Author: TLRoot

Case of the Day – Monday, January 30, 2023

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DRIVE-BY INSPECTIONS, FEDERAL STYLE

Delaware Water Gap National Park

Delaware Water Gap National Park

Friday, we looked at the Federal Tort Claims Act, the king’s way of saying, “Go ahead, sue me.”  Like it’s that easy…

In Friday’s case, the U.S. Forest Service evaded liability because how it followed the guidelines for maintaining a bike trial was considered to be a discretionary function. Today, we’re going to see how something so quotidian as tree inspection can be considered discretionary, too.

Ms. Merando and a friend had been enjoying the scenery of Delaware Water Gap National Park – a beautiful place – one summer day, when a tree (which had previously been topped) fell from an embankment and crushed the car, killing Ms. Merando and her young daughter, Kaylyn.

It was a tragedy, and sometimes tragedies drive the bereaved to push hard. That happened here, where Ms. Merando’s husband sued the National Park Service for not having removed this topped tree before it fell. The tree was a disaster waiting to happen, a dead, previously-butchered hulk leaning over the road like an ogre waiting to pounce.

Under the Federal Tort Claims Act, as alert readers may recall from last Friday, you can’t sue the government if it failed to perform a discretionary act. Whether hazard tree removal is a discretionary function is at the heart of this case.

The Court of Appeals upheld the lower court, dismissing Mr. Merando’s case. The National Park Service, it appears, had written guidelines that essentially directed every park to adopt a hazard tree removal policy that makes sense for the individual park. The result is a patchwork of unwritten policies. That sounds like a prescription for chaos.

Actually, it’s a prescription to avoid liability. If the Service had a written hazard tree removal policy and the local rangers hadn’t adhered to it with the tree in question, then liability on the part of the government would be pretty clear. But, as some sharp National Park Service lawyer undoubtedly figured out — and yes, even Smokey the Bear has his own mouthpiece — if you don’t write it down, it’s much harder for a plaintiff to prove that you failed to follow it.

The Delaware Water Gap National Park had a rather amorphous “drive-by” inspection policy, and Mr. Merando could not demonstrate that anyone had violated it. The lesson seems to be that “the less you do, the safer you are.”

Some hazard trees are easier to spot than others ...

Some hazard trees are easier to spot than others …

Merando v. United States, 517 F.3d 160 (3rd Cir., 2008). Janine Noyes, Kathleen Merando and Kathleen’s daughter, Kaylyn, were sightseeing in Delaware Water Gap National Recreation Area. While traveling in Ms. Noyes’s car along the New Jersey side of the Park, a large dead oak tree fell from an embankment and crushed the vehicle. Mrs. Merando and her daughter were killed instantly. The tree was approximately 27 feet long and had been  “topped” and delimbed, leaving it in a “Y” shape with no bark or branches and with the dead tree pole leaning toward the roadway.

The 63,000-acre Park lies along four miles of the Delaware River in Pennsylvania and New Jersey. It is mainly forested land and is accessed by approximately 169 miles of roadways, 68 miles of trails, and several streams. As with other national parks throughout the country, the National Park Service, an agency within the U.S. Department of the Interior, is responsible for maintaining the Park, including the area where the accident occurred. The Government took title to the land where the oak tree was situated in 1969 and to the roadway itself in 1996.

Plaintiff, as the administrator of the estates of Ms. Merando and her daughter, sued the Government for negligence, alleging that the Government negligently pruned the tree, causing it to die and eventually collapse, and that the tree constituted a hazardous and extremely dangerous condition of which the Government knew or should have known and that it negligently failed to act to remove the tree. The Government moved to dismiss the complaint on the basis of the discretionary function exception to the Federal Tort Claims Act. The Government also argued that the New Jersey Landowners Liability Act barred the action. The trial court dismissed the suit on the grounds that the FTCA stripped the court of jurisdiction to hear the case. Mr. Merando appealed.

Held: The district court’s dismissal was affirmed. The federal, as a sovereign, is immune from suit unless it consents to be sued. That consent, and the extent of that consent, is set out in the Federal Tort Claims Act, and it is a plaintiff’s burden to prove that the FTCA has waived the immunity. Generally, the government is immune from a suit claiming negligence in the discharge of a discretionary function.

The purpose of the discretionary function exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. In determining whether the discretionary function exception applies in any particular case, a court must first determine whether the act giving rise to the alleged injury involves an element of judgment or choice. The requirement of judgment or choice is not satisfied if the law, a regulation, or policy specifically prescribes a course of action for an employee to follow because the employee has no rightful option but to adhere to the directive. – But even if the challenged government conduct involves an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The inquiry focuses on the nature of the actions taken and whether they are susceptible to policy analysis.

In this case, determining whether the discretionary function exception applied to a tort action arising when the dead tree fell on the passing car, the relevant conduct was not the National Park Service’s alleged violation of its mandatory policy not to “top” trees, because there was no evidence that the Government was involved in or consent to the topping of the tree. Instead, the relevant conduct was the Service’s decisions that comprised its hazardous tree management plan and its execution of that plan. The issue was whether the controlling statutes, regulations, and administrative policies required the Park Service to locate and manage hazardous trees in any specific manner. The Court concluded that the Service’s unwritten tree management plan did not mandate any particular methods of hazardous tree management, and its choice to use “windshield inspections” in low-usage areas of the park was a discretionary decision — driven by limited resources — not to individually inspect every potentially hazardous tree in the park.

– Tom Root

TNLBGray

And Now The News …

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Cleveland, Ohio, Plain Dealer, January 27, 2023: These trees are likely to be banned from public lands in Berea

Not all trees equally welcome in the city. Speaking on behalf of the Berea Shade Tree Commission, City Council Representatives Erika Coble and Gene Zacharyasz presented an ordinance at the Jan. 17 council meeting that regulates tree species in public places, particularly on tree lawns and rights-of-way. The list of prohibited trees has expanded “to better reflect current best practices that take into consideration ecological and climate concerns, while balancing practical concerns,” according to the legislation, which received its first of three public readings. “We feel this is a really good, strong list of trees to prohibit on public space,” Coble said. “We also have another list that will be posted on the city website for recommended trees for people to plant…” The legislation lists the following species as prohibited on street lawns: tree of heaven, mimosa, hedge maple, Amur maple, box elder, Norway maple, sycamore maple, silver maple, European black alder, European white birch, Russian olive, autumn olive, glossy buckthorn, ash, black walnut, golden rain tree, white mulberry, Callery pear, princess tree, Amur corktree, white poplar, cottonwood, Lombardy poplar, wingnuts, common buckthorn, black locust, willows, European mountain ash, pagoda tree, Siberian elm and zelkova tree…

Oakton, Virginia, Patch.com, January 29, 2023: $20K Gift To Help Tackle Invasive Tree Of Heaven At Blake Lane Park

Few invasive species may be is deceptively named as the Tree of Heaven. It grows quickly, is tough to kill, and the spotted lanternfly — an annoyingly invasive insect species — love to eat it. Maybe it was the bugs that came up with the name. On Friday, representatives from Dominion Energy presented the Fairfax County Park Authority with a $20,000 check to help remove the Tree of Heaven from Blake Lane Park in Oakton. “The park foundation was granted the $20,000 from Dominion Energy for reforesting Blake Lane Park,” said Patricia Pearl Greenberg, an ecologist and invasive management area program manager with Fairfax County. The foundation received funding from the county’s urban forest management division to help with the Tree of Heaven removal effort at the park…

The Weather Network, January 29, 2023: More than a century since the Big Blow — thousands of trees were destroyed

The Great Olympic Blowdown, also called the Big Blow, earned its name by being a once-in-a-100-year windstorm that hit the coast of Washington, along the Olympic Peninsula, on Jan. 29, 1921. The storm took out a mass amount of trees. According to the U.S. Department of Agriculture Forest Service, the windstorm destroyed the largest amount of timber in the country. To date, only the Columbus Day Storm of 1962 has been stronger. A weather bureau observer for the North Head was monitoring the storm when they and “Mrs. Hill” decided to head to the post office in Ilwaco. This is all according to a report compiled by Wolf Read. They made it to Ilwaco, and after some quick car troubles, they headed back to the office. The report reads, “The road from Ilwaco to North Head is through a heavy forest of spruce and hemlock timber for some distance. On the return trip shortly before reaching the heavy timber, the wind came with quite a heavy gust. We saw the top of a rotted tree break off and fall out of sight in the brush.” Things rapidly escalated…

Portland, Oregon, The Oregonian, January 29, 2023: Want a fast-growing tree? Don’t ignore warnings of how it may outgrow its space

Q: I am looking for some help and/or guidance for deciding what tree to plant in my yard. I am looking to create a boundary, some privacy and add value. Also, I do have a septic/drain-field and I am naturally very interested in root growth information. – Multnomah County.
A: Tree recommendations are not easy to make remotely. Maybe with photos we could make suggestions. However, really you need to make measurements for space and height and be realistic about root systems. This publication has charts and information to help you. Visiting area nurseries and getting assistance from staff is important as well. I’ve chosen a “perfect” tree only to discover it’s not available in the marketplace. Tree roots are fairly shallow and larger than the branch dripline. Roots will seek moisture, moving into holes in drain lines. Though some trees have a reputation for being thugs in this regard, truly every tree will search for water. An easy mistake is to desire a fast-growing boundary tree and ignore warnings it will quickly outgrow the space available. It’s an expensive mistake for some homeowners needing to remove very large trees even after only 10-20 years…

Gainesville, Georgia, Times, January 26, 2023: Treasured tree’s fate up in air as roundabout is being planned

A 40-foot American holly tree is at the center, quite literally, of public outcry involving a long-awaited Gainesville road improvement. The possible loss of the beloved landmark to a roundabout project at one end of busy Green Street has residents and community leaders hoping and pushing for a possible solution. “This tree is a community treasure,” said Dale Jaeger, a Gainesville landscape architect in comments to the Georgia Department of Transportation. “Its loss will be profound.” The tree, maintained by the Rotary Club of Gainesville, sits in a triangular median between West Academy Street, Green Street and E.E. Butler Parkway — or the heart of where GDOT wants to put a two-lane roundabout. “I recommend GDOT explore ways to retain the tree,” Jaeger said to GDOT, which received public input on the project through mid-January. “There are countless examples of trees being removed from a project site, protected during construction and replaced following construction.” Jaeger has been involved with keeping the tree up to par since 2010, after the tree caught fire in June 2009. “One of the primary things that the Rotary Club has done is trying to protect the health of the tree long-term for its survival,” she said in an interview last year…

Cleveland, Ohio, Plain Dealer, January 26, 2023: Cleveland’s re-constituted tree commission lays out goals for saving, growing the Forest City’s canopy

The city of Cleveland’s Urban Forestry Commission kicked off this week with an inaugural meeting that laid out goals for preserving and expanding the city’s dwindling tree canopy. The body replaces what was previously known as the tree commission, which went dormant in 2000s for unknown reasons. City Council, with the backing of Mayor Justin Bibb, passed legislation in June to revive it under the new name and grant it new duties. Among them, the commission is tasked with providing policy recommendations to city departments to help take better care of the city’s tree canopy, which has been declining for decades. Cleveland continues to lose about 97 acres of tree cover each year, administrators said last year. Asked about Cleveland’s declining canopy on the campaign trail, Bibb told the commission Tuesday that “At first, I thought it was a silly question,” given apparently more pressing city issues like gun violence. But Bibb said his thinking changed when he started to realize the long-range health, environmental and economic impacts that fewer trees have on residents of neighborhoods that are losing them…

Houston, Texas, KRIV-TV, January 26, 2023: Trees damaged after Houston-area tornadoes: Should you remove them or save them?

Many people have trees down and damaged in their yards after Tuesday’s tornados. But which trees can be saved and which ones should be removed? It’s best to have an ISA Certified tree trimmer determine whether the tree is still healthy or if branches could come crashing down.That’s a widow maker basically. Every time I went to clean yesterday, wind was blowing, and I was scared,” said homeowner Jenna Zumparelli about a tree branch hanging over her roof. Zumparelli is ready to take down some of her trees after a tornado swept through.”It’s almost 50 years old. His mom planted all these trees,” said Zumparelli. So how do you know which trees can be saved and which can’t? Jose Garcia with Tree Solutions of Texas showed us the signs of a dying tree. “A cavity is when a tree starts rotting from the inside, as you can see right here,” Garcia showed us on an old tree. “That right here is a weak structure…”

Scientific American, January 26, 2023: This Overlooked Scientist Helped Save Washington, D.C.’s Cherry Trees

In 1909 the mayor of Tokyo sent a gift of 2,000 prized cherry trees to Washington, D.C. But the iconic blossoms that are now enjoyed each spring along the city’s Tidal Basin are not from those trees. That’s because Flora Patterson, who was the mycologist in charge of mycological and pathological collections at the U.S. Department of Agriculture, recognized the original saplings were infected, and the shipment was burned on the National Mall. In this, the second episode of Lost Women of Science Shorts, host Katie Hafner and assistant producer Hilda Gitchell explore Patterson’s lasting impact on the field of mycology, starting with a blight that killed off the American chestnut trees, and how she helped make the USDA’s fungus collection the largest in the world. Gitchell and Hafner go from the forest to a fungus archive—and then into the kitchen, with a fungus recipe in hand—to tell the story of her life and work…

Case of the Day – Friday, January 27, 2023

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IT’S GOOD TO BE KING

One good thing about being king – you can’t be sued.

Anyone with kids of a certain age (or kids with access to Disney+) will remember the strutting, youthful Simba in The Lion King, singing about how he’d be “free to run around all day… free to do it all my way…”

The stripling cub might have been singing about the wonder of sovereign immunity, that quaint concept that no one may sue the government. Of course, people do sue the government – this is the U.S. of A., where people sue everyone, sometimes even suing themselves – but in order to do so, the government must grant permission first.

Such a notion may seem peculiar, that the government would give private citizens the right to sue. But the government has done so implicitly and explicitly. The explicit permission of interest to readers of this blog is the Federal Tort Claims Act.

The FTCA allows people to sue the officers and employees of the federal government for negligence. There are strings attached: generally, a rather inflexible administrative exhaustion procedure must be followed first, the statute of limitations is brutally short, and the types of conduct that may justify a suit are limited.

A federal employee runs into you with a dump truck? You may sue. But, as we’ll see today, if your injury results from something more esoteric, you may be foreclosed by the “discretionary function” doctrine.

Monday, we’ll look at how the FTCA applies to the duty to inspect trees (of which the US Forest Service owns a few).

Gonzalez v. United States, Case No. 16-60062 (5th Cir., Mar. 22, 2017). Teresa Gonzalez and her friend were riding mountain bikes on some trails in the De Soto National Forest of Mississippi. Teresa did not bother to check the bulletin board at the head of the trails. If she had, she would have seen the sign warning that the Couch Loop Trail was closed.

The U.S. Forest Service had some problems with the Couch Loop Trail. A local bicycle club liked to build dangerous structures on the trail to enhance their fun. Most recently, Park employees found an unauthorized bridge on the trail and closed the route to remove the offending span.

Ramp-jumping: not for amateurs…

Teresa and her friend careered down the trail. At some point, they took an “alternate route” to the left of the main trail. On their ersatz path, they found a teeter-totter and a ramp. Wisely, they did not try to ride over the teeter-totter. Unwisely, they did decide to jump the ramp.

Neither had ever tried riding over a ramp before. You can see where this is going. Teresa experienced what the kids call an epic fail, and suffered serious injuries.

De Soto National Forest, about 600 square miles in size, had two technicians charged with maintaining the bike trails. Their work included identifying hazards, such as trees, and performing repair work. The worker would “bush hog the trail pretty much every year,” which includes clearing and cleaning the trail, but they were not sure it had been done in 2012.

Teresa filed an FTCA action, alleging that the United States failed to keep its premises safe, failed to perform inspections, and failed to warn of a dangerous condition. The District Court found that the discretionary function exception to the FTCA waiver of sovereign immunity applied., and threw out the lawsuit. She appealed.

Held: The “discretionary function exception,” prevented Theresa’s suit. That function “preserves the federal government’s immunity . . . when an employee’s acts involve the exercise of judgment or choice.” The exception covers only acts that “involve an element of judgment or choice.” It is the nature of the conduct, rather than the status of the actor, that governs whether the exception applies.

The Circuit Court said a two-prong test determines whether the exception applies: (1) “the conduct must be a matter of choice for the acting employee, and (2) the “judgment must be of the kind that the discretionary function exception was designed to shield.”

With respect to the first prong of the test, “if a statute, regulation, or policy leaves it to a federal agency to determine when and how to take action, the agency is not bound to act in a particular manner and the exercise of its authority is discretionary.” Regarding the second prong, a court considers “whether the actions taken are susceptible to policy analysis.” Whether the employee actually did any policy analysis when reaching his or her decision doesn’t matter: it’s whether he or she could have done so that matters. The question of whether the government was negligent or not is irrelevant.”

In this case, the USFS handbook contemplated an “element of choice as to how USFS employees inspect and maintain the trails.” The manual instructed employees to “manage each trail to meet the trail management objectives identified for that trail, based on applicable land management plan direction, travel management decisions, trail-specific decisions, and other related direction, as well as management priorities and available resources.” The Court said the language ordered employees to “meet” the identified objectives, but gave them room for choice based on the evaluation of various factors. Although the objectives listed specific goals, the Court held they did “not prescribe a certain course employees must take to reach those goals. In this way, the provisions… contain generalized, precatory, or aspirational language that is too general to prescribe a specific course of action for an agency or employee to follow.”

So whether the technicians were negligent by not doing a better job of marking the trail as closed, removing the ramp, or not putting training wheels on Theresa’s bike, she had nothing coming.

– Tom Root

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Case of the Day – Thursday, January 26, 2023

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AN ADOPTION GONE BAD

You’ve seen the “adopt a highway” signs along local roads, where some company or organization undertakes to take care of a strip of the road. Governments have figured out that the adoption program was a sweet deal. The government gets free labor to maintain a public asset. A local group gets its name attached to a do-gooder project.

Some places have gone beyond the stretch-of-road adoption program in favor of entire enclaves. The City of Fort Worth, Texas, had such a program, one in which groups could adopt a whole park.

The last time we checked the geography, Fort Worth was pretty flat. That did not prevent the City from having a mountain bike park, or for that matter, a band of dedicated mountain bike riders ready to adopt it. What a perfect arrangement – synergy on knobby tires – at least until Norm DeLamar, a mountain biker, got clotheslined by a dead tree.

Adopted kids have parents who are obligated to take care of them. Norm figured that it worked for kids and parents, it must work for parks and adopt-a-park groups. Like most injured parties who know how to find the courthouse, Norm figured that because he was hurt, someone was obligated to pay him money. After all, this is America.

But the adoption turned out to be symbolic more than real. The mountain bike group was allowed to pick up litter, but the most it could do for dangers from hazard trees was to call the City Forester and cajole him or her to send a guy with a chainsaw. So the adopting parent really lacked any decision-making power when it came to park maintenance. But that hardly mattered to Norm and his lawyers.

Like the old poem so sagely observed:

It’s not my place to run the train, the whistle I can’t blow.
    It’s not my place to say how far the train’s allowed to go.
It’s not my place to shoot off steam or even clang the bell.
    But let the damn thing jump the track and see who catches hell.

DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466 (Ct.App. Texas Jan. 24, 2019). Norm was riding his mountain bike one summer day on a trail in Gateway, a park owned by the City of Fort Worth, when he came upon a downed tree blocking the trail at head level. Although Norm was reputed to be a “really good rider,” he apparently was not that good. Norm did not have time to stop or avoid the tree, and as a result, he was “clotheslined.” His head and neck stopped when they hit the tree; the rest of him did not. Norm was knocked from his bicycle and was injured.

Norm sued the City, claiming ordinary and gross negligence. The City filed an answer and identified the Fort Worth Mountain Biker’s Association as a responsible third party because of an “Adopt-A-Park Agreement” between the City and the Association. Under the contract, the Ft. Worth Mountain Bikers were “responsible for constructing and maintaining the bike trail in question.” Norm added the Association as a defendant, arguing premises liability, claiming the Association owed “a duty to protect the general public from dangerous conditions such as falling trees.” Norm claimed the Association had breached this duty by failing to ensure the trees alongside the bicycle trail were not a danger to cyclists, and consciously disregarding the health of the trees and the danger that they pose.

The Adopt-A-Park Agreement provides the Association “shall perform all work and services hereunder as an independent contractor… [and] shall have exclusive control of, and the exclusive right to control the details of the work…” The Association is obligated to maintain the park at its sole cost and expense, and it defines “trail maintenance” as including but not being limited to, “pruning of trees; [and] removal of brush[.]”

The Contract prohibits the Association from “trimming and pruning until written approval is obtained from the Director [of the Parks and Community Services Department],” and from “remov[ing] any tree without prior written permission from the City Forester.” Finally, the Contract expressly provides that the City “does not relinquish the right to control the management of the Parks, or the right to enforce all necessary and proper rules for the management and operation of the same.”

The Association answered that there was no evidence that it was negligent, as it owed neither Norman nor anyone else a duty with respect to the condition of the premises, or to keep the premises in a reasonably safe condition, inspect the to discover any defects or to repair any defect or give an adequate warning of any dangers.

Norm filed a response and attached a short affidavit and an expert report from an arborist, Matthew Clemons. In his response, Norman appeared to adopt the Association’s characterization of his claim as one for premises liability and in doing so focused on his status, arguing that he was an invitee. The Association filed a reply and objected to the expert report.

The trial court granted the Association’s motion and threw out the suit.

Norm appealed.

Held: Norm failed to establish that the Association owed him a legal duty to protect him from the tree that the Association did not cause to fall, that may have fallen only hours, but no later than a day or two, before the biker struck, and that the Association was not authorized to unilaterally remove under its agreement with the City to maintain the trail.

To prevail on a premises liability claim, Norm had to prove the Association had actual or constructive knowledge of some condition on the premises; that the condition posed an unreasonable risk of harm; that the owner did not exercise reasonable care to reduce or eliminate the risk; and that the owner’s failure to use such care proximately caused Norm’s injuries. For a general negligence claim, he had to prove the Association owed him a legal duty; that it breached the duty, and as a result of the breach, he was damaged.

While, theoretically, Norm could maintain causes of action for both general negligence and premises liability, the Court said, a general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the Association’s contemporaneous activity. If the injury is caused by a premises defect, rather than by the Association’s contemporaneous activity, Norm could not circumvent the true nature of the premises defect claim by pleading it as one for general negligence.

Because the lines between negligent activity and premises liability are “sometimes unclear,” the Court said, determining whether a claim is one for a premises defect or general negligence “can be tricky.” Negligence encompasses a malfeasance theory based on affirmative, contemporaneous misconduct that causes an injury. Premises liability, on the other hand, encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.

But regardless of which horse Norm chose to ride, premises liability or general negligence, the sine qua non of his claim was the existence of a legal duty. It is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case.

Three categories of factors have emerged, the Court held. First, a court must consider the relationship between the parties. Then, a court examines the reasonable foreseeability of harm to the person injured. Finally, a court considers any public policy considerations.

Here, Norm argued the Association contractually assumed “responsibility for maintenance, construction and safety of the trails,” and as such, owed a duty to “protect the general public from dangerous conditions[.]” The record showed the Association members regularly worked on the trials, but had to identify problem trees to City employees who “were the only ones that [could] operate the chainsaws.”

Norm admitted he had ridden the same trail “no more [than] two days” earlier and that he had not seen the downed tree, so it was possible that the tree had fallen only a day or two before his crash. Indeed, he conceded that it was possible that the tree could have actually fallen only a few hours before his crash. What is more, the Agreement expressly prohibited the Association from pruning trees without the Director’s prior written approval and expressly prohibited the Association from removing any tree without prior written permission from the Forester. Norm cited nothing in the Agreement showing that the Association had agreed to assume a legal duty to maintain the safety of the trails for the general public.

The Court was not persuaded to create a legal duty regarding the downed tree and trail safety based on public policy considerations. Indeed, it said, public policy considerations weigh heavily against imposing such a legal duty on what is essentially a group of volunteer mountain bike enthusiasts who have been granted such limited oversight over the safety of the bike trails if any.

Thus, the Court said, Norm had failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours—but no later than a day or two—before Norm struck it, and that the Association was not even authorized to unilaterally remove.

– Tom Root

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Case of the Day – Wednesday, January 25, 2023

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BELLYACHING

When I was a kid, we had a magnolia in the backyard that my father would fume about at least twice annually. He called it “the mess tree.”

When I finally owned a backyard with a magnolia of my own, I understood. The tree is a thing of beauty every spring… for about 24 hours. Then the petals fall in a slimy, stinky mess. In the fall, the magnolia’s leaves turn from green straight to a uniform, blah brown, and then fall in a thick blanket that is resistant to most leaf rakes and machines of any size.

At least I bellyache about my own trees. What happens when your neighbors start to complain about your trees, which – while remaining on your property – mess their yards with leaves, twigs and general mess?

We all know at least the first prong of the Massachusetts Rule. A property owner has the right to trim back overhanging branches and encroaching roots of a tree standing on his or her neighbors’ yard, at least back to the property line. The second prong of the Rule, of course, is where all the variations arise. In Massachusetts, the neighbor cannot sue. In other places, the neighbor can. And even where nuisance actions are contemplated – think Mr. Houlton’s banyan tree in the famous case that begat the Hawaii Rule – at what point does a tree’s general messiness (leaves, pine cones, fruit, twigs and the such) cross the line from unremedied annoyance to actionable nuisance?

The Massachusetts Rule’s self-help provisions do not do a neighbor much good if the tree stands wholly on the next-door property. There is no trimming or root-hogging that will keep wind-blown twigs, leaves, fruit and other debris from raining onto your property.

Is there nothing that can be done? How many times have we noted that hard cases make bad law. Today’s case provides yet another illustration of the truth of this old saw.

John Leech apparently took Dorothy’s mantra to heart, believing there was no place like home. So when he and his wife had the chance, they moved into John’s boyhood home. There they lived, happy and proud (especially of the majestic coastal redwood tree in the side yard, already 80 years old or so).

John remembered the tree from when he was a boy. He nurtured it as an adult. But about 18 years after he and Brenda returned to reside in the house in which John had grown up, the Boyles moved in next door.

The Boyles never said a word to John or Brenda about the coastal redwood. But they were plenty agitated that the tree dropped pine cones and other debris on their yard, and in the process stained everything a sticky, unappealing brown. You would think that the neighbors might engage the tree’s owners in pleasant conversation, looking for a mutually acceptable solution to the problem. If so, you would be thinking wrong.

Terri and Kent Boyle might be great people, but their conduct as neighbors was as puzzling as those people who buy a house a quarter mile from the threshold of the primary runway at O’Hare and the complain about the noise. And puzzling not just to me, either. It is hard to read the Court’s opinion that John’s and Brenda’s tree was not a nuisance without concluding that the Court was a little put out that the Boyles never bothered to discuss the problem with their neighbors, but rather hired an expert and then ran for the courtroom.

Besides, there is something vaguely unjust that a couple of Johnnies-come-lately can move in, and within a couple years demand that a tree that had stood for 80 years on land inhabited by the same people for over 20 years (and more, when the lord of the manor was a mere stripling), be chopped down, all because they did not like it.

I have the sense that if the Boyles had sought a collegial solution, resorting to litigation as a last resort, their petition might have been greeted with less skepticism.

Ah well… hard cases make bad law.

Boyle v. Leech, 2019 Wash. App. LEXIS 224 (Ct.App. Washington, Jan. 28, 2019). John Leech lived at his current residence as a child in the 1950s. He and his wife Brenda moved back to the property in 1995, and have lived there for the past 24 years.

From the time John was a child, a large coastal redwood tree has grown on the property, about 70 feet from the boundary line the Leeches share with their neighbors Theresa and Kent Boyle. The branches of the stately tree do not come closer to the property line than about 50 feet.

The Boyles moved into their home in July 2013. Soon enough, Terri and Kent noticed that the wind blows debris from the Leeches’ tree onto their property. Sometimes, the debris, which contains tannic acid, causes staining. The staining does not remove easily, requiring power washing or strong cleaning products to remove.

The Boyles hired Brian Allen, a certified arborist, to inspect the coastal redwood. Brian determined that the tree “is dying slowly,” causing excessive sap and cone production. Despite this diagnosis, the tree is not currently considered high risk. On a one-to-ten health scale (one being the highest risk, with the potential for critical failure at any moment), Brian ranked the health of the tree as close to seven. Brian recommended that, “due to client’s motivations, and the potential for continued and worsening damage to surrounding property, removal is recommended.”

Inexplicably, Terri and Kent never complained to the Leeches about the coastal redwood. Rather, they filed a nuisance action against the Leeches, asking for $5,000 in damages and for a court order that the Leeches abate the nuisance by cutting down the tree. When the Leeches recovered from their shock at being sued, they moved for summary judgment, arguing the Boyles failed to establish a prima facie case of nuisance. The trial court agreed, throwing out the Boyles’ lawsuit.

The Boyles appealed.

Held: The Leeches have acted reasonably by keeping the tree, which is entirely on their property, without complaint from anyone before the Boyles. The Boyles’ claim of nuisance thus fails as a matter of law.

RCW 7.48.010 defines “actionable nuisance” as including a number of specific events, such as obstructing a highway or clogging a stream with floating timber, and includes a “catch-all” provision that holds “whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance.”

In Washington, the Court said, “an unreasonable interference with another’s use and enjoyment of property” constitutes a nuisance. Thus, in nuisance cases, the trial court mainly considers whether a party reasonably uses his or her property, balancing the rights, interests, and convenience unique to the case and considering all the surrounding facts and circumstances.

Here, the Court observed, the tree was growing entirely on the Leeches’ property, without any branches overhanging roots encroaching on the Boyles’ yard. The tree is about 80 years old, or any underground Leech believes the tree has been on the property for 80 years. Aside from the Boyles, no neighbor has ever complained to John or Brenda about the tree.

The Boyles described the tree as “a dying tree shedding toxic debris,” but their expert evidence only opined that the tree is dying slowly, but remained relatively healthy. The tree’s debris may have been “excessive,” but it was in no way toxic. Arborist Brian Allen only explained there was a “potential” for continued damage. He recommended the tree be cut down only because that was what his clients, the Boyles, wanted.

The Court of Appeals concluded that the Leeches did not act unreasonably with regard to the tree, especially given the redwood was located entirely on their property. Thus, there was no nuisance, and the Leeches would not be required to remove the tree to prevent staining from occurring on the Boyles’ property.

The Court admitted that no case it could find in Washington or any other state addressed a nuisance action regarding a tree situated wholly on someone else’s property. In Gostina v. Ryland, the Washington Supreme Court ruled that overhanging tree branches or encroaching roots onto a neighboring property constitute nuisances, and that the offended party could cut back any tree branches or roots that intrude onto his or her property. But in dictum, the Gostina court noted, “[t]he remainder of the trees will doubtless shed their leaves and needles upon the [plaintiff’s] premises; but this they must endure positively without remedy.” As well, the Court of Appeals said, in Whitesell v. Houlton – the case that adopted the Hawaii Rule – that court was careful to exclude from the definition of nuisance a tree that only was “casting shade or dropping leaves, flowers, or fruit.”

Certainly, the Court of Appeals ruled, “if natural debris from an overhanging tree should not constitute a nuisance, neither should such debris from a tree that does not encroach onto neighboring property… Wind blowing natural debris from the Leeches’ tree causes staining on the Boyles’ property. We decide that this – debris from a tree wholly on another’s property – does not constitute a nuisance.”

– Tom Root

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Case of the Day – Tuesday, January 24, 2023

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THE ENDS NEVER JUSTIFY THE MEANS… EXCEPT WHEN THEY DO

I grew up learning that Niccolo Machiavelli said “the ends justify the means.”  (He didn’t).  But Alexandr Solzhenitsyn did dispute the aphorism Machiavelli never spouted. In The First Circle,  Solzhenitsyn complained that “the end never justifies the means. Vile means defeat the ends they seek to bring about.”


It made sense to me. But it turns out that, at least in Kentucky, the ends do sometimes justify the means. That’s the principal lesson to take away from today’s case.

And in a strange way, that makes good sense, too. In yesterday’s case, a Kentucky court of appeals quite logically held that where Kentucky law said that a county engineer is responsible for keeping highways clear of fallen trees, a county engineer could not argue that he did not have to comply with the statute simply because the Louisville area metro government decided to organize its department of public works differently. The duty, the Court said, was not held discretionary. Instead, it is ministerial. That is, the duty is clearly stated in law, and all the engineer has to do is perform it.

But when County Engineer Rick Storm went to trial and admitted the statute made him responsible – regardless of the fact he never knew it and had no ability to discharge the statutory obligation even if he had – the jury listened to all the evidence, heard the court’s legal instructions, and yet inexplicably held that Rick was not liable.

Juries. Living contradictions to the belief in the wisdom of the crowd. My first reaction to Rick’s jury was to appreciate a thoughtful survey that appeared a few years ago in The New York Law Journal. Entitled “Are We Boring Juries to Death?” the article rightly complained:

Between the closing arguments and the deliberations, judges take jurors on a pseudo crash course through law school. However, law students receive an entire semester of guidance to become versed in the intricacies of substantive law (approximately 48 in-class lecture hours in addition to in-home studying), whereas jurors receive complicated instructions, that cover wide ranging topics, and take between 90 and 120 minutes to disseminate.

And what do we expect from jurors? We expect them to listen to, process, retain, and apply a burdensome breadth of information throughout the course of a trial. We demand they understand at least two different legal theories, digest all testimony and documentary evidence, contemplate issues like credibility, truthfulness, bias, and more. If that was not enough pressure, we require them to almost instantaneously understand dense legalese that attorneys have had the luxury to research and study for hours, and in many cases, years.

Certainly, the authors had a point. You take a group of legal laymen, bore them to death in a warm, sleepy courtroom, cram them with arcane legal jargon, and set them loose to apply knowledge they have only heard once. It’s as amazing that juries ever hit the mark as it is unsurprising that anyone with any sense avoids jury duty.

Yet, the more I thought about the jury letting Rick off the hook, the more sense that inexplicable decision made. The end is getting fallen trees off roads. If Louisville chooses other means to reach the end, why does it really matter? It is the end that justifies the means, even if those means do not include Rick.

Storm v. Martin, 540 S.W.3d 795 (Supreme Ct. Ky., 2017). A windstorm that blew across Louisville dropped power lines and trees. Three days later, Lou Martin was riding his motorcycle on Phillips Lane when he collided with a downed tree in the roadway. Lou was badly hurt.

Lou sued Ted Pullen, Jefferson County Director of Public Works and Rick Storm, who was the Metro Louisville County Engineer, in their individual capacities, alleging negligence due to their failure to remove the downed tree or to warn motorists of the hazard. At the time, Rick reported directly to Ted. Rick and Ted filed a joint motion for summary judgment on grounds that they were entitled to qualified official immunity in their individual capacities. The trial court agreed with Ted but denied the motion with respect to Rick.

Rick appealed. The Court of Appeals noted that KRS 179.070, which sets forth the powers and duties of a county engineer, specifically states that “(1) [t]he county engineer shall… [r]emove trees or other obstacles from the right-of-way of any publicly dedicated road when the tree or other obstacles become a hazard to traffic[.]” Rejecting Rick’s argument that he was not aware of the statute and that the operations and maintenance division of the Department of Public Works was the entity responsible for tree removal, the panel cited Wales v. Pullen (a contemporaneous case against Rick involving a motorist injured by a downed tree in the same windstorm, which we covered yesterday), holding that despite the fact “the Louisville Metro Government Department of Public Works may have chosen to structure its department differently, “based on the statutes as written, a member of the public… would expect the county engineer to remove trees, as evidenced by the clear statutory mandate and power to do so.” The Court said the statute’s use of the word “shall” rendered Rick’s duty ministerial. Thus, he had no qualified immunity.

After that, Rick went to trial. He testified that as county engineer, he and his staff were a division of a larger Department of Public Works, that he had never been responsible for trees, and that the task had always been performed by the operations and maintenance division. Rick admitted that he was unaware of KRS 179.070, and that no one ever told him tree removal was part of his job responsibilities. In fact, Rick said his department did not even have the equipment to remove trees. Similarly, Greg Hicks, the Assistant Director in charge of the operations and maintenance division of Public Works, testified that it had always been his division’s responsibility to remove trees from the roadway.

At the close of all evidence, Lou moved for a directed verdict, arguing that Rick had proved the plaintiff’s case. The trial court denied the motion. The jury then returned a unanimous verdict in favor of Rick, finding that Lou had not proven that Rick failed to comply with his duty as set forth in the instruction.” Lou asked for a judgment n.o.v., pointing out that Rick’s testimony conclusively established that he failed to comply with KRS 179.070(1)(j). Lou argued that the jury’s question to the trial court during deliberations showed jurors were less concerned with Rick’s duty and more concerned with whether a judgment would wipe him out financially. The trial court was unmoved.

Not so the Court of Appeals. It reversed and remanded for a new trial, holding that the jury’s findings that Rick did not fail to comply with his duty were against the weight of the evidence, and overlooked the specific duty the statute imposed on Rick.

Rick appealed to the Kentucky Supreme Court.

Held: The Supreme Court disagreed. It found that the record held ample evidence on the issue of Rick’s duty as county engineer, but the evidence supported the jury verdict rather than cut against it. The trial court’s jury instructions did not misstate the engineer’s duties. After the jury heard extensive testimony that the director of public works had assigned tree removal duties to the assistant director in charge of operations and maintenance, and after being instructed on the specific duties required of the county engineer, the jury unanimously found that he had not breached his duty, holding that the statute was directory and substantial compliance could satisfy its provisions.

In order to determine whether strict compliance or substantial compliance is sufficient to satisfy a statutory provision, the Court held, a trial judge must first determine whether the applicable provision is mandatory or directory. This determination is vital, because a proceeding not following a statute’s mandatory provision is illegal and void, while the failure to observe or conform to a directory provision is not. In other words, if the directions given by the statute to accomplish a given end are violated, but the given end is in fact accomplished – without affecting the real merits of the case – then the statute is to be regarded as merely “directory.”

Clearly, the Court held, the intent behind KRS 179.070(1)(j) is to ensure that trees or other obstacles do not block a public roadway. To achieve this goal, the statute requires that, when such obstacles become hazardous, they must be removed. Section 179.070(1)(j) does not mandate that this duty is non-delegable, nor does it provide guidance for how the county engineer is to actually ensure the removal of hazardous trees from a roadway.

“Obviously,” the Supreme Court said, “the statute does not contemplate personal strict compliance on the part of the county engineer as the sole means to accomplish this, particularly so close in time to a severe weather event when a huge number of trees have fallen. Especially under the facts of this case, the delegation of tree removal to other agencies or persons could accomplish the intent of the statute, and therefore, the statute is directory and substantial compliance may satisfy its provisions. This duty is ministerial, meaning that Rick Storm is not entitled to immunity, but that does not dictate the duty is absolute. Whether Rick acted negligently by failing to perform a ministerial duty is an issue for the jury to determine… After hearing the testimony, and being instructed on the specific duties required of the county engineer, the jury unanimously found that Storm had not breached his duty.”

– Tom Root

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Case of the Day – Monday, January 23, 2023

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THE OSTRICH DEFENSE

It is not an especially enviable position in which to find oneself. As Jefferson County Engineer (Metro Louisville, Kentucky), Rick Storm had a laundry list of duties assigned by the legislature. One of them was to see that downed trees were cleared from the road.

Louisville and metro Jefferson County are big places. Over the years, the Department of Public Works had swollen to eight departments and 800 employees. Rick’s County Engineer department was a kind of a backwater, with about 50 people mostly doing planning and oversight of other departments’ projects. The days of the County Engineer showing up with a couple guys and a dump truck were long gone in urban, complex, high-speed Louisville.

As for tree removal, Rick’s boss, the Director of the Department of Public Works had a separate office that handled that.

The problem was that state statutory codes are a lot like Roach Motels. Statutes check in but they rarely check out. One antiquated law on the books required the County Engineer to clean up downed trees.

Rick had no idea the law said that, and in Jefferson County, that wasn’t how they did things, anyway. But when Wally ran his Harley into branches still on the roadway six days after a severe windstorm, he didn’t care what Rick did or didn’t know, or what the Dept. of Public Works did or didn’t prefer to do in cleaning up trees. The law said the inaptly-named Rick Storm was responsible for cleaning up storm-damaged trees, and that was all that Wally needed to know.

Wales v. Pullen, 390 S.W.3d 160 (Ct. Appeals Kentucky, 2012). On September 14, 2008, Louisville was hit by a significant windstorm that resulted in downed power lines and downed trees across the city. Six days later, Wallace Wales was returning home on his motorcycle after a night out with friends. As he rode down Wilson Avenue, he hit branches of a tree thin the middle of the roadway and crashed.

Ted Pullen is the Metro Louisville Director of Public Works and Assets, running an agency of almost 800 employees working in eight divisions. Each division has either an assistant director or a manager who supervises the division and reports directly to Pullen. Rick Storm was one of those managers, an Assistant Director of Public Works, overseeing the engineering division. He also served as the County Engineer to represent the Louisville Jefferson County Metro community on the Planning Commission. As the Assistant Director in charge of the engineering division, Storm supervised about 50 employees who managed all manner of engineering, including highway construction and maintenance, Rick also helped Ted run the department.

Following the motorcycle accident, Wally Wales sued Louisville Gas & Electric, Ted Pullen and Rick Storm in their official and individual capacities, for failure to remove the downed trees or place adequate warnings of the trees on Wilson Avenue. Ted and Rick filed a joint motion to dismiss, claiming that the allegations against them in their official capacities were barred by the doctrine of sovereign immunity and that the claims against them in their individual capacities should be dismissed because they were entitled to qualified official immunity.

Wally admitted that Rick and Ted could not be held liable in their official capacities, but argued that they were only subject to qualified official immunity. Kentucky Revised Statutes (KRS) 179.070 required the county engineer to remove trees or other obstacles from the right-of-way when they become a hazard to traffic. The trial court held that appears that Storm’s action or omission of removing a downed tree would be considered ministerial in nature.

Under normal circumstances, when a tree falls onto a Louisville street, someone notifies 911 and 911 will contact Police or Fire and Public Works. A Public Works supervisor is dispatched to the scene, and the utility company, Public Works or a private contractor (if the job is too big) will cut up the tree. Ted said this is an unwritten procedure that everyone knows from his or her experience in the Public Works Department.

Following the 2008 windstorm, the Public Works Department, feeling “vastly overwhelmed” by the number of calls, put incoming calls about downed trees on a list and distributed those lists to the district areas. Ted’s executive assistant maintained the list and was responsible for making the assignments. Ted admitted he knew Kentucky statutory law placed a duty upon the County Engineer to remove trees in the road that cause a public safety hazard. However, Ted never discussed Rick’s statutory duty with him and never told him that removing trees was included in his official duties.

Rick said he never read KRS 179.070 and that no one ever told him that removing trees was part of his job duties. He indicated that Public Works had a sub-department that handled tree removal and that he was simply too busy to have that function as one of his job duties, especially given the size of the city. When asked why he thought the statute did not apply to him, Rick said he was simply not aware of the statute. He admitted he did not remove trees from the roadway during the post-storm cleanup period, and he did not ask anyone to remove any such trees from the roadway during that time.

Ted argued to the trial court that as the head of Public Works, he was only required to supervise his employees and ensure the implementation of the department’s policies. He claimed that he was not personally responsible for removing trees from roadways or otherwise ensuring that roadways were safe. For his part, Rick denied that as the County Engineer, he was responsible for removing trees and other obstacles from the roadways.

The trial court found both Ted and Rick were entitled to qualified official immunity. The judge concluded no one alleged that Ted or the employees he directly supervised were charged with the removal of the tree. The court held that “none of [Pullen’s] duties involve obedience to the orders, or the execution of any specific act, such that they are ministerial in nature.” With respect to Rick, the trial judge overlooked his previous holding that given the language of KRS 179.070, Rick’s “action or omission of removing a downed tree would be considered ministerial in nature.” Instead, the trial court relied on Rick’s own statement that he was never informed of the statute and that he was never told that removing trees was part of his job. Concluding that Rick had no actual authority to direct the removal of storm debris, the trial court held that he did not owe Wally any duty.

Wally appealed.

Held: Under KRS 179.070, the county engineer had the duty and authority to remove a downed tree, and he was liable for any negligence in failing to remove the trees or in improperly removing the trees. Rick was not entitled to qualified official immunity. Ted, however, was entitled to qualified official immunity inasmuch as his duties were discretionary in nature. Nothing in the record suggested Ted acted in bad faith with respect to any of his duties.

While government officials and employees like Ted and Rick may enjoy immunity in their official capacity, they do not enjoy immunity for negligent performance of ministerial tasks when sued in their individual capacity. When a state officer or employee is sued in his or her individual capacity, he or she is protected only by qualified official immunity.

Sovereign immunity is the principle that a sovereign nation is inherently immune from suit unless it has given its consent to be sued. This immunity extends to legislators in the performance of their legislative functions, judges for their judicial functions, and prosecutors for the performance of the prosecutorial functions. The rationale for this is to protect these offices against the deterrent effect of a threat of suit alleging improper motives where there has been no more than a mistake or a disagreement on the part of the complaining party with the decision made.

Questions regarding immunity for other governmental positions are resolved by examining the nature of the functions with which a particular official has been lawfully entrusted and evaluating the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Absolute immunity of a government official from suit for monetary damages is justified only when the danger of the official being deflected from the effective performance of his or her public duty is great.

Qualified immunity affords protection from damages arising from good faith judgment calls made in a legally uncertain environment. It applies to negligence only where the acts or functions are discretionary, where the acts were taken in good faith; and where the acts are within the scope of the employee or the officer’s authority. Government employees are not afforded qualified immunity for any ministerial act or any discretionary act performed in bad faith.

The decision as to whether acts are discretionary or ministerial must be determined by the facts of each particular case after weighing such factors as the nature of the official’s duties, the extent to which the acts involve policymaking or the exercise of professional expertise and judgment, and the likely consequences of withholding immunity. An act is not discretionary merely because some judgment is used in deciding on the means or method used. Where the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will be liable to the individual for any injury that he may proximately sustain in consequence of the officer’s failure or neglect to perform the duty at all or to perform it properly. In such a case the officer is liable as well for nonfeasance as for misfeasance or malfeasance.

Wally argued that the trial court disregarded KRS 179.070(1)(j), which stated that county engineers will remove trees from roadways and held that Storm had no actual authority in his position to remove the trees at issue in this case. KRS 179.070 holds that a county engineer shall, among other things, remove trees or other obstacles from the right-of-way of any publicly dedicated road when the tree or other obstacles become a hazard to traffic.”

Given the clear statutory mandate to remove trees, the Court of Appeals said, Rick as the County Engineer had “the duty and authority to remove a downed tree.” While the Jefferson County Metro Public Works Department may have chosen to structure its department differently, based on the statutes as written, a member of the public – like Wally – would reasonably expect the county engineer to remove trees, as evidenced by the clear statutory mandate and power to do so. Rick’s duty, the Court found, was not discretionary, but rather ministerial. Therefore, he was personally liable for negligence in failing to remove the trees or in improperly removing the trees.

Parenthetically, the Court noted, “the trial court’s reliance on Rick’s statements that he was never informed of this statutory duty was in error. This Court does not believe this is an adequate defense for a public official or employee seeking the protection of sovereign immunity… [W]here the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will be liable to such individual for any injury which he may proximately sustain in consequence of the failure or neglect of the officer either to perform the duty at all or to perform it properly.

Ted, however, did have qualified official immunity. As the director of public works, his duties did not involve mere obedience to others and were discretionary in nature.

– Tom Root

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