Case of the Day – Thursday, May 8, 2025

Posted on May 8, 2025 by TLRoot tagged.

BROTHERS, CAN YOU COLLECT A DIME?

One of the first rules that personal injury lawyers learn in law school is “find the deep pocket.” After all, what good’s a million-dollar judgment against some guy whose earthly assets consist of a 1998 pickup truck and a rusty chainsaw?

Today’s victim, one of the Brothers brothers, was hurt while he performed tree trimming. An employee of Tamarack Forestry Services, Bro was struck by an aerial lift truck operated by another Tamarack employee. Of course, workers’ comp would have covered the accident, and at the same time would prohibit him from suing his employer (one of the tradeoffs demanded by the workers’ comp system, which is intended to stand in place of the old “sue and score” personal injury lawsuit). That just wouldn’t do, because without a good negligence lawsuit, how could Brothers’ personal injury lawyer find a pocket to pick?

Lucky for Brothers his employer, Tamarack, had been hired by New York State Electric and Gas Corp., a public utility that had plenty of money: just look at your light and gas bills if you doubt that. NYSEG was no patsy, pointing out that Tamarack was merely an independent contractor, a fact which normally would make NSYEG not responsible for the accident.

It seems, however, New York law has an exception where the employer of an independent contractor had a contractual duty that it couldn’t delegate, such as where it had agreed to be liable for a contractor’s negligence. It turned out NYSEG was working on a DOT right-of-way, and it annually got a blanket license from the State allowing it to do so. The license had some boilerplate in it that NYSEG would comply with federal and state worker safety regulations.

“Ah-ha!” cried Brothers’ lawyer, “a nondelegable duty!”

“Ah-ha, nothing!” cried the New York Court of Appeals (the state’s highest court), holding that the non-exclusive license to trim trees created no duty that NYSEG owed DOT. Besides, the court said, public policy (which is what the court cites when it knows where it wants to go but doesn’t know exactly how to get there) argues against such an unreasonable expansion of the “nondelegable duty” doctrine.

Which is not to say that the Court was wrong. It concluded that making NYSEG liable simply because the State of New York required it to buy boilerplate permits around the station would completely disrupt the company’s use of contractors to perform work, would bring utility maintenance to a screeching halt, at least until rate increases were approved to cover all of the

Brothers v. New York State Elec. and Gas Corp., 11 N.Y.3d 251 (N.Y. Court of Appeals, 2008). Mr. Brothers sued New York State Electric & Gas to recover damages for injuries he sustained as an employee when he was struck by an aerial lift truck operated by a coworker. The public utility had contracted with Brothers’ employer, Tamarack Forestry Service, Inc., to furnish all necessary labor, supervision, and equipment to clear trees and brush along electric lines. NYSEG routinely obtained annual blanket highway work permits from the New York State Department of Transportation for work to be performed along state highways. Under the permit, NYSEG was required to comply with various federal and state worker safety regulations. The trial court refused to grant NYSEG summary judgment dismissing Brothers’ action. Brothers appealed, and the intermediate appellate court affirmed the trial court. Brothers then appealed to the state’s highest court.

Held: NYSEG could not be sued by Brothers. It’s true that in the work permit, NYSEG “assumed a specific duty by contract” to comply with federal and state worker safety regulations, but such a permit is not a typical “bargained-for exchange.” Although the State charges a fee for the permit, the fee is nominal. A permit holder’s “breach” of the permit’s conditions does not give rise to the usual contract remedies. In fact, DOT may revoke the permit at any time, whether or not there is a breach.

Nevertheless, the permit imposed certain obligations on the permit holder. Its terms and conditions are not meaningless or optional; instead, the permit holder agrees to abide by them in order to obtain DOT’s permission to work in the highway right-of-way. The Court said that the key issue was whether NYSEG has undertaken a nondelegable duty to comply with the safety regulations enumerated in the permit for Brothers’ benefit.

Gen. Robert E. Lee knew something about duty … and even he couldn’t have found that NYSEG owed one to Mr. Brothers.

Whether a particular duty is properly categorized as ‘nondelegable’ necessarily entails a sui generis inquiry where “the conclusion ultimately rests on policy considerations.” And here, several policy considerations argued against sticking NYSEG for Tamarack’s negligence. First, the Court said, “Expanding vicarious liability to cover these work permits would make NYSEG potentially liable to a large class of plaintiffs, thus extending its duty beyond any reasonable limit.” Every year, public utilities pull highway work permits covering extensive areas and, for practical reasons, routinely hire hundreds of independent contractors to perform the construction or maintenance needed. The Court said that while an injured employee’s recovery from an independent contractor is limited by workers’ compensation, “this is not sufficient justification to impose vicarious liability on a utility that does not supervise or control the injury-causing work.”

After all, New York law requires utilities to obtain permits, and they do not have the power to bargain for terms and conditions of those permits. Brothers complained that NYSEG should be liable because it voluntarily assumed a duty to comply with the safety regulations recited in the permit. The Court disagreed: “NYSEG does not really have a choice in the matter; it cannot shirk maintenance work in state highway rights-of-way.”

– Tom Root

Case of the Day – Wednesday, May 7, 2025

Posted on May 7, 2025 by TLRoot tagged.

HERE, LET ME FIX THAT

Residential developments often have deed restrictions, or just merely homeowners’ association rules, prohibiting different colors of house paint, refusing clotheslines and outbuildings, and even banning trees that block the neighbors’ view. And yet people buy houses in the developments, too excited at closing to pay a lot of attention to yet another page of legalese buried in a mountain of legalese. When, several years later, those restrictions get in the way of their whims, the unhappy parties blame everyone but themselves.

That happened to Gail Andrews, who bought a place at beautiful Sandpiper Village in Waldport, Oregon. These places aren’t cheap, but the ocean view makes them quite desirable.

Ms. Andrews lived harmoniously with her neighbors for several years, until a nearby homeowner asked her to trim her trees because they were blocking his view of the ocean. Ms. Andrews ignored his request. Not to be denied, the neighbor had the local homeowners association ask her to trim them. She didn’t ignore the homeowners’ association. Instead, she sued them, and her lawyer found a hook.

The current restriction on trees had been adopted in 1993, a few years before Gail moved in. It provided that no trees, hedges, shrubbery, plantings, or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. But a year after the restriction was adopted, the association’s lawyer decided to rewrite it just a little. He added the phrase “designated ocean view lot” to the restriction, so it read “no trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.”

You know, counsel was just trying to be helpful, to make it a little clearer. The only problem was that there was no such thing as a “designated ocean view lot.” Ms. Andrews glommed onto the new language, claiming she didn’t have to trim her trees because her neighbor’s lot wasn’t a “designated ocean view lot.” In the alternative, she said the whole restriction was void because the homeowners had never passed on the “designated ocean view lot” language.

The Court concluded that the evidence showed that the association’s lawyer never intended that his rewrite change the restriction that the homeowners had approved. Besides, Ms. Andrews had a chance to read all of the rules before she moved in. Her excuse was that some unnamed person who had been attached to the homeowners association had once told her that her neighbor’s place was not a “designated ocean view lot.” Kind of short on corroborative facts, Ms. Andrews, aren’t we? The Court thought so. Without revealing who and when the conversation occurred, Ms. Andrews was unconvincing.

There’s a lesson here for the helpful lawyer. If the restriction was too confusing as it was passed — and there’s no evidence it was — he should have asked the homeowners to vote on the new one. Being a lawyer, he should have foreseen that problems with the restriction wouldn’t arise from good-faith confusion as much as bad-faith avoidance. And he should have imagined that the non-trimmer would hire a mouthpiece who would run a chainsaw through his “helpful” rewrite.

More to the point, why would anyone use gobbledygook like “designated ocean view lot” when there was no procedure for designating lots in the first place? The lawyer’s helpful “fix” just created a mess and cost his client a lot of money. The unanswered question is whether his client punched him in the kisser and fired him, or just fired him without fisticuffs.

It would be a close call.

Andrews v. Sandpiper Villagers, Inc., 170 P.3d 1098 (Ore. App., 2007). Sandpiper Villagers, Inc., was the local association of homeowners in Sandpiper Village, a coastal subdivision. When the subdivision was built in 1968, the developer recorded a declaration of covenants and restrictions prohibiting trees, hedges, shrubbery, plantings, or fencing over six feet tall. The restrictions were to remain in effect for 25 years, during which they could be amended by a vote of the lot owners. In 1993, the association adopted an amended declaration providing that no trees, hedges, shrubbery, plantings, or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. The next year, the association’s legal counsel drafted what he termed to be a “stylistic” change to the restriction, one that was not voted on by the homeowners. Following his change, the provision held that no “trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” Another provision stated “[i]f a provision is subject to more than one reasonable interpretation, any reasonable interpretation adopted by [the board] shall control.”

Andrews bought a lot in Sandpiper Village in 1997, after reviewing the 1994 restrictions as part of her title report. Six years later, another member of the association sent a written notice to Andrews asking her to trim trees on her property in order to preserve his view. She did not. When the ARC asked in writing that she do so, she sued, asking a ruling from the court that the association had no authority to require her to trim the trees because there was no documentation or other evidence showing that her neighbor’s property was a “designated [ocean] view lot.” She also asked that the restrictions be declared void as contrary to state statutes.

The Association moved for summary judgment, arguing that because the phrase “designated ocean view lots” was drafted as a stylistic change and never voted on by the homeowners, it should be disregarded. Without that phrase, the Association argued, the 1994 restrictions had the same effect as the 1993 restrictions. Alternatively, the Association said that even assuming that phrase is a valid part of the 1994 restrictions, the phrase was ambiguous and the court either should defer to the ARC’s interpretation or determine – based on extrinsic evidence – that it was not intended to effect a substantive change to the 1993 restrictions under which all lots were entitled to view protection. The trial court awarded summary judgment in favor of the Association. Andrews appealed.

Held: The Court of Appeals upheld the judgment for the Association. If a text’s meaning is unambiguous, the Court said, courts decide the meaning of contractual provisions as a matter of law. If disputed contractual provisions are ambiguous, however, courts proceed to examine extrinsic evidence of the contracting parties’ intent, including, if helpful, evidence regarding the parties’ practical construction of an agreement.

Here, the phrase “designated ocean view lots” in the restrictions was unambiguous, referring to those lots that, as a matter of observable fact, had a view of the ocean. Plus, extrinsic evidence supported the Association’s claim that the regulations were unchanged from those approved by the homeowners. The Association’s lawyer’s contemporaneous communications indicated that his revised section of the regulations was intended to have the same substantive effect as section of regulations which, by its terms, did not restrict the protection of ocean views to any particular ocean view lots, such as those that someone had previously “designated” as having an ocean view.

Andrews argued that a prior chairman of the ARC assured her that her neighbor’s lot was not a “designated ocean view lot,” but the Court said that wasn’t a sufficient claim to create a factual dispute about the meaning of the restrictions. Andrews’ affidavit did not state whether the prior chairman was the chairman of the committee at the time she made the statement or, alternatively, at the time that the regulations were adopted.

– Tom Root

Case of the Day – Tuesday, May 6, 2025

Posted on May 6, 2025 by TLRoot tagged.

YOU SHOULDA WORN A HAT

Everyone has probably experienced it. Something goes terribly wrong, and the numbskull responsible for the mishap refuses to step up. Instead, he or she points at you and finds a reason it’s all your fault.

It’s a Lucy Van Pelt moment. In one memorable Peanuts strip, Lucy was reprimanded for fighting with her little brother, the blanket-toting philosopher-kindergartner Linus. In response, she pointed at him and argued, “It’s his fault. He hit me back first.”

Juries can be swayed by convincing variations of this theme, where the plaintiff is denigrated as somehow as liable or more liable for the accident than is the defendant. Sometimes it is true. But often it is not. It falls to the trial judge to regulate the flow of evidence to let the relevant stuff in while prohibiting material that might “inflame the passions” of the jury into reaching a verdict that is stupid.

Indiana’s approach is common. There, for example, the law prohibits a defendant from introducing evidence that an injured plaintiff was not using safety equipment, unless the failure to use the equipment somehow contributed to causing the injury.

Today’s case is from the U.S. Court of Appeals for the 7th Circuit, because the negligence action was brought in federal district court. It was what is called a diversity case, allowed in federal court because the plaintiff was a resident of one state while the defendant was a Hoosier. In diversity cases, the federal courts are bound to apply state law, which is how three judges in Chicago can be so focused on Indiana law.

Webber v. Butner, 923 F.3d 479 (7th Cir. 2019): Johnny Webber was helping his friend Roger Butner cut down trees on Butner’s property. Johnny was not a professional logger, and he was not wearing a hard hat while cutting down the trees. The duo agreed that Johnny would operate the chainsaw while Roger would assist by watching out for hazards. While Johnny was cutting into one of the trees, a dead branch fell on his head, causing severe injuries.

Johnny sued Roger, arguing that he had a duty to take reasonable steps to protect Johnny’s noggin, both because he was the landowner and because, while he had agreed to look out for hazards, he failed to warn Johnny of the falling branch. Johnny said his injuries were a proximate result of Roger’s breaches of duty.

The case was tried to a jury. Before opening arguments, Johnny moved to exclude evidence that he had not been wearing a hard hat while he was cutting down the trees. The district court turned him down, ruling that the evidence could be introduced “to show assumption of risk, comparative fault, and whether Johnny Webber acted as a reasonably careful person.” In his closing argument, Roger’s counsel employed the Lucy defense, reminding the jury that Johnny was to blame because he cut the trees “without wearing any safety helmets, any safety equipment,” and that “you can consider that testimony that he didn’t wear a hardhat, so he basically — he assumed the risk of that danger.”

The court instructed the jury: “Evidence relating to the use of a hard hat is offered to show assumption of risk, comparative fault, and whether Johnny Webber acted as a reasonably careful person. You may not consider it to show whether it would have prevented or altered the extent of Johnny Webber’s injuries.”

The jury did not bother to parse things that finely, apportioning 51% of the fault to Johnny and 49% of the fault to Roger. Under Indiana law, this meant Johnny got nothing.

Johnny appealed, challenging the trial court’s admission of evidence that he was not wearing a hard hat and the jury instruction on what it could use that evidence for.

Held: Johnny was entitled to a new trial, because the evidence he was not wearing a hard hat should never have come in and the results were so close that the erroneous admission of the hard hat evidence probably affected the outcome.

The Indiana comparative fault statute, Ind. Code §§ 34-51-2-7(b)(2) and 34-51-2-6, is a type of modified 50% comparative fault law. The Act replaced the common law rule of contributory negligence, under which a plaintiff who was even slightly negligent was barred from any recovery. Instead, the Act allocates fault proportionally, ensuring that each person whose fault contributed to causing injury bears his or her proportionate share of the total fault contributing to the injury.

However, the “modified” part of the Comparative Fault Act is this: If a claimant is deemed to be more than 50% at fault, he or she is barred from recovery. In determining fault, Indiana law also prohibits admission of evidence that an injured plaintiff was not using safety equipment unless the failure to use the equipment contributed to causing the injury. Ind. Code §§ 34-51-2-7(b)(1) and 34-51-2-3.

To prove that Roger was at fault for his injury, Johnny would have to show (1) Roger owed him a duty; (2) Roger breached his duty by allowing his conduct to fall below the applicable standard of care; and (3) Johnny was injured by Roger’s breach of duty.

In the Act, “fault” is defined to include any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages. The phrase “unreasonable failure to avoid an injury or to mitigate damages” applies only to a plaintiff’s conduct before an accident or initial injury. A plaintiff’s post-accident conduct, even if it constitutes an unreasonable failure to mitigate damages, is not to be considered in the assessment of fault.

A broad range of conduct initially may be considered by the jury, but it may allocate comparative fault only to those people whose fault was a proximate cause of the claimed injury.

Johnny probably should have worn a hard hat, although it is unlikely that the hard hat would have lessened his injuries much, if at all. But it is clear that Johnny’s failure to wear his hat did not cause the branch to fall, or cause Roger not to be vigilant in seeing the danger. That being the case, the court should not have let in the evidence that Johnny was bare-headed.

Roger’s margin of victory was razor-thin. Two percent the other way, and Roger would have been liable for 51¢ of every dollar of damage to Johnny. As the Court of Appeals put it, “Admitting this evidence and submitting an instruction to the jury that allowed them to consider it in apportioning fault were legal errors. The jury’s apportionment of fault between the parties was so close that we cannot treat the errors as harmless.”

– Tom Root

Case of the Day – Monday, May 5, 2025

Posted on May 5, 2025 by TLRoot tagged.

¡CINCO DE MAYO!

Either the aftermath of battle … or the morning after celebration of Cinco de Mayo. The Mexicans, having more sense than we do, make little fuss over May 5th.

Today we celebrate Cinco de Mayo, the most cherished of Mexican patriotic holidays, a day when all true patriots of the Escudo Nacional de México honor the great…

Pendejadas! All right, Cinco de Mayo is essentially unobserved in Mexico, but it is commemorated in all but two bars in the U.S. to celebrate a surprising but utterly insignificant victory of Mexican forces over the French Army. So today we hoist a cerveza to Kelly Rush. Mr. Rush, like the Mexican military, won a meaningless trial court victory on the way to getting routed.

The French invaded Mexico because our neighbor to the south owed reparations to the Second Empire, but decided that a siesta was more salubrious than settling up. By contrast, Mr. Rush was looking to be paid for the work he had done for JoAnn Goodwin. Kelly is undoubtedly an arborist and landscaping specialist of the first water, but as a businessman … well, that’s another story.

Mr. Rush bid a job for JoAnn Goodwin. And like all of Gaul, it was divided into three parts. One part was tree removal, one was landscaping, and one was the installation of a drain system. Of course, as soon as the job began, there was mission creep. More trees were to be cut down, and then more, and extra branches were to be hauled away. Rush diligently completed the extra work, but he wasn’t nearly so diligent in getting change orders signed by his customer, leading to inevitable confusion.

Alas, hilarity did not ensue. Instead, JoAnn denied asking for any more trees to be cut down, and alleged Rush was overcharging her. Rush said more money was owed. At that point, Kelly “Who Needs a Lawyer?” Rush sued Ms. Goodwin in Justice of the Peace Court, a very informal court in Texas for small issues. He won $4,500. It was his moment, his own victory at Puebla. But recall that after getting his Gallic butt kicked on May 5, 1862, French General Charles de Lorencez responded a year later with a second Battle of Puebla. No one talks much about that one, because the cheese eaters routed the Mexican forces and headed for Mexico City. Like Monsieur General, Ms. Goodwin regrouped, reprovisioned, and came after Mr. Rush again.

In her own second battle, Goodwin appealed to the regular trial court, which was obliged under Texas law to hold a whole new trial. At that trial, Rush’s damages fell from $4,500 to $200, despite the fact he showed the court the contract, two change orders Ms. Goodwin had initialed but not signed and one which he had prepared but she hadn’t even initialed.

The stubborn Mr. Rush appealed the $200 verdict. At the Court of Appeals, Kelly Rush found himself really swimming upstream. His only argument was that the trial court’s decision was contrary to the weight of the evidence, and those cases are hard to win on appeal. To make matters worse, in his zeal to save money, Mr. Rush forgot that sometimes lawyers are good for something. That “something” here would have been to get the documents on which he was relying actually admitted into the trial record so the court of appeals had something to look at. Without the missing documents – which Kelly Rush hadn’t introduced into the record – the Court of Appeals said it really had nothing to look at, and the $200 award stood.

Pozole – the national dish of Mexico.

Parenthetically, one would think that the trial court would have helped out layman Kelly Rush on coaching him to introduce the documents into evidence. But it wasn’t required to. We bet Kelly Rush was glad he saved so much money by not hiring one of those worthless lawyers to help him out! Lesson: Document your work. Get signatures from the customer. Hire a lawyer when you need one. After all, lawyers hire arborists when they need them. OK, end of lesson … and the pozole’s on!

Rush v. Goodwin, 2007 Tex. App. LEXIS 9035, 2007 WL 3380025 (Tex.App.-Waco 2007). JoAnn Goodwin requested a landscaping bid from Kelly Rush involving three parts: tree removal, landscaping, and construction of a French drain system. After completing the work, Rush complained that he was not paid in full.

Rush complained that he ended up cutting down many more trees than originally agreed to. Both Rush and Goodwin walked the property, and they agreed to have 26 trees cut down. But Rush said that after the initial agreement, the number of trees to be cut down kept changing. He claimed that the final agreement called for the removal of 36 large trees, 14 small trees, and 1 large limb from Goodwin’s property, at an agreed-upon price of $200 for each large tree, $100 for each small tree, and $100 for removal of the large limb. The total was $8,700.

At trial, Rush presented an original contract which he had signed and Goodwin had initialed stating that 26 trees were to be cut down at $200 each and a large limb removed for $100, for a total of $5,300. As well, he presented a document only he had signed – a request for the removal of 36 large trees at $200 each, 14 small trees at $100 each, and removal of a large oak branch at $100 – and another he had signed and Goodwin had initialed in part by Goodwin, reflecting an agreement to cut and remove 33 trees at $6,600.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Conco de Mayo celebrant in a period costume. Think of him as a Mexican version of a Civil War re-enactor.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Cinco de Mayo celebrant in a period costume, a Mexican version of a U.S. Civil War re-enactor.

Goodwin contended she only agreed to have 26 large trees removed from her property at $200 per tree. She said that after counting the stumps, only 26 trees had been removed and that even if more than 26 trees had been removed, she never agreed to their removal. She maintained that Rush overcharged her $1,400 to remove trees that were not cut down. In addition to tree removal, the agreement called for the removal of vegetation and growth, the spreading of dirt, and the removal of fences. Rush and Goodwin agreed that the cost of that project would be $3,600. Goodwin paid Rush $1,000 on the landscape agreement and still owed $1,600. She argued that because she overpaid $1,400 on the tree removal and other projects, she did not owe the $1,600 balance.

Rush also argued that after starting the project, Ms. Goodwin asked that extra side projects be performed, and the cost of these projects came to a total of $749.94, none of which Goodwin paid. He filed suit without an attorney against Goodwin, seeking relief of only $1,600 but being awarded $4,500 plus court costs. A glorious and unexpected windfall! But Ms. Goodwin appealed to county court, where in a bench trial the court returned Rush to reality, awarding Rush a symbolic $200 with interest.

Rush appealed.

Held: Rush got only his $200 award.

In his appeal, Rush claimed he was underpaid for his work and essentially argued that the $200 damage award was against the great weight and preponderance of the evidence. When seeking review of the factual sufficiency of the evidence supporting an adverse finding on which the appealing party had the burden of proof, the appellant must show that the adverse finding is against the great weight of the evidence. The appellate court must weigh all the evidence and may set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. The appellate court isn’t permitted to pass on the credibility of witnesses or substitute its judgment for that of the trial court.

The Court found that Rush had completely bollixed up the trial. During that proceeding, Rush referred to the various documents he said established the terms of the tree removal and landscape agreement, but he failed to ask the court to admit any of them into evidence. The Court of Appeals said that in order for it to consider the documents, those papers had to have been introduced and admitted at trial. Without them, the Court could only examine the parties’ testimony. That testimony was largely in conflict, and it was the role of the trial court, not the Court of Appeals, to determine which party’s testimony was more believable.

The trial court’s award of only $200 in damages, the Court of Appeal said, was not overwhelmingly against the great weight of the evidence, especially when the alleged contracts were not in evidence.

Oops. Or as the Mexicans say, “¡Ay!”

– Tom Root

Case of the Day – Friday, May 2, 2025

Posted on May 2, 2025 by TLRoot tagged.

WHEN LILACS LAST ON THE FENCELINE BLOOM’D

rhodeisland210430 The lilac bush over at the neighborhood church has started to bloom. It’s quite tranquil. Rather unlike the situation that attended the blooming lilac bush along the fence separating two tiny plots in the tiny State of Rhode Island and the Providence Plantations.

The case that arose over the lilacs was as big as the residential lots were small, encompassing the Massachusetts Rule, the doctrine of acquiescence, the excitement of dueling experts, a paper blizzard of multiple police reports, and – before it was over – legal fees sufficient to bloat the bank accounts of several lawyers. Truly an epic American legal drama.

Walt Whitman was lamenting the death of Abraham Lincoln in writing

When lilacs last in the dooryard bloom’d,
And the great star early droop’d in the western sky in the night,
I mourn’d, and yet shall mourn with ever-returning spring…

He could have been mourning the loss of neighborly civility over what even the judge called a “tempest in a teapot.”

Rosa v. Oliveira, 115 R.I. 277, 342 A.2d 601 (1975). The Rosas moved into their little house on a 43’ x 71’ lot in October 1970, next to the little house on the next-door 43’ x 71’ lot belonging to the Oliveiras. The adjoining lots were separated by a picket and wire fence installed by the prior owners of the Rosa lot some 70 years before. A line of 15’ tall lilac trees planted many years before ran along the Oliveira side of the fence.

Shortly after moving in, the Rosas got permission from the Oliveiras to cut the lilac branches that were growing over the fence and resting on the roof of the Rosa house. On Armistice Day, November 11, 1970, Mrs. Rosa cut down those parts of the trees that were on the roof. When Mr. Oliveira returned home, he was upset by what he saw. According to him, the lilacs “had been cut bad [sic] beyond the boundary line.” He said that when he asked Mr. Rosa about the pruning, Rosa replied, ‘Oh, that. It bothered us… You don’t know what you own.”

As the judge wryly put it, “While November 11, 1970, commemorated the cessation of World War I, it marked the beginning of hostilities which were to take place in the subsequent months on the ‘no man’s land’ that ran between the Oliveiras’ and Rosas’ residences.”

neighbor210430 Sometime after the lilac trimming, Mr. Rosa told Mr. Oliveira he wanted to replace the old fence with a new one that would afford greater protection to children. Oliveira replied, “You can’t put the fence because this fence is mine and you can’t touch it.” Later, Mr. Oliveira replaced the wooden section of the fence with another wooden fence. It came down. In November 1971, the Rosas hired a fence builder who came out to the property, cut some lilacs, poured some concrete, and set up some steel poles. Mr. Oliveira ripped out the poles. The Bristol police made several visits to both properties. Each side hired surveyors to lay out and determine the location of the dividing line between the two parcels of real estate.

Finally, in January 1972, the Rosas sued to quiet title to the fence – which they said belonged to them. Oliveira said the fence was his, and the Rosas had trespassed, and – for good measure – had damaged the lilac trees on his side of the line.

At trial, three experts testified as to the proper boundary line, but none could agree precisely where it fell. It appeared that at most, the fence wandered onto the Oliveira property about 1½ feet.

The Rosas brought in someone from the family that has sold them the property, and her testimony established that the fence had been there for years, her family had put it in and used all of the property up to the fence, and that neither the Oliveiras nor the people who had owned it before had ever complained. Oliveira admitted as much by arguing that the case had “started over the cutting of the lilacs.”

Mrs. Rosa testified that she had not cut down the lilac bushes that grew on the Oliveira’s side of the line.

The trial court found that the fence marked the property line by acquiescence, and that Mrs. Rosa had properly exercised her rights to trim the lilac on her side of the fence line.

The Oliveiras appealed.

Held: The trial court ruling was affirmed.

The principle is well settled, the Court of Appeals said, that acquiescence in a boundary line assumed or established for a period of time equal to the statute of limitations will prevent the losing landowner from trying to move the line back to where it actually belongs. The acquiescence is “conclusive evidence of an agreement to establish such a line and the parties will be precluded from claiming that the line so acquiesced in is not the true boundary.”

Here, the appellate court ruled, any difference between the experts as to the location of the division line “is completely immaterial in the light of the trial justice’s finding as to the fence line, since he found that “the fence, which was built long before Mrs. Rosa took her saw to the lilacs, served as the dividing line between the two properties.”

lilacs180919 As for Mr. Oliveira’s counterclaim, based on his allegation that the Rosas had damaged his lilac trees, Mrs. Rosa testified that she cut only those branches that protruded over or through the wire fence. “In taking such action,” the Court of Appeals said, “she was exercising her common-law right as a landowner to cut off the limbs which were overhanging or encroaching on her property from trees located on the adjoining property… Even though there is evidence that the fence builder hired by the Rosas had cut some of the lilac trees, Mrs. Rosa testified that the fence was being built on their property one foot away from the original fence line. Having brought the counterclaim, Mr. Oliveira incurred the burden of persuading the trial justice that the Rosas or their agents had damaged that portion of the trees that were on his side of the line. This he failed to do.”

– Tom Root

Case of the Day – Thursday, May 1, 2025

Posted on May 1, 2025 by TLRoot tagged.

DEDICATED TO THE ONE I LOVE

Courts of appeal sit mostly to determine how the law should apply to facts. Usually, when a trial court decides a legal question, a court of appeals will give a fresh look to the issue, called “de novo” review. You Latin scholars will recall that this literally means “of new.” Think “fresh look.”

Not so with facts. Whether the trial court got the facts right is something that seldom worries an appellate court. Usually, the appellate court won’t alter a trial court’s factual finding unless it’s clearly wrong. This is known generally as the “clearly erroneous” standard.

The different states and the Federal government apply slightly different standards of review to different types of cases, and generalizing may be useful for our purposes, but not for real life. Still, as a rule, appellate courts treat trial courts’ findings of fact with great deference. Today’s case is one of those decisions that makes you wonder why they should.

The Tinnes had owned a lakefront resort for years and used a private road, Corewood Lane, for their guests to have access to the beachfront property. When they retired, the couple sold all of the place except for a small piece on the north side, where they built a retirement home.

The Brands tore up the asphalt a bit…

Their golden-age digs had a driveway that attached to Corewood Lane. The new resort owners, the Brands, promptly began obstructing Corewood Lane, even tearing out big chunks of the asphalt. Finally being roused from their retired reverie by the Brands’ unfriendly conduct, which even included the Brands trimming trees on the Tinnes’ property, the retired couple sued for a judgment that Corewood Lane had become a public road by implied dedication. They asked for an injunction against future obstruction and treble damages for the cut tree limbs.

The trial court obliged on a record that was pretty thin. It ordered that Corewood was public, told the Branches to repave it, pay $10,000 to the Tinnes for having obstructed it, and $250 (which it trebled to $750) for having trimmed the Tinnes’ trees without permission.

The Court of Appeals reversed it all.

It turned out that Mrs. Tinnes had herself testified that she and her husband had never intended Corewood to be a public street. The landowner’s intent is the most crucial element in an implied dedication of a private road as a public one. What’s more, no one bothered to introduce any evidence of the amount of damage that had been caused by the trespass and pruning of the Tinnes’ trees, and at any rate, Missouri’s treble damage statute related to cutting down trees, not just pruning them. To be sure, damages are presumed when a trespass is proven, but the damages that are awarded are nominal – think “symbolic and puny” – unless actual harm is shown.

And how much was nominal in this case? The Court of Appeals cut the damage award to one dollar. About enough for one-eighth of a Starbucks Mocha Cookie Crumble Frappucchino.

One is left to wonder what evidence the trial court was weighing when it throttled the Brands to begin with. It would appear that the trial judge decided the case with his heart, not his head.

Tinnes v. Brand, 248 S.W.3d 113 (Mo.App. S.D. 2008). Corewood Lane runs through property once owned by the Tinnes but now owned by the Brands. When they owned the land, Mr. and Mrs. Tinnes ran a lakefront resort on the property. Corewood Lane was the access road through their property to the resort site and lakefront. When the Tinneses sold the resort in 1996, they retained four acres on the property’s north side, where they built a home and a driveway leading to Corewood Lane.

As soon as they bought the resort, the Brands started obstructing Corewood Lane with tree limbs, boats, and open ditches. They also removed asphalt pieces (which they claimed were broken) from the paved road, after which parts of the road eroded and washed away. They even trimmed some tree limbs on the Tinnes property.

The Tinneses sued for a declaratory judgment that Corewood Lane was “a road easement for Plaintiffs, and the public,” or alternatively that plaintiffs had the right to use it as an easement appurtenant to their residential property. They also sought an injunction requiring the Brands to repair the road and not damage or obstruct it in the future, plus actual and punitive damages. The trial court found that the entire length of Corewood Lane was dedicated to the public for use as a roadway; ordered the Brands to repair and repave the road at their own expense; enjoined them from interfering with the use of the road by plaintiffs or the public; awarded $100 actual damages against the Brands for obstructing and damaging the road; and awarded trespass damages of $250, “trebled according to law” to $750, for the Brands’ cutting of trees and limbs on the Tinnes’ property.

The Brands appealed.

The Tinnes didn’t need a formal street dedication … but if they had actually intended to dedicate the street, it would have helped …

Held: The decision was reversed because the evidence didn’t support a finding that Corewood Lane had been dedicated to public use.

To show implied or common-law dedication of a roadway, a plaintiff must prove (1) the landowner’s unequivocal intent to dedicate the land to public use; (2) public acceptance; and (3) public use. Intent must be unequivocally manifested, expressly or by plain implication. Here, plaintiff Deanna Tinnes herself denied on the stand that they had ever intended to dedicate the lane to public use. The Court held that the record did not “convincingly demonstrate” that any landowner meant to create public rights in Corewood Lane adverse to the owner’s own rights.

As for the $250.00 trespass award, “trebled according to law” to $750.00, the Court of Appeals held that the Brands had only cut tree limbs, not any whole trees, and neither party presented evidence as to damages. However, the Brands admitted the trespass, and the Tinnes were entitled to nominal damages, even if they proved no actual damage. Because the trial court awarded $100.00 for the Corewood Lane access damages, the Court of Appeals said that the $250.00 damages for the trespass could hardly be called nominal.

The Court ordered damages for the tree trimming to be reduced to $1.00.

– Tom Root

Case of the Day – Wednesday, April 30, 2025

Posted on April 30, 2025 by TLRoot tagged.

NEITHER FISH NOR FOWL

Normally, one would think that when an electric utility was busy building new transmission lines, it was just as subject to liability for empty-headed negligence as the next guy. That would be true for your garden-variety profiteering, money-grubbing commercial enterprise. But not necessarily when your Uncle has his fingers in the pie… at least until this past Monday.

Back in the dusty days of the Great Depression, some Americans began to think it was a good idea for the “public” – that is to say, the government – to own electric utilities. A lot of people thought private electric companies charged too much for power, did not employ fair operating practices, and were subject to abuse by the utility holding companies that owned them. What crazy ideas!

After all, the government is benevolent. And efficient. And responsive to citizens. Look no further than your local DMV. Isn’t it sad that everything can’t be so well run? During his presidential campaign, Franklin Roosevelt claimed the federal government would never part with control of its power resources. At least where the Tennessee Valley Authority is concerned, he has been as good as his word.

The TVA is a utility that is neither fish nor fowl, acting in all respects like a privately-held company engaged in electricity generation and distribution. At the same time, it acts like a government agency, wielding powers reserved to the government.

Is that a good thing? Don’t ask Gary Thacker. He and fishing buddy Tony “Ski Daddy” Szozda were trollin’ and a’rollin’ in an Alabama fishing tournament on the Tennessee River one weekend, just while TVA crews were raising a submerged power line that they had accidentally let drop into the river. If you ever saw the scene in “The Great Escape” where Steve McQueen commandeers a motorcycle with a rope across the road, you know where things were headed for Gary and Tony. As they passed through the unmarked work area at full throttle, the TVA crews lifted the conductor out of the water. The boat hit the cable. Tony died.

Logically, Gary sued the TVA for negligence. After all, its crews had dropped the cable, and they had no boats patrolling the channel to warn boaters of their recovery activities, despite knowing that boats traversed the area at high speed and that the usual Tuesday fishing tourney – with a lot of fast-moving boats – was underway.

After filing the lawsuit, Gary got smacked again. It turns out that sometimes the TVA is a private utility company. Sometimes it’s the government. The government has a substantial impact on liability because no one may sue the federal government for tortious conduct (like negligence) unless the plaintiff has permission.

Permission is granted by the Federal Tort Claims Act, which grants permission to sue for many types of negligence. The FTCA, however, does not permit suit where the negligent act complained of is a “discretionary function” of government. The trial court concluded that “clotheslining” fishermen with an understaffed and poorly-thought-out power line recovery operation was a government function, and the court thus lacked jurisdiction to hear the lawsuit. The 11th Circuit Court of Appeals agreed.

But two years ago, the Supreme Court of the United States reversed. TVA could be a fish. Or a fowl. But it could not change according to what was convenient. If it were out in the marketplace acting like a private entity, it would be treated like one.

The Court of Appeals had applied an unusually attenuated syllogism here: the TVA has the power of eminent domain to condemn real estate for the installation of power lines. Because that is a government function, if when and where and how to build power lines is a discretionary function, any institutional stupidity that attends the building of power lines is likewise a discretionary function.

The Supreme Court would have nothing to do it. When TVA (or other government actors that compete in the marketplace with private companies) it is subject to suit when its employees do something bone-headed, and victims are hurt or killed.

There is little question that SCOTUS (the acronym for The Supreme Court Of The United States, used by people in the know) brought some sanity to the FTCA. When we reported on the Court of Appeals decision, we complained, “Where does this string finally snap? Would driving a truck to be used in the building of a power line a discretionary function, so that a drunken TVA employee running down a busload of Brownies be shielded from liability? After all, relieving the tipsy trucker would require using another employee, an allocation-of-resources decision? More to our topic, would the clearing of trees well beyond a right-of-way – because maintaining power lines that TVA built on land it had condemned might be part of the “discretionary function” chain – likewise block a suit when the tree fell on the same busload of Brownies? There seems to be no logical way to cabin the 11th Circuit’s reasoning in this decision.”

Maybe the Justices read this blog. It’s doubtful, but the wisdom of the Court’s decision is not.

Thacker v. Tennessee Valley Authority, 587 U.S. 218 (2019). Gary Thacker sued TVA for negligence involving a tragic 2013 accident on the Tennessee River. While Gary and his friend Anthony Szozda were participating in a local fishing tournament, TVA was raising a downed power line that was partially submerged when a pulling cable had failed earlier that day. At the moment that TVA employees began lifting the conductor out of the water, the fishing partners’ boat passed through. The conductor struck Szozda, killing him, and Thacker. Injuring him seriously.

The district court concluded that TVA’s activities raising the cable were part of its discretionary function as a government agency and dismissed the complaint for lack of subject-matter jurisdiction. Gary appealed, and the 11th Circuit agreed. Last week, the Supreme Court reversed the two lower courts.

Held: TVA is not immune from suit for negligence arising from the accident.

Under the doctrine of sovereign immunity, no one can sue the United States without the government’s permission. In the Federal Tort Claims Act, the government granted a limited waiver of its immunity, allowing people to sue the government for torts committed by its employees and agents. The FTCA contains an exception from liability when a government employee performs “a discretionary function or duty.”

By contrast, the TVA is governed by its own statutory waiver of sovereign immunity, 16 U.S.C. § 831c, which grants the TVA the power to “sue and be sued in its own corporate name,” with any judgment paid from TVA assets rather than the federal treasury. The Supreme Court has previously held that when Congress “launched a governmental agency into the commercial world and endowed it with authority to ‘sue or be sued,’” the clause should be “liberally construed.”

The government successfully convinced the 11^thCircuit Court of Appeals that something like the FTCA’s discretionary-function exception should be judicially inferred to prevent “judicial second-guessing” of TVA policy decisions. Citing a prior Supreme Court decision, Federal Housing Administration v. Burr, the government contended that courts should recognize implied limits on “sue-and-be-sued” clause authority when “necessary to avoid grave interference” with governmental functions. Thus, the government argued to the Supreme Court that the TVA’s discretionary decisions should be protected from court review.

But the Supreme Court “balk[ed] at using Burr to provide a governmental entity excluded from the FTCA with a replica of that statute’s discretionary function exception.” The Court explained that because “[t]he law … places the TVA in the same position as a private corporation supplying electricity,” “a suit challenging a commercial act will not ‘grave[ly]’—or, indeed, at all—interfere with the ‘governmental functions Burr cared about protecting.’”

However, as the court noted, “the TVA is something of a hybrid, combining traditionally governmental functions with typically commercial ones.” The TVA engages in governmental activities such as exercising eminent domain to take private property for TVA use and running its own band of law enforcement agents. The Court said that if TVA’s activities are “commercial—the kind of thing any power company might do – the TVA cannot invoke sovereign immunity.” But even if the conduct is governmental, it must be clearly shown” that granting TVA immunity from private lawsuit is needed to prevent a “grave interference” with a governmental function.

Because the district court bypassed the “grave interference test,” the court sent the case back for reconsideration in light of this analytical framework.

The Court rejected the government’s claim that constitutional separation-of-powers principles prevent courts from reviewing a government entity’s discretionary choices. The Justices rejected the separation-of-powers argument as applied to the commercial activity engaged like the construction undertaken by the TVA in this case. Beyond that, the Court ruled that Congress by statutory waiver may strip a government entity of immunity. “The right governmental actor (Congress) is making a decision within its bailiwick (to waive immunity) that authorizes an appropriate body (a court) to render a legal judgment.”

The ruling should blunt government defenses of policy immunity for entities that “operate[] in the marketplace as private companies do” and thus should be “as liable as they are for choices and judgments.”

– Tom Root