Case of the Day – Tuesday, May 23, 2017

SOMEBODY HERE OWES ME MONEY

Mailbag140924Today we go to the mailbag!

Today we consider an interesting problem, this one submitted by alert reader Tracy of Pinebark, New York. Tracy reports that “our neighbor’s old dead tree came down across our parking area, totaling both our cars. Their insurance company denied the claim saying no one notified them and that it was a live tree. My landlady’s insurance company denied the claim saying it wasn’t her tree, so she wasn’t responsible. She knew about the problem trees on their property and didn’t notify them. I need to get some sound legal advice and the NY state statutes to show first that the neighbor should have done something and that my landlady should have notified them that they should do something. Help!! Thanks so much.”

So, someone owes Tracy money.  But who?

Now this guy played a New York lawyer on TV - but Tracy needs to get one who, while not so photogenic, has a real New York license hanging on the wall.

Now this guy played a New York lawyer on TV – but Tracy needs to get one who, while not so photogenic, has a real New York license hanging on the wall.

First, our obligatory disclaimer, Tracy. We’re not New York lawyers, and for that matter, we don’t even play them on TV. For sound New York legal advice, you should consult a local attorney. Not Sam Waterston, either. But right now, get out your yellow pad and take down a few concepts to pass on to your solicitor.

There are two problems to contemplate here. First, what responsibility do the neighbors have? And second, what liability does your landlady have?

First, the neighbors: You reported that in the past year, a branch from the tree crushed your gazebo tent and another took out part of your landlady’s shed. You also said your landlady’s insurance company adjuster said it wasn’t her responsibility because the neighbors’ tree was dead. You told us that you agree with the dead tree analysis, because you had an arborist inspect the tree and arrive at the same conclusion. In fact, you reported, the neighbors have had work done on the tree before, so they had certainly had constructive notice of its precarious condition. But you say the neighbors’ insurance company asserts the tree was alive, so the neighbors aren’t liable. You think the insurers may be dissembling.

An insurance adjuster lie? Horrors!

An insurance adjuster tell a lie? Horrors!

We are shocked, shocked we say, by the suggestion that insurance companies would prevaricate! Let’s consider New York law with respect to the neighbors. In Ivancic v. Olmstead, the Ivancic boy was hurt when a branch fell from the Olmsteads’ tree. The Court held that a property owner has no duty to consistently and constantly check all trees for nonvisible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. If visible evidence of decay is present, the failure to inspect won’t be a defense.

We don’t think you’re quite correct on your mention of “constructive notice.” “Constructive notice” means the neighbors reasonably should have known. It’s much like if you’re sitting in your windowless cube at the office, and you see 10 co-workers get off the elevator, shaking water off umbrellas and removing water-spotted raincoats. You don’t have actual notice that it’s raining, but any reasonable person should be aware its probably raining just based on what you’ve observed. That’s constructive notice.

She's walking down the hall carrying a wet umbrella. Might it be raining outside?

She’s walking down the hall carrying a wet umbrella. Might it be raining outside?

Your neighbors, on the other hand, probably had actual notice, which you would have if you wandered into the corner office and saw the rain falling outside the window. Because the neighbors’ tree experts had removed one side of a “y” prior to the tree falling, they undoubtedly saw the decay and heard the arborists’ report. They didn’t have to know that the tree has to be dead — just that it was decaying in such a manner as to create a foreseeable risk.

If we were cynical, we’d suggest the neighbors’ insurance company is “gaming” you. Perhaps the adjusters figure that if it denies ten claims, some of the claimants – say four or so – will give up.  Six will press on.  By denying everything initially, the insurance company has cut its exposure from 10 claims to six. No claims examiner gets promoted for paying claims, we might suggest. If we were cynics. Which we’re not.

Your local lawyer might want to collect a good, written report with photos from your certified arborist, add to it observations that the neighbors were on notice of the tree’s condition, and write to the neighbors’ insurance company. It would be good not to feed your lawyer before he or she contacts the carrier, so he or she is especially grumpy. If that doesn’t work, your avenue for relief is going to court. We would strongly urge you to use legal counsel rather than trying to represent yourself in small claims court. It’s not that we get a commission from referring you to counsel. If we did, we’d send you to our Uncle Fred (who’s a pretty good mouthpiece). But you hired an arborist, so you already know the value of hiring people who know what they’re doing. You shouldn’t stop now.

You also asked about going after your landlady for not telling the neighbors they had a problem. That’s a fascinating question, one we’ll take up tomorrow.

Ivancic v. Olmstead, 66 N.Y.2d 349, 488 N.E.2d 72 (1985). Ivancic was working on his truck in the driveway of his parents’ home in Fultonville. Since 1970, Olmstead had owned and lived next door. A large maple tree stood near the border of the two properties, and its branches extended over the Ivancic land. During a heavy windstorm, an overhanging limb from the tree fell and struck Ivancic, causing him serious injuries. He sued, maintaining that the branches hanging over his parents’ property constituted trespass, and that the Olmsteads were negligent. The trial court refused to instruct on the trespass claim, but the jury found against the Olmsteads on negligence. The Olmsteads appealed.

Held:   The verdict against the Olmsteads was reversed. The Court held that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition of the tree. Ivancic made no claim that the Olmsteads had actual knowledge of the defective nature of the tree, and presented no evidence that the Olmsteads had constructive notice of the alleged defective condition of the tree. None of the witnesses who had observed the tree prior to the fall of the limb saw so much as a withering or dead leaf, barren branch, discoloration, or any of the other indicia of disease which would alert an observer to the possibility that the tree or one of its branches was decayed or defective.

Tracy - watch the insurance adjuster's nose carefully while he or she explains that the tree was healthy.

Tracy – watch the insurance adjuster’s nose carefully while he or she explains that the tree was healthy.

The Court held that as to adjoining landowners, a property owner has no duty to consistently and constantly check all trees for nonvisible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. Ivancic’s expert surmised that water invaded the tree through a “limb hole” in the tree, thus causing decay and a crack occurring below. But he admitted that the limb hole was about 8 feet high and located in the crotch of the tree which would have made it difficult, if not impossible, to see upon reasonable inspection. Although, the Court said, there may have been evidence that would have alerted an expert that the tree was diseased, there was no evidence that would put a reasonable landowner on notice of any defective condition of the tree.

Thus, the fact that Mrs. Olmstead testified that she did not inspect the tree for over 10 years was irrelevant. On the evidence presented, even if she were to have inspected the tree, there was no indication of decay or disease to put her on notice of a defective condition so as to trigger her duty as a landowner to take reasonable steps to prevent the potential harm.

As for the trespass, the Court held that the Olmsteads didn’t plant the tree, and the mere fact that they allowed what appeared to be a healthy tree to grow naturally and cross over into the Ivancic parents’ property airspace, could not be viewed as an intentional act so as to constitute trespass.

– Tom Root

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And Now The News …

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Sonora, California, KVML Radio, May 22, 2017: Butte Fire hazard tree removal crews working through holiday weekend

Those traveling through the Butte Fire burn scar should continue being cautious as burnt hazard tree removal continues – including over much of the Memorial Day three-day weekend holiday. According to Calaveras County government spokesperson Sharon Torrence, crews continue toiling along the public rights-of-way and private properties. She notes that currently there are well over 8,200 trees on the ground. “The location and complexity of the remaining trees makes the job of taking them down more difficult and time consuming,” Torrence emphasizes. “Hauling crews have removed 51 percent of debris and logs left by the cutting crews — and that material was taken to Wallace to be chipped, then transported to Chinese Camp to a Biomass waste-to-energy plant…”

Castle Dale, Utah, Emery County Progress, May 22, 2017: Ask an Expert: Three tips for tree planting

Trees are an integral part of landscaping, and it’s important to know the basics of starting them out right so they will flourish for many years to come. Here are answers to three frequently asked questions about tree planting… Trees are best planted when they are still dormant with tight, unopened buds in the early to mid-spring after the soil has thawed. Cool temperatures and good soil moisture in the spring help trees get established. Fall planting also works well for many species, though watering is critical if the fall is dry. Summer planting of balled-and-burlapped and container plants can be successful, though hot temperatures, dry conditions and non-dormant trees make good care especially important and survival less sure. Bare-root trees should only be planted in spring while still dormant…

LaCrosse, Wisconsin, WKBT-TV, May 22, 2017: Falling tree accident leaves woman in critical condition

Officials in an eastern Minnesota city are working with businesses and property owners to remove trees in danger of falling after a woman was critically injured when a tree fell onto a restaurant’s patio this month. KARE-TV reports that Micki Scott was injured when a large tree fell onto her while she was at Punch Pizza in Wayzata on May 6. Her husband says she’s been in intensive care for two weeks. City officials brought in an arborist to examine the forest area near the restaurant. City Manager Jeffrey Dahl says the arborist reported that the tree appeared to be diseased. The city has removed additional trees that posed as a threat. Dahl says the city has submitted a claim with its insurance company and they’re reviewing the information…

Savannah, Georgia, WSAV-TV, May 22, 2017: Trees cause visibility issues with traffic lights

The tree canopy in the Hostess City is a trade mark of character, ambiance, and charm of Savannah. But the natural beauty and shade of the tree comes at a cost as the live oaks limbs, draped with Spanish Moss, can grow to block motorists view of traffic signals. There’s an example of this particular problem on the western side of the intersection of Bee Road and Victory Drive. Michelle Gavin, Public Information Officer for Savannah, says it’s a problem people should report as soon as possible. “If a citizen notices that a tree is hanging low or the Spanish Moss is hanging down obscuring a traffic light, they need to immediately call 311.” said Gavin. She says when the public shares information about trees posing public safety hazards, those reports are bumped up to the top of the list of problems the city needs to fix. “That’s a priority one call for our Park & Tree Department, to go out, observe the area, and if it does in fact need to be trimmed, they will get on that right away, within 48 hours.” Gavin said…

Miami, Florida, Herald. May 21, 2017: Nebraska farmers plant trees to protect their property

Spring planting season involves more than corn and soybeans for some Nebraska farmers. It’s also a time to plant trees and shrubs as windbreaks that protect farmsteads, fields and livestock facilities, and add native grasses to create wildlife habitat on corners of pivot-irrigated cropland. “We need to keep these trees growing, keep conservation projects going,” farmer Marshall Paulsen said during a driving tour of projects he’s undertaken the past 21 years on his farm southeast of Minden. They include re-purposing pivot corners in 1996, 2002 and 2007 in cooperation with the Holdrege-based Tri-Basin Natural Resources District and Pheasants Forever, and planting windbreaks in 2005 and 2015…

Atlanta, Georgia, Journal-Constitution, May 21, 2017: High school student struck by tree while camping dies

A Harrison High School student who was injured when a tree fell on her Friday during a camping trip in Bartow County was pronounced dead midday Sunday. Joelle Dalgleish, 16, was hurt when the tree holding the hammock in which she was sleeping snapped and fell on her around 11:30 p.m. at Red Top Mountain State Park. “Joelle was one of the sweetest and happiest people you will ever meet,” said Harrison track coach Kent Simmons, for whom Dalgleish had run track since she was a freshman in 2015. “She laughed easily and loved cracking a joke. Everyone loved her spirit and the way she could make you immediately feel comfortable around her…

Kokomo, Indiana, Perspective, May 21, 2017: How to plant a tree for successful growth

More sunlight and warm temperatures inspire homeowners to spend more time in the outdoors. Outdoor projects often top homeowners’ to-do lists in spring and summer, with gardens and landscapes taking center stage. Planting more trees around the yard is one project that can improve property value and benefit the environment… Visit a garden center or nursery and select a tree that will be hardy in your planting zone. Choosing native trees can increase the likelihood that the new tree will adapt to its surroundings. Also, inspect trees to determine if they’re healthy before taking them home. Look for evidence of root girdling, which occurs when the roots circle around the perimeter of the container and surround the trunk. Trees should not have any dead or dormant branches…

Sioux Falls, South Dakota, KELO-TV, May 21, 2017: Man gets probation for stealing trees from Chippewa Forest

A 70-year-old man has been sentenced to three years of probation for stealing thousands of tree tops from black spruce in the Chippewa National Forest. Joseph Leon Edminster was also ordered to pay $24,199 in restitution to the U.S. Forest Service and complete 200 hours of community service. He was sentenced in federal court Friday. Edminster pleaded guilty to one count of government theft in January. Assistant U.S. Attorney Laura Provinzino says Edminster’s punishment would have been more severe had he not taken responsibility for his actions. Prosecutors say Edminster admitted to cutting more than 2,700 tree tops from October 2008 to October 2014. He sold the tree tops to wholesalers for use as Christmas decorations…

Sacramento, California, Bee, May 18, 2017: Alleged tree cutting binge lands Chico fraternity in trouble with feds

A Chico State University fraternity faces federal criminal charges that its members cut 32 trees in a Lassen National Forest campground during an initiation ceremony for new pledges. A complaint filed Tuesday in the Redding office of U.S. District Court charges Pi Kappa Alpha, Chico State chapter, and its president, Evan Jossey, with 32 violations of cutting or damaging federal timber, illegal possession of a firearm and conspiracy. The charges stem from a fraternity event over the April 21 weekend at an informal U.S. Forest Service campsite on Deer Creek near Butte Meadows. About 80 people were gathered in what the federal investigating officer called a fraternity initiation ceremony. John Elam, who had been camping nearby, reported to Tehama County sheriff’s officials that he saw and heard trees being cut down and people shooting firearms. He had previously met Jossey, who introduced himself and said the fraternity would be holding “the final states of initiation” over the weekend. Elam’s April 28 report to the Tehama County Sheriff’s Office noted “large volumes of litter” as well as felled trees. In an interview with a Tehama County sheriff’s deputy, Jossey acknowledged the fraternity retreat but “denied cutting down trees or shooting any firearms or seeing any members cut down any trees or shoot firearms,” according to an affidavit filed by the Forest Service investigator…

Goshen, Indiana, News, May 18, 2017: Nappanee’s tree nursery in the ground

An idea that had taken root in the mind of current tree board president Donny Aleo’s mind a couple of years ago has finally come to fruition with the establishment of Nappanee’s first tree nursery. Seventy-seven saplings have been planted in root balls on McCormick Creek Golf Course near the 10th green behind the old clubhouse. Aleo presented the idea a couple of years ago when he was still park superintendent and a suggestion was made to turn the former Fred’s Flowers property into a temporary nursery. The city acquired that property via the redevelopment commission. Although Aleo appreciated the offer, he preferred to have the trees on park land where it wouldn’t have to be moved. “We thought it’d be more efficient to have it on park land, close to resources and also help to green up the golf course,” Aleo said…

San Francisco, California, Hoodline, May 18, 2017: As tree maintenance reverts back to the City, here’s what to expect

When Proposition E passed last November with nearly 80 percent of voter approval, care of San Francisco’s approximately 125,000 street trees reverted back to the city, starting July 1st. Currently, San Francisco manages 40,000 of those trees, while the rest were maintained by property owners. Now, San Francisco Public Works is looking at the implementation of the $19 million tree maintenance initiative. According to Public Works director Mohammed Nuru at a May 16th community meeting held at Richmond Station, the agency will need three years to ramp up their staff. The agency is already in the process of hiring contractors to augment existing crews for the larger workload that will begin in July…

Nature, May 18, 2017: Trees in eastern US head west as climate changes

Ecologists have long predicted that climate change will send plants and animals uphill and towards the poles in search of familiar temperatures. Such movements have increasingly been documented around the world. But a study now shows that changing rainfall patterns may be driving some tree species in the eastern United States west, not north. Songlin Fei, a forest ecologist at Purdue University in West Lafayette, Indiana, and his colleagues tracked the shifting distributions of 86 types of trees using data collected by the US Forest Service’s Forest Inventory and Analysis Program during two periods: from 1980 to 1995 and between 2013 and 2015 for all states. They found more species heading west than north, probably partly because of changing precipitation patterns, the team reported on 17 May in Science Advances1. “That was a huge surprise for us,” says Fei. This study suggests that, in the near-term, trees are responding to changes in water availability more than to temperature changes, he says…

Total Landscape care, May 16, 2017: Methods for remediating tree and sidewalk conflicts

A majority of people have probably tripped over a buckled sidewalk at least once in their life and often the culprits are industrious tree roots that have set out to invade new territory as they search for nutrients. The number one way to prevent trees from warping sidewalks and driveways is to follow the wise practice of planting the right tree for the right place. According to the Georgia Forestry Commission, tree root systems extend about one to one-and-a-half feet out from the trunk for every inch of trunk diameter measured about four feet above the ground. This means that a 12-inch diameter tree will have roots spreading 12 to 15 feet out in every direction. Roots grow in search of water and one good way to keep roots out of the way is to encourage deep growth by watering longer and less frequently, soaking several feet of soil instead of just the surface. If sidewalk replacement or other work will be regular and root cutting is expected, the Arbor Day Foundation says that Norway maple, ginkgo, hackberry, hawthorns, cherries and river birch are more tolerant of root damage. Also, the City of Portland has a list of trees that are suitable for streets based on their height and presence of power lines…

London, UK, BBC, May 16, 2017: Cities need ‘hedges rather than trees’ for environment

Hedges are often better than trees at soaking up air pollution among tall buildings, research has suggested. A paper in the journal Atmospheric Environment says tall trees are good at absorbing pollution in more open areas. But hedges can trap toxins at exhaust pipe level, so reduce people’s direct exposure to harmful pollutants. Lead author Prof Prashant Kumar said councils should try to plant low hedges between pedestrians and the street if pavements are wide enough…

Jackson, Michigan, Citizen-Patriot, May 16, 2017: ‘It could have all been prevented,’ resident says after city tree smashes car, house

Bambi McCabe wouldn’t sleep in the corner bedroom of her home during storms. She knew the large tree in the city right-of-way in front of the house was coming down any day. It did around midnight Tuesday, May 16. The tree totaled McCabe’s 2000 Mazda Miata, destroyed her garage and damaged her 1920’s-built home and patio on Washington Avenue at Bowen Street. While she was in the bedroom near the tree, nobody was injured. “The dog woke me up, I heard a crack and it came for the house and the windows,” McCabe said. “I jumped over the bed and got the hay out of there.” McCabe said she had alerted the city numerous times about the tree. A large section fell in the other direction during the March windstorm, causing a gas leak across the street, sparking power outages and scattering debris…

Geneva, New York, Finger Lakes Times, May 16, 2017, Tree pest quarantine expanded to 43 counties

The emerald ash borer quarantine has expanded to 43 counties, including Ontario, Seneca, Wayne and Yates. Last year, the quarantine zone only included the town of Canandaigua and seven other restricted zones outside the Finger Lakes. The state Department of Environmental Conservation and state Department of Agriculture & Markets said the eight existing merged ash borer restricted zones have been expanded and merged into a single restricted zone of all or part of 43 counties. The emerald ash borer is a serious invasive tree pest in the United States, killing hundred of millions of ash trees in forests, yards and neighborhoods.The beetles’ larvae feed on the cambium layer just below the bark of the ash tree, affecting the transport of water and nutrients into the crown and killing the tree…

 

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Case of the Day – Monday, May 22, 2017

TEACH YOUR CHILDREN WELL

Evil-Spawn-1A new week, a new neighbor-from-hell story. Mrs. Dahlquist and her evil spawn, Jeff Zube, lived in pretty close proximity to several neighbors, including the Careys. The constant obscenities, threats, spitting from balconies onto the neighbors, rotten eggs and lit cigarette butts got a little wearing on the Careys. They finally sought an anti-harrassment order under a California statute — Section 527.6 of the Code of Civil Procedure — to get Ma Dahlquist’s gang of two to stop.

Common law provides no remedy to restrain a neighbor who unfortunately has a sewer for a mouth and a tar pit for a soul, sad to say. Statutes like the California’s CCP § 527.6 are not all that common, but they are becoming more and more so, because – and here we can all bemoan the erosion of the Republic – neighbors like Joe and Dorothy (who’ll mow your lawn for you and deliver warm brownies from time to time – are getting to be scarcer, and next-door harridans like Ms. D and her whelp are becoming more common.

The lesson in today’s case is that if you’re going to be nasty to one neighbor, be sweet to the others. If you’re a jerk to everyone, expect some piling on. Not surprisingly, that happened here: complainants against Ms. Dahlquist and fil came out of the woodwork, with everyone on the block more than happy to cite the constant bird-flipping, the obscene insults and the general squalor that surrounded the harpie and her mordent boy.

CarrieDahlquist and Zube of course denied everything. Movie fans will remember the memorable Blues Brothers scene with Jake Blue (John Belishi) telling a gun-totin’ Mystery Woman (Carrie Fisher) that “it wasn’t my fault!” In the face of rather detailed, graphic even, descriptions of the Dahlquist/Zube misconduct by the neighborhood, the trial court didn’t believe a word of it.

BelushiThe Dahlquist/Zube gang appealed. Appellate courts expect that, winner or loser, a party will give the court a reasonably complete and balanced assessment of the record below. Not Dahlquist and Zube. If the fact didn’t fit with their world-view, they just left it out. That didn’t leave much in their recitation of the “facts.” The Court of Appeals wasn’t detained long by this creative pleading: it held that the record below amply made out a pattern of harassment that was such that would cause a reasonable person to suffer substantial emotional distress. It certainly did for the Careys, and the Court found that under the circumstances, a three-year order was fully justified.

Carey v. Dahlquist, Not Reported in Cal.Rptr.3d, 2007 WL 4555793 (Cal.App. 1 Dist.)  Dahlquist and Carey live next door to each other in Sausalito, California. Dahlquisht’s 19 year old son, Zube, lives with her. Carey filed a § 527.6 petition alleging that, among other things, her neighbor Dahlquist screamed obscenities at her and used “constant foul language, verbal comments (‘this is war’) and written threats.” Dahlquist had also “ordered tree people onto my property and cut down (removed two 30 ft high trees).” Carey requested an order that Dahlquist stay away from her, and that “she not be able to come out on her deck and scream obsenities [sic] at me or my husband as I go up and down my stairs.” In addition, Carey asked the court to order that Dahlquist “not hire workmen to come onto my property and destroy my property” and that she “pay for the survey and replace the trees she removed.”

The same day, Carey filed an application for a temporary restraining order against young Zube, alleging that in a two-page list of “confrontations” with Zube, that he had thrown eggs from his balcony, shouted obscenities at her husband as he came up the stairs, threw poppers onto the stairs while Carey and her husband were walking up the stairs, made “exceptional noise” from Zube’s stereo, and that on multiple occasions when lighted cigarette butts were found on the wooden stairs at Carey’s house. Neighbors provided affidavits complaining of similar acts.

The record also contained a declaration from Jeff Zube’s father claiming that Carey was a chronic complainer, and anyway, young Zube would be leaving soon for Santa Barbara to attend college. Nevertheless, the trial court granted the petition as to both Zube and Dahlquist, holding Zube had “an out-of-control and extremely disrespectful side of you and I’ve seen it in court, and I’ve heard it from the testimony.” The court found that Carey and her witnesses were credible and that the testimony of Dahlquist and Zube was not. It issued a 3-year restraining order, and Dahlquist and Zube appealed.

restraining-order1Held: The order was upheld. Section 527.6 provides that a person who has suffered harassment as defined in the statute may seek an injunction prohibiting harassment as provided in this section. “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff. A “course of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail.

The Court decided that Carey had provided clear and convincing evidence of a knowing and willful course of conduct by Dahlquist. She described confrontations with Dahlquist in which Dahlquist threatened legal action against her and shouted obscenities at her husband as he came up the stairs. Carey found Dahlquist’s behavior threatening. Carey’s neighbor testified that he, too, had been on the receiving end of threatening and harassing behavior from Dahlquist, including her falsely accusing his wife of leaving an obscene message on her voice mail. The Court held that the trial judge had found substantial evidence on which the base the issuance of a permanent injunction.

badpennyAs for Zube, the evidence established that he had thrown lighted cigarettes on the wooden stairs leading to Carey’s home, that he had spit on the deck, and had thrown poppers on the stairs while Carey was walking up them and also shouted obscenities at Carey. Neighbors confirmed that this sort of behavior had been directed at them as well. Substantial evidence, therefore, supports the trial court’s issuance of the permanent injunction. The continuing course of harassing conduct by Zube and Dahlquist left both Carey and her husband fearful and distressed. This showing was sufficient to indicate a reasonable probability that the course of conduct would continue into the future. It didn’t matter that Zube was leaving for college. The trial court found his other testimony lacked credibility, and the Court of Appeals said it was entitled to disregard his representation that he was leaving.

Even if he did, like bad penny, he’d probably return.

– Tom Root
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Case of the Day – Friday, May 19, 2017

FOOL FOR A CLIENT

Abe Lincoln could have been talking about Mr. Victor, who has a real dummy for a client.

Abe Lincoln could have been talking about Mr. Victor, who has a real dummy for a client.

Honest Abe Lincoln was right: Mr. Victor had a first-class knucklehead for a client. The old lawyer’s proverb warns that “The man who is his own lawyer has a fool for a client.” Today’s case from Iowa puts meat on those bones.

Mr. Victor’s car was hit by a truck at an intersection. That kind of thing happens on a daily basis. After the crash, he took matters into his own hands. That does not.

Usually, people use lawyers for that kind of thing. In fact, lawyers usually take cases like this one on a contingency basis, meaning that they don’t get paid unless you win. Of course, lawyers tend to be picky about the kinds of personal injury actions they will bring, , for the same reason that more people bet on the horse “California Chrome” than lay money down on “Old Glue Factory.” Who wants to waste time and money.

Maybe Mr. Victor didn’t like lawyers. Maybe (as is more likely), no attorney would touch the case from a remote control bunker in the Amazon rain forest. For whatever reason, Mr. Victor represented himself. Apparently subscribing to the old Vladimir Ilyich Lenin maxim, “Quality has a quantity all its own,” Mr. Victor sued the other driver, the company that owned the truck the other driver was operating, the property owner whose trees allegedly obscured the stop sign, the county for poor maintenance of the intersection, and the state for poor design of the road.

Mr. Victor did it all in federal court, no doubt because suing in federal court sounds a whole lot cooler than suing in state court. And it is, too, except for those pesky rules about jurisdiction and sovereign immunity. Guess he only skimmed those chapters in Personal Injury Law for Dummies.

You thought we were kidding? There's really such a book ...

You thought we were kidding? There really is such a book …

By the time the Court was done, the State of Iowa was dismissed as a defendant, as was the property owner. In fact, the only defendant left was the County, which was unable to prove that its tree-trimming practices were a discretionary function. Still, Mr. Victor got pretty badly decimated, proving once again that there’s a reason trained professionals cost money – it’s because they know what they’re doing.

Victor v. Iowa, Slip Copy, 1999 WL 34805679 (N.D. Iowa, 1999). A car driven by Martin L. Victor collided with a truck driven by Ronald Swoboda and owned by the Vulcraft Carrier Corp. The accident happened at the intersection of County Road C-38 and U.S. Highway 75. Then the fireworks started.

Victor, acting as his own lawyer, sued the State of Iowa, Plymouth County, Vulcraft and Elwayne Maser in U.S. District Court, apparently alleging (1) that “Iowa law regarding the right to sue private property owners for negligence is unconstitutional;” (2) that Victor should be allowed to sue Maser for acting negligently in failing to trim vegetation that obstructed his view of southbound traffic on U.S. Highway 75; (3) that the State of Iowa and Plymouth County acted negligently by failing to properly maintain a roadway, investigate the accident thoroughly, and place warning signs and markings appropriately; (4) that the highway patrol failed “to perform duties of safety officers, in assessment of dangerous conditions existing;” and (5) that Vulcraft is responsible for its driver’s failure to follow safety standards for commercial trucking. All the defendants moved to dismiss or for summary judgment.

Held: The State of Iowa was dismissed, because the Iowa Tort Claims Act, which gives permission to residents to sue the State, limits those actions to state court. The Court held that the 11th Amendment to the U.S. Constitution barred actions in federal courts against States except under narrow exceptions. One of those is that the State have given a waiver and consent that is clear and express that it has waived sovereign immunity and consented to suit against it in federal court. Although a State’s general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment. In order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court, and the ITCA does not do so. Therefore, Victor’s claims against the State of Iowa was dismissed.

It was just your basic accident ... until Mr. Victor made a federal case of it.

It was just your basic accident … until Mr. Victor made a federal case of it.

As for the property owner Maser, the Court ruled that Iowa law put no duty on a private property owner to remove trees which obstructed the view of a highway. Although Victor claimed the Iowa law on the matter unconstitutionally deprived him of the right to sue, he never explained why. The Court observed that “while mindful of its duty to construe pro se complaints liberally, it is not the job of the court to ‘construct arguments or theories for the plaintiff in the absence of any discussion of those issues’… Besides the bare assertion that the Iowa law is unconstitutional, Victor has provided no other discussion of the issue.” Thus, the property owner Maser was dismissed as a defendant.

Victor’s claims that Plymouth County was negligent in failing to install proper warning signs and cut tree branches that obstructed his were not dismissed at this point. Section 670.4 of the Iowa Code exempts a municipality such as Plymouth County from liability for discretionary functions, if the action is a matter of choice for the acting employee, and — when the challenged conduct does involve an element of judgment — the judgment is of the kind that the discretionary function exception was designed to shield. Here, Plymouth County’s policy directed that employees “may trim branches of trees because the trees may constitute an obstruction to vision of oncoming traffic at an intersection,” thus giving employees discretion in implementation of this policy. Thus, the Court said, “the action (or inaction) of which Victor complains was a matter of choice for the county’s employee.”

However, the Court said, Plymouth County’s policy did not encompass “social, economic, and political considerations” and therefore the discretionary function exception does not apply. Victor could proceed with rebutting the County’s claim that the view was not obstructed.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, May 18, 2017

Toga, Toga!!

AnimalHouse150306So you heard about the sweethearts of Sigma Chi? The story broke a few years ago about how the Sigma Chi frat brothers at Southern Methodist University – who lived off campus in an upscale place called Maison des Animauxharassed the O’Connells, their next-door neighbors, for sport. Oh, the highjinx of these fun-loving rascals! Among other pranks, they liked to urinate on the O’Connells’ fence, write obscenities in the snow in their yard, spit on the O’Connell house and throw raw meat onto the patio (prime cuts of beef, we hope).

It all started with a noise complaint, something to do with the brothers’ 24/7 partying. As the Grinch might have said, “The noise, noise, noise, noise, noise!” Mr. O’Connell said he “brought it to their attention and said ‘you can’t do that.’ They told me they pay rent and they can do whatever they want. It’s their right.”

noise150306The O’Connells now, after a year of abuse, had the media worked into a righteous froth. So that should take care of that. But were the brothers right? Can they do whatever they want until you’re finally able to get a crew from Action News to show up with cameras and a scowling investigative reporter?

Consider the Rileys. They didn’t have an Eyewitness News crew. But they did have a lawyer. The house next door to the Rileys was owned by a landlord who rented it to some dopers. But not just any dopers. This wasn’t just boom boxes blasting the Grateful Dead and the wafting smell of freshly decriminalized marijuana. Nope, the neighbors here were good capitalists, appearing to run a brisk retail operation, with traffic at all hours of the night and unsavory customers. Imagine a McDonald’s drive-thru window, but handing out nickel bags instead of Big Macs.

The traffic was accompanied by the screeching of tires, the occasional and casual vandalism toward the Rileys’ property, cursing and shouting, and the discharge of firearms. Someone even shot the Rileys’ dog.

Now we’ll put up with a lot, but we won’t put up with that. You shouldn’t shoot a dog. The Rileys felt the same. They complained in winter 1999, but nothing changed. The police raided the place, but all they found was some personal-use marijuana. The Rileys complained to landlord Richard Whybrew again. The Attorney General complained to Mr. Whybrew. Nothing happened. Mr. Whybrew said the tenants were paying their rent, so he wasn’t going to do anything. Apparently, he believed that money talks, and neighbors walk.

Neighbor problems? Maybe you can get the media to ambush your troublemaking neighbors. If not, try what the Rileys did – get a lawyer.

Neighbor problems? Maybe you can get the media to ambush your troublemaking neighbors. If not, try what the Rileys did – get a lawyer.

Finally, the Rileys sued. The trial court threw out their claims that the landlord had maintained a nuisance and that the Rileys had suffered emotional distress. But the Court of Appeals reversed, holding that negligent infliction of emotional distress was part and parcel of a nuisance claim — getting around a Tennessee rule that the claim had to be supported by expert medical testimony — and that the Rileys had clearly made out a claim that Whybrew was maintaining a nuisance, with enough evidence in conflict with his denials to get to trial. As for the dope-peddling neighbors? They moved out when they were served with the Rileys’ lawsuit. After all, protecting your stash is what’s it all about.

Riley v. Whybrew, 185 S.W.3d 393 (Ct.App.Tenn. 2005). The Rileys lived in a house in a subdivision next to a house Richard Whybrew leased to the Parkers. Problems ensued.

Shortly after the Parkers moved in, the Rileys began experiencing problems with their tenant neighbors. A high number of unknown persons would come to the Parkers’ house at all hours of the day and night, with horns honking, tires squealing and loud voices. They would drive up, engage in a brief conversation or transaction with a resident at the Parkers’ home, and leave after a few minutes. The Rileys overheard many conversations about the sale of drugs, as well as frequent profane and abusive language. On several occasions, firearms were discharged at the Parkers’ residence at various times during day and night. Some activities were directed toward the Rileys: chemicals were put in their gas tanks, a laser pointer was aimed at Timothy Riley, personal property was stolen from the Rileys’ home, and when the Rileys were seen by the Parkers or their visitors, they were taunted, cursed at or stared at menacingly. The Rileys’ dog was even shot by a visitor to the Parkers’ home.

A month later, the police conducted a raid on the Parkers’ residence, and Marina Parker was arrested for possession of marijuana. Despite the arrest, the disturbing activities at the Parkers’ home continued. As a result, the Rileys employed an attorney to notify Whybrew of the problems. In February 2000, the attorney sent Whybrew a letter informing him that his rental property was “being used for illegal activities, in violation of the housing and zoning codes, and probably in violation of the terms of [the] lease.” Later that month, Whybrew received a letter from the director of the Narcotics Prosecution Unit of the Office of the Shelby County Attorney General about the drug trafficking. The letter noted that the amount of controlled substance found at the Parkers’ home was not enough to compel Whybrew to evict the Parkers, but stated that Carter wanted Whybrew to be aware of the situation. A year later, the Rileys again complained to Whybrew, who said the Parkers had a lease and paid their rent on time, and he did not plan to take action against them.

Of course, sometimes your neighbor's harassment is a little more subtle ...

Of course, sometimes your neighbor’s harassment is a little more subtle …

The Rileys sued Whybrew, the Parkers, and ten “John or Jane Doe” defendants, seeking damages for infliction of emotional distress and asking for abatement of the nuisance. Whybrew asserted that the other defendants were the sole cause of any injuries suffered by the Rileys. Whybrew maintained that the Rileys failed to state a claim upon which relief could be granted and asked the trial court to dismiss the complaint. The trial court granted summary judgment to Whybrew.

Held: The case was reinstated, and the Rileys were entitled to a trial. The Court of Appeals found that a material question of fact existed as to whether Whybrew negligently allowed the tenants’ illegal behavior to continue, and that issue precluded summary judgment against the Rileys on their nuisance claim. The Court agreed that even if Whybrew had had knowledge of his tenants’ illegal activities – including drug use, discharging firearms and harassment – his failure to stop the Parkers’ activities could only be characterized as negligence. Thus, as a matter of law, it could not constitute the intentional infliction of emotional distress.

However, the claim of negligent infliction of emotional distress was related to the claim of negligence for landlord’s failure to abate the nuisance caused by the Parkers’ illegal activities, and as such, the Rileys’ claim for damages for emotional distress was not a stand-alone claim, and could be heard even absent expert medical testimony as to their damages. Most importantly, the Court ruled, while Whybrew argued that there was no breach of any duty to the Rileys because there was no proof that he was aware of the Parkers’ illegal activities until February 2000 (and the Parkers moved from the residence after being served with this lawsuit two months later), it disagreed and held that the Rileys had established a genuine issue of material fact on the claims of maintaining a nuisance and negligent infliction of emotional distress, sufficient to withstand a motion for summary judgment.

The case went back to trial.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, May 17, 2017

SHOWING UP

Denise Pevarnek’s agent chopped down her neighbors’ trees so she’d have a better view of the river. The neighbors complained, but Denise steadfastly ignored their remonstrances. The neighbors sued, but Denise ignored the summons. She finally decided to start paying attention after a default was entered against her and the trial court intended to assess treble damages against her in the amount of $77,000.

YouSnoozeYouLoseDenise tried futilely to undo the consequences of her earlier indolence. Alas, a stitch in time saves nine. The Court ruled that she had had plenty of notice, but her decision to ignore the lawsuit was her problem, and undoing the default she so richly deserved would have turned her problem into her neighbors’ problem. And they were already smarting from the loss of their trees.

Of interest in the case — one argument Denise included in her scattershot but untimely defense — was her contention that the cost to replace the trees wasn’t the right measure of damages, and that the trial court was wrong to rely on an affidavit of an arborist that didn’t explain in detail how he had arrived at the damage costs. The Court rejected this, saying that in the case of trespass, the measure of damages is either the reduction in value of the property, or — where the property can be repaired — the cost to fix things. The goal of the damage award, according to the Court, is to come as close as possible to compensating the owner for the damages, and trial courts have a lot of latitude to choose the method that seemed more reasonably calculated to do so.

The affidavit, the Court noted, laid out the expert’s education and experience, showed that he had inspected the damaged real estate. and proposed a reasonable strategy for repairing the harm. The arborist listed what had to be done and how much he’d charge to do it. It might not be perfect, but perfection is often the enemy of “good enough.” The affidavit, the Court ruled, was “good enough.”

Stitch2The Court reminded the defendant that if she really had found the damage showing to be flawed and superficial, she could have come to the hearing and contested it. Snooze and lose, indeed.

Bologna v. Pevarnek, Not Reported in N.W.2d, 2007 WL 4207801 (Mich.App., Nov. 29, 2007). Denise Pevarnek hired Chester Damiani to clean up her property. He was zealous to a fault, deciding that to improve the view of the Detroit River from her adjacent lot by cutting down trees belonging to her neighbors, the Bolognas. Believing that Denise and Chester’s conduct was baloney, the Bolognas sued for trespass, alleging that the destruction reduced the value of their property and exposed a view to Pevarnek’s unsightly neighboring property and asking for $28,000, trebled by Michigan’s wrongful cutting statute to $84,000.

Denise Pevarnek was served with the lawsuit, but she didn’t answer. As is customary when that happens, the Bolognas got a default judgment. Thereafter, they presented an affidavit of a certified arborist that the cost of landscape restoration was $24,050. At this point, Denise took notice, and began taking action to defend, seeking to have the default undone. The trial court refused, and it entered judgment against her for $77,730. Pevarnek appealed.

Held: The judgment was upheld. Much of the case revolves around whether Denise  should be relieved from her default judgment. The Court of Appeals ruled, in essence, that she knew about the suit and did nothing. In other words, “you snooze, you lose.” But of interest in the area of tree law was Denise’s claim that the trial court was wrong in using the cost of replacing the trees as a measure of the damages the Bolognas suffered. The Court of Appeals said where the wrong consists of a trespass to property resulting in an injury to the land that is permanent and irreparable, the general measure of damages is the diminution in value of the property. If the injury is reparable or temporary, however, the measure of damages is the cost of restoration of the property to its original condition (if less than the value of the property before the injury).

perfectThe rule is, however, flexible in its application. The ultimate goal is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss. Here, the Court said, given the fact that the Bolognas’ trees could be restored, it was proper for the trial court to use the cost-of-restoration method.

Pevarnek argued that the trial court erred by adopting without question the assertion of alleged damages without sufficient foundation. The plaintiff had filed an affidavit of arborist Steve McCollum, who swore that – in order to return the property to its pre-trespass condition, that is, with no view of Pevarnek’s property – 12 new trees had to be planted, some existing trees had to be replanted, the over-pruned trees had to be removed, and the lawn had to be repaired. He stated that the total cost of this work was $24,050. The trial court awarded plaintiffs damages of $77,730, equal to three times the sum of the cost of work proposed by McCollum and $1,860 for the cost of a privacy fence. Although McCollum’s affidavit didn’t explain how he calculated the damages, he stated his qualifications and education, he said he had personally inspected the Bologna property, assessed their needs, specifically listed the work to be done, and listed the cost for his business was to complete it. The Court said the expert affidavit put forth a reasonable basis for the damage computation, and that was enough.

– Tom Root
TNLBGray

Case of the Day – Tuesday, May 16, 2017

TAKE A LITTLE OFF THE SIDES

The Massachusetts Rule is the original dose of self-reliance, holding that a landowner has an absolute right to trim back overhanging branches and encroaching roots of his or her neighbor’s tree. But even in Massachusetts, sometimes people may get carried away.

There's a lot of bad trimming going on out there ...

There’s a lot of bad trimming going on out there ...

The O’Malleys had planted and nurtured nine rather rare (for Massachusetts) false cypress trees on their land, using them to form a natural screen between their home and Ruhan’s place next door. The trees were about 15 to 20 feet tall. Along came Ruhan’s landscaper, who apparently knew about the Massachusetts Rule in a crude sort of way. He trimmed the false cypress trees back to the property line and then some, sawing them right down to the trunks on Ruhan’s side of the trees. The court said that the trees continued to survive and even to serve as a screen, but that their “aesthetic integrity” had been compromised by the negligence of Ruhan’s agent. That’s legalese for “the trees looked like hell.”

In the battle of the experts, the O’Malleys leapt to an early lead. Their arborist expert witness testified that replacement of the trees would cost about $14,000. Ruhan’s expert didn’t testify as to the cost of cleaning up the damage, but instead suggested that the trees were still growing and still screening the O’Malleys, so the shaving of one side of the trees didn’t really harm anything. The Court disagreed with Ruhan, finding that loss of aesthetic integrity was indeed damage, regardless of whether the trees still grew or not. And because Ruhan’s expert hadn’t put in any evidence challenging the O’Malleys’ estimate of $14,000 to replace the trees, that number was the best evidence the Court had to go on.

expert The lesson is that the expert should have covered all the bases: he or she should testify that there was no loss, but if there was, it would only cost an amount certain to repair. If you don’t give the court your own evidence, you can hardly blame the judge for using the other side’s. And a curious note: the Court of Appeals suggested that the whole notion of whether Ruhan was entitled under the Massachusetts Rule to trim all the way to the trunk wasn’t necessarily settled, but because he didn’t raise the question on appeal, the Court couldn’t consider it.

O’Malley v. Ruhan, Not Reported in N.E.2d, 2006 Mass.App.Div. 174, 2006 WL 3501553 (Mass.App.Div. 2006). The O’Malleys sued Ruhan after his landscaper pruned the branches of their nine false cypress trees — 15 to 20 feet tall each — back to the trunks of the trees, rendering the trees permanently lopsided. The trial court held that the value of the trees, although they survived, was equal to their replacement cost, and awarded the O’Malleys $14,007. Ruhan appealed.

Held: The O’Malleys were entitled to recover the replacements costs for the false cypress trees. O’Malley’s arborist expert opined that replacement costs totaled $14,007.00. Ruhan did not object to that expert’s testimony, including to his opinion as to replacement cost. In absence of objection, the Court said, the expert’s testimony was to be accorded appropriate evidentiary weight. Ruhan’s expert, on the other hand, apparently testified in essence that the mutilation of the trees did not diminish the value of O’Malley’s property at all, that is, that Ruhan’s negligence caused no harm of any kind to O’Malley.

When trimmed too vigorously, trees can become less aesthetically pleasing.

When trimmed too vigorously, trees can become less aesthetically pleasing.

Because the trial court found that harm had been caused, the Court said, that issue was decided. The only issue was the amount of damages. The Court held that it would be appropriate to award damages based on the value of the timber, on diminution in the value of the property, or for the reasonable costs for restoring the property to its original condition. Observing that courts throughout the country have placed a greater emphasis on the rights of a property owner to enjoy the aesthetic value of trees and shrubbery, notwithstanding the fact they may have little commercial value, the Court held that when trees are destroyed by a trespasser, “sound principle and persuasive authority support the allowance to an aggrieved landowner of the fair costs of restoring his land to a reasonable approximation of its former condition, without necessary limitation to the diminution in the market value of the land.” Because the amount awarded by the trial court was based on the only damages figure in evidence, it was reasonable.

Interestingly enough, the appeals court made reference to the Massachusetts Rule first enunciated in Michalson v. Nutting. The Court observed that while it is the law in Massachusetts that a neighbor has the right to remove so much of a neighbor’s tree as overhangs his property, “[e]xplication of the parameters of this right, though, is as scarce as palmetto palms on Cape Cod. Presumably, the right is one that must be exercised in a reasonable manner.” But, the Court noted, whether Ruhan was within his rights or not under the Massachusetts Rule was not raised on appeal, so the Court didn’t decide it.

– Tom Root
TNLBGray