Case of the Day – Thursday, August 29, 2024

Posted on August 29, 2024 by TLRoot tagged.

GETTING HIT BY A BUS

Many times during our seemingly long, long, long career practicing law, we would run into clients who resisted putting their agreements and understandings into writing. “But,” Ray might sputter, “Tom and I have been partners for years. We don’t need anything in writing. We know each other and trust each other.”

Of course they trust each other. After all, partners always conduct the affairs of the enterprise with “not honesty alone, but the punctilio of an honor the most sensitive…,” as Judge Cardozo once put it. Don’t they?

Still, knowing that partners or contractors or even buyers and sellers seldom complete a relationship or transaction with the same good feelings they had going into them did us little good. It was like telling a bride and groom about to walk down the aisle that in 10 years she would devolve into a screaming shrew and he would sit around in his underwear drinking beer, belching and watching televised bowling. So what if it’s as likely as the sun rising tomorrow? No one wants to hear it.

Thus, we would never argue to Tom that Ray was a bum, or tell Ray that Tom liked to use the partnership till to play the ponies. Instead, we would always nod knowingly and say, “Of course you two honest chaps don’t need a written agreement. But what if you walk out the door and Tom here gets hit by a bus? Suddenly, he’s dead, and you’re in business with Tom’s wife, or kids, or executor, or even some distant cousin you’ve never met. And none of them knows the deal, and none of them is likely to be the upstanding guy Tom is.”

That usually worked. Tom and Ray would sign a detailed agreement, and when the falling out came in a couple years (as it inevitably did), the business divorce was much easier for everyone.

In today’s case, neighbors bought adjoining properties subject to a bare-bones easement signed by the prior neighboring owners. The previous people knew the deal and probably had each other over for cookouts. But when the new neighbors proved to be considerably cooler to each other, the imprecision of the easement was decidedly unhelpful.

Kersey v. Babich, 780 N.W.2d 248 (Ct. App. Iowa, 2010). The Kerseys and Leslie Babich owned adjacent properties. Les’s lot had a driveway serving the front of his home. A second driveway located on the Kerseys’ lot provided access to the garages of both property owners. Both landowners purchased their properties subject to a “Drive and Landscaping Easement” agreed to by the previous owners.

According to the easement, Les Babich had the right to use the western 30 feet of the Kerseys’ lot, which he was responsible for maintaining. The easement was intended for “a residential driveway to serve the garage” located on Leslie’s property. Les normally allowed friends, relatives, and home maintenance workers to use the second driveway, but he did nothing to trim vegetation along the western driveway.

The Kerseys sued him, seeking a declaratory judgment. They argued that third-party use of the driveway should be restricted, Les should be required to maintain the whole easement, and he should be liable for injury to a tree along the driveway.

The district court found that Les, his family, friends and agents had the right to use the driveway. It also found that Les was required to maintain a tree canopy over the driveway at a height and width of 10 feet. Finally, the trial court found he was liable for repairs to the driveway.

The Kerseys and Leslie were unhappy, and both parties appealed.

Held: The Court of Appeals agreed with the trial court. The overarching goal of contract interpretation is to determine the intent of the parties at the time they entered into the contract. Words and conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties can be ascertained, it is given great weight.

The court’s interpretation, in this case, was consistent with the evidence showing Les’s expansive use of the second driveway for more than a decade, as well as with the absence of limiting language in the easement. While the Kerseys argued that the term “garage” limited Les’s use to garage ingress and egress, the easement did characterize the driveway as “residential,” a term that suggested a more expansive use. The appellate court thus agreed with the trial court’s interpretation of the purpose of the easement.

Both parties argued that the 10-foot width allowed by custom for the easement (the document setting out which was itself silent on the driveway dimensions) should be changed. The Kerseys claimed that the dimensions should be reduced to a width that would allow Les to fit his vehicles into his garage. Les wanted more, arguing that the easement should be 12 feet wide by 14 feet high. Ruling that a grantee of an unspecified easement “is ordinarily entitled to a way of such width as is sufficient to afford reasonable ingress and egress,” the Court agreed with the trial judge that there was “scant” evidence that residential use of a driveway would require a width in excess of 10 feet.

Finally, Les argued that the Kerseys should not have been awarded damages for his tree trimming and tree removal. The appellate court reasoned that the easement required Les to landscape the easement area on an ongoing basis. He failed to do so, compelling the Kerseys to do the job. Thus, they were entitled to damages for Leslie’s failure to have done so.

– Tom Root

Case of the Day – Wednesday, August 28, 2024

Posted on August 28, 2024 by TLRoot tagged.

LARA’S THEME

Cue the balalaikas for Lara’s Theme, one of the most memorable leitmotifs in movie history. Today’s victim was singing, all right, after Dr. Zhivago patched him up, but this Lara’s theme went something like ”An employee, no contractor am I; so my rehab, workers comp now must buy…”

We’re not quitting our day job to become lyricists, but Lara – that is, Jose Lara – seemed to himself, his customers and the Lord to be an independent contractor right up until the time he fell off a restaurant customer’s roof while trimming bushes. Only then, in a rewrite of history that would have made Stalin blush, did Mr. Lara decide that he had been an employee all along, and thus was entitled to workers comp payments for the rest of his natural life.

Workers’ compensation covers employees, but not independent contractors, as an efficient and reasonable means of delivering benefits to employees injured on the job. It is intended to provide quick assistance to the injured and to free employers from costly and protracted litigation over claims. This is not to say that the system is intended to be an ATM for any worker with a claim. A claims board seeks to protect the system from bogus claims, and the employer – which is likely to see workers comp insurance premium take off like a skyrocket after a claim – has a lively interest in, as Rodney Dangerfield put it, keeping it honest.

In this case, both the claims board and the restaurant cried foul. It seemed Mr. Lara was in the business of doing odd jobs, and that the restaurant had hired him once, months before, to trim the bushes and perform light maintenance. The restaurant was hardly his only customer, and he arrived on the scene with his own tools. The owner told Mr. Lara what had to be done – the bushes trimmed – but left it to Lara to determine how best to do the job.

The workers’ comp board at first, rather inexplicably, held that Mr. Lara had been the restaurant’s employee, but the restaurant asked for reconsideration. Usually, seeking reconsideration is an exercise in futility. Few things in the known universe are as immovable as a judge who’s made up his or her mind. Asking a judge to rethink the matter and announce that he or she was wrong the first time around is like trying to teach a pig to sing – it wastes your time and ends up annoying the pig.

In this case, however, the board (maybe because it was not made up of real judges) revisited the issue and held that Mr. Lara was indeed an independent contractor. Mr. Lara’s lawyer promptly sought judicial review. We say his lawyer instead of Mr. Lara because it isn’t at all clear the ingenuous injured workman was on board. In fact, he freely testified that he had a number of customers, that no one at the diner told him how to do his job, and that he didn’t consider himself an employee of the place.

It seems no one other than his lawyer did, either. On review, the court took as most important among the factors the fact that no one directed Mr. Lara in how to trim or when to trim. He wasn’t being paid hourly, but rather by the job. Everything about the relationship said “independent contractor.”

We start to sound drearisome, but how much easier it would have been for the restaurant if it had signed a simple agreement with Mr. Lara before he fell from the roof. It would have saved a mountain of litigation.

Lara v. Workers’ Compensation Appeals Board, 182 Cal.App.4th 393 (2010). Mr. Lara, a 62-year-old man, suffered injuries to his head, lower back, neck, right shoulder, arm, hand, and thumb when he fell from a roof while pruning bushes for a diner. Lara filed a workers’ compensation claim against Metro Diner’s then-sole shareholder, Scott Broffman, personally and against Metro Diner.

The diner leases space inside a hotel. Lara fell from the hotel’s roof. At the hearing, Lara testified that he has been gardening, painting, pipe fixing, and doing graffiti removal for 25 years. His clients are people who either know him or who find him on the street corner. He charges by the hour, but sometimes he contracts for the entire day. He usually does the same type of work but for different people each day. He has no employees and does not work out of an office or advertise.

The restaurant manager’s wife, Patricia, arranged for Lara to do gardening work at Metro Diner on two occasions. The first time, Patricia – who was Lara’s dentist’s secretary – had asked Lara what kind of work he did. When he told her he gardened, she stated that her husband owned a diner. She gave him an address and told him to go early in the morning so his work would not make the restaurant’s tables dusty. Upon his arrival, Lara was asked to trim the bushes along the roofline. The second time he went to Metro Diner – the day the accident occurred – was about a year later.

Lara was paid in cash by the hour for his services at Metro Diner the first time but was not paid the second time because he did not complete the work after his fall and he never sent a bill. Metro Diner did not take taxes out of his pay; Lara paid his own taxes. Lara and Patricia did not discuss the number of hours he would work, nor did they discuss the price until he was finished with the work. The first time, Patricia paid him $15. They did not discuss when he would provide services in the future, only that she would contact him when services were needed.

These things can happen …

On the second occasion about a year later, Patricia asked Lara to do the same job, that is, trim the bushes along Metro Diner’s roofline. They did not discuss terms of employment, such as the number of hours, or the price he would be paid for the job. Lara had no plans to do any additional work after the second occasion, only that he would trim the bushes for Metro Diner when Patricia asked him to. Lara brought all the equipment he needed to do the job, including a trimmer, rake, broom and blower, all tools he owned. He also brought a ladder that he borrowed from a friend. He arrived in his own truck. No one told him how to do his job “because he already knew how to do his job.” Patricia did not tell him to bring an assistant or how long the job would take. She did not tell him to arrive on Saturday at 7:00 a.m., just to go early because the diner opened between 7:30 and 8:00 a.m.

The Board ruled that Lara was an independent contractor and thus not entitled to workers’ compensation benefits. Lara did not testify during the trial that he was an employee of Metro Diner. Rather, he testified he handled his own taxes and contracted with numerous individuals to perform specific jobs. Also, the Board noted Lara’s statement in his civil action against the hotel, filed after his injury, that “I am self-employed as a gardener.” However, the Board recognized that the distinguishing characteristic of an employer is the power to control the details of the work and methods of performance. On that point, the Board found “no evidence that Metro had the power to control the details of [Lara’s] work in pruning the bushes or the method by which he performed that task.”

Lara appealed.

Held: Lara was an independent contractor. The Workers’ Compensation Act extends only to injuries suffered by an ’employee,’ which arise out of and in the course of his ’employment. California law holds that an “independent contractor” is any person “who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”

The Court held that the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired….’; The existence of such a right of control, and not the extent of its exercise, gives rise to the employer-employee relationship. Other secondary factors, derived largely from the Restatement Second of Agency, include “(1) whether or not the worker is engaged in a distinct occupation or an independently established business; (2) whether the worker or the principal supplies the tools or instrumentalities used in the work, other than tools and instrumentalities customarily supplied by employees; (3) the method of payment, whether by time or by the job; (4) whether the work is part of the regular business of the principal; (5) whether the worker has a substantial investment in the business other than personal services; (6) whether the worker hires employees to assist him.” Two additional factors are whether the parties believe they are creating the relationship of employer-employee; and the degree of permanence of the working relationship.

Applying the criteria, the Court found that Metro Diner did not possess the right of control and the factors do not otherwise weigh in favor of employee status. Lara was engaged to produce the result of trimming the bushes, the Court said. Neither party presented evidence that Metro Diner had the power to control the manner or means of accomplishing the pruning. The means and manner to accomplish the result of pruning were neither discussed nor were part of the agreement.

The Court observed that its conclusion that Lara was an independent contractor at the time of his injury is further supported by other criteria. “First, Lara performed this work as part of his own occupation as a gardener, which he had been doing independently for approximately 25 years. Not only did Lara have many clients, but Patricia did not ask him to perform any service other than pruning the bushes. Second, Lara supplied the equipment he used for the job. Such tools were not ones that a restaurant would have. Third, Lara had a substantial investment in his business such as his equipment. Although Lara does not advertise, he has several different clients who either pick him up from the street corner or who telephone him to perform specific jobs. Fourth, he was not hired by the day or hour, or even on a regular basis. Payment was only discussed after the work was complete. Sometimes Lara charged by the hour and sometimes by the job and so Lara was paid on a job-by-job basis, with no obligation on the part of either Metro Diner or Lara for work in the future. Taxes were not taken out of the money he was paid. Lara estimates and pays his own taxes. Fifth, no date for Lara’s return was specified after the first time he pruned bushes for Metro Diner. Lara understood only that he would be contacted when his services were needed, with the result that he worked for a circumscribed period of time with no permanence whatsoever in his working relationship with Metro Diner. Thus, Lara’s profit or loss depended on his scheduling, the time taken to perform the services, and his investment in tools and equipment.

The Court noted that the criteria were not to be applied mechanically as separate tests, but “are intertwined and their weight depends often on particular combinations … [T]he process of distinguishing employees from independent contractors is fact specific and qualitative rather than quantitative.” Although the workers’ compensation statutes are to be construed liberally in favor of awarding compensation, the Court said, “no amount of liberal construction can change the balance of evidence here. Nor does our conclusion that Lara was an independent contractor defeat the purposes behind the workers’ compensation system. Lara had control over his work and safety, and there was no evidence that he could not have spread the cost of insurance against work-related injuries through fees he charged for his services.”

– Tom Root

Case of the Day – Tuesday, August 27, 2024

Posted on August 27, 2024 by TLRoot tagged.

AS CORNY AS KANSAS IN AUGUST

I am often corny and it is August, but we’re not in Kansas any more, Toto, not that I ever was (instead being full of skibidi Ohio riz). But even in Ohio, I am familiar with the concept of “corn to the corners,” planting corn right up to the fence, even if it makes driving through a country intersection a crap shoot as to whether you’ll get T-boned by an oncoming driver who cannot see you for the cornstalks.

I have written about the visibility problem before, specifically whether a landowner is liable for obstruction of view caused by trees overhanging the right-of-way. It’s something I think about a lot in late August in Ohio, where the corn looks like it’s climbin’ clear up to the sky. Just like it is in Kansas.

A few years ago, the Kansas Supreme Court held off a concerted effort to change its rule that the rural landowner lacked any liability for sightline obstruction.

What made the ruling especially interesting was the Court’s comparison of two different versions of the American Law Institute Restatements on Torts, and the trend proposed in the latest Restatement version that makes any tort duty of care dependent solely on whether the landowner knew or should have known that the risk was obvious. Traditionally, some duties – such as a landowner’s duty of care to people passing by his rural property – were independent of a landowner’s knowledge or, what’s worse, what a reasonable owner’s knowledge should have been. The Restatement (Third) conflates duty and foreseeability into a single element so that anything a landowner could reasonably foresee would establish a duty to avoid.

The Kansas Supreme Court, in a nod to tradition, refused to waltz down that path. Kansas precedent excuses a landowner from a duty to maintain sightlines on highways. And thus, the Court ruled, it still shall be.

Manley v. Hallbauer, Case No. 115,531 (Supreme Court of Kansas, Aug. 10, 2018). Darren Manley died after his truck collided with John Patton’s truck at the intersection of two gravel roads with no traffic signs. Officers investigating the accident found no evidence suggesting that either driver tried to avoid the collision. The officers testified trees located on land abutting the southeast corner made it impossible for northbound traffic to see approaching westbound traffic and for westbound traffic to see approaching northbound traffic.

About five years before the accident, Steven and Kathie Hallbauer purchased the property that included the offending trees. The growth remained unchanged from the time Steve and Kathie bought the property until the accident.

Darren’s estate sued Labette County, John Patton and the Hallbauers. Manley settled with Patton and Labette County, but the case proceeded against the Hallbauers. John testified no one could have had a clear view of Anderson Road south of the intersection because of the tree row and underbrush. John said he did not see Darren before entering the intersection. In the opinion of Darren’s engineering expert, “The lack of proper signage and site distance caused the accident which resulted in the death of Darren Manley.”

Steve and Kathie agreed that the view of the intersection was obstructed from around 50 to 60 feet away when traveling north or west, and they said the intersection would be safer with a stop sign.

The Hallbauers moved for summary judgment, arguing they could not be held liable under Kansas law for the failure to remove trees or other vegetation. The district court agreed, and the court of appeals affirmed, holding that the Hallbauers had no common-law duty to Darren to keep their trees trimmed for visibility purposes.

The appeals panel found that no prior Kansas case governed the outcome and therefore looked to the Restatements of Torts for guidance. But it found the answer differed depending on whether it consulted the Restatement (Second) or the Restatement (Third) of Torts. Under the Restatement (Second), a rural landowner generally is not liable to someone who, while off the property, is injured by a natural condition of the land, like trees. But under the Restatement (Third), a landowner could be held liable if the landowner knew of the risk or if the risk was obvious.

The Court of Appeals followed the older Restatement (Second) view, noting the Restatement (Second) had been applied by the Kansas Supreme Court many times and the Restatement (Third) differs from Kansas law in its analytical approach to negligence. Cases from other states also found no duty under similar circumstances.

The Manley Estate appealed to the Kansas Supreme Court.

Held: Steve and Kathie owed no duty to passing motorists to trim their trees so as not to obstruct visibility on the highway.

Anyone claiming negligence must prove that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the breach caused injury to the plaintiff, and (4) the injury resulted in real damages to the plaintiff. Here, the Kansas Supreme Court focused on the first element, duty. Where a duty exists, a person generally has the duty to act as a reasonably prudent person would act in similar circumstances.

The Supreme Court agreed that no Kansas precedent had found such a duty. Kansas law limits the person to whom a duty extends, however, to one who is a foreseeable plaintiff and only to cases where the probability of harm is foreseeable. What’s more, the Supreme Court will recognize a new duty only when the duty is consistent with public policy.

Under the traditional rule applying to the circumstances of this case, “the owner of land is under no affirmative duty to remedy conditions of purely natural origin upon his land.” Instead, the duty is on drivers to “observe obstructions to view and to exercise reasonable care for their own safety and protection.”

The Restatement (Second) of Torts states the traditional rule as being that the possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land. ‘Natural condition of the land’ includes “the natural growth of trees, weeds, and may be imposed on an urban landowner “for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.” The Restatement (Second) expresses no opinion on whether this exception should apply in rural areas.

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

Two Kansas cases from the 1920s addressed obstructions to view but established that public policy does not support imposing tort liability on landowners to correct natural conditions occurring entirely on their property that infringe on the visibility of an intersection of public highways. While the Court of Appeals found the cases irrelevant to its analysis in this case, the Supreme Court did not. In fact, the Supreme Court said, the prior decisions recognized Kansas public policy that obstructions caused by woodland or crops ought not to cause the abutting landowners to be liable.

Manley argued that the Supreme Court should depart from traditional Kansas law, and follow the Restatement (Third) of Torts. That rule would impose liability “for natural conditions on land that pose a risk of physical harm to persons or property not on the land… if the possessor knows of the risk or if the risk is obvious.”

The Restatement (Third) criticizes the use of foreseeability in a duty analysis as invading the function of the jury as fact-finder. The Supreme Court decided to “leave for another day the decision whether to adopt other aspects of the Restatement (Third), in particular, whether we should abandon foreseeability as a consideration when analyzing a person’s duty to another.”

Its reasoning was straightforward: it would “adhere to precedent unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.”

Here, the Supreme Court was not persuaded to abandon the traditional rule that a landowner owes no duty in the circumstances of this particular case, and thus to weigh into the question of whether Kansas should shift how courts determine a common-law duty. Drivers have a responsibility to drive with caution when conditions result in obstructed visibility. Plus, the traditional rule in premises liability is that landowners have no duty to protect against open and obvious dangers. Instead, individuals have a responsibility to protect themselves from such conditions. “These rules provide strong support for limiting liability under the circumstances of this case,” the Court ruled, “because the active participants in the accident can take steps to avoid a collision given that drivers should drive with caution to protect themselves and others at intersections, especially those with decreased visibility.”

Corn to the corners – and no clear sightline.

The Court noted that “in our state, tall crops and natural conditions often obstruct a driver’s view at a rural intersection. And rural landowners often have many miles of property to maintain. Some of these considerations underlie the distinction between rural and urban landscapes recognized in both the Restatement (Second) and (Third) as influencing court decisions.” Additionally, Kansas statutes confirm that public policy imposes no duty on landowners. Our Legislature has conferred responsibility for the care and maintenance of roads “‘for the safe passage of persons and property on various government entities… Kansas law recognizes landowners have some duty to maintain their property so that trees, plants, shrubs, or other obstructions create no traffic hazard by obstructing the view of passing drivers. However, the responsibility for determining whether a traffic hazard exists falls to the secretary of transportation or local authority. The statute imposes a penalty only if a landowner fails to respond to one of those authorities’ notice.

“Had the Legislature wished to effect a different public policy than that articulated by this court and impose additional civil tort liability on the landowner,” the Court reasoned, “it has had more than 90 years in which to do so.”

To be sure, a different rule may be appropriate for urban areas. Or a different rule may be appropriate when natural growth on the property extends outside the bounds of the property. But the Court was “not faced with those situations today. Here, the accident occurred in a location that is undisputedly rural. There is no indication any part of the trees or overgrowth extend outside the property bounds.”

The Court thus held that a landowner whose property abuts a rural intersection owes no duty to passing drivers to trim or remove trees or other vegetation on the property.

– Tom Root

Case of the Day – Monday, August 26, 2024

Posted on August 26, 2024 by TLRoot tagged.

MR. NATURAL

There was an era – back in a time when giants roamed the land – in which a landowner had no duty to protect anyone else from harm resulting due to the natural condition of the land. The judicial thinking was that everyone took the land the way they found it. There’s a century-old oak on the place, and it dies? Well, trees grow and then they die. If it happens to fall on old Zebediah’s cabin next door, that’s just one of those acts of God.

The concept made a certain amount of sense when the land was rural, and no one did much landscaping around the cabin. But as time passed, courts found themselves trying to determine whether that sweet gum that fell on the random horse-drawn wagon passing by had been planted by human agency or just had happened to grow there on its own. Time marched on, the horse gave way to a lot of horsepower, and courts abandoned the “natural condition” rule. Instead, they simply held that a landowner has a duty of reasonable care over all of the conditions of his or her premises, no matter what their origin.

Samara – a botanical term for “whirligig.”

There were a few reasons for the courts’ change of heart. First, if a landowner had a duty to take reasonable care of his or her premises, there was no rational basis for limiting that duty to vegetation that had not been planted by the landowner or those who had owned the place before. After all, when we were kids, we used to break samaras off the backyard maple tree and use them in whirligig contests. Under the old standard, if one of the samaras we dropped during our game took root and grew into a magnificent sugar maple, our folks would have been responsible for the tree. If the wind dropped the same samara, and it took root without our help, the old rule would have absolved our parents of any liability if the tree decayed and then fell on the neighbor boy (an outcome that we, who had been long afflicted by the obnoxious kid next door, would have cheered).

Second, the times, they were a-changin’. America was becoming more urban, and progress demanded that people living in closer proximity to each other with more developed streets and highways, assume more responsibility for injury to each other. Most parcels of property had become smaller – home plots in towns and cities rather than 40-acre and up farms – and the burden placed on landowners to inspect and maintain their premises became less even as the harm that their negligence could cause became greater. The utility and importance of modern roads and the cars and trucks that used them argued for a more responsible approach.

All of that leads to a case like today’s decision, an Indiana decision that asks the philosophical question: If a tree falls in the forest and hits a car, does it sound like a lawsuit?

That’s certainly the question Stan Valinet was pondering after a tree standing in his forest fell onto Ann Eskew’s car back in 1987.

Robert Frost admitted that “whose woods these are I do not know.” But Stan Valinet knew. The woods in Clay Township near 106th and Spring Mill Road were his, and – like most reasonably prudent absentee landowners – Mr. Valinet would occasionally drive through Clay Township to inspect his property. He especially admired a massive oak tree, almost two centuries old, growing about 28 feet from the edge of Spring Mill Road.

One dark and stormy December night, Ann Eskew was driving by this very tree, when 60-mph winds blew the mighty oak onto her car, seriously injuring her. It turned out that the tree had been dead for at least three years, and had been showing signs of decay for at least 8 years before that.

Even in 1991, the Indiana rule held that rural landowners were not liable for physical harm caused to others outside of the land by a natural condition of the land. Mr. Valinet argued that the oak tree had always been there, and its falling on Ms. Eskew – while regrettable – had nothing to do with him.

The Indiana Supreme Court ruled that, regardless of whether the old oak tree was a natural condition of Mr. Valinet’s land or not, he could be liable to Ms. Eskew if his land was located in an area with sufficient population density, and whether the seriousness of the danger is weighed against the ease with which Mr. Valinet could have prevented it. Finding the facts needed to determine the answers to these questions was a job for the jury.

Valinet v. Eskew, 574 N.E.2d 283 (Supreme Court of Indiana, 1991). Stanley Valinet owned wooded land in a residential area of Clay Township, Hamilton County, Indiana, near the intersection of 106th Street and Spring Mill Road. He lived in Indianapolis but testified he would occasionally drive through Clay Township to inspect his property.

Valinet’s land included a large oak tree, perhaps almost 200 years old with a 48” diameter trunk. The tree stood 28 feet from Spring Mill Road. On December 15, 1987, Ann Eskew was driving by the property during a windstorm, when the tree fell onto her car, seriously injuring her. It turned out that the tree had been dead for three years, and had been showing visible signs of decay for eight years before that.

Eskew sued. Valinet argued that the 200-year-old oak was a natural condition of the land, and he was not liable for natural conditions of the land. The jury found him liable to Eskew, and he appealed, first to the Court of Appeals (which agreed with the jury), and then to the Indiana Supreme Court.

Held: The Supreme Court decided that Indiana would follow the general statement of law set out in the Restatement of Law. Restatement (Second) of Torts § 363 provided that while a possessor of land would not be liable for physical harm caused to others outside of the land by a natural condition of the land, if the land is in an urban area, the possessor is liable to people “using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The Supreme Court acknowledged that the old rule had been no liability for natural conditions on land. That rule, however, had arisen at a time when the land was largely unsettled and the burden imposed on a landowner to inspect was thought to exceed the benefit to society of preventing possible harm to passersby. However, the Court observed, a line of cases had developed since then in which courts imposed a duty on landowners in more heavily populated areas to inspect trees to try to prevent their posing an unreasonable risk of harm to passing motorists. The rationale for imposing the duty on urban landowners is that the risk of harm to highway users is greater there, and the burden of inspection on landowners is lighter.

The Court agreed that the modern approach made more sense, but it underscored that whether the land was in an area of sufficient population density to invoke the rule requires a factual consideration of factors like land use and traffic patterns. Also, whether the landowner exercised reasonable care would require the jury to weigh the seriousness of the danger against the ease with which it could be prevented. The Court noted that a landowner need not continually inspect his or her property for natural dangers, but sometimes fulfilling the owner’s duty to passing motorists “might reasonably require periodic inspections to be sure that the premises do not endanger those lawfully on the highway.”

– Tom Root

Case of the Day – Friday, August 23, 2024

Posted on August 23, 2024 by TLRoot tagged.

THOSE DOG-GONE COVENANTS

More and more home developments deliver to their residents not just houses, but a particular ambience, one which remains free of eyesores like sheds, clotheslines, and even colors of exterior trim and paint that are deemed outside the color scheme of the place. These restrictions are often contained in the deeds conveying ownership of the homes. And quite often, the restrictions begin to be violated before the ink is dry.

Many of the violations are slight, not worth the time of the neighbors or associations charged with enforcing the restrictions. But someone usually pushes things too far, and then defends himself or herself in court by complaining that Joe Doaks or Jane Doe down the street violated the same restriction, too, and no one complained about it.

In today’s case, an Ohio dog trainer tries the same excuse when the homeowners’ association tries to shut down his obedience school.

It’s like complaining to a cop that everyone is speeding, making his act of stopping you somehow … well, unfair. Like President Carter told us once, “Life is unfair.” And so is selective enforcement. But that doesn’t mean that you can’t do it.

Here, the Court told Marchus that what mattered wasn’t whether other people were getting away with violating the covenants. What mattered was whether there was a “substantial value” to the restriction which should be protected. Where substantial value could be found, equity will enforce a restrictive covenant. No matter who else is violating it.

The guy down the street is selling on eBay for a living? Once a day, he loads his pickup truck with small boxes and goes to the post office? There’s probably no “substantial value” to be served by enforcing the prohibition. But Mr. Marchus’s baying hounds? Customers and their masters were driving in and out all day long on the private road? The other property owners were worried about wear and tear on the road, the congestion, and liability for accidents. Those concerns were legitimate.

The Court refused to let the neighborhood go to the dogs.

Rockwood Homeowners Assn. v. Marchus, 2007-Ohio-3012, 2007 Ohio App. LEXIS 2766, 2007 WL 1731621 (Ct. App. Lake Co., June 15, 2007). Rockwood Homeowners Association consists of the owners of ten individually owned tracts of land on Girdled Road in rural Lake County, Ohio. Each owner has a primary residence on the property. The residences are accessed by Rockwood Lane, a paved, private road running off Girdled Road.

The developers drafted specific land use restrictions which were attached to each deed, restrictions intended to preserve the rustic character of the land while permitting property owners to operate a home-based business without detracting from the rural atmosphere. Section I(A) of the Declaration of Restrictions provides that “no commercial or institutional activity shall be conducted on these lots, which is not wholly contained within the residential dwellings or which causes damage to the private gravel drive by heavy vehicles.” The Bylaws for the Homeowners Association incorporate the restrictions.

Over the years, various owners operated home-based businesses from their Rockwood Estates residences, including a pest control business, a security systems business, a log home business and a tree maintenance business. In September 2001, one owner, Dick Marchus, built a 60′ x 80′ building to be used as a dog training facility. After it was done, his wife ran her dog training business in the new outbuilding, conducting one class on Monday and two classes per day from Tuesday through Saturday. While some attendees would arrive with two or three dogs, she limited the commercial vehicle traffic to ten cars per class.

Almost immediately, the Association sought an injunction to keep Marchus from continuing the operation of the commercial activities from the outbuilding on the grounds that the activity violated the covenant. The Marchuses answered and counterclaimed. At trial, the Association argued the Marchus’s business was in violation of the restrictions. Marchus admitted the activities were not contained within the residential covenant, but he argued the restrictions had been waived or abandoned by the Association’s failure to enforce the restrictions against the past violations of other property/business owners. The trial court granted the injunction, and Marchus appealed.

Held: The trial court’s injunction was affirmed. The Court of Appeals noted that restrictive covenants on the use of property are generally viewed with disfavor. However, this disfavor may be overcome by evidence of a plan or scheme into which the restrictions are incorporated and notice of that plan or scheme. A plan like the Rockwood one, designed to maintain the harmony and aesthetic balance of a community, will often be upheld where the restrictions are reasonable.

The evidence indicated the restriction was drafted with the intent of maintaining the bucolic atmosphere of the development and prohibiting increased traffic from entering and exiting the development. The Court said the restriction was uniform and applied to all property owners in the development. When the evidence was viewed as a whole, the Court said, it concluded the restrictions and the development to which they pertained were premised upon a general plan or scheme.

The evidence also showed that Marchus had notice of the restrictions. Consequently, the Court found that the restriction was valid and enforceable. As for waiver or abandonment, the Court said, the test was whether, under the circumstances, there remained a substantial value in such restriction which should be protected. Where there was a substantial value to the dominant estate remaining to be protected, equity will enforce a restrictive covenant.

Even with the Marchuses' restricting classes to only ten vehicles (leading to dog carpools, no doubt), it was still too much for the neighbors ...

Even with the Marchuss’ restricting classes to only ten vehicles (leading to dog carpools, no doubt), it was still too much for the neighbors …

Here, the Court found, various residents expressed concerns they held since Greta Marchus opened the business. Increased traffic created congestion and destroyed the rural atmosphere of the development. Because the residents were responsible for the upkeep and maintenance of their private drive, some worried about the increased repair cost resulting from the wear and tear. Some were concerned about being exposed to liability if any of the Marchuses’ customers happened to be injured on the private road. The Court found that the concerns expressed were legitimate and rationally related to the appellants’ violation of the covenant, and thus, there was still a substantial value in the restriction.

As for acquiescence, the evidence didn’t show that prior businesses operated anywhere but in the owners’ residences, which was permitted by the restrictions.

– Tom Root

Case of the Day – Thursday, August 22, 2024

Posted on August 22, 2024 by TLRoot tagged.

WHAT KIND OF GUY WOULD SHOOT A DOG?

The crotchety old landowner should have known that he was good and screwed as soon as he got sued for shooting his neighbor’s hunting dogs. If he didn’t, he sure knew his goose was cooked when the Mississippi Supreme Court started its opinion with this:

“Many men, including this writer, feel that a person who has never seen squirrels jump from limb to limb in the deep swamp on a frosty Fall morning; or has never heard a wild turkey gobble in April or seen him strut during mating season; or has never watched a deer bound through the woods and fields, or heard a pack of hounds run a fox, or tree a coon; or has never hunted the rabbit, or flushed a covey of quail ahead of a pointed bird dog; or has never angled for bass or caught bream on a light line and rod, or taken catfish from a trotline and limb hook; has never lived.”

And screwed he was. To be sure, he had a real evidentiary problem, one that comes up all too often. A defendant knows there are no eyewitnesses, and he (or she) happily invokes what is generally known as the Bart Simpson defense: I didn’t do it, no one saw me do it, you can’t prove anything.”

The defense didn’t work all that well for Bart, either.

The hunter’s dogs had run onto I.C. James’ place, and old I.C. (perhaps standing for “Incorrigible Curmudgeon”) didn’t think much of it. So he shot the dogs. And that, as they say, was an unfriendly act.

Old I.C. told Buddy Mabus, the dogs’ owner, that they had run onto his land, so he shot ‘em, and left ‘em “in a bad way.” He acted almost as though he was proud of what he had done. Well, the “mean old S-O-B” act might have given I.C. some visceral pleasure at the time, but it sure didn’t play well before a jury.

Unsurprisingly, by the time the case got to a jury trial, I.C. James had gotten his story straight. He never said he left the dogs in a bad way. In fact, he told the jury the dogs had killed some of his waterfowl, but he didn’t tell Buddy or his son that because they’d have just denied they owned the dogs. Apparently, I.C. James had found out by the time of trial that he didn’t have the right to kill the animals just because they had wandered onto his land, unless — and this is a big “unless” — they had killed some of his poultry. All of a sudden, that was his story.

I.C. figured he had the case licked. After all, no one could say the dogs hadn’t killed the ducks. The evidence against him was circumstantial at best. And we all know that circumstantial evidence is no good, something we learned at the Hollywood School of Law.

Except that circumstantial evidence is good evidence, and a jury is entitled to rely on it. In fact, nothing requires a jury to check its common sense at the courtroom door. This jury didn’t. It knew James’ “they killed my ducks, but I just didn’t mention that until now” recitation of events was nothing but — pardon the pun — a “woof” story. The Mabuses testified the dogs ran onto James’ property, gunshots came from that general direction, James then told them he had shot the dogs (but didn’t mention any dead ducks), and later, one dog turned up wounded and three others didn’t come home at all.

James argued all the way to the Mississippi Supreme Court that the jury had to find for him (or, for that matter, the trial court had to overrule the jury in a procedure known as “judgment n.o.v.”) because no one could disprove his statement that the dogs had killed some ducks. Or, as Bart put it, “I didn’t do it, no one saw me do it, you can’t prove anything.”

The jury thought otherwise, and the appellate court respected that.

Lesson: Don’t go shooting someone’s dogs. It’s not nice.

This is circumstantial evidence that a woman with a child in a stroller happened by here (and that it had rained shortly before that time).

James v. Mabus, 574 So.2d 596 (Supreme Court of Mississippi, 1990). Buddy Mabus lives on a farm where he and his son, Terry, raise dogs which they use to track and run deer. On a cold morning in late November, Terry and Buddy — planning to hunt deer — turned their dogs loose about two hundred yards north of Buddy’s dog pen. The dogs jumped a deer and headed north towards I.C. James’ property, about two miles from where the dogs were turned loose. James had his land posted, and Buddy knew James didn’t allow hunting on his land.

At least two of their dogs ran onto James’ land. James said as stopped to open the gate to his pasture, he heard hunting dogs south of his place heading east. He listened for five or ten minutes and then saw his geese flying across his lake and heard his ducks making noise. He grabbed his rifle from behind his truck seat, pointed it out the window of the truck and drove through his pasture to the lake where he saw two dogs attacking his ducks. James shot at them but did not know whether he hit them because they ran off.

He said he followed the dogs until they left his property.

Terry, on the other hand, said he had stopped about a half mile east of James’ place and was listening to the dogs running toward the road when he heard the shots and then heard only silence. Wondering about the sudden quiet, Terry drove to a gate to James’ property where he believed he had last heard the dogs. James came to the gate and told Terry he had shot the dogs. Terry asked what the dogs were doing, and James said, “They were on my land.” A short time later, Terry found one of the dogs near the red gate nervous and shaking. Three days later another dog returned to Mabus’ land with three pellet shots in his hip. Two dogs never returned.

Buddy also said he heard the dogs as they crossed onto James’ land. Seconds after they crossed, he heard shots and then silence. After Buddy learned the dogs had been shot, he met Terry at James’ house. James told Buddy he shot the dogs because they were on his land, never mentioning at that time that the dogs had attacked his ducks or geese.

At trial, James said he hadn’t mentioned to either of the Mabuses that the dogs had been attacking his ducks because if the Mabuses knew what the dogs had done, they would have denied ownership. The duck issue was important because Mississippi law gave James the right to shoot dogs if they were on his land attacking his waterfowl. James contended that he had seen two dead ducks and one crippled one. James’ daughter also testified that a few months after the incident she saw one dead duck and a crippled one by their pond.

At the close of the Mabuses’ case, James moved for a directed verdict on grounds that the Mabuses put on no proof that the dogs were dead or that James hit any dogs when he shot at them. The trial court denied James’ motion, finding that reasonable inferences could be drawn from the evidence.

The jury found for Buddy Mabus, and I.C. James appealed.

This muppet is a curmudgeon, too, but he hasn’t shot any dogs that we know of.

Held: The dog shooter had to pay. The Mississippi Supreme Court held that credibility and weight to be given to James’ testimony was a matter for the jury to determine. Here, the circumstantial evidence was sufficient to create a jury question as to whether the dogs ran onto the property owner’s land and were shot and injured or killed by the property owner, and the trial court did not abuse its discretion in denying the motion for a new trial.

The Court observed that inherently probable, reasonable, credible and trustworthy testimony – uncontradicted by other evidence – must be accepted as true. But appellate courts will give a jury great deference in its conclusions about the credibility and weight of testimony. In this case, determining whether to accept property owner James’ testimony that the hunters’ dogs had attacked his ducks or the Mabuses’ testimony was a matter for the jury to decide.

To be sure, verdicts must rest upon reasonable probabilities, and not mere possibilities, but a verdict found on circumstantial evidence will stand unless it is opposed by a decided preponderance of the evidence or is based on no evidence whatever. The Supreme Court said that whether there was any circumstantial evidence from which the jury reasonably could infer death or injury to Buddy’s dogs caused by James was a determination to be made by the trial court, and the weight to give such evidence was for the jury. Here, there was plenty of circumstantial evidence that would let a jury conclude that Buddy’s dogs ran onto James’ land and were shot by James for that reason alone, despite James’ contention that the dogs were attacking his ducks (which would have given him a statutory right to shoot and kill them without liability).

As far as the trial court’s determination that the evidence was sufficient to support the verdict, all conflicts and all reasonable inferences from the testimony will be construed in favor of the party who prevailed at the jury trial, and the reviewing court will assume the jury drew every permissible inference from the evidence offered in favor of the winning party. It appeared to the Supreme Court that the jury simply chose not to believe James’ assertion that the dogs were attacking his ducks.

– Tom Root

Case of the Day – Wednesday, August 21, 2024

Posted on August 21, 2024 by TLRoot tagged.

THIS IS WHY YOU SHOULD COME IN OUT OF THE RAIN

Sad to say, stupidity abounds.

Most of us know – thanks to our mothers – that we should come in out of the rain. One dark and stormy night, Katherine Grigg forgot that life lesson.

Kate was driving on Mount Pleasant Road, in rolling farmland at the foot of the California Sierra Madres. Normally an enjoyable drive, Mount Pleasant Road had become anything but pleasant in the driving rain. She encountered a large tree that had fallen from Dennis Taylor’s yard across the road. Naturally, she got out of her car. Who wouldn’t? Standing in the wind and sheets of rain, she and another weather-challenged motorist, David Eggert, determined the tree was too big for them to move.

As their two-party Mensa meeting continued, a second tree fell, hitting both Grigg and Eggert. This is where you perform a face-slap and say, “D’oh!” You might think these two were Darwin Award contenders, but this was California. So they became plaintiffs instead.

At least Grigg did. The court reports that when she asked Eggert whether they should sue Taylor. Eggert replied, “Why? … this was what I call an act of God.”

Maybe the tree knocked a little sense into him. It had no salubrious effect on Kate Grigg, however. She sued, claiming that Dennis Taylor should have removed the danger trees, and his “conscious choice… to neglect his duties which are prescribed to protect the public, is despicable conduct which is the basis for punitive damages.”

It turned out that Eggert was right. It was an act of God. What’s more, despite the fact that Dennis Taylor had reason to know that this act of God was likely to happen, he nevertheless was found to have done enough – not much, but enough – to discharge his duty to the public. Dennis was found not to be liable.

D’oh, Kate.

Grigg v. Taylor, Case No. C050070 (Superior Ct. Cal. June 28, 2006) 2006 Cal. App. Unpub. LEXIS 5661, 2006 WL 1756843. Plaintiff Katherine Grigg encountered a large tree blocking her way one stormy night on Mount Pleasant Road in Lincoln. The tree had fallen from Dennis Taylor’s property, which was adjacent to the road. Another motorist traveling on the road, David Eggert, parked behind Grigg’s car. Grigg and Eggert got out of their vehicles and determined the tree was too big for them to move. As Eggert was thinking of an alternate route they could take, a second tree fell, striking both Grigg and Eggert.

The tree that had fallen on Grigg and Eggert was one-half of a “V” shaped double-trunk tree. The tree’s other trunk had fallen a few weeks before the accident. When the first trunk fell, Taylor inspected the tree and believed it was not going to fall because several other double-trunk trees on his property were still standing after one trunk had fallen. He decided not to take care of the remaining trunk right away “[b]ecause there w[ere] a series of storms” and he “didn’t feel like getting wet.” Nevertheless, once a week, Dennis checked his property for danger trees. Placer County, California, had no law, ordinance, or regulation requiring landowners to prune their trees.

Grigg sued Taylor for negligence and for maintaining a nuisance by failing to maintain the trees on his property. She wanted compensatory and punitive damages.

The court granted Taylor’s motion for nonsuit regarding punitive damages, and the jury found for Taylor on the remaining claims. Grigg appealed.

Held: Dennis Taylor was not liable to Kate. On appeal, she complained there was insufficient evidence to support the jury’s verdict that Taylor was not negligent and had not created a nuisance. The Court of Appeals disagreed, citing evidence Taylor had inspected his trees weekly, that he had several double-trunked trees on his property that had lost one trunk but remained safe, and that his neighbor — who had lost a tree in the storm himself — hadn’t seen any hazardous-looking trees on Taylor’s property.

Grigg’s complaint that Taylor had created a nuisance failed on the same evidence. Without Taylor having any liability to Grigg, the complaint that he should have been ordered to pay punitive damages was moot. The Court said, “The jury found Taylor was not negligent in maintaining his property and did not create a nuisance. There was substantial evidence to support those verdicts. Given the jury’s verdicts, any error in granting the nonsuit on Grigg’s theory that Taylor’s conduct was ‘despicable’ was harmless.”

– Tom Root