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.

     Henry B. Swap had nothing on Bobby Hubbard …

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.

Mark Twain says there are none of these …

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

ALWAYS SHOW UP

Not showing up may not make you all that interesting … but it could lighten your wallet.

The Pitts had a nice piece of undeveloped land in the Utah outback, next to the Pine Meadows Ranch. Mr. and Mrs. Pitts weren’t exactly obsessive about checking on their land. After all, what could possibly go wrong with a chunk of meadow and pine trees?

Well, some lousy neighbors, for one thing. While the Pitts lived in the city, the people at Pine Meadows Ranch turned the Pitts’ rural paradise into … well, the pits. Pine Meadows Ranch dumped its trash on the land, drilled a well — for what, the decision doesn’t mention — and cut down a number of trees. When the Pitts finally discovered the perfidy of their adjoining landowner, they sued.

Pine Meadows Ranch never answered the suit, and the trial court — after waiting a suitable period of time — granted default judgment. The court then took Howard Pitts’s testimony, who said the land was worth $16,000 before the trespass but was “totally ruined” afterward (with the trees constituting $5,000 of the total), and granted judgment for $36,000. The 36 large ordered in the judgment finally got the Ranch’s attention.

On appeal, the Ranch complained that the dog ate its summons or some such nonsense. The Court of Appeals didn’t forgive the Ranch’s non-appearance, but it did reverse the damages. The Court thought Pitts’ conclusory testimony about the value of the trees and land was a little too light on fact to support the award. Additionally, during the damages hearing, the trial court noted that $36,000 was probably too much, but maybe it would get the non-appearing Defendant’s attention. From that aside the Court of Appeals suspected that maybe the trial judge had assessed $36,000 to punish a no-show.

The case went back down for a new hearing, but the important lesson is this: not showing up does not endear a defendant to a court.

Mr. Pitts wasn’t sure how many trees had been cut, but he said the property was ruined.

Pitts v. Pine Meadow Ranch, Inc., 589 P.2d 767 (1978).  The Pitts alleged that Pine Meadows Ranch or its agents intentionally and willfully trespassed on their unimproved real property, used it as a junkyard and a garbage dump, drilled a well in the middle of it, and destroyed a number of beautiful trees. The Pitts claimed damages equal to the full market value of the real property, $16,000, of which $5,000 was the value of the trees, for which they claimed treble damages under Utah Statute § 78-38-3, along with $10,000 in punitive damages.

The Ranch didn’t answer the complaint, and the trial court granted default judgment. After that, the court took Howard Pitts’ testimony under oath and granted judgment for the amount prayed for: $36,000. The Ranch moved to vacate the judgment, which was denied.

After the Pitts started trying to collect on their judgment, the Ranch appealed.

Held: The default judgment could not be attacked, but the damage award had to be set aside. No evidence showed the market value of the plaintiffs’ property after the trespass, on which to base a finding of malice or wanton destruction of property.

The Court observed that the measure of damages for trespass on real property and destruction of the property is generally the difference between the value of the property before and after the trespass. Where there was no evidence of the market value of plaintiffs’ property after the trespass except a statement that the property was “totally ruined,” nor where any evidence had been provided upon which to base a finding of malice or wanton destruction of property, the defendants were entitled to a new hearing on the damages issue.

The Supreme Court said Mr. Pitts’ bare statement that the destroyed trees constituted $5,000 of the property’s value was the only evidence supporting the treble-damage award. Under these circumstances, the Court said, it did not find sufficient credible evidence to support the $36,000 judgment.

The record showed that the trial court thought the $36,000 to be too much, but suspected they might respond “to a judgment of this size.” The Supreme Court found that the trial court entered judgment in that amount because the defendants had been dilatory, and he thought a large judgment would bring them into court. When the defendants responded to the large judgment, the trial court refused to overturn it because doing so at that time would be an injustice to the plaintiff.

Damages have to be based on stronger evidence than that.

– Tom Root

I CAN’T SEE FOR MILES AND MILES…

Here’s a strange little case from Big Sky Country. Landowner Wilber (who, if we read between the lines correctly, was an impatient man who preferred to reap that which he did not sow, if you get our meaning) was unhappy that his downhill neighbor had a tree that had grown tall, and thus interfered with his view.

Wilbur found a lawyer, to whom he complained, “I can’t see for miles.” The lawyer, Who was happy enough to take Wilbur’s money, whispered delusions of legal grandeur in Wilbur’s ear. “If the neighbors’ tree kept you from seeing the July 4th fireworks,” the attorney whispered, “then the tree is a nuisance. And if the neighbors did not remove the tree to suit you, then they’re malicious! If the tree is overhanging your yard, your neighbors are trespassers!”

Believing his highly paid but under-informed counsel, Wilbur sued. The trial court bounced the suit because (1) Wilbur had no common-law right to a view; (2) a naturally growing tree cannot be a nuisance; and (3) the neighbors are not trespassers because their tree’s roots and branches have encroached.

Wilbur appealed, and the Montana Supreme Court ultimately heard the case. That’s where the strangeness began. The Supreme Court agreed that Wilbur had no right to a view and that the healthy, naturally growing tree was no nuisance. But it held that Wilbur’s trespass claim, because the tree encroached, was adequately pled and would survive early dismissal.

We tend to think that the Court agreed only that Wilbur’s claim that the neighbors had caused the tree to encroach was, if true, a good claim. If Montana suggests that a tree’s encroachment itself constitutes a trespass if an owner does not take active steps to stop the encroachment, the holding goes far beyond even the Hawaii Rule or Fancher v. Fagella.

If, on the other hand, Montana suggests that such encroachment, if not halted by an owner who knows of the encroachment and the damage to another’s property, is trespass, this may not be much different from the Hawaii Rule, just worded differently. After all, an encroaching tree that damages the neighbor’s property may well be a nuisance. Whether it is trespass or nuisance, the responsible landowner is liable for the damage. That is how the Hawaii Rule operates.

Martin v. Artis, 366 Mont. 513 (Mont. 2012). Wilbur Martin resides in the South Hills subdivision in Missoula. Keith and Gloria Artis’s property lies immediately below and abuts Wilbur’s property, with a boundary fence separating the properties.

The Artises had a tree, a nice large tree that grew over the years so that it blocked a substantial portion of Wilbur’s view of the city, valley and mountains. In fact, horror of horrors, on Independence Day 2010, for example, Wilbur and his guest could see virtually none of the South Gate Mall fireworks display because the Artis tree blocked the view. Wilbur said the tree’s obstruction was “offensive to his senses, was an infringement upon the free use of his property, interfered with his comfortable enjoyment of his property, and diminished the aesthetic and monetary value of his property.” He said the tree was a nuisance, and the Artises intended it to be one.

If that were not enough, Wilbur alleged that the tree’s roots were encroaching onto his property and were starting to buckle the boundary fence. What’s more, he claimed, branches from the tree encroached onto his property and overhung the common boundary fence. He declared the encroachment to be a trespass.

The Artises had tried to accommodate. Wilbur admitted that after he contacted them about the tree, they had “cut a few branches from the tree,” but he nonetheless asserted that Artises “know their tree is growing over the fence onto Wilbur’s property and is buckling his fence, but refuse to do anything to stop it; that such trespass is continuing.”

Finally, alleging that Artises knew or should have known the alleged facts, Wilbur accuses them of actual malice and demands punitive damages.

Artises filed a motion to dismiss the complaint, arguing that a naturally growing tree is not a nuisance or trespass as a matter of law. The district court agreed and dismissed Wilbur’s feverish litany of abuse.

Wilbur appealed, and the case reached Montana’s Supreme Court.

Held: Wilbur had no right to an unobstructed view, and a naturally growing tree cannot constitute a nuisance. However, Wilbur adequately pled trespass because he claimed the tree encroached and the Artises knew it.

The statutory definition of nuisance provides that anything which is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance.” Section 27-30-101(1), MCA (2009). Although § 27-30-101(1), MCA, allows anything to constitute a nuisance, a nuisance claim must still plead a factual foundation that satisfies governing legal standards. “A nuisance action may be based upon conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous,” the Court said. A nuisance may either be a nuisance per se or a nuisance per accidens. A nuisance per se, or at law, is an inherently injurious act, occupation, or structure that is a nuisance at all times and under any circumstances, regardless of location or surroundings. A nuisance per accidens or in fact “is one which becomes a nuisance by virtue of circumstances and surroundings.”

Likewise, the Court said, a nuisance may also be classified as either absolute or qualified. An absolute nuisance is ” a nuisance, the substance… of which is not negligence, which obviously exposes another to probable injury.” A qualified nuisance, on the other hand, is a nuisance dependent on negligence that consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm, which, in due course, results in injury to another.

Montana law has never held that a nuisance claim would lie for any obstruction of view whatsoever. Here, Wilbur alleges that a tree, in the course of its natural growth, has risen tall enough to obstruct his view. Although the complaint broadly claims that Artises’ tree has reduced the aesthetic and monetary value of Wilbur’s property, interfered with his comfortable enjoyment of his property, and offended his senses, the claim’s entire factual basis is that a tree has obstructed his view through natural growth. The assertion that Artises’ naturally growing tree has obstructed Wilbur’s view does not constitute, as a matter of law, “conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous,” the Court said, or “an inherently injurious act or a condition which “obviously exposes another to probable injury.” The District Court properly granted the Artises’ motion to dismiss Martin’s nuisance claim.

The trespass is another matter, the Court held. Trespass is “the entry of another person or thing that obstructs a property owner’s exclusive possession. A party need not establish actual harm or damages in a traditional trespass action.” One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in possession of the other, or causes a thing or third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

The “intent” element of trespass is fulfilled when an actor desires the consequence of his act, or when he believes the consequences are substantially certain to result from his act. Here, the Court said, Wilbur’s complaint alleges a trespass because the Artises’ tree extends over the shared fence and the roots grow onto his property. The complaint alleges that the tree’s roots have damaged Wilbur’s property. Regarding intent, Wilbur claims allege that the Artises “know their tree is growing over the fence onto the property and is buckling his fence but refuse to do anything to stop it,” that Artises’ conduct is motivated by malice or is in willful, wanton and reckless disregard of Wilbur’s rights” and that Artises are guilty of actual malice “because they had notice and knowledge of the alleged facts.”

Although the Artises argue that Wilbur’s complaint fails to plead an intention to trespass by way of their tree, the Supreme Court concluded that “for purposes of an M.R.Civ.P. 12(b)(6) motion to dismiss, intent was adequately pled.”

– Tom Root

SHE SURE GOT HER BELL RUNG

A young girl and her friend sneaked onto church property to play. While they were doing what young kids do when they’re where they shouldn’t be, the girl rang a bell. The bell fell, injuring her foot. When kids trespass and do stupid things, how do the parents respond? Why, they sue the landowner, of course.

In this case, it was a local Catholic Church getting sued – unusually enough – for something that had nothing to do with sex abuse. Despite the Diocese’s obvious relief at being sued on behalf of a child plaintiff who wasn’t complaining about a priest, the Church nonetheless argued that it enjoyed immunity under Wisconsin’s recreational use law.

In a strange analysis, the Court of Appeals disagreed. Reba was hurt when she pushed on the bell, and the Court held that her pushing the bell wasn’t related to the game she and her friend had been playing. The Court said that it was mischief. Plus, the Court said, the Church wasn’t really recreational property, and it didn’t invite people to use it that way. In fact, it took steps to keep kids from playing there. Because Reba was engaging in mischief as a trespasser, and because the Church was arguably acting responsibly to prevent this kind of conduct, it owed Reba a greater duty than if it had left the place wide open. This probably applies the recreational use statute correctly, but it doesn’t make much sense as a matter of public policy.

            Remember Winnie the Pooh? “Trespasser William” young Reba was not …

Fortunately, under Wisconsin law, the Church would have owed a trespasser only a duty to refrain from willful, wanton, or reckless conduct, about the same result the Church would have gotten from applying the recreational use statute. Unfortunately, a jury found the Church had engaged in such conduct and awarded the plaintiff money damages.

You might think that you have no duty to a trespasser wandering onto your property. Guess again.

Fargo ex rel. MacArthur v. United Nat. Ins. Co., 739 N.W.2d 490 (Wis.App., 2007). A child playing house on church property was injured when she tried to push on a bell, which fell and injured her. The girl sued the St. Ignatius Catholic Church through her parents for negligence, and a jury awarded her damages. St. Ignatius appealed, arguing it was entitled to immunity under the Recreational Use law, Wis. Stat. § 892.52.

Held:  The award of damages to young Miss Fargo was affirmed. The recreational immunity statute limits property owners’ liability toward others who use their property for recreational activities. The statute defines recreational activity as “any outdoor activity undertaken for exercise, relaxation or pleasure…” It lists 29 specific recreational activities but instructs that “recreational activity” should be liberally construed in favor of property owners to protect them from liability.

To determine whether a person was engaged in a recreational activity under the statute, the Court said, a fact-finder should consider the totality of circumstances surrounding the activity, examining the intrinsic nature of the activity, the purpose of the activity — including the injured person’s subjective assessment of the activity — and consequences of the activity. A court should also consider the nature of the property, including whether the owner intended the property for recreational use, and the injured person’s reason for being on the property.

     The Church should have posted this sign.  Um … on second thought, maybe not.

Here, St. Ignatius argued it was entitled to immunity because young Reba Fargo was injured while playing house with a friend on church property, and this was a recreational activity. The Court disagreed. Instead, it ruled that Reba was injured when she pushed the bell, which fell on her foot. The Court held that pushing the bell wasn’t related to the game she had been playing. Rather, viewed objectively, she was trying to move a large, stationary object by pushing very hard.

The Court concluded that this independent act was mischievous because Fargo was trying to move an object that was not designed to move. Wisconsin law holds that mischievous conduct is not recreational activity. What’s more, given the nature of the property, St. Ignatius was a church, not a playground or other place where recreational activity would usually occur. The church made attempts to limit children playing on its property. While not determinative, that fact was an appropriate factor in the recreational-use analysis.

Considering all of the factors, the Court concluded that Reba Fargo was not engaged in a “recreational activity” within the meaning of the Recreational Use statute. Thus, St. Ignatius was not entitled to immunity.

– Tom Root