Case of the Day – Tuesday, November 5, 2024

Posted on November 5, 2024 by TLRoot tagged.

YOU CAN’T TOUCH THIS

Oh, how good it is to be king!

I recall my shock as a naïve law student when I learned that you couldn’t sue the government unless it gave you permission to do so. Huh? What if you, an individual, could wrap your arms around your man purse and tell a putative plaintiff, “You can’t touch this?” Sweet.

If one had the power to deny someone else the right to sue, who – I wondered in my first-year law cluelessness – would ever give anyone else permission to sue?

The answer, of course, is the government.

The Federal Tort Claims Act and the various state tort claims acts are wonders of obfuscation. At first reading, it seems the governments are taping a big “kick me” sign to their virtual backs, inviting people to go for the really deep pockets. But then, you read the fine print and slowly comprehend that the right to sue has more holes in it than a cheese grater.

Still, occasionally, a political subdivision will discover that even with all of the exemption loopholes in your typical state tort claims act, it’s still wriggling on the hook. Note in today’s case – in which a motorcycle rider blames some county commissioners for not trimming the trees around a stop sign – how the county tries mightily to hide behind the Oklahoma Governmental Tort Claims Act. Somehow, even with a host of exceptions written into the Act, the Board of County Commissioners could not find a shield against liability.

Lopez v. Board of County Commissioners of Cherokee County, 383 P.3d 790 (Okla.Civ.App. 2016). Teresa Lopez was a passenger on a motorcycle operated by Glen Baker when he turned left, failing to yield to a stop sign. Tom Molloy struck Glen’s Harley, seriously injuring Teresa. She sued Glen and Tom, claiming that the Board of County Commissioners of Cherokee County Board was negligent in failing to trim the vegetation that she said obstructed the view of both drivers. Teresa maintained that the Board “had a duty to maintain advance warning signs and [sight] line vegetation control” at the intersection.

The Board filed a motion for summary judgment, arguing that it was immune from suit for Teresa’s claims under the Oklahoma Governmental Tort Claims Act and that it could not be held liable for any claims related to the placing of traffic control signs at the intersection. Teresa argued that the GTCA exemptions do not apply and that the Board had a duty to maintain foliage around its county road intersections, including its rights of way and beyond.

The trial court granted the Board’s motion for summary judgment, finding the GTCA exemptions applied.

Teresa appealed.

Held: The Board was not immune under the GTCA.

The first exemption the Board relied on for immunity was § 155(4), which states “a political subdivision shall not be liable if a loss or claim results from… adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy.”

The Board argued that Teresa complained it had “failed to adopt a policy that would require its mowers to mow beyond the 16½-foot statutory right-of-way.” Teresa responded that she did not claim that a lack of policy was to blame for the overgrown foliage, but rather the “negligent manner in which they cleared the subject intersection.”

The Board asserted as an undisputed fact that the obstructing foliage was located on private property and that it “only mows foliage within its statutory right-of-way, not on the land of other property owners.” The Court held, however, that “evidence in the record does show the Board, as it has in the past, could have sought permission from the landowner to remove the vegetation but did not in this case.” But other evidence suggested that Board employees never mowed over 5 feet on either side of the road because of the width of the mowing equipment. “Based on this record,” the Court said, “the Board has not established that it mowed the entire width of its ‘statutory-right-of-way’ at this intersection.”

Even if the foliage on the intersection’s east side was located on private property outside the right-of-way, the Board did not establish the absence of overhanging limbs or shrub overgrowth within the right-of-way for which it has admittedly assumed responsibility. The Court held Teresa was entitled to the inference that some of the foliage and vegetation obstructing the motorcycle drivers’ views was located in the County’s right-of-way. Therefore, the Court said, a dispute of material fact remains regarding the applicability of this exemption, and summary judgment pursuant to 51 O.S. § 155(4) on this question was improper.

The second exemption the Board relied on is § 155(5), which states “a political subdivision shall not be liable if a loss or claim results from… performance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees.” The Board argued that the decision to mow the area at all was its discretionary decision.

The state and its political subdivisions are specifically exempt from liability if the loss results from the performance or failure to perform a discretionary act or service. But the discretionary function exemption from governmental liability is limited to initial policy level or planning decisions. On the other hand, the Court ruled, “operational level decisions made in performance of policy are considered ministerial and the government is not exempt from liability with respect to operational decisions.”

Put simply, the Court said, a municipality has discretion whether to do or not to do a public work or improvement… The duty is discretionary up to the time that it is determined to do the work or improvement.” However, “after the work is ordered and involves merely the execution of a set task, nothing remains for discretion: the duty becomes ‘ministerial’ or ‘operational’ and requires the municipality to do the work with reasonable care and in a non-negligent manner.”

Here, one of the board members testified he could refuse to do any mowing district-wide if he so chose, but he admitted he had never refused to do so. In fact, he conceded that “mowing is part of the operational responsibilities of Cherokee County” and that, ordinarily, the County would “try to stick with the right-of-way” because otherwise it would “catch trouble” from property owners.

Neither party disputed that the County had in the past and could have, in this instance sought the property owner’s permission to clear the vegetation and foliage that Teresa claimed was obstructing visibility at this intersection. “These actions do not fall under the County’s discretionary function exemption but constitute operational responsibilities,” the Court held, and thus § 155(5) did not apply to this case.

The third exemption claimed by the Board was § 155(10), which provides, “The state or a political subdivision shall not be liable if a loss or claim results from… natural conditions of property of the state or political subdivision.” The Board argued that “it is clearly undisputed that the growth of vegetation is a natural condition of Board property.” The Board did not cause the vegetation to grow; it was “a natural process of all vegetation throughout the world.” To the extent that Teresa’s claim arose from “the natural growth of vegetation on the statutory right-of-way,” the Board said, it was “exempt from liability from the claim under” § 155(10).

The Court, however, held that “natural conditions” were simply conditions over which a person has no control. “The vegetation here was clearly not a condition ‘over which [a person] has no control’,” the Court ruled, “because the Board admittedly had the responsibility to mow and maintain its statutory right-of-way at the intersection.” Therefore, § 155(10) did not apply.

Finally, the Board contended § 155(13) shielded it from liability because a “claim based on failure to inspect government property at regular intervals is exempt from liability.” The Board characterized Teresa’s claim as being “essentially a claim that the Board did not properly inspect the road to determine whether additional mowing of vegetation needed to be done.”

The Court disagreed, holding that “maintenance of property is not the same thing as inspection of property for § 155(13).” A landowner may be liable for negligent maintenance of property irrespective of its inspection powers or functions, the Court said. Thus, an exemption arising from an inspection power or function could not include becoming aware of circumstances “in a general sense without also bringing many types of negligence cases within the class of exempted claims.” To hold otherwise, the Court said, “would put in doubt the viability of every GTCA claim based upon what a defendant should have known…” and thus expand the application § 155(13) to the point “that many other provisions of § 155 would be superfluous.”

The inspection exemption in § 155(13) describes the exercise of a particular governmental “power” or “function,” not a simple familiarization with one’s own property. Governmental entities exercise inspection powers and functions in many contexts, the Court observed, but not where inspection would merely familiarize the Board with its own property.

The Board seemed to assert that a failure to inspect the road to determine whether additional mowing needed to be done constituted an inspection function covered by § 155(13). The Court said, “Because no particular governmental inspection power or function is at issue in this case, we conclude § 155(13) is not applicable.”

Teresa was able to take the Board to trial.

– Tom Root

Case of the Day – Monday, November 4, 2024

Posted on November 4, 2024 by TLRoot tagged.

ERR IN HASTE …

“Haste makes waste,” the old saw goes, and did it ever for the Warrens of Iron County, Missouri.

They finally realized their dream, buying land they had rented for years as cattle pasture for their dream home. First, logically enough, they wanted to mark the boundaries of the land. The Warrens asked their neighbors, the Hales, to pay for half of the survey, but the Hales declined. Why should they pay? They knew where their boundaries lay.

So the Warrens went ahead on their own. Their surveyor couldn’t find the section corner marker, which had been described in some 19th century surveys as laying certain distances on certain radials from streams and trees that weren’t there anymore. So he made his best guess, but didn’t use the technique provided for in Missouri law.

Hard to believe, but the surveyor blew it big time, marking a boundary that was way off the traditional boundaries used by the parties. In fact, his boundary included big chunks of the Hales’ land, such as their entire driveway, landscaping and front lawn and nearly their house. The day after the surveyor placed his little pink flags, Mrs. Hale complained to the Warrens that their surveyor was nuts, and she’d get another surveyor to straighten it all out. She even showed them some old 19th century abstracts, which clearly showed her ancestors had owned some of the land the Warrens now thought was theirs.

Even cousin Pug on the bulldozer had to wonder whether the surveyor’s lines weren’t just a little too optimistic …

Here’s where the Warrens blundered. Mrs. Hale might have been wrong, but her complaints, her intention to get another surveyor, and the Hales’ historical use and occupancy of the land the Warrens now thought was theirs was enough information to give a reasonable person some pause — at least for a few days while the issues were sorted out. But the Warrens weren’t the waitin’ type. They had a family member show up the next day with his bulldozer and start tearing up the Hales’ front yard and landscaping.

The Hales got an injunction, litigation ensued and another surveyor took a whack at the boundary. Oops. The Warrens’ surveyor screwed it up, the court said, failing to use the prescribed method for finding a corner where the original corner was lost. The disputed land really belonged to the Hales, and the Warrens — who had torn up things too quickly — were socked with treble damages under a Missouri statute applying where one destroyed trees or landscaping of another without probable cause to believe the land was his. The unseemly haste of the Warrens to bulldoze the disputed tract, where there seemed to be no need for such fast-track excavation, evidently played a role in the Court’s determination.

Act in haste, repent in leisure.

Hale v. Warren, 236 S.W.3d 687 (Mo.App. 2007). The Warrens bought 64 acres in Iron County, Missouri, that they had rented for the previous nine years, intending to build a home on the land and to continue to graze their cattle there. The Hales owned 80 acres or so next to the Warrens, land that had been in that family for over 150 years.

After buying the property, the Warrens wanted to have their property surveyed before beginning on the house, so they asked the Hales to share the cost of a survey. When the Hales refused, the Warrens went ahead on their own. Their surveyor determined that part of the Hales’ yard and their entire driveway lay on the Warrens’ property, as well as other areas. The surveyor marked the boundary with pink flags.

The next day, Mrs. Hale contacted Mrs. Warren about the pink flags, telling her that she disagreed with the survey, especially with one of the section corners from which measurements were taken. Nevertheless, the Warrens began bulldozing and clearing the land the next day, including right in front of the Hales’ home and along the western border of their property, within the area set out by the pink flags. By the next day, the Hales had obtained a temporary restraining order against the Warrens, barring them from “further bulldozing or other acts of destruction and possession …” The Hales then hired their own surveyor, who found that a section corner used in old surveys had been lost and — applying Missouri law — calculated a starting point by a procedure known as “double proportional measurement.” At the same time, they sued the Warrens to quiet title and for trespass.

The trial court found that the Hales owned Tracts 1, 2, and 3 by adverse possession, and that the Warrens’ survey was “not accurate and correct” but that the Hales’ survey was. The trial court entered a permanent injunction against the Warrens, prohibiting them from entering onto the land in question and assessing treble damages in favor of Hales under V.M.S.A. § 537.340 for $6,300.00. The Warrens appealed.

Held: The trial court was upheld. Much of the decision related to the appropriate use of the “double proportional measurement” system under Missouri law, an interesting if technical discussion. However, the Court’s treatment of the treble damages award in favor of Hales is relevant to arboriculture law. The Court agreed with the trial court that the Warrens lacked probable cause to believe that the property being bulldozed was their own.

Section 537.340 of the Missouri Code imposes treble damages for the wrongful cutting down of trees, without any showing of negligence or intent required. The Court observed that §537.340 “is a penal statute which must be strictly construed.” It is tempered by § 537.360, which holds that if defendant had probable cause to believe land was his own, plaintiff shall receive only single damages, with costs.”

Too bad the Warrens hadn’t read a lot of Moliere. He makes a good point.

A party would have ‘probable cause’ under the statute if there was such cause as would induce a reasonable person to believe he had the right to remove trees from another’s land. Here, the evidence showed the Hales’ driveway had always been at its present location and that the Hales had maintained the area since 1966 as part of their yard, planting trees and shrubbery in that area as well. The tracts had been owned by the Hales and their predecessors since 1855, and fencing had marked the boundary until the Warrens wrongfully removed it. The Hales had harvested timber and cut firewood on the disputed land since they purchased the property from their family in 1966.

After the pink flags were placed by the Warrens’ surveyor, Mrs. Hale showed Mr. Warren a land abstract in which her grandfather had deeded off a portion of the disputed land for a school building. She showed him the abstract to “show them that obviously this had been in our possession since the 1880’s. This particular tract of land that’s in dispute.” She told the Warrens that she disputed their survey and that she would speak to a surveyor herself.

The Court found there was sufficient evidence to rebut the Warrens’ assertions they removed the trees and landscaping at issue because they had probable cause to believe they owned the property. First, for all the years the Warrens had possessed the land as owners or renters, the Court said, it was only reasonable to conclude they should have become familiar with Hales’ general use of their property. Richard Warren admitted that when they purchased his property, he was aware that the Hales stored cars and maintained a large scrap metal pile on the land. Further, when they purchased the property, the Warrens were aware of the location of Hales’ driveway and yard and their generalized use of the land. Second, the Hales disputed the Warrens’ survey as soon as it was surveyed. Mrs. Hale informed the Warrens that she was contacting Smith & Company about the survey because she believed it was incorrect, and she showed them an old abstract relating to the prior use of the property. When the Warrens began bulldozing right away after their survey was done, it was clear that the Warrens knew of the Hales’ open and actual possession and use of the property, and knew that the Hales had issues with the survey lines at the time the bulldozing began.

The Court said it was “difficult… to believe that ‘a reasonable person’ would ‘believe he had the right to remove trees from another’s land,’ where he was faced with: a mowed yard and maintained driveway; areas that were clearly used by the landowner for storing scrap metal and other items; open protests and disputes by the landowner; and a survey which obviously did not comport with historically used property lines.” The Warrens did not meet their burden of proving they had probable cause to believe they owned the land in question at the time they bulldozed the trees and shrubs at issue.

– Tom Root

Case of the Day – Friday, November 1, 2024

Posted on November 1, 2024 by TLRoot tagged.

THE GUY FROM OUT OF TOWN

Mark Twain is reputed to have once said that an expert is just some guy from out of town. Unlike many of the quotes attributed to him, this one is probably authentic.

There are a lot of guys like that in the legal system, as cases rely more and more on esoteric problems that a jury just can’t understand on its own. It is axiomatic in legal circles that witnesses can’t give their opinions, but instead must confine themselves to the facts. Legend incorrectly has it that Sgt. Friday said as much: just the facts, ma’am. And the rules of evidence, both state and federal, largely confine witnesses to “just the facts.”

But those same rules of evidence let certain witnesses, known as “experts,” give their opinions. Naturally, as soon as a good idea like expert witnesses was rolled out, lawyers started to abuse it. Remember the “Twinkies defense?” It relied on an expert to explain to the jury the junk science behind the notion that crème filling was a foreseeable cause of death, murder and mayhem.

Notwithstanding the occasional black eye lawyers and their experts can give the legal system, expert witnesses are crucial as cases get more and more complex. That’s as true in tree law as in most other tort (and many contract) cases. Whether a witness can be qualified as an expert is for the court to determine, and depends on the witness’s education, experience and qualifications. Once qualified as an expert, the witness can give opinions based on a written report provided to the other party. Those opinions must be based on sufficient data, and be the product of reliable principles and methods applied reliably to the facts of the case.

The rules of evidence have effectively moved decisions that control the outcome of a case to a time well prior to the seating of the jury. Today’s case is a good example. Hiram Hyde’s family sued the maker of a stump grinder after the late Mr. Hyde fell in and … well, we’ll leave it to your imagination. The Hyde’s expert witness wanted to testify that putting a clutch mechanism — kind of a cut-off handle like one finds on a rotary mower — on the grinder was easy, economical and logical. The maker’s expert wanted to argue just the opposite.

Both parties went at the other’s experts, questioning their qualifications and opinions. The federal district court referred the matter to a magistrate judge, a kind of an assistant judge intended to handle pre-trial and other tedious matters, who ground through the competing claims without being stumped. He concluded that the experts were qualified, but the stump grinder’s guy couldn’t testify to some of his conclusions because they were based on unreliable data.

Hyde v. Vermeer Mfg. Co., 2007 WL 2329688 (W.D.Tex. Aug. 7, 2007). Hiram B. Hyde died when, while attempting to grind a tree stump using a stump cutter, he became entangled in the cutting and grinding wheel of the stump cutter. His wife and adult kids sued under the Texas Wrongful Death and Survival Statute, arguing that the stump cutter — a Vermeer model SC252 designed, manufactured and distributed by Vermeer Manufacturing Company — was defective.

They sued Vermeer for money damages under the doctrine of strict product liability for alleged defects in the stump cutter; negligence in the design, manufacture, sale, and marketing of the stump cutter, negligence in failing to give adequate or proper warnings or instructions for the stump cutter, negligence based on failure to recall the stump cutter, breach of warranty that the stump cutter was fit for the purposes for which it was intended, and for punitive damages based on gross negligence.

Because no one witnessed the accident, the trial of this case was going to depend on the jury’s consideration of expert opinions about the design of the stump cutter. Each side moved to exclude the other party’s expert witnesses. The trial court referred the matter to a magistrate judge for a recommended decision.

Held: Some of the proposed testimony from one of Vermeer’s experts should be excluded, but none of the expert witnesses should be thrown out.

The Magistrate Judge noted that Federal Rule of Evidence 702 provided for the admissibility of expert testimony if it will assist the trier of fact to understand the evidence or to determine a fact in issue, and if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Rule 703 provides that an expert’s opinion is generally admissible so long as the facts and data underlying that opinion are of a type reasonably relied on by experts in the field.

The Hydes offered Russ Rasnic as an expert to testify about feasible alternative designs that Vermeer could have incorporated into the SC252 stump cutter to reduce the risk of an operator contacting a rotating cutter wheel. Vermeer moved to exclude Rasnic’s testimony on the grounds that Rasnic was not qualified to render his proposed opinions, and his proposed opinions were unreliable. Vermeer complained that prior to this litigation, Rasnic’s experience with stump cutters was limited to using a handlebar stump cutter to cut less than 10 stumps and observing a worker operate a hydraulic stump cutter. Vermeer also complained that since the litigation Rasnic’s experience with the SC252 consists of only 2.8 hours of operating a stump cutter. Finally, Vermeer argued that Rasnic has never worked for a manufacturer of stump cutters.

The Magistrate Judge observed, however, that a witness can qualify under Rule 702 as an expert even though he lacks practical experience, provided that he has received suitable training or education or has otherwise gained the requisite knowledge or skill. The absence of hands-on experience with the particular equipment is relevant to the determination of whether to accept a witness as an expert, but it is not determinative. Here, Mr. Rasnic was a qualified mechanical engineer with expertise in industrial equipment, machine design, hydraulics, guarding, and safety engineering. He has designed machinery using clutch brakes, the safety device on which he would testify. He has numerous professional memberships and has evaluated a number of machines in his forensic engineering practice for both plaintiffs and defendants. He had used a handlebar stump cutter to cut stumps on his property and observed a hydraulic stump cutter in operation before using one that he modified for purposes of testing the safety feature he was recommending in this case. While Mr. Rasnic may have limited experience with hydraulically-controlled stump cutters, the Magistrate Judge said, that was most likely a characteristic shared by most mechanical engineers. His credentials, training, and experience were sufficient to qualify him as an expert on guarding systems for the Vermeer SC252 stump cutter.

Vermeer designated Michael Gililland as an expert to rebut the Hydes’s argument about the need for a cut-out switch and to testify about the adequacy of the warnings on the SC252. In his expert’s report, Gililland argued that the addition of the cut-out switch will cause operators to defeat the switch and that the SC252 is not unreasonably dangerous and the warnings on the machine are adequate. Since preparing his report, Gilliland interviewed five people who had participated in a Vermeer test of an SC252 stump cutter modified with Rasnic’s proposal. Gililland stated that his interviews confirmed the opinions expressed in his expert report. The Hydes have moved to exclude Gililland’s testimony about the 5-user test because he failed to supplement his report and that the plaintiffs did not learn about the 5-user test until after the discovery period had closed, leaving them unfairly surprised by the new information.

The Magistrate Judge agreed that the 5-user test report should be excluded. Rule 703 holds that experts may rely on three sources of information to form their opinions: (1) first-hand observation by the witness, (2) presentation at trial, and (3) presentation of data to the expert outside of court and other than by his own perception. Here, Gililland did not participate in, or observe the 5-user test. Instead, his knowledge of the 5-user test was presented by Vermeer outside of court and was obtained by interviewing the five operators. That testimony was hearsay, the Magistrate Judge said, because Vermeer sought to use statements by the five operators to support Gililland’s opinion of the Rasnic proposal to add a cut-out switch to the SC252.

Under 703, an expert can discuss as the basis for an opinion either facts or data which are otherwise inadmissible hearsay if the basis is of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. In this case, Vermeer did not show that Gililland’s testimony about his interviews with the five operators was of a type reasonably relied upon by experts in his field. First, Gililland had no control over the test. He did not modify the SC252 stump cutters used in the 5-user test, he did not observe the modification of the stump cutters, he did not know who modified the stump cutters, and he did not know who took his photos of the modified machines. He did not record the interviews with the five operators, but instead, he recorded the interviewees’ answers to his questions on a checklist form. In at least two cases, the checklist suggested the desired answer. Finally, his testimony was based on information about a test developed and conducted by his client in anticipation of litigation.

In his report, Gililland advanced several opinions about why Mr. Hyde’s actions constituted negligence and why Vermeer was not negligent. The Magistrate Judge said his opinions were legal conclusions that Gililland was not qualified to advance. The jury would determine the parties’ negligence in this case, and Gililland would not be permitted to testify about his conclusions about the parties’ respective negligence.

– Tom Root

Case of the Day – Thursday, October 31, 2024

Posted on October 31, 2024 by TLRoot tagged.

YOU SNOOZE, YOU LOSE

This past weekend was sunny, brisk and glorious, one that called for enjoying the fall splendor. Outside of a Halloween fright for the first three quarters of Ohio State-Nebraska football (before my beloved Buckeyes awakened from their gridiron snooze to eke out a four-point win in a game where the Buckeyes were three-touchdown favorites – and, by the way, I should say “well fought, Nebraska”), I spent the weekend raking up the fall splendor. A lot of it. By 7 o’clock Sunday night, I was nodding off to sleep.

I used to have the same problem many decades ago in Property Law, a required course for first-year law students. All of those terms I had happily lived 22 years without knowing: fee simple absolute, livery of seizen, life estates, enfeeoffment, trespass quare clausum fregit… Contract law made great sense, civil procedure had a certain elegance, but property…

More often than they should have, my eyes glazed over, my head slumped, and I slumbered while Professor Prosser droned. Even without first raking leaves. Ah, how education is wasted on the young.

Speaking of slumber, the defendant in today’s blast from the past did just that. Like your author, he paid too little attention to Byzantine concepts like life estates. When the owner of a life estate gave him permission to harvest timber on her land, Hempy slept on his rights. The owner of the life estate died, whereupon Hempy awoke from his slumber and figured maybe he had better get those trees cut.

Too little, too late. A life estate lasts only as long as the person holding the life estate does. While the holder lives, the life estate can create real mischief, but once the life expires, so does the estate. And so do any rights the estate holder may have granted.

But the reason the timber cutting was a trespass is not terribly relevant to today’s case. Instead, it is only the setup for the real issue, which is how to value the damages.

Koonz v. Hempy, 120 N.W. 976 (Supreme Court, Iowa, 1909). Koonz sued Hempy for cutting timber on property in which he had recently obtained an interest following the death of his mother. Apparently, Koonz’s mother, who had held a life estate in the property granted by her deceased husband, had contracted with Hempy to remove timber on the property. However, Hempy did not harvest the timber until after the mother had died. The trial court ruled that mom’s demise meant that Hempy had lost his right to cut the timber, because the life estate was extinguished with her passing, and Koonz was now in possession. The court awarded damages to Koonz, and both parties appealed.

Held: Hempy was liable to pay the value of the harvested timber to Koonz. However, Hempy argued that if he was liable at all, it was only for the reduction in the value of the property after he removed the timber. The Court disagreed, ruling that “where the thing destroyed or removed from real property, although it is part of the realty, has a value which can be accurately measured … without reference to the soil on which it stands, the recovery may be of the value of thing thus destroyed or removed, and not for the difference in the value of the land.”

Applying this rule, the Court held that the trial court had properly measured damages in terms of the value of the timber alone. Throwing a bone to Hempy, the Court ruled that the trial court properly denied treble damages, because Hempy’s actions failed to demonstrate the requisite willfulness to warrant such an award.

– Tom Root

Case of the Day – Wednesday, October 30, 2024

Posted on October 30, 2024 by TLRoot tagged.

YOUR RESPONSE STINKS

This case is the septic equivalent to the old doctor’s advice of “take two aspirin and call me in the morning.”

Mrs. Hubbell was a resident of Xenia, a small city in southeastern Ohio (Motto: One of America’s only cities to start with ‘x’). One unfortunate day, Mrs. Hubbell discovered that ‘x’ didn’t just stand for “Xenia.” It stood for ‘x’crement, too.

When Mrs. Hubbell’s basement, bathroom and kitchen all started filling up with some pretty nasty effluent from the sewer line, she called the emergency helpline the City of Xenia maintained for homeowners with such smelly problems. But it was the weekend, and the sewer department worker on duty wasn’t too keen on going out in the rain to check out her problem. He figured that it was just the rain backing things up, and if it were really bad, Mrs. Hubbell would call again.

Well, it was really bad, and Mrs. Hubbell did call again an hour later, to catalog all of the types of malodorous waste bubbling into rooms all over her house. That time, the worker did come. When he and his assistants pulled a manhole cover off the sewer main around the corner, a fountain of filth erupted and the liquid waste in the Hubbell home started draining away. It turned out that tree roots had jammed up the sewer main, and the City’s maintenance program hadn’t gotten around to clearing them away.

Mrs. Hubbell was unhappy at the Sewer Department’s lackadaisical response to her problem, so she sued. The City claimed it was immune under Ohio’s governmental immunity statute because its inspection program was an exercise in discretion. True, the Court agreed, but there was nothing requiring any special expertise in the lazy worker’s refusal to respond when Mrs. Hubbell reported a problem. The problem, the Court said, is that almost everything required some discretion, and to accept the City’s argument meant that everything a governmental entity did would be immune.

Erupting effluvient …

Here, the City had a kind of a contract with its residents. The City offered an emergency number, and the implied deal was that if a local taxpayer called, the City would respond. The worker’s decision to let the stink build — and to be sure, it was a real problem worthy of his attention on a Sunday afternoon — could easily be negligence. The Court said Mrs. Hubbell was entitled to her chance to prove that to a jury.

Hubbell v. Xenia, 175 Ohio App.3d 99, 885 N.E.2d 290 (Ct.App. Ohio 2008). Water and sewage began flowing into Mrs. Hubbell’s home through drains in a shower, a toilet, and a bathroom sink. Believing that the stinking problem was likely caused by a malfunction in the sewer system maintained by the City of Xenia. She called the City’s emergency services, and the call automatically transferred to the Xenia Police Department. The police paged an on-call sewer and waste maintenance worker, but he refused to do anything, suspecting that the problem was likely the result of heavy rainfall that day.

The sewage and dirty water continued to flow into Mrs. Hubbell’s home, and she desperately placed a second call for help several hours later. This time, the on-call worker decided to respond and investigate the problem, and a service crew was brought in.

Hubbell’s home is located at the intersection of Monroe and Home Avenues. The house is connected to the sewer main on Home Avenue, which in turn connects to the main on Monroe Avenue. The service crew examined the Home Avenue main line and found it was flowing freely, but when they removed the Monroe Avenue manhole cover, the backup into Hubbell’s house promptly subsided. The crew removed tree roots that had invaded the main. Sewer Department officials conceded that the roots may have contributed to the blockage.

Hubbell sued, alleging that Xenia was negligent in maintaining and operating its sewer line because it failed to inspect the Monroe Street main, allowing the line to become obstructed and clogged by tree roots and collected refuse, causing the back-up into her home. She also said the sewer condition constituted a nuisance for which Xenia was liable. Xenia claimed it was immune from liability under the Political Subdivision and Tort Liability Act.

The trial court refused to throw the case out, and Xenia appealed.

Held: The City was not entitled to have the case dismissed without trial. Generally, the Court said, where a municipal corporation assumes the management and control of a sewer, it is required to exercise reasonable diligence and care to keep the system in repair and free from conditions that will cause damage to private property. The municipality’s failure to do so may make it liable for damages caused by its negligence.

However, a municipal corporation’s liability is nevertheless subject to the defense of governmental immunity provided by §2744.01 of the Ohio Revised Code, if any of the five exceptions or one of the defenses to immunity set out in the statute apply.

Here, the Court ruled, Xenia’s ongoing inspection and cleaning of its sewer lines were entitled to governmental immunity because the execution of the program involved judgment and discretion as to how extensive and in what manner the program would be executed. However, routine decisions requiring little judgment or discretion and which, instead, portray inadvertence, inattention, or neglect, are not covered by the statute’s grant of immunity.

The City maintenance worker’s decision not to respond to Mrs. Hubbell’s call regarding the sewer backup incident, due to his belief that her problem resulted from excess rainfall, wasn’t an act of judgment or discretion for which the city was entitled to governmental immunity. Instead, the City’s contractual agreement with its residents to provide emergency services to those to whom it provided sewer services gave rise to a duty to perform such emergency services with ordinary care.

When one undertakes a duty to perform an act, and another reasonably relies on that undertaking, the act must generally be performed with ordinary care. A genuine issue of material fact existed, the Court said, as to whether the City was negligent in its performance of its duty to provide emergency services to Mrs. Hubbell, and that matter could only be settled at trial.

– Tom Root

Case of the Day – Tuesday, October 29, 2024

Posted on October 29, 2024 by TLRoot tagged.

THE CAMEL’S NOSE

Prescriptive easements – easements across someone’s land acquired, usually by public utilities, because of a lapse of time – are fairly common. That’s usually because no one thinks twice about utility poles and overhead lines – or buried gas lines, for that matter – until an issue arises and the landowner discovers to his or her chagrin that the utility never obtained an easement for the overhead or underground facilities, but too much time has passed to do anything about it.

In today’s case, a prickly landowner with the unlikely name of Lindburgh Jackson didn’t much like the overhead power lines and the utility pole on the land he bought in 1978. But somehow, for all of his complaining, he never bothered to check to see that Alabama Power had an easement to be there. It didn’t.

Unfortunately, for Unlucky Lindy, it took him nearly 25 years to challenge APCo, and only then because – as is increasingly common in our wired world – some new fiber optic system named Lightwave wanted to use the APCo poles and easement for its cable.

APCo easily proved that it had a prescriptive easement over Jackson’s land. After all, it had been trespassing with its poles for over 21 years. But the Alabama Supreme Court held that just because APCo had snagged an easement from Jackson for free to maintain electric lines didn’t mean Lightwave could cross the land with impunity, even on the APCo poles. The camel’s nose might be in the tent, but that didn’t mean that the whole camel could necessarily follow. APCo could use the easement for electricity transmission, but not for anything else it cared to.

The Supreme Court’s ruling suggests that Alabama at least takes a very strict view of how much a landowner has given up when he or she loses an easement by prescription — and that’s probably a good thing.

Ex parte Lightwave Technologies, L.L.C., 971 So.2d 712 (Sup.Ct. Ala. Apr. 27, 2007). Lindburgh Jackson owned property in Auburn, Alabama. Alabama Power Company has maintained power lines across his land and a utility pole on the property since he bought the place in 1978. Mr. Jackson never much cared for APCo, and has complained continually about APCo’s use and maintenance of the lines and the pole, but he did nothing about them.

Sometime in 2001, Lightwave Technologies – pursuant to a “pole-sharing” agreement with APCo – installed fiber-optic cable on the utility pole on the Jackson property. The City of Auburn had authorized Lightwave to install its cable and had established the route for such placement. Jackson sued everyone, APCo, Lightwave, and the City of Auburn, alleging among other claims that APCo had conspired with Lightwave to commit trespass on his property. The trial court entered a summary judgment in favor of all the defendants.

The Court of Civil Appeals concluded that because APCo had maintained the power lines in opposition to Jackson’s objections from April 1983 until September 2003, it had obtained an easement by prescription over the portion of his land it used. The Court of Civil Appeals upheld judgment for APCo with respect to the trespass claim filed against it and found for APCo and Lightwave on the conspiracy claim.

Undaunted, Jackson appealed to the Supreme Court of Alabama.

Held: APCo could not give Lightwave the right to use its prescriptive easement over Jackson’s land.

In order to determine whether APCo had the right to permit Lightwave to use the easement, the Court considered first whether APCo has the right to apportion its prescriptive easement and whether its apportionment to Lightwave was within the scope of the prescriptive easement. The Court said that the term “apportionability” in reference to easements refers to the easement owner’s right to divide the easement to produce independent uses or operations.

In general, the Court observed, an exclusive easement in gross is apportionable to the extent the additional use is authorized by the manner or terms of the easement’s creation. An easement in gross is an easement that benefits an easement holder personally whether rather than the benefit of the easement accruing to another piece of land. An exclusive easement grants unfettered rights to the owner of the easement to use the easement for purposes specified in the grant to the exclusion of all others, including the servient owner. Here, the Court held, APCo’s prescriptive easement was an exclusive easement in gross because it permits APCo to use the easement for the construction and maintenance of power lines and precludes, by its nature, Jackson and Matthews from using the easement for that purpose.

Just because a utility pole on a prescriptive carries one wire doesn’t mean that it may carry more than one …

Prior decisions held that easements and easements acquired by condemnation may be apportioned when the language in the document or condemnation order creating the easement indicates an intention to convey or to grant the right to apportion and when the apportionment does not constitute an additional servitude. But, the Court said, the decisions cannot stand for the proposition that a prescriptive easement – like the one in this case – is apportionable as a matter of law. Although the Court agreed that APCo’s prescriptive easement could be apportioned, the question to be resolved is exactly what rights APCo possessed that it could apportion.

In Alabama, the scope of an easement established by prescription is determined by the extent of the use. An easement holder is not entitled to materially alter the scope of its easement. Here, Jackson allowed APCo to gain a prescriptive easement over the disputed property. However, while Lightwave may have affixed its line to the power pole nearly 3 years before Jackson filed this action, one can hardly conclude that a relatively short 3-year delay amounts to acquiescence by Jackson of the apportionment. The Supreme Court ruled that APCo acquired the right to string power lines across the disputed property, but it did not acquire a right to string any line or cable providing something other than, or related to, electrical power over the easement.

Because APCo’s prescriptive easement is limited in scope to the extent of the use that created it, APCo’s apportionment of the prescriptive easement does not serve to insulate it from the conspiracy claim, nor does APCo’s attempt to apportion its prescriptive easement insulate Lightwave from either the trespass claim or the conspiracy claim against Lightwave.

– Tom Root

Case of the Day – Monday, October 28, 2024

Posted on October 28, 2024 by TLRoot tagged.

MEAN WHAT YOU SAY

I suppose that given the most recent former inhabitant of the White House – who figures to live there again, conviction-free, come January – discussions of the warts, real or imagined, of former presidents must seem like nitpicking. But still, we recall that back when George Stephanopoulos was a mere flack for President Bill Clinton and not yet a respected television commentator for ABC, he parried a skeptical Larry King with a defense that was unintentionally candid.

President Clinton, George declared, had “kept all of the promises he intended to keep.” Any suggestion that the former President might have lacked veracity at times may today seem hopelessly quaint. But the malefactors in today’s case apparently tried it out for themselves.

In order to get a zoning variance to add on to their newly-purchased estate in the tres chic village of Centre Island, New York (once home to Billy Joel and his $32.5 million shanty), the Comacks promised not to let the shrubs and trees obstruct anyone’s view of Oyster Bay. Believing their sincere pledge, the Village OK’d the proposal.

A few years later, the bushes were high and the trees were leafy, and the Comacks said something to the effect of, “Promise? What promise? Oh, that promise… It’s… uh… kind of unclear what we really intended to promise. Let’s just forget the whole thing.” Or something like that.

Sometimes, as nice as the trees may be, the view without them is even better. (Editor’s note: this photo was not taken at the Comack’s – it is illustrative only)

The Village elders didn’t forget it, soreheads that they apparently were, and sued the Comacks. The trial court found for the Comacks, but the court of appeals reversed and required the Comacks to keep their word. The appellate judges apparently could figure out what the meaning of “is” was.

Incorporated Village of Centre Island v. Comack, 39 A.D.3d 712, 834 N.Y.S.2d 288 (N.Y.A.D. 2 Dept., 2007). In 1999 the Comacks purchased property in the village of Centre Island and sought a variance to maintain and enlarge the pre-existing, nonconforming home on the lot. Specifically, they sought to build a second-story addition over the existing garage and to change the roof line. The proposed expansion and changes would have necessarily affected the neighboring properties’ existing views of the waters of Oyster Bay. And, Centre Island being a ghetto of the fabulously well-to-do, the unobstructed views of all that their wealth had enabled them to accumulate were rather important to the residents.

In consideration for the granting of the variance, the Comacks signed a “Declaration” that provided “[a]ll open views from points off the premises to Oyster Bay shall remain in their present unobstructed state … [n]o trees or major shrubs shall be planted on lots 85 and 86 with the exception of minor shrubs and bushes which if allowed to grow to full height would not impede the aforesaid open views. Any shrubs or plants which if allowed to grow to maturity would exceed three feet in height will require the approval of the village building inspector for compliance with the intent of the declaration …”

Remember Johnny Nash? Are you really that old? Johnny obviously didn’t live near the Comacks, or he would never have written the song.

The variance was granted, but a few years later, shrubs and trees planted by the Comacks began obstructing neighbors’ views of the Bay. The Village sued. The trial court agreed with the Comacks that the “Declaration” was vague and that the case should be dismissed. The Village appealed.

Held: The trial court was wrong. It was the Village’s complaint that should be granted, not the Comack’s request that it be dismissed. Contrary to the trial court’s determination, the language of the “Declaration” and, in particular, the first provision thereof, was not “imprecise and vague” so as to render it unenforceable. Instead, the “Declaration” — read as a whole to determine its purpose and intent — is clear that the Comacks made a deal. In consideration for the granting of the variance, the Comacks agreed to maintain “[a]ll open views from points off the premises to Oyster Bay … in their present unobstructed state.”

Because there is no ambiguity, the “Declaration” must be enforced according to the plain meaning of its terms. The Court held that to the extent that certain shrubs and trees planted by the Comacks obstructed “open views from points off the premises to Oyster Bay,” these violate the “Declaration.” The Court sent the case back to the trial court to determine whether the Village was entitled to damages and whether the Comacks should be ordered to cut down certain shrubs and trees from the subject property that obstructed “open views from points off the premises to Oyster Bay.”

– Tom Root