Case of the Day – Thursday, April 28, 2022


One of the beauties of American tort law (if we’re even allowed to use that phrase, which is doubtful) is that if you’re a defendant, you often can daisy-chain as many other people or entities to share your pain as your creative lawyer can find.

The tragic death of young but substantial teenager Tyre Sampson at a cut-rate Florida amusement park provides a case in point. Tyre, only 14 years old but already a sought-after football lineman (at 6’2″ and 300 lbs) fell to his death from a “Free Fall” ride, billed as the world’s tallest free-standing drop tower. When the tower braked, Tyre – who exceeded the maximum size for the ride – slipped out of his seat  and fell 100 feet.

Tyre’s parents sued the park, who in turn will no doubt sue the owners of the ride (who lease the contraption to the park).  They will sue the ride’s installers who will sue the ride’s builders who will sue the designers.  At some point, Sir Isaac Newton may become a third-party defendant: if not for him, there’s be no gravity. It’s a tort lawyer’s dream: a daisy-chain of defendants, all with deep pockets.

Another example arose several years ago when a mid-air explosion of a Southwest Airlines 737 engine killed one passenger and – but for some serious flying by an unflappable Navy fighter pilot turned airline captainLet’s say Joe Doaks, a passenger on board who had the scare of his life, sues Southwest for negligence in maintaining the airplane. Southwest could be both the defendant and a third-party plaintiff, in turn suing the maintenance company that inspected the engine last without finding a crack in a turbine blade. The maintenance company could then bring in the engine maker for selling a defective engine, and the engine maker could sue the company that made the blade for defective manufacture, and the blade maker could sue the metal supply company for selling a nickel-based high-performance alloy that did not meet specifications, and the metal supply company can, in turn, sue the company making the test equipment that gave faulty readings that the metal was within limits… Before you know, Joe Doaks has a chain of six defendants, each one pointing the finger at the next guy, and claiming that any liability it may have is shared among all of them.

This is generally a good thing for the plaintiff, because the more defendants, the deeper the collective pocket from which to collect. But the daisy-chained defendant has to have a duty to the injured party before it is liable, and the lure of finding someone else with a checkbook to stand in the defendant’s dock with you can lead to some fairly strained interpretations of “duty.”.

In today’s case, a landlord’s tree dropped a limb onto the heads of two of his tenants. They sued, complaining the landlord company failed in its duty to them to maintain the tree. No argument there – of course it did. But the landlord, looking for someone to share its pain, went after the electric company. Dominion Virginia Power had an easement across the property, the landlord argued, and the defective tree stood in its easement. The power people, the landlord claimed,  had a duty to keep the trees in the easement trimmed, and thus shared any liability the landlord had to the injured tenants.

Well, yes, the court said, there is a duty there, but there is also some fine print as to the extent of the duty. And, as the lawyers like to say, the details are where the devil resides

Vaughan v. S.L. Nusbaum Realty Co., Case No. CL15-5895-00/012016 (Virginia Circuit Ct., Nov. 30, 2016), Va. Cir. LEXIS 183. Travis Vaughan and Alexander Goldenberg were injured when the “wind picked up” and they were struck by a falling limb from a tree located at an apartment complex owned and managed by S.L. Nusbaum Realty Co. Travis and Alex sued Nusbaum, who in turn sued Dominion Virginia Power, the electric company. It seems the tree that dropped the limb was located on a utility easement held by Dominion, and Nusbaum argued Dominion had a duty to maintain the tree.

The easement granted Dominion “the right, privilege and easement of right of way, to construct, operate and maintain a pole line for the transmission and distribution of electricity,” and, with respect to the issue before the Court, “the right to trim, cut and keep clear all trees, limbs and undergrowth and other obstructions along the lines or adjacent thereto that may in any way endanger or interfere with the proper and efficient operation of the same.” Nusbaum argued that as holder of the easement, Dominion had the same rights and responsibilities that Nusbaum did, and had “the duty to maintain the easement, including by maintaining any trees growing on the easement.”

Dominion argued it owed no contractual duty to Travis and Alexander to maintain trees located within the easement.

Held: The Court held that Dominion had no duty toward Travis and Alex.

The trial court said the relevant question was whether the duty to maintain the easement right of way imposes a concomitant duty upon Dominion — as the owner of the dominant estate—to maintain all aspects of the tree.

The right to use an easement comes a duty to maintain the easement in a manner consistent with the use allowed. Although Virginia courts apparently have not articulated the extent of a power company’s duty pursuant to an easement, at least one other jurisdiction has. In a case stemming from a property owner’s personal injury when his heel struck a metal shield on a guy wire supporting a pole bearing equipment of defendants, a New Jersey court held that, as owners of the dominant estate, “defendants were under an affirmative duty to make reasonable inspections of their easement upon plaintiff’s property and to use due care to keep the guy wires and metal shield in good repair.”

Here, the trial court said, the easement does not impose an affirmative duty on Dominion, as owner of the dominant estate, to tend to the tree beyond those actions necessary to maintain the easement in a manner consistent with the use allowed. Dominion has the duty to inspect the easement and make repairs as necessary, including trimming, cutting, and clearing trees, but only to the extent that such trees, or parts thereof, “endanger or interfere with the proper and efficient operation” of the “wires, poles, attachments, equipment and accessories.”

The court said Dominion nevertheless could be liable if Travis’s and Alex’s injuries were caused by its improper maintenance of the easement consistent with its use by, for example, failing to clear portions of the tree from the vicinity of power lines when necessary, trimming the tree in a way that the public was placed in danger, or compromising the health of the tree through improper trimming. Stated differently, the court said, Dominion “must take necessary actions to properly maintain the pole line and its accessories and, if Dominion exercises its right to ‘trim, cut and keep clear all trees, limbs and undergrowth and other obstructions along said lines or adjacent thereto that may in any way endanger or interfere with the proper and efficient operation of the same’ [which is what the easement specified], it must exercise reasonable care in doing so.”

The duty arises from the easement, so facts must be alleged in the complaint to support a breach of such duty. It was not enough for the landlord to say the tree was on the easement and a limb fell, to justify bringing the electric company into the lawsuit.

– Tom Root


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