Case of the Day – Wednesday, August 20, 2023

Posted on August 20, 2025 by TLRoot tagged.

WE GOT YOU COVERED

Ich bin in Berliner? The denizens of the western half of the city were irate over the Wall. Just a bit.

Ich bin ein Berliner? The denizens of the western half of the city were irate over the Wall. Just a bit.

California homeowner Shelly Albert lived next to grumpy Henri Baccouche. How do we know he was grumpy? You’d be grumpy, too, if your neighbor built a fence over the parties’ common driveway easement, enclosing a grove of nine mature olive trees that stood on your land.

Imagine how the Berliners felt when they awakened on the morning of August 13, 1961, to find that their neighbors on the east side of town had built a fence enclosing the Brandenburg Gate, Karl Marx Strasse, and some of the nicer parts of town. Or how those Mexicans must have felt when they awoke from a siesta to find a big wall between them and Texas, and a rock with the bill wrapped around it lying in their front lawn? That’s sort of how Mr. Baccouche felt.

To make matters worse, Henri fumed, the nine olive trees had been badly damaged by Shelly’s contractors. The workers’ “actions in hacking, cutting and pruning the trees reduced them to a pitiable state.” The contractors had damaged other trees as well, thereby diminishing “the aesthetic and monetary value of those trees… ” Henri demanded treble damages under Civil Code §§ 733 and 3346, but later expanded his claims to include the alternative claim that Shelly and her people were negligent.

Shelly didn’t bat an eye. She had an insurance policy from Mid-Century Insurance that covered negligence like this. When Henri served his civil action on Shelly, she forwarded a copy to the insurance company. She explained to her insurer that she didn’t believe that any of her fencing encompassed Mr. Baccouche’s property. Plus, she said, the trees that her workers trimmed were “boundary trees,” straddling the property line between the properties. Plus, she explained, she has been notified by the Los Angeles Fire Department to clear the area where the trees were located, as it was within 200 feet of her residence. She had trimmed these same trees year after year, and Mr. Baccouche never told her not to, or that the trees belonged to him. Shelly told her agent that she believed in good faith that the trees were hers and that she was required to trim them.

If she didn’t work for Disney (and if she weren’t a cartoon character), Elsa could be a field rep for Mid-Century. Except their hearts are much colder…

Ah, Shelly … your Pollyannish optimism is amusing! But not to the cold-hearted field claims manager, who denied your claim. The insurance company concluded that the claim was barred by the exemption for intentional acts set out in the policy. Insurance policies typically cover losses from negligent acts (you accidentally run over the neighbor’s cat) but not intentional acts (you kick the neighbor’s cat into the next county).

However, maybe Henri left her an out. In his amended complaint, he claimed that if Shelly didn’t trespass and hack up his trees on purpose, she did so negligently. Shelly reported the amended claims to her insurance carrier. She argued that because she believed that the trees were owned by both parties, they “constitute[] property covered under my policy. Accordingly, [defendant] has an obligation under my policy of insurance to tender a defense on my behalf.”

The insurer did not budge. The company contended that because Shelly admitted she purposefully erected the fence and had intentionally cut Mr. Baccouche’s trees, the conduct giving rise to Henri’s claims was intentional, and thus not an accident or occurrence within the meaning of the insurance policy. The insurer said its coverage determination had considered the possibility that the trees were solely owned by Shelly, solely by Henri, or were jointly owned. The carrier determined that who owned the trees was irrelevant to the coverage determination because the damage occurred from nonaccidental conduct.

In response to the insurer’s July letter, Shelly took issue with some minor factual assertions in the document but did not otherwise claim that the damage to the trees had arisen from any sort of accident within the meaning of the policy. The insurer replied that Shelly had not provided any facts addressing its position that the incident was not an “accident” or “occurrence” within the meaning of the policy.

Shelly sued the insurance company. The trial court concluded that she failed to show “a potential for coverage,” which is what she had to prove in order to get Mid-Century to pay for her legal defense. The judge decided that Shelly’s conduct alleged in Henri’s lawsuit was nonaccidental and intentional. To the extent the amended complaint alleged “negligent” conduct, Shelly had admitted to the carrier what she had done, and Shelly’s argument that she somehow “negligently supervised” the workers was not supported by Henri’s claims.

The Court of Appeals agreed with the trial court. An insurer owes its insured a broad duty to defend against claims creating a potential for indemnity. This duty to defend is broader than the duty to indemnify and may exist even if there is doubt about coverage. However, the insurer has no duty to defend where the potential for liability is tenuous and far-fetched. The ultimate question is whether the facts alleged in the lawsuit against the insured fairly apprise the insurer that the suit is upon a covered claim.

Shelly’s policy covered property damage resulting from an occurrence, and the policy defines an occurrence as an accident. An intentional act is not an ‘accident’ within the plain meaning of the word. The term “accident” refers to the nature of an insured’s conduct, and not to the unintended consequences of the conduct. An accident does not happen when an insured commits a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.

Shelly intended the acts that resulted in damage to Henri’s trees. Her conduct did not become an accident just because she didn’t know the trees belonged to Henri. Her intent was irrelevant; the act was not. Shelly told her workers to trim the trees that had been trimmed. Her mistake was in thinking the trees were hers. Her insurance didn’t cover that.

There’s a lesson here for the Henris of the world, too. Your lawyer can sometimes get the bit in his or her teeth, writing enraged and cutting complaints against defendants. In this case, it would have been a lot better for Henri’s lawyer to have accused Shelly of gross negligence or even recklessness. That way, the insurer gets involved. Insurance companies tend to be economic, rational creatures, who are willing to settle when settlement is reasonable… and always have the ability to write a check that’s good.

Albert v. Mid-Century Ins. Co., 236 Cal.App.4th 1281 (California Court of Appeals, Second District, Eighth Division, April 28, 2015). Plaintiff Shelly Albert bought a homeowners’ insurance policy from Mid-Century in January 2008. The policy was in force in January 2011, when Albert was sued by her neighbor, Henri Baccouche, for damages she caused to his property when she erected an encroaching fence and pruned nine of Mr. Baccouche’s mature olive trees. Albert asked Mid-Century to defend the suit, and when the insurance company refused, she sued it.

The insuring clause of the plaintiff’s policy stated: “We will pay those damages which an insured becomes legally obligated to pay because of … property damage resulting from an occurrence. At our expense and with attorneys of our choice, we will defend an insured against any suit seeking damages covered under [this section] . . . We do not have any duty to defend or settle any suit involving actual, alleged, threatened or declared . . . property damage not covered under this liability insurance.” The policy defines an “occurrence” as “an accident, including exposure to conditions, which occurs during the policy period, and which results in . . . property damage . . . during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence.” The policy also set forth a number of exclusions, including one for “intentional acts,” which the policy defined as “property damage . . . which is caused by, arises out of or is the result of an intentional act by or at the direction of the insured.” By way of example, this includes but is not limited to any intentional act or intentional failure to act by an insured, whether a criminal act or otherwise, where resulting injury or damage would be objectively expected to a high degree of likelihood, even if not subjectively intended or expected.”

Mr. Baccouche’s complaint alleged that he and Shelley Albert, his neighbor, owned adjacent parcels of land which were subject to a reciprocal roadway easement providing both parcels access to the main public road. He said Albert erected a permanent fence over a portion of the roadway easement, which also intruded onto his parcel. The fence enclosed a 644 square-foot portion of Mr. Baccouche’s land, which included a grove of nine mature olive trees. He claimed Albert and her contractors “willfully and maliciously damaged [the] nine mature olive trees . . . by severely hacking, cutting, and pruning those trees so as to greatly reduce their canopies, foliage, limbs, etc., without permission.” The complaint sought treble damages under Civil Code §§ 733 and 3346.

Mr. Baccouche later amended his complaint, alleging a cause of action for negligent damage to his trees.

The insurance company investigated the claims. Albert asserted that the fence she erected was within her property line and said she did not believe any of her fencing encompassed Baccouche’s property. As to the trees at issue in Mr. Baccouche’s complaint, Albert asserted that the trees were “boundary trees” and that the trunks of the trees essentially straddled the property line between Mr. Baccouche’s and her properties. She told the insurance company that since she purchased her lot, she has been notified by the Los Angeles Fire Department to clear the area where the trees were located, as it was within 200 feet of her residence. She trimmed these same trees year after year, without complaint from Mr. Baccouche.

The carrier denied coverage, concluding that the conduct complained of by Baccouche was intentional conduct by Albert. Albert argued that because she had the trees trimmed in the good faith belief she owned them, “ … no intentional tort will lie.” Albert then sent Mid-Century a “demand for tender of defense,” which the carrier denied. Albert took issue with the insurer’s position but did not otherwise claim that the damage to the trees had arisen from any sort of accident within the meaning of the policy.

Albert then sued Mid-Century. The trial court granted the carrier’s motion to deny coverage. The court ruled that Albert had failed to demonstrate a potential for coverage, as the conduct at issue in Baccouche’s lawsuit was nonaccidental, intentional conduct. The trial court also concluded that to the extent Mr. Baccouche’s complaint alleged “negligent” conduct by the plaintiff, there was no evidence whatsoever that the trees were injured in some accident, “e.g. by inadvertently striking a tree with a motor vehicle.” The trial court also concluded that Mr. Baccouche’s pleadings did not support his “negligent supervision” theory.

Albert appealed.

If you intentionally cut down one of your own trees, but it unintentionally falls on the house, you’re still covered. We’re pretty sure. But read the fine print – preferably before you fire up your chainsaw.

Held: Mid-Century was not obligated to defend Albert. The Court observed that an insurer owes its insured a broad duty to defend against claims that may result in indemnity. While the duty to defend is broader than the duty to indemnify and may exist even if there is doubt about coverage, the proper focus is on the facts alleged in the complaint, rather than the alleged theories for recovery. The ultimate question is whether the facts alleged ‘fairly apprise’ the insurer that the suit is upon a covered claim.”

Here, the policy covers property damage resulting from an occurrence, and the policy defines an occurrence as an accident. Under California law, the word ‘accident’ in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured. The Court held that an intentional act is not an ‘accident’ within the plain meaning of the word.” It said, rather, that in the context of liability insurance, an accident is “an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.”

“Accident” refers to the nature of the insured’s conduct, and not to its unintended consequences. It is not an “accident” when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage. When an insured intends the acts resulting in the injury or damage, it is not an accident “merely because the insured did not intend to cause injury. The insured’s subjective intent is irrelevant.”

Nevertheless, the Court said, coverage is not always precluded when the insured’s intentional acts result in injury or damage. An accident may exist “when any aspect in the causal series of events leading to the injury or damage was unintended by the insured and a matter of fortuity.” When a driver intentionally speeds and, as a result, negligently hits another car, the speeding would be an intentional act. However, the act directly responsible for the injury – hitting the other car – was not intended by the driver and was fortuitous. In that case, the occurrence resulting in injury would be deemed an accident. On the other hand, where the driver was speeding and deliberately hit the other car, the act directly responsible for the injury – hitting the other car – would be intentional and any resulting injury would be directly caused by the driver’s intentional act.”

Albert argued that although she deliberately hired a contractor to trim the trees, the excessive cutting was not an intended consequence and should be deemed an accident. However, it is completely irrelevant that Albert did not intend to damage the trees because she intended for them to be pruned. Moreover, it is undisputed that the contractor intended to cut the trees, and absolutely no facts exist in the complaint or otherwise indicating that some unforeseen accident (such as a slip of the chainsaw) caused damage to the trees. In fact, it was always Albert’s position that the trees had not been damaged or pruned excessively (and therefore were not subject to an accident) and that they had been cut in accordance with the City’s brush clearance ordinance. An insured may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in which the third party claimant might amend its complaint at some future date.”

Also, the Court said, no facts supported Albert’s theory that her negligent supervision of the contractors brought the complaint within the terms of the policy. Negligent supervision requires (1) an employer to supervise an employee; (2) who is incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. There are simply no facts, in the complaint or otherwise, supporting the elements of this claim.

Under any view of the facts, the Court ruled, the trimming of the trees was no accident. Albert failed to carry her burden to show that any of Mr. Baccouche’s claims may fall within the scope of the policy.

– Tom Root

Case of the Day – Tuesday, August 19, 2025

Posted on August 19, 2025 by TLRoot tagged.

YOU’LL POKE YOUR EYE OUT

Every adult can recite the many and varied warnings and admonitions we heard from parents when we were kids. Among them were “you’ll catch your death of cold,” “clean up your plate, because there are starving kids in India/China/Africa.” We imagine Momma Trump telling a young Donald to “always tell the truth.” Good advice that can save you headaches later.

And, of course, there’s that Christmas Story classic, “you’ll shoot your eye out.”

Today’s case is about Peter Robles, a kid who didn’t shoot out his eye but did poke it out. Petey, an impetuous 3-year-old, ran straight into a very sharp palm frond while playing in the Severyn family’s yard next door to his house.

We remember when the neighbor kid climbed our magnolia tree once while it was raining. (We, or maybe our mother, had enough sense that we were kept indoors, out of the rain). The neighbor kid lost his footing on a slippery bough, fell, and whacked his chin on the branch as he passed on the way to the ground. Even then, the law of gravity was in force.

The neighbor boy showed up the next day with stitches and haughtily told us that his parents were going to sue our parents. Not really understanding the law, we had visions of losing outr house, car and toys, and being reduced to panhandling on the village square. Had we really appreciated the law, we would not have been scared. We would have been petrified.

In today’s case, the toddler’s parents really did sue, complaining that the palm trees were a “hidden peril” in the neighbor’s property and that he had thus breached his duty to little Peter. The Robles said the little boy was an “invited guest,” and thus the Severyns had a duty to warn the kid about the hidden dangers of sharp palm fronds.

The Court of Appeals disagreed, patiently explaining to a lawyer who may well have slept through the first year of law school how the status of the person on the landowner’s property determines the duty of care the owner owes. The Court quite reasonably found that the palm trees were anything but “hidden.” Even if the Severyns had been sloppy in trimming the palm tree – something that had not been established – the negligent trimming did not make the trees appear deceptively safe. Even Petey’s dad had told the boy to be careful when playing at the Severyns (as if we didn’t have that warning go in one ear and out the other countless times during our youth).

Sure the boy was only three years old, the Court said, but even taking his tender age into account, the Severyns did not owe him a duty greater than the one they discharged toward him.

We have railed about it before, the American perception that once a victim has been injured, a jury is duty-bound to look around the courtroom for someone who should be made to pay for it. There’s no discounting the sadness of seeing someone accidentally killed or maimed for life, but as the late President Jimmy Carter pointed out, life is often unfair.

Robles v. Severyn, 504 P.2d 1284, 19 Ariz. App. 61 (Ct.App. Ariz. 1973). Peter Robles, a 3-½ year old, was playing at a neighbor’s house with permission when he somehow impaled his left eye with a sharp palm frond. No one saw the accident, but the boys had been playing among the trees when it happened. The palms were in a row alongside a fence at the border of the Severyns’ property, with short, squat trunks and narrow, long fan leaves.

Peter’s parents sued the Severyns to recover for injuries Peter suffered as a result of a “sharp palm frond penetrating his left eye” while he was playing on the Severyn property as an “invited guest.” The complaint alleged that the palm trees “had a misleading, hidden, and dangerous defect to a child of tender years, which danger defendants had specific knowledge of,” and that it “constituted a hidden trap to children playing in the area.”

The Severyns got the case thrown out by the trial court on summary judgment. The single question on appeal was whether the trial court erred in doing so.

Held: Dismissal was proper. A landowner’s duty to a person on his property is determined by that person’s status. The evidence shows that young Peter was a social guest. In Arizona, a social guest is not an invitee but merely a licensee despite the fact that he is on the premises pursuant to an invitation from one in possession. The general rule is that one who goes upon another’s property as a gratuitous licensee must take it in the condition he finds it and must assume all risks incidental to such condition. This rule applies to children as well as adults, and to natural as well as artificial conditions. The owners of the premises owe no duty to a guest other than to refrain from knowingly letting him or her run upon a hidden peril, or wantonly or willfully causing the guest harm. However, the rule is that a host who knows of a concealed danger upon the premises is guilty of negligence if he permits the guest, unwarned of the peril, to come into contact with that danger, and he may be held liable to the guest for an injury thus sustained.

Palm trees can provide the unsuspecting with an unpleasant time.

The Court held that the “hidden peril” doctrine did not apply. The trees were neither hidden nor did they have a deceptive quality. The accident occurred during daylight hours and the trees were clearly visible. Peter had been cautioned by his father before to be careful playing. The Court said that even if it assumed that the Severyns were negligent in failing to trim the branches, such a failure did not give the trees a deceptive or innocent appearance. If a dangerous condition existed, the Court held, it was an obvious one, and the Severyns thus had no duty to warn. The Robles stressed Peter’s age, arguing that a 3-year-old child could not have realized that these trees were dangerous. While the Court admitted that it was true, it did not believe that “all circumstances giving rise to a possible danger to a child create a factual question as to whether a ‘hidden danger’ exists. One would have to ‘childproof’ his property if such were the case.”

The Court ruled that while the care to be taken by the owner or occupant must be commensurate with the danger to, and with the immaturity and inexperience of, the child to be protected, any requirement in this respect must not be so onerous as to make the ownership or possession of property burdensome instead of enjoyable. The use of property should not be burdened with the need to take precautions against every conceivable danger to which an irrepressible spirit of adventure may lead a child. There is no duty to take precautions where to do so would be impracticable, unreasonable, or intolerable.

– Tom Root

Case of the Day – Monday, August 18, 2025

Posted on August 18, 2025 by TLRoot tagged.

GIVE ‘EM AN INCH …

We continue our tour through the House of Bad Neighbor Horrors today (see our post from Wednesday) with a look at neighbors Paula A. Luckring and Christopher Blair.

An old legal adage holds that “a bad settlement is better than a good lawsuit.” Paula Luckring sued her neighbor, arguing that branches from his trees overhung her property, and that they were doing all the kinds of things trees do – you know, dropping twigs and leaves, leaking sap, growing roots, just normal tree stuff. Paula insisted that she was entitled to something north of $13,000 because the trees were “trespassing” on her property, making claims that sounded a lot like her lawyer had read Fancher v. Fagella.

Neighbor Chris Blair counterclaimed, pointing out that if Paula wanted to really get technical, her deck – which she claimed was being damaged by his trees – was built partly on his property, and it should be removed.

The case looked like the trial would be the Saturday night main event, but alas … before trial, the parties settled. There’s nothing wrong with that. Civil actions are just a formalized means of settling disputes, a little more complex and fact-driven than “rock, paper, scissors,” but often, it seems, just as random. When the parties find a means short of a full-blown trial to resolve things, time and money are saved, and people are able to get on with their lives.

That must be what Chris thought, because he settled the case with Paula before trial. He agreed to give Paula title to an 11-foot strip of his own land and to build, at his own expense, a fence marking the new boundary line between their properties.

We have to hand it to Chris. He apparently was a Bible scholar, and remembered Matthew 5:39 – 40: “But I say to you, do not resist an evil person; but whoever slaps you on your right cheek, turn the other to him also. If anyone wants to sue you and take your shirt, let him have your coat also…” For that matter, Neville Chamberlain thought that giving Hitler Czechoslovakia would keep the brown shirts out of Paris.

We’re not saying Ms. Luckring was evil, nor would we ever equate her territorial ambitions with those of the Third Reich. For a concession to be effective, however, the party being appeased has to be acting in good faith. This is rarely the case. Rather, the problem is that the party being appeased has probably acted in bad faith in order for affairs to get to the point that appeasement is necessary. Hitler had the “Anschluss.” Without it, Chamberlain wouldn’t have needed to make a deal. Putin started by taking South Ossetia from Georgia. Then, he grabbed Crimea, and now he is busy trying to take Ukraine (if not Moldova, Estonia and the other Baltic states as well). History has shown us that appeasement doesn’t work because appeasement only convinces the appeased party that bad conduct pays. And just two years ago today, notwithstanding years of negotiations, the Taliban just went ahead and took it all.

Ask Chris Blair about appeasement. Chris thought he had bought peace by giving away a piece of this land. But when Chris hired a fence company to build the agreed-upon fence along the new boundary, Paula Luckring refused to let the contractor set foot on her property during the construction process. It’s hard to build a fence from one side only. To further appease Ms. Luckring, the contractor built the fence 13 inches into Chris’s side of the boundary. After that, when Chris’s caretaker (Chris himself had severe Parkinson’s, a condition that undoubtedly only goaded Ms. Luckring into further predations) would try to use a weed whacker on the grass growing in the 13-inch space between the new boundary and the fence, Ms. Luckring demanded that he do the cutting without setting foot on her property. However, she magnanimously conceded, she would cut the grass on the 13-inch strip… if Chris gave her an easement for the 13 inches of space.

The trial court was drawn back into what it called the “predictable drama” that arose from Ms. Luckring’s demands. It told Paula that she had to pay to have the fence moved and reinstalled right along the boundary. No 13-inch “no man’s land.” No easements. No more trespassing actions.

Naturally, Ms. Luckring appealed. The appellate panel was having none of it. It held that “a mere cursory review of the Plaintiff’s pleadings and her own testimony … adduces an ongoing pattern of bullying of a Defendant who granted her the moon and the stars in acquiescing to her unceasing demands, and yet was confronted with demands for more …” It’s not unheard-of for a plaintiff to cripple her case by her own testimony, but to prove yourself to be a bully?

Under the circumstances, making Paula pay to relocate the fence seemed to the court to be a lot like justice. Approximate justice, but still justice.

Luckring v. Blair, 2014 Pa. Dist. & Cnty. Dec. LEXIS 3 (Com.Pl.Ct. Pennsylvania, Dec. 3, 2014). Paula Luckring sued neighbor Christopher Blair, alleging that his pine and sycamore trees trespassed onto her property, causing public safety issues that had been presented to the local township authorities. She additionally complained of damage caused by “tree sap, needles, branches, cones, roots” constituting a “nuisance” because the trees overhung, fell upon, and grew under her property which caused damage such as a broken window, damage to a deck and stamped concrete, as well as clogging a sewer line and causing landscape damage. She demanded $13,369 for cutting down or trimming the offending trees and restoring her property to its previous condition.

Blair countered that he had given Luckring permission to trim the sap-dripping white pine tree all the way back to its trunk, but her trimming caused the sap to drip excessively because there were no tree branches remaining to catch and absorb its flow. He also said that she had previously accepted his written permission and cut down the encroaching white pine tree at her own expense. He argued she should not now be able to renegotiate that contract. He also counterclaimed, alleging that Luckring was trespassing on his property with her deck and retaining wall.

The parties settled the case before trial by signing a settlement agreement that called for Blair to grant title to Luckring, free of charge, to an 11-foot strip of his own land and to build, at his own expense, a fence marking the new boundary line between their respective parcels. Nevertheless, the parties were back in court a year later seeking to resolve the predictable drama ensuing from the Plaintiff’s abject and literal refusal to allow the fence company to set foot on her newly acquired property in order to erect the structure. The contractor then built the fence thirteen inches inside the Blairs’ side of the new property line in order to appease the Plaintiff in that regard. Adding further insult to injury to Blair, who suffered from severe Parkinson’s Disease, Luckring demanded that when Blair cut the tall grass and weeds on the 13-inch strip of his property on Luckring’s side of the fence, such work must be accomplished without setting foot on her land. She offered to cut the grass and weeds herself, but only if Blair granted her an easement to that additional piece of his property.

The appellate court enforced the settlement agreement by ordering Luckring to move the fence to the boundary line of the respective properties at her own expense.

Luckring appealed.

Held: The enforcement of the settlement agreement was upheld.

The appellate panel noted with disdain that after Blair applied for a building permit for the fence in May 2013, Luckring made multiple calls to Haverford Township officials to note her opposition to the fence despite having agreed in the settlement not to oppose in any manner the erection of the fence and to waive any and all objections thereto. She also erected signs on her property pointing in the direction of Blair’s residence that said “No Trespassing,” and put up a sign on her property ordering the fence company not to install the fence all the way to the sidewalk, contrary to Blair’s instructions. She also initiated a verbal confrontation with Mary Blair, in which she accused the Blairs of being “too cheap to get their own survey”, even though the settlement agreement required Luckring to bear the expense; and she hammered stakes into the ground on Blair’s property and – after the fence was built – she entered Blair’s property to “wash” the brand new fence.

Whatever Ms. Lucking might do for a living, we’re betting it’s not driving the Welcome Wagon.

The Court noted that when Luckring was asked at the hearing to expound upon her belief that the parties must strictly adhere to the terms of their settlement agreement regarding the need to care for the portion of the Blairs’ land outside the fence line and abutting her property, she replied that if the caretaker stepped on her property during this process, he would be trespassing and that she would sue.

The Court concluded that a “mere cursory review of the Plaintiff’s pleadings and her own testimony at the Hearing on the Defendant’s Petition to Enforce Settlement adduces an ongoing pattern of bullying of a Defendant who granted her the moon and the stars in acquiescing to her unceasing demands, and yet was confronted with demands for more. The parties’ Settlement Agreement and Release provided for a fence to be built by the Defendant on his side of the new boundary line of the neighboring properties, albeit without trespassing on the Plaintiff’s land. A reasonable interpretation of this requirement would result in the edge of the fence being placed on the edge of the Plaintiff’s new property line and not crossing this point of demarcation. Moreover, the momentary intrusion involved in its construction would be of no concern whatsoever with regard to the fence contractor’s presence on the Plaintiff’s side of the boundary line in order to complete the effort. However, the Plaintiff took the extreme position that enforcement of these provisions must be strict, and refused to permit the fence installer to step on her property to undertake its construction in the place designated by the Defendant in express accordance with the parties’ stipulated Agreement. As a result, the fence contractor took it upon itself to erect the structure thirteen inches inside the Defendant’s side of the boundary line, instead of on the line itself, in order to placate the Plaintiff. The Plaintiff then added to this mix of unreasonableness and bad faith by complaining that the Defendant’s landscaper was stepping on her property when clearing weeds and high grass growing on the 13-inch strip on her side of the fence that remained in the ownership and possession of the Defendant.”

Calling Luckring’s conduct “obdurate and [in] bad faith,” the Court concluded that Luckring had not acted in good faith, and the trial court’s order that she pay to move the fence “was warranted and necessary to achieve justice in this case.”

– Tom Root

Case of the Day – Friday, August 15, 2025

Posted on August 15, 2025 by TLRoot tagged.

THANK YOU, CAPT. OBVIOUS

My five grandkids (and their six parents, but with cute grandkid, who cares about the parents?) vacationed with us again this summer.

We had a great time, and now recall why young adults in their 20s and 30s have young children, and not older adults in their 60s and 70s. But I kept up with the kids, despite several mishaps/

One day, I fell into a hole between two rocks while negotiating a trail that followed a mountain stream. I was carrying my older granddaughter, Mabel, at the time, but I set her down safely as I fell. Besides a barked shin, I was unhurt (just embarrassed).

We got to the trail by boat, and on the way back, I hit a submerged rock with the outboard motor. Afterward, I bumped my head on a floating swimming dock as I swam toward it, doing a backstroke.

It was a great (if somewhat misfortune-studded) vacation. (Still, I did not have to go to the emergency room this year, an improvement over our vacation three years ago – but that’s another story). Nevertheless, my mishaps reminded me of a “well, duh,” doctrine in tort law known as the “open and obvious danger” rule. That hole between the rocks? It was rather open and obvious. The swimming dock? Since I was deliberately swimming to it, it was pretty clearly open and obvious. The submerged rock? Not so much.

The “open and obvious danger” rule provides that a possessor of land is not liable to invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them unless the possessor should anticipate they might be harmed despite such knowledge or obviousness. If the open and obvious danger rule applies, then the land possessor owes no duty to invitees with respect to the open and obvious danger, and he or she therefore cannot be held liable for any injury caused thereby.

The hole between the rocks was so open and obvious that the Dept. of Environmental Conservation could not reasonably anticipate that anyone would step into it while carrying a 3-year-old granddaughter. The submerged rock was out near the middle of the lake and was unmarked and in what appeared to be deep water. The swim raft? Well, you couldn’t miss it.

Let’s say I had followed the trail but, just before the rock, had come to two construction barrels with that bright-orange plastic netting construction crews use stretched between them. And, being kind of obtuse, I stepped over the netting (still carrying my granddaughter) and tripped on it, falling. It is fairly open and obvious that the netting was open and obvious, and I had gotten my just desserts trying to cross it.

Ah, but that did not deter Julie Coburn. When she and her husband set off along a trail in the Kays Creek Parkway that was festooned with signs warning that the trail was closed, they thought, “Nah, it can’t mean it’s closed to us.” Later, when they happened upon two orange construction barrels with netting stretched between them, they remained clueless. Julie stepped over the netting, snagged her foot in the plastic, and fell.

Normally, someone pulling such a boneheaded stunt would slink away to the urgent-care facility, chastened and injured and (I hope) a little bit wiser. But this is America, people! We don’t do that here. And Julie didn’t, either. Instead, she sued the construction company for placing the netting across the closed trail.

Happily, common sense prevailed.

Coburn v. Whitaker Construction Co., 2019 UT 24, 445 P.3d 446 (Supreme Ct. Utah, 2019): Whitaker was hired to install a water pipeline in the Kays Creek Parkway, a recreational area in Layton, Utah. The Kays Creek Parkway contains a number of walking trails that are designated for public use, one of which leads to the pipeline construction site. Whitaker placed a “Trail Closed Ahead” sign at the trailhead, indicating that portions of the trail were closed for construction, and strung orange netting across the trail to deter people from walking to the construction site. Despite the warning sign and the orange netting, people consistently ignored the sign and would take down the orange netting.

In the summer of 2018, Julie Coburn and her husband went for a hike at Kays Creek. Despite seeing the “Trail Closed Ahead” sign at the trailhead, the Coburns assumed the trail was open and continued on. A short distance into the trail, they encountered two barrels on either side of the trail with orange netting strung between them, but both had fallen down and were lying across the trail. Julie admitted the orange netting was a hazard, but she stepped over it anyway. She tripped and fell, hurting her arm and shoulder.

Julie sued Whitaker seeking damages for her injuries. Whitaker argued it did not owe Julie a duty of care under the “open and obvious danger rule” found in the Restatement (Second) of Torts, which Utah has adopted.

The district court and court of appeals agreed with the construction company.

Julie appealed.

Held: The Supreme Court held that the “open and obvious danger” rule kept Julie from recovering a dime.

The open and obvious danger rule provides that a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness. In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to use public land indicates that the harm should be anticipated. There is a special reason for the possessor to anticipate harm when the possessor maintains land upon which the public is invited and entitled to enter as a matter of public right.

This is so because defendants may reasonably expect the public, in the course of the entry and use to which they are entitled, to proceed to encounter some known or obvious dangers which are not unduly extreme, rather than to forego the right. However, even these defendants may reasonably assume that members of the public will not be harmed by known or obvious dangers that are not extreme and that any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid. And this is true particularly when a reasonable alternative way is open to the visitor, known or obvious to him, and safe.

Here, Julie chose to ignore a “trail closed” sign and the orange construction netting barrier. What’s more, she recognized that one could easily fall crossing the netting, but did so anyway. The “open and obvious danger” rule was easily applied, and saved Whitaker from any liability.

– Tom Root

Case of the Day – Thursday, August 14, 2025

Posted on August 14, 2025 by TLRoot tagged.

DANGER TREES, WILL ROBINSON!

No danger trees in the middle of the woods…

In the tree world, a danger tree is generally defined as a tree that (1) is diseased, decayed or injured; and (2) is located in a place where it can hurt people or property if it falls. A dead tree standing in the middle of Winnie the Pooh’s Hundred-Acre Wood is not a danger tree, because if it falls, it won’t hit Pooh’s house or Christopher Robin.

If you’re a public utility, however, you don’t take such a Pollyannish view of danger trees. Instead, a utility tends to define a danger tree the same way real estate agents define houses: it’s location, location, location. To the power company, a tree is a danger tree if it is too close to power lines, no matter what its condition.

Naturally, this leads to plenty of tension. It’s simple math for the utility: if the tree is within x feet of a conductor, it comes down. To the landowner who waxes rhapsodic about his or her silver maple, there’s no justification for removing a healthy, beautiful hardwood just because of where it is standing.

Our sorry plaintiffs today, the Raglands, found out the power company was clearing its right-of-way, and demanded that the utility negotiate with them about leaving some beloved pines. The power company didn’t bother, but instead came through with chainsaws a–buzzing, and removed every tree within 5 feet of a conductor. That was the company’s standard. When the Raglands sued, they hired an expert who testified that the trees removed were young, healthy, and posed no risk to the power lines. In other words, he gave his clients exactly the opinion they hired him to give.

His opinion was downright reasonable and might have even been right (in a policy sense). But being right does not always matter.

Especially in the Internet age (which started after this case was decided), there’s no excuse for failing to check out your expert. The unsuspecting Raglands had hired a guy who used to work for Alabama Power Company. When he did, he based his opinion solely on tree height, the standard the power company used.

After the expert’s past conspired to throw shade on the opinion he had given the Raglands, the trial court unsurprisingly found that the power company’s distance-to-transmission-line standard was the proper one to employ. On appeal, the Supreme Court of Alabama agreed.

The Supreme Court held that the beauty of Alabama Power’s standard was that it was so easy to use. If you use the Raglands’ proposal to measure age, health, size, and some mushy opinion testimony on how likely the tree was to fall on power lines, there would be no end to litigation. No one wanted that (except for the lawyers, of course, who slobber at the thought like Pavlov’s dogs at the sound of the bell). The power company’s simple distance-to-conductor standard was easy for homeowners and utilities to understand and apply.

The power company’s trimming of Raglands’ trees based on distance-to-conductor was held to be proper.

Alabama Power Co. v. Ragland, 406 So.2d 363 (Sup.Ct. Ala. 1981). The Raglands had a two-acre plot near Bessemer next to land on which Alabama Power had a right-of-way and on which it ran three high-voltage transmission lines, the closest of which was only a few feet from the Raglands’ property. When building his house, Mr. Ragland left some pine trees standing that blocked the view of the power lines from his house. Alabama Power gave him notice that the company would be cutting trees along its right-of-way.

Mr. Ragland called an attorney, who told him to have Alabama Power call him before cutting the trees. Alabama Power did not, but instead proceeded to cut down 15 trees and top two others. Ragland sued Alabama Power for trespass.

After the trees were cut, Mr. Ragland hired a forester who inspected the stumps and other conditions of the Raglands’ property. He testified that these trees were not tall enough to pose a concrete threat of injury to the transmission lines. But the forester also had worked for Alabama Power, and when he did, he considered height almost exclusively. When working for the Raglands, he also considered the health of the trees, neighboring trees, and weather conditions.

Danger tree? This one qualifies by anyone’s standard.

Alabama Power’s standards for clearing trees along transmission lines were to cut any tree that would fall within five feet of the nearest conductor. Alabama Power’s 1975 records showed 1,807 tree-caused outages on 5,000 miles of distribution lines and five tree-caused outages on 500 miles of transmission lines. Nevertheless, the trial court found for Ragland, holding that Alabama Power had not shown the trees it removed were “danger trees.”

Alabama Power appealed.

Held: The Supreme Court reversed. It found that if Alabama Power had to make a tree-by-tree determination of “concrete threat of injury” based on the health of the tree and other arguable factors, the efficiency of tree-clearing operations would be substantially reduced and outages would probably increase. Alabama Power would also be subject to suit from any disgruntled property owner who does not agree that his trees pose a threat to neighboring lines.

On the other hand, if Alabama Power continued using its 5-foot rule, property owners would have a definite standard by which to trim their trees. Thus, the trial court’s jury instruction defining “danger trees” as trees which — by reason of size or condition and contiguity to power company right-of-way — involved a concrete threat of injury to power company transmission lines placed too great a burden of proof on the power company, which had a right and authority to remove trees outside of its right-of-way as might injure or endanger by shading, falling or otherwise any of its works.

Alabama Power thus could properly rely on its 5-foot rule, which allowed it to cut any tree that would fall within five feet of the nearest conductor.

– Tom Root

Case of the Day – Wednesday, August 13, 2025

Posted on August 13, 2025 by TLRoot tagged.

PEOPLE BEHAVING VERY BADLY

The late Jeffrey Epstein, Ye, Vladimir Putin, Yahya Sinwar, George Santos, Robert Menendez, even President Trump (whose increasingly shrill insults blast people who are (or were) supporters)… we’ve had a belly full of people behaving badly irecently.

Like we need this, here are a few more:

Welcome to the neighborhood …

Meet the Cooleys, neighbors who were so bad as to drive the Court to write a plaintive plea that everyone should try to get along. How bad, you ask? Well, Mrs. Cooley tried to run down her neighbor with her car. She built a chicken-wire spite fence. Her son threatened to beat up his elderly neighbor (who had just had a heart transplant). Yes, that bad…

This case is one of those rare fact-driven trial court decisions worth reading just to get the flavor of the Court’s incredulity that people could carry on like this. At one point, the judge observes that “[o]ne could almost use that well-worn lawyer’s expression ‘I rest my case’ after merely viewing Mrs. Cooley’s Exhibit 12, which in gruesome detail sets out the ‘this is my property’ syndrome.” The court finally issues a 15-point injunction ordering the Cooleys to stop doing 12 acts of malice, and the Quarantas to refrain from three others. It found application for a seldom-used Connecticut statute prohibiting structures built out of malice, banning a chicken-wire monstrosity erected by the Cooleys as a “spite fence.” Finally, it found the often-alleged but seldom-proven “intentional infliction of emotional distress” tort to have been shown here and ordered the Cooleys to pay the Quarantas’ legal fees.

At the end of its opinion, the Court ordered each party to read his final words out loud. Those were a plea by the Court for these people to rewind the clock to the beginning and try to get along. The Court’s frustration and sense that no matter what the law said, nothing would stop the bickering, is evident in the opinion. Not great moments in the development of the law … just a neighbor law tale worth reading.

There was even a “spite fence” in the story …

Quaranta v. Cooley, 2007 Conn. Super. LEXIS 3199, 2007 WL 4577942 (Conn.Super. 2007). People behaving very badly. You know how the opinion’s going to go when the Court begins by quoting an old Supreme Court opinion that “… it is the bickerings, spite, and hatred arising from neighborhood quarrels; it is difficult for any legislation to remedy such evil.”

The Quarantas were senior citizens who had lived in the same home for 26 years. Mr. Quaranta was on a life support system and eventually had a heart transplant. The Cooleys were younger than the Quarantas, but had a 25-year-old son and health considerations of their own. When the original landowner subdivided his property into the lots which became the homes of the Cooleys and Quarantas, there was an existing paved driveway to the Quarantas’ home from the street, bordered with a split rail fence and a grassy area on each side. The landowner created by deed two 25’ easement roads (for a total width of 50 feet) over the same area on which his driveway existed. Each lot owned 25’ of the road, and each owner had the right to pass over the 25 feet owned by the other. The practical effect of these easements is to allow all three parcels of land to share access to the public street with one common driveway. Although the neighbors couldn’t see each others’ homes, they ended up in a continuing vitriolic spat in which each side accused the other of using the “F” word, raising the middle finger on numerous occasions, and other immature and harassing behavior, such as the noisy racing of vehicles, the blowing of car horns and trash placement fights.

The Court held that the Cooleys, who were New York City dwellers unused to suburban life, utterly lacked credibility on the stand. It found that the battle began with Mrs. Cooley delivering a letter to the Quarantas within 30 days of her having moved in, in which she told them their lampposts and driveway sat on the Cooley property. Then, the Cooley son began throwing keg parties at the Cooley home, with noisy partygoers parking all along the right-of-way. The parties were noisy and annoying, and afterward, the Quarantas found themselves cleaning up empty bottles and cigarette butts. The parties were held about four times a month. The Quarantas complained without effect. The grand finale was the Cooley Halloween Party in 2005. When Mrs. Quaranta went out in her nightgown to ask for peace and quiet, the partygoers cursed her – one exposing himself to her – and urinated toward her. After this, Mrs. Cooley and her daughter, took to riding at high speed over the grassy area, even leaving deep tire tracks. Although the Cooleys’ trash pickup was on Friday, they would put their trash out all week long, at a spot where it was viewable only from the Quarantas property. Animals got to the trash during the week, and the Quarantas did the cleanup. Mrs. Cooley would drive fast down the mutual passage raising dust and her middle finger while blowing her horn the entire distance. She overdosed her own lawn with weedkiller, killing all of the grass ostensibly so she wouldn’t have to mow. Her lawn, of course, fronted on the Quarantas’ lush and meticulous yard.

There were countless verbal confrontations as well. The Cooley son yelled at Mr. Quaranta, a man past 65 with a heart transplant, “Hit me! I’ll wipe the ground up with you.” Previously, another judge had ordered the parties to refrain from intimidating, threatening, harassing, stalking, assaulting, or attacking each other, and to refrain from entering the property of the other, until the dispute was tried and resolved on the merits. After that, the Cooleys built an ugly chicken wire fence on the side of the passage that fronts the Quarantas’ house only. The trial court was called upon to mediate the dispute.

Held: The Court found for the plaintiffs, the Quarantas. It held that Mrs. Cooley’s testimony was so bad that it noted that “[o]ne could almost use that well-worn lawyer’s expression ‘I rest my case’ after merely viewing Mrs. Cooley’s Exhibit 12, which in gruesome detail sets out the “this is my property” syndrome. The court found it unsurprising that she took an axe to – and threatened to destroy – anything, even things of beauty, found on her property. These items included a lamppost, (that provided her light with the Quarantas paying for the electricity), fences (that enhanced the entrance to both their properties), a beautiful birch tree (with no professional evidence that it had to be cut down), a ceramic nameplate, (which her son admitted smashing) and even shrubbery. “Such warmth!” the Court said. “And it shows in the fifty-plus exhibits.”

The Court held that the chicken wire fence was maliciously erected, based on its character, its location, and the obvious state of mind and motive of the defendant. It ordered the fence removal pursuant to §52-480 of the Connecticut Statutes. It found that the Cooleys had exceeded the use of the right of way in a vindictive and malicious manner so as to harm the Quarantas, rather than just for ingress and egress. It held that a number of the Cooleys’ activities on this simple right-of-way were, “in layman’s terms, ludicrous, and in legal terms harmful, unnecessary, illegal and unreasonable.” It issued a detailed injunction spelling out 12 acts in which the Cooleys were not to engage, and 3 acts in which the Quarantas were not to engage.

A happy ending? Not with these folks …

Based upon the totality of the evidence, the Court held that the Cooleys directly and indirectly negligently and intentionally caused severe emotional distress to the Quarantas, and knew or should have known that their acts would result in severe emotional distress to the plaintiffs. In the case of Mr. Quaranta, the distress was found to be life-threatening. The Cooleys evidenced a reckless indifference to the Quarantas’ rights and showed an intentional and wanton violation of these rights. The injury was inflicted maliciously, with evil motive and violence. The Court awarded the Quarantas their legal fees as damages.

The Court took the unusual step of ordering a final statement to be personally read by the parties. It begged both parties to “go back to the day the Cooleys moved in and put everything back the way it was. Let us dig a hole and bury all of the ill feelings and hatreds that are all consuming.” The Court, writing this on Thanksgiving Eve, ended by noting that “[t]he person whom many people honor in this Holiday Season forgave everyone. Isn’t it time that the Quarantas and the Cooleys caught the spirit of the Season?”

Postscript: They did not. Rather, they were back in court repeatedly between 2007 and 2013, arguing over contempt motions filed against each other. Oh, the humanity …

– Tom Root

Case of the Day – Tuesday, August 12, 2025

Posted on August 12, 2025 by TLRoot tagged.

OUTTA SIGHT

You know the kind… never owned a saw, never used a set of hedgeclippers. Woodstock happened 54 years ago, but this guy’s head is still on Yasgur’s farm.

It’s getting toward late summer now. The high school football season is about to start, Labor Day is approaching, Christmas ads will begin in a fortnight… but the grass, trees, shrubs and weeds are still growing.

You, of course, being a conscientious type, have been taking care of your yard. Your grass is cut, your trees are trimmed, your sidewalk is neatly edged. But you’ve got a neighbor – we all have that kind of neighbor – who’s not as diligent.

His or her grass is high, green plants are growing in the house gutters, and bushy branches overhang sidewalks, streets and yards. We know – we’ve whacked our heads on more than one branch that should have been trimmed before it became a hazard on the sidewalk.

So what kind of duty does Joe Sixpack have to people passing on the sidewalks or streets?

Iowa says not much. Low-hanging limbs obscured sightlines on a curve, and motorist Marilyn Fritz claimed the obstructed line of sight caused her to run into another car. She sued the County for not maintaining clearance so drivers could see where they were going. The County, in turn, sued landowners Eugene and Doris Norton for having an inoperable chainsaw (that is, for not trimming their trees).

The Court grappled with the question of who had the duty to maintain the sightlines. It noted that Iowa had a policy of encouraging safe travel on the roads, but also had a policy of encouraging trees. So that analysis wasn’t very helpful. Although Dallas County urged the Court to stick the Nortons with the duty to trim, the Court was clearly troubled that if it obligated the owners to maintain the sight lines, those folks – having no expertise in determining what sight lines were appropriate – would have no idea what was right and what was wrong.

The County, on the other hand, did have the expertise, having as it did a highway department staffed with trained professionals. The Court ruled that the fact convinced it that the County should be the party that is most responsible for maintaining highway sightlines.

Plus, given its taxing authority, the County undoubtedly had more money. Cynical of us, you say? Cynicism is not a synonym for the word “wrong.”

It was important to the Court that the Nortons had not planted the trees, but rather they were “natural.” Also, while the branches were obscuring sightlines, they were not actually blocking anyone’s way down the road.

Fritz v. Parkison, 397 N.W.2d 714 (1986). Trees growing on the property of Eugene and Doris Norton limited the sight distance of two drivers whose vehicles collided on the curve. Plaintiff Marilyn Fritz sued Dallas County for failing to trim vegetation on the inside of the curve that obstructed the vision of each driver of the colliding vehicles. Dallas County, in turn, sued Eugene and Doris Norton, alleging that trees, bushes, and shrubs growing on Norton’s land blocked the view of each oncoming motorist and that the Nortons were liable for failing to remove the sight obstruction caused by this vegetation. The question presented to the court is whether landowners whose property abuts a curve on a rural road are potentially liable in tort when trees growing on their property limit the sight distance of drivers whose vehicles collide on the curve.

Held: The Court agreed that, but for the trees growing on the Nortons’ land, motorists approaching the curve from the north and from the east would be able to see each other for a longer period of time before meeting. The Court found that limbs on a few older trees growing on the Nortons’ land overhung the road’s right-of-way but not the traveled portion of the curve and that the Nortons had planted a few fruit trees along the roadway.

The Court identified two well-developed and clearly recognized public policies implicated in this case. First, in light of the increasingly mobile society, highways must be kept free from obstructions and hazards. Indeed, courts have at various times imposed liability against individuals for allowing a highway to become obstructed or hazardous. The second policy implicated by this action is the well-established state goal to encourage the growth and cultivation of trees and discourage their wanton destruction.

Here, the Court found that Nortons’ trees did not physically obstruct or intrude upon the traveled portion of the road, and neither directly impeded nor constituted any kind of latent defect that without warning might fall across the road or onto a passing vehicle. In this case, the Court held that the owner of land abutting curved highways owed motorists no duty to remove trees located on the landowner’s property where the trees did not actually obstruct the right-of-way, even if the trees were planted by the landowner.

The Court further held that naturally occurring or artificially created conditions on a landowner’s property should be taken into consideration in deciding the case, and whether the property is located in an urban or rural area is an additional consideration to determine liability.

– Tom Root