Case of the Day – Monday, March 27, 2017


Not Bullwinkle -- Moose River is named for a generic moose, we understand.

  Not Bullwinkle – Moose River is named for a generic moose, we understand.

Drive up U.S. Route 201 a pretty good way, up past Jackman and Wood Pond, and you’ll eventually happen on beautiful little Moose River, Maine, population 219. Located about 10 miles as the crow flies from the Canadian border, the little town is everything simple and natural that a harried city dweller could imagine about such a bucolic place.

Being a little backwater has some disadvantages. Too small for municipal buildings, the town officials are expected to greet the public and transact the town’s business from their homes. That’s what Elizabeth Bell, the town clerk, did. One January day in 2004, Linda Rodriguez – who had just moved there from Arizona and perhaps was unfamiliar with the concept of winter – was leaving Ms. Bell’s home cum office when she slipped on the steps. Unfortunately, the handrail was missing. Ms. Bell had noticed it was wobbly, and her hubby removed it for repair. Being a spouse of the male persuasion, he hadn’t quite gotten around to fix it yet. The playoffs were on the weekend before, you know.

Ms. Bell didn’t have homeowners’ insurance against claims for personal injury because she believed “neighbors don’t sue … neighbors.” Sadly, it turned out that some of them – the ones from Arizona – do. Ms. Bell defended by claiming that she was protected by governmental employee immunity. The Town, on the other hand, argued it was her house, and the Town had no control over it, so it had no liability. We guess it’s “every dog for himself” when the subpoenas start flying.

Ms. Rodriguez - having just moved in from sunny and hot Arizona - apparently was surprised to find the white stuff was slippery.

        Ms. Rodriguez – having just moved in from sunny and hot Arizona – apparently was surprised to find the white stuff was slippery.

The trial court found that Bell was not immune from liability but the Town was. On appeal, the Maine Supreme Court agreed that Ms. Bell’s failure to replace the handrail had nothing to do with her government function. As for the Town, the Court said, like it or not, Ms. Bell’s place was a public building and the Town could be liable for negligence. And judging from the comments on the news report, some Maine residents see it as another case of “flatlanders” messing things up in Maine.

Rodriguez v. Town of Moose River, 922 A.2d 484 (Sup.Ct. Me., 2007). The Town of Moose River has a population of about 230 residents. Like other small towns in Maine, the Town does not own an office building suitable for conducting Town business. As a condition for holding office, the Town required the town clerk to conduct official duties at her personal residence. The Town conducts its selectmen’s meetings at a selectman’s home.

In March 2000, Bell was elected town clerk and tax collector. Accordingly, she opened her home to the public to conduct Town business. The Town brought its computer, file cabinets, desk, and office supplies to Bell’s home. She placed a sign on the side of her house, which read, “Moose River Town Clerk and Tax Collector.” Bell received about $300 per month as compensation for her work for the Town. During an average year, approximately 200 people would enter Bell’s home to conduct Town business.

Moose River isused to different day-to-day hazards than steps without handrails.

      Moose River is used to different day-to-day hazards than steps without handrails.

On January 23, 2004, Rodriguez went to Bell’s home with her husband and two children to register two motor vehicles. Rodriguez had called Bell beforehand to schedule the appointment. There was some snow and ice on the sides of the steps leading into Bell’s home, but the middle of the steps was clear. During the registration process, Rodriguez had to leave Bell’s home to retrieve her checkbook. After conducting her business, Rodriguez exited the home carrying one of her children in a car seat. She fell when she stepped down to the middle cement step outside of Bell’s home. Rodriguez injured her leg as a result of the fall.

Prior to Rodriguez’s fall, there had been a handrail on Bell’s front steps. Bell’s husband had removed the handrail when he noticed that it was wiggling. Bell did not check with the Town before removing the handrail. Rodriguez sued Moose River and Bell, claiming they had been negligent in failing to properly maintain Bell’s property. Rodriguez argued that had there been a handrail in place, it could have assisted her in walking down the steps or she could have grabbed it to prevent her fall. The trial court denied Bell’s motion for summary judgment, holding that she was entitled to discretionary function immunity. The trial court granted the Town’s motion for summary judgment, finding that Bell’s residence was not a “public building” pursuant to the immunity exception of the Maine Tort Claims Act, 14 M.R.S. § 8104-A(2). Bell and Rodriguez both appealed.

Held: Bell was denied immunity, and the dismissal of the Town as a defendant was reversed. The Maine Supreme Court said that whether discretionary function immunity applies depends on whether the challenged act, omission, or decision (1) necessarily involves a basic governmental policy, program or objective; (2) is essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of them; and (3) requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. Of course, the governmental agency involved possesses the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision.

The question with respect to Bell’s entitlement to discretionary function immunity, the Court said, was whether Bell’s failure to install or replace the handrail on her front steps constituted a discretionary act “reasonably encompassed” by her duties as the town clerk and tax collector. Generally, operational decisions, such as those regarding the safety or maintenance of premises, fall outside the scope of discretionary function immunity, unless those decisions serve some other government policy or purpose. Here, Bell’s decision on the handrail did not involve a basic governmental policy related to performing duties as the town clerk, was not an act essential to the realization or accomplishment of such a policy, and did not require her to exercise a policy evaluation, judgment, or expertise. Rather, Bell’s choice not to replace the handrail resembles a decision ordinarily made by the general population, relating to the duty of care a landowner owes to the people who enter upon his or her property. Thus, she was not entitled to discretionary function immunity.

steps150121However, Bell was entitled to limited liability as a government employee. Pursuant to 14 M.R.S. §8104-D, the personal liability of an employee of a governmental entity for negligent acts or omissions within the course and scope of employment are subject to a limit of $10,000 for any claims arising out of a single occurrence. Because Bell was required to open her home to the public as part of her duties as town clerk and tax collector, the Court found, her failure to replace the handrail on her stairs was an act within the scope of her employment.

As for the Town, the Maine Tort Claim Act holds that governmental entities are liable for negligent acts or omissions in the construction, operation or maintenance of any public building or the appurtenances to any public building. For all intents and purposes, Bell’s home functioned as a public building as well as her private residence. By its plain meaning, a “public building” is “[a] building that is accessible to the public; esp[ecially] one owned by the government.” Black’s Law Dictionary 1243 (7th ed.1999). The function a building performs and its character in relation to the public are important factors in determining whether a building is “public.” Here, the residents of Moose River had no choice but to go to Bell’s home to perform legally necessary Town business, such as registering motor vehicles and paying taxes. Bell put a sign on her home, allowed residents to come into her home to conduct official Town business, and did not restrict her hours of service. The Court concluded that on the specific facts of this case, Bell’s home was a “public building” within the meaning of the Tort Claims Act.

– Tom Root


Case of the Day – Friday, March 24, 2017


truck160211“Haste makes waste,” the old saw goes, and did it ever for the Warrens of Iron County, Missouri.

They finally realized their dream, buying land they had rented for years as cattle pasture for their dream home. First, logically enough, they wanted to mark the boundaries of the land. The Warrens asked their neighbors, the Hales, to pay for half of the survey, but the Hales declined. Why should they pay? They knew where their boundaries lay.

So the Warrens went ahead. Their surveyor couldn’t find the section corner marker, which had been described in some 19th century surveys as laying certain distances on certain radials from streams and trees that weren’t there anymore. So he made his best guess, but didn’t use the technique provided for in Missouri law.

Hard to believe, but the surveyor blew it big time, marking a boundary that was way off the traditional boundaries used by the parties. In fact, his boundary included big chunks of the Hales’ land, such as their entire driveway, landscaping and front lawn and nearly their house. The day after the surveyor placed his little pink flags, Mrs. Hale complained to the Warrens that their surveyor was nuts, and she’d get another surveyor to straighten it all out. She even showed them some old 19th century abstracts, which clearly showed her ancestors had owned some of the land the Warrens now thought was theirs.

Even cousin Pug on the bulldozer had to wonder whether the surveyor's lines weren't just a little too optimistic ...

      Even cousin Pug on the bulldozer had to wonder whether the surveyor’s lines weren’t just a little too optimistic …

Here’s where the Warrens blundered. Mrs. Hale might have been wrong, but her complaints, her intent to get another surveyor, and the Hales’ historical use and occupancy of the land the Warrens now thought was theirs was enough information to give a reasonable person some pause — at least for a few days while the issues were sorted out. But the Warrens weren’t the waitin’ type. They had a family member show up the next day with his bulldozer and start tearing up the Hales’ front yard and landscaping.

The Hales got an injunction, litigation ensued and another surveyor took a whack at the boundary. Oops. The Warrens’ surveyor screwed it up, the court said, failing to use the  prescribed method for finding a corner where the original corner was lost. The disputed land really was the Hales, and the Warrens — who had torn up things too quickly — were socked with treble damages under a Missouri statute applying where one destroyed trees or landscaping of another without probable cause to believe the land was his. The unseemly haste of the Warrens to bulldoze the disputed tract, where there seemed to be no need for such fast-track excavation, evidently played a role in the Court’s determination.

Err in haste, repent in leisure.

hurry160211Hale v. Warren, 236 S.W.3d 687 (Mo.App. 2007). The Warrens bought 64 acres in Iron County, Missouri, they had rented for the previous nine years, intending to build a home on the land and to continue to graze their cattle there. The Hales owned 80 acres or so next to the Warrens, land that had been in their family for over 150 years.

After buying the property, the Warrens wanted to have their property surveyed before beginning on the house, so they asked the Hales to share the cost of a survey. When the Hales refused, the Warrens went ahead on their own. Their surveyor determined that part of the Hales’ yard and their entire driveway lay on the Warrens’ property, as well as other areas. The surveyor marked the boundary with pink flags.

The next day, Mrs. Hale contacted Mrs. Warren about the pink flags, telling her that she disagreed with the survey, especially with one of the section corners from which measurements were taken. Nevertheless, the Warrens began bulldozing and clearing the land the next day, including right in front of the Hales’ home and along the western border of their property, within the area set out by the pink flags. By the next day, the Hales had obtained a temporary retraining order against the Warrens barring them from “further bulldozing or other acts of destruction and possession …” The Hales then hired their own surveyor, who found that a section corner used in old surveys had been lost, and — applying Missouri law — calculated a starting point by a procedure known as “double proportional measurement.” At the same time, they sued the Warrens to quiet title and for trespass.

The trial court found the Hales owned Tracts 1, 2, and 3 by adverse possession, that the Warrens’ survey “is not accurate and correct” but that the Hales’ survey was correct. The trial court entered a permanent injunction against the Warrens prohibiting them from entering on the land in question, and assessing treble damages in favor of Hales under V.M.S.A. § 537.340 for $6,300.00. The Warrens appealed.

Held: The trial court was upheld. Much of the decision related to the appropriate use of the “double proportional measurement” system under Missouri law, an interesting if technical discussion. However, the Court’s treatment of the treble damages award in favor of Hales is relevant to arboriculture law. The Court agreed with the trial court that the Warrens lacked probable cause to believe that the property being bulldozed was their own.

Section 537.340 of the Missouri Code imposes treble damages for the wrongful cutting down of trees, without any showing of negligence or intent required. The Court observed that §537.340 “is a penal statute which must be strictly construed.” It is tempered by § 537.360, which holds that if defendant had probable cause to believe land was his own, plaintiff shall receive only single damages, with costs.”

Too bad the Warrens hadn't read a lot of Moliere. He makes a good point.

Too bad the Warrens hadn’t read a lot of Moliere. He makes a good point.

A party would have ‘probable cause’ under the statute if there was such cause as would induce a reasonable person to believe he had the right to remove trees from another’s land. Here, the evidence showed the Hales’ driveway had always been at its present location, that the Hales had maintained the area since 1966 as part of their yard, planting trees and shrubbery in that area as well. The tracts had been owned by the Hales and their predecessors since 1855, and fencing had marked the boundary until the Warrens wrongfully removed it. The Hales had harvested timber and cut firewood on the disputed land since they purchased the property from their family in 1966. After the pink flags were placed by the Warrens’ surveyor, Mrs. Hale had showed Mr. Warren a land abstract in which her grandfather had deeded off a portion of the disputed land for a school building. She showed him the abstract to “show them that obviously this had been in our possession since the 1880’s. This particular tract of land that’s in dispute.” She told the Warrens that she disputed their survey and that she would speak to a surveyor herself.

The Court found there was sufficient evidence to rebut the Warrens’ assertions they removed the trees and landscaping at issue because they had probable cause to believe they owned the property. First, for all the years the Warrens had possessed the land as owners or renters, the Court said, it was only reasonable to conclude they should have became familiar with Hales’ general use of their property. Richard Warren admitted that when he purchased his property he was aware that the Hales stored cars and maintained a large scrap metal pile on the land. Further, when they purchased the property, the Warrens were aware of the location of Hales’ driveway and yard and their generalized use of the land. Second, the Hales disputed the Warrens’ survey as soon as it was surveyed. Mrs. Hale informed the Warrens that she was contacting Smith & Company about the survey because she believed it was incorrect, and she showed them an old abstract relating to the prior use of the property. When the Warrens began bulldozing right away after their survey was done, it was clear that the Warrens knew of the Hales’ open and actual possession and use of the property, and knew that the Hales had issues with the survey lines at the time the bulldozing began.

The Court said it was “difficult … to believe that ‘a reasonable person’ would ‘believe he had the right to remove trees from another’s land,’ where he was faced with: a mowed yard and maintained driveway; areas that were clearly used by the landowner for storing scrap metal and other items; open protests and disputes by the landowner; and a survey which obviously did not comport with historically used property lines.” The Warrens did not meet their burden of proving they had probable cause to believe they owned the land in question at the time they bulldozed the trees and shrubs at issue.

 – Tom Root


Case of the Day – Thursday, March 23, 2017


"100% Expert" Cachet (bleu)Mark Twain is reputed to have once said that an expert is just some guy from out of town.

There are a lot of guys like that in the legal system, as cases rely more and more on esoteric problems that a jury just can’t understand on its own. It is axiomatic in legal circles that witnesses can’t give their opinions, but instead must confine themselves to the facts. Legend incorrectly has it that Sgt. Friday said as much: just the facts, ma’am. And the rules of evidence, both state and federal, largely confine witnesses to “just the facts.”

But those same rules of evidence let certain witnesses known as “experts” give their opinions. Naturally, as soon as a good idea like expert witnesses was rolled out, lawyers started to abuse it. Remember the “Twinkies defense?” It relied on an expert to explain to the jury the junk science behind the notion that crème filling was a foreseeable cause of death, murder and mayhem.

Notwithstanding the occasional black eye lawyers and their experts can give the legal system, expert witnesses are crucial as case get more and more complex. That’s as true in tree law as in most other tort (and many contract) cases. Whether a witness can be qualified as an expert is for the court to determine, and depends on the witness’s education, experience and qualifications. Once qualified as an expert, the witness can give opinions based on a written report provided to the other party. Those opinions must be based on sufficient data, and be the product of reliable principles and methods applied reliably to the facts of the case.

expertcar160210The rules of evidence have effectively moved decisions that control the outcome of a case to a time well prior to the seating of the jury. Today’s case is a good example. Hiram Hyde’s family sued the maker of a stump grinder, after the late Mr. Hyde fell in and … well, we’ll leave it to your imagination. The Hyde’s expert witness wanted to testify that putting a clutch mechanism — kind of a cut-off handle like one finds on a rotary mower — on the grinder was easy, economical and logical. The maker’s expert wanted to argue just the opposite.

Both parties went at the other’s experts, questioning their qualifications and opinions. The federal district court referred the matter to a magistrate judge, kind of an assistant judge intended to handle pre-trial and other tedious matters, who ground through the competing claims without being stumped. He concluded that the experts were qualified, but the stump grinder’s guy couldn’t testify to some of his conclusions because they were based on unreliable data.

Hyde v. Vermeer Mfg. Co., 2007 WL 2329688 (W.D.Tex. Aug. 7, 2007). Hiram B. Hyde died when, while attempting to grind a tree stump using a stump cutter, he became entangled in the cutting and grinding wheel of the stump cutter. His wife and adult kids sued under the Texas Wrongful Death and Survival Statute, arguing that the stump cutter — a Vermeer model SC252 designed, manufactured and distributed by Vermeer Manufacturing Company — was defective.

They sued Vermeer for money damages under the doctrine of strict product liability for alleged defects in the stump cutter; negligence in the design, manufacture, sale, and marketing of the stump cutter, negligence in failing to give adequate or proper warnings or instructions for the stump cutter, negligence based on failure to recall the stump cutter, breach of warranty that the stump cutter was fit for the purposes for which it was intended, and for punitive damages based on gross negligence.

ask160210Because no one witnessed the accident, the trial of this case was going to depend on the jury’s consideration of expert opinions about the design of the stump cutter. Each side moved to exclude the other party’s expert witnesses. The trial court referred the matter to a magistrate judge for a recommended decision.

Held: Some of the proposed testimony from one of Vermeer’s experts should be excluded, but none of the expert witnesses should be thrown out.

The Magistrate Judge noted that Federal Rule of Evidence 702 provided for the admissibility of expert testimony if it will assist the trier of fact to understand the evidence or to determine a fact in issue, and if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Rule 703 provides that an expert’s opinion is generally admissible so long as the facts and data underlying that opinion are of a type reasonably relied on by experts in the field.

The Hydes offered Russ Rasnic as an expert to testify about feasible alternative designs that Vermeer could have incorporated into the SC252 stump cutter to reduce the risk of an operator contacting a rotating cutter wheel. Vermeer moved to exclude Rasnic’s testimony on the grounds that Rasnic was not qualified to render his proposed opinions, and his proposed opinions were unreliable. Vermeer complained that prior to this litigation, Rasnic’s experience with stump cutters was limited to using a handlebar stump cutter to cut less than 10 stumps and observing a worker operate a hydraulic stump cutter. Vermeer also complained that since the litigation Rasnic’s experience with the SC252 consists of only 2.8 hours of operating a stump cutter. Finally, Vermeer argued that Rasnic has never worked for a manufacturer of stump cutters.

The Magistrate Judge observed, however, that a witness can qualify under Rule 702 as an expert even though he lacks practical experience, provided that he has received suitable training or education or has otherwise gained the requisite knowledge or skill. The absence of hands-on experience with the particular equipment is relevant to the determination whether to accept a witness as an expert, but it is not determinative. Here, Mr. Rasnic was a qualified mechanical engineer with expertise in industrial equipment, machine design, hydraulics, guarding, and safety engineering. He has designed machinery using clutch brakes, the safety device on which he would testify. He has numerous professional memberships, and has evaluated a number of machines in his forensic engineering practice for both plaintiffs and defendants. He had used a handlebar stump cutter to cut stumps on his property and observed a hydraulic stump cutter in operation before using one that he modified for purposes of testing the safety feature he was recommending in this case. While Mr. Rasnic may have limited experience with hydraulically-controlled stump cutters, the Magistrate Judge said, that was most likely a characteristic shared by most mechanical engineers. His credentials, training, and experience were sufficient to qualify him as an expert on guarding systems for the Vermeer SC252 stump cutter.

Vermeer designated Michael Gililland as an expert to rebut the Hydes’ argument about the need for a cut-out switch and to testify about the adequacy of the warnings on the SC252. In his expert’s report, Gililland argued that the addition of the cut-out switch will cause operators to defeat the switch, and that the SC252 is not unreasonably dangerous and the warnings on the machine are adequate. Since preparing his report, Gilliland interviewed five people who had participated in a Vermeer test of a SC252 stump cutter modified with Rasnic’s proposal. Gililland stated that his interviews confirmed the opinions expressed in his expert report. The Hydes have moved to exclude Gililland’s testimony about the 5-user test because he failed to supplement his report and that the plaintiffs did not learn about the 5-user test until after the discovery period had closed, leaving them unfairly surprised by the new information.

badge160210The Magistrate Judge agreed that the 5-user test report should be excluded. Rule 703 holds that experts may rely on three sources of information to form their opinions: (1) first-hand observation by the witness, (2) presentation at trial, and (3) presentation of data to the expert outside of court and other than by his own perception. Here, Gililland did not participate in, or observe, the 5-user test. Instead, his knowledge of the 5-user test was presented by Vermeer outside of court and was obtained by interviewing the five operators. That testimony was hearsay, the Magistrate Judge said, because Vermeer sought to use statements by the five operators to support Gililland’s opinion of the Rasnic proposal to add a cut-out switch to the SC252.

Under 703, an expert can discuss as the basis for an opinion facts or data which are otherwise inadmissible hearsay if the basis is of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. In this case, Vermeer has not shown that Gililland’s testimony about his interviews with the five operators are of a type reasonably relied upon by experts in his field. First, Gililland had no control over the test. He did not modify the SC252 stump cutters used in the 5-user test, he did not observe the modification of the stump cutters, he did not know who modified the stump cutters, and he did not know who took his photos of the modified machines. He did not record the interviews with the five operators, but instead he recorded the interviewees’ answers to his questions on a checklist form. In at least two cases, the checklist suggested the desired answer. Finally, his testimony was based on information about a test developed and conducted by his client in anticipation of litigation.

In his report, Gililland advanced several opinions about why Mr. Hyde’s actions constituted negligence and why Vermeer was not negligent. The Magistrate Judge said his opinions were legal conclusions that Gililland was not qualified to advance. The jury would determine the negligence of the parties in the trial of this case. Gililland would not be permitted to testify about his conclusions about the respective negligence of the parties.

– Tom Root


Case of the Day – Wednesday, March 22, 2017


aspirin140917Today’s case is the septic equivalent to the old doctor’s advice of “take two aspirin and call me in the morning.”

Mrs. Hubbell was a resident of Xenia, a small city in southeastern Ohio (Motto: One of America’s only cities to start with ‘x’”). One unfortunate day, Mrs. Hubbell discovered that ‘x’ didn’t just stand for “Xenia.” It stood for ‘x’crement, too.

When Mrs. Hubbell’s basement, bathroom and kitchen all started filling up with some pretty nasty effluent from the sewer line, she called the emergency help line the City of Xenia maintained for homeowners with such smelly problems. But it was the weekend, and the sewer department worker on duty wasn’t too keen on going out in the rain to check out her problem. He figured that it was just the rain backing things up, and if it were really bad, Mrs. Hubbell would call again.

Well, it was really bad, and Mrs. Hubbell did call again an hour later, to catalog all of the types of malodorous waste bubbling into rooms all over her house. That time, the worker did come. When he and his assistants pulled a manhole cover off the sewer main around the corner, a fountain of filth erupted and the liquid waste in the Hubbell home started draining away. It turned out that tree roots had jammed up the sewer main, and the City’s maintenance program hadn’t gotten around to clearing them away.

Mrs. Hubbell was unhappy at the Sewer Department’s lackadaisical response to her problem, so she sued. The City claimed it was immune under Ohio’s governmental immunity statute, because its inspection program was an exercise in discretion. True, the Court agreed, but there was nothing requiring any special expertise in the lazy worker’s refusal to respond when Mrs. Hubbell reported a problem. The problem, the Court said, is that almost everything required some discretion, and to accept the City’s argument meant that everything a governmental entity did would be immune.

Erupting effluvient …

Here, the City had a kind of a contract with its residents. The City offered an emergency number, and the implied deal was that if a local taxpayer called, the City would respond. The worker’s decision to let the stink build — and to be sure, it was a real problem worthy of his attention on a Sunday afternoon — could easily be negligence. The Court said Mrs. Hubbell was entitled to her chance to prove that to a jury.

Hubbell v. Xenia, 175 Ohio App.3d 99, 885 N.E.2d 290 (Ct.App. Ohio 2008). Water and sewage began flowing into Mrs. Hubbell’s home through drains in a shower, a toilet, and a bathroom sink. Believing that the stinking problem was likely caused by a malfunction in the sewer system maintained by the City of Xenia. She called the City’s emergency services, and the call automatically transferred to the Xenia Police Department. The police paged an on-call sewer and waste maintenance worker, but he refused to do anything, suspecting that the problem was likely the result of heavy rainfall that day.

The sewage and dirty water continued to flow into Mrs. Hubbell’s home, and she desperately placed a second call for help several hours later. This time, the on-call worker decided to respond and investigate the problem, and a service crew was brought in.

Hubbell’s home is located at the intersection of Monroe and Home Avenues. The house is connected to the sewer main on Home Avenue, which in turn connects to the main on Monroe Avenue. The service crew examined the Home Avenue main line and found it was flowing freely, but when they removed the Monroe Avenue manhole cover, the back-up into Hubbell’s house promptly subsided. The crew removed tree roots that had invaded the main. Sewer Department officials conceded that the roots may have contributed to the blockage.

Hubbell sued, alleging that Xenia was negligent in maintaining and operating its sewer line because it failed to inspect the Monroe Street main, allowing the line to become obstructed and clogged by tree roots and collected refuse, causing the back-up into her home. She also said the sewer condition constituted a nuisance for which Xenia was liable. Xenia claimed it was immune from liability under the Political Subdivision and Tort Liability Act.

The trial court refused to throw the case out, and Xenia appealed.

Held: The City was not entitled to have the case dismissed without trial. Generally, the Court said, where a municipal corporation assumes the management and control of a sewer, it is required to exercise reasonable diligence and care to keep the system in repair and free from conditions which will cause damage to private property. The municipality’s failure to do so may make it liable for damages caused by its negligence.

However, a municipal corporation’s liability is nevertheless subject to the defense of governmental immunity provided by §2744.01 of the Ohio Revised Code, if any of the five exceptions or one of the defenses to immunity set out in the statute apply.

digging140917Here, the Court ruled, Xenia’s ongoing inspection and cleaning of its sewer lines was entitled to governmental immunity because the execution of the program involved judgment and discretion as to how extensive and in what manner the program would be executed. However, routine decisions requiring little judgment or discretion and which, instead, portray inadvertence, inattention, or neglect, are not covered by the statute’s grant of immunity.

The City maintenance worker’s decision not to respond to Mrs. Hubbell’s call regarding sewer back-up incident, due to his belief that her problem resulted from excess rainfall, wasn’t an act of judgment or discretion for which city was entitled to governmental immunity. Instead, the City’s contractual agreement with its residents to provide emergency services to those to whom it provided sewer services gave rise to duty to perform such emergency services with ordinary care.

When one undertakes a duty to perform an act, and another reasonably relies on that undertaking, the act must generally be performed with ordinary care. A genuine issue of material fact existed, the Court said, as to whether the City was negligent in its performance of its duty to provide emergency services to Mrs. Hubbell, and that matter could only be settled at trial.

– Tom Root

Case of the Day – Tuesday, March 21, 2017


camelnose150209Prescriptive easements – easements across someone’s land acquired, usually by public utilities, because of a lapse of time – are fairly common. That’s usually because no one thinks twice about utility poles and overhead lines, or buried gas lines, until an issue arises and the landowner discovers to his or her chagrin that the utility never obtained an easement for the overhead or underground facilities, but too much time has passed to do anything about it.

In today’s case, a prickly landowner with the unlikely name of Lindburgh Jackson didn’t much like the overhead power lines and the utility pole on the land he bought in 1978. But somehow, for all of his complaining, he never bothered to check to see that Alabama Power had an easement to be there. It didn’t.

Unfortunately, for Unlucky Lindy, it took him nearly 25 years to challenge APCo, and only then because – as is increasingly common in our wired world – some new fiber optic system named Lightwave wanted to use the APCo poles and easement for its cable.

APCo easily proved that it had a prescriptive easement over Jackson’s land. After all, it had been trespassing with its poles for over 21 years. But the Alabama Supreme Court held that just because APCo had snagged an easement from Jackson for free to maintain electric lines didn’t mean Lightwave could cross the land with impunity, even on the APCo poles. The camel’s nose might be in the tent, but that didn’t mean that the whole camel could necessarily follow. APCo could use the easement for electricity transmission, but not for anything else it cared to.

The Supreme Court’s ruling suggests that Alabama at least takes a very strict view of how much a landowner has given up when he or she loses an easement by prescription — and that’s probably a good thing.

powerlines150209Ex parte Lightwave Technologies, L.L.C., 971 So.2d 712 (Sup.Ct. Ala. Apr. 27, 2007). Lindburgh Jackson owned property in Auburn, Alabama. Alabama Power Company has maintained power lines across his land and a utility pole on the property since he bought the place in 1978. Mr. Jackson never much cared for APCo, and has complained continually about APCo’s use and maintenance of the lines and the pole, but he did nothing about them.

Sometime in 2001, Lightwave Technologies – pursuant to a “pole-sharing” agreement with APCo – installed fiber-optic cable on the utility pole on the Jackson property. The City of Auburn had authorized Lightwave to install its cable and had established the route for such placement. Jackson sued everyone, APCo, Lightwave, and the City of Auburn, alleging among other claims that APCo had conspired with Lightwave to commit trespass on his property. The trial court entered a summary judgment in favor of all the defendants.

The Court of Civil Appeals concluded that because APCo had maintained the power lines in opposition to Jackson’s objections from April 1983 until September 2003, it had obtained an easement by prescription over his the portion of his land it used. The Court of Civil Appeals upheld judgment for APCo with respect to the trespass claim against it, and found for APCo and Lightwave on the conspiracy claim.

Undaunted, Jackson appealed to the Supreme Court of Alabama.

Held: APCo could not give Lightwave the right to use its prescriptive easement over Jackson’s land.

In order to determine whether APCo had the right to permit Lightwave to use the easement, the Court considered first whether APCo has the right to apportion its prescriptive easement and whether its apportionment to Lightwave was within the scope of the prescriptive easement. The Court said that the term “apportionability” in reference to easements refers to the easement owner’s right to divide the easement to produce independent uses or operations.

In general, the Court observed, an exclusive easement in gross is apportionable to the extent the additional use is authorized by the manner or terms of the easement’s creation. An easement in gross is an easement that benefits an easement holder personally whether rather than the benefit of the easement accruing to another piece of land. An exclusive easement grants unfettered rights to the owner of the easement to use the easement for purposes specified in the grant to the exclusion of all others, including the servient owner. Here, the Court held, APCo’s prescriptive easement was an exclusive easement in gross because it permits APCo to use the easement for the construction and maintenance of power lines and precludes, by its nature, Jackson and Matthews from using the easement for that purpose.

Just because a utility pole on a prescriptive carries one wire doesn't mean that it may carry more than one ...

Just because a utility pole on a prescriptive carries one wire doesn’t mean that it may carry more than one …

Prior decisions held that easements and easements acquired by condemnation may be apportioned, when the language in the document or condemnation order creating the easement indicates an intention to convey or to grant the right to apportion and when the apportionment does not constitute an additional servitude. But, the Court said, the decisions cannot stand for the proposition that a prescriptive easement – like the one in this case – is apportionable as a matter of law. Although the Court agreed that APCo’s prescriptive easement could be apportioned, the question to be resolved is exactly what rights APCo possessed that it could apportion.

In Alabama, the scope of an easement established by prescription is determined by the extent of the use. An easement holder is not entitled to materially alter the scope of its easement. Here, Jackson allowed APCo to gain a prescriptive easement over the disputed property. However, while Lightwave may have affixed its line to the power pole nearly 3 years before Jackson filed this action, one can hardly conclude that a relatively short 3-year delay amounts to acquiescence by Jackson of the apportionment. The Supreme Court ruled that APCo acquired the right to string power lines across the disputed property, but it did not acquire a right to string any line or cable providing something other than, or related to, electrical power over the easement.

Because APCo’s prescriptive easement is limited in scope to the extent of the use that created it, APCo’s apportionment of the prescriptive easement does not serve to insulate it from the conspiracy claim, nor does APCo’s attempt to apportion its prescriptive easement insulate Lightwave from either the trespass claim or the conspiracy claim against Lightwave.

– Tom Root


Case of the Day – Monday, March 20, 2017


clinton140912Back when George Stephanopoulos was a mere flack for President Bill Clinton, and not yet a respected television commentator for ABC, he defended his boss to a skeptical Larry King as having “kept all of the promises he intended to keep.” The malefactors in today’s case apparently intended the same.

In order to get a zoning variance to add on to their newly-purchased estate in the tres chic village of Centre Island, New York (once home to Billy Joel and his $32.5 million shanty), the Comacks promised not to let the shrubs and trees obstruct anyone’s view of Oyster Bay. Believing their sincere pledge, the Village OK’d the proposal.

A few years later, the bushes were high and the trees were leafy, and the Comacks said something to the effect of, “Promise? What promise? Oh, that promise… It’s… uh… kind of unclear what we really intended to promise. Let’s just forget the whole thing.” Or something like that.

Sometimes, as nice as the trees may be, the view without them is even better.

Sometimes, as nice as the trees may be, the view without them is even better. (Editor’s note: this photo was not taken at the Comack’s – it is illustrative only)

The Village elders didn’t forget it, soreheads that they apparently were, and sued the Comacks. The trial court found for the Comacks, but the court of appeals reversed and required the Comacks to keep their word. The appellate judges apparently could figure out what the meaning of “is” was.

Incorporated Village of Centre Island v. Comack, 39 A.D.3d 712, 834 N.Y.S.2d 288 (N.Y.A.D. 2 Dept., 2007). In 1999 the Comacks purchased property in the village of Centre Island and sought a variance to maintain and enlarge the pre-existing, nonconforming home on the lot. Specifically, they sought to build a second story addition over the existing garage and to change the roof line. The proposed expansion and changes would have necessarily affected the neighboring properties’ existing views of the waters of Oyster Bay. And, Centre Island being a ghetto of the fabulously well-to-do, unobstructed views of all that their wealth had enabled them to accumulate were rather important to the residents.

word160208In consideration for the granting of the variance, the Comacks signed a “Declaration” that provided “[a]ll open views from points off the premises to Oyster Bay shall remain in their present unobstructed state … [n]o trees or major shrubs shall be planted on lots 85 and 86 with the exception of minor shrubs and bushes which if allowed to grow to full height would not impede the aforesaid open views. Any shrubs or plants which if allowed to grow to maturity would exceed three feet in height will require the approval of the village building inspector for compliance with the intent of the declaration …”

Remember Johnny Nash? Are you really that old? Johnny obviously didn't live near the Comacks, or he would never have written the song.

Remember Johnny Nash? Are you really that old? Johnny obviously didn’t live near the Comacks, or he would never have written the song.

The variance was granted, but a few years later, shrubs and trees planted by the Comacks began obstructing neighbors’ views of the Bay. The Village sued. The trial court agreed with the Comacks that the “Declaration” was vague, and the case should be dismissed. The Village appealed.

Held: The trial court was wrong. It was the Village’s complaint that should be granted, not the Comack’s request that it be dismissed. Contrary to the trial court’s determination, the language of the “Declaration” and, in particular, the first provision thereof, was not “imprecise and vague” so as to render it unenforceable. Instead, the “Declaration” — read as a whole to determine its purpose and intent — is clear that the Comacks made a deal. In consideration for the granting of the variance, the Comacks agreed to maintain “[a]ll open views from points off the premises to Oyster Bay … in their present unobstructed state.”

Because there is no ambiguity, the “Declaration” must be enforced according to the plain meaning of its terms. The Court held that to the extent that certain shrubs and trees planted by the Comacks obstructed “open views from points off the premises to Oyster Bay,” these violate the “Declaration.” The Court sent the case back to the trial court to determine whether the Village was entitled to damages, and whether the Comacks should be ordered to cut down certain shrubs and trees from the subject property that obstructed “open views from points off the premises to Oyster Bay.”

– Tom Root


Case of the Day – Friday, March 17, 2017


RefHere it is only a few weeks before opening day of baseball season, and we’re talking football. Why? In order to cover one of the cardinal rules of trespass – illegal contact.

Usually illegal contact, that is, trespass to trees — where someone enters someone else’s land and cuts down trees without any right to do so — are pretty cut and dried. But not all trespasses are clear-cut (to turn a pun).

In today’s case from Louisiana, a party bought a piece of land from the tree owner’s sister, but conditioned the purchase on being able to get rid of some trees on the boundary line with the tree owner. The owner – no doubt a Patriot – signed a contract entitling the buyer to cut down trees on the boundary. The problem was that the contract was imprecise as to how many, or where exactly the trees were. The only thing that was clear was that the parties agreed that wild Broncos couldn’t pull him over to cut down the tree owner’s prize old live oak.

Too bad the owner didn’t watch the tree-cutting crew like a Seahawk. The buyer’s contractor was kind of a Buccaneer. He cut down 12 trees and, although he was told not to, he trimmed the live oak pretty aggressively. The owner cried “Deciduous foul!” and lawsuits flew like yellow hankies. He sued the buyer, Raven that he hadn’t given permission to do anything like that. He wanted treble damages for the wrongful cutting.

The court awarded about $5,000 in damage for the cut branches on the live oak, but it disagreed on the treble damages. The Court said that the ambiguous contract seemed to contemplate that the 12 trees would be cut down, and there was no basis for any recovery on those. As for the injured live oak, it was damaged but still standing. The statute awarded treble damages for cutting down trees, and the trimming — although a violation of the contract — wasn’t something for which treble damages could be awarded.

The plaintiff felt deflated over the whole episode.

Distefano v. Berrytown Produce, LLC, 973 So.2d 182 (La.App. 1 Cir., 2007). Distefano owned a 2-acre vacant tract of land along Church Street. Berrytown Produce, LLC sought to buy a piece of land next to the Distefano tract to operate a produce business. That land was owned by Rose Millican, DiStefano’s sister.

A line of trees on Distefano’s land blocked the view of the Millican tract approaching it from the highway. Berrytown conditioned its purchase on obtaining Mr. Distefano’s permission to remove trees from his property. So Distefano authorized Berrytown in a written agreement to remove all trees on the property line dividing the Distefano and Millican tracts, except for a live oak tree. Berrytown hired Kemp Richardson to perform the clearing work. Richardson cut and removed 12 trees from the Distefano and Millican tracts, and he cut a significant number of branches from the live oak tree on Mr. Distefano’s tract.

Eisfeld should have gotten this sign with special wording, "And don't cut down my trees, Martin!"

     This means you, Berrytown!  Trespassing – kind of like the real property version of off sides.

Distefano filed a timber trespass action against Berrytown and Richardson, saying the defendants cut and removed five trees from his property and cut branches off the live oak tree without his permission. Distefano tried to recover damages under Louisiana Revised Statute 3:4278.1, commonly referred to as the “timber trespass” statute, that imposes a penalty of three times the fair market value of trees on people who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property. Distefano also claimed restoration damages and damages due to the decrease in the value of his land, and further urged that defendants’ cutting activities caused him to suffer non-pecuniary damages.

At the conclusion of a bench trial, the court found that the agreement between Distefano and Berrytown contemplated the cutting and removal of all trees on the Distefano property that had been actually cut down. The court found that the parties clearly understood that the live oak tree was not to be cut, and awarded Distefano $6,045.00 for the unlawful removal of branches from his live oak tree, accepting expert testimony setting the fair market value of the live oak tree at that amount. The court declined to award treble damages, finding the treble damage provision inapplicable because the tree itself had not been cut down and removed, and because there was insufficient evidence of the fair market value of the limbs removed from the tree.

Distefano appealed, challenging the court’s finding that he consented to the cutting down of five trees from his property and the denial of his treble damage claim.

Held: The trial court’s decision was upheld. The Court found that the contract called for the cutting of “all trees on the dividing property line” between the Distefano and Millican tracts, “with the exception of the live oak tree located on or near the property line.” A witness attested there were no trees on the property line itself, but there were trees close to the property line that hung over the property line, and those were the trees Berrytown wished to have removed. Distefano contended that the parties never contemplated the removal of any trees not located exactly on the common property line, but other witnesses disagreed, and the trial court’s findings of fact were found to be reasonable.

Distefano contended that the trial court should have ordered the defendants to pay treble damages. Louisiana Revised Statute 3:4278.1 imposes a penalty of three times the fair market value of the trees on those persons who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property without the landowner’s consent. But, the Court said, no tree was cut down without permission. Instead, the oak tree was trimmed without permission, and the cut trees were taken pursuant to the agreement. Although contrary to the contract, the Court ruled, because the oak tree was not cut down, the statute did not authorize treble damages under the facts of this case.

– Tom Root