contractors agree that a subcontractor’s employees are “statutory employees,” which makes the contractor immune from liability to them. Cain argued that their case was an “exceptional case,” pursuant to La. Civil Code Article 3547. Mississippi law — under which no “statutory employee” exception existed for the companies to hide behind – should govern the claim, he argued. The trial court granted WST’s motion, concluding that Louisiana law applied.

The Cains appealed.

Held: Mississippi law, not Louisiana law, governed. The Court of Appeals first determined that the laws of Louisiana and Mississippi conflicted. It then found that under Louisiana law, a written contract between a principal and contractor recognizing the principal as the statutory employer of the contractor’s employees was valid and enforceable, making WST immune from civil tort liability. Mississippi law, on the other hand, didn’t recognize and wouldn’t enforce contracts giving tort immunity to a principal sued by a contractor’s employees unless the principal has the legal obligation under the Mississippi Workers’ Compensation Act to secure compensation for that contractor’s employees.

Why all this legal hair-splitting? An injured worker thought workers' comp was;'t enough ... and was looking for a deep pocket.

Why all this legal hair-splitting? An injured worker thought workers’ comp wasn’t quite enough… and was looking for a deep pocket.

WST had no obligation under the Act. Thus, there was a substantive difference between Louisiana and Mississippi law, requiring a choice-of-laws determination. The Court said that the issue of whether WST was immune from tort liability was an issue of loss distribution and financial protection governed by La. Civ. Code article 3544. Under its mechanical rule, Louisiana law would apply because, at the time of the injury, Cain, who lived in Mississippi, and WST, a Louisiana corporation, were domiciled in different states, and both the injury and the conduct that caused it occurred in one of those states, that is, in Louisiana. Thus, the Court said, WST would be entitled to the statutory employer tort immunity afforded it under Louisiana law.

However (and this was the big “however”), article 3547 also holds that where “from the totality of the circumstances of an exceptional case, it is clearly evident under the principles of Article 3542, that the policies of another state would be more seriously impaired if its law were not applied to the particular issue …” the law of the other state will apply. The Court ruled, after comparing the policies and interests of both Louisiana and Mississippi, it was clear the policies of Mississippi would be more seriously impaired if Louisiana law were applied to this dispute than would Louisiana’s if Mississippi law were applied.

Consequently, the Court said, it would apply Mississippi law to this dispute. Thus, WST was not immune from suit.

– Thomas L. Root

Case of the Day – Friday, May 26, 2023


Remember Alexander? He didn't have anything on Heidi ...

Remember Alexander? He had nothing on Heidi …

Ever have one of those days? Heidi Cordeiro knows how you feel. Heidi had a terrible, horrible, no good, very bad day once. First, she heard a crash in her driveway and looked out to see that a tree belonging to the hospital next door had fallen, crushing her car. Then, she hurried out to assess the damage, only to fall over the branches of the downed tree, spraining her ankle. At least she didn’t have to hobble far to the emergency room.

She of course sued the hospital — who doesn’t like suing hospitals? — for the damage to her car and her ankle. Her case essentially was that the tree fell, so of course, the hospital was negligent. Unfortunately, that just set her up for another bad day.

The Superior Court made short work of Heidi’s suggestion that landowners were strictly liable for falling trees. It correctly pointed out that in Connecticut, a plaintiff must plead (and of course later prove) that the landowner knew or should have known that the tree was diseased, decayed, or otherwise dangerous.

Heidi couldn’t do that, and her case was dismissed. We’ll never know whether liability would have extended to paying for Heidi not being careful where she stepped.

She had a bad day.

Cordeiro v. Rockville General Hospital, Inc., 44 Conn.L.Rptr. 58 (Conn.Super., Aug. 21, 2007). A tree belonging to the Rockville General Hospital fell into the yard and driveway of the premises Heidi Cordeiro was renting, damaging her car. When she went out to look at the damage, Heidi tripped and fell on the branches of the tree. She sued her landlord and the Hospital, alleging negligence and asking for damages for her personal injury and for damage to her car. Rockville Hospital moved to strike the count against it arguing that the plaintiff has failed to state a claim.

Held: Rockville Hospital was dismissed as a plaintiff. The Hospital argued the facts alleged in Heidi’s complaint did not give rise to any duty owed by the Hospital to the plaintiff, the falling tree was caused by an “act of God” for which the Hospital was not liable, and the falling tree was an open and obvious defect that the plaintiff should have avoided.

Fallen_treeThe Court observed that the essential elements of a negligence action were duty, breach of duty, causation, and actual injury. Here, Heidi Cordeiro alleged that “a tree … belonging to the defendant … fell upon the yard and driveway area of the premises where the [plaintiff] resided [as a tenant], and when the plaintiff went out to look at the damage to the vehicle parked in her driveway, she was caused to trip and fall over the branches of said tree, causing her to sustain … injuries.”

In early times, there was generally no liability for trees falling on neighboring lands, an obvious practical necessity when land holdings were very large and in a primitive state, but the rule made little sense in urban settings. In urban areas like the City of Rockville, there is generally found to be a “duty of reasonable care, including inspection to make sure that the tree is safe.” It is now generally recognized, particularly in urban areas, that a tree owner has a duty to an adjoining landowner to exercise reasonable care to prevent an unreasonable risk of harm presented by an overhanging dead branch in a residential area. Thus, an invitee of commercial premises may recover for injuries sustained from the fall of a defective or unsound tree growing on adjoining premises, including trees of a purely natural origin.

George of the Jungle could have been Heidi's doppelgänger.

George of the Jungle – Heidi’s doppelgänger?

However, the owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed, or otherwise constituted a dangerous condition. A landowner who knows that a tree on his property is decayed and may fall and damage the property of an adjoining landowner is under a duty to eliminate the danger. But a landowner does not have a duty to consistently and constantly check all trees on his property for non-visible rot. Instead, the manifestation of decay must be visible and apparent. In   Connecticut, if the tree condition is one of which the defendant would become aware through reasonable exercise of its faculties, the defendant is chargeable with notice.

In this case, Ms. Cordeiro had to plead and prove facts showing that the Hospital knew or reasonably should have known the tree was diseased, decayed, or otherwise constituted a dangerous condition, or other such proof of actual or constructive notice, in order to state a claim. But she made no such allegation here. Instead, she only alleged that the Hospital “was responsible for the proper maintenance of its trees and was responsible to assure that its trees did not fall into adjoining properties, causing injury.” The law does not require landowners to continuously examine their trees for invisible decay to ensure they do not fall. Instead, it requires them to take action when there is actual or constructive notice of a dangerous natural condition.

– Tom Root