WHEN A TREE GROWS ACROSS A BOUNDARY – AND CAUSES A NUISANCE

Trees often don’t start out straddling property lines. Rather, they sprout as carefree saplings, but later grow above and below the ground without regard for metes and bounds.

Do you remember Flap Your Wings? It’s a great children’s book by P.D. Eastman, a favorite of my 3-year-old grandson Tommy, a story in which Mr. and Mrs. Bird suddenly find an oversized egg in their nest, placed there by a well-meaning stranger who found the orb on the ground and wrongly deduced it had fallen from the tree. They love and care for the egg, but it hatches into something that unexpectedly becomes a real nuisance in their nest. A great book with a happy ending… but no spoiler alert is needed here. We won’t tell you what hatched.

When the Bergins planted a tree on their land in 1942, they had little idea that it would grow into a big problem. The tree thrived over 25 years, a great oak from a little acorn having grown, so to speak. (All right, it was an elm, but you take the point…) It expanded from its modest plot toward and across the boundary line with their neighbors, in the process knocking the neighbors’ chain-link fence out of line, raising the sidewalk and causing drainage problems.

The Holmbergs argued that the tree was a nuisance, and demanded that the Bergins remove it. The Bergins argued that the tree was a boundary tree, and it thus belonged to both the neighbors and to them commonly. Therefore, they could not be charged with maintaining a nuisance.

The Court disagreed with the Bergins’ defense, ultimately adopting the rationale of the Colorado case of Rhodig v. Keck. The intent of the parties, the Court ruled, rather than the location of the tree, governed whether the tree was a boundary tree.

Little trees don’t stay little…

Here, the Bergins planted and maintained the tree exclusively. They and the Holmbergs neither treated nor intended the elm to be a boundary tree. Instead, the tree ended up straddling the boundary only by an accident of growth. No matter where the tree had grown to encompass, it remained the Bergins’ tree, and the court found it to be a nuisance.

The damage wrought by the tree makes an interesting comparison to the 2007 Virginia decision in Fancher v. Fagella on encroachment and nuisances. The tree’s shallow root system made remedies short of removal infeasible, and the roots seemed to run just about everywhere. The case is an excellent illustration of how the facts of the particular growth at issue can drive a court’s decision.

Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (Sup.Ct. Minn. 1969). The Bergins and Holmbergs were adjoining landowners in Minneapolis. In 1942, the Bergins planted an elm tree on their property about 15 inches north of the boundary line, and they have maintained the tree and exercised sole control over it since that time. The Holmbergs bought their place 10 years later and constructed a chain-link fence on their property 4 inches south of the common boundary line. When the fence was completed, the tree was 6 inches from it and 2 inches from the boundary line, so the tree did not touch or interfere with the fence.

By 1968, the tree was 75 feet high, with a trunk diameter of 2 1/2 feet, and it was protruding about 8 inches onto the Holmbergs’ property. Its roots extended onto Holmberg’s property and pushed the fence out of line, making it impossible to use a gate in the fence. The tree was close to both houses, and the roots, being cramped for room, have pushed up a large hump in the ground around the base of the tree. The roots raised the ground level from the base of the tree to the Holmbergs’ sidewalk and caused it to tip toward their house, resulting in drainage into their basement.

To fix the problem, the Holmbergs were forced to construct a new sidewalk, which promptly cracked as well because of the tree’s roots. If the tree were removed, the Bergins’ property value would depreciate by $5,000.

Despite the Bergins’ complaint that the tree was a boundary tree, the trial court found it a nuisance and ordered the Bergins to remove it at their own expense. No damages were awarded to the Holmbergs because they failed to take advantage of earlier opportunities to remove the roots. The Bergins appealed.

     The parties had never agreed that the tree would mark their boundary – and this was important to the court.

Held: The tree was a nuisance. The Supreme Court held that something more than the mere presence of a portion of a tree trunk on a boundary line is necessary to make the tree itself a ‘boundary line tree’ so as to bring it within the legal rule that it is owned by adjoining landowners as tenants in common.

Whether the tree marks the boundary depends upon the intention, acquiescence, or agreement of the adjoining owners or upon the fact that they jointly planted the hedge or tree or jointly constructed the fence.

Nothing in the record discloses any intention of the parties that the tree should mark a boundary line between the properties. Minnesota law is clear that one cannot exercise his right to plant a tree in such a manner as to invade the rights of adjoining landowners. When one brings a foreign substance onto his land, he must not permit it to injure his neighbor. And, the Court held, an injunction against the continuance of a nuisance — such as the one issued by the trial court — may be proper if necessary to effect a complete and comprehensive abatement of the nuisance.

– Tom Root

THE MORE BOUNDARY TREES YOU OWN, THE FEWER RIGHTS YOU HAVE

The rule regarding ownership of boundary-line trees is strange and malleable. We often call it a tenancy in common, but it really is something different. In a tenancy in common, one owner can partition the property, taking a piece and leaving the rest to the others. The owner can force a sale of the property.

An owner of an undivided piece of the tree can’t partition the tree, cannot sell the tree, and cannot destroy the tree. In fact, under the generally accepted boundary tree rule, neither landowner can do anything to the tree without permission of the other.

Thus, a tree growing on Landowner A’s property but with branches overhanging Landowner B’s property can have its branches trimmed, hacked and cut by Landowner B back to the property line. But the day the tree’s trunk crosses the property line, suddenly Landowner B can’t take the tiniest bough without the permission of the other.

A landowner has more right to trim an encroaching tree when the trunk is entirely in someone else’s yard than she does when a part of the trunk is in her own yard. In other words, the more of the tree you own, the fewer rights you have with respect to the tree.

That does not make sense.

Strangely enough, about the only place that recognizes how nonsensical that result can be is Connecticut, a state where a lot of what goes on is illegal, such as selling pickles that don’t bounce, disposing of used razor blades, or crossing a street while walking on one’s hands. In a case that is now over 110 years old, the Connecticut Supreme Court held that where a tree is commonly owned – and the Court did not want to call it a tenancy-in-common – each owner retains a Massachusetts Rule-type right to trim overhanging branches. It is only the trunk that is sacred.

Robinson v. Clapp, 32 A. 94, 65 Conn. 365 (Supreme Court of Connecticut, 1895). Through a convoluted chain of purchases, sales, partitions and events, the boundary line dividing two urban residential properties in turn-of-the-century New Haven, Connecticut, belonging to John Robinson and John Clapp bisected a 40-year-old maple tree.

The tree was valuable to Mr. Robinson as an ornamental tree that also shaded part of his premises. Mr. Clapp intended to build a house extending down the boundary line for 58 feet from a point about 6 feet from Bradley Street, which would require removing part of the maple tree in his yard. The proposed tree cutting would kill the tree.

At the time both men bought their respective properties, there was no fence or other visible sign of demarcation marking the boundary line. However, Mr. Clapp had previously lived within 100 feet of the premises and was fully acquainted with the boundaries.

The trial court granted Mr. Robinson an injunction preventing Mr. Clapp “from such interference with the tree mentioned in the complaint as will destroy or injure the same…”

Mr. Clapp appealed.

Held: Mr. Clapp could be enjoined from cutting any of the trunk, but he was free to trim all limbs that overhung his property.

The Court held that trees that stand wholly within the boundary line of one’s land belong to him, although their roots and branches may extend into the adjacent owner’s land. However, the adjacent owner may lop off the branches or roots of such trees up to the line of his land.

However, if the tree straddles the boundary line, the Court observed, prior law held that “the same is the property in common of the landowners. And neither of them is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land if he thereby injures the common property in the tree.”

The Court thought this was balderdash. “It must be apparent that the very nature of things differentiates such a so-called common interest in a tree from an ordinary tenancy in common, either of real or of personal property. In the case of a tree like the one in question, yielding no fruit, of trifling value for wood, if cut, of no value while standing, except for ornament or shade, what relief by any remedy, legal or equitable, provided for ordinary tenants in common, can a part owner of such tree, to whom its continued existence is of no advantage but an injury, obtain? Can he call upon the other part owner to account for the benefit which he has derived from such ornament or shade? Could he, in this state, procure a partition of the growing tree as real estate, under Gen. St. § 1304? And if he did, would not the lines of his own and the adjacent land divide the tree as they did before, leaving the rights of the parties identical in effect with what they were before? Could he obtain a sale of the tree under section 1307, either as real estate or personal property, that would carry the right to have it destroyed or removed? If it be conceded, as it must be, that he could do none of these, it will be evident, we think, that the tenancy in common in a tree is of a peculiar nature, if there be such a tenancy at all.”

Rather, the Court concluded that each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree equal to the part of the tree which is upon his land. Each owner retained the right to demand that the owner of the other portion use his part as not unreasonably to injure or destroy the whole.

The Court decided that this right did not include any hacking away at the trunk. Instead, the Court ruled that “where the branches of a tree extend over an adjacent owner’s land, he may lop them off up to the line, even though that was practically to the trunk of the tree.” Thus, “the injunction should not extend further than to restrain the defendant from cutting any portion of the trunk and any further cutting of the branches or of the roots than he might lawfully have done had the trunk stood wholly upon the plaintiff’s land, but reaching to the defendant’s line.”

– Tom Root

LOVE, BOUNDARY TREE STYLE

Tree law fans (and I consider myself to be a fan) waited a long time for the Colorado Supreme Court to decide Love v. Klosky, and do away with the clunky old Rhodig v. Keck rule. The Rhodig rule holds that a tree that has grown up to be a boundary line tree is not owned by both property owners unless the neighbors claiming part ownership can jump through hoops to prove they (or their predecessors-in-interest) helped plant or nurture the tree, or treated it as the boundary line. The Court acted in 2018, and we duly reported on the matter at the time.

I was quite disappointed by the missed opportunity the Love decision represented, and I said so.

Today, I’m reviewing the ruling because, for the next week or so, I will be talking about the strangeness that is the boundary-tree rule. Brushing up on current events, weirdly enough, is a good place to start.

In the rest of the civilized world (except for Minnesota), a tree that straddles a boundary line is owned by both property owners, usually as tenants-in-common but – as we will see next week – sometimes as something more or less. The general rule is that one owner can’t mess with the tree without the other one’s permission.

As 1970s television cooking personality Chef Tell would have said, “Very simple, very easy.” No messy litigation, no one keeping tree-feeding diaries, garden shop receipts, or detailed journals of joint plantings of years gone by. Just a simple, binary rule: If the tree crosses the property line, both landowners have an interest. If it does not cross the line, only one does.

Unfortunately, the Colorado Supreme Court’s love affair with stare decisis – the legal doctrine that holdings of prior cases should govern the outcome of present and future cases – led it to a tortured defense of Rhodig. Everyone has it wrong, the Court said: Rhodig doesn’t apply to all boundary trees, just trees that started growing on one side of the property line and grew across the line to encroach on the other property.

It is more than a little ironic that a cartoon set in Colorado, South Park, once featured the Chewbacca defense, spun out by a Johnny Cochrane caricature. As Johnny put it in his closing, “That does not make sense.”

Johnny could have been talking about this decision. We all learned in 7th-grade math that a line segment stretches between points A and B and has no thickness. Unless that tiny little sprig of an oak tree in your backyard has the dimensions of, say, Flat Stanley, the odds that it will not start growing on one side of the boundary or the other approach zero. And 10, 20 or 50 years down the road, proving that the tree began its arboreal life straddling a boundary line of no thickness will require legal and arborist legerdemain that will make the Chewbacca defense sound like a Supreme Court argument.

The effect of Love v. Klosky could well be to start a real cottage industry for Colorado lawyers and arborists, proving where young maple or catalpa shoots began their lives. The only trees not subject to this nonsensical rule would be those old enough to have been standing in the 19th century when Colorado was first platted.

The Colorado Supreme Court had a chance to clean things up by running Rhodig through the tree chipper of legal history. Instead, it labored mightily… and brought forth a mouse.

Love v. Klosky, 413 P.3d 1267 (Supreme Court Colo., 2018). Carole Bishop and Mark Klosky and Shannon and Keith Love own adjacent parcels of land in Denver’s Washington Park neighborhood. A 70–foot tall catalpa tree towers over two adjacent properties. At the base of its trunk, the tree sits roughly three-quarters on the Kloskys’ property and one-quarter on the Loves’ property. The tree began growing on the lots well before the parties moved in, and no one knows who (if anyone) planted it. Whatever its origin story, the tree shed its leaves, seed pods, and branches on both properties without favoritism.

Catalpa tree

Unhappy with the debris, the Kloskys want to cut the tree down. The Loves unsuccessfully tried to convince their neighbors not to do so. When persuasion failed, they sued. The trial court ruled for the Kloskys, holding consistent with the Colorado rule enunciated in Rhodig v. Keck that unless the Loves could prove that they or their predecessors had helped in planting or maintaining the tree, or that they and the Kloskys’ predecessors had treated the catalpa tree as the boundary, the tree belonged solely to the Kloskeys.

On appeal, the Loves argued that Rhodig should be overturned, but the court held it was bound by Rhodig, which it interpreted to mean that “boundary trees are held as common property only if the landowners jointly planted, jointly cared for, or jointly treated the trees as a partition between the properties.” Two of the appellate judges, however, called on the Colorado Supreme Court to overturn Rhodig and require instead that any time a tree straddles two lands, the adjacent property owners jointly own the tree as tenants-in-common.

The Loves asked the Colorado Supreme Court to review the case.

Held: The Supreme Court, refusing to overturn Rhodig v. Keck, held that the Kloskys could remove the tree because it remained the sole property of the owner of the land where the tree first grew unless the tree was jointly planted, jointly cared for, or treated as a partition between the two properties. Because the Loves could not prove any shared property interest in the tree, they could not prevent the Kloskys from removing it.

The Loves argued that Rhodig should be overruled and that the Court should automatically make them tenants-in-common with the Kloskys for no other reason than the catalpa tree had crossed the property line. The Kloskys, on the other hand, argued that Rhodig holds that even when a tree crosses over a boundary line, it remains the property of the owner of the land on which the tree originally grew unless one of the joint-action situations enumerated in Rhodig applies.

The Court said there was no sound legal basis for abandoning Rhodig, surmising that “our ambiguous precedent caused the lower courts to conflate the common law rule for true boundary-line cases and the test for encroachment trees.” Instead, it clarified that Rhodig only governs “encroachment trees,” trees that begin life entirely on one property only to migrate partially to another. Under Rhodig, a landowner may remove such a tree without first securing the approval of his neighbor, unless the landowners jointly planted, jointly cared for, or jointly treated the trees as a boundary marker. The Court said that Rhodig does not represent some weird minority rule on boundary trees. Indeed, the Court lectured, the common law rule regarding true boundary-line-tree cases – where the tree sits squarely on a property boundary with no evidence of migration – is not implicated by Rhodig. In such a case, a tree standing on the division line between adjoining landowners is generally considered the common property of both landowners, even in Colorado. 

Thus, the Court ruled, Rhodig only applied when a tree originally growing on one property grew and encroached on another. Having clarified what Rhodig means, the Court concluded it was correctly decided and remains sound. “And, we see no conditions that have changed to make the above reasoning any less compelling today than when we decided Rhodig.”

The Court ruled that the Loves did not show other circumstances that would create joint ownership. “Just as the Rhodigs had no property interest in the trees that had encroached onto their land because there was not sufficient evidence the parties jointly planted the trees, jointly cared for the trees, or intended for the trees to serve as a boundary,” the Court wrote, “here, the Loves have no property interest in the tree that has encroached onto their land because they have not shown such joint activity implying shared ownership.”

– Tom Root

HEDGE FUN

The other day, we found ourselves reading a fascinating brief – and only a lawyer can employ the adjective “fascinating” to describe the noun “brief” – that argued against what the writer called the “common-hedge rule.” Under the common-hedge rule, the argument went, vegetation growing on or near a boundary might be regarded as property held in common, meaning that adjoining landowners would have to protect the vegetation from harm.

To the initiated among us (and because you’re reading this, you are among the initiated), this merely sounds like something close to the rule in Rhodig v. Keck. To the brief writer, however, the common-hedge rule was an un-American mischief-maker that would spawn vexatious litigation, engender confusion, and threaten the freedom-loving people of Earth. What was worse, the writer argued, it would interfere with the first prong of the Massachusetts Rule (that is, the doctrine that a landowner may trim overhanging branches and encroaching roots up to his or her property boundary).

Alas, the brief was for naught: the case in which it was filed, an Arizona hedge encroachment action, was decided on an arcane procedural question regarding the timeliness of a post-judgment motion under Arizona Civil Rule 60(c)(1). But the whole notion of a “common-hedge rule” was interesting.

But on closer examination, the common-hedge rule appears to be nothing special, at least, nothing we could not divine with what we know of the Massachusetts Rule and boundary-tree law. The highlights:

First, a person on whose land a hedge is located is the owner of it, although the roots and branches thereof extend into and over a neighbor’s land.

Second, a landowner whose property is invaded by the boughs of a hedge growing on adjoining premises may cut them at the point where they enter her property. However, the fact that a landowner trims branches overhanging her property from a hedge growing on an adjoining landowner’s land is not evidence that she has any ownership in the hedge, or that it is a boundary between the properties.

Third, if a hedge constitutes a boundary between adjoining lands, it is the common property of the owners of the lands, but neither has a right to cut, injure, or destroy the hedge without permission of the other.

This is pretty basic stuff. It appears the rules we know and love will apply whether the vegetation in question is a tree, a hedge or even a beanstalk.

Jurgens v. Wiese, 151 Neb. 549 (Supreme Court of Nebraska, 1949). Martin and Anna Jurgens sued John and Tena Wiese to stop them from destroying a hedge located entirely on the south boundary of the Jurgens’ and Wieses’ properties, and for damages suffered because of John’s partial cutting of the hedge.

The Jurgens and the Wieses (and the people who owned the properties before them) had for more than 10 years recognized the boundary between their lands to be the center of the hedge. The Wieses trimmed it on their side, not claiming to own the whole thing but rather just the part they trimmed.

The trial court found that the row of hedge trees was completely on the Jurgens’ land and awarded them damages for the Wieses interference with the hedge. The Wieses appealed.

The hedge had been there for about 78 years. The owner prior to the Jurgens, John Lenners, maintained the hedge and claimed it was his. In about 1936, John complained he was running into trouble with Lenners, and said, “I want to take that hedge from the old gentleman.” When Lenners died, the Jurgens bought the western 133 acres of the property.

John’s father, George, had owned John’s tract previously. George never made any claim to the hedge, but he did complain that it was too close to the line. More than 30 years before the trial, George said, “To my notion it ain’t right. Lenners has got that big hedge so close… it is damaging my land…. by sapping and they had to go along it every so often and cut branches.”

After John and Tena acquired the land, they did not claim the hedge was on their land or on the boundary line, but they did complain that it was sapping his ground and causing damage. After the Jurgens bought their land, John told Martin he could get “damage off you” because the hedge damaged his land and that he wanted to receive compensation for the injury done to his land. The hedge was so close to the line, he said, it sapped some of his ground. When Martin asked him how much he wanted, John said, “Half of it.”

Held: The hedge belonged to the Jurgens, but John and Tena were entitled to trim the part that overhung their property.

The Supreme Court found that the hedge clearly was planted and the trunks of the trees within the hedge were wholly upon the Jurgenses’ land. The Court said the hedge was the Jurgenses’ property, and no part of it has ever been owned by the Wieses. The Court held that ownership of trees standing wholly on the land of one owner, although their roots or branches extend into or over the land of another, is vested in the person on whose land the trees stand, and the adjoining owner has no property in them.

The fact that the Wieses trimmed branches from trees and the hedge which extended over their property was not evidence that they had any interest in or ownership of any part of the hedge, the Court held. One whose property is invaded by the boughs of trees growing on adjoining premises, the Court ruled, may cut them at the point where they enter his property. The act of cutting the branches to the extent they have entered the adjoining property is the exercise of a right, but it is not evidence of the ownership of a tree or trees from which the branches grew.

The Wieses admitted they were cutting the hedge but claimed they were cutting within their legal rights to protect their property, and that they owned at least one-half of it. They had cut about 20 yards of the hedge and more than 20 hedge trees, and were continuing to cut the hedge at the time the suit was filed. Because a substantial portion of the hedge they cut was on Jurgens’ land, an injunction was a proper remedy. One who has trespassed upon the land of another, and threatens to continue such a trespass may be enjoined from so doing. The owner of real estate is not required to permit the devastation of his hedge by a trespasser and seek relief in an action at law for damages, the Court said, but instead may resort to an action to prevent such trespasses.

– Tom Root

GETTING HIT BY A BUS

Many times during our seemingly long, long, long career practicing law, we ran into clients who resisted putting their agreements and understandings in writing. “But,” Ray might sputter, “Tom and I have been partners for years. We don’t need anything in writing. We know each other and trust each other.”

Of course they trust each other. After all, partners always conduct the affairs of the enterprise with “not honesty alone, but the punctilio of an honor the most sensitive…,” as Judge Cardozo once put it. Don’t they?

Still, knowing that partners or contractors or even buyers and sellers seldom complete a relationship or transaction with the same good feelings they had going into them did us little good. It was like telling a bride and groom about to walk down the aisle that in 10 years she would devolve into a screaming shrew and he would sit around in his underwear drinking beer, belching and watching televised bowling. So what if it’s as likely as the sun rising tomorrow? No one wants to hear it.

Thus, we would never argue to Tom that Ray was a bum, or tell Ray that Tom liked to use the partnership till to play the ponies. Instead, we would always nod knowingly and say, “Of course you two honest chaps don’t need a written agreement. But what if you walk out the door and Tom here gets hit by a bus? Suddenly, he’s dead, and you’re in business with Tom’s wife, or kids, or executor, or even some distant cousin you’ve never met. And none of them knows the deal, and none of them is likely to be the upstanding guy Tom is.”

That usually worked. Tom and Ray would sign a detailed agreement, and when the falling out came in a couple years (as it inevitably did), the business divorce was much easier for everyone.

In today’s case, neighbors bought adjoining properties subject to a bare-bones easement signed by the prior neighboring owners. The previous people knew the deal and probably had each other over for cookouts. But when the new neighbors proved to be considerably cooler to each other, the imprecision of the easement was decidedly unhelpful.

Kersey v. Babich, 780 N.W.2d 248 (Ct. App. Iowa, 2010). The Kerseys and Leslie Babich owned adjacent properties. Les’s lot had a driveway serving the front of his home. A second driveway located on the Kerseys’ lot provided access to the garages of both property owners. Both landowners purchased their properties subject to a “Drive and Landscaping Easement” agreed to by the previous owners.

According to the easement, Les Babich had the right to use the western 30 feet of the Kerseys’ lot, which he was responsible for maintaining. The easement was intended for “a residential driveway to serve the garage” located on Leslie’s property. Les normally allowed friends, relatives, and home maintenance workers to use the second driveway, but he did nothing to trim vegetation along the western driveway.

The Kerseys sued him, seeking a declaratory judgment. They argued that third-party use of the driveway should be restricted, Les should be required to maintain the whole easement, and he should be liable for injury to a tree along the driveway.

The district court found that Les, his family, friends and agents had the right to use the driveway. It also found that Les was required to maintain a tree canopy over the driveway at a height and width of 10 feet. Finally, the trial court found he was liable for repairs to the driveway.

The Kerseys and Leslie were unhappy, and both parties appealed.

Held: The Court of Appeals agreed with the trial court. The overarching goal of contract interpretation is to determine the intent of the parties at the time they entered into the contract. Words and conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties can be ascertained, it is given great weight.

The court’s interpretation, in this case, was consistent with the evidence showing Les’s expansive use of the second driveway for more than a decade, as well as with the absence of limiting language in the easement. While the Kerseys argued that the term “garage” limited Les’s use to garage ingress and egress, the easement did characterize the driveway as “residential,” a term that suggested a more expansive use. The appellate court thus agreed with the trial court’s interpretation of the purpose of the easement.

Both parties argued that the 10-foot width allowed by custom for the easement (the document setting out which was itself silent on the driveway dimensions) should be changed. The Kerseys claimed that the dimensions should be reduced to a width that would allow Les to fit his vehicles into his garage. Les wanted more, arguing that the easement should be 12 feet wide by 14 feet high. Ruling that a grantee of an unspecified easement “is ordinarily entitled to a way of such width as is sufficient to afford reasonable ingress and egress,” the Court agreed with the trial judge that there was “scant” evidence that residential use of a driveway would require a width in excess of 10 feet.

Finally, Les argued that the Kerseys should not have been awarded damages for his tree trimming and tree removal. The appellate court reasoned that the easement required Les to landscape the easement area on an ongoing basis. He failed to do so, compelling the Kerseys to do the job. Thus, they were entitled to damages for Leslie’s failure to have done so.

– Tom Root

LARA’S THEME

Cue the balalaikas for Lara’s Theme, one of the most memorable leitmotifs in movie history. Today’s victim was singing, all right, after Dr. Zhivago patched him up, but this Lara’s theme went something like ”An employee, no contractor am I; so my rehab, workers comp now must buy…”

We’re not quitting our day jobs to become lyricists, but Lara – that is, Jose Lara – seemed to himself, his customers and the Lord to be an independent contractor right up until the time he fell off a restaurant customer’s roof while trimming bushes. Only then, in a rewrite of history that would have made Stalin blush, did Mr. Lara decide that he had been an employee all along, and thus was entitled to workers’ comp payments for the rest of his natural life.

Workers’ compensation covers employees, but not independent contractors, as an efficient and reasonable way to deliver benefits to employees injured on the job. It is intended to provide quick assistance to the injured and to free employers from costly and protracted litigation over claims. This is not to say that the system is intended to be an ATM for any worker with a claim. A claims board seeks to protect the system from bogus claims, and the employer ­– which is likely to see workers’ comp insurance premiums take off like a rocket after a claim – has a lively interest in, as Rodney Dangerfield put it, keeping it honest.

In this case, both the claims board and the restaurant cried foul. It seemed Mr. Lara was in the business of doing odd jobs, and that the restaurant had hired him once, months before, to trim the bushes and perform light maintenance. The restaurant was hardly his only customer, and he arrived on the scene with his own tools. The owner told Mr. Lara what had to be done – the bushes trimmed – but left it to Lara to determine how best to do the job.

The workers’ comp board, inexplicably, at first held that Mr. Lara had been the restaurant’s employee, but the restaurant asked for reconsideration. Usually, seeking reconsideration is an exercise in futility. Few things in the known universe are as immovable as a judge who’s made up his or her mind. Asking a judge to rethink the matter and announce that he or she was wrong the first time around is like trying to teach a pig to sing – it wastes your time and ends up annoying the pig.

In this case, however, the board (maybe because it was not made up of real judges) revisited the issue and held that Mr. Lara was indeed an independent contractor. Mr. Lara’s lawyer promptly sought judicial review. We say his lawyer instead of Mr. Lara because it isn’t at all clear the ingenuous injured workman was on board. In fact, he freely testified that he had a number of customers, that no one at the diner told him how to do his job, and that he didn’t consider himself an employee of the place.

It seems no one other than his lawyer did, either. On review, the court took as most important among the factors the fact that no one directed Mr. Lara in how to trim or when to trim. He wasn’t being paid hourly, but rather by the job. Everything about the relationship said “independent contractor.”

We start to sound drearisome, but how much easier it would have been for the restaurant if it had signed a simple agreement with Mr. Lara before he fell from the roof. It would have saved a mountain of litigation.

Lara v. Workers’ Compensation Appeals Board, 182 Cal.App.4th 393 (2010). Mr. Lara, a 62-year-old man, suffered injuries to his head, lower back, neck, right shoulder, arm, hand, and thumb when he fell from a roof while pruning bushes for a diner. Lara filed a workers’ compensation claim against Metro Diner’s then-sole shareholder, Scott Broffman, personally and against Metro Diner.

The diner leases space inside a hotel. Lara fell from the hotel’s roof. At the hearing, Lara testified that he has been gardening, painting, pipe fixing, and doing graffiti removal for 25 years. His clients are people who either know him or who find him on the street corner. He charges by the hour, but sometimes he contracts for the entire day. He usually does the same type of work but for different people each day. He has no employees and does not work out of an office or advertise.

The restaurant manager’s wife, Patricia, arranged for Lara to do gardening work at Metro Diner on two occasions. The first time, Patricia – who was Lara’s dentist’s secretary – had asked Lara what kind of work he did. When he told her he gardened, she stated that her husband owned a diner. She gave him an address and told him to go early in the morning so his work would not make the restaurant’s tables dusty. When he arrived, Lara asked him to trim the bushes along the roofline. The second time he went to Metro Diner – the day the accident occurred – was about a year later.

Lara was paid in cash by the hour for his services at Metro Diner the first time but was not paid the second time because he did not complete the work after his fall, and he never sent a bill. Metro Diner did not take taxes out of his pay; Lara paid his own taxes. Lara and Patricia did not discuss how many hours he would work, nor did they discuss the price until he finished the work. The first time, Patricia paid him $15. They did not discuss when he would provide services in the future, only that she would contact him when services were needed.

These things can happen …

On the second occasion about a year later, Patricia asked Lara to do the same job, that is, trim the bushes along Metro Diner’s roofline. They did not discuss terms of employment, such as the number of hours, or the price he would be paid for the job. Lara had no plans to do any additional work after the second occasion, only that he would trim the bushes for Metro Diner when Patricia asked him to. Lara brought all the equipment he needed to do the job, including a trimmer, rake, broom and blower, all tools he owned. He also brought a ladder that he borrowed from a friend. He arrived in his own truck. No one told him how to do his job “because he already knew how to do his job.” Patricia did not tell him to bring an assistant or how long the job would take. She did not tell him to arrive on Saturday at 7:00 a.m., just to go early because the diner opened between 7:30 and 8:00 a.m.

The Board ruled that Lara was an independent contractor and thus not entitled to workers’ compensation benefits. Lara did not testify during the trial that he was an employee of Metro Diner. Rather, he testified he handled his own taxes and contracted with numerous individuals to perform specific jobs. The Board also noted Lara’s statement in his civil action against the hotel, filed after his injury, that “I am self-employed as a gardener.” However, the Board recognized that the distinguishing characteristic of an employer is the power to control the details of the work and methods of performance. On that point, the Board found “no evidence that Metro had the power to control the details of [Lara’s] work in pruning the bushes or the method by which he performed that task.”

Lara appealed.

Held: Lara was an independent contractor. The Workers’ Compensation Act extends only to injuries suffered by an ’employee’ which arise out of and in the course of his ’employment. California law holds that an “independent contractor” is any person “who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”

The Court held that the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. The existence of such a right of control, and not the extent of its exercise, gives rise to the employer-employee relationship. Other secondary factors, derived largely from the Restatement Second of Agency, include “(1) whether or not the worker is engaged in a distinct occupation or an independently established business; (2) whether the worker or the principal supplies the tools or instrumentalities used in the work, other than tools and instrumentalities customarily supplied by employees; (3) the method of payment, whether by time or by the job; (4) whether the work is part of the regular business of the principal; (5) whether the worker has a substantial investment in the business other than personal services; (6) whether the worker hires employees to assist him.” Two additional factors are whether the parties believe they are creating an employer-employee relationship and the degree of permanence of the working relationship.

Applying the criteria, the Court found that Metro Diner did not possess the right of control and the factors do not otherwise weigh in favor of employee status. Lara was engaged to produce the result of trimming the bushes, the Court said. Neither party presented evidence that Metro Diner had the power to control the manner or means of accomplishing the pruning. The means and manner of accomplishing the result of pruning were neither discussed nor made part of the agreement.

The Court observed that its conclusion that Lara was an independent contractor at the time of his injury is further supported by other criteria. “First, Lara performed this work as part of his own occupation as a gardener, which he had been doing independently for approximately 25 years. Not only did Lara have many clients, but Patricia did not ask him to perform any service other than pruning the bushes. Second, Lara supplied the equipment he used for the job. Such tools were not ones that a restaurant would have. Third, Lara had a substantial investment in his business, such as his equipment. Although Lara does not advertise, he has several different clients who either pick him up from the street corner or who telephone him to perform specific jobs. Fourth, he was not hired by the day or hour, or even on a regular basis. Payment was only discussed after the work was complete. Sometimes Lara charged by the hour and sometimes by the job, so Lara was paid on a job-by-job basis, with no obligation on either Metro Diner or Lara for future work. Taxes were not taken out of the money he was paid. Lara estimates and pays his own taxes. Fifth, no date for Lara’s return was specified after he first pruned bushes for Metro Diner. Lara understood only that he would be contacted when his services were needed, so he worked for a limited period with no permanence in his working relationship with Metro Diner. Thus, Lara’s profit or loss depended on his scheduling, the time taken to perform the services, and his investment in tools and equipment.

The Court noted that the criteria were not to be applied mechanically as separate tests, but “are intertwined and their weight depends often on particular combinations… [T]he process of distinguishing employees from independent contractors is fact specific and qualitative rather than quantitative.” Although the workers’ compensation statutes are to be construed liberally in favor of awarding compensation, the Court said, “no amount of liberal construction can change the balance of evidence here. Nor does our conclusion that Lara was an independent contractor defeat the purposes behind the workers’ compensation system. Lara had control over his work and safety, and there was no evidence that he could not have spread the cost of insurance against work-related injuries through fees he charged for his services.”

– Tom Root