Case of the Day – Monday, March 12, 2018


risk151008More unneighborly neighbors …

Ms. Smith owned 134 landlocked acres, and she gained access to them only through using a township road that was no longer maintained and appeared by all accounts to be abandoned. But the road led through the Thompsons’ place, and — for reasons not revealed in the case — they didn’t much like Ms. Smith crossing their land on the abandoned township road.

They sued to keep her off the road, claiming trespass. Ms. Smith responded that it was still an official township road. “We’ll see about that,” the Thompsons must have grunted in reply. They were grunting because they were busy pounding metal posts into the old road so she couldn’t use it. For legal cover, the Thompsons petitioned the Township to vacate the road.

Here’s where it gets murky. The Township apparently refused to vacate the road, and Ms. Smith asked for summary judgment, pointing out that the court couldn’t issue an injunction to keep her off a public road. The court agreed, but the Court of Appeals did not. It found that the general public had no absolute right to use an unmaintained township road, and that the trial court could enjoin Ms. Smith from doing so if it were so inclined. Also, it said that there were way too many moving parts to this case for summary judgment to be appropriate.

closed151008Frankly, the notion that the general public has no right to transit a public highway that isn’t being maintained is an alarming one, for a number of reasons. Chief among them is the difficulty anyone would have telling when a road ceases to be poorly maintained, and falls into non-maintenance. This decision strikes us as a lousy one.

Thompson v. Smith, 172 Ohio App.3d 98, 873 N.E.2d 323 (Ct.App. Columbiana Co., 2006). This case arose out of a property dispute that began when Marlene Smith attempted to use an old township road named Ashton Road in Madison Township near the Columbiana County Airport. The road hadn’t been maintained by Madison Township for many years and was mostly overgrown with trees. Ashton Road cuts through property owned by both Donald and Rebecca Thompson, as well as land owned by Ms. Smith, a 134-acre tract abutting and just north of the 53 acres owned by the Thompsons. Ashton Road begins somewhere west of the Smith property, then cuts generally southwest through both properties, and eventually connects to other township and county roads to the south and east of the Thompsons.

It appeared from the record that Ms. Smith’s 134 acres were landlocked, and Ashton Road might be her only access to other improved and maintained roads, but it was unclear. The Smith property was cut off from access to the north many years ago when State Route 11 was built. A portion of Ashton Road served as a private driveway to the houses around the southwest corner of the Thompson property, and it is partly maintained by the Thompsons. The Thompsons do not maintain any portion of Ashton Road beyond their own driveway and private home.

Some time point prior to the filing of the complaint, Ms. Smith or her agents entered what they assumed was Ashton Road and removed a locked gate that was crossing the right of way. The gate had actually been installed by Ms. Smith some years before, but it had not been locked until the Thompsons began doing so. The Thompsons then filed a complaint against Ms. Smith alleging trespass, preliminary injunction, permanent injunction, and quiet title. Ms. Smith filed an answer and counterclaim.

roadblock151008Sometime after the complaint was filed, the Thompsons installed seven metal posts across what they consider to be an abandoned part of Ashton Road, and they petitioned the Township to officially vacate Ashton Road. Ms. Smith then filed a motion for summary judgment. The motion argued that a member of the general public could not be found to trespass on a public road and that the court of common pleas had no jurisdiction to quiet title to a township road. The motion asked the court to dismiss the trespass claim and the quiet-title claim.

The trial court held that Ashton Road was a public road, that none of the parties had acquired any private ownership interest in the public road known as Ashton Road and that none of the parties can be found to have trespassed on Ashton Road. The court dismissed the Thompsons’ requests for injunction, finding that no person has the authority to erect obstacles on a public road. The court also held that it had no authority to quiet title to Ashton Road.

The Thompsons appealed.

Held: The Court of Appeals reversed, finding that genuine issues of material fact precluded summary judgment, and that the trial court had the power, if it so elected, to grant an injunction against a private person using a public road.

The Thompsons demanded that Ashton Road be the road not taken ... but the whole idea frosted Ms. Smith.

The Thompsons demanded that Ashton Road be the road not taken … but the whole idea “frosted” Ms. Smith.

The Court found that genuine issues of material fact concerning landowners’ and neighbor’s property rights and their actions and intentions with respect to road, which township had not vacated but which had become overgrown with weeds and bushes, precluded summary judgment for neighbor on landowners’ claim for injunctive relief to prevent neighbor from using the road.

The Court held that the general public has no absolute right to use or change a township road that is not being maintained by the township, whether or not the road has been formally vacated by the township. Also, §5553.042(B) of the Ohio Revised Code holds that a township shall lose all rights in and to any public road, highway, street, or alley which has been abandoned and not used for a period of 21 years, after formal proceedings for vacation have been taken. “Upon petition for vacation of such a public road, highway, street, or alley filed with the board of county commissioners by any abutting landowner, if the board finds that the public road, highway, street, or alley has been abandoned and not used for a period of twenty-one years as alleged in the petition, the board, by resolution, may order the road, highway, street, or alley vacated, and the road, highway, street, or alley shall pass, in fee, to the abutting landowners, as provided by law…”

The Court of Appeals held that the trial court erred when it concluded that there were no circumstances in which an injunction could be granted to prevent a private citizen from using a public road. But one of the primary purposes of injunctive relief in Ohio is to protect property rights. The trial court in this case is free to utilize the remedy of injunctive relief to protect the rights of the parties, even though the primary dispute involves access to and use of a public road.

The Court concluded there remained unresolved factual disputes concerning the property rights of the parties and their actions and intentions with respect to Ashton Road. Therefore, summary judgment was not appropriate.

– Tom Root


Case of the Day – Friday, March 9, 2018


Those tin hats really work -- it's just that THEY want you to think there's something wrong with wearing 'em ...

Those tin hats really work — it’s just that THEY want you to think there’s something wrong with wearing ’em …

Could you say that “it’s not paranoia if they’re really out to get … your trees?” Put on your tin foil hat, conspiracy enthusiasts! Or not, if you think that’s an aluminum industry conspiracy.

In this case, the Riehl family had what could be fairly described as a mania for not trimming their trees and bushes. Their preoccupation with the natural look made the neighbors’ use of a common roadway rather tough. As a result, the Riehls were sued in the 1970s, and while the neighbors were found to have an easement, the court didn’t force the Riehls to trim the trees.

Some 15 years later, the City of Rossford passed a nuisance ordinance aimed at people who didn’t trim their trees along streets. And the odor of conspiracy wafted through the town, spread by black UN helicopters …

The City sued the Riehls in 1997, but then cut a deal with them by dismissing the action and trimming the Riehls’ trees itself. But in subsequent years, aided no doubt by the Illuminati and Council for Foreign Relations, the City cited the Riehls almost annually, hired contractors to cut the trees down, and then billed the Riehls for the trimming. Finally, the Riehls had had enough, and — proving that a man who acts as his own lawyer has a fool for a client — they filed their own complaint, alleging everything from fraud to contract breaches to infliction of emotional distress to multiple Constitutional law violations. And they sued the City, the prosecutor and all of their neighbors.

The trial court (probably in the pockets of the New World Order) threw out the suit even with respect to defendant who didn’t answer. The Court of Appeals agreed, expressing bafflement as to why the neighbors were even named, and finding that the fact that the City made a deal in 1997 didn’t mean that it couldn’t come back every year after.

Time for the Riehls to raise their own militia … and maybe set them to work trimming the bushes.

conspiracyalert140321 Riehl v. City of Rossford, Slip Copy, 2007 WL 2164158 (Ct.App. Ohio, July 27, 2007). This case is the latest installment in the ongoing dispute between property owners in Eagle Point Colony about an undedicated access road/alley commonly known as Thirwal Drive. The Riehls owned property along Thirwal Drive, and their perpetually untrimmed trees and bushes encroached on the road to the detriment of other property owners who use it, as well as delivery and trash truck servicing all of the owners along the road. In 1977, a number of the other residents sued the Riehls seeking to enjoin them from clogging, choking or narrowing the width of Thirwal Drive. The court ruled that the other owners had an easement by prescription over the Riehls’ land in the form of Thirwal Drive and permanently enjoined the Riehls from clogging, narrowing, or impeding the use of Thirwal Drive.

But when the neighbors filed a contempt motion because the Riehls weren’t cooperating, the trial court determined that the Riehls didn’t have the obligation to remove or trim the bushes and trees, or otherwise to repair or maintain the easement.

Thereafter, in 1995, Rossford City Council passed Ordinance No. 94-045, which held that “[e]very occupant of land shall maintain his property so that no brush, trees, bushes or obstructions extend into, on or over any public or private way generally used for the passage of persons or vehicles so as to obstruct or interfere with the passage of such persons or vehicles, or with the ingress and egress of emergency, maintenance, repair or service vehicles or equipment.” Pursuant to the ordinance, the City cited the Riehls in 1997 but later dismissed the case. Thereafter, it cited the Riehls virtually every year, trimmed the trees and bushes itself, and billed the Riehls for the cost.

Finally, in 2005, the Riehls sued the City, the prosecutor, and all of the other neighboring property owners. The poorly-drafted complaint alleged the City had breached a contract by passing an ordinance charging the Riehls for the trimming, committed fraud, violated the Riehls’ property rights, and retaliated against them by enforcing the nuisance ordinance. The trial court dismissed the action on all counts as to all defendants. The Riehls appealed.

Held: The dismissal was affirmed. The Court said the current litigation, reduced to its essence, was simple: it involved the Riehls’ continuing violation of Rossford’s nuisance ordinance, which was passed after the 1978 decision. Nothing in the prior decision of the trial court had any effect on the subsequently-passed ordinance. And, the Court held, the Rossford nuisance ordinance had a real and substantial relation to the safety and general welfare of the public and is neither unreasonable nor arbitrary. It seeks to prevent Rossford property owners from obstructing any public or private way that is used for the passage of persons or vehicles, including emergency, maintenance, repair or service vehicles or equipment. The nuisance ordinance applies equally to the Riehls and all other residents of Rossford.

At its heart, the Riehls’ complaint alleged that the 1997 judgment granting the city’s motion to dismiss the first nuisance action filed against the Riehls, amounted to a res judicata determination that the Riehls never again had an obligation to trim their bushes and trees and prevent them from obstructing Thirwal Drive. However, the Court held, a political subdivision or an employee of a political subdivision is immune from liability in a civil action for injury or loss to property when the claims are in connection with the political subdivision’s or employee’s performance of legislative or quasi-legislative functions, or the enforcement or nonperformance of any law. What’s more, the Supreme Court of Ohio has expressly stated that “[t]here are no exceptions to immunity for the intentional torts of fraud and intentional infliction of emotional distress …”

Because the Riehls’ claims against the city arose out the city’s performance of governmental functions, and because no exceptions to immunity apply with regard to the Riehls’ claims against the city for fraud and intentional infliction of emotional distress, the city was entitled to summary judgment on those claims.

The city’s immunity doesn’t extend to contracts. The Riehls argued that in 1997 the city of Rossford entered in to a settlement agreement with the Riehls approved by Judge Dwight Osterud. They claim that the city agreed to trim the Riehls’ bushes and trees that encroached on Thirwal Drive. Nevertheless, in 2003 and 2004, the city of Rossford passed ordinances assessing the costs of trimming against the Riehls’ real estate. The Riehls claim that the February 1997 judgment entry amounted to a contract and that through their actions, the governmental defendants breached this contract with the Riehls.

blackhelicopter140321 The Court rejected their argument. It held that there was no enforceable plea agreement. The City got no benefit and the Riehls suffered no detriment from the deal. Thus, the Court held, there was no consideration for the contract, and thus there could be no contract. The Riehls also argued that assessing them for trimming their trees constituted an unconstitutional taking of their property without compensation. But the Ohio Supreme Court has held that the government must pay just compensation for total regulatory takings “except to the extent that ‘background principles of nuisance and property law’ independently restrict the owner’s intended use of the property.” That’s all that was happening here. There was evidence that the nuisance ordinance had been enforced against other residents, too, so the Riehls’ claim of disparate treatment failed as well. Finally, there was no evidence that the city had enforced the tree nuisance ordinance against the Riehls as punishment for their voicing their views pursuant to their First Amendment rights.

Just like everyone else in Rossford, the Riehls must keep their bushes and trees trimmed at their own expense.

– Tom RootTNLBGray140407

Case of the Day – Thursday, March 8, 2018


The sun setting in the east?

The sun setting in the east?

Will Mark and Elizabeth Heil be having their neighbors Stewart and Christina Hines over to enjoy margaritas and the sun set over the ocean? Don’t bet on it for two reasons, neither of which is more likely than the other: First, the Heils and Hines are neighbors on beautiful Hilton Head Island, South Carolina, and thus, it’s physically impossible for them to watch the sun set in the east over the Atlantic. The second reason is that they’re pretty clearly NILOs (neighbors in location only). They may have homes next to each other, but there’s no love lost between them.

The Heils had a vacation home on the Island, next to a house owned by the Hines (who, being more frugal, perhaps, rented it out to tourists). One November, the Heils visited their Shangri-La, only to notice branches from one of the Hines’ healthy oak trees overhanging the house’s roof. They observed no roof damage, and saw nothing to suggest the tree was diseased or failing. Nevertheless, the Heils asked the Hines to do something about it.

The Hines were good neighbors, albeit thrifty ones. They asked the Heils to get some bids from tree services, and the Heils complied with bids in the thousands. The Hines found Sam’s Tree Service, a guy with no insurance, an undocumented worker (attention, President Trump!), and probably a beat-up truck, too, for all we know. But he was properly licensed, and had no record of complaints. More important for the Hines, Sam did the job for a mere $500.00.


Just a little hole…

Many months later, when the Heils next visited their house, they found a hole in the roof and water damage everywhere. Their insurance carrier denied coverage because inspectors determined that the Hines’ tree had rubbing against the roof, causing the hole. (That alone is worth a whole blog, but we’ll pass on that issue). The Heils demanded that the Hines and Sam pay for the damage, but both declined.

Sam said his climber performed the limb removal while he supervised from the ground, and never stood on the roof. Instead, he was suspended above the roof on a safety harness. The encroaching limbs were tied off, cut and lowered down to the ground. While performing the trimming, Sam’s man noticed only a dented shingle, nothing that would affect the roof’s integrity, so he did not pass on the information about the shingle.

The Heils, of course, sued. They fired a negligence blunderbuss at the Hines, saying they were negligent for not inspecting the tree, for hiring Sam, for paying so little to have the work done, and even for letting an undocumented worker do the trimming. The trial court found no evidence that the Hines had breached any duty to the Heils by failing to inspect and maintain their tree, and by negligently hired Sam’s Tree Service.

The court gave them short shrift, upholding the standard that homeowners have no duty to repair damage caused by their healthy trees of which they are not aware. The Hines hired a tree service within a month of being asked to do so, and no evidence explained why – let alone showed that – Sam’s low price, lack of insurance, or undocumented worker led to the hole that the Heils found in their roof.

The real problem here was that the Heils, apparently unaware of the Massachusetts Rule or too chary to care, left it to well-meaning neighbors to remedy a problem that belonged to them. The Hines’ principal mistake was in not telling the Heils to pound sand to begin with, and to trim the branch themselves.

Sure, you say, but how about the Hawaii Rule? Fancher v. Fagella? To that we say, even if the Heils could have shown that the tree was a nuisance – which on verdant Hilton Head Island, where the vegetation grows prodigiously, might be a real stretch – the costs borne by both parties probably would have been less. The branch was healthy, the cost of remediation was slight, and the Heils are consenting adults who should look after the integrity of their own house.

broketable161117There’s an old legal aphorism that when your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on both the law and the facts, pound on the table.

The Heils broke the table.

Heil v. Hines, Case No. 2015-001988 (Court of Appeals of South Carolina, Nov. 9, 2016).  Mark and Elizabeth Heil had a vacation home on Hilton Head Island, next to a rental house owned by the Stewart and Christina Hines. One fall, the Heils observed branches from a healthy oak tree owned by the Hines overhanging their house roof. They saw no roof damage, and no disease or decay on the tree. The Heils asked the Hines to trim the tree.

At the Hines’ request, the Heils provided bids from tree services, but the Heils hired a local company, Sam’s Tree Service. Sam’s was licensed but not insured, and used a worker who was an illegal alien. Sam’s charged $500.00 to trim the tree.

The following spring, the Heils found substantial water damage in their home from a hole in the roof. Their insurance company denied them coverage, because inspectors found the damage was from a roof hole caused by the Hines’ tree.


   The blunderbuss – a crude but destructive weapon. Likewise, the blunderbuss complaint… Sam’s was negligent because its trimmer lacked a green card? Really?

The Heils sued, contending that the Hines were negligent for not inspecting the tree, for hiring Sam’s, who must have caused the damage and was too cheap, uninsured and an employer of illegals. The trial court granted summary judgment to the Hines, finding that the Heils had no evidence that the Hines had neglected their healthy tree, or that Sam’s removed the branch in a negligent manner.

The Heils, of course, appealed.

Held: The Court of Appeals ruled that the Heils “produced no evidence from which an inference could be made that [the Hines] breached their duty of care.” The Court held that to make out a claim for negligence, the Heils had to allege facts showed (1) a duty of care owed by the defendant; (2) a breach of the duty by a negligent act or omission; and (3) damage proximately caused by the breach.

Here, the Court said, the oak tree was a live, healthy tree, and the Heils – who didn’t see any roof damage themselves ¬– presented no evidence that the Hines “could have observed, by reasonable inspection, the damage possibly caused by the tree limb.” Note the word “possibly” – the plain fact was that the Heils had no evidence that the tree limb caused the hole, or even when the hole was formed.

What’s more, the Court said, when the Hines were notified the tree needed to be trimmed because it was encroaching on the Heils’ roof, the Hines hired Sam’s Tree Service and the work was completed within a month of notice. The Heils had no explanation – let alone evidence – for their claim that Sam’s Tree Service use of an undocumented worker and its low fee somehow constituted a breach of the Hines’ duty to the Heils.

The Heils had no proof that Sam’s Tree Service performed its work in a negligent way or that “another tree service company would have known or communicated that a single dented shingle was cause for structural concern – if the dented shingle was the cause of the damage.”

– Tom Root


Case of the Day – Wednesday, March 7, 2018


Dogs have been man’s best friend for something over 10,000 years, but that doesn’t mean the law does not have a healthy respect for the mischief our canine brothers and sisters can cause. Common law was rather comme ci, comme ça about the hounds. The “one bite” rule ruled the day throughout the 19th century, holding that an owner or keeper of a dog would be held legally liable for damages caused by the animal only if it could be shown that the animal had a propensity to do something harmful which was unusual for the animal’s class (such as biting people, scratching them or knocking them down) and the owner or keeper knew about the dangerous propensity prior to the incident in question.

As society became more urban and orderly, a number of states imposed strict liability on dog owners. If Fido bit, you were hit. In so doing, states treated domestic animals the same as inherently dangerous situations for which res ipse loquitur applied.

Res ipse loquitur is a great doctrine. Meaning literally “the thing speaks for itself,” res ipse loquitur acknowledged that some conditions – like keeping a wild animal, storing explosives in a residence in town, or cutting down a tall tree in the middle of a neighborhood. Typically, res ipse loquitur requires a showing that the accident is of a kind that doesn’t normally occur unless someone has acted negligently; the evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and the type of negligence in question falls with the scope of the defendant’s duty to the plaintiff.

Dog bite laws are actually even worse for the owner than the classic res ipse loquitur situation. After all, as a matter of strict liability, you might get bitten only because you pulled a gun on the dog. No matter: strict liability says that the dog and his or her owner are at fault.

Today’s case is an excellent example of what usually happens. Latasha Maupin was squirrel hunting with her boyfriend out in the woods when she cut across Roland Tankersley’s land, on a path she had long used with the Tankersley clan’s permission.

The Tankersleys were cool with it, but their dogs were not. Latisha was badly mauled by a pack of Tankersley mutts.

A Samaritan motorcyclist riding on a nearby road saw the attack and dragged Latisha to safety. She recovered enough to sue Roland Tankersley, relying on state law. Roland said she had to prove he either knew Latisha would be cutting across his land or be aware that the mutts were dangerous. Latisha, taking the modern view, argued that Roland owned the dogs, and that was enough.

The jury found that Roland was the owner of the dogs, but he had had no idea Latisha would be near his dogs that day or had he failed to exercise ordinary care to control his dogs for the safety of others. The core legal issue – whether strict liability was the state of the modern law – ended up in the Kentucky Supreme Court.

Maupin v. Tankersley, Case No. 2016-SC-000572-DG (Sup.Ct. Kentucky, Feb. 18, 2018). Latasha Maupin was squirrel hunting with her boyfriend on heavily wooded property owned by his family. She decided to go home early, and cut across Roland Tankersley’s 42-acre tract, using a path she and her family had used with permission for years. Near where the path met the road, a pack of Roland’s dogs attacked her, causing substantial injury. Latisha sued Roland for her injuries, relying on KRS 258.235(4).

The trial court, however, instructed the jury that Latisha had to show that Roland knew that Latisha was likely to be crossing his land and to come into contact with his dogs, or failed to exercise ordinary care to control his dogs for the safety of others. Latisha howled that this was wrong, and the mere fact that the dogs belong to Roland was enough to make him pay.

Latisha lost the appeal as well, but she was dogged in her determination. The case ended up at the Kentucky Supreme Court.

Held: The General Assembly’s intent in passing the dog bite statute was clear: to mandate that dog owners are strictly responsible for injuries caused by their dogs.

The statute simply held that “any owner whose dog is found to have caused damage to a person, livestock, or other property shall be responsible for that damage.” The Court interpreted the statute by giving its words “common and ordinary meaning, unless they are technical terms,” and it “liberally construe[s] our reading of a statute with the goal of achieving the legislative intent of the General Assembly regarding the statute’s purpose.” Here, the Court said, under the rules of statutory construction, “shall” is mandatory language and there is “no legal distinction between the words “liable” and “responsible.”

The Court observed that a major concern driving the General Assembly to adopt the dog bite law was the protection of livestock as well as people. The historical emphasis has been on the agrarian interest in the protection of farm animals.

But Latisha was not the only lucky dog in the case. While Roland was liable to her simply by dint of ownership, the Court said that Latisha’s comparative negligence “may be considered in measuring the damages awarded to her.” Kentucky’s comparative fault statute requires the trier of fact in “all tort actions” to “consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed” when determining the percentage of the total fault properly attributed to the parties.

Thus, the Court said, “it is appropriate for the jury, during the calculation of damages phase, to lessen the liable owner’s monetary responsibility for the victim’s injuries if the facts demonstrate that the victim’s own negligent or intentional acts contributed to the dog attack’s occurrence.” Citing the agrarian concerns that underlay the adoption of the law, the Court observed that “it would be incredulous to believe that the General Assembly intended for the owner of trespassing cattle, who break out of a neighboring pasture and enter the dog owner’s land, to be fully compensated for damages inflicted by the homestanding dog upon the intruding livestock.”

– Tom Root


Case of the Day – Tuesday, March 6, 2018


We’re not really sure what happened here, only what one neighbor said happened, and what the other denied. But that’s all right, because today’s case is not about who cut down whose trees, but instead whether an insurance company had to step into the dispute to defendant Shelly Albert when neighbor Henri Baccouche said she done him wrong.

Henri said Shelly trespassed on his property, built a fence across some of his land, and severely damaged nine olive trees in the process. So his complaint was what we call trespass to trees. Shelly argued that she was obligated to trim the trees because of fire regulations, she had been trimming them for years without Henri complaining, and the trees were boundary trees anyway, so she had a right to trim them.

We all know what can happen when we lose a lawsuit. But the pain in the wallet begins way before that, with the cost of attorneys, experts, filing fees and litigation expenses. That’s a good reason for insurance. Shelley had some, a homeowner’s policy bought from Mid-Century Insurance Company (so named, perhaps, because the middle of the last century was the last time the company every paid a claim).

We’re just kidding, of course. Mid-Century couldn’t wait to start paying for lawyers and depositions and settlements and the like, all on Shelley’s behalf.

Wait. We’re kidding about that, too. Shelley notified Mid-Century as soon as she was sued. She demanded Mid-Century mount a defense for her, but Mid-C said, “no dice.” The insurance policy covered accidental occurrences, the Company said, and Shelley, by her own admission, had deliberately hacked up the olive trees.

Shelley was outraged. She fumed that Henri’s “entire complaint is false [and] outrageous… the trespass claim is ridiculous… in those boundary trees were enclosed by me, prior to any survey being done, based on a good faith belief that property encompassing the trees was mine… no intentional tort will lie” She contended Mid-Century’s decision to deny her claim was “clearly error.”

Shelley’s insurance policy covered her from injury due to accidents. Shelley’s problem, of course, was that she said the accident was that the trees might really by Henri’s and not shared, and that she and her guys might trimmed more than they were entitled to. But they did not mean to. Fact is, however, the “accident” had to be conduct, not its unintended result. If Shelley had run over the trees with a bulldozer while she was digging a hole for a pool, that would be an accident. But “accident” is like “intent” in trespass. You don’t have to intend to walk onto some else’s land. You just have to intend to step where you step. If that land belongs to someone else – whether you knew it or not – you’ve trespassed.

Shelley intended to prune the trees. It was no accident, whether she was right in her belief that she could do so or not. Thus, the insurance company could not possibly be liable, and it did not have to defend her.

So Shelley lost big (and spent a lot on legal fees) before ever squaring off against Henri. Lesson? It might make good reading some evening (when nothing good is streaming on Netflix) to read your homeowner’s insurance policy. Sometimes, it can be scarier than a slasher movie.

Albert v. Mid-Century Insurance Co., 236 Cal.App.4th 1281 (Ct.App. 2nd Dist., 2015). Shelley Albert had a homeowners insurance policy with Mid-Century Insurance Co., which covered “property damage resulting from an occurrence,” including paying the costs of defense “against any suit seeking damages covered under this section…” The policy defined an “occurrence” as “an accident, including exposure to conditions, which occurs during the policy period, and which results in… property damage… during the policy period,” but specifically excluded damages resulting from “an intentional act by or at the direction of the insured.”

Oh, what peace of mind Shelley must have had! At least until she was sued by her neighbor, Henri Baccouche, for damage Shelley was alleged to have caused to his property when she erected an encroaching fence, and pruned nine mature olive trees on his property. Shelley called on Mid-Century to provide a defense, but the insurance carrier refused, saying it was not liable under any stretch of the policy. Mid-Century said Henri’s “do not meet the definition of occurrence resulting in bodily injury or property damage as defined by your policy,” because protection against Henri’s claim was barred by the policy’s exemption for intentional acts.

Shelley sued Mid-Century, claiming breach of contract, and breach of the implied covenant of good faith and fair dealing. Defendant filed a motion for summary judgment. The trial court granted judgment to Mid-Century, holding that Shelley’s conduct in cutting Henri’s olive trees was intentionally undertaken, and there was no evidence whatsoever that the trees were injured in some accident.

Shelley appealed.

Held: Mid-Century had no duty to defend Shelley. The policy was quite clear that it covered property damage resulting from an “occurrence,” and an “occurrence” was an accident. “Accident” in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured, the Court said. An intentional act is not an “accident” within the plain meaning of the word.

The Court said that an accident “is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.” For example, if a driver intentionally speeds and, as a result, negligently hits another car, the speeding would be an intentional act. However, the act directly responsible for the injury hitting the other car was not intended by the driver and was fortuitous. Accordingly, the occurrence resulting in injury would be deemed an accident.

Shelley deliberately hired a contractor to trim the trees, but argued that the excessive cutting was not an intended consequence, and should be deemed an accident. Specifically, she maintains that the excessive cutting could have resulted from “miscalculation by the independent contractors, or it could have been as a result of a mishap with a motor vehicle… or truck… used in the tree trimming process, or by falling ladders, malfunctioning chainsaws or any number of other instrumentalities. All of these were possible ‘accidents’ causing the alleged excessive cutting.”

Nonsense, the Court said. “It is completely irrelevant that plaintiff did not intend to damage the trees, because she intended for them to be pruned. Moreover, it is undisputed that the contractor intended to cut the trees, and absolutely no facts exist, in the complaint or otherwise, indicating that some unforeseen accident (such as a slip of the chainsaw) caused the damage to the trees.” It was always Shelley’s position that the trees had not been damaged or pruned excessively (and therefore were not subject to an accident), and that they had been cut in accordance to the City’s brush clearance ordinance. The Court ruled that “an insured may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in which the third party claimant might amend its complaint at some future date.”

Even with the most charitable view of the underlying events, the Court said, the trimming of the trees was no accident.

– Tom Root


Case of the Day – Monday, March 5, 2018


swinger140320Sounds like a Craigslist come-on, doesn’t it? But morals weren’t loose here, just one of the fittings on a swingset.

A little boy and his father were at a Salt Lake City park, where the boy was swinging on a “toddler swing.” He fell and hit his head on a concrete lip surrounding the swing.

His father sued the City for negligence — after all, he couldn’t get jurisdiction over Sir Isaac Newton to sue for negligent gravity — and the City raised as a defense the Utah Limitation of Landowner Liability-Public Recreation Act. That mouthful of an act is Utah’s recreational user statute, and was intended to encourage public and private owners to open unimproved parklands to the public without charge by protecting them from liability for natural conditions.

The trial court made short work of Dad’s lawsuit, holding that he was a non-paying user of the facilities and that the City thus owed his son no duty of care. But on appeal, the Utah Supreme Court reversed. The Supreme Court held that the City hadn’t opened the park in response to the legislature’s encouragement. Rather, the park was opened long before the recreational user statute passed. The governmental immunity act already permitted suing for a city for negligence because of conditions in the park.

The Utah Limitation of Landowner Liability-Public Recreation Act was not intended to apply to an improved city park already covered by other laws. Plus, the Utah Supreme Court said, despite the patchwork of decisions across the country as to what was improved and what was not improved land, it appeared that an improved city park — one that included a swingset apparatus like the kind on which the boy was injured — took the city park outside of the protections of the Utah recreational user statute.

An inherently dangerous undertaking?

An inherently dangerous undertaking?

This may seem to be a great win for a poor little kid with a concussion, but not much attention is paid to the losers. Those would be the taxpayers who fund the settlement that’s sure to follow, as well as everyone who will have one less place to go when the City – flummoxed by the confusing state of the law – finds it easier and cheaper just to close the parks.

De Baritault v. Salt Lake City Corp., 913 P.2d 743 (1996). Young Marc De Baritault was on the toddler swing at Laird Park is a city-owned park located in Salt Lake City. He fell and injured his head on a concrete ridge surrounding the play area.

His father sued on his behalf, arguing that City had designed, constructed and maintained the playground negligently. The City argued that because the boy was a recreational user of public lands held open without charge to the general public, the City had no duty toward him under the Utah Limitation of Landowner Liability-Public Recreation Act.

De Baritault argued the Act didn’t apply because its purpose was to encourage private landowners to open up their lands for public use. Although the Act was amended in 1987 to apply to both public and private landowners, De Baritault maintained the Act didn’t apply to Laird Park because the City had not opened the park in reliance upon the Act.

The trial court granted summary judgment on the grounds that Marc was a nonpaying recreational user of Laird Park, and that under the Act, Salt Lake City owed no duty of care to the boy. The court also concluded that there was no evidence of deliberate, malicious, or willful conduct by the City, which would have resulted in liability under section 57-14-6 of the Act.

De Baritault appealed.

Held: The Act did not protect the City. The Utah Supreme Court held that the Utah Limitation of Landowner Liability-Public Recreation Act did not apply to a small, improved city park, and thus, did not preclude Marc’s recovery for his injuries. The Court held that extending the Act’s application to improved city parks which, unlike many private wilderness lands, were not opened to the public in response to the Act, and which were already covered by other laws – such as the Governmental Immunity Act – would serve neither the legislative intent nor the purpose of the statute.

In Utah, courts that have focused on the nature of the land itself have found some combination of following characteristics must be present before immunity under the recreational use statute applies: the land must be (1) rural, (2) undeveloped, (3) appropriate for the type of activities listed in the statute, (4) open to the general public without charge, and (5) the type of land that would have been opened in response to the statute.

– Tom Root


Case of the Day – Friday, March 2, 2018


You’d think that with all of the murder, mayhem, opioids and computer fraud, we’d have enough crime out there to satisfy the most hidebound law-and-order type (we’re talkin’ to you, Jefferson Beauregard Sessions III). But no, we need even more criminal statutes to serve as a trap for the unwary.

Unwary folks like Mohammed Azmat of Franklin Township, New Jersey. There has to be a backstory of ill will here, but in honor of Sgt. Joe Friday, we’ll stick to the facts. Mohammed’s neighbor Tony Gaylord filed a complaint in court against Mo, alleging violation of Ordinance § 222.17 for failure to maintain the trees along their shared property line.

Not that! Not Ordinance § 222.17! Old ladies swooned. Town elders gasped. It was the Queen Mother, the local ordinance that required homeowners to maintain their trees “in a safe manner” or face the full wrath of the criminal law.

This is ridiculous. Lock a homeowner up for not trimming trees? And not keeping them “in a safe manner so they shall not create a hazard to the general public,” whatever that meant? Mo argued that the criminal statute was so vague as to not fairly inform those subject to it what was required. That, for those of you who were on senior “skip day” when your high school government class covered the topic, violates a citizen’s right to “due process of law” under the 5th and 14th Amendments.

But the Court didn’t buy it. It held that anyone who read the ordinance could tell that “all trees… [shall be] maintained in a safe manner so they shall not create a hazard to the general public” would inform the reader that a dying tree or one likely to fall had to be removed. That’s so, but just about every vague statute or ordinance clearly covers hazards on the far shore of reasonableness. Imagine a state law that punished people who weren’t nice. Obviously, punching a Brownie in the gut because you were on a diet and couldn’t eat cookies would break the law. But how about roaring into a parking place ahead of a grandmother in a Buick? Or walking past a homeless person with a thousand-yard stare? Or even just ducking around an aisle at the grocery store to avoid a talkative neighbor because you’re in a hurry?

Generally, the “void-for-vagueness” doctrine requires that a criminal statute define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. The legislature – or, here, the township government – is required to establish minimal guidelines to govern law enforcement. Without some kind of guidance, a criminal statute may permit what the Supreme Court once called “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.”

Such as letting a neighbor who has a bone to pick turn his complaint into a criminal case. We would never suggest that a guy with the Italian name decided to lay the leather to the guy with the Middle Eastern name who just happens to worship on Fridays at a mosque. But we will suggest that slippery criminal ordinances like this one are perfect bludgeons if you want to oppress someone for reasons having nothing to do with the putative issue.

The thing about vagueness is that it doesn’t really inform one of what is permitted and what is proscribed on the margins, where the differences may be slight. Some places really love statutes like that. But this is America.

Beyond the vagueness issue, of what social utility is an ordinance that uses loss of liberty to punish someone for not maintaining property? Fines, liability for foreseeable effects of sloth, or even having the municipality perform the maintenance and then billing the owner at a punitive rate, all work as well, and do not soak up municipal resources need more for those whose conduct pose a more clear and present danger to the public than a dead tree, or – for that matter – encourage people other than the complainant in this case (of whom we suspect nothing but pure motives) to pursue statutory mischief.

State of New Jersey v. Azmat, Case No. A-0296-14T3 (Super. Ct. N.J., June 13, 2016): Anthony Gaylord filed a complaint in the Franklin Township Municipal Court against his neighbor Mohammed Azmat, alleging violation of Ordinance § 222.17 for failure to maintain the trees along their shared property line. The ordinance provides: “The owner or tenant of any lands lying within the Township shall keep all trees… maintained in a safe manner so they shall not create a hazard to the general public…” Tony said trees on Azmat’s property had fallen onto his property, causing damage to his property and to power lines. Tony said he was afraid other trees that he deemed dangerous could fall in a windstorm, hurricane, or snow storm.

Tony and Mo could not agree on which trees should be removed, and at trial, the State of New Jersey presented testimony from Tony and its expert, Robert Wells, an International Society of Arboriculture certified master arborist. Tony generally bellyached about the “hazardous conditions” he claimed existed on Mo’s property. The expert identified two white Ash trees near Tony’s power lines which he opined were hazard trees that posed a “non-imminent threat” of “tree failure” and could possibly fall on the power lines. He also cited two of Mo’s Locust trees, leaning over power lines connected to Tony’s property, which he said were hazardous and should be cut down. Finally, he pointed out some dead limbs on a Sweet Gum and Red Oak tree, which extended over Tony’s power lines. The expert did admit that the trees he identified as hazardous had already survived Hurricane Irene in August 2011 and Hurricane Sandy in October 2012.

The municipal court found that “[c]ertain trees of defendant’s property pose a clear and present danger to complainant… his house and to utility lines that transverse both parties[‘] property.” He ordered Mo to cut down and remove the trees identified in the expert’s report within sixty days, or be fined or jailed. Mo appealed to the Law Division of the Municipal Court, which upheld the judge.

After that, Mo appealed to Superior Court, claiming the ordinance was unconstitutionally vague, and that even if it was not, there was not enough evidence to convict.

Held: The criminal ordinance was not unconstitutionally vague, and ample evidence supported Mo’s guilt. The Court said that for an ordinance to be vague, there had to be so little guidance “that an enforcement officer would not be able to point to objective facts that would lead a reasonable person to realize his or her conduct was a violation.” But here, the ordinance is specific; Ordinance § 222-17 plainly states that “all trees… [shall be] maintained in a safe manner so they shall not create a hazard to the general public.” Thus, the ordinance is clear “that a tree that is dying or likely to fall must be removed by its owner if it can cause a hazard to others.”

Mo also complained that the State’s expert had only visually inspected the trees from 12-15 feet away, not an acceptable methodology within the arboriculture profession. Mo argued that the fact that the “hazardous” trees did not fall during Hurricane Sandy, which occurred after the complaint was filed, showed that the expert’s opinion was unreliable and speculative. Finally, he pointed to some inconsistencies between the expert’s written report and his testimony.

The appellate court found no merit to Mo’s contention that the expert testimony was inadmissible net opinion. “The net opinion rule… forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data,'” the Court said. “Here, the expert based his opinion on more than 40 years of experience as a certified master arborist that, based upon his personal observations, certain trees on defendant’s property were hazardous and should be removed.” Mo never rebutted the methodology of citing dead and detached limbs to conclude that the trees were a threat to Tony’s power lines. “Further,” the Court held, “the cited inconsistencies between the expert’s report and his testimony do not cause us to take issue with the trial court’s reliance on his opinion to find that defendant violated the ordinance.”

– Tom Root