Case of the Day – Tuesday, February 18, 2020

Posted on February 18, 2020 by treelawyer tagged.

THE DOMINATRIX

Hardly anything can sow discord among neighbors like an easement. Rarely described with much specificity or limited as to use by a detailed statement of purpose, easements cause problems for the holder. Or the grantor. Or often, both.

Where the easement is for the benefit of an adjacent property owner, we talk about the dominant estate – the property being benefitted – and the subservient estate, which is the property (or property owner) burdened by the easement.

In today’s case, the Dzingles bought a landlocked parcel of land about 60 years ago, and – in order to get back and forth from the road – bought an ingress easement from their neighbor. As the name implies, the easement, 25 feet wide and containing a “trail,” was intended to let the Dzingles get to and from their property. The property was held by the Marilyn Dzingle Trust, making her sort of the Dominatrix.

The mind is fallible, especially where the owner of the subservient estate (cool term, right?) sells the property to someone else, someone like Jim Platt. Jim knew what he was buying, and he wasn’t the kind of guy to spend a lot of time poring over deeds and those appurtenances, principal places of beginning, heirs and assigns, and all of the legal mumbo jumbo. He knew the Dzingles had a driveway going over his land, and who needs to know any more than that?

Jimbo, that’s who. When Dzingle cleared vegetation from either side of his drive (but within the 25’ limit of the easement), Platt objected that the Dzingles had diminished the value of his property. When Platt dropped a dumpster next to the driveway, crowding the use of the road, the Dzingles objected right back. Platt said, “Sure, I’m encroaching on the easement, but you still have enough room to get by.”

Well, enough was finally enough. When the Dzingles wanted to build a modular house, they needed 22 feet of clearance to haul the pieces in. Those of us who are good at math can figure that this should be fine, with 1½ feet of clearance on each side. Well, yeah, except for Jimmy’s dumpster, and he would not move it.

So the Dzingles took Jimmy Platt to school, this class being held in a courtroom, where Jimmy Platt finally figured out what all that fine print on the deed really meant.

Dzingle Trust v. Platt, Case No. 330614 (Ct.App. Mich., Feb. 14, 2017) 2017 Mich.App. LEXIS 227. The Dzingles had contentedly enjoyed their landlocked 59 acres for nigh on 50 years, partly because they had had the foresight to buy a 25-foot ingress easement from their neighbor. But time passed, and after Jim Platt bought the subservient estate, the parties began feuding about what rights the dominant estate had over the easement.

The deed granting the easement stated that it was “an easement for ingress and egress over a parcel of land 25 feet wide…” and referred to an attached survey for the exact location of the easement. The survey clearly identified the location of the easement and indicated that the “existing trail lies entirely within easement.”

The Dzingles placed gravel in the easement and cleared vegetation to use it for ingress and egress, and to improve his attached residential property with a water well and pond, which required large trucks to use the easement. They planned to build a modular home on the property, but delivering the modules would require 22 feet of clearance, just within the easement’s 25-foot width. Jim complained that the Dzingle’s vegetation cutting within the easement “unreasonably burdened my property and eliminated my use of the property.” For their part, the Dzingles complained that Jim Platt’s placement of a dumpster in the easement did not let them use the full 25 feet for ingress and egress. That may be so, Jim said, but it did not keep the Dzingles from ingress or egress.

The Dzingles sued for a declaratory judgment regarding their rights to remove obstructions to bring the modular home onto thep roperty and asking the trial court to order Platt to remove his dumpster and any other obstacles from the easement. The trial court granted summary judgment to the Dzingle, holding they were entitled to the full 25-foot easement, and clearing brush from the easement was not an addition or improvement to the easement. The trial court rejected Jim Platt’s argument that the Dzingles’ proposed use of the easement would materially increase the burden on his estate, because their rights as the dominant estate to ingress and egress on the easement were paramount to Platt’s rights to wildlife and natural beauty. Finally, the trial court ruled that Platt must remove his dumpster from the easement because it was inconsistent with the Dzingles’ rights to ingress and egress.

Jim Platt appealed.

Held: The Dzingles’ rights extended to the whole 25 feet of the easement, and those rights included trimming vegetation so that the easement was usable for its intended purpose. It’s a rough lesson for a subservient estate holder to learn, but the dominant estate holder’s “rights are paramount to the rights of the soil owner to the extent stated in the easement grant.” The language of the instrument that granted the easement determines the scope of the easement holder’s rights.

In this case, the deed grants the Dzingles an easement for “ingress and egress.” The deed does not define ingress and egress, so the Court referred to a dictionary to determine the common meaning of the terms. “Ingress” is the “right or ability to enter; access,” and “egress” is defined as the “right or ability to leave; a way of exit.” Thus, an “ingress-and-egress easement” is an easement that grants the right to “use land to enter and leave another’s property.” Thus, the Court concluded, the deed expressly granted the Dzingles the rights to enter and leave their property, and the right to do so is paramount to Jim Platt’s rights in the same property.

What’s more, the easement gives the dominant estate “all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement.” While the dominant estate’s exercise of the easement must place as little burden as possible on the subservient estate, still “the making of repairs and improvements necessary to the effective enjoyment of an easement… is incidental to and part of the easement.”

A repair maintains an easement in the condition and uses it was in when the easement was made. Improvements, on the other hand, are alterations to an easement, and alterations are not permitted unless necessary for the effective use of the easement, unless they unreasonably burden the servient tenement.” Here, the Dzingles offered evidence that clearing vegetation, placing gravel in the easement, and using the easement to allow large trucks to improve the Dzingle acreage, and were consistent with use of the easement since the easement was granted. Thus, thr Court said, the Dzingles “presented evidence that removing vegetation and leveling would maintain the easement in the condition and uses it was in when the easement was granted. Platt presented no contrary evidence that clearing or leveling were outside the easement’s scope or changed the easement’s character.”

Finally, the Court said, any rights in the grant of an easement must be reasonably construed. The Dzingles have a right to reasonable ingress and egress, but they are not entitled to an unobstructed right-of-way. However, the Court said, the evidence showed that Jim’s dumpster intruded into the easement, and the Dzingles showed they needed at least 22 feet of the 25-foot easement for clearance to move the modular home pieces onto the property. Jim Platt may use the easement as long as his use does not interfere with the Dzingles’ right of ingress and egress. However, the Court said, because the Dzingles need the vast majority of the easement for ingress clearance and the dumpster intrudes into the easement, Jim Platt must move the dumpster.

– Tom Root

And Now The News …

Posted on February 18, 2020 by treelawyer tagged.

Nashville, Tennessee, WSMV-TV, February 18, 2020: Tree hazards to watch out for after a storm

Strong storms are notorious for causing tree damage throughout Middle Tennessee. After the initial damage is cleared, it’s time to take a closer look at surviving trees to see if there is any long-lasting damage that could cause long-term problems. Rob Kraker is an arborist with Davey Tree Expert Company. He says it’s important to keep an eye on the health of trees, especially ones around your home, sidewalks or roadways. “You wanna look for any cracking or any decaying,” says Kraker. “We also look for any mushroom growth or fractures in the roots. These are basically like the I-65 for all the nutrients for the tree.” Another very evident sign that you could have a dying tree, is large dead limbs. But not all dead limbs mean something is wrong. They have to be larger than an inch or two in diameter. “The little ones, those are not something to be worried about,” says Kraker. “It’s the ones that could potentially hurt you if you’re mowing the grass or where kids are playing.” If you’ve noticed any of these on your trees, you should call a certified arborist to come take a look. An initial consultation by Davey Tree is completely free of charge and could save you a lot of money and stress in the long run. Many times, there are steps you can take to nurse your trees back to health…

Boston, Massachusetts, WGBH-TV, February 17, 2020: Warm Winters Threaten Nut Trees. Can Science Help Them Chill Out?

In love, timing is everything, the saying goes. The same is true for fruit and nut orchards in California’s Central Valley, which depend on a synchronized springtime bloom for pollination. But as winters warm with climate change, that seasonal cycle is being thrown off. Cold is a crucial ingredient for California’s walnuts, cherries, peaches, pears and pistachios, which ultimately head to store shelves around the country. The state grows around 99% of the country’s walnut and pistachio crop. Over the winter, the trees are bare and dormant, essentially snoozing until they wake up for a key reproductive rite. “In the pistachios, the females need to be pollinated by the males trees,” says Jonathan Battig, farm manager for Strain Farming Company in Arbuckle, Calif. “Ideally, you’d like the males to be pushing out the pollen as the females are receptive.” In Battig’s orchard, one male tree is planted for every 20 female trees, though an untrained eye couldn’t tell them apart. “I know by just looking at them,” says Battig. “The buds on the males are usually more swollen.” In March or April, if all goes well, both trees will bloom so the wind carries the male trees’ pollen to the females. “For that to happen, the timing needs to line up pretty close,” he says. But several times in the last decade, that timing has been out of sync…

New York City, Wall Street Journal, February 14, 2020: We’re From the Government and We’re Here to Build a Bike Path

A handful of farmers in Ohio’s Mahoning County are getting an unpleasant lesson in government power at the hands of a local park district. Mill Creek MetroParks, a public agency governed by five unelected commissioners, wants to take over an abandoned railroad line running through about a dozen local farms for a recreational bike path. Last year, when landowners balked at the idea of strangers wandering across their properties, the park district decided to invoke eminent domain and gain right of way. “I asked the park representatives if there was any way we could negotiate on this, and they told me, ‘The time for talking is over. We’re taking this property,’ ” says Ohio state Rep. Don Manning, who tried to intervene on the farmers’ behalf. Rep. Manning, a Republican, has sponsored legislation that would limit the use of eminent domain in Ohio. The practice of government taking land for recreational uses—typically bike lanes, hiking paths and fashionable “rail trails” and “greenways”—is spreading across the country, marking a sharp and troubling expansion of eminent domain. The Takings Clause of the Constitution’s Fifth Amendment grants government the authority to seize property to be used for the public good, as long as government pays “just compensation” to the owner. Over the years, the Supreme Court has consistently expanded what is considered a “public good” to justify government seizures. In 2005, for instance, the high court upheld the taking of Susette Kelo’s waterfront home by the city of New London, Conn., so that a local development corporation could build high-end condos and a hotel. The redevelopment was intended to boost property values and increase municipal tax revenues…

Science Daily, February 13, 2020: Nitrogen-fixing trees help tropical forests grow faster and store more carbon

Tropical forests are allies in the fight against climate change. Growing trees absorb carbon emissions and store them as woody biomass. As a result, reforestation of land once cleared for logging, mining, and agriculture is seen as a powerful tool for locking up large amounts of carbon emissions throughout the South American tropics. But new research published in Nature Communications shows that the ability of tropical forests to lock up carbon depends upon a group of trees that possess a unique talent — the ability to fix nitrogen from the atmosphere. The study modeled how the mix of tree species growing in a tropical forest following a disturbance, such as clearcutting, can affect the forest’s ability to sequester carbon. The team found that the presence of trees that fix nitrogen could double the amount of carbon a forest stores in its first 30 years of regrowth. At maturity, forests with nitrogen fixation took up 10% more carbon than forests without…

San Francisco, California, Chronicle, February 13, 2020: PG&E resists judge’s tree-trimming, executive bonus proposals

Forcing Pacific Gas and Electric Co. to hire its own tree-trimming workforce, instead of relying on contractors to keep vegetation away from power lines, would not have the fire-safety benefits envisioned by a federal judge or alleviate the need for fire-prevention blackouts, attorneys for the utility say. PG&E lawyers have also pushed back on a proposal from U.S. District Judge William Alsup to prevent the company from awarding any bonuses to executives or managers unless it fulfills certain fire safety goals. The restriction would intrude on the purview of state regulators and PG&E’s bankruptcy judge, attorneys said. PG&E’s filing came in response to two recent proposals from Alsup, who is overseeing the company’s probation arising from the 2010 San Bruno pipeline explosion and has taken a strong interest in the company’s wildfire problems. Alsup in January said he might impose the tree-trimmer requirement after the company admitted it fell short on some parts of its state-mandated fire-prevention plan last year. One week later, Alsup proposed tying “all bonuses and other incentives for supervisors and above” to PG&E’s fulfillment of its state fire plan “and other safety goals…”

Cleveland, Ohio, Plain Dealer, February 13, 2020: Suspicious ‘tree crew’ questioned about ties to recent burglary: Orange Police Blotter

When two men came to her door at about 1:30 p.m. Feb. 8 to look at trees to trim, a resident, 84, became suspicious and called police. The cops had their concerns as well, since the crew somewhat matched the descriptions of suspects in a Jan. 22 burglary in which a couple in their 90s had two rings valued at over $22,000 stolen by two men who had come inside under the guise of borrowing buckets of water. Suspects with similar descriptions have also posed as utility workers in order to gain entry into roughly five homes in and around Cuyahoga County, and police in those communities were also contacted. But the man who had his wife’s rings stolen in January could not make a positive identification. Questioned was a Columbus man, 54, who was driving a truck when Orange police arrived, along with a New Carlisle man, 32, walking around the side of the woman’s house. He had active warrants in Strongsville and Butler County near Cincinnati…

Austin, Texas, KVUE-TV, February 13, 2020: 2011 Bastrop County wildfire: $5M settlement reached in case against tree company

A $5 million settlement has been reached after a tree-trimming company was accused of causing the 2011 Complex fire in Bastrop, the most destructive wildfire in Texas history. Bastrop County, Bastrop ISD, Smithville ISD and Bastrop County Emergency Services District No. 2 filed the suit in 2018 against the Asplundh Tree Expert Company for allegedly diverting crews away from a tree-trimming operation along Bluebonnet Electric Cooperative power lines. Drought conditions caused dry vegetation around the Bluebonnet lines, igniting the fires when trees fell on the power lines on Sept. 4, 2011. According to our partners at The Austin-American Statesman, the government’s attorney argued the fire had three starting points – along Schwantz Ranch Road west of Texas 21, in Circle D Ranch and Tahitian Village. The fire killed two people and burned for a month, destroying 34,000 acres and 1,700 homes. The destruction cut off five years of property tax revenue for the county, school districts and emergency services…

Oakland, California, East Bay Times, February 13, 2020: How to know when a tree must go — from a landscape pro

If a tree falls in the forest, and no one is around to hear it, does it make a sound? I have no idea. I leave that question to the philosophers and physicists. But I do know that if a tree in your yard falls on your house while you’re in it, you darn well will hear it. The sound will make your heart jump from your chest like the creature in “Alien” — and your emergency savings fund will disappear faster than a puff of pollen. That scenario was precisely the one I chose to avoid when I had the old water oak tree removed from my yard this week. The old oak was nearing the end of her years, two arborists told me. Hurricanes had damaged her once regal crown. Now, where branches had once been, open cavities pocked the trunk, opening doors for decay. “We won’t know till we get up there how bad it is, but I can tell you she’s compromised,” says Alec Lantagne, a certified arborist and partner at Central Florida’s Sunbelt Tree Service. He pointed to a section of root that was beginning to lift. “This indicates instability…”

Seattle, Washington, Times, February 12, 2020: ‘They are my family’: Stolen bonsai trees mysteriously returned to Federal Way museum

These weren’t just tiny little trees, perched in dirt and presented in pretty ceramic bowls. The two bonsai trees were family members; sturdy, sage stalwarts at the Pacific Bonsai Museum in Federal Way, where they were carefully tended to for decades. So when the trees “mysteriously returned” to the museum grounds Tuesday night after being stolen last weekend, well, people wept with relief. “These trees matter,” Kathy McCabe, the museum’s executive director, said Wednesday. “They are treasures. They have such deep history. “I’m going to cry. It makes me emotional.” The trees — a Japanese black pine and a silverberry, each worth thousands of dollars — were stolen from the museum’s public display at about 7 a.m. Sunday. Security cameras captured two people crawling under the museum’s fence. It wasn’t clear what they had taken until assistant curator Scarlet Gore came around a corner a few hours later and saw the trees were gone. Word of the theft — a kidnapping, really, for some people — spread quickly. The museum’s Facebook post about it was shared 3,000 times and reached 350,000 people. The New York Times called. So did NPR and CNN…

Charlotte, North Carolina, WCNC-TV, February 11, 2020: What should you do about fallen trees after a storm?

Last week’s storms brought down trees all across the Charlotte area. WCNC Charlotte Meteorologist Iisha Scott spoke to an expert on ways you can be prepared ahead of the next storm. An Allstate agent gave this advice: • Make sure you’re getting all trees trimmed and don’t forget your regular maintenance; • Keep an eye on older trees because they fall easily; • Make sure you have proper insurance coverage and an adequate amount of coverage. And while storms bring out a sense of community, they also bring out scammers. The North Carolina’s Attorney Generals’ office wants to remind you to: • Get a written contract that lists all the work to be performed, its costs and completion date; • Make sure the company is insured. You can contact the insurer directly; • Don’t pay upfront…

House Beautiful, February 12, 2020: These Gorgeous Eucalyptus Trees Create a Rainbow Effect as Bark Peels

At first glance, you might just think someone got a little carried away and paintedthose tree barks. Reasonable guess, but what if I told you that those colorful streaks formed naturally? And that these colorful trees are actually real!? Not all bark is brown, my friends, and these multi-colored timbers are here to prove it! Eucalyptus deglupta trees, also known as “rainbow trees” or “Mindanao gum trees,” are tropical evergreens known for their colorful, rainbow-like bark. Every season, these trees shed their old rinds, revealing a new variegated layer of oranges, blues, and greens. It’s magical, not to mention beautiful, especially since the tree’s shelling will never look exactly the same over the years. The large evergreens (which can grow up to 250 feet tall) commonly grow in tropical forests in the Philippines, New Guinea, and Indonesia where sunlight and rainfall are ample. However, they can grow in certain parts of the United States with similar conditions, too. Eucalyptus deglupta trees have been spotted in Hawaii and the southern parts of California, Texas, and Florida. However, as the U.S., is not the tree’s native environment (and the ones here were planted by seeds brought from other parts of the world), they typically only reach heights of 100 to 125 feet…

Syracuse, New York, Post-Gazette, February 12, 2020: Syracuse plans to turn down city heat by planting 70,000 trees

Syracuse is trying to ease the impacts of two of the nation’s biggest problems – income inequality and climate change – through a simple idea: Planting trees. Lots of trees. The city today is releasing an ambitious urban forestry master plan that calls for planting 70,000 trees over 20 years. That would increase the land area covered by tree leaves by more than 1,600 acres, resulting in a third of the city draped in shade. “Urban forests are our first line of defense in a hotter, more unpredictable climate,” says the city’s draft plan. “They function as an outdoor air conditioner and filter, water control system, wind barrier, anger and mood management program, beautification initiative, and even sunblock.” Syracuse and New York state are getting warmer. A Syracuse.com review of climate data shows the city’s normal temperature is 1 degree higher than it was from the 1950s through the 1970s. A 2015 study by several New York state agencies said New York state has warmed 2.4 degrees since 1970…

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President’s Day, 2020

Posted on February 17, 2020 by treelawyer

Case of the Day – Friday, February 14, 2020

Posted on February 14, 2020 by treelawyer tagged.

ACORNS KEEP FALLIN’ ON MY HEAD…

It started as a simple idea: establish a court without lawyers, a place where people with a beef could be heard, where small-scale justice can be dispensed, where people found common-sense answers to problems. And thus small claims court was born, having its origin – ironically enough – as the “court of conscience” in medieval England.

The rules are simple, the docket is swift: usually, from filing of the action to hearing not much more than a couple of weeks pass. There is no fancy-Dan pleading, no arcane procedures, no onerous discovery. Just two people with a problem and one judge to listen and decide.

Many years ago, long before law school interrupted my life, I sent roses by FTD to a girl in another state on Valentine’s Day. I thought it strange when she thanked me for the “flowers.” People would normally say “thanks for the roses.” After about the third time she said “flowers” instead of “roses,” I thought to ask her what she had received from me. It turned out that I paid for roses, and got a mixed-flower arrangement suitable for a funeral… but not a beloved.

When I complained to my local florist, he told me dismissively that if the receiving florist in the other state was out of roses, he or she could substitute “another arrangement of equal value.” Getting no satisfaction there, I filed a small claims complaint. On the day of the hearing, the flower shop owner stalked into the courtroom and gave me my money back.

Sweet justice!

So I love small claims court. But I recognize its principal drawback, which is that lawyers can still show up and make a mess of things. That’s what happened in today’s case.

Daphne Kohavy, a savvy resident of Gotham, rented a parking space in a lot next to her co-op apartment building in the Bronx. The co-op had a management company, Veritas, running the lot. Daphne’s car was parked under an oak tree, which rained acorns on her ride. This should not seem surprising to many of us who understand that those funny little acorns hanging on oak trees like to drop. But Daphne was a New Yorker, and had only the most fleeting acquaintance with green things that grow from the earth. The acorn rain surprised her, and – according to her complaint – caused over $1,500 in damage to her wheels.

She sued in small claims court. Veritas brought its lawyers (in its defense, the law required it appear through lawyers, because it was a limited liability company). Its lawyers started milking the case for fees, filing motions to dismiss for all sorts of reasons.

The court was not amused. Small claims court is supposed to be easy, where parties aired the claims instead of tying each other up in “gotcha” motions. The court scolded the defendants, holding that because Daphne said the tree was defective, she should have a chance at trial to prove it.

We don’t think much of Daphne’s lament. Oak trees drop acorns. That’s no surprise. But on the other hand, Veritas tried to muck up the small claims process (forcing poor Daph to go out and hire her own lawyer). Perhaps distributive justice – where the right thing gets done for what nominally is the wrong reason – triumphed.

Kohavy v. Veritas Management, LLC, 2017 N.Y. Misc. LEXIS 1380 (Civil Ct. Bronx County, 2017): Daphne Kohavy leased a parking space next to her apartment building on a lot owned by defendant 511 W. 232nd Owners Corp. was the owner of the parking lot. Veritas Management, LLC was the lot’s managing agent. While parked there, Daphne’s car was damaged from acorns falling from a tree overhanging her parking space. It sounds like classic encroachment and sensible harm. She sued in small claims court for $1,500.

Veritas, through its lawyers, moved to have Daphne’s claim dismissed because it was just the manager, not a party to the contract for her space between Daphne and the Co-op, and not the owner of the lot or the oak tree. What’s more, Veritas claimed, it did not maintain exclusive control of the premises, and even if it did, the law does not recognize a cause of action in negligence for damage due to falling acorns.

The motion to dismiss also claimed that the Co-op could not be held liable as the damage to Daphne’s car was caused by a healthy tree, and even it was not, the Co-op lacked notice of any such defect.

Held: The court began by scolding Veritas for gumming up the court’s processes with dispositive pretrial motions, noting that the “informality and convenience of small claims practice is necessarily frustrated by requiring pro se litigants to respond to formal motion practice…” But in the interest of moving things along, the Court addressed Veritas’ motion.

The Court found that there was a question of fact (because Daphne had said so) regarding the condition of the overhanging oak tree that had damaged her car. While the Court said there was no privity of contract between Daphne and Veritas, “questions of fact with regards to defendant Veritas’ control over the parking lot, as per the terms of the management agreement between defendant Veritas and defendant Cooperative, exist.” If Daphne could show that Veritas maintained exclusive control over the parking lot under the management agreement between it and the Co-op, and that Daphne’s damages were the result of Veritas’ negligence, she might be able to recover in negligence from Veritas.

The Court noted that Daphne “commenced this Small Claims action as a pro se litigant. It was not until the plaintiff was served with this instant motion that plaintiff retained counsel to represent her. Accordingly, in this case, the filing of this instant motion prior to a hearing has indeed frustrated the purpose of New York City Civil Court Act § 1804 and its concern for protecting inexperienced pro se litigants and providing them with an expeditious and inexpensive forum to resolve small claims.”

– Tom Root

Case of the Day – Thursday, February 13, 2020

Posted on February 13, 2020 by treelawyer tagged.

WATCH OUT FOR THAT TREE!

The old ‘60s cartoon George of the Jungle featured an earworm theme song that always warned George to “watch out for that tree!” just before he collided with an unforgiving trunk. Tom Kranz discovered that life imitates art.

Grandpa Tom should have watched out for that tree, too. As he pushed his granddaughter’s stroller past the Perkinses’ house, he noticed a limb from one of their trees was overhanging the sidewalk. He moved onto the tree lawn to sidestep the branch, but somehow managed to skewer his eardrum with a twig.

Ouch. But in a case with parallels to yesterday’s coffee-shop debacle, Tom sued the Perkinses, claiming they owed him a duty to be sure he did not run into a branch he could clearly see and avoid. And just like yesterday, the court said (albeit it with some legalese), “C’mon, man!”

Even when someone is just walking past your house, they are a licensee, entitled to use the public sidewalk, and you have a duty not to engage in willful or wanton conduct that cause them harm. But an untrimmed branch does not rise to such willful or wanton conduct, and that’s especially so where the pedestrian is perfectly able to see the danger. Tom admitted to an accident investigator that the tree was “easy to go around.” Where a licensee has equal knowledge of the dangerous condition or the risks involved, the court told Tom, “there is no willful or wanton action on the part of the owner and there is no liability to the licensee.”

Common sense… parents, mind your kids. And Tom, for heaven’s sake, watch your head.

Perkins v. Kranz, 316 Ga.App. 171 (Ct.App. Georgia, 2012). While walking in a Gwinnett County subdivision, Thomas Kranz’s eardrum was punctured by a branch from a tree overhanging the sidewalk. Kranz sued Jerry and Nyda Perkins, on whose property the tree was located, claiming negligence. The Perkinses asked the trial court to throw out Tom’s complaint, but it refused.

The Perkinses appealed.

Held: Tom’s case was thrown out. After all, saw the tree, with its limbs extending over the sidewalk, obstructing his path. To avoid them, Tom moved off of the sidewalk onto the strip of grass between the sidewalk and street. But as he passed the tree, he felt a sharp pain, and eventually realized that a twig had entered his ear and pierced his eardrum.

The essential elements of a negligence claim are the existence of a legal duty, breach of that duty, a causal connection between the breach and the plaintiff’s injury, and damages. The threshold issue is whether the Perkinses owed a legal duty to Tom Kranz. The Perkinses argued that Tom was, at best, a licensee, but Tom said he was an anticipated licensee, and argued the Perkinses had to exercise ordinary care to prevent injuring him.

But the Court said it did not matter what Tom was. “Pretermitting any decision on Kranz’s potential status as a licensee, anticipated licensee, or invitee, he may not recover as a matter of law because the evidence establishes that he had equal knowledge with the Perkinses of the potential danger posed by the tree.” In other words, the Court said, Tom could see the branch. If he was negligent enough to walk into a tree branch he could easily observe and avoid the branch, he had no one to blame but himself.

An owner, the Court held, “has no duty to a licensee to keep the premises up to any standard of safety, except that [the property] must not contain pitfalls, mantraps, and things of that type.” Here, the tree and its overhanging branches were “in no way a pitfall, mantrap, or hidden peril.” Tom should have avoided the danger. He did not. Tough luck.

– Tom Root

Case of the Day – Wednesday, February 12, 2020

Posted on February 12, 2020 by treelawyer tagged.

TEACH YOUR CHILDREN WELL

This is hardly a law school final exam question: Two parents and a couple of hellion spawn walk into a Starbucks. The kids promptly begin running amok, using the furniture and fixtures like a jungle gym. Specifically, the whelps begin swinging from ropes and climbing stanchions used to mark off the line for coffee. After taking plenty of abuse from the ankle-biters, one of the stanchions falls, injuring one of the kids.

Quick: Who’s liable?

If you said Starbucks, we congratulate you, because you have a wonderful future ahead of you as a plaintiff’s attorney. If you said the parents should be responsible for their offspring’s monkeyshines, you have a future, too… as a judge.

The Roh family, a father and mother, and a pair of boys – ages 3 and 5 – visited a newly-opened Chicago Starbucks. This one had some fancy line dividers (as the line-divider industry likes to call them), created from some recycled 19th-century ironwork. The dividers were mounted on concrete plugs to prevent tipping.

You’ve probably seen parents like these two, maybe focused on their smartphones, maybe lost in conversation, maybe just tuned out… the kids run wild, and their folks remain oblivious. But when the inevitable disaster befalls, it becomes anyone’s fault except the kid’s. Or the parents’…

But contrary to breathless Internet stories and hand-wringing commentators, America remains a land of individual responsibility. To be sure, a landowner who invites kids onto the premises is liable for dangerous conditions where the risk to the child is reasonably foreseeable. But while this rule applies where a kid is on his or her own. But where the child is with a parent, the landowner may be relieved of his or her duty to the child because parents are primarily responsible for their child’s safety, because it is their “duty… to see that his behavior does not involve danger to himself.”

What a refreshing concept! Parents are responsible for their kids…

Roh v. Starbucks Corporation, 881 F.3d 969 (7th Cir. 2018): The Roh family was visiting a recently-opened Starbucks store in downtown Chicago, two parents with sons Marcus, age three, and Alexander, age five. The store had custom metal stanchions for placement within the store to direct the flow of customer traffic, salvaged posts made of 1800’s-era iron fences or stair posts. The stanchions were freestanding, but mounted on heavy concrete bases and connected with ropes to control shopper traffic.

As the family was leaving, the parents heard their son Marcus begin crying. The father, who had heard a loud noise immediately preceding Marcus’s cries, saw that one of the stanchions had been knocked to the ground, striking the boy and pinning his hand. Marcus lost his left middle finger and seriously injured his index finger.

Neither parent witnessed what had happened, but the boys admitted to swinging on the ropes, running around the dividers, and climbing the stanchions.

Naturally, the Rohs sued Starbucks, claiming it was negligent by failing to safely maintain the premises, to adequately secure the stanchion, to properly inspect it to ensure its stability, to warn patrons of the potential danger posed by the stanchion, or to realize that minor patrons would not appreciate the risk posed by the unsecured stanchion. The district court granted summary judgment for Starbucks, holding that the boy’s parents, not Starbucks, bore the responsibility to protect Marcus from the obvious danger posed by playing on the unsecured stanchions.

The Rohs appealed.

Held: The Rohs collect nothing, because any duty owed Marcus by Starbucks was abrogated by his parents’ presence with him in the store that day.

Whether a duty exists in a given case turns on the foreseeability and likelihood of the injury, the difficulty of guarding against it, and the consequences of laying the burden to guard against the danger on the defendant.

Generally, landowners or occupiers in Illinois owe no greater duty to small children than the duty owed to adults. In premises-liability cases involving injury to a child, “the true basis of liability [is] the foreseeability of harm to the child.” The Court said that a child’s injury will be deemed foreseeable to the landowner if (1) the owner or occupier knows or should know that children habitually frequent the property; (2) a defective structure or dangerous condition is present on the property; (3) the defective structure or dangerous condition is likely to injure children because they are incapable, due to their age and immaturity, of appreciating the risk involved; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition is slight when compared to the risk to children.

Things change, however, when the child is accompanied by his or her parents. This is because “the responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself.” A landowner’s duty to a child is abrogated if “the child was injured due to an obvious danger while under the supervision of his or her parent, ‘or when the parents knew of the existence of the dangerous condition that caused the child’s injury’.”

Both parents admitted they saw the heavy stanchions. The Court stated the obvious, that “it is a matter of common sense that serious injury could result from climbing on the stanchions and swinging from the ropes connecting them together.” Maybe the parents did not foresee that Marcus would get his finger crushed, but they don’t have to foresee the particular injury. It is enough that the Rohs saw the stanchions, which were plainly very heavy. Any parent could foresee that a child hanging from the rope connecting the stanchions or otherwise playing on and around them could be injured, the Court said, and that is “sufficient to support the conclusion that Starbucks did not breach any duty to Marcus, who was engaged in an activity while under his parents’ supervision that could obviously lead to injury of some kind.”

What the Court was saying was they should have known better. “It was plainly evident to the Rohs that the heavy stanchions were intended to control traffic flow in the store; their failure to prevent their sons from climbing and playing on them led to Marcus’s injury, not the breach of any duty on Starbucks’ part.”

– Tom Root

Case of the Day – Tuesday, February 11, 2020

Posted on February 11, 2020 by treelawyer tagged.

CAREFREE MOBILE HOME LIVING

Everything’s big in Texas … don’t get stung.

Texas is a pretty big place. So when Scott, who was selling a little 175-acre spread to Bill and Julie Coales, reserved to himself the right of ingress and egress — basically, a license to used a road through the land — we’re not talking a jungle trail. We’re talkin’ big. And we’re talking about moving a lot of mobile homes.

At least, that’s what the defendants said in today’s case. After they bought the place, the Coales decided move in Julie’s parents, and to do it in style. So they hauled in some house trailers, no doubt in order to let the old folks live in luxury. But by doing that, they constricted the 100-foot wide path, making it harder for the Scotts to haul through … well, whatever big stuff the Scotts had to haul through.

The Scotts sued, claiming that they couldn’t get their own trailers in, drive through with their 18-wheelers, and turn off the road wherever they wanted to with their 4 x 4s. The Coales disagreed, contending that no one needed more than the small path down the center to get to their properties. Even in Texas.

The trial court disagreed with the Coales, and the Court of Appeals explained with some care why the unambiguous grant of the right of ingress and egress — coupled with the evidence that the Scotts needed the whole width of the former airstrip for moving in their own 18-wheelers, garbage trucks, and, yes, even their own mobile homes — meant that the neighbors’ use of the 100-foot wide, 31⁄2-acre right was “reasonably necessary and convenient.”

The Coales didn’t leave the Scotts much space to haul in their mobile home.

Everything’s big in Texas. Even 100-foot wide driveways.

Coale v. Scott, 2007 Tex. App. LEXIS 7171, 2007 WL 2428631 (Tex.App. Aug. 28, 2007). A 175-acre tract of Texas land was conveyed to Bill and Julie Coale in 2004, reserving to some other landowners “the right of ingress and egress on the part of all landowners” a roadway, which happened to be a 100-foot wide abandoned airstrip. After the Coales bought the property, they started placing two mobile homes on the north side of a trail that runs down the middle of the airstrip. They also installed a storage unit on the south side of the trail, as well as fencing, a ranch gate, and a septic system.

The Coales planned to move their parents into the trailer homes. They contended that “neither of these structures prevented the [other owners] from using the old trail that they and others before them had always used to get to their properties.” The property owners who had the right of ingress sued the Coales. The case went to the trial court jury on the issue as to the width and location of the “passageway” across the land. The jury found in favor of the plaintiffs, deciding they had the right to use the entire 100 foot-wide tract for ingress and egress to their adjoining properties.

The Coales filed a rambling appeal, arguing that the plaintiffs were only entitled to a way across the Coales’ property that was reasonable and necessary for them to have passage to and from their property and imposes the least burden on the Coales’ property.

The Scotts thought their right of egress was fairly wide.

The jury’s finding was upheld. The Court noted that under Texas law, the terms ingress and egress indicate rights inherent in the owners of the dominant estate to pass through the servient estate. They do not imply the right to linger for recreational purposes. The owners of the dominant estate are entitled to the rights granted by the instrument, and no more.

A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner. As for the extent of the right, the case of an unambiguous writing, courts will give effect to the intention of the parties as expressed by or as apparent from the writing.

Here, the Court said, the grant expressly provided “[t]his roadway is subject to the right of ingress and egress on the part of all landowners in the above described 173.45 acres tract.” No mention was made of any other rights of use, and none may be implied. The Court saw no reason to go outside of the clear language of the express grant. There was no dispute that the 3.629 acre tract was 100 feet wide. Instead, the dispute centered around what the Coales believed the plaintiffs actually needed to use for their rights of ingress and egress. The Coales argued the plaintiffs were only entitled to a way across the Coales’ property that was reasonable and necessary for them to have passage to and from their property, and that the dirt or gravel road that ran down the middle of the airstrip.

The Coates planned to install their parents in a nice, carefree mobile home.

The Court, however, held that the plaintiffs entitled to the rights granted by the instrument, and no more or less. A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as minimally burdensome as possible to the servient owner.

Here, the jury considered the language in the deed, a survey depicting the properties, the legal description of the properties in the tax records, photographs, and testimony. One witness testified that for the past 20 years, he had turned into his property from any point on the airstrip. There were no gates or fences. He said the trailers the Coales placed on the airstrip impeded his access to his land, and if he were still driving his 18-wheeler, he would possibly drive over the Coales’ plumbing lines. Another witness testified she had used the whole width of the airstrip to bring her trailer into her land. Another witness testified that because of the Coales’ trailers, “you can only go one way. And if you want to pass two ways, you can forget it.”

Previously, cars going in the opposite direction could travel simultaneously by using the entire width of the airstrip. Now, one has to pull over to let the other one pass. Based on the evidence, the Court said, there was legally sufficient evidence to support the jury’s finding that use of the entire 100 feet of the airstrip was reasonably necessary for the plaintiffs’ right of ingress and egress.

– Tom Root