LET’S BE CAREFUL OUT THERE

Summer has just begun, astronomically speaking, although it seems like it’s been here since the first 90-degree day in early May. Not that I’m complaining. Swimming, biking, hiking… summer can hang around as long as it likes.

A few days ago, my bride and I wandered through Vermilion, Ohio, for some ice cream at Dairy Dock (premium-quality soft-serve, with prices to match). Vermilion seems like summer the way summer used to be and always should be. Tourists everywhere, the cottages along the Lake Erie shore full of vacationers, boats cruising in and out of the marinas… Hot fun in the summertime, as Sly puts it.

Just for a moment, I felt that summertime twinge that the days are already running through my fingers like the sands of an hourglass. Oh, for the mythical endless summers we almost believed were possible when we were kids!  

To all those folks who complained in April about the cold weather… I hope you’re happy now. It’s going to as hot and muggy as Paris next week, perfect for stopping by the old swimming hole, a place where my friends and I have had a lot of fun. And, sadly, a place where tragic things can happen. Just ask the French…

We must make an extra effort to be caerfull careful. With July 4th upon in a little more than a week, this might be a good time to consider due care, that is, our duty of care to others.

In a negligence action, a plaintiff generally has to show that (1) the defendant had a duty of care in relation to the plaintiff, (2) the defendant failed to conform its conduct to the requisite standard of care; and (3) an injury to the plaintiff was proximately caused by the failure.

That’s what “fisheye” is all about: Do you really want to be eating food that’s staring back at you?

The duty of care is a moving target, depending largely on the relationship between the defendant and the plaintiff. If someone delivering your double-anchovy pizza and atomic wings falls into an open hole in your front yard, the law treats your liability a whole lot differently than if, say, a thief sneaking around at night trying to steal your garden troll statue falls into the same hole. (But even if the law doesn’t wonder, we’re puzzled that you’d order a double-anchovy pizza).

In today’s case, a young man was paralyzed for life when he dove into the lake at his parents’ house. He had made the same dive countless times before, but the defendant in the case — the non-profit corporation that owned the lake — had recently installed a dredge pipe underwater near the shore. The pipe apparently was just below the surface of the lake.

The lake’s owner argued that the young man was merely a licensee, not an invitee. The difference was crucial because a licensee pretty much takes the property in the condition he or she finds it. The trial court agreed that the plaintiff was much more than that, and after a jury trial, the young man was awarded $1 million.

The appellate court looked at the corporate purpose of the non-profit lake owner, as well as the terms under which it acquired the lake from the public utility that had owned it previously. Both required that the lake be maintained for public purposes, despite being ringed with private homes, and that the evidence convinced the Court of Appeals that the young man wasn’t merely using the lake with the permission of the defendant non-profit corporation. Instead, he was an invitee, someone to whom an invitation had been extended to enter or remain on land for a purpose for which the land was being held open to the public. As such, the landowner had a much higher duty of care to the young swimmer, a duty it violated by not being more careful in installing and marking the dredge pipe.

Not all shallow water is so well labeled.

Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475 (Ct.App. Indiana, 2007). Twenty-six-year-old Justin Stichnoth was visiting his parents at their house located on Lake Shafer. During a conversation that day, Justin’s father, Kerry, told Justin about a dredge pipe that Shafer & Freeman had installed in the channel near their dock. Kerry explained that recently he had gotten his boat “hung up” on the dredge pipe. Shortly thereafter, Justin took a running dive off of his parents’ dock into the channel, something he had done often over the years. Justin struck his head on the dredge pipe, which was located on the channel floor about 17 feet from the dock. Justin was left a paraplegic. He sued Shafer & Freeman, alleging that the firm’s negligence caused his injuries because it didn’t warn that there was a pipe underwater, it didn’t mark the pipe so that it would be visible to users of the lake, and it didn’t use reasonable care in dredging the lake.

Shafer & Freeman denied the allegations of negligence. Later, it filed a motion for summary judgment on the issue of whether Justin was a licensee of Shafer & Freeman. The trial court denied it, and a jury found it liable to Justin, awarding $1 million to the injured plaintiff. Shafer & Freeman appealed.

Be careful when diving into unfamiliar water.

Held: Justin was an invitee. Indiana law holds that a person entering upon the land of another comes upon the land either as an invitee, licensee or trespasser. The person’s status on the land defines the nature of the duty owed by the landowner to the visitor. Licensees have a license to use the land and are privileged to enter or remain on it by the permission of the owner or occupier, but they take the premises as they find them. Invitees, on the other hand, are owed a much higher duty of care. The decisive factor in determining whether a landowner has extended an “invitation” or “permission” is the interpretation a reasonable man would place on the owner’s words and actions, given all the surrounding circumstances. Here, the Court found, the lake was held open to the public, even though it was surrounded by private property, and thus Justin — who dove off a dock and struck his head on a dredge pipe located on the channel floor — was an invitee rather than a licensee for purposes of personal injury action. The Court held that the articles of incorporation of Shafer & Freeman, the non-profit corporation that owned the lake, provided that the corporation would protect and enhance the lake’s water quality to facilitate public recreational use and ensure continued public access.

What’s more, the Court said, the agreement by which Shafer & Freeman acquired the title from the electrical utility provided that Shafer & Freeman would hold the lake for public, charitable, recreational, conservation and environmental purposes. It is not enough to hold land open to the public that the public at large is permitted to enter at will upon the land for their own purposes. As in other instances of invitation, the Court said, there must be (1) some inducement or encouragement to enter, (2) some conduct indicating that the premises are provided and intended for public entry and use, and (3) some expectation that the public will not merely be tolerated, but is invited and desired to come.

When a landowner lets local boys play basketball on his vacant lot they are licensees only. If he installs playground equipment and posts a sign saying that the lot is open free to all children, there is then a public invitation, and those who enter in response to it are invitees. So it was with the lake.

– Tom Root

HOW MUCH IS ENOUGH?

A eucalyptus tree, similar to the one that offended Ms. Cannon.

There was a time, back when people of grit populated the land, that a landowner only had one choice when his neighbor’s trees encroached – to cut ‘em back. The Massachusetts Rule was the coin of the realm: if you didn’t like your neighbor’s tree overhanging your eaves, or its roots wrapping around your sewer line, you only had one option. The courts didn’t want to hear about it. Self-reliance was what it was all about.

Then along came the Hawaii Rule, which suggested that a naturally growing tree could be or could become a nuisance and that an aggrieved landowner could sue for an order requiring its removal. One rule does not necessarily negate the other. So when does one oil up the chainsaw, and when does one fire up the word processor?

The Massachusetts Rule is, generally speaking, a blunt instrument. It’s one thing to cut away branches that pose a threat (or even an inconvenience) to your property. But what if cutting a limb back to the property line leaves a 15-foot leafless stub extending from the branch to the boundary. That’s not necessarily according to ANSI Standard A300, but on the other hand, you don’t have the right to trim it properly unless your neighbor consents to you coming onto his or her land to do so.

Or, more dangerously, what if you cut back roots to the extent that the tree loses too much subsurface support and falls on your neighbor’s new last-of-its-kind Bugatti Chiron? Are you liable? After all, you did no more than what the Massachusetts Rule permitted you to do.

The Hawaii Rule, on the other hand, is Doug Lewellyn’s dream. What an All-American solution – let’s sue! When is harm sensible? When your foundation walls collapse? When a dead branch falls on your Tourbillon? When leaves clog the filter on your swimming pool? How much harm is enough?

Joan Cannon lived next to Lamar Dunn. Joan was unhappy with the roots from the Dunns’ eucalyptus tree, which were encroaching underground onto her land, as roots are wont to do. After all, a tree will quite often send roots out 35 feet or more from the base of the trunk, and the root system has little regard for some lines drawn on a recorder’s map.

We’re not sure why Joan was so exercised. Maybe she was naturally crotchety. Perhaps she was unusually territorial. Maybe her neighbor had a nice Bugatti, while Joan drove a Yugo. What we can be sure of is that the eucalyptus roots weren’t really causing any harm.

Sometimes encroaching roots can be an inconvenience.

That didn’t stop Joan from suing the Dunns.  The trial court denied an award of any damages and refused to order Lamar the appellee to remove the offending roots and tree. Joan appealed.

The Court of Appeals considered the classic Restatement of the Law of Torts approach, which holds simply that if a neighbor owns something that trespasses, he or she must remove it if there is a duty to do so, regardless of whether it causes harm. That’s the rub, the court said. When does such a duty arise?

The court found guidance in the Restatement on nuisance and held that a duty to remove offending branches or roots arose when some actual and sensible or substantial damage had been sustained. Joan’s general objection to the unseen eucalyptus roots did not equate to harm. Thus, the roots could remain.

Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (Ariz.App. Div. 2 1985). This case involves the liability of Lamar Dunn, an adjoining landowner, for roots from a eucalyptus tree that invaded the subsurface of land belonging to his neighbor, Joan Cannon. The trial court found that the roots had caused no actual damage, and denied an award ordering the Dunns to remove the offending roots and tree.

Joan appealed.

Held: Dunn did not have to remove the roots. The Court of Appeals rejected Cannon’s argument that it should apply the Restatement (Second) of Torts § 158 (1965), which stated that “one is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally… fails to remove from the land a thing which he is under a duty to remove.”

The Court said that it was “obvious that one must first determine whether there is a duty to remove the object and that in this case § 158(c) really begs the question.” More to the point, the Court observed, was the Restatement (Second) of Torts § 840 (on nuisances), which held that a possessor of land is not liable to his adjoining landowner for a nuisance resulting solely from a natural condition of the land.

Ms. Cannon could not prove any damages flowing from the alleged encroachment … unlike this guy.

The Court paid lip service to the Massachusetts Rule, noting that Arizona law permitted a “landowner who sustains injury by the branches or roots of a tree or plant on adjoining land intruding into his domain, regardless of their non-poisonous character, may, without notice, cut off the offending branches or roots at the property line.” At the injured landowner’s expense, of course.

But when some actual and sensible or substantial damage has been sustained, the Court said, the injured landowner may maintain a nuisance action for abatement of the nuisance, and compel the removal of the branches or roots at the tree owner’s expense. However, where no injury has been sustained, no lawsuit be brought for either an injunction or damages.

– Tom Root

DRAFT ME A VERBAL CONTRACT

Ah, l’esprit d’escalier! Those biting, snappy comebacks we wish we had said at the time. You know, those retorts that sound like Donald Trump’s tweets. Or “Truths.”

Today’s case is about something akin to that—not rapier ripostes, but one of those rather important contract terms—how long the multi-year agreement would last—that both parties kind of wished they had discussed when they first made their deal.

And maybe one of them did. To be sure, each probably had what is today called an “exit strategy” in mind. But neither brought it up. And what’s worse, nothing was in writing on the parties’ joint venture to raise and harvest peaches. Samuel Goldwyn was right when he observed that “a verbal contract isn’t worth the paper it’s printed on.”

What’s surprising is that their verbal deal lasted as long as it did. Invariably, however, problems ensued. When Miami Valley Fruit Farm wanted to terminate the deal after about 20 years, Southern Orchards protested that the length of the venture was for the trees’ useful life, meaning the deal would continue until the trees were worn out. It sort of turns the old Stripes line on its head: you can’t go … until all the plants die.

The Court agreed because that was the only interpretation that made sense to it. You see, without a contract in black and white, everything was pretty gray. Think of how much they saved by not hiring lawyers to write up some boring old detailed contract. Probably less than 5% of what they spent litigating the issue 20 years later …

Miami Valley Fruit Farm, Inc. v. Southern Orchard Supply Co., 214 Ga.App. 624, 448 S.E.2d 482 (Ga.App., 1994). Southern Orchard Supply Co. and Miami Valley Fruit Farm entered into an oral agreement whereby Miami Valley, which owned the 295 acres of land, purchased peach trees, and Southern Orchard planted, cultivated and harvested the trees. Under the agreement, which has been in effect for about 20 years, the parties equally divided the net profits from the sale of each year’s peach crop.

After the 1993 peach crop was harvested and sold, Miami Valley told Southern Orchard that it was terminating the oral agreement and that Southern Orchard would not be allowed to cultivate and harvest the 1994 peach crop. Southern Orchard sued for an injunction, arguing that it had made substantial investments in the planting and cultivation of the peach trees and in equipment and packing facilities based on the mutual understanding of the parties that the agreement would continue for the “economic life” of the peach trees.

The evidence showed that after a peach orchard is planted, the trees must be cultivated for years before they mature enough to bear fruit and begin producing profitable, full crops. Once mature, the trees have an “economic life” for an indefinite period of years, during which they produce profitable crops each year until their fruit production declines to the point where they are no longer profitable and new trees must be planted. The “economic life” of the trees varies depending on factors such as peach variety and cultivation techniques. The trees at issue still had years of “economic life” remaining.

Southern Orchard argued the agreement had to last for the “economic life” of the trees in order to provide for the recoupment of its expenses. Miami Valley argued there was no agreement between the parties for any specific duration of the contract, that the parties considered the agreement to run from year to year, and that in any event, the “economic life” of a peach tree could not provide the agreement with a definite term since the duration of the life cannot be determined with any degree of certainty. Accordingly, Miami Valley argued it had the right to terminate the agreement.

The trial court held that Southern Orchard had an enforceable oral contract to cultivate and harvest the peach trees on the land at issue for the “economic life” of the trees. Because Southern Orchard had no adequate remedy at law for the breach of the agreement, the trial court could grant injunctive relief, ordering Miami Valley not to interfere with Southern Orchard’s performance of the agreement for the 1994 peach crop. Miami Valley appealed.

Held: The injunction against Miami Valley is upheld. The Court of Appeals held that the question of how long the contract remains in force is governed by the circumstances of each particular case. Here, the Court said, evidence showed that the parties intended the employment contract to continue for more than a single crop season. Considering the particular circumstances and expenses incurred to plant, cultivate and harvest the peach trees, the Court found that the parties agreed that the employment contract would continue for as long as the trees produced reasonably profitable crops, the “economic life” of the peach trees.

The old aphorism that a ‘stitch in time saves nine’ is worth recalling here. A little consideration to all of the material terms of the agreement at the outset – perhaps a few bucks spent on a lawyer whose forte is thinking about all the “what ifs” that the parties aren’t considering ­– would have saved a lot of time and expense two decades down the road.

– Tom Root