Case of the Day – Wednesday, October 20, 2021

A MATTER OF LAW

Relatively few lawsuits ever make it to trial. Most often, they are resolved by motions to dismiss – the plaintiff has made some wacky claim that, even if fully believed, would not lead to a judgment – or the undisputed evidence shows that the plaintiff cannot possibly win.

Example 1: My neighbor to the southwest has some very tall oak trees. I sue her because the leaves are falling and the wind is carrying some of them (it seems like all of them) into my yard. She would file a motion to dismiss, arguing that even if everything I say in the lawsuit is true, I am entitled to no damages, because the law does not make her liable for where the wind may carry her falling leaves.

Example 2: I sue my neighbor, claiming that she has used her Turboblast 3000 blower to push all of her leaves into my yard. If that is true, the law would call it a trespass and I could recover the cost of hauling the leaves away. But she provides affidavits of various nosy neighbors and members of her garden club, who state they watched her pile her leaves in the street (where the city wants them put), and the wind later blew the piles into my yard. All I have is my assertion that she has a Turboblast 3000 blower, and the leaves are in my yard. There, the court would grant her summary judgment, because no reasonable jury could find any evidence that she, and not the wind, was the culprit.

As Mark Twain was reputed to have once said, nothing spoils a good story like the arrival of an eyewitness.

When no reasonable jury could find evidence enough to believe one side of a lawsuit, we say the other side is entitled to judgment in its favor “as a matter of law.”

In today’s case, the federal district court has to pick through a motion for partial summary judgment – where the plaintiff asks for judgment that resolves some (but not everything) of what it would have to prove at trial. The court splits the baby down the middle, finding the tree trimming company had a duty to little Jimmy, who was burned by a live wire while he was playing on a swing set, but leaving for a jury the question of whether the duty was breached.

Marland v. Asplundh Tree Expert Co., Case No. 1:14-cv-40 (D.Utah, Dec. 14, 2016), 2016 U.S. Dist. LEXIS 173156, 2016 WL 7240139. Since 1997, Asplundh Tree Expert Co. has contracted with Bountiful City Light and Power to provide power line clearance services. Under that contract, Asplundh’s responsibility is limited to providing line clearance so as to prevent interruption of service by trees or tree limbs coming into contact with the lines or other electrical equipment.”

Under the agreement, Asplundh had the right and duty to remove dead, defective or fast-growing trees located so as to be a hazard to BCLP’s lines whenever “practical and permissible.” Any removal required written permission from the property owner and BCLP. Under the agreement, BCLP would provide Asplundh with an area in which to work, called a feeder. Asplundh was then responsible for clearing the lines along that feeder. This would include determining what trees needed to be trimmed or removed, obtaining the necessary approvals, then doing the actual trimming or removing.

On an early fall day in 2005, Asplundh trimmed a large Siberian Elm at Lyle Henderson’s home in Bountiful. Asplundh trimmed the tree but did not remove it and did not recommend to BCLP that it be removed. About 21 months later, a limb from the tree fell onto a power line, knocking the line into a neighboring backyard and onto a swing set where a child, Jimmy Marland (not his real name) was playing. Jimmy was seriously burned. After that mishap, BCLP got Lyle’s permission to remove the tree.

Jimmy’s parents sued on the child’s behalf, claiming Asplundh was negligent in not removing the tree. They asked for summary judgment in their favor on the issues of whether Asplundh owed Jimmy a duty, and whether he breached the duty.

Held: Scott and Jennifer were granted summary judgment on whether the duty, but not on the breach.

Summary judgment is appropriate if there is no genuine dispute as to any material fact and party asking for summary judgment is entitled to judgment as a matter of law. In considering whether a genuine dispute of material fact exists, a court must determine whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented.

To establish a claim of negligence, the Marlands had to show that Asplundh owed Jimmy a duty, (2) that Asplundh breached that duty, (3) that the breach of duty was the proximate cause of Jimmy’s injury, and (4) that Jimmy in fact suffered injuries. Here, the Marlands sought partial summary judgment, focused on the first two elements only, duty and breach.

Whether Asplundh owed Jimmy a duty of care is a legal issue for the court to decide, but if there is a duty, whether Asplundh breached it is a question of fact for the jury to decide. “Accordingly,” the court said, “summary judgment is inappropriate unless the applicable standard of care is fixed by law and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.”

The Marlands argued that Asplundh’s duty arose under the Restatement (Second) of Torts § 324A, which had been adopted by the Utah Supreme Court. Section 324A holds that when someone agrees to render services for someone else, and when he or she should recognize the service is necessary for the protection of a third person, he or she is liable to the third person for physical harm resulting from his failure to exercise reasonable care in performing the service, if (a) his or her failure to exercise reasonable care increases the risk of such harm, or (b) he or she has agreed to perform a duty owed to the third person, or (c) the harm is suffered because of reliance of the other party or the third person upon the services being performed.

Here, the Court held, there was evidence that Asplundh has agreed to provide services to BCLP which Asplundh should have recognized was necessary to protect third parties like Jimmy. Utah law imposes on utility companies like BCLP the highest degree of care to prevent people from coming in contact with high-voltage electricity. Line clearance is necessary, not only to prevent interruption of service, but also to prevent injuries that might result if tree limbs come into contact with electrical wires. Therefore, the court said, Asplundh would be liable to Jimmy for physical harm resulting from its failure to exercise reasonable care if at least one of three subsections in the Restatement are met:

The Court found evidence that subsections (b) and (c) applied. BCLP had a duty to prevent harm to others from its power lines and it delegated part of that duty — line clearance — to Asplundh. Because Asplundh was performing line clearance on the particular feeder, BCLP did not do so itself. Therefore, BCLP relied upon Asplundh to conduct line maintenance so it would not have to. Based upon these facts, the Court said, “there is evidence that Asplundh owed Plaintiffs a duty of care.”

The Marlands argued that “Asplundh breached its duty of care by not removing or recommending to have removed the subject tree in 2005.” Their expert witness provided an affidavit contending Asplundh had a duty to suggest removal of the Siberian Elm if the tree was accessible and posed a hazard based on its type, size, and proximity to the power lines. The court agreed that the affidavit stated an applicable standard of care, but even so, summary judgment was not appropriate.

The problem was that before Asplundh could remove a tree, it was required to seek BCLP’s and the homeowner’s permission. The Court agreed that the undisputed evidence showed that BCLP would have given permission to remove the tree, because BCLP always gave permission when removal was recommended. But while Lyle Henderson, the homeowner, testified that on other occasions he gave “carte blanche permission” to the utility to trim the tree, there was evidence that he had refused permission to remove or even trim the subject tree in the past and was reluctant to remove the tree even after this accident. Based upon these disputed facts, the court said, the Marlands could not show, “as a matter of law, that removal of the tree would have been permitted by Mr. Henderson.”

Based on the conflicting evidence, the court said, the Marlands had failed to show “as a matter of law” that Asplundh would have received permission from the homeowner to remove the tree “and, therefore, have failed to demonstrate as a matter of law that Asplundh breached its duty of care.” Additionally, the court hints without elaboration, “even if Plaintiffs could demonstrate permissibility, various disputes exist concerning whether removal was required under the relevant standard of care.”

Note: The case went to trial. On February 21, 2017, a jury found Asplundh at fault and awarded Jimmy $3.4 million in damages.

– Tom Root

TNLBGray

And Now The News …

Fort Lauderdale, Florida, South Florida Sun Sentinel, October 20, 2021: After canker catastrophe, scientists want to bring back
Florida’s zest for citrus

Floridians still shudder at the memory. The knock on the door. The warnings to cooperate or be arrested. Then chain-saw crews destroying prized lemon and orange trees in an effort to wipe out citrus canker. And all for nothing. Despite the loss of almost 900,000 trees in residential areas, the state’s eradication program failed and was abandoned in 2006. But the bitterness lingers and the scars run deep. Despite the trauma of years past, there is a flicker of hope among researchers that any remaining citrus trees could be preserved. And, perhaps more exciting, University of Florida scientists have created a tree that they hope will be resistant to disease. ut it will be a while before you can pluck fresh citrus in your backyard. The days of plant it and forget it have gone. And no one is sure how to get the new tree to the market — or whether there is even any demand…

Lexington, Kentucky, WTVQ(TV), October 19, 2021: After emotional public outcry, KU will review tree-cutting policy

Massacred, unilateral decisions, frustrating, one size fits all, disrespectful, disgrace were just some of the emotional comments Tuesday during the Urban County Council’s three-hour discussion about Kentucky Utilities clear-cutting of trees along some power lines and plans to do more next year. Much of the impact thus far has been in the 4th and 9th districts with more planned in the 5th District. The utility says the cutting is needed to safeguard against power outages by keeping fallen limbs and trees out of those lines. Residents say it’s needless butchering that puts profits ahead of people, destroys one of the community’s greatest assets, hurts property values and worsens drainage. “It can be managed, it can be trimmed with a great deal of ease and these magnificent trees can continue to live but that’s not satisfactory with Kentucky Utilities for basically no reason at all,” said Fifth District resident Rob Walker who was the first in a string of residents who spoke…

Columbia, South Carolina, WLTX(TV), October 19, 2021: Bring out your Bradfords! Bounty on invasive pear tree can get you up to 5 new replacement trees

No one likes Bradford pear trees. Once upon a time, landscapers and homeowners planted Bradford pear trees because of the tree’s pretty spring blossoms but the pungent odor and frail trunks — the trees can easily break in a storm — have caused them to fall out of favor. Worse, according to Clemson Extension Services, Bradford pear trees contribute to the spread of one of the most invasive plant species in the Southeast, the callery pear. So, what to do? Clemson Extension has put a bounty on the Bradford pear tree. Property owners can take advantage of the bounty and exchange up to five Bradford pear trees for an equal number of young native replacement trees — for FREE — during a tree swap Saturday, Oct. 23. The event, 1-4 p.m. at Sandhill REC located at 900 Clemson Rd. in Columbia, does have some rules… Replacement trees will be distributed on a first-come, first-serve basis while supplies last. If your preferred replacement tree is not available at time of distribution, you will be provided with a healthy alternative. Specific tree species cannot be reserved ahead of the event. Learn more about the Bradford pear and about the bounty on the trees at clemson.edu/extension/bradford-pear

Albany, Georgia, Herald, October 19, 2021: Many popular landscape trees are often short-lived

Some trees naturally live longer than others but, ironically, many of the most popular landscape trees tend to be relatively short-lived. Although their flowers are quite attractive, Bradford or Callery pears are generally considered short-lived trees, and they are also highly invasive. As a group, these flowering pears tend to have a very weak, vertical branching structure that is notorious for splitting and breaking. On average, Bradford pear trees live around 10 to 15 years, 20 with luck, and will literally begin to self-destruct when storm winds blow through. Most of the popular cultivars of Japanese flowering cherry trees (Kwanzan and Yoshino types) are also short-lived. They are grafted, which means the upper part (scion) of the tree is grown on the root system (rootstock) of a related tree. This process allows growers to replicate (clone) unique traits such as certain flower colors, weeping branches or larger flowers. These traits would not be expressed consistently if these trees were grown from seed…

Littleton, Colorado, Patch, October 18, 2021: Main Street Tree Project: Honey Locusts To Be Removed

Work on the Main Street Tree Project is set to begin Oct. 25 in Downtown Littleton. The Littleton Public Works Department aims to replace most of the Honey Locust trees inside the sidewalk grid, which were planted more than three decades ago, according to the Littleton Report. Honey Locusts have an average life of around 120 years in the wild, but only 20 years in urban environments, city officials said. Urban trees are under constant stress and they’re often surrounded by asphalt or concrete. Several trees along Main Street have already been removed. The first part of the project, which is expected to take several days, will begin Oct. 25 with crews filling empty grates with concrete, according to the Littleton Report. After the holiday season, eight trees are set for removal, some of which are almost completely dead, the city said…

Columbus, Ohio, Dispatch, October 18, 2021: Woman struck by falling tree branch while hiking in Mohican State Park dies at scene

A Columbus woman is dead after a tree branch fell on her as she was hiking in Mohican State Park Sunday afternoon. The Ashland County Coroner’s Office has identified the woman as Shelley Miller, 57. The Ohio Department of Natural Resources is investigating the incident. ODNR reports show officers from the state Department of Natural Resources and the Ashland County Coroner’s Office responded to the call Sunday afternoon. Miller was pronounced dead at the scene. She was hiking on the Hemlock Gorge Trail, which follows the north bank of the Clear Fork through the park, and was struck by a falling branch at about 3 p.m…

Dallas, Texas, Morning News, October 18, 2021: How do trees get their fall color?

It’s fall, and there’s a nip in the air. Besides time spent on football, school activities and holidays approaching, it’s time to enjoy a little fall color from our trees before full-fledged leaf management kicks into gear and I have to continue to remind homeowners and businesses to mulch the leaves rather than send them to the landfill. What causes and controls fall color, anyway? Temperature? Soil moisture? Shorter days? Sunny days? It’s all of those factors, actually, but here’s what technically happens. Green chlorophyll is present in leaves in large quantities during the growing season. As the days shorten, chlorophyll production slows to a stop. As chlorophyll breaks down in the leaves, two compounds called anthocyanins and carotenoids take over. Carotenoids are leaf pigments responsible for yellow and orange colors. They are present in leaves during the growing season but are masked by the green chlorophyll, except in plants that are stressed or with naturally yellow leaves. Carotenoids are helpful in that they absorb wavelengths of light that chlorophyll doesn’t accept — mainly blue-green and green. They also use excess energy produced in leaves, as happens in high-light conditions. In fall, with no chlorophyll left, they can act as a sunscreen to help protect foliage…

Austin, Texas, KXAN-TV, October 18, 2021: Austin trees are going bald; UT arborist explains why autumn isn’t to blame

With autumn here, you may be looking at Central Texas’ trees a little more often than you usually do. If you’re anything like us, you may have noticed something peculiar — a bunch of trees have bald patches all over them. These bald patches aren’t because of the seasonal change, according to the University of Texas’ Urban Forestry Supervisor Jennifer Hrobar. Instead, they’re damage leftover from February winter storm. “This was a very off event in that there haven’t been any real defined patterns,” Hrobar said about some of the stranger damage she’s seen over the years. “Maybe the upper crown was sticking out more exposed to (the) winds and the cold temperatures that killed that tissue, where as the main stems were more protected,” Hrobar said. Essentially, as the temperature plummeted, the cells inside the trees froze. This meant that some limbs, but “trees don’t heal, they seal.” Instead of letting that creeping cold take their lives, the trees sealed off frozen limbs. This meant the limb died while the tree survived. “That’s called compartmentalization,” Hrobar said. Hrobar says which trees survived depended less on species and more on where the tree is located and what protection it had. “Live oaks, which we tend to think of as a very great tree for urban areas … some came through with flying colors, others we completely lost…”

Ann Arbor, Michigan, WUOM Radio, October 15, 2021: Federal court rules against tree protection ordinance

Environmentalists are concerned a federal court ruling this week could limit tree protection ordinances. The ruling by the U.S. Sixth Circuit Court of Appeals dealt with landowners’ private property rights and Canton Township’s tree ordinance. The ordinance requires landowners who remove trees to plant new trees or pay into a fund to ensure there’s not a net loss of trees. Canton Township ordered a property owner who cleared more than 150 trees from his property to plant replacement trees or deposit more than $47,000 into a township tree fund. The owner sued. The court ruled the township didn’t show that it properly assessed the burden to the landowners. Sean Hammond is policy director at the Michigan Environmental Council which filed a brief supporting the ordinance. “The court basically ruled that Canton Township did not prove that it was going to benefit the city as much as it burdened the owner.” He says the ruling could affect other municipalities. “It really only impacts this one company in terms of direct scope. But, it sends a message to a lot of other places about how valid their tree ordinances are…”

Greenbiz, October 18, 2021: Wildfires redraw the landscape for corporate tree planting

… I love trees. So when wildfires rip through my home state of California or my favorite travel destinations in the Pacific Northwest or Colorado, I feel the most climate grief. Wildfire isn’t just sad for nature lovers, but it’s also a huge problem for the planet. Forests are some of our best carbon sequesters, and over the past five years hundreds of thousands of acres in the U.S. have literally gone up in smoke, pouring carbon back into the atmosphere. The only way to directly reverse the effects is to wait for new trees to take the place of the old ones. Given the greater number and intensity of wildfires that have become the norm due to climate change, coupled with insufficient forest management practices, the forests need help to regenerate. So corporations are stepping up and expanding their tree-planting budgets to address the problem, but tree-planting after a forest fire is different from traditional reforestation projects. It takes a lot of management, care and infrastructure to plant trees. Without tree planting organizations and money, usually from corporate backers, once-forested areas would turn into blank landscapes dotted with shrubs that have out-competed the trees in the wake of fire…

Concord, New Hampshire, WCNH Radio, October 17, 2021: Eversource’s main cause of power outages? Trees. The company wants the N.H. public to plant shorter ones.

Energy company Eversource is encouraging municipalities and residents to make a plan for their trees. With an arboretum in Hooksett now open to the public, the company wants Granite Staters to tour a variety of vegetation that is friendlier to power lines. For Eversource, trees are the leading cause of power outages, especially during storms. But it’s important to keep planting them, said Bob Allen, an arborist who manages vegetation maintenance efforts at Eversource. New Hampshire is the second most forested state in the country. The company says it’s planning to spend $27 million across New Hampshire for tree-trimming and removal efforts this year, covering 2,500 of the 12,000 miles of overhead lines it maintains in the state. Some in Eversource’s New England service areas have pushed back on the company’s efforts to cut down trees, saying the removal would create environmental and safety concerns, and harm property values. Allen wants to introduce residents to the diversity of tree species that can thrive in New Hampshire and encourage people to start planting…

San Francisco, California, Chronicle, October 14, 2021: PG&E, East Bay parks allowed to remove trees for safety, court rules

The state Supreme Court has rejected a challenge by environmental advocates in Lafayette to an agreement by local park officials that allowed Pacific Gas and Electric Co. to remove trees near an underground gas pipeline, one of several legal disputes over parkland trees in or near the East Bay community. The East Bay Regional Park District agreed in March 2017 to let PG&E uproot 245 trees that were within 14 feet of the pipeline in Briones Regional Park and the Lafayette-Moraga Regional Trail, in exchange for payments of $1,000 per tree, an additional $10,000 for safety maintenance, and PG&E’s promise to plant 31 replacement trees within city borders. The utility says it has removed all but 17 of the trees, which are the subject of a separate suit by Lafayette before a federal judge who is overseeing PG&E’s bankruptcy. The fate of about 200 more trees is still unsettled, however, and the Lafayette City Council and PG&E are discussing how many need to be removed to protect the pipeline. The environmental group Save Lafayette Trees won a 2019 ruling from a state appeals court allowing it to challenge the removal of those trees. But the state’s high court refused Wednesday to take up the environmental group’s appeal of a lower-court ruling dismissing its suit over the 2017 tree-downing agreement. That ruling, now final and binding on trial courts statewide, said California law authorizes a regional park district to manage its park lands, even if its decisions conflict with environmental laws of a city or county within the district’s territory…

Phoenix, Arizona, Patch, October 14, 2021: South Phoenix Residents Seek Preservation Of Historic Palm Trees Displaced By
Light Rail

On a late summer afternoon, Victor Vidales walked along the one-acre lot of his backyard that is temporarily housing more than two dozen palm trees. Dried weeds and rocky soil crunched under his flip flops. “If these trees could talk, what would they say?” Vidales said, as the tall and thin palm trees towered over him. Vidales, a South Phoenix resident who can proudly trace back his roots to the neighborhood for generations, is temporary steward of these palm trees, some with healthy green fronds, others bare at top. “They saw all the killings, all the murders, but they also saw all the quinceañeras, all the weddings,” Vidales said, imagining the stories the trees would tell. The palm trees housed at Vidales’ property were once a landmark of south Central Avenue. The trees were planted along the median and, residents say, had been there for about 60 years. The future of the iconic trees was endangered when plans for a $1.3 billion South Central/Downtown Hub project that will bring the light rail to south Phoenix were drawn up. To make way for the light rail tracks and system, the median and the trees would be gone…

Walla Walla, Washington, Union-Bulletin, October 14, 2021: New Walla Walla tree plan calls for planting 300 trees per year

A new plan for planting and maintaining trees in Walla Walla was approved unanimously at a Wednesday, Oct. 14 City Council meeting after a long, and at times, controversial process. The plan, which calls for $315,454 over five years for planting new trees and over $2.6 million for pruning and maintenance of the city’s nearly 8,000 trees, replaces the city’s 2003 Urban Forestry Management Plan. The plan calls for the city to plant nearly 300 new trees annually, or four new trees for every tree that needs to be removed every year on average. Pruning and maintenance is more costly than planting new trees, according to city staff, hence the larger budget for the former. New tree plantings would be concentrated in the city’s West and East wards, according to city staff, which have historically not had as many plantings. Several updates were made to the plan since it was last seen by the City Council in July, including a sample five-year budget for planting and plans to encourage community buy-in, as most land in the city where trees can be planted is privately owned, according to Parks and Recreation Director Andy Coleman. These updates came after weeks of review and community input, including vocal opposition from activist group Tree People of Walla Walla, who had criticized the lack of a planting budget in the draft plan presented in July. The inclusion of this budget in the plan approved Wednesday did not assuage their concerns, said Tree People co-founder Gayle Bodorff, who called the plan inadequate…

Farm Progress, October 13, 2021: My love-hate relationship with black walnut trees

On a mid-September day, I could hear the wind howling as I tapped away on my laptop keyboard. Sitting at the kitchen table, which is next to the back door to the porch, a loud thud grabbed my attention. It was followed by two more booming thuds and then a tap on the door. I thought it was strange someone would be visiting using the back door. From the racket, I was half expecting the Jolly Green Giant. But there were no visitors, unless you count the bushy-tailed kind, standing upright balancing on his back legs while his tiny paws clutched a nut covered with a lime-green husk. The thuds were black walnuts dropping on the porch from several of the 60-foot-plus-tall walnut trees in my backyard. One rolled to the door mimicking a knock. It’s been a banner year for walnuts. Some say that’s a sign of a long, cold winter ahead. I think it has more to do with the cycling of the tree, but believe what you will. Like a lot of people, I have a love-hate relationship with black walnut trees. In the summer — there’s more than a dozen in my yard — they provide great shade, and in the fall the leaves turn golden. But black walnut trees are very selfish. The roots, which may extend 50 feet or more from the trunk, exude a natural herbicide known as juglone, which is also found in the tree’s leaves and husks…

San Antonio, Texas, KSAT-TV, October 14, 2021: General Sherman tree still standing, but it’s not out of the figurative woods yet, as California wildfires rage on

General Sherman is still standing, but it’s not out of the figurative woods just yet, as it still towers in one of the county’s most famous stretch of woods. The biggest and most famous of all the sequoia trees in California’s Sequoia National Park, General Sherman, has yet to be affected by the surrounding wildfires plaguing the area and destroying other trees and acreage. There are concerns it might, given the tree’s base was wrapped in aluminum-based, burn-resistant material back in September. At 275 feet tall and more than 36 feet in diameter at its base, General Sherman is larger than the Statue of Liberty. It is estimated to be more than 2,000 years old, and was named after Civil War General William Sherman. Ever since lightning ignited the KNP Complex fires on Sept. 9, there have been more than 184,000 acres and at least 26 groves of giant sequoias that have been charred, according to an article in the Los Angeles Times…

Case of the Day – Tuesday, October 19, 2021

CHOICE VERSUS DISCRETION

It is inevitable in the exciting world of statutory construction that defendants and plaintiffs alike will vigorously overreach in applying exceptions that are written into the law until, as judges are wont to say, “the exception swallows the rule.

I have written before about sovereign immunity and the exceptions to it that must be written into the law in order for people to seek compensation for the negligent misadventures of government employees. The king of those statutes is the Federal Tort Claims Act.

The FTCA permits people to sue the government when its countless officers, agents, departments, bureaus, commissions and assorted employees commit acts of negligence. But there are exceptions, lots of exceptions. The one most often encountered is the discretionary function exception.

An example: If a government employee T-bones you in an intersection because she ignores a red light, obviously you (or your next of kin) want to sue not only her, but also Uncle Sam. You know, respondeat superior, and all of that. Plus, Uncle Sam’s pocket is as deep as pockets get, when it comes time to pay damages.

After all, there’s nothing discretionary about her conduct. Government employee or not, she does not have discretion to ignore a stop light. The FTCA applies. Pretty slam dunk.

But what if the government agency was in the process of deciding, for example, not to inspect trees because of the cost? A tree falls on your car as you pass through the intersection, a tree that was rotten to the core but which the agency had done nothing about, because its policy was not to inspect its trees? There, the decision not to inspect was a discretionary one, a matter of government policy. In that case, the FTCA would consider you to be out of luck.

But, going back to the first example, let’s say the government employee was on her way to a meeting to decide how to whether to adopt the no-inspection policy. You sue for damages due to the accident, but the government argues that the agency’s decision to not inspect its trees is a discretionary act, and thus, having a meeting to reach the decision on the tree inspection policy is likewise a discretionary act, as is the decision to include the government employee-lousy driver in the meeting. But for the meeting, she would not have been driving through that traffic light at that moment. Where and when to hold the meeting, who should be invited, and so on… All discretionary acts.

Voila! Like that, the blown traffic light becomes a discretionary act, and you recover nothing. The discretionary function encompasses absolutely everything the agency does, and exception has successfully swallowed the rule.

The government was well on its way to doing just that last week, denying the parents of a dead teenager any compensation for the collapse of a tree limb, by making a failed tree inspection into a discretionary function, when the U.S. Court of Appeals for the Ninth Circuit said, “Not so fast!”

Just because there may be a choice, the Court held in so many words, does not mean that there has been a discretionary function.

Kim v. United States, Case No. 17-17432 (9th Cir. Oct. 10, 2019), — F.3d —, 2019 U.S. App. LEXIS 30340; 2019 WL 5076943. One August night in 2015, Daniel and Grace Kim, their daughter Hannah, their teenaged son Dragon, and their son’s friend Justin Lee were camping in the Upper Pines Campground in Yosemite National Park. Before dawn, a limb from a large oak tree overhanging the campsite broke and fell on the tent where the two boys were sleeping, killing them.

The Kims and Justin Lee’s parents sued under the Federal Tort Claims Act, alleging that National Park Service officials were responsible for the accident. The families raised wrongful death and negligent infliction of emotional distress claims. The complaint also alleged that Park officials fraudulently concealed information about the danger posed by the tree so that campers would continue to patronize the campground.

The Park Service moved to dismiss the lawsuit, arguing that the FTCA did not apply because of the discretionary function exception, which bars tort claims against the United States based upon the exercise or failure to exercise a discretionary function or duty. After reviewing the Park Service’s local policies regarding tree maintenance, the district court found that decisions regarding “how to evaluate and respond to tree hazards” were subject to the discretion of Park officials. The court dismissed the complaint.

The families appealed to the U.S. Court of Appeals for the Ninth Circuit.

Held: The Court affirmed the district court’s dismissal of the plaintiffs’ claim for fraudulent concealment, but it reversed the dismissal of the negligence-based claims.

The FTCA is the only means of suing the United States, its agencies or employees for actions or omissions that constitute a tort. It is limited as to the kind of tort that he asserted, strict in the filing deadlines is imposes on plaintiffs, and fraught with pitfalls as to whether the tort – even if a permitted action and even if timely brought – can apply to the conduct in question.

Specifically, the FTCA’s discretionary function exception bars claims based upon the federal officials’ “exercise or performance or the failure to exercise or perform a discretionary function or duty.” The point of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. The government bears the burden of proving the negligence related to discretionary functions, but plaintiffs usually bear the brunt of the broadly-applied exception.

Determining whether the complained-of negligence related to a mandatory or a discretionary duty is difficult. Courts evaluate the FTCA discretionary function exception in two steps. First, the court must determine whether the challenged actions involve an element of judgment or choice. Second, if the actions do involve an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield, namely, only governmental actions and decisions based on considerations of public policy. The relevant choice must be susceptible to some consideration of social, economic, or political policy.

Generally, the design of a course of governmental action is shielded by the discretionary function exception, but the implementation of that course of action is not, unless the implementation itself implicates policy concerns.

Here, the government argued that whether the Park Service inspected the trees was a discretionary function, so the failure to identify the oak as a hazard did not subject the Park Service to liability. The evidence, however, showed that the Park Service did inspect the campsite trees every two years. The Court said that where the Park Service decided to inspect the trees, the argument that a decision whether to inspect was discretionary was irrelevant.

Once the Park Service actually inspected the trees in the campground, the Court said, Park officials were required to do so in accordance with their established policies. Yosemite Park Directive No. 25 set forth the Park’s “Hazard Tree Management” program and, among other things, it specifies how Park officials are to evaluate the risk posed by trees they inspect. Yosemite used the “‘Seven-Point’ (Mills and Russel 1980) system, a professionally recognized, documented and quantified hazard tree rating system.” The system includes a “Total Hazard Rating” (ranging from two to seven) that combines a “Defect Rating” based on the tree’s potential for physical failure and a “Target Rating” based on the potential impact in the event of a failure. The system provides specific criteria for how to rate each component based on the tree’s visible features and the nature of the surrounding area. Trees with a total rating of five or higher are considered “high” risks and, according to the Park Service plan, “will require some type of abatement/mitigation.”

Once the Park officials used their discretion to adopt the Seven-Point system instead of some other method for evaluating trees, there was no discretion whether the Seven-Point system had to be properly followed. But the Park Service had a final “Hail Mary” to throw. It claimed that its implementation of the rating system is shielded by the discretionary function exception because the system itself requires officials to consider questions of public policy.

The Court rejected this argument, too. “The government appears to conflate policy considerations with technical considerations,” the Court said. “Matters of scientific and professional judgment — particularly judgments concerning safety — are rarely considered to be susceptible to social, economic, or political policy.” And scientific and professional judgment, the Court ruled, “is all the Park’s rating-system requires. The system directs officials to assign certain hazard ratings based on a tree’s structural defects and its likelihood of damaging various Park features… Certainly, the system requires the careful — perhaps even difficult — application of specialized knowledge… The mere fact that experts might reach different conclusions when conducting a technical analysis does not mean that the analysis somehow turns on questions of public policy. Even if the Seven-Point system requires officials to make difficult choices, it still does not ask them to make policy choices and it does not afford them an opportunity to rate a tree based on their social, economic, or political views.”

However, the Court ruled, the fraudulent misrepresentation claim had to be rejected. Under the FTCA’s exception for claims arising out of misrepresentation or deceit, claims against the United States for fraud or misrepresentation by a federal officer are absolutely barred. “It goes without saying,” the Court found it necessary to say anyway, “that a fraudulent concealment claim sounds in fraud or misrepresentation.”

– Tom Root

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Case of the Day – Monday, October 18, 2021

THE RISK WAS OBVIOUS TO A CHILD

The McDonald's coffee lawsuit - easy to deride, but conventional wisdom is probably wrong.

     The McDonald’s coffee lawsuit – easy to deride, but conventional wisdom is probably wrong.

At least until the advent of social media, tort law was cited as the best evidence for the demise of the Republic. You know the folklore about the McDonald’s coffee case (which in reality, wasn’t so outrageous after all) and the phony “view with alarm” e-mails that circulate about absolutely fictitious decisions.

But truth be told, most tort law decisions aren’t nearly as outrageous as its would-be reformers would have us believe. Take today’s case. Some boys were playing at a school playground, and decided to raid oranges from a neighbor’s tree. After they had gotten all the low-hanging fruit, one of them stuck his bicycle handlebars in the chain link fence, climbed up his makeshift ladder, and reached across the fence. Naturally, the bike came loose from the fence and he fell, cutting himself on the sharp tines on top of the fence.

The boy sued the school district for maintaining a dangerous fence. The only outrage was that his lawyer decided to sue at all. The fact that no one had ever been hurt on the fence in 16 years didn’t matter. The boy’s attorney argued that it was reasonably foreseeable that young boys would be attracted to oranges adjacent to the fence and would use the fence (whether by climbing or using a bicycle or other means to fashion a ladder) to enable them to reach the fruit. The Court said ‘nonsense’.

Kids really do some pretty foolhardy things.

Kids really do some pretty dumb things.

Chain link fences are ubiquitous, the Court said, but not even kids — who are held to lower standards than adults — would think that it was a reasonable use of the property to thread bicycle handlebars through the links to make an impromptu ladder. The dangerous condition of property should be defined in terms of the manner in which it is foreseeable that the property will be used by persons exercising due care. After all, the Court said, any property can be dangerous if used in a sufficiently abnormal manner.

This decision would be refreshing were it not so commonplace. Fewer than 5 percent of all civil cases are torts, and only about 4 percent of those go to trial. Recent statistics show that plaintiffs only win about half of the trials, and only half of those winners get more than $24,000 in damages. Most tort lawsuits are losers. Contrary to conventional wisdom, tort law does not always come with a leprechaun and a pot of gold.

A Justin Bieber tattoo at age 13 would qualify as one ...

             A Justin Bieber tattoo at age 13 would qualify as one …

Biscotti v. Yuba City Unified School Dist., 158 Cal.App.4th 554 ( 2007). Nine-year-old Christian Biscotti and his friends were riding bicycles on the grounds of a public school. The boys decided to pick oranges from a tree located in a neighbor’s yard, which was separated from the school’s grounds by a metal chain link fence. The fence, installed when the school was built in 1959, had metal prongs across its top edge. After the boys had picked all the oranges they could reach from the ground, Christian placed a bicycle next to the chain link fence, poking one handlebar through an opening in the fence to help stabilize the bicycle. He then climbed up and stood on the bicycle, balancing himself with one foot on its seat and his other foot on the bar. While Christian reached over the fence and yanked on an orange, the bicycle slipped and he fell onto the fence. His left arm struck the metal tines and was cut.

For at least 16 years prior to the accident, there had been no reported complaints about the safety of the fence and no reported accidents or injuries related to it. That didn’t keep Christian from suing Yuba City Unified School District, which promptly won on summary judgment. Christian appealed.

Standing on the seat and handlebars of a bike leaning against a chain-link fence ... who could imagine that could go so wrong?

Standing on the seat and handlebars of a bike leaning against a chain-link fence. in order to pick an orange … who could imagine that such a reasonable activity could go so wrong?

Held: The school district was not liable. In California, public entity liability for personal injury — governed by statute — is imposed for injuries caused by a dangerous condition of public property where a plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. A “dangerous condition” of public property is a condition of property that creates a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable that it will be used. The intent of these statutes, the Court said, is to impose liability only when there is a substantial danger which is not apparent to those using the property in a reasonably foreseeable manner with due care.

The Court held that Christian failed to raise an issue of material fact as to whether the school district maintained a dangerous condition on its property. The Court said that the risk of falling and being seriously injured would be obvious even to a nine-year-old boy at the time Christian poked the handlebar of his bicycle into an opening in the chain link fence, climbed onto the bicycle, balanced himself with one foot on the seat and his other foot on the bar, and reached over the fence to pick an orange from a tree on the adjacent property. While unfortunate, the injury that resulted when the readily apparent risk of falling became a reality is not compensable. The undisputed facts established that Christian was not using the fence with due care in a manner in which it is reasonably foreseeable that it will be used.

The lesson the boy learned, the Court observed, is that tort law did not protect him from the consequence of his careless decision.

– Tom Root

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Case of the Day – Friday, October 15, 2021

SELF-HELP CONDEMNATION

Condemnation is the process by which a public entity takes private property. The 5th Amendment requires that due process be followed, in that the taking not be arbitrary and be the result of necessity, that the owner is fairly compensated for the property that has been taken, and of course that the owner have a chance to challenge the taking in court.

Occasionally, the government will take a piece of property by conduct. A good example would be passage of a state law to preserve wilderness, the effect of which would be to close roads through state forests that cut off access to private property for lumbering. Then, the proceeding is called inverse or reverse condemnation, a suit against a government to recover the fair market value of property which has in effect been taken and appropriated by the activities of the government when no eminent domain proceedings are used.

None of this seems to have much to do with trees, especially your rights to compensation if state employees come onto your land and cut down a tree because they’re geographical klutzes. After all, the state has to intend to take your property (and take specific steps to do so) in a condemnation action. Even where the condemnation is a reverse one, the state has to deliberately do whatever it does to cause your property to lose value.

That’s why I was surprised and a little troubled by the Commonwealth of Kentucky’s response to its highway department employees’ goof in cutting down a boundary line tree without approval of the private landowner. If the trespassers had been Joe’s Tree Service, we know how it would have turned out: a trespass action, with damages for the trespass and the tree removal. But because the employees worked for the state, poor Gini Grace found out much after the fact that what had occurred was not a trespass, but a reverse condemnation.

To be fair, Gini’s lawyer might have saved the action as a negligence case and not a reverse condemnation had the complaint alleged negligence-type damages beyond the loss of the tree. But to me, that note in the opinion seemed to be a make-weight. Had her complaint alleged torn up lawn, driven-over shrubs, and Moon Pie wrappers littered about, I suspect the court would have just found a different way to get to its reverse-condemnation conclusion.

Not only did the rules get rewritten when the state trespassed on Gini’s place, but they were rewritten after the fact. Gini, don’t ever play poker with the Commonwealth of Kentucky, lest you learn too late that a pair of twos really does beat a royal flush.

Grace v. Commonwealth, Case No. 2018-CA-001488-MR (Ct.App Ky. Oct. 11, 2019) 2019 Ky. App. Unpub. LEXIS 727.

The Kentucky Department of Highways (“KYTC”) is responsible for maintaining state highways, including elimination of hazards. In March 2012, KYTC removed a tree which KYTC believed to be located, at least partly, on the right-of-way and encroaching the highway. Gini Grace filed a complaint with the Kentucky Claims Commission, alleging KYTC negligently trespassed and cut down her tree. KYTC moved to dismiss the claim.

The Commission found that two-thirds of the tree was on the state right-of-way and the remaining portion was on Gini’s land. It found KYTC negligent for failing “to conduct a reasonable inquiry and ascertain where the property lines were before they cut the tree,” and awarded Grace $11,666.66 plus the cost of removing the stump.

The McCracken Circuit Court reversed the order of the Commission and dismissed Gini’s claim, concluding it was a claim for reverse condemnation, rather than negligence. And, because the Commission only has jurisdiction over “negligence claims for the negligent performance of ministerial acts against the Commonwealth,” the Court ruled, it lacked subject matter jurisdiction over Gini’s claim. Gini appealed.

Held: The Commission lacked jurisdiction over Gini’s claim, and the claim thus had to be dismissed.

The Kentucky Claims Commission has “primary and exclusive jurisdiction over all negligence claims for the negligent performance of ministerial acts against the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any officers, agents, or employees thereof while acting within the scope of their employment.”

Reverse condemnation is a suit against a government to recover the fair market value of property which has in effect been taken and appropriated by the activities of the government when no eminent domain proceedings are used. Gini Grace’s claim form filed with the Commission, alleged that a “tree, 3ft in diameter was cut down by the Highway Dept. without my permission.” This was the only injury asserted. Gini did not allege any additional damage to her property arising from KYTC’s negligence. Therefore, the Court ruled, Gini’s claim to recover the value of the tree “is in the nature of a claim for reverse condemnation.”

Gini argued that she claimed negligence because her claim form indicated KYTC “negligently trespassed” onto her property to remove the tree. The Court admitted that a trespass was necessary to cut the tree, but ruled that the damages Gini claimed do not emanate from the trespass, but from the taking.

KYTC was negligent in failing to determine whether the tree was on the state right-of-way, but Kentucky law holds that where an entity possessing the power of eminent domain prematurely enters upon private premises, the exclusive remedy of the landowners is based on Kentucky Constitution, Section 242, which provides that ‘just compensation for property taken’ shall be made. This rule preempts claims asserting negligent trespass that result in a taking.

Because Grace’s injury arose due to KYTC prematurely entering her property and removing the tree, her sole remedy lies in an action for reverse condemnation. Therefore, the Commission lacked subject matter jurisdiction of her claim.

– Tom Root

Case of the Day – Thursday, October 14, 2021

MULLIGAN SEASON


I may slip over the border (the border between the U.S.A. and our neighbor to the north, now that I can again) to enjoy turkey and all the fixings. My favorite holiday of the year is Thanksgiving, and thanks to a cultural quirk, our Canadian cousins celebrate it way before we do. Monday may have been Indigenous Columbus Day in the United States, but its turkey day in the provinces. Well, turkey and Jiggs’ Dinner and butter tarts.

And then, we get a mulligan, a do-over, on Thanksgiving in 45 days. Life is good. And after that, we’ll get Thanksgiving Day over, and over and over until the leftovers are either eaten or spoil.  As Yogi Berra might have said, today’s case and Thanksgiving dinner will both be déjà vu all over again.

It seems there was trouble in Randolph County, Alabama, up near the Georgia line. The Ledfords had purchased a nice vacation home on a lake, next to a place owned by the Youngs. While the Youngs appreciated the natural setting, the Ledfords were more concerned that nature’s bounty – specifically one large pine tree on the boundary between the Ledford’s land and the Young property – was going to fall on their house. They wanted the tree cut down. The Youngs refused. The matter ended up in court.

Of course, regular treeandneighborlawblog readers know how that should have turned out: if the tree really sits on the boundary line, both landowners have to agree before it can be cut down. The trial court reasoned otherwise. Under the Massachusetts Rule, a landowner can trim parts of a tree that overhang or grow under his or her property, all the way from the center of the earth to the sky. So that meant the Ledfords could cut out half of the tree, the court mused. That would kill the tree, but the court interpreted the Massachusetts Rule to mean that since you’re allowed to hack at the roots and branches of a tree without regard to the damage you cause, then you can take down the whole boundary tree if you like. The trial court gave the Ledfords the go-ahead to take down the tree.

The Youngs appealed, and common sense prevailed. The Court of Appeals explained the proper boundary tree rule, and reversed the trial court’s errant ruling. But in so doing, a few judges on the appeal panel wondered aloud (or at least, in the written opinion) why the Ledfords hadn’t argued that they had the right to cut down the pine tree because it was a nuisance. Remember Fancher v. Fagella? One judge went so far as to say that if the record held evidence of nuisance, he would have upheld the trial court, wrong though its reasoning was.

Do we have to spell it out? The trial court was just plain wrong.

Do we have to spell it out? The trial court was plain wrong.

Well, the Ledfords could take a hint. When the case went back to the trial court “for proceedings consistent with this opinion,” as the court of appeals decisions like to say, they asked for a do-over, a second hearing, this one on nuisance. ‘Hold the phone!’ the Youngs cried. ‘The Court of Appeals said the Ledfords lost. The tree stays standing. Game over.’

The trial court gave the Ledfords their mulligan. It ordered a second hearing, and afterwards found the pine tree to be a nuisance. The Ledfords were told they could cut it down. Again.

The Youngs went back the court of appeals for a writ of mandamus, essentially a request that the court of appeals issue an order telling the trial court it couldn’t hold the second hearing. The court of appeals refused to do so. Applying an obscure rule called the “law of the case” doctrine, the appellate court held that while the trial court was required to apply the ruling the court of appeals had issued, that ruling was just that the Ledfords could not cut down a boundary tree without the agreement of their neighbors. The court of appeals did not say the tree had to remain – just that if it was to be cut down, it couldn’t be on the basis originally articulated by the trial court.

The lessons here? The Ledfords’ attorney should have argued nuisance to begin with. It should have been clear that arguing that his clients could cut down a boundary tree was a loser. Besides, in civil litigation, you argue as many alternative theories as possible to get your clients where they want to end up. Who knows which one will be a winner?

Of course, the Ledfords ended up winning, and the pine tree lost. But as an old judge once cautioned us, you should never dig up more snakes than you can kill. Why buy a second trip to the court of appeals by leaving out an argument, and asking for a mulligan later?

A few too many snakes? The Ledford's lawyer courted procedural trouble.

A few too many snakes dug up here? The Ledfords’ lawyer courted procedural trouble.

Ex parte Young, 79 So.3d 656 (Ala.Civ.App. 2011): The Ledfords owned a vacation house with a pine tree located slightly over 10 feet from Ledford’s house, on the boundary between their property and that of the Youngs. Fearing that [a] strong wind against the tree could cause it to fall on the home and could cause damage to the [house] as well as serious injury to any occupants,’ the Ledfords wanted a court order that they could cut it down.

The Youngs argued that the pine tree was ‘a true boundary line tree’ and contended that it could not cut down by either property owner without permission of the other. After a hearing in which the Ledfords, the Youngs, and a forester hired by the Youngs all gave testimony, the trial court held that Ledford and her husband could remove the tree at their convenience, taking steps to minimize damage to the Youngs’ lot. The trial court held that because Alabama law let a landowner remove any trees on his or her property up to the property line, and this right extended to the center of the earth and into the sky, the Ledfords were free to hack into the pine tree up to the property line and then cut from that point to the center of the earth and into the sky. The Court said that “[s]ince [the Ledfords] unquestionably has the right to remove any portion of the tree that is located on [their] side of the property line and since doing so would likely kill the tree, the Court is of the opinion that [they] should be allowed to completely remove the tree to ensure” that the property and the health of anyone there are protected.

When the case got to the Court of Appeals the first time, it was promptly reversed. Rejecting the trial court’s tortured “center of the earth to the sky” analysis, the appellate court ruled that “[i]n the special case of a boundary-line tree, … each adjacent landowner has ownership rights that cannot be trumped by the other’s desires in the manner suggested by the trial court’s judgment” and that the Ledfords – contrary to the trial court’s judgment – could not properly “‘cut into the tree to the property line and then cut from that point to the center of the earth and into the sky'” without incurring liability to the Youngs.

But the appellate court went a little further. In a concurring opinion, two of the judges on the appellate panel observed that the action had been argued on the basis of the Ledfords’ contention that they were entitled to remove the boundary-line tree at issue merely because its trunk was located in part on their property. The judges noted that whether the “boundary-line tree at issue in this case constituted a nuisance for which an exception to the general rule set forth in the main opinion might apply” had not been litigated. A third judge on the panel said that had the record contained evidence indicating that the tree at issue posed a danger to the Ledfords’ house,” he would have voted to affirm the judgment instead of reverse it.

After the appellate judgment issued, the Ledfords asked the trial court for another hearing to consider whether the pine tree was a nuisance. The Youngs argued that the appeals court had decided in their favor, and the case should be closed. But the trial court had another hearing, and afterwards decided that the tree was a nuisance, and that the Ledfords could remove it on that basis.

The Youngs filed a petition for a writ of mandamus, asking the appeals court to order the trial court to enter judgment for them, and end the hearing.

Held: The Ledfords could cut down the tree. A court will issue a writ of mandamus only when the petitioner has a clear legal right to the order sought; the respondent has an imperative duty to perform, accompanied by a refusal to do so; there is no other adequate remedy at law; and the court has jurisdiction of the court.

Mulligan140206Here, the Court of Appeals said, the only real question was whether the trial court had the right to hold a second trial in this matter. The Youngs contended that the prior appellate court’s decision was final as to all matters before it and that the trial court, after that initial appeal, was not allowed to hold another hearing and take additional testimony without permission of the appellate court to do so. The court of appeals agreed with that statement of the law, but said that only the particular issue that had formed the basis of the trial court’s judgment – whether Ledfords could unilaterally remove the boundary-line tree simply because the majority of it was located on their side of the common boundary – was addressed. Based upon that conclusion, the court of appeals had reversed the trial court’s judgment letting the Ledfords unilaterally remove the tree,” and remanded the cause “for further proceedings consistent with [that] opinion.”

Because of the limited scope of the trial court’s previous judgment, no one had ruled on whether the boundary-line tree posed a danger to Ledford’s home or amounted to a nuisance. While the prior decision was thelaw of the case,” nothing in the prior opinion limited the trial court from ruling on the nuisance question, which the court of appeals admitted remained open for decision. Deciding to examine the nuisance question did not put the trial court in the position of doing something contrary to what the court of appeals had ordered.

– Tom Root

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Case of the Day – Wednesday, October 13, 2021

BEING THERE

The governmental immunity doctrine, which exempts governments and their employees from liability when negligent acts occur during the performance of a discretionary government act, is pernicious.

The strictures seem rather artificial. If a tree is rotten and the municipal employees ignore it, the municipality may be immune from liability when the tree falls on some poor woman’s car (see case below). But if the employees come out to cut it down, and a branch falls on the same woman’s car, the municipality is liable. It would seem that the prudent municipal employee would wisely choose to do nothing except collect a paycheck.

What? You say that’s what most of them do anyway? Shame on you. Go to any DMV office, and you will see how mistaken you are.

But even the governmental immunity doctrine has its exceptions, fortunately enough. In Connecticut, if the employees can foresee that the victim is “an identifiable person” who would face “imminent harm” if they perform a discretionary act negligently, or negligently fail to perform a discretionary act, then the victim is able to defeat immunity and collect.

But what is an “identifiable person?” Ah, the devil’s in the details.

DeConti v. McGlone, 88 Conn. App. 270, 869 A.2d 271 (Ct.App. Conn. 2005). Maria DeConti was driving down Maple Street in New Britain, when a rotted tree fell on her car, crushing it. The tree was located in front of 281 Maple Street, about five houses from the Maria’s residence, on property controlled by the City of New Britain.

Maria sued Bob McGlone, the superintendent of parks for the city, and the Parks and Recreation Commission. The defendants filed a motion to strike on the ground that their actions were insulated by governmental immunity. The court granted their motion.

Maria appealed.

Held: Bob and the Commission enjoyed governmental immunity.

Generally, a municipal employee is liable for the negligent performance of ministerial acts but has a qualified immunity in the performance of governmental acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. In contrast, ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.

A municipal employee’s immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: (1) where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; (2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; or (3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.

The first exception has been expanded to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. However, the Court ruled, a person driving a vehicle who is struck by a falling tree limb is not an identifiable victim for the purpose of governmental immunity. It would be different, the Court ruled, if the tree had fallen on Maria’s house rather than on her car. But Connecticut law is clear that “would not be [an] identifiable person[], or an identifiable class of foreseeable victim[], if [she] were either [an] unfortunate person driving in a vehicle or pedestrian walking along a sidewalk who happened to be struck by a falling tree limb.”

Maria argued her case was different, because she was required to drive on Maple Street as a result of the location of her house and, as such, she was an identifiable victim. But Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred. Thus, a parent watching a son play at a high school football game was held not required to be at game, and a parent injured while visiting her child’s school voluntarily was not required to be there.

“Accepting as true all facts alleged in the amended complaint,” the Court said, “the plaintiff has failed to show that she is an identifiable victim or a member of a narrowly defined identified class of victims as required to fit within the first exception to the governmental immunity doctrine. Because that is the only applicable exception, the plaintiff’s amended complaint was legally insufficient, and the motion to strike properly was granted.”

– Tom Root

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