Case of the Day – Monday, December 27, 2021


Looking for the deep pocket is a time-honored tradition in personal injury law. Today’s case, dating from 1931, proves that point.

The first rule of plaintiffs advocacy … look for the deep pockets.

A young boy and his uncle were riding in a one-horse open wagon down the center of a public street. A homeowner had hired a couple of guys to cut down a tree along the street. For whatever reason (but probably because the workers were knuckleheads), the tree fell onto the wagon, injuring the occupants.

“Straightforward enough,” you say, “so where’s the catch?” It’s here: before cutting the tree, the contractors went to the mayor to ask about permits. The mayor, a dentist by trade, said there were no teeth in the local ordinances, and no permit was needed to cut down a tree.

He was right, not that that mattered much. The injured boy’s guardian sued the city for not making sure that the tree cutter cut the tree down safely. Reduced to its essence, the claim seemed to say the City had money, and no other defendant did, so it must be liable somehow.

A jury agreed, but the Supreme Court reversed.

There can be little doubt that the City was sued in this early Depression-era tale, because the City was the only party likely to be able to pay a judgment. Finding someone with money is always a good idea in a personal injury case, but there are technicalities – such as the party with money should somehow be liable to the victim – that should be observed.

Here, the theory seemed to be that the City should have had laws against unsafe tree removal, and its failure to have such ordinances on the books somehow made it responsible for the plaintiff’s injury.

Armstrong v. Waffle, 236 N.W. 507 (Supreme Court, Iowa, 1931). Three-year old Biff Armstrong sustained personal injuries resulting from a homeowner’s removal of a tree in the front of his house along a city roadway. The contractor hired to remove the tree asked the mayor of the City of Marion if any permit was necessary to remove the tree. The mayor said that he knew of no permit needed to remove the tree, and there was no ordinance in the City of Marion governing the cutting and removal of trees.

The contractor cut the branches from the tree until he was left a stump of some 14 or 15 feet in height. Just before the Neffs were ready to saw the tree off, and while they were working with the branches, Joe Armstrong, an uncle of the plaintiff, a drayman by occupation, drove north in a dump wagon. Joe had Reuben, a child of about 3 1/2 years old, on the seat of the wagon with him. The tree suddenly fell across the front of the wagon and crushed him and the child, breaking Joe’s leg, and severely injuring the boy.

The boy’s guardian sued the landowner, the contractor and the City of Marion. The jury found in favor of the plaintiff against the City, and the City appealed.

Held: The Court found that contractor to be negligent in felling the tree, but the City of Marion was not liable.

The Court held that the City’s liability was restricted to keeping the streets open and in repair and free from nuisance. Armstrong did not allege any nuisance existed in this case, nor did he claim that the City failed in its duty in not barring travel on the street or otherwise warning him of the danger incident to the removal of the tree.

The City alleged that the claim against it pertained to a governmental function or duties of the City for the breach of which the City is not liable. The City contended that its duty related only to construction, maintenance and repair of the street and that a municipality cannot be held liable for failure to protect citizens against actions occur-ring on its streets for reasons other than defects therein or by reason of a nuisance.

A municipality does not guarantee its citizens against all causalities incident to humanity, and cannot be called upon to compensate in damages its inability to protect against all accidents and misfortunes. There was no ordinance in the City regulating or prohibiting the removal of the tree, and that the City had a right to assume that the tree’s owner and his agents would exercise a proper degree of care to prevent injury to people on the street at the moment the tree fell.

– Tom Root


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