Case of the Day – Wednesday, May 24, 2017

A DUTY TO HECTOR?

nag150327Today, we continue our consideration of the problem posed by Tracy from Pinebark, New York. You recall Tracy’s problem from yesterday: the neighbor’s arguably dead tree fell on her car, crushing it. She and her husband are tenants, and her landlady’s insurance carrier won’t cover the damage because it says the tree was dead. The neighbors’ insurance company won’t cover because it says the tree was alive. Tracy’s arborist agrees with her landlady that the tree was quite dead, and the neighbors appear to have had actual knowledge from work done by a previous arborist they had hired that the tree was a hazard.

Yesterday, we discussed why Tracy’s local lawyer should argue that the neighbors are liable, no matter what their skinflint insurance carrier may say. But Tracy, who understandably is looking for as many deep pockets as she can find, has asked whether her landlady is liable as well, because she knew the neighbor’s tree was a hazard but she never informed the neighbor of that fact. And that raises a very interesting (and rather creative) question.

Once again, we warn Tracy that we are not New York lawyers, and we are not rendering legal advice. She should see her local attorney for that. That being said, there’s not much guidance in New York law for her problem. A landlord who holds her land open to the public is under a legal duty to exercise reasonable care under the circumstances to maintain the premises in a reasonably safe condition. This duty is usually discussed in the context of landlords who don’t keep their premises secure against reasonably foreseeable criminal acts by third parties (locked doors, security cameras and the like). The duty “imposes a minimum level of care on landlords who ‘know or have reason to know that there is a likelihood that third parties may endanger the safety of those lawfully on the premises’.”

sign150327A landlord must anticipate the risk of harmful acts of third persons, adopting the duty of care set out in the Restatement (Second) of Torts § 344: a landlord must exercise reasonable care to discover that such harmful acts are being done or are likely to be done, give an adequate warning, or otherwise protect the visitors against it.

Most of these principles address the landlord’s duty to warn tenants and invitees of harmful conditions. Even if this created a duty on the part of the landlord to warn Tracy and her husband that the neighbor’s tree might fall, it doesn’t necessarily mean that the landlady had a duty to Tracy that required her to tell the neighbors that they had a dangerous tree on their hands. We just can’t find any holdings that create such a duty.

One part of the reason might be the futility of it. Telling the neighbor that he has a danger tree on his land that might someday injure the landlord’s tenant doesn’t really get anyone anywhere, because the landlord is without any power to remove or trim the tree herself (it was well within the neighbor’s premises). The landlord might have sued the neighbor for maintaining a private nuisance, and may have won a judgment against the neighbor — especially after limbs fell from other trees last summer, causing damage to the landlord and the tenant — but the likelihood that the suit would have been successful is problematic.

Another part of the reason might be Palsgrafian causation. Just like Mrs. Palsgraf in the famous Long Island Railroad case, the causation link — the landlady’s failure to warn the neighbors led to the tree falling and the injury — is pretty tenuous.

A third problem lies in Tracy’s analysis of her status as a tenant. As a tenant, she has the exclusive right to possession of the property. If the landlady had a duty to tell the neighbor about a danger tree on the neighbor’s property, we would be very surprised if Tracy didn’t have as much of a right and duty as did the landlady to tell the neighbor about the tree. Likewise, we would be surprised if Tracy couldn’t have maintained the private nuisance action against the neighbor themselves to force removal of the tree. Generally speaking, having the right of possession of a piece of real estate is a powerful club, one which lets the possessor wield nearly as much power as does the titleholder. In this case, we suspect that Tracy herself had the power to do what she complains her landlady didn’t. And clearly, she had as much knowledge of the tree’s condition as her landlady did.

And that brings us to the final point. Tracy makes a compelling case that the neighbor knew all about the condition of the dead tree. Their agent, the tree surgeon, certainly knew as well, because he had removed a diseased bough, and that knowledge is imputed to the neighbor. If the neighbor had gotten a report from the arborist on which he refused to act, it’s pretty hard to argue convincingly that things would have changed if the landlady or Tracy had told him what he already knew: the tree was dangerous and should be removed.

Causation and foreseeability are often wrapped in the same package. In a New York case we’ll consider today, Mr. Fleury knew that his big ol’ apple tree was pretty close to the power line running to his house. Well, nature’s bounty — a really good apple crop — caused the tree to fall over partially, and the tree touched the wires. Mr. Fleury called the power company and said, “You need to fix this!” The power company said, “Nope, it’s your wiring from the transformer to the house. You fix it.” Mr. Fleury didn’t, and within about 10 days, the tree on the wires caused a short circuit.

appletree150327But, electricity being the capricious thing it is, it didn’t hurt Mr. Fleury. Instead, a “backfeed” went through the transformer and down his neighbor’s lines, setting fire to the neighbor’s place 165 yards away. Should Mr. Fleury be liable? He would have been if it had burned his own house. The Court said it all depended on whether Mr. Fleury could reasonably foresee that his procrastination at getting the tree trimmed might have the effect it had.

How likely is it that a court find that the landlady’s failure to hector her neighbor about a tree the neighbor already knew was a hazard would foreseeably lead to Tracy’s car being crushed? Probably not very. Such a holding would open the floodgates, making homeowners everywhere liable to their invitees if they were deemed not to have nagged their neighbors sufficiently over conditions which the homeowner had no power to correct. For example, we live on a side street where a neighbor has a testosterone-driven teenage son. He speeds his old junker of a car dangerously up and down the street. If we get run down by the lad, would we be liable to a claim that we had been negligent because we never complained to the boy’s mother about the kid’s speed? It seems an awful lot like “blame the victim.”

Certainly, Tracy should ask her local lawyer about her claim against the landlady. But we think it’s a stretch the courts won’t buy.

Allstate Ins. Co. v. Fleury, Slip Copy, 2007 WL 1200137 (N.D.N.Y. Apr. 20, 2007). A fire took caused substantial damage to the Thaddeus Jastrzab residence. Allstate Insurance paid the Jastrzab claim, and then sued Niagara Mohawk Power Corporation and Jim Fleury, the next-door neighbor. It seems the fire started at the Jastrzab home, but it was caused by a “backfeed” from the NIMO transformer that fed both the Jastrzab and Fleury homes. Fleury had an apple tree that had grown near the lines for years without trimming. About 10 days before the fire, a large apple crop on the tree partially uprooted it, and caused a limb contact the electric wires feeding Fleury’s house. Fleury asked NIMO to fix it, but NIMO said Fleury owned the electric wires and was responsible for their upkeep. Fleury said he was concerned that the tree limb’s touching the wires might cause a fire, but he did nothing more after NIMO passed the buck.

fire150327After the Jastrzab fire, an investigation found that the backfeed was caused by a tree limb that touched the old-style two-wire system, forcing the wires into mutual contact. The contact energized the neutral line owned by NIMO, which dumped excess current through NIMO’s transformer and down the electric lines supplying the Jastrzab home. The electricity caused the grounding wire to overheat and arc onto Jastrzab’s roof. The fire was intensified by the fact that Jim Fleury’s home was not adequately grounded at the time, sending the electricity to look for a ground at the Jastrzab’s place. The trial court found that neither Fleury nor NIMO liable for the damages caused by the Jastrzab fire. Allstate moved for reconsideration.

Held: Allstate loses. Allstate complained that the Court inaccurately applied the law of negligence and foreseeability to the facts in this case. It argued that the Court was wrong when it found that the fire at the Jastrzab residence was not a reasonably foreseeable consequence of Fleury’s failure to remove the apple tree limb from his power lines. Allstate argued that the “precise occurrence” did not have to be foreseeable in order for liability to be imposed on Fleury. Fleury would have been liable if the fire started at his house, Allstate said, and therefore, liability should be imposed for the fire that started 165 yards away.

The Court disagreed. The proper focus of the inquiry is on the foreseeability of the risk. This is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated. Further, the Court said, although virtually every untoward consequence can theoretically be foreseen “with the wisdom born of the event.” the law draws a line between remote possibilities, and those that are reasonably foreseeable because no person can be expected to guard against harm from events that are so unlikely to occur that the risk would commonly be disregarded. The precise manner in which the harm occurred need not be foreseeable, but, still, the Court held, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent. Here, no fire took place on the Fleury property. Instead, it started 165 yards away. No one reasonably foresaw that happening.

The law draws a line between remote possibilities and those that are reasonably foreseeable. Here, the probability that Defendant Fleury could have foreseen that the tree limb touching his power lines might create an electric backfeed fire that damaged the Jastrzab residence, was too tenuous and remote to permit recovery under a negligence cause of action.

– Tom Root

TNLBGray140407

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