THE EAGLE HAS LANDED

Unlike the kid above, our Ralphie wasn’t quick like a bunny when the branch fell.

When the elder Mr. Eagle volunteered to help trim a tree at his church, his son Ralph tagged along. It seems that Ralphie was anxious to help Daddy.

Ah, the brashness of youth! The lad (he was 50 years old, but he still lived with mom and dad, so he was unquestionably a kid, albeit a big one) shouldered the three septuagenarians aside and climbed the ladder himself. Well, one thing led to another, and the group of tree-trimming amateurs lost control of a limb. The limb fell, the 70-year old man holding the ladder jumped out of the way to avoid being hit, and the falling limb knocked the ladder over. Ralphie fell off the ladder and landed — hard.

Having his eye on the collection plate, the litigious Eaglet sued the Church, the other retirees and, of course, his own father (with whom he resided) for negligence. He claimed that the volunteers were acting as agents of the church, making the church liable.

The trial court rejected this and dismissed the case. The Court of Appeals agreed, finding that as volunteers, the tree-trimming crewmembers owed each other reasonable care at most. And it wasn’t reasonable to believe the man holding the ladder would stand and take a hit when the limb fell. There wasn’t evidence that any of the trimmers were negligent, so the Church couldn’t be liable.

As for premises liability, the Court said, the evidence showed Eagle had volunteered to help three old men do something dangerous: he should have seen it coming. In reading the decision, one gets the impression that neither the trial court nor the appellate panel thought much of the young Eagle, who horned in on the volunteer effort, ignored his father’s request that he not participate, and then — after getting hurt — sued everyone involved.

Eagle v. Owens, Case No. C-060446, 2007-Ohio-2662, 2007 Ohio App. LEXIS 2469 (Ct.App. Hamilton Co., 2007). A small church needed tree trimming. During a Sunday service, the pastor had asked for volunteers to perform the tree-trimming task. The church typically relied on volunteers for landscaping work, including potentially dangerous work such as trimming trees. Merida and Owens volunteered. Both had performed similar tasks for the church on several occasions in the past without incident.

Before leaving the church that day, the two volunteers stood by the tree to examine what had to be done. When Eagle’s father walked by, they recruited him to help them. Eagle’s father was a deacon of the church, an unpaid, rotating position that required him to make decisions for the church’s benefit with the four other deacons. Ultimately, the three men, all over 70, agreed to meet the next morning to do the task.

When the elder Eagle arrived the next day, he brought his 50-year-old son with him. The son thought the other volunteers were too old, so he took over trimming from a ladder perch. Before the younger Eagle began sawing, his father insisted on changing the rope’s position around the limb. Merida remembered telling Eagle’s father that he didn’t like the change, but he claimed he deferred to him because he was a deacon. The limb did not fall cleanly, and its branches knocked over the ladder the younger Eagle was standing on. One of the men holding the ladder ran to avoid being struck by the limb. Eagle fell and was injured.

He sued everyone who was there, as well as the church, alleging that they had “carelessly and negligently caused a tree limb to fall and strike” him. He also complained that his father, Owens, and Merida were all acting as agents or employees of the church when the accident occurred, and that the church was responsible for the acts of its agents. The individual defendants moved for summary judgment, arguing that Eagle assumed the risk of injury by participating in an inherently dangerous activity. The church moved for summary judgment on the respondeat superior claim, arguing that it could not be liable because the individual defendants were not negligent, were not agents of the church, and Eagle had assumed the risk.

The trial court granted summary judgment for the defendants without giving any reasons or issuing a decision. The younger Eagle appealed.

Held: The young Eagle’s wings were clipped. The Court agreed with the trial court’s dismissal, holding that as nonprofessional volunteers, the defendants at most owed Eagle a duty of reasonable care under the circumstances. Eagle did not present any testimony, expert or otherwise, to demonstrate how his father’s, Merida’s, or Owens’ conduct fell below a standard of reasonable care. No one foresaw that the branches on the limb would strike Eagle after breaking off from the trunk, and no one expected Owens to hold the ladder if it swayed while Eagle was on it, because it was obvious that he was physically unable to do so. And if he had stayed to steady the ladder, he likely would have been struck and injured by a large limb.

The Court held that the duty of reasonable care did not require such a foolish act of bravery, despite Eagle’s assertion that he would have steadied the ladder and suffered the blow if the roles had been reversed. To establish a claim against the church under the doctrine of respondeat superior, the record must show that a principal-agent relationship existed and that the agent committed the tortious conduct within the scope of his agency.

Here, the Court said, it did not need to determine whether reasonable minds could have concluded that any of the three men were agents of the church and whether Eagle was injured by acts taken within the scope of that agency because the individual defendants did not act tortiously towards Eagle in carrying out the task. Where there is no actionable conduct by an agent, there can be no vicarious liability for the principal. Finally, on the claim of premises liability, the Court held that in determining the duty the church owed to Eagle, it had to focus on Eagle’s status as a participant in the tree-trimming task, because his injury resulted from his participation in this task and not from his status as a person present on the church’s property in general.

It was undisputed that Eagle was warned of the danger, that the church had always used volunteers – including Merida and Owens – to perform similar tree-trimming tasks in the past, and that these volunteers had always performed without incident. Eagle did not present any testimony from a tree-trimming professional to attack the church’s decision to use these same volunteers to remove this limb. The Court concluded that reasonable minds could come to only one conclusion: the church did not breach a duty of care owed to Eagle.

– Tom Root

HANK YANKED, JOHNSONS CRANKED, SUPREME COURT TANKED

It’s hard to muster up a lot of sympathy for hard-nosed businessman Henry Tyler. When he wanted to build a commercial building, but his neighbors rightly refused to let him cut down some of their trees, Hank just yanked the trees anyway.

But the neighbors, the Johnsons, were not a couple of patsies who would roll over and play dead. They got a lawyer, who cranked on Hank big time. By the time the dust settled, Hank owed the Johnsons for the trees he had cut down, for additional damages his trespass had caused, for treble damages under the statute, and for punitive damages. The $1,400 worth of Johnson trees that Hank butchered ended up costing him over $11,500.

But there’s truth to the maxim that little pigs go back to the trough, but big pigs get slaughtered. (Mark Cuban is credited with the most common variation on this old saw, but I recall my wonderful securities law professor, the late Morgan Shipman, using the line often back in the 70s). Like Abraham Lincoln famously said, you just can’t trust the Internet.

Treble damages are intended to punish the malefactor by providing a simple statutory punitive remedy for a wronged party. Common-law punitive damages likewise are intended to punish the malefactor but without a set formula (thereby permitting a jury to make a symbolic gesture or run wild, as it wishes).

In today’s case, the plaintiffs’ silver-tongued lawyer talked the jury into awarding both treble damages and common-law punitive damages. When the trial judge wisely struck one, reasoning that a defendant could be punished once but not twice, the plaintiffs – who were big piggies by this time – appealed.

The Johnsons should have accepted the court’s offer when it first made it. The Iowa Supreme Court tanked their punitive damage award and sent the case back for retrial.

Johnson v. Tyler, 277 N.W.2d 617 (Supreme Court, Iowa, 1979). The Johnsons, who bought their home in 1952, planted trees and shrubs around the premises, particularly along the west line of their property. Genco Distributors, Inc., bought the property next to the Johnsons’ land to the west, intending to put a commercial building there. Genco’s president, Henry E. Tyler, asked the Johnsons for permission to remove the trees along the west boundary in preparation for construction. They refused. Hank nevertheless instructed the contractor to bulldoze the trees.

The Johnsons sued under Iowa Code § 658.4 for damages resulting from Hank’s deliberate and willful removal of a number of trees and shrubs from their property. The jury found for the Johnsons, fixing the value of the destroyed trees and shrubs at $1,400.00, trebling it to $4,200.00, adding other sundry damages of $2,100.00, and assessing punitive damages of $5,250.00. That was too much for the trial court, which set aside the verdict for punitive damages.

The Johnsons refused the adjusted judgment of $6,300.00, which was still more than double the total damages they suffered. They appealed the trial court’s striking of punitive damages, and the case went to the Iowa Supreme Court.

Held:  Punitive damages cannot be assessed.

The Supreme Court said the paramount issue was whether the Johnsons could recover both treble damages under the statute and punitive damages at common law.

The relevant statute provides that “[f]or willfully injuring any timber, tree, or shrub on the land of another… the perpetrator shall pay treble damages at the suit of any person entitled to protect or enjoy the property.” The Court held that by bringing the action under Iowa Code § 658.4, the Johnsons chose the remedy that statute provides, which is itself punitive.

The Johnsons argued that the statute did not abrogate their right to punitive damages, but instead just provided an additional statutory remedy. The Court disagreed, holding that allowing a plaintiff to recover both treble damages under the statute and punitive damages under common law “would violate the basic prohibition against double recovery.” The Supreme Court ordered the case retried, instructing the jury to find only compensatory damages.

Not all the news was bad for the Johnsons, however. The Supreme Court clarified one question: whether “loss of enjoyment resulting from destruction of the trees and shrubs” was part of the damages that could be tripled under the statute. The trial court said they were not.

The Supreme Court held that the treble damage statute “allows treble damages for loss resulting from willfully injuring any timber, trees, or shrubs. It does not limit recovery to damage to the trees or shrubs themselves. Loss of enjoyment resulting from such conduct is an element of damage. If properly proved, this item, too, comes within the treble damage provision of § 658.4.“

– Tom Root

SNAP, CRACKLE AND POP

An arborist defendant’s nightmare – the troop of Brownies onto whom your client’s tree toppled.

Arboriculture professionals pride themselves on being experts at what they do, which is – generally put – to manage trees. Management may include trimming, preservation, or in many cases, removal of trees. Often, how the tree is treated depends on the arborist’s expert opinion of the tree’s condition and the threat (if any) it poses to persons or property.

A lot can depend on the arborist’s opinion. If an examination of a tree misses a defect or disease, and the tree ends up falling on a troop of Brownies who happen by on the public sidewalk at just the wrong time, the unlucky arborist will end up with a lot of ‘splainin to do.

The U.S. Court of Appeals for the Seventh Circuit handed down a decision in 2014 that involved not a single tree. Nevertheless, the decision should serve as a caution to arborists, landscapers and tree trimmers – not to mention those who hire them.

It seems that mom-and-pop grain handler ConAgra Brands, Inc. (September 30th market cap – $6.78 billion) had a problem with a wheat pellet storage bin. Grain can be tricky stuff, generating a lot of dust and carbon monoxide. Both of these like to explode with little provocation. The technical people call it “deflagration,” more of a low-level snap and crackle than a high-level detonation “pop” – but to the man or woman on the street, it’s a fairly destructive bang.

ConAgra knew just what to do when one of its grain bins in Chester, Illinois, started heating up spontaneously. It called in an expert in “hot bins,” a sort of a Red Adair of wheat silos. The company, West Side Salvage, went to work on the unstable grain bin, but only after a delay occasioned by contracting procedures and West Side’s other business commitments.

The delay proved fatal to the project. West Side tried to salvage some of the wheat pellets in the bin, but removing the grain let more oxygen into the bin, increasing the instability. West Side’s supervisor called firefighters to stand by, but while he awaited their arrival, he sent several workers for one of West Side’s subcontractors into the bin through a tunnel to retrieve tools. While they were doing so, the grain dust exploded, seriously injuring them.

Everyone knows that an owner is not responsible for an independent contractor’s negligence. Everyone also knows that the owner may be liable if it does not provide the independent contractor with a safe place to work. The district court agreed that ConAgra had done just that and that West Side was negligent in sending the employees into the dangerously unstable grain bin. It smacked ConAgra and West Side jointly with $18 million in damages for negligence.

ConAgra appealed, arguing that it was not liable for any damages to the subcontractor employees, because West Side knew what it was getting into. Besides, its contract with West Side provided that West Side would indemnify ConAgra from any West Side negligence. West Side, eager to have a company with ConAgra’s deep pockets share the $18 million, argued that ConAgra failed to disclose material information about the unstable grain bin. Furthermore, West Side’s indemnification of ConAgra may have been written into the contract, but West Side had never signed the document.

Your customer hired you because you’re an expert at what you do. You have to act like one. If something goes wrong, you’ll surely be judged like one.

The Seventh Circuit was baffled. The injured workers complained that ConAgra had provided them with a dangerous workplace? “Well, yeah,”  the Court said. The whole point of hiring a “hot bin” expert was that the bin was dangerous. The Court held that where an owner hires an independent contractor to remedy a dangerous situation, the owner would not be held liable if the feared disaster came to pass. Such a policy would discourage people with serious or dangerous problems from hiring experts to fix them.

The Court has just as little patience with West Side’s complaint that ConAgra failed to disclose information about the grain bin’s condition. West Side didn’t say ConAgra provided false information. In fact, it admitted that ConAgra adequately answered all of the questions it had put to its client. The problem, West Side argued, was that ConAgra had other information about the dangerous grain bin – specifically, temperature readings from earlier in the month – that it failed to volunteer.

The 7th Circuit expressed incredulity at the claim. West Side was a self-professed expert in “hot bins.” ConAgra was not. An owner like ConAgra was entitled to assume that when an expert like West Side is hired, the expert will ask for all the information it deems important. In this case, ConAgra did not end up sharing liability with West Side simply because it didn’t answer questions that were never asked.

The Court seemed almost perplexed by West Side’s argument that it had never gotten around to signing the contract with ConAgra, so it wasn’t bound by the provision requiring it to indemnify ConAgra for damages resulting from its negligence. That hardly mattered, the Court said. West Side began the work, whether it signed the contract or not. That was enough to signify that it had accepted the contract terms.

So what’s the takeaway for arboriculture professionals? First, be sure the contract is completely negotiated and signed the way you want it. If you leave it for later but begin work now, a court may conclude you had accepted terms you thought were still being negotiated. Second, you’re an expert at what you do. Be certain to gather all of the information you need for the job. When the tree falls on that Brownie troop, you can’t hide behind the owner’s failure to give you information about the condition of the tree that you never asked for.

Jentz v. ConAgra Foods, Inc., 767 F.3d 688 (7th Cir. 2014). A grain bin in Chester, Illinois, exploded in April 2010, injuring three workers. The month before, ConAgra Foods – the owner of the bin, which was part of a flour mill – discovered a burning smell coming from the storage vessel, which contained wheat pellets. ConAgra hired West Side, which claimed expertise in handling “hot bins.” When work began, West Side hired A&J Bin Cleaning to do some of the tasks. Two of the injured workers, John Jentz and Robert Schmidt, were A&J employees. The third, Justin Becker, worked for West Side.

ConAgra wanted to salvage as much of the grain as possible, but as pellets were removed from the top, more oxygen reached the wheat composting at the bin’s bottom. West Side decided to remove some grain via side tunnels. On April 27, West Side detected smoke coming from the bin. Its crew sprayed water on the pellets and used an air lance to try to discover the smoke’s source; the effort failed. Mel Flitsch, West Side’s foreman, told ConAgra to call the fire department. Waiting for firefighters to arrive, Flitsch sent Jentz and Becker into a tunnel, instructing them to remove tools that might impair firefighters’ access. While they were there, the explosion occurred. They were severely injured but survived. Schmidt, who was in an elevator nearby, also was injured, but less seriously.

A Federal district court jury awarded $180 million in damages against ConAgra Foods and West Side Salvage. ConAgra contended that liability rested on West Side, which it had hired to address problems in the bin. West Side did not contest liability to the workers but argued it did not have to reimburse ConAgra for the cost of repairing the facility. The injured workers contend that both ConAgra and West Side must pay the full verdict.

The dust may just deflagrate and not really detonate – but the distinction probably makes no difference if you’re the one caught in the fireball.

Held: The Court of Appeals held that ConAgra was not liable. Normally, the appellate panel said, employees of an independent contractor cannot recover damages from the owner of the premises where the contractor was working. The injured workers contended that ConAgra was nevertheless liable for failing to provide West Side with a safe place to work. ConAgra responded that, of course, the grain bin was unsafe — that’s why West Side had been hired to begin with. ConAgra relied on the principle that someone who engages an independent contractor to redress an unsafe condition is not liable when the feared event occurs.

The Court agreed, pointing out that Illinois law held that “in a case involving negligent rendition of a service [by an independent contractor] … a factfinder does not consider any plaintiff’s conduct that created the condition the service was employed to remedy.” Here, ConAgra may have delayed in hiring West Side (it rejected other companies for lack of liability insurance), and it may not have provided all of the information about the bin it had, but that does not matter. The evidence showed that West Side was hired to deal with a hot bin, and all liability is therefore on its account. By hiring a self‑proclaimed expert in hot bins, ConAgra was entitled to assume West Side would ask for whatever information it needed. The Court said that “[p]eople who hire lawyers rely on them to ask for information material to the situation, and no court would hold a client liable to his lawyer for failing to reveal spontaneously something that the lawyer never asked about; similarly, people who hire specialists in controlling the risks of grain storage are entitled to rely on them to know what matters and ask for the material information.”

Finally, ConAgra signed and tendered to West Side a contract in which West Side promised to indemnify ConAgra for any damage caused by West Side’s negligence. The jury concluded that West Side is liable under this promise, but West Side argued that it did not return a signed copy of the contract to ConAgra. It agreed to undertake the job and set to work, but did not sign on the dotted line. The district judge thought this was irrelevant because performance is usually as good as a signature as a way to accept a proposed written contract. The Court of Appeals agreed. Knowing the proposed terms, West Side began the work. That was as good as a signature on the dotted line.

– Tom Root

TREE HUGS CAR, THEN COURT HUGS TREE

What does the Amazon rainforest have to do with a ’77 Mercedes-Benz?

When Vic’s beautiful 1977 Benz was crushed by Al’s tree (while Vic was driving his convertible down the road), Vic knew for a fact that someone had to pay for the damage, and it wasn’t going to be him. Al should have known the tree would fall; Vic fumed in his lawsuit. That argument lasted until the neighbor, who had extricated Vic from the recently downsized roadster, provided pictures showing the tree had decayed from the inside, and a reasonable inspection would not have caught the danger.

Never mind, Vic argued, Al should be responsible for what his trees might do regardless of whether he was negligent. The concept, strict liability – sometimes called liability without fault – has some utility. If you keep a couple of pet tigers in the backyard and a great white shark in the fishpond, the courts aren’t going to waste a lot wondering if you were negligent when the jungle cats maul the neighbor boy or the great white eats the president of the garden club when she leans over the water to admire the lilies. You do something that is inherently dangerous – keeping wild animals is not just a great example, but is the genesis of the notion of strict liability – and you’re going to be liable for whatever happens.

But for keeping trees? We suspect the judge was an environmentalist on the weekend, because he mused that if landowners were strictly liable for their trees falling onto the highway, then the landowners would start cutting down trees willy-nilly, and the beautiful Virgin Islands would be denuded posthaste. The Court opined that “the community, both local and global, also has a compelling interest in the protection and preservation of the environment. The same concern and sensitivity that we are just beginning to bring to the massive problem of the destruction of the Amazon rainforest, for example, should also apply to the relatively minute and particular circumstances of this case. No reasonable gain would be derived from adopting a rule of strict liability here, particularly when weighed against the potential ecological and aesthetic implications of such a decision.”

So trees would fall like dominoes, and the earth would fry like an egg. So take that, Mercedes 450 SL. You may be fine, but the Amazon is finer.

Marrero v. Gerard, 24 V.I. 275 (Territorial Ct. Virgin Islands, 1989). Victor Marrero was driving his 1977 Mercedes-Benz along the East End Road in Estate St. Peters when a tree fell on his car. Before it fell, the tree stood on Plot 5, St. Peters, owned by Alphonso Gerard.

Norman Nielsen, one of Al’s neighbors and a co-worker with Vic, quickly arrived at the scene. The base of the tree was inside Al’s fence, but the remainder was on the road. Norm described the tree as “dry” where it broke off, “kind of rotten but green on top.” The evidence, which includes Vic’s pictures of the tree (though none showing the top of the tree where there was foliage) failed to show that an external visual inspection of the tree before the fall would have disclosed that it was rotten at its base and in danger of toppling.

Held: The court ruled that Vic had not shown Al to be negligent because there was no evidence Al had reason to know the tree was unstable or would fall. But Vic argued he didn’t have to show negligence, because Al should be strictly liable for the tree, that is, liable whether he was negligent or not. Vic based his argument on Restatement of Torts (Second) § 363(2), which holds that “a possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.” The explanation accompanying § 363 provides that “it requires no more than reasonable care on the part of the possessor of the land to prevent an unreasonable risk of harm to those in the highway, arising from the condition of the trees. In an urban area, where traffic is relatively frequent, land is less heavily wooded, and acreage is small, reasonable care for the protection of travelers on the highway may require the possessor to inspect all trees which may be in such dangerous condition as to endanger travelers. It will at least require him to take reasonable steps to prevent harm when he is in fact aware of the dangerous condition of the tree.”

The Court was unsure whether Al’s land was urban or rural, but it said that was irrelevant. Even if it had been urban, the Court said, the weakened condition of the tree was not apparent upon a visual inspection, “so that it matters not whether the area was urban or rural. Perhaps a core sampling of the tree would have disclosed the problem, but such an effort, particularly when weighed against the likely risk, is far too onerous a burden to place upon a landowner.”

Under the circumstances of this case, the Restatement simply does not impose strict liability, that is, liability without fault. While Restatement § 363(2) may apply a more specific standard of care to an urban landowner, the Court said that standard is still “within a negligence realm.” Vic suggested the Court should “fashion a rule of strict liability” and thereby to pronounce a previously unexpressed public policy. The Court declined, holding that “Restatement § 363 is entirely consistent with sound public policy. “A landowner should have the duty to inspect for, discover and remedy patently hazardous natural conditions on his or her property which may cause harm to others outside the land,” the Court said. “But in this instance, the rotted condition of the tree was internal, not external, and therefore not discoverable upon reasonable inspection. To impose a rule of strict liability would be to declare, in effect, that any tree large enough to fall over the boundary of one’s land will subject its owner to liability if a hidden weakness causes it to topple and cause damages off the land. Such a ruling, if widely disseminated, most likely would encourage prudent landowners to cut down large numbers of trees, thereby accelerating the already lamentable deforestation of the territory.”

The Court held that no reasonable gain would come from adopting a strict-liability rule here, especially when weighed against the potential ecological and aesthetic implications of such a decision. It, therefore, dismissed Vic’s lawsuit.

– Tom Root

CHUTZPAH, CONNECTICUT STYLE

So you like your wild mountain property, with its clean, sparkling streams and majestic trees? You like to think that it will always look as pristine and undeveloped as it does right now. So when you finally sell it, you place some restrictions on the deed, so that there won’t be any double-wide trailers, pre-fab A-frame chalets or tar paper shanties erected smack in the middle of heaven-on-earth.

Seems reasonable, doesn’t it? But eventually, the people you sold the land to sell it to someone else, and the someone else has a really good lawyer. “This is Connecticut!” the solicitor tells his client. “We can beat this restriction!”

And lo and behold, that’s just what he does. It seems in Connecticut, the terms on which you originally agreed to sell your land don’t matter much. In today’s case, the heirs of the original nature-lovin’ owner suffered a lot of angst when they finally sold off most of the lake property. But the buyer won them over, even agreeing to a development restriction on part of the land to preserve its natural character. A few years later, that buyer sold the land to the Williams, who had been convinced by their lawyer that the restriction wasn’t enforceable. The new owners promptly sued for a declaratory judgment that the restriction was void.

The Connecticut court agreed. It fell outside of the three traditional categories of restrictions that ran with the land. Even so, the Court said, it could be enforced under equitable principles. But it wouldn’t do that, the Court said, because it would be so unfair to the buyers of the land. After all, the Court said, it wasn’t clear who the beneficiary of the restriction was or who could enforce it. Therefore, the Court held it would be unfair to the buyers because — and we’re not making this up — they “bought the property because they thought the restriction was unenforceable. If the restriction is found enforceable, the property could only be developed for recreational purposes and would be far less valuable. Devaluing property without a clear beneficiary is not reasonable.”

The decision certainly turns common sense on its head. When a seller won’t sell unless a restriction is placed on the land, it’s hard to argue that the continuing restriction harms marketability. It’s more marketable than if the seller doesn’t sell at all. And for that matter, should the law be concerned with promoting marketability over a seller’s free will?

It seems safe to imagine that as conservation—and especially forest preservation because of “climate change” concerns—gains public policy importance, the notion of “marketability” and the free right to develop may become less of a holy grail. As it probably should.

Williams v. Almquist, 2007 Conn. Super. LEXIS 2841, 2007 WL 3380299 (Conn. Super., Oct. 30, 2007). Robert Bonynge bought a 150-acre tract of land at Lake Waramaug in 1898 and later conveyed it in several parcels. Although some of the original tracts were sold in the 1930s and some heirs owned certain parcels outright, the Bonynge heirs eventually sold a 105-acre tract to Lee and Cynthia Vance in 2001. The negotiations for that sale were a difficult and emotional process, with the primary concern of the heirs to conserve the natural condition of the property. The Vances agreed to give some of the land and a conservation easement to the Weantinoge Heritage Land Trust. Also, they agreed to a restriction on 8.9 acres of the property: “There shall be no construction or placing of any residential or commercial buildings upon this property provided that non-residential structures of less than 400 square feet may be constructed for recreational or other non-residential purposes and further provided that the property may be used for passive activities such as the installation of septic and water installations, the construction of tennis courts, swimming pools and the construction of facilities for other recreational uses.”

David and Kelly Williams bought part of the 8.9-acre tract in 2005 from the Vances, still subject to the restriction agreed upon in February 2002. Shortly thereafter, the Williams entered into an agreement with the Vances in which the Vances waived their right to enforce the restriction. The Williams then sued the Bonynge heirs for a declaratory judgment, asking the court to declare the restriction in their deed void and unenforceable.

Held: The restriction on the Williams’ land is unenforceable. The Court noted that restrictive covenants generally fall into one of three categories: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of a property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee presumptively or actually for his benefit and protection of his adjoining land which he retains. Here, the restrictive covenant did not fall under the first category because it originally arose from the sale of the Bonynge heirs’ land to the Vances, not from an exchange of covenants between adjoining landowners. Likewise, the second category did not apply. Rather, that category applies under a general development scheme, where the owner of property divides it into building lots to be sold by deeds containing substantially uniform restrictions; any grantee may enforce the restrictions against any other grantee. But in this case, the Court ruled that the evidence suggested that a common plan or scheme did not exist.

The restrictive covenant did not fall under the third category either. Where the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor’s successor in title can enforce, or release, the covenant depends on whether the covenant was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant expressed therein, read in light of the circumstances attending the transaction and the object of the grant. The question of intent is determined under the broader principle that a right to enforce a restriction of this kind will not be inferred to be personal when it can fairly be construed as appurtenant to the land. In that case, it will generally be construed as intended for the benefit of the land since, in most cases, it could obviously have no other purpose. The benefit to the grantor is usually a benefit to him or her as an owner of the land, so if the adjoining land retained by the grantor benefits from the restriction, it will be presumed that it was so intended.

Here, three of the Bonynge heirs retained property near the 105-acre tract but did not own property directly adjoining or overlooking the restricted tract. As such, the Court said, there was no presumption that the restriction was meant to benefit their land. The deed didn’t say as much: in fact, it didn’t indicate that the restriction was meant to benefit anyone at all. With no mention of beneficiaries in the deed and no testimony about the retaining landowners’ intent, the Court held that the restriction could not fall under the third category.

The trial court said it could properly consider equitable principles in rendering its judgment, consistent with Connecticut’s position favoring liberal construction of the declaratory judgment statute in order to effectuate its sound social purpose.

Although courts before have approved restrictive covenants where they benefited a discernable third party, the Court found that the restriction was not reasonable because it had no clear beneficiary and limited the property’s marketability. Possible beneficiaries included the Bonynge heirs, only those heirs who retained property in the Lake Waramaug area, other residents in the Lake Waramaug area, the Vances, or nature itself. Without a discernible beneficiary, the Court ruled that it was difficult to determine who could enforce the restriction and for how long.

The restriction also unreasonably limited the property’s marketability. Although restrictions are often disfavored by the law and limited in implication, restrictive covenants arose in equity to protect property value. Here, the restriction did not protect any identifiable property. The plaintiffs bought the property because they thought the restriction was unenforceable. If the restriction were enforceable, the property could be developed only for recreational purposes and would be far less valuable. The Court said that devaluing property without a clear beneficiary was not reasonable.

– Tom Root

A MARMOT IS A VARMINT

Cute … but varmints

It seems that the furry little critters called marmots dig holes and generally make pests of themselves. That’s what they say at Yosemite. And Pam Tessman would tell you they say the same in Wyoming..

She and her son spent one July 4th at a Wyoming RV park. That day, Pam walked through a field and saw a marmot hole. A few hours later, after dark, she tripped over the same hole she had seen earlier.

Of course, the fact she knew the hole was there and that the marmot probably wasn’t in the employ of the park owner didn’t matter to the limping and litigious Pam — she sued park owner Mary Berry anyway. The alliteratively named Mary Berry might tell you that Pam was something of a varmint herself. Nevertheless, the jury awarded Pam a cool quarter million dollars at trial (reduced by 25% because the jury figured that she should have remembered seeing the hole in the grassy field from earlier that day).

But the Supreme Court of Wyoming had other ideas. Before liability can attach, the Court said, there has to be a duty. In Wyoming, a landowner isn’t responsible for protecting guests from known, obvious dangers. Little furry burrowing animals tend to leave holes that are completely natural, the Court said and open and obvious. The Court said there was no reason to hold the RV park owner liable for Pam’s clumsy misfortune or to make Mary Berry pay to line Pam’s pocket.

Berry v. Tessman, 170 P.3d 1243, 2007 WY 175 (Sup. Ct. Wyo., 2007). Pam Tessman was staying at Mary Berry’s RV park. At check-in, Pam asked Mary Berry where she could take her son fishing. Mary Berry pointed Pam to a river just off the property, and Pam followed the directions. She and her son cut behind a bathhouse across several fields, over a broken-down fence and over a set of railroad tracks, to the fishing hole.

Pam saw plenty of adults and kids using the “grassy area” behind the bathhouse to get to and from the river. In fact, on the way back, Pam saw several boys playing by a marmot hole in the field behind the bathhouse. That evening, Pam was watching fireworks when she saw her son had gone up by the railroad tracks with some children who appeared to be setting off fireworks. Concerned for his safety, Pam left the lit pool area and went out into the grassy area behind the bathhouse to call him back. She stumbled into the marmot hole she had seen earlier that day and twisted her ankle.

Pam sued for compensation for her injuries. The trial court found for Pam and awarded her $259,000, which it reduced by 25% for her own negligence.

Pam appealed.

Held: The Wyoming Supreme Court reversed the trial court, and Pam got nothing.

The elements of a negligence action are a duty owed by the defendant to the plaintiff to conform to a specified standard of care and the defendant’s breach of that duty. The plaintiff must then show that the breach of the duty of care proximately caused the injury. A landowner in Wyoming owes a general duty to maintain his or her property in a reasonably safe condition, considering all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Landowners have no duty to protect others from known and obvious dangers, even those resulting from natural causes.

However, a plaintiff may prove that an otherwise naturally occurring condition does not fall within this rule by showing that the defendant-landowner created or aggravated the hazard, that the defendant-landowner knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Even a naturally occurring, known and obvious hazard that the landowner had not aggravated could result in liability if the landowner were to create an expectation of heightened safety for people on the premises. The Court saw no reason the known-and-obvious-danger rule should not apply to the ubiquitous hazard posed by holes dug by burrowing animals.

However, Pam Tessman did not show that her circumstances warranted a finding that the marmot hole she stepped in was anything other than a naturally occurring, known and obvious danger from which Mary Berry had no duty to protect her. She made no showing that Mary Berry owed her any other duty that would support a finding of negligence here. The marmot hole was not a hazard she had created. The marmots weren’t domestic animals or pets, but wild animals present in the surrounding area and on the property itself.

Simply put, the record evidence didn’t suggest that Mary aggravated the danger posed by the marmot hole. On the contrary, the trial court found that Mary tried to minimize the danger from such holes by filling them regularly and trapping the animals whenever they became a nuisance. A landowner does not have a duty to protect a guest on her property from a naturally occurring, known and obvious hazard she has not aggravated if she has not, through her own undertaking, created an expectation that guests will be protected from such a hazard.

Mary didn’t create or aggravate the marmot hole that caused Pam Tessman’s injuries, nor did Mary do anything that could have caused Pam to reasonably rely on a heightened expectation that she would be safe from marmot holes on Mary’s property. Thus, Pam collected nothing.

– Tom Root