Case of the Day – Thursday, June 18, 2020


The Stig

Jim and Cindy Muncie found oil on their land.

Sadly, this was not a cause for champagne. The oil was #2 heating oil, a thousand gallons of it that had come spilling down the hill to flood their house. It was a mess.

The estate of the deceased woman whose oil tank had ruptured settled a federal court suit for $60,000, the restoration amount the Muncies figured it would take to clean up the slick. But as soon as they got the $60,000, the Muncies – deciding that cleanup compensation just wasn’t enough – sued the estate in state court for “stigma damages.”

Stigma damages, which I caution Top Gear fans has nothing to do with The Stig, are what they sound like. Remember how you felt when you learned that your childhood hero Captain Kangaroo did not fight beside Lee Marvin in the Battle of Iwo Jima? And that he was not really a captain and had never been a kangaroo? After that, there was a stigma attached to ol’ Cap that even Dancing Bear could not erase.  

Properties can be like that. Considering buying Yellowstone Park from a federal government that’s a little strapped for cash to pay Medicare and Social Security for us baby boomers? How much you’re willing to shell out for a national treasure might be affected by knowing that you’re standing in the caldera of the one of the biggest volcanoes on earth. On a smaller scale, a buyer might hesitate to write a check knowing that his or her prospective home had been steeped in hydrocarbons, even if there was no tangible evidence that the mishap had ever occurred.

We recently focused on restoration costs being awarded where those costs exceeded the reduction of value suffered because of a trespass and subsequent damage. Today’s case is the obverse of that coin, where the restoration costs may not be quite enough to fully pay for the loss suffered, a loss due to the “stigma” attached to the property because of the damage.

Muncie v. Wiesemann, Case No. 2017-SC-000235-DG (Supreme Court, Kentucky, June 14, 2018). A faulty underground home heating oil tank on an unoccupied property cracked open one cold December day, spilling 1,000 gallons of fuel oil. The oil flowed downhill, flooding the nearby residence of Cindy and Jim Muncie.

Although Patricia Wiesemann, who was handling the affairs of the estate that owned the unoccupied property, hired contractors to remove the heating oil and prevent further contamination, the leaking continued to damage Jim and Cindy’s place. The contamination caused the Kentucky Environmental Response Branch to declare an environmental emergency, implementing emergency procedures to “limit any human health or environmental impacts” at the Muncie residence.

Litigation ensued. In September 2013, the parties entered into a partial settlement. The settlement allocated $60,000 to the Muncies for restoration costs, intended to remedy actual damages to their property. In return, the Muncies agreed to dismiss all claims against Wiesemann and the Estate, except for a few reserved claims. Prominently, the partial settlement reserved “claims by the Muncies asserting the diminution of the value of their real estate due to the stigma resulting from the contamination…”

Stigma damages, as the name implies, are damages suffered from diminished value to property caused by a negative perception of a site, and call for compensation for the “stigma” to satisfy the fundamental concept that an injured party must be made whole. A perception of harm may be all that is needed to support an award of stigma damages. Such damages are intended to compensate for loss to the property’s market value resulting from the long-term negative perception of the property in excess of any recovery obtained for the temporary injury itself. Were this residual loss due to stigma not compensated, a plaintiff’s property would be permanently deprived of significant value without compensation.

A month after signing the settlement, the Muncies sued Pat in state court for negligence, trespass, and permanent nuisance. Pat filed a motion for summary judgment, arguing that the partial settlement barred the state action because the Muncies were fully paid for the actual damages the contamination caused to their property. She claimed that as a matter of law stigma damages can only be recovered when paired with an actual damages award.

The trial court said while stigma damages can be considered as part of restoration damages – the cost to repair the property – stigma damages cannot be awarded separate from restoration damages. Because the Muncies settled their restoration claim in the partial settlement agreement, the trial court held, no further claim existed. The Muncies’ claim for stigma damages was dismissed.

The Muncies appealed.

Held: Stigma damages can be awarded in Kentucky, and that award can be separate from restoration damages.

Pat complained that because the $60,000 restoration payment was accepted by the Muncies in the partial settlement agreement, they could not now separately seek stigma damages for the diminution in value of their property. To do otherwise would result in a “double recovery” for the Muncies.

The Supreme Court disagreed. In order to recover stigma damages, it held, plaintiffs must have suffered actual property damage. If injured parties receive repair costs that make them whole, then they cannot recover stigma damages that would compensate them above the diminution in their property’s value. But if restoration damages for repair costs is insufficient to make the injured party whole, then a recovery for stigma damages up to the monetary value of the diminution may be proper.

In other words, the Court said, damages recoverable for an actual injury to real property are equal to the sum of the costs of repair and the difference in fair market value of the property before the injury and after it has been repaired. If there is a difference in fair market value after the physical injury has been repaired, then that is the appropriate measure of stigma damages.

Stigma damages measure the amount by which a real property’s value is diminished in excess of repair costs. Here, once the oil was removed from the Muncies’ property and the environmental response team departed, stigma was what remained, and it – by its nature – it cannot be repaired.

“Unquestionably,” the Court presciently ruled, “the devil is in the details for these types of cases. We can only provide broad principles of law. The method for the computation of damages is easily stated but can be difficult to understand. They can also be difficult to prove.” However, when property is damaged by trespass, the degree of the damage is determined at the moment such injury is completed. The recovery shall be the difference in value of the property before the injury occurred, and the value immediately after it is completed. The after-value shall take into account stigma damages, if any. Damages will also include the cost of any repair or remediation.”

Because there was no evidence taken on the stigma damage, if any, suffered by the Muncies, the Supreme Court of Kentucky sent the case back for a factual determination as to whether they were fully compensated for the diminution in fair market value of their property by the $60,000 partial settlement for repair.

– Tom Root


Case of the Day – Wednesday, June 17, 2020


blamagame170112Today we have yet another cautionary tale from the annals of “I got hurt, so I need someone to sue.”

Dan was a healthy, 26-year old recreational-football-league kind of guy. He was playing flag football with some buddies in the Dome Football League, using an indoor facility owned by the Town of Tonawanda. Of course, you need to mark the boundaries of the football field, and — necessity being the mother of invention — someone used a softball glove as a marker.

Dan stepped on the glove during a moment of football derring-do, and he was injured. So of course, he threw a yellow hankie at the Football League and the Town. The Town and League threw their own red flags, asking the booth, that is to say, the trial court, to review and throw out the case. The trial court refused to do so.

The appellate court, however, penalized Dan 15 yards and loss of down. When someone engages in an injury-prone event, like flag football, he or she (usually “he” in case of football, but there are exceptions), consents to the reasonably foreseeable consequences of the activity. There are always sidelines markers, the Court observed, and Dan didn’t show that using a softball mitt was created a danger any greater than using the usual cones or plastic flags employed by the League.

So what does this have to do with trees? When people engage in outdoor activities in which they come in contact with trees, roots, stumps and holes in the ground, it’s always a fair question whether they assumed the risk when they elected to ski, mountain bike, run a 5k or whatever they were doing at the time.

If you’re a Dan (or a Danielle), be prepared to prove that the hazard you confronted was something over and above what you could reasonably expect to encounter in the activity. If you’re playing football, expect to be hurt. You’re rarely be disappointed.

tfootball141126Gardner v. Town Of Tonawanda, 850 N.Y.S.2d 730 (N.Y.A.D. 4 Dept., 2008). Dan Gardner, a 26-year old flag football enthusiast, slipped and fell on a baseball glove that he and his buddies were using as a sideline marker during a recreational indoor flag football game organized by the Dome Football League and played in a facility owned by Town of Tonawanda. Dan was experienced in playing recreational flag football games on the indoor artificial turf field and he knew the sidelines of the field were marked with orange plastic cones and that the referee had discretion to use other types of markers on the sidelines as well. Dan said he was unaware that a baseball glove was being used as a sideline marker, but he didn’t have any evidence supporting his contention that the risk of slipping on the baseball glove was greater than the risk of slipping or tripping on the cones or plastic flags usually used as sideline markers. But that didn’t stop him from suing the Football League and the Town. The defendants moved for summary judgment, but the trial court denied it.


Maybe so, but the big crayon assumed the risk.

Held: Summary judgment was granted to the Town, and the case dismissed. The Court concluded that Dan assumed the risk of the injuries that he sustained because the use of the baseball glove as a sideline marker didn’t create a dangerous condition over and above the usual dangers that are inherent in recreational flag football.

The doctrine of primary assumption of the risk generally constitutes a complete defense to an action to recover damages for personal injuries and applies to the voluntary participation in sporting activities. As a general rule, the Court said, participants properly may be held to have consented by their participation to those injury-causing events which are known, apparent or reasonably foreseeable consequences of their participation. Such injury-causing events include the risks that are inherent in and arise out of the nature of the sport generally and flow from such participation.

– Tom Root



Case of the Day – Tuesday, June 16, 2020


fromgvt170111When the Upper Oconee Water Authority started building a new reservoir, its consulting engineer needed to use the Walls’ property to let its subcontractor have access to a drainage pipe. “Just a little easement, ma’am,” the engineering firm told Mrs. Walls. “And we promise not to cut down any trees.”

Of course you promise not to. And we believe you. Right?

You guessed it — the contractor promptly started cutting down the Walls’ trees. Then – adding insult to injury – after the contractor was done with the drainage pipe, the Walls’ property flooded. After repeated complaints to the engineer got no satisfaction, the Walls sued.

The trial court threw the case out without a trial. But on appeal, the Walls won back their trees (or at least their right to fight for them at trial).

Initially, it didn’t sound like a win. The appellate court began by ruling that the Walls failed to prove that the engineer and its contractors caused the pooling water. Instead, the Walls only proved the water appeared after the contractors’ work, not that the contractors’ work caused the standing water. The Walls had engaged in the classic logic fallacy of post hoc, ergo propter hoc. Just because the water followed the contractors doesn’t mean the water was caused by the contractors.

Classic "post hoc ergo propter hoc" reasoning ... but then, he's a dog. What can you expect?

Classic “post hoc ergo propter hoc” reasoning … but then, he’s a dog. What can you expect?

But as for the trees, the Court said, the Walls had a right under Georgia law to be secure in their property. The engineers were responsible for supervising their contractors, given that the engineering firm’s representative told Mrs. Walls that he would stop the tree cutting. A jury could have found that the engineering firm was liable for the damages arising from the trespass. Therefore, the Court sent the case back for trial.

Walls v. Moreland Altobelli Associates, Inc., 290 Ga.App. 199 (Ga.App. 2008) The Walls live on a large piece of land along Highway 330 in Jackson County. In 1999, the Upper Oconee Basin Water Authority bought the land across the highway from the Walls’ residence to build a water reservoir. The Water Authority hired Moreland, a civil engineering firm, to manage the reservoir construction.

Hank Collins, a construction manager with Moreland, began overseeing several construction projects to be completed by Maxey Brothers Construction. One of those involved replacing a drainage pipe under Highway 330 and re-grading the area to allow proper drainage from the Walls’ property to the reservoir side of the road. Before the project began, a Moreland representative asked the Walls to grant the Water Authority a temporary easement along the front of their property to permit workers to complete the drainage work. The representative assured Mrs. Walls that the construction would not disturb any trees on the property and would only minimally affect the land. Based on these assurances, Mrs. Walls signed the easement.

Imagine the Walls' surprise ...

Imagine the Walls’ surprise … could it be that the contractor was somehow a little less than candid?

But when Maxey Brothers began work on the Walls’ property, the contractor promptly started cutting down trees. Mrs. Walls immediately called Collins, who apologized, stating that the trees should not have been cut and that “he would stop it immediately.” Collins also promised that Moreland would replace or pay for the cut trees. Although Mrs. Walls discussed the trees with Collins several times over the next year, Moreland did not pay for the tree loss. In the meantime, the Walls noticed that during heavy rains, standing water would accumulate on their property near the opening to the new drainpipe. The Walls had never experienced standing water before the construction. Mrs. Walls wrote to Moreland about both the water and tree removal, but Moreland did not remedy her concerns. Instead, it referred her complaints to the Water Authority, which investigated the situation. The Water Authority offered to repair the drainage area along the Walls’ property and pay $100 to settle the tree claim.

The Walls sued Moreland for trespass and nuisance, alleging that a work crew supervised by Moreland cut trees on their property without permission, improperly installed the drainpipe, and created a standing water nuisance. The Walls sought compensatory and punitive damages and attorney fees. The trial court tossed the case out. The Walls appealed.

Held: The Court of Appeals split the case, upholding the trial court on dismissing the nuisance claim but reversing on the damage to trees claim. As for the standing water claim, the Walls offered no evidence that the work overseen by Moreland caused the water problem. To be sure, the Walls said they hadn’t had the problem before the construction, but the mere fact that one event chronologically follows another is alone insufficient to establish a causal relation between them.

Moreland also produced evidence that following the project’s completion, a utility company laid underground cable in the area and Jackson County installed a water line along the road, both of which altered the grade. And Collins testified that Mrs. Walls first complained about the water problem after the utility company worked in the area. Because the Walls failed to link the work performed by Maxey Brothers and Moreland to the drainage problem, they did not establish causation.

AidAbet140415However, the trial court shouldn’t have booted the Walls’ claim for trespass based on the tree cutting. Georgia statutes provides that the right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie. Cutting trees on property owned by another, the Court say, may result in a trespass under OGCA § 51-9-1. The evidence showed that the Walls objected to any tree cutting, and a Moreland representative assured Mrs. Walls that the work would not affect any trees. Mrs. Walls also testified that when she confronted Collins about the tree cutting, he stated that trees should not have been cut. Under these circumstances, a jury could find that the tree cutting exceeded the permitted entry onto the Walls’ property.

While Maxey Brothers actually felled the trees committed the trespass, Moreland was responsible for overseeing Maxey Brothers’ work and ensuring that it complied with the project plans, which, according to at least some evidence, did not involve tree cutting. Moreover, Collins knew that Maxey Brothers planned to cut trees on the Walls’ property, but did nothing to stop the work.

Based on this evidence, the Court said, a jury could find Moreland liable for trespass. One who aids, abets, or incites, or encourages or directs, by conduct or words, in the perpetration of a trespass is liable equally with actual trespassers. This is an important expansion of liability for trespass. Often the trespasser is a mere functionary. The party who put the wheels in motion to cause the trespass – and, incidentally, who has the deep pockets – is the aider or abettor. Being able to reach such a defendant is crucial.

– Tom Root


Case of the Day – Monday, June 15, 2020


A long, long time ago, before I was trained to think like a lawyer, I was a neophyte law student and still thinking like a layman, that is to say, “normally.” New law students are first exposed to contract law. Digging into Basic Contract Lawthat boring-looking brown tome that was chock-a-block with fascinating cases, I very quickly ran into Peevyhouse v. Garland Coal Co. (on the second day of class, I recall).

Farmer Peevyhouse signed a deal with Garland Coal Co., to strip mine his land. The land was hilly, and Farmer P thought the strip mining was the ideal time to fix that. So he got Garland Coal to agree the level the land when it was done strip mining.

Garland Coal left a lot of hills behind…

When the coal was gone, so was Garland Coal, leaving the farm just as hilly as it was before the mining. Farmer Peevyhouse sued for breach of contract. He won, of course, but when it came to figuring damages, the court noted that the diminution in value of the farm because it was still hilly (as opposed to flat) was $5,000. But if Garland Coal were required to come back to keep its promise to level the place, Garland Coal would have to spend $25,000 to pull it off. The higher award would constitute economic waste, the court held, and the court was not about to be wasteful with the coal company’s money.

Back then, as a tyro-at-law, I couldn’t understand the decision. Who cared if the damages were wasteful, or if the market value of the farm was only slightly less? To me, Farmer Peevyhouse made a deal, Garland Coal agreed to the deal, and – inasmuch as Garland got all the coal it bargained for – Farmer P should get what he bargained for as well, economics be damned. To me, the economics did not matter nearly as much as did the reasonable expectations of the parties.

Now, with many years of practice under my belt, I tend to think like a lawyer. But Peevyhouse still makes no sense to me. The farmer would not have let Garland Coal strip his land without the promise to level the hills. So the promise was material to the farmer. Why reward Garland Coal simply because Mr. Peevyhouse’s legitimate desires might not make great economic sense?

In The Princess Bride, Inigo Montoya ends his years-long quest to avenge his father’s untimely death in a fight to the death with the six-fingered man. At last, Montoya has the tip of his sword at Count Rugan’s throat:

Inigo Montoya:   Offer me money.
Count Rugen:     Yes!
Inigo Montoya:   Power, too, promise me that.
Count Rugen:     All that I have and more. Please…
Inigo Montoya:   Offer me anything I ask for.
Count Rugen:     Anything you want…
[Rugen knocks Inigo’s sword aside and lunges. But Inigo traps his arm and aims his sword at Rugen’s stomach]
Inigo Montoya:   I want my father back, you son of a bitch!

That, on a less dramatic level, was Paul Harder’s complaint. As we read in last Friday’s installment on this case, while Paul was gone from Alaska, Joel and Darlene Wiersum clear-cut his land without permission in order to improve their view. In seeking money to restore his property – a sum that came to something like four times the fair market value of his land before the clear-cutting – Paul told the jury he “didn’t want money,” but rather he only wanted his trees back. Paul therefore asked for damages to restore the property by replanting the forested area.

Count Rugen could give Inigo money and power and land. But he could not give Inigo what he wanted the most, a desire that was heartfelt if utterly infeasible (and rather uneconomical). In that regard, Inigo Montoya and Farmer Peevyhouse had something in common. The question is whether they both had something in common with Paul Harder. We’ll find that out now…

Wiersum v. Harder, 316 P.3d 557 (Alaska, 2013). Paul Harder owned a pretty nice piece of Alaskan wilderness near Kodiak. He built a cabin on it and lived happily for quite a stretch. But when wanderlust set in, he subdivided the land, sold the plot with the cabin on it to his sister Lisa and kept one for himself, and left for a 15-year sojourn in warmer climes.

Paul lived in Hawaii, but returned to visit his plot of land occasionally, and enjoy the hunting, fishing and recreation opportunities it afforded.

About nine years after Paul went south, Joel and Darlene Wiersum bought some land at the top of a hill, adjacent to the Harder tracts. Looking down the hill, they could see Lisa’s cabin several hundred yards below, and incorrectly assumed she owned it all. One day, Darlene called Lisa at work, and asked whether they could cut down some trees on Lisa’s property that Darlene thought might “come down with the wind” and hit their home. Lisa gave them permission, because she thought the removal of some trees would “let a little more light in” to the woods.

Darlene and Joel did not just thin out a few hazard trees. Instead, they clear-cut the entire hill, out to almost 400 feet beyond their property line. When Lisa returned home to find that bare naked hillside, she told the Wiersums not to cut any more trees.

When Paul returned a couple of years later, he discovered the clear-cut hillside (which really was on his plot, not that of his sister), and promptly sued the Wiersums for timber trespass. A jury him $161,000 in compensatory restoration damages, which was trebled under Alaska statute AS 09.45.730.

The Wiersums appealed.

Held: The jury’s restoration damage award was reversed and sent back for retrial.

A party who is injured by an invasion of his or her property that does not totally destroy its value may choose as damages either the loss in property value or “reasonable restoration costs.” To determine whether an award of restoration costs is appropriate, Alaska follows the Restatement (Second) of Torts § 929. The Restatement says if a plaintiff is entitled to damages for harm to land resulting from a trespass that does not amount to a total destruction of value, the damages include either (1) the difference between the value of the land before the harm and the value after the harm, or – if the plaintiff so chooses – the cost of restoration that may be reasonably incurred. Damages are measured by the difference between the value of the land before and after the harm only if the cost of restoring the land to its original condition is disproportionate to the loss in the value of the land caused by the trespass “unless there is a reason personal to the owner for restoring the original condition.”

That’s the law for you. A layman untrained in legal niceties would say “a personal reason,” but the legal phrase is a “reason personal.” The distinction is intended to convince you that the law must be complex, and thus you ought to pay that “bill inflated” your lawyer hands you without whimper.

A “reason personal,” the Court said, is a reason peculiar or special to the owner, where “the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.” For example, the Court in the past had found a “reason personal” where the damaged property was used by the plaintiff as “a showplace in connection with his nursery business” and, in another case, where the property enjoyed “unique views… abundant trees, and the unusual juxtaposition of the trees, the cabin, and the views,” and its owners, who planned to retire on the property, had testified that “other properties in the area were not comparable.”

To find that a plaintiff had a “reason personal” for restoration, where those costs were much higher than the loss of value to the land, a court should look for evidence showing “a reasonable likelihood that the trees would be restored.”

Paul showed at trial that he held on to the Monashka property for 34 years, and that he intended to build a house and live on it once his son graduated from college because “it’s a very beautiful piece of property.” A real estate agent testified that he approached Paul about selling the land, but Paul had refused. Paul testified he “didn’t want money,” but rather he only “wanted his trees back” and was asking for damages to restore the property by replanting the forested area. He said he enjoyed spending time with his children on the property, but that after the trees were cut down, the property “looked totally different,” full of salmonberry bushes… whereas it was just like thick moss before,” and he reported that he had not heard any ravens there since the trees were cut.

The Wiersums argued the award of restoration damages was objectively unreasonable because the total market value of Paul’s property before the timber trespass was only $40,000. A damage award of $161,000, they contended, was disproportionate to the property’s diminution. Besides, peripatetic Paul’s “minimal use of and contribution to the land’s special value would at most justify a marginal award of restoration costs.”

The Court noted it had found in the nursery case that restoration damages were not “grossly disproportionate” where the owner had paid $4,000 per acre for the property, but the jury awarded $12,550 for restoring a quarter-acre of land. Because the principal value of the property stemmed from the creek running through it, and the owner intended to use the property to create “a showplace in connection with his nursery business,” the cost of restoration, although disproportionate to value, was reasonable. Nevertheless, the Court had previously cautioned that “restoration costs exceeding diminished market value may be awarded only to the extent such added costs are objectively reasonable in light of the ‘reason personal’ and in light of the diminution in value.”

The “reason personal” may be a non-commercial one based on the property’s uniqueness, but the restoration award must be limited to the cost that has been or may be reasonably incurred.  The purpose for this rule, the Court said, is “to reduce the economic waste that occurs when a party incurs repair costs in excess of the diminished value of the property.” The application of this principle “must ensure that an award of restoration damages does not confer a windfall upon a landowner.” Where proposed replacement costs are excessive in relation to the damage caused by the trespass, “the achievement of a reasonable approximation of the land’s former condition may involve something less than substantially identical restoration… It may be more appropriate to award costs for the planting of saplings, or a few mature trees, or underbrush to prevent erosion and achieve a lesser but, over time, reasonable aesthetic restoration.”

Applying these principles to Paul’s denuded hillside, the Court held that the award of $161,000 in restoration costs was objectively unreasonable in light of the $40,000 pre-trespass total value of the property. Paul’s “reason personal” for restoration, and the absence of any proof of the extent of the decrease in the value of his property, made it more appropriate to award costs “for the planting of saplings or a few mature trees or underbrush to prevent erosion and achieve a lesser but, over time, reasonable aesthetic restoration.” The Court’s conclusion was based on its determination that the “property could be reasonably restored by replacing at least some of the mature Sitka spruce with saplings or smaller trees and that because the property’s large trees were growing in a forested environment where the root zones were intertwined” it was not possible to ” replace that exact tree in that environment.”

The jury must base its award on a finding that the restoration costs were objectively reasonable in light of the value of Paul’s land, the loss of value due to the Wiersums’ trespass, and his “reason personal.” Here, the Court said, no reasonable juror would award restoration costs totaling more than four times the full fair market value of the property before the trespass. Thus, the Court sent the case back for a new trial on damages.

And what’s my take on this case, based upon my decades of thinking like a lawyer? I’m with Inigo Montoya and Paul Harder: “I want my trees back, you son-of-a-bitch,” and economics be damned. This is a bad decision.

– Tom Root


Case of the Day – Friday, June 12, 2020


You know the guy I’m talking about. Nothing is ever his fault. (No, I did not suggest a certain inhabitant of the White House, either – we stay above politics around here).

But… that guy. The blame always lies with someone else. Think of John Belushi in the Blues Brothers, groveling at the feet of an assault rifle-toting Carrie Fisher, explaining all the reasons he had left her standing at the altar and ending with the plaintive wail, “It’s not my fault!”

Today’s defendants have something in common with the pathetic Jake Blue. For reasons unexplained (but I suspect, given this occurred on breathtaking Kodiak Island, Alaska, that it was intended to enhance their view), Joel and Darlene wanted to remove some trees on the downslope of the hill they lived on, out to about 400 feet. Most of the trees – beautiful 100-foot plus Sitka spruces – were not on their property. A minor detail.

Darlene called her neighbor, Lisa, and asked whether she and her husband could cut down a few trees on Lisa’s land, you know, just trees that might pose a hazard if they were to fall in a windstorm across the property line and strike Joel and Darlene’s cabin. Lisa was at work when Darlene called her, and she didn’t really have a well-formed idea of what her neighbors had in mind. This was understandable, given that Darlene misled Lisa into believing they were talking about a few sickly boundary trees. Lisa, thinking that thinning the woods there would probably let more light in and spur growth, said that she did not mind at all.

When Lisa got home that evening, she discovered a denuded hill, with trees clear-cut from the boundary line toward her cabin for almost 400 feet. Hyperion itself couldn’t have fallen from that point and hit Joel and Darlene’s. Lisa was furious, and called Darlene (who had the good sense not to answer the phone). Lisa told Darlene’s voice mail that there would be no more tree cutting.

Now for the fly in the ointment: Lisa had always thought that her land extended all the way from her cabin to Joel and Darlene’s property line. But it did not. Her brother, Paul, who had subdivided a larger parcel years before and sold Lisa one of the plots – the one with his old cabin on it – had reserved for himself a plot between Lisa’s and Joel and Darlene’s place. After selling in 1992, Paul had left for an extended sojourn (well over a decade) in Washington state and Hawaii. When he finally came home from wandering the Lower 48, some two years after the tree-cutting incident, he was not pleased. Paul demanded of Lisa to tell him who had cut all of his trees. That was when Lisa found out that much of the property between her cabin and the Joel and Darlene’s property line belonged to Paul.

Naturally, Paul went after Joel and Darlene. Who wouldn’t? But they sniveled, “It’s not our fault! Lisa told us we could cut your trees!” Well, they did not exactly snivel, not audibly, but they promptly brought Lisa into the lawsuit as a third-party defendant. They maintained that because Lisa gave them permission to cut some trees without telling them that some of the intermediate land between their property and her cabin was Paul’s (and that they could not cut his trees), she was negligent. Joel and Darlene whined that if Paul had been damaged, Lisa owed Paul some of those damages. They argued Lisa had breached her duty to inform them, that she had made misrepresentations to them, and that she had breached her duty to Paul as well as a general duty she had to her neighbors.

The Alaska Supreme Court cut through Joel and Darlene’s arguments like a hot knife through butter. Lisa got nothing out of the tree-cutting episode, and she thus owed nobody nuthin’. Joel and Darlene had no right to rely on Lisa’s permission without checking the boundaries themselves. The Court’s finding might have been a blessing for the defendants, too, because it avoided the sticky question of whether – given Darlene’s obvious fraudulent misrepresentation to Lisa as to their tree-cutting – Lisa could possibly be liable at all. After all, if Darlene asked Lisa, “Hey, mind if we clear-cut 400 feet in the direction of your shanty so that we can improve our magnificent view?”, we suspect Lisa would not have been so forthcoming with permission.

Clearing up the issue of Lisa’s liability let the Alaska Supreme Court get to the meat of the case, which was the amount of damages owed Paul. We’ll take up that part of the holding on Monday.

Wiersum v. Harder, 316 P.3d 557 (Supreme Court of Alaska, 2013). Paul Harder owned a pretty nice piece of Alaskan wilderness near Kodiak. He built a cabin on it and lived happily for quite a stretch. But when wanderlust set in back in 1992, he subdivided the land, sold the plot with the cabin on it to his sister Lisa and kept one for himself, and set off for parts unknown.

Not completely unknown, however. Paul spent the next 15 years living in Washington state and Hawaii, but he returned every so often to visit his plot of land, and enjoy the hunting, fishing and recreation opportunities it afforded. It was, after all, overlooking Monashka Bay on Kodiak Island – it would be hard to stay away from home when it was as beautiful and wild as that.

About nine years after Paul went south, Joel and Darlene Wiersum bought some land at the top of a hill, adjacent to the Harder tracts. Looking down the hill, they could see Lisa’s cabin several hundred yards below, and they assumed she owned everything between their home and hers. One day, Darlene called Lisa at work, and asked whether they could cut down some trees on Lisa’s property that Darlene thought might “come down with the wind” and fall on their land, damaging their home. Lisa readily gave them permission, because she thought the removal of some trees might “let a little more light in.”

Darlene was not being exactly straight with Lisa. She and Joel never intended to thin out some hazard trees. Instead, they intended to clear-cut the entire hill, out to more than 300 feet beyond their property line. When Lisa returned home from work later that day, the deed had been done; she discovered that bare naked hillside. Upset by the number of trees that had been cut, Lisa immediately called the Wiersums and left a message instructing them not to cut any more trees.

Paul did not return to the Last Frontier for about two years. When he did, he discovered the clear-cut hillside. Paul asked Lisa who had cut the trees, and then explained to her that the trees had been on his plot, not hers. After that, he promptly sued the Wiersums for timber trespass.

The Wiersums, apparently a couple not lacking chutzpah (just look at the clear-cutting escapade), filed a third-party complaint blaming Lisa for the trespass. They sought to apportion fault onto Lisa, claiming that she had negligently misrepresented that she owned the property where the trees were cut when she gave them permission to remove trees from her property. The trial court granted Lisa’s summary judgment motion and dismissed the claim against her. The Wiersums and Paul went to trial, and a jury awarded Paul $161,000 in compensatory restoration damages, along with statutory treble damages.

Held: Lisa was not liable for the Wiersums’ trespass, but the case had to be sent back to the trial court, because the damages were excessive. Today, we’ll talk about Lisa’s “duty” to the Wiersums and her own brother. Monday we’ll take up damages.

The Wiersums contended that fault must be apportioned to Lisa because she was negligent when she failed to disclose to Darlene that she did not know exactly where her property lines were and that Harder also owned property in the area. In essence, their negligence claim was based on the theory that Lisa had negligently misrepresented or failed to disclose information to the Wiersums, and her negligence thus caused them to trespass on Paul’s property and remove his trees.

However, the Court held, negligent misrepresentation requires a showing that a party made a misrepresentation in the course of her business, profession, or employment, or in any other transaction in which she has a pecuniary interest.” Likewise, liability for failure to disclose information when there is an affirmative duty to do so occurs when someone “fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction.” Lisa had no financial interest in what the Wiersums did with their land, and thus owed them no duty under a theory of negligent misrepresentation or failure to disclose information when she had an affirmative duty to do so.

But did Lisa owe a duty to Paul? The Wiersums argue that Lisa owed a broad duty of care to her neighbors – both themselves and Harder – and is liable for any unreasonable risk of harm to them that stemmed from her own conduct. They support this assertion with references to the Restatement (Second) of Torts § 158 and § 165, and cite to case law from other states for the rule that a “landowner who intends to have timber cut on his land owes a duty to an adjoining landowner to ascertain the boundary line of the adjoining land with diligence and care.”

None of these arguments carried the day. The Court held that sections 158 and 165 of the Restatement (Second) of Torts were inapplicable here, because they applied only where the person intentionally causes a third person to enter land, that is, “commands or requests” a third person to enter the land of another. Lisa never commanded the Wiersums to do anything. Section 165 similarly provided no support for the Wiersums’ position, instead imposing liability where someone recklessly or negligently enters land in possession of another, or causes “a thing or third person so to enter,” and thereby harms the land. Comment (a) to this section indicated that the rule applies where “the conduct of the actor either… involve[s] an unreasonable risk of invading the possessor’s interest in his exclusive possession of the land, or… [is] caused by an abnormally dangerous activity carried on by the actor.” Lisa’s act of giving the Wiersums permission to cut trees on her own land did not present an unreasonable risk that the Wiersums would enter Paul’s land and cut his trees.

The Wiersums also argued that a Texas case held that landowners who intended to cut timber on their own land owed a duty to adjoining landowners to ascertain the boundary lines of the adjoining land. But Lisa did not seek out the Wiersums to remove trees from her land, nor did she affirmatively offer inaccurate information about her property boundaries. The Wiersums did not ask her for this information and, because this was not a business transaction, she was under no legal obligation to provide it. Thus, the Court said, she did not assume a duty to give accurate information to the Wiersums when they asked permission to remove her trees.

Finally, the Wiersums relied on Prosser and Keeton’s treatise on tort law for the rule that a landowner owes a broad duty “to cause no unreasonable risks of harm to others in the vicinity.” The Court was unimpressed. “Our prior decisions recognize that landowners have a duty to use due care to guard against unreasonable risks created by dangerous conditions existing on their property. We have also held that a landowner must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances. But we have never previously gone so far as to hold that a landowner has a broad duty to prevent the unreasonable risk of harm to her neighbors caused by third parties.”

Foreseeability of harm is the most important factor in whether Lisa had a duty to Paul, the Court said, and “there can be no duty where the harm is unforeseeable, but foreseeability alone is insufficient to establish a duty if the burden of taking care or the effect on society is too harsh.”

The foreseeability of harm to Paul resulting from Lisa’s conduct was low. Lisa made no active representation to the Wiersums to imply that the trees on the hillside near their property were hers and not Paul’s. She merely gave the Wiersums permission to cut trees on her own land. It was thus foreseeable that the Wiersums would cut trees on Lisa’s property, but it was not foreseeable that the they would remove 70 large trees from Paul’s hillside – some of which were located between 300 and 400 feet from their own land – “without conducting proper due diligence to identify the true property owner and then seeking that person’s permission. No person,” the Court said, “can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.”

– Tom Root


Case of the Day – Thursday, June 11, 2020


Unfiled lawsuits rarely get better if you continue to delay.

Unfiled lawsuits rarely get better if you continue to delay.

Tony Balducci had a couple of parcels on Sumner Street in beautiful Lunenburg, Massachusetts. One of them, a property at 240 Sumner, was subject to occasional flooding problems arising from poor drainage. Tony wanted the problem remedied, so he made a deal to partner up with the Town to install a drainpipe. Like most deals of this nature, Tony’s job was simply to pay, and the Town’s end of the project was to do the actual work.

The directionally-challenged workers for the town installed a drainpipe. It’s just that Mr. B had two places on Sumner, not just one. And you guessed it: the drainpipe was installed at 244 Sumner Street instead of 240 Sumner Street (where it was supposed to be set). The result, of course – besides a drainpipe installed where it wasn’t needed – was that the flooding problems continued at 240 Sumner, where it was needed but not installed.

Tony was galvanized into action… some seven years after the error. The mystery is why it took him so long to notice the Town’s error, and why – after he figured it out a year later – why it took him more than six years to sue. There is, of course, a statute of limitations to just about every kind of action, civil or criminal. In the case of contracts in Massachusetts, it’s six years. The Town argued he had waited too long to sue. Tony responded that he had six years from time he discovered the mistake – not from the time of the mistake itself – to sue.

The Court agreed that the “discovery rule” let Tony run his time to file a lawsuit from the day he learned of the Town’s blunder, but his victory proved to be a hollow one. Quite often, laws permitting suit against governments contain what are called “exhaustion” requirements. Before you can sue, you have to “exhaust” your administrative remedies by filing a claim with the governmental agency, usually on a prescribed form with a prescribed number of copies and according to a prescribed schedule. The goal, public policy types tell us, is to enable the governmental agency to resolve problems short of lawsuits by promptly and fairly addressing the claimant’s concerns. Horse hockey. The real purpose of the “exhaustion” requirement is to exhaust people like Tony, or – barring the grinding down of the citizenry with arcane complaint requirements – setting a snare to trap the unwary.

Tony Balducci was one of those unwary ones. Whatever else he might have done during the six-year interregnum between discovering that the drainpipe was in the wrong place and suing, Tony never made demand on the Town to cure its negligence. That meant that his claim for negligence had not been administratively exhausted, and the count was thus thrown out. Unsurprisingly, the Massachusetts Tort Claims Act required that such a demand — called “presentment” — be made on the municipality before a lawsuit could be filed.

It is not clear how Mr. Balducci missed the fact the Town had put the drainpipe in the wrong place, or - for that matter - that his property was still a little damp.

It is not clear how Tony missed the fact the Town had put the drainpipe in the wrong place, or – for that matter – that his property was still a little damp.

Tony had a few other claims to make against the Town, including trespass and wrongful removal of trees. After all, he had given the Town the OK to enter onto 240 Sumner, but not 244 Sumner. Those counts were not subject to an exhaustion requirement, and they survived. But it’s clear that early in his lawsuit, Tony already had a big mountain to climb. More careful procedural planning — not to mention being quicker out of the chute — would have saved him some legal headaches now.

Balducci v. Town of Lunenburg, Not Reported in N.E.2d, 2007 WL 4248021 (Mass.Super., Oct. 19, 2007). Tony Balducci owned two properties next to each other on Summer in the Town of Lunenburg. In 2000, he and the Town entered into a written agreement for replacement of a drainpipe located on his property, with Tony and the Town splitting the cost. He gave the Town an easement for the installation. But instead of installing the drainpipe at 240 Sumner Street, the Town installed it at 244 Sumner Street. As a result, Tony continued to experience flooding in his building at 240 Summer Street. He sued the Town of Lunenburg, alleging breach of contract, negligence, trespass, willful trespass to trees, and nuisance.

The Town moved to dismiss, arguing that the various counts should be dismissed due to the statute of limitations, a failure to comply with the Massachusetts Tort Claims Act, and failure to state a claim upon which relief may be granted.

Held: The Town’s motion was only granted in part. The Town first argued that Tony’s claim was barred by the statute of limitations, because he brought the action more than six years after the alleged breach. But the Court observed that the “discovery rule” operates to toll — or suspend — a limitations period until a plaintiff learned or should have learned that he has been injured by the defendant’s conduct. Because Tony could present facts that show that he only learned of the improper installation of the drainpipe in 2001 when his basement flooded, the Court was unwilling to dismiss the action on the basis of the Town’s motion alone.

Likewise, the Court denied the Town’s argument that the contract action should be dismissed for failure to state a claim. The Court said there were genuine issues of material fact as to whether the Town had permission to install the drainpipe where it did, and whether it did so properly. The agreement was vague as to where the drainpipe should be installed, and the Town’s easement only referred to the agreement.

However, the Town was able to get the negligence claim dismissed. The Massachusetts Tort Claims Act required that a party present its claim in writing before suing. If a party does not fulfill this requirement, its case has to be dismissed for failure to state a claim upon which relief may be granted. Tony did not aver in his complaint that he has complied with the MTCA, requiring that the negligence count be dismissed.

The trespass claim — that the Town trespassed when it entered the wrong parcel of land to install the drainpipe and that the permanent nature of the drainpipe has created a continuous trespass — would not be dismissed. An action for trespass against a municipality does not come under the MTCA, so Tony was able to proceed on this claim without making any form of presentment. Tony’s complaint that the Town unlawfully removed trees from his property in violation of state statute, would not be dismissed.

SL151123Tony argued that because the easement deed wasn’t recorded until late 2004, the discovery rule barred dismissal of this count under the statute of limitations. While the Court didn’t agree with that argument, it held Tony appeared to be able to show a set of facts, such as that he did not become aware that trees on the wrong property were cut down until the easement deed was filed in December 2004.

Finally, Tony argued the Town created a private nuisance when it installed the drainpipe on Tony’s property. The Town argued the count should be dismissed for failure to state a claim upon which relief may be granted, as the allegations could not constitute a private nuisance. The Court disagreed, noting that where a municipality is the owner or in control of real estate and creates or permits a private nuisance to another person’s real property, it was liable just as a natural person would be. The essense of private nuisance is injury to property or persons outside the public place controlled by the municipality. There was a genuine issue of material fact as to whether the Town installed a drainpipe on property it controlled, which is now causing injury to Tony’s land.

– Tom Root


Case of the Day – Wednesday, June 10, 2020


Horrific crashes. They happen everywhere. Someone blasts through a stop sign late at night and slams into another car. One driver dies. A lawsuit ensues.

It’s an all-too-frequent tragedy. In today’s case, however, the inevitable lawsuit by the next-of-kin has an unusual twist. The surviving driver wasn’t the only one named as a defendant. Included in the lawsuit was the owner of the corner property, who was accused of contributing to the accident by letting overgrown trees and shrubs obscure the stop sign.

The investigating highway patrol officer testified that the sight lines were not so obscured that the offending driver couldn’t have seen the traffic sign. But the Court of Appeals decided that it wasn’t necessary to sort that out, because Georgia law resolved the issue.

It turns out that a state statute made it unlawful for a property owner to place any unauthorized device or structure in such a location as to obscure traffic signs. Over the years, the courts had defined the statute to include trees and shrubs planted by the owner as among the prohibited devices. But the catch is that the owner himself or herself must have planted the trees and shrubs: if the overgrowth was natural, it could be a rainforest for all Georgia law cared.

The sign's obscured by a rainforest? That's fine with Georgia, as long as you didn't plant it ...

The sign’s obscured by a rainforest? That’s fine with Georgia, as long as you didn’t plant it …

The Court held that because there was no proof the landowner had planted the overgrown vegetation, it didn’t matter how bushy he had let it become. The landowner couldn’t be liable. The lesson seemed to be that the less you do to take care of your place, the better off you are. Truly, less can be more…

Estate of Rachels v. Thompson, 658 S.E.2d 890, 290 Ga.App. 115 (Ga.App. 2008). Around midnight on July 4, 2003, young Winston Rachels was driving his truck northbound on Kent Rock Road, approaching Emmitt Steel Road. There is a stop sign on Kent Rock Road at its intersection with Emmitt Steel Road, but no stop sign on Emmitt Steel Road. Around this same time, Ashley Grant was traveling westbound on Emmitt Steel Road in a Jeep. Ashley did not see Winston’s truck until immediately prior to the accident. The truck and Jeep collided.

The sign, it turned out, was covered with kudzu ...

The sign, it turned out, was covered with kudzu …

Winston’s estate sued Walter Thompson, the property owner adjacent to the road, on the grounds that the property was overgrown, thus hindering visibility. The Estate’s negligence claim was premised upon Walt having violated O.C.G.A. § 32-6-51, which provides that “[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which: … (3) Obstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads[.]” The lower court dismissed the case, and the Estate appealed.

Held: The case was dismissed.

The Court noted that O.C.G.A. § 32-6-51 has been interpreted to include purposely planted trees and other vegetation, including an allegedly vision-obstructing row of trees planted by the defendant. But here, there was no evidence that Walt had planted the foliage at issuel. The photos placed into the record by the Estate in opposition to the motion show a lot overgrown with kudzu.

In his response to the Estate’s interrogatories, Walt said that “[t]here are no improvements on the property[,]” and [s]ince there were no improvements on the property, no maintenance was required.”

The Court held that the Estate has failed to show Walt breached any duty to trim vegetation that he purportedly owed Winston, and summary judgment was correctly granted to Walt.

– Tom Root