Case of the Day – Friday, June 20, 2025

Posted on June 20, 2025 by TLRoot tagged.

A SQUIRRELY CAUSATION THEORY

Oh, if it were only that easy …

In the world of negligence, it’s not enough that the person who screws up – referred to generally as the “actor” – is stupid. After all, the world is chock-a-block with stupidity, and if being an imbecile were enough to make one liable, we’d all walk through life with our checkbooks perpetually open.

No, idiocy is not enough to create liability. Instead, the stupidity must be the “proximate cause” of the damage suffered by the plaintiff. For all of you proponents of chaos theory, you can consider it the obverse of the “Beijing Butterfly Effect.” You remember the illustration: the beat of a butterfly’s wings in Beijing today sets a minuscule air current in motion, which sets other air in motion, and so on nearly ad infinitum, until the air currents set into circulation cause a thunderstorm a week later in New York City. Small changes in input result in big changes in output. Just ask Edward Lorenz.

Lorenz was a scientist, not a lawyer. Had he been an attorney, he might have sued the butterfly because he got wet hailing a taxi at 52nd and 5th Avenue. But the law wouldn’t have been with him, because his damages – a soaking-wet bespoke wool coat and trousers – were not proximately caused by the butterfly’s erratic flight around the Forbidden City seven days prior. It’s the lesson every first-year law student learns in Palsgraf v. Long Island Railroad, a now-legendary tort case from pre-Depression New York.

$Chaos isn't such a bad thing ... the theory gave us Benoit Mandelbrot's beautiful and repeating fractals.$

Chaos isn’t such a bad thing … the theory gave us Benoit Mandelbrot’s beautiful and repeating fractals.

The facts were almost Rube Goldbergian. Mrs. Palsgraf – the Countess of Causation herself – had just arrived at the station to catch a commuter train. A passenger carrying a package, while hurrying to board a moving train, appeared to two Long Island Railroad employees to be falling. The employee standing on the passenger car steps tried to pull the passenger into the car while the other employee tried to push the rider into the car from behind. Their efforts to aid the passenger caused the unlucky fellow to drop the package he was holding. The box – about 15 inches long and wrapped in newspapers – struck the rails in between the cars.

The package contained fireworks, and it, of course, exploded when it hit the rails. The shock from the blast caused a panicked bystander to stumble into a pair of scales, which fell over, striking Helen Palsgraf. Palsgraf sued the Long Island Railroad (of course, because no one else in the chain of causation had any money), claiming her injury resulted from negligent acts of the Railroad’s employee in pushing the passenger onto the train. The trial court and the intermediate appeals court agreed with Mrs. Palsgraf.

The Long Island Railroad appealed the judgment to the Court of Appeals, New York’s highest court. In a celebrated opinion by then-Chief Judge Benjamin Cardozo, the Court held that there was no way the LIRR employee could have known that the newspaper-wrapped parcel was dangerous and that pushing the passenger would thereby cause an explosion. Without a reasonable perception that one’s actions could harm someone, there could be no duty towards that person, and therefore no negligence for which to impose liability. Whether the Railroad employees had acted negligently toward the passenger they manhandled was irrelevant for Palsgraf’s claim, because the only negligence that a person can sue for is a wrongful act that violates his or her own rights. “If the harm was not willful, [a plaintiff] must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.”

This is known as “foreseeability,” a concept that tends to limit liability to the consequences of an act that could reasonably be foreseen rather than to every single consequence that follows. Otherwise, liability could be unlimited in scope, as causes never truly cease having effects far removed in time and space. (This returns us to the wayward Beijing butterfly). Today’s case is a current illustration of what happens when a plaintiff’s lawyer slept through that particular session of tort law class.

The actors were a dumpster, a black squirrel, and a black hole. OK, not a black hole, more like a tennis ball-sized hole that provided the furry critter with access to the dumpster. Ms. Hansen dumped her garbage in the dumpster. The dumped bags startled the squirrel, which had perhaps gotten in the dumpster through the hole. The squirrel leaped from the dumpster in alarm, and in turn startled Ms. Hansen, who fell and hurt herself.

So, who was at fault? Ms. Hansen naturally blamed the condo association and Waste Management for permitting a hole to remain in the lid (perhaps because both of the defendants had insurance). Being students of Palsgraf, the appellate panel made short work of this one, asking how the defendants could reasonably have foreseen that failing to seal a tennis ball-sized hole in the dumpster lid could cause a condo owner to fall down. They could not, of course. Ms. Hansen was out of court.

The squirrel is still on the loose.

Hansen v. Getchell, 70 Mass.App.Ct. 1101, 872 N.E.2d 840 (2007). Sandra Hansen had been a resident of the Beal’s Cove Village condominiums for nearly 10 years. She fell after being startled by a squirrel that leaped from a garbage dumpster she had opened to deposit some trash.

Hansen has owned a condominium unit at Beal’s Cove since 1997. During her years there, Hansen had actually seen animals such as raccoons and squirrels on the property, which is close to some woods. She also had seen animals at Beal’s Cove near a different dumpster, as well. However, this being America, someone had to be at fault, so she sued Getchell, trustee of the Beal’s Cove Village Condominium Trust, and Waste Management, Inc., the waste removal contractor.

Squirrels can be frightening creatures. Just look at the terror on this victim’s face.

Hansen claimed that the dumpster had a hole in the lid the size of a tennis ball, a squirrel-size hole that had been there for weeks and which provided squirrels an unfettered means of access. Her expert opined that the failure to repair the hole in the lid was a substantial contributing cause of her injuries, and she blamed the defendants for not fixing it. The trial court granted summary judgment to the defendants because Hansen failed to establish that the defendants owed her a duty, and she failed to demonstrate a causal relationship between the claimed negligence and her resulting injury.

Held: The dismissal was upheld. The Court of Appeals said that whether the case was analyzed from the standpoint of the defendants’ duty to Hansen or from the standpoint of whether the breach of their duty proximately caused Hansen’s injury, she lost. The requisite foreseeability was absent.

Although there was evidence that the parties were aware that animals frequented the dumpster, the Court held that squirrels and other animals were a naturally occurring condition that the defendants didn’t create. There was no proof that squirrels or other animals that got in the dumpster made a habit of leaping out at unknowing depositors of trash. And even if – given the pesky and mischievous nature of squirrels – the defendants could have foreseen that they would leap from the dumpster, it wasn’t foreseeable that the leap would lead to a condominium tenant becoming injured.

In other words, it was not reasonably foreseeable that, as a direct result of the unrepaired hole in the lid, a person accessing the dumpster would be startled, fall, and become injured. Neither Getchell nor Waste Management, Inc., had a duty to guard against such unforeseeable harm.

– Tom Root

Case of the Day – Thursday, June 19, 2025

Posted on June 19, 2025 by TLRoot tagged.

INEXACTINESS

It’s been a long time, 46 years more or less since law school graduation. Ah, that was a time! For a sweet few months in the spring of 1977, I knew absolutely everything about the law. All anyone had to do was ask me (and sometimes they didn’t even need to ask: I’d just volunteer).

Alas, by the middle of June, a week after commencement, I was cramming for the bar exam and finding out I did not know so much after all. It’s been all downhill since then. The longer I go, the more I’m shocked to discover what I either no longer know or never knew to begin with. Beyond what lawyers should know, many clients are shocked that many learned counselors aren’t as learned as clients imagine lawyers should be, such as being to recite all 50 titles (plus appendices) of the United States Code or recall the dissent in a case decided in Pocatello, Idaho, 42 years ago.

Lawyers get called on all the time to be knowledgeable and thorough in many different areas of the law. That’s why there are law books. And (because we’re over two decades into the 21st Century) databases. And even ChatGPT (if you don’t mind bogus cases containing bogus holdings, but be warned that the judges don’t like it much).

Today’s case reminds us why it’s a good idea for all lawyers, including the most seasoned practitioners, to look things up and review the basics whenever he or she tackles some task not performed that often. And not on ChatGPT, either.

Richard Stafursky and his siblings were squabbling over inherited land. They settled it by Richard taking one chunk of land, and his brother and sister together owning an adjacent one. Richard gave his siblings an easement to cut grass and brush on a 3-acre portion of his land, provided the brush they cut was under 2” in diameter. He had a lawyer draft the easement into the deed, and then he conveyed his land — including the easement — to some tree-hugging nonprofit organization of which he was chairman.

Then the battle began. The tree-hugging group wanted to return the whole tract to nature and told Richard’s siblings they couldn’t cut down any trees when they cut brush. What’s more, the group transplanted native trees in the meadow that was subject to the easement. Finally, the nonprofit sued to get the court to issue a ruling as to what the easement meant.

How’d the lawyer screw it up? Easy. He thought he remembered how to write an easement. Easy-peasy, right? Write down the restriction, what the subservient estate holder was allowed to do or had to put up with. Then bill the client. And take a long lunch.

Had counsel refreshed his recollection of easement law, he would have recalled the nuance. Easements are driven by purpose. That’s black-letter law in Massachusetts. And nothing in the ‘cut no 2″-plus brush’ easement language written into the deed suggested a purpose.

No one seemed to be able to agree on why Richard had given the easement to his brother and sister. When Richard was hauled into court as a witness, he claimed that the easement was just an artifice to help sell the property. The trial court rejected his explanation as meaningless at best and a fraud at worst. Then Richard took a different tack, claiming there was no purpose to the easement whatsoever. The brother and sister said the purpose was to preserve their view. The lower court had to find some purpose in order to enforce the easement and thus decided the brother and sister’s explanation was the one that made the most sense.

The Massachusetts Court of Appeals upheld the decision, having no problem with the notion that the easement was a “view easement” (despite the apparent fact that Richard, who was trying to stick it to his siblings, denied the easement had a purpose at all). Clearly, the easement’s lack of explanation as to its purpose and its unusual provisions about brush under 2” in diameter left the court in a position of having to provide much more guidance and interpretation than should have been necessary. In fact, had the easement been properly drafted, there would probably have been no lawsuit to begin with (assuming, of course, Richard had not wanted to stir things up in some other mischievous manner).

As the lower court quite rightly noted, all of the problems could have been avoided if the lawyer drafting the easement had shown as much care in stating the reason for the easement as he did in describing the limitations on what could be done.

World Species List-Natural Features Registry Institute v. Reading, 75 Mass.App.Ct. 302, 913 N.E.2d 925 (Ct.App. Mass. 2009) Richard Stafursky, the previous owner of some property that included a 3-acre tract, granted his brother-in-law and sister, Jim and Sandra Reading — the owners of a next-door parcel — an easement permitting them “to enter on to the [three-acre] parcel [subject to the easement] for the sole purpose of cutting grass and brush no larger than two (2) inches in diameter when measured one (1) foot from the ground, excluding any cutting of grass and brush on wooden land as shown on said survey of the three-acre easement.” At the time the easement was granted, the 3-acre parcel consisted of two open meadows with a wooded area that was not to be cut in the middle. Richard deeded his land to the plaintiff Institute, a nature conservancy trust that he founded, which intended the return the whole large tract to its natural conditions.

Shortly thereafter, the Institute demanded that the Readings give advance notice before exercising the easement, that the neighbors not cut any trees (even those within the size limitation) and that the neighbors not remove any trees the Institute had transplanted to the area. The Institute contended that the sole purpose of the easement was to enable Richard to sell his property. The neighbors replied that the purpose of the easement was to enhance their view and that they had acted within their rights as beneficiaries of the easement by cutting within the cutting area to maintain that view, and that the plaintiff does not have the right to transplant trees or other vegetation into the cutting area.

Held: The easement was a “view easement” and the neighbors had the right to exercise it. The Court said that “we do not consider it dispositive that the easement language here does not explicitly state that the purpose of the right to cut vegetation is to permit the benefitted landowner to enjoy the view. The purpose and effect of the view easements are not simply to limit the uses that the plaintiffs can make of their own property. Rather, the view easements here have taken on the defining characteristics of an affirmative easement by conferring on the defendants the right to enter and use land in the possession of another, and we conclude that this fact is dispositive.”

The Court noted that the limitation on cutting only grass and brush that was less than two inches in diameter was consistent with the circumstances of the grant of the easement, “representing a compromise between the desired uses of the easement property – as an open meadow for a view on the one hand and the potential restoration to a natural landscape on the other.”

The Court put a stop to World Species’ attempts to regulate the easement. First, the Court held that the word “brush” in the easement language included small trees. World Species could not stop the cutting of trees, nor could it defeat the easement by transplanting trees with a trunk larger than 2 inches. The Court said to allow this “conduct is inconsistent with Readings’ view easement. The easement area would become reforested if World Species were permitted to transplant trees of that size onto the easement area as such trees would exceed the dimensions of vegetation that [the Readings were] allowed to cut, thereby creating a condition that would eventually cause the view to disappear.”

The Court did agree with the Land Court judge that the easement grant had to be exercised regularly. That is, the Court said, the “Readings must use it or lose it. If [the Readings] do not regularly cut vegetation, small trees existing on the easement area will grow until they exceed two inches in diameter when measured one foot above the ground and he will no longer be permitted to cut such vegetation. Over time, the land will become reforested and the Readings will lose the view benefit… derived from the easement.”

– Tom Root

Case of the Day – Wednesday, June 18, 2025

Posted on June 18, 2025 by TLRoot tagged.

YEAH, WELL, THEY WERE UGLY TREES…

When the contractor building an interstate highway interchange needed some space to park bulldozers, the state highway department asked Mr. Baillon for an easement. Being justly proud of his scrubby little trees and stunted bushes, he refused.

A couple of volunteer oak trees and some forsythia bushes are no match for a Caterpillar D10, so the contractor, Carl Bolander & Sons Co., went ahead and used Mr. Baillon’s land anyway. But it turns out a Caterpillar D10 is no match for a Minnesota trial court. Mr. Baillon sued and won.

But he won what? The trial court judged his damages by the diminution in value of his land. That is, how much less is the scrawny strip of real estate worth with the scrub trees gone? Not much, the Court said, giving Mr. Baillon just $500.00.

Mr. Baillon appealed. He argued he had wanted the trees and bushes as a sound barrier between himself and the road. Also, he should have gotten treble damages because of the intentional trespass.

The appeals court sort of agreed. It held that the measure of damages for the loss of trees — because they weren’t particularly desirable as shade trees or ornamental trees — was the reduction value of the real estate. Clearly, however, treble damages should be assessed under Minnesota Statute 561.04, Minnesota’s wrongful cutting statute, because the trespass was anything but casual.

This type of damage calculation, well known to contract law students who read Peevyhouse v. Garland Coal Co., is intended to avoid economic waste. The thinking is that the courts won’t order restoration of the property if the cost exceeds the reduction in value caused by the conduct. But at what price to freedom? Mr. Baillon didn’t want to sell his property; he wanted his trees, pathetic though they might be. The fact that the marketplace might not share his desires shouldn’t matter all that much: it was his land, and he should be able — within broad parameters — to keep it as he likes. Letting the bulldozer operator off the hook for the intentional trespass by not requiring that the land be restored to what it looked like before the trespass, even if that cost ten times the difference in real property value, seems to us to not accord Mr. Baillon’s rights the respect they deserved.

Baillon v. Carl Bolander & Sons Co., 306 Minn. 155, 235 N.W.2d 613 (Sup.Ct. Minn. 1975). The Highway Department tried to get Baillon to grant a temporary construction permit, giving the state an easement to go on his property adjacent to where Bolander was constructing I-35. Although Baillon wouldn’t grant the easement, Bollander’s workers trespassed on the land and destroyed a number of trees and shrubs. Baillon wanted the particular trees, in order to preserve a natural and wild appearance, to abate noise from the highway, and to preserve the beauty of the premises. The trial court found that Baillon was damaged by the Bolander company’s intentional acts in the sum of $500.00.

Arguing that the trial court should have applied as a measure of damages the replacement cost of the trees and not, as the trial court held, the diminution in value of the real estate, and that he was entitled to treble damages, Baillon appealed.

Held: The award of damages was upheld in part. The Supreme Court held that the proper measure of damages for the destruction of trees which, for the most part, were quite small, ill-formed and not particularly desirable as shade trees or ornamental trees, but which served to prevent erosion and acted as a sound barrier, was the diminution in value of the real estate rather than the replacement cost of trees (even though the trespass was willful).

However, treble damages should be awarded. The Court held that where the highway contractor — in the course of building the freeway — intentionally cut the trees, which did not protrude over the highway. The trespass was not necessary for the contractor’s purposes and was not “casual.” It was clearly the duty of the trial court to order treble damages unless Bolander’s activities came within one of the exceptions specified in the statute, and those activities clearly did not.

– Tom Root

Case of the Day – Tuesday, June 17, 2025

Posted on June 17, 2025 by TLRoot tagged.

A TREE JUMPED OUT

Watch out for the tree, Mr. Miller …

It was a dark and stormy night when Mr. and Mrs. Miller drove through a mall parking lot, well after the lights were turned out.

Remember malls? They were places the people of the time would visit to buy their goods in places called department stores, tech-y trinkets at The Sharper Image, these round vinyl objects with scratchings that – when put on a turning wheel and rubbed with a needle – emitted music (people of the day called them “records”), intimate apparel (to be worn under their loincloths) at Victoria’s Secret, and books made of actual paper at Waldenbooks. And there were Orange Juliuses, calorie-bomb rolls at Cinnabon, and big parking lots and confusing signs… The ancients loved their malls.

Well, maybe not if you are Mr. Miller. He missed a sharp turn in a mall boulevard and hit an 8″ wide tree. He and his wife were injured, and while it went unreported, the tree probably didn’t fare that well, either.

Trees seldom sue, but the same can’t be said for the Millers. They went after the mall for negligence. To be sure, the tree showed evidence of having been hit before. The mall, however, argued that Mr. Miller was an idiot for driving too fast on a strange, unlit roadway in bad weather. It said he was contributorily negligent in the accident.

Back when this case was decided, I was driving a pretty sharp four-on-the-floor ’67 Cougar and filling its tank for 25.9¢ a gallon. Ah, those were the days… unless you were a litigant suing for negligence. At the time, contributory negligence was still the law of the land in most states. It was a Draconian doctrine: if the victim was negligent even a teeny bit, then he or she couldn’t recover a dime from the defendant, no matter how bad the defendant’s negligence by comparison. Since that time, contributory negligence has been replaced by “comparative negligence” in most places. Comparative negligence is a percentage game: the jury finds that the defendant was, say, 70% negligent and the plaintiff was 30% negligent. The jury award of, say, $100,000 to the plaintiff would then be reduced by 30%, netting out 70 grand for our afflicted party.

Because contributory negligence was so harsh, courts often worked to find a way around its effect. In today’s case, the Court ruled that although Mr. Miller might have been contributorily negligent, that couldn’t keep the passenger, Mrs. Miller, from winning damages from the mall. The mall argued that Mr. Miller should share its liability to Mrs. Miller, but the state had an automobile guest statute that immunized a driver from liability to his or her passengers for simple negligence.

We miss that old Cougar ... and 25¢ a gallon gas ...

We miss our old Cougar … and 25.9¢ a gallon gas …

The mall should have marked the tree with reflectors or something, the Court said. Something to reflect on… like our old Cougar. Now that was a cherry ride.

Miller v. Baken Park, Inc., 84 S.D. 624, 175 N.W.2d 605 (Sup.Ct.S.D. 1970). Donald Miller’s pickup truck collided with a tree located in the Baken Park Shopping Center auxiliary parking lot. The Millers were injured.

Mr. Miller had entered the Shopping Center from West Main Street intending to drive across the lot to reach Canyon Lake Drive, the street on the south side of the Center. They had never traveled over this area before but had seen others do so. It was a misty, gloomy night with wind and gusty rain. Suddenly, a tree loomed in front of them. A collision ensued.

Miller and his wife sued Baken Park, and Baken Park counterclaimed against Miller for negligence. The evidence showed a driver would have had to swerve to miss the tree, and the conditions that night made it hard to see after the shopping center lights were turned off at 10 p.m. The tree, which had an 8” trunk, bore scars from prior vehicle collisions. The trial court considered the question of Baken Park’s negligence, contributory negligence by Miller and other issues it deemed appropriate. The jury found for the defendant and the plaintiffs appealed.

George of the Jungle could have advised Mr. Miller – watch out for that tree

Held: The trial court was reversed. The Supreme Court held that the evidence was sufficient to authorize finding that Baken Park was negligent in allowing a tree without reflectors or other warning devices to remain in an area that not only served as a parking lot for customers of its lessees, but in the area used by them as a driveway. The Court said that a shopping center owner that maintained control of its parking lots and driveway for the express purpose of serving customers of its lessees owed the business invitees of its lessees a duty to keep the premises in a reasonably safe condition. What’s more, the fact that Miller may have been negligent in driving through the dark lot was not imputable to his wife in the absence of her exerting some control or authority over the operation of the car. His negligence thus would not prevent her from recovering against the shopping center for injuries sustained because of the concurring negligence of her husband and a third person.

The shopping center’s counterclaim against Mr. Miller had been dismissed by the trial court. The Supreme Court agreed that dismissal was proper under South Dakota’s guest statute, which immunizes a driver from liability to a passenger unless he was acting with recklessness or willful conduct. The Court held that the statute applied even to accidents on private property, and thus, Baken Park’s counterclaim against Miller had to be dismissed.

– Tom Root

Case of the Day – Monday, June 16, 2025

Posted on June 16, 2025 by TLRoot tagged.

WORKING BACKWARDS

When I was a young, bright-eyed and newly-licensed lawyer, my head full of three years of law school pap topped with a dollop of bar review study, I was befriended by a gnarled old litigator. He dictated his pleadings into one of the old belt-fed Dictaphones late at night, microphone in one hand and a bottle of Fairfax County bourbon in the other. But he sure knew how to litigate.

The second wisest thing he ever told me (the wisest being to drink Fairfax County, which, alas, is available no more) was that a good trial preparation began with writing the jury instructions and working backward. Writing the instructions informed the trial attorney what the jury was going to be told it had to find in order for his client to prevail. Preparation then moved backward, the next step being an outline of his closing argument. Only then, knowing what evidence he would need to have in the record in order to win, did the canny trial attorney assemble the evidence he had and determine what evidence he still needed to find.

It was good advice and great bourbon. Which brings me to Indiana, where they drink whatever Hoosiers drink, and they don’t always start at the end like they should.

For the readers’ sake, I’ll start at the beginning. Eight years ago, in White County, Indiana (about halfway between Chicago and Indianapolis), an Amtrak passenger train on CSX tracks collided with a farm tractor pulling a tank of anhydrous ammonia. Although the tank did not burst, some hoses full of the nasty stuff whipped around, broke the engineer’s window on the locomotive, and sprayed his hand with a small amount of the chemical.

The engineer, Bill Rucker, sued anyone he could find for his injuries, including the driver of the tractor, RDS Farms (which owned the tractor), CSX Transportation, and Amtrak. RDS Farms and the driver argued, among a myriad of other claims, that CSX was to blame for the accident because it violated a state law that required it to keep trees and vegetation trimmed around crossings so that vehicle drivers could see oncoming trains.

Before an actual trial, the issues usually get cut down to size, chiefly through the use of summary judgment. Summary judgment on an issue is granted where there is no genuine issue of fact, and that one party is entitled to judgment as a matter of law.

The tractor driver said he usually stopped unless he could see no train was coming, and he does not know why he did not stop on that fateful day. He said the crossing was a difficult one because trees were “right next to the tracks” and because of the angle at which the tracks intersected the road, it was difficult to see a train approaching from the southeast.”

From this testimony, Bill the Engineer argued that CSX breached its duty to keep the railroad right-of-way clear of obstructions.

Indiana law at the time (but repealed a few years later) required that a railroad ensure that a motorist has an unobstructed view for 1,500 feet in both directions along the railroad right-of-way “subject only to terrain elevations or depressions, track curvature, or permanent improvements.” The law obligated railroads to remove all foliage and obstructions on the right of way that might impair a motorist’s view of an oncoming train. The duty, however, extended only to the railroad’s right-of-way.

Our old-time litigator would have written a jury instruction on the issue of whether CSX Transportation had violated the statute, and thus breached a duty, and he would have noted that his evidence had better include not just proof of the obstructive foliage, but also proof that it was on CSX’s right-of-way. Sadly for Bill the Engineer, his lawyer was not the old-timer. The court found that he had omitted a crucial piece of evidence, that the trees not trimmed were on CSX land.

Bill made the best argument he could make, that CSX had not provided testimony from one of its employees regarding the property boundary lines or right of way. Bill, however, had made the claim that no one could see the oncoming train, and it was thus he was the party with the duty to prove that the trees belonged to CSX.

With no evidence that the trees were on CSX property, there was no proof of a duty to trim or a breach of that duty. Bill’s obstruction claim failed.

Our old friend would be swigging his whiskey and ranting into his Dictaphone: “How could counsel have missed such an easy proof?”

Rucker v. RDS Farms, Inc., Case No. 2:15-CV-272-TLS (U.S. District Ct., N. D. Indiana, August 28, 2017) 2017 U.S. Dist. LEXIS 138363, 2017 WL 3720200: On the morning of June 12, 2013, Dave Allen drove an RDS Farms tractor across a CSX railroad crossing, pulling a disc harrow for tilling soil and an anhydrous ammonia nurse tank. At the same time, an Amtrak train being operated by Bill Rucker was approaching the crossing. Dave did not see or hear the train and drove the tractor onto the crossing.

The lead locomotive struck the disc harrow at about 47 miles per hour, and the impact separated the anhydrous ammonia tank. The momentum of the locomotive carried it through the impact without causing an abrupt stop. The anhydrous ammonia tank was not ruptured, but the hoses were filled with ammonia at the time of impact, and one of the applicator hoses broke the engineer-side window of the locomotive. Engineer Bill inhaled the anhydrous ammonia, and it splattered on his right arm, shoulder, and head.

Dave said the crossing, at which the tracks cross the road from the southeast at an acute angle, is one at which it is difficult for a motorist to see because of trees that are “right next to the tracks.”

At the time, Indiana Code § 8-6-7.6-1 provided that “each railroad in the State of Indiana shall maintain each public crossing under its control in such a manner that the operator of any licensed motor vehicle has an unobstructed view for fifteen hundred (1,500) feet in both directions along the railroad right-of-way subject only to terrain elevations or depressions, track curvature, or permanent improvements.” The law only required railroads to remove obstructions on the right-of-way, and not “obstructions of view which are located off the railroad right-of-way.”

Bill leveled the claim against CSX that it was liable because it had breached its duty under Indiana law to trim trees and vegetation to maintain unobstructed views. Bill relied on Dave’s testimony that the trees were right next to the tracks, but he offered no other evidence that the trees were located within the right of way.

CSX Transportation moved for summary judgment, arguing that Bill has not met his burden to present admissible evidence from which a jury could find that the unidentified stand of trees in the southeast quadrant of the crossing was growing on its right of way. CSX Transportation argued it has met its summary judgment burden by showing an absence of evidence to support Bill’s claim. Bill claimed he had shown a genuine issue of fact existed as to the location of the trees.

Held: CSX was granted summary judgment, and the tree obstruction claim was thrown out. The District Court said that once CSX pointed out that none of the evidence supported Bill’s claim that CSX was responsible for the trees, it was incumbent on Bill to dispute those assertions by “citing to particular parts of materials in the record” to establish the existence of a genuine, material, triable issue.

Bill criticized CSX for not providing testimony from one of its employees regarding the location of the right of way, but the Court pointed out that a defendant moving for summary judgment need not produce evidence of its own. Instead, “when a plaintiff fails to produce evidence, the defendant is entitled to judgment.”

There is no doubt, the Court said, that “one of the basic elements of negligence is a breach of duty” and that Bill “would bear the burden of proof on this point at trial.” Without a duty, there can be no breach, and no recovery for the plaintiff in negligence.

Bill argued he had Dave Allen’s testimony that the trees were “right next to the tracks.” But, as the Court pointed out, Dave Allen has no personal knowledge of the property boundary lines or right of ways, nor did he further define the distance he correlated with “next to” or otherwise provide a more precise location. “Even without the precise definition,” the Court said, “the trees that Allen was referencing are probably not a mystery to the parties—they were in the southeast quadrant of the crossing in some proximity to the tracks. But that did not alleviate the need to determine who owned or controlled the property on which those trees were growing.”

Summary judgment is the moment in litigation where the non-moving party is required to show the court evidence on which a reasonable jury could rely to find in his or her favor. Despite CSX’s claim that the trees at issue were not on its right of way, Bill did not provide any evidence to identify the trees that he alleges created an obstruction or to prove that they were on CSX’s right of way. “Without any credible proof upon which a jury could rely to conclude that CSX had a duty, breached that duty, and the breach caused the accident,” the Court said, “CSX Transportation is entitled to judgment as a matter of law.”

– Tom Root

Case of the Day – Friday, June 13, 2025

Posted on June 13, 2025 by TLRoot tagged.

THE BIKE RIDER “QUACKED” UP

Former Secretary of State Kerry in his more upright days. To our knowledge, Donald Trump didn’t ride a bicycle. Joe Biden rides one of those old-person three-wheelers…

Note to Mr. Quackenbush: Secretary of State John Kerry didn’t sue anyone when he fell off his bike. Neither did President Bush. Or President Biden. (If President Trump would fall off a bike – more likely, fall out of a golf cart – he would probably blame Joe Biden).

But you, Mr. Quackenbush, are no John Kerry. Or George W. Bush. Or Joe Biden. You sued the City of Buffalo because while you were riding your bike on one of Buffalo’s park trails when you hit a hole and fell off.

OK, Mr. Quackenbush, you might be a President Trump, at least insofar as stupid lawsuits go. We’ll give you that.

You sued, and Buffalo – not liking the defendant’s role you chose for it – tried to trample you. The City argued that New York’s recreational use statute immunized it from liability, but the Court ruled that where a government entity is involved — rather than a private landowner — it had to figure out whether the recreational user statute was intended by the legislature to induce the City to open the park, or to increase the use and enjoyment of the particular park by the public. The City maintained that the trail was really kind of like a sidewalk, and the state’s sidewalk injury immunity statute applied.

No dice, the Court said. But Quackenbush kind of assumed the risk, the City argued. Not necessarily, the Court countered. Through it all, the City hadn’t shown it wasn’t responsible for creating the hole, or that it didn’t know it was there.

Now, you’d think that hitting a hole in an unimproved trail on a mountain bike was kind of an unsurprising risk. But, unsurprisingly or not, the appellate court thought the case was good enough to go to trial.

Mountain biking, as Mr. Quackenbush learned, can be challenging.

Quackenbush v. City of Buffalo, 842 N.Y.S.2d 657 (N.Y.A.D. 2007). Quackenbush was riding a mountain bike on a trail located in a park owned by the City of Buffalo when he hit a large hole, fell and was injured. He sued for negligence, and the City of Buffalo moved for summary judgment under several theories, chief among them being the New York recreational use statute. The trial court denied summary judgment, and the City appealed.

Held: Quackenbush could not be buffaloed by Buffalo. The appellate court concluded that the recreational use statute did not confer immunity upon the City. Although the statute generally provides immunity to landowners who permit others to use their property for certain recreational activities, the Court said, when the landowner is a government entity, a different standard is applied. Then, the appropriate inquiry is the role of the landowner in relation to the public’s use of the property, and from there, a determination is made whether it is appropriate to apply the limited liability provision of the statute.

Here, the Court concluded that the park was actively operated, supervised and maintained in such a manner that recreational use immunity would not create an additional inducement to keep the property open to the public for the recreational activities set out in the law. Additionally, state law immunizing the City for damages caused by bad sidewalks didn’t apply, inasmuch as the law was limited to streets, highways, bridges, culverts, sidewalks or crosswalks. Under the facts of this case, the Court held, the statute must be construed as a flat prohibition “of any notice of defect enactment pertaining to locations beyond the six specified.”

The City of Buffalo was not allowed to stampede over this plaintiff.

The Court rejected the City’s argument that an unimproved trail such as the one on which Quackenbush was injured was the functional equivalent of a sidewalk. The Court also ruled that Quackenbush had not assumed the risk of injury. Although the risk of striking a hole and falling is inherent in riding a bicycle on most outdoor surfaces, the Court said, there was an issue of fact whether the hole at issue in this case was open and obvious.

Finally, just so the City could go 0 for 4 here, the Court observed that the City was required to establish as a matter of law that it hadn’t created the dangerous condition and didn’t have actual or constructive notice of it. The City hadn’t done either.

– Tom Root

Case of the Day – Thursday, June 12, 2025

Posted on June 12, 2025 by TLRoot tagged.

SLAPP-HAPPY

California and free speech… How times have changed! Time was, 50 years ago or so, Cal Berkeley gave birth to the Free Speech Movement. Now, some allege the Golden State hates free speech. The California Democratic Party says the First Amendment should not protect speech minority groups find offensive or hateful, Grande Dame of politics, Nancy Pelosi, once mau-mau’ed Facebook over a fake video of her in what some say was a dangerous affront to the First Amendment. It is no surprise that only in the California Republic could a tree-trimming case end up as a free speech issue.

Last week, we explored the question raised by our faithful reader Rock Maple of Thousand Oaks, California, who wondered whether his neighbor could trim the branches from Rock’s pine that were overhanging the neighbor’s place. We concluded that self-help was available to the neighbor, within limits. Today, we look at what happens when good old-fashioned common law self-help runs into bureaucracy.

The Dilbecks wanted to add a second story to their house, but their neighbors’ oak tree had extended its branches so close to the Dilbecks’ place that they had to be trimmed back in order to make room. No problem, right? We all know that self-help is available to the Dilbecks anywhere in California. Sure, but it turns out the Los Angeles isn’t just anywhere. In LA, oak trees are “protected,” and before trimming the oak, the Dilbecks had to get a permit from the County. And the County wouldn’t issue a permit unless the tree’s owner signed onto it.

So much for self-help. The Dilbecks sued, asking that the County be ordered to issue the permit and that their neighbors be found liable in trespass for the tree (the theory being that the neighbors let the branches intrude over the Dilbecks’ lawn). And here’s where it got even more complicated. California has a statute addressing litigation known as “strategic lawsuits against public participation,” the so-called anti-SLAPP statute. This mouthful with the catchy name is intended to prevent oppressive lawsuits intended to keep people from exercising their rights to free speech. There’s a whole cottage industry in the Golden State surrounding SLAPP actions. And as with a lot of other good ideas (such as RICO), the anti-SLAPP statute is another tool in the canny lawyer’s arsenal, something else with which to bludgeon a plaintiff.

Here, the neighbors complained that the Dilbecks were trying to force them to petition the County to let the tree get trimmed, and the suit should be thrown out as violating the anti-SLAPP statute. The trial court refused to dismiss the action. The Court of Appeals agreed, holding that the Dilbecks weren’t demanding that the neighbors do anything. They were asking the County to do something, and they were suing the neighbors for trespass because of the tree. California law would let them collect money damages if the encroaching tree was a nuisance (Bonde v. Bishop held as much). So whether the Dilbecks win on the merits or not, the action was not a SLAPP suit, and it wouldn’t be dismissed.

Whew! Makes you long for the simple, ol’ Massachusetts Rule… no permits, no lawsuits, just an aggrieved landowner with a chainsaw.

Dilbeck v. Van Schaick, 2007 Cal. App. Unpub. LEXIS 7718, 2007 WL 2773986 (Cal.App. 2 Dist., Sept. 25, 2007). The Dilbecks owned a place in Altadena, next door to the Van Schaicks. The Dilbecks planned to remodel their home by adding a second story. However, the branches of an oak tree located on the Van Schaicks’ property have grown over the Dilbecks’ home, rendering the Dilbecks’ plans unworkable unless the tree was pruned.

Oak trees are protected by California state law. The County of Los Angeles had adopted regulations to preserve and protect oak trees, requiring a permit to cut down mature oak trees or to prune their larger branches. The Dilbecks applied to the County for a permit, but the County had not approved it because it took the position that only the owner of the tree may obtain a pruning permit, and the Van Schaicks had not acquiesced. So the Dilbecks brought suit against the Van Schaicks and the County for declaratory relief and trespass. They alleged the oak tree growing on the Van Schaicks’ property had encroached onto their land and interfered with their ability to add a second story to their home. The suit said the County refused to grant the permit because the Dilbecks were not the owners of the tree. The trespass cause of action alleged the oak tree branches were encroaching on the Dilbercks’ land and asked for an order permitting the Dilbecks or an independent contractor to prune the tree.

The Van Schaicks filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, asserting that the complaint was based on their refusal to support the Dilbecks’ oak tree permit application and therefore attacked their right to free speech. They further argued that the trespass claim lacked merit because the law forbade the Van Schaicks to prune the offending oak tree branches.

The Dilbecks contended that their action did not fit within the definition of a SLAPP suit and that, in any event, their complaint had merit. They denied that the complaint sought to compel the Van Schaicks to support or sign the oak tree permit. The trial court denied the Van Schaicks’ motion to strike, finding that they had not demonstrated that they were being sued for engaging in protected activity. Instead, the trial court held, they were just being sued for trespass. The Van Schaicks appealed the court’s denial of their motion to strike.

Held: The Dilbecks’ complaint did not arise from acts undertaken in furtherance of the Van Schaicks’ rights of free speech or petition, and the Van Schaicks’ attempt to get it dismissed was rejected. The California Legislature enacted the anti-SLAPP statute in response to its perception that there has been an increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition for the redress of grievances. The anti-SLAPP statute provides a procedure for the court to dismiss at an early stage non-meritorious litigation meant to chill the exercise of free speech rights. The statute requires the trial court to engage in a two-step process when determining whether a motion to strike should be granted, first, whether the defendant has made a threshold prima facie showing that the acts of which it complains were ones taken in furtherance of its constitutional rights of petition or free speech in connection with a public issue, and two, whether there is a probability that the plaintiff will prevail on the claim.

The issue here, the Court said, was whether the complaint arose from conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. The Van Schaicks contended the suit sought to compel them to petition the County for discretionary relief from the oak tree statutes. The Court disagreed, holding that their characterization of the complaint was wrong. In fact, the Court said, the suit merely sought to compel the County to review the merits of the permit application submitted by the Dilbecks and requested an order permitting the Dilbecks or their arborist to prune the tree. The complaint did not seek to compel the Van Schaicks to become personally involved in the permit application process in any way, and thus did not violate the anti-SLAPP statute.

The Van Schaicks contended that the complaint would indirectly force them to speak because a judgment in favor of the Dilbecks on the trespass action would necessarily require the Van Schaicks to petition the County of Los Angeles for discretionary relief from the Oak Tree statute. The Court rejected that argument, finding that the Van Schaicks’ position was based on the incorrect assumption that the only remedy available for trespass was injunctive relief. However, California law held a party over whose land overhanging branches extend may either cut them off or maintain an action for damages and abatement, as long as he or she can prove the branches constitute a nuisance.

The prospect that the Van Schaicks could eventually be faced with an order to abate the nuisance and could do so only by seeking a permit from the County did not transform the Dilbecks’ lawsuit into a SLAPP action. The Court ruled that the thrust of the Dilbecks’ complaint was the injury caused to their property by the encroaching tree, not the Van Schaicks’ decision to refrain from involvement in the permitting process. The permit, although obtainable only by petitioning a governmental entity, principally concerned and affected the remodeling of a private home by private individuals.

– Tom Root