Case of the Day – Thursday, December 13, 2018

LICENSE TO SWIM

facts130307One of Harry S Truman’s favorite admonitions was that one should never confuse wishes for facts. In today’s case, Bill Johnson wanted to have the rights to use John Bradley’s lake so much that he convinced himself over time that he did have the rights. But (as another American president once said), “Facts are stubborn things.” Fact was, Bill didn’t own the rights at all.

Up in Shawangunk Ridge country, John Bradley built himself a nature preserve, including rehabilitating an old dam and lake.  It was a pretty nice place, so nice in fact that his neighbor, Bill Johnson, found it irresistible. 

Bill had property that came within 10 feet of the lake, and he found it convenient to push the boundaries just a bit so he could boat and swim as well (the court opinion said he used it “for his boating and bathing activities,” and we’d prefer to assume that he wasn’t floating around with a bar of Ivory soap). Property owner Bradley put up fences, sent letters, threatened and cajoled, but nothing seemed to deter Bill from using the pond as an extension of his place.

Johnson argued he had the right under the deed for his place that had been given to his predecessor in title, Miltie Quackenbush. That deed slapped a number of restrictions on the Johnson land, which included language that held no water rights in the lake were granted “except that the grantee named in this particular instrument and his or her family and the guests of his or her family are hereby permitted to use and enjoy the waters of Tillson Lake for fishing, boating and bathing.” Johnson took this language and ran with it (or swam with it).

private160307Unfortunately, the Court said Johnson was all wet. Johnson said the deed restrictions and covenants “ran with the land,” which means that they applied not just to Milton Quackenbush, but to everyone who ever bought the land after him. The Court disagreed. It said that a restriction or covenant was true where the deed language was unequivocal in doing so. Johnson’s argument sank because the fishing, bathing and boating exception — only one clause in a long list of restrictions and covenants — was clearly limited to the grantee “named in this particular instrument” — and that grantee was Miltie Quackenbush, not Bill Johnson.

State v. Johnson, 846 N.Y.S.2d 671, 45 A.D.3d 1016 (N.Y.A.D. 3 2007). The Awosting Reserve was founded by John Bradley in the late 1950s as a nonprofit organization for the purpose of preserving the natural wilderness of the Shawangunk Mountains. In 1994, Ridge Lake Partners, of which Bradley was a member, bought property that later became Tillson Lake. Ridge Lake got permission from the Department of Environmental Conservation to repair a dam on its land and flood a portion of the property that had formerly been a lake. It did so, clearing, refilling, and safeguarding the newly formed Tillson Lake, including installing a metal fence around the lake and a posting of “no trespassing” and “private property” signs every hundred feet.

pool160307The Awosting Reserve bought the lake and adjoining lands in 2002, including Lake Avenue, the only access road to the lake. By a 1994 deed, Bill Johnson obtained title to a parcel of land separated from the lake by a strip of land about 10 feet wide and 60 feet long. Johnson’s deed incorporated by restrictions and covenants contained in the deed from prior grantors Hassie Tillson and Carolyn Tillson to prior grantee J. Milton Quackenbush and Helen Quackenbush, stating “the above described premises are sold and conveyed and accepted upon and under the following restrictions and covenants on the part of the parties of the second part [Quackenbush] their heirs and assigns forever.” The sixth enumerated restriction said that “[n]o water rights in and to Tillson Lake or the inlet thereto or the outlet therefrom is granted except that the grantee named in this particular instrument and his or her family and the guests of his or her family are hereby permitted to use and enjoy the waters of Tillson Lake for fishing, boating and bathing.”

The language of the grant further permitted the grantee “to use and enjoy the waters of Tillson Lake … subject to the rules, by-laws and regulations of the Tillson Lake Property Owners Association, which … may be changed, altered or amended at any time.” The final portion of the Tillson to Quackenbush deed stated that “the above restrictions, agreements and covenants shall run with the land.” Johnson said that since the time of his purchase, he has consistently used, mowed and cleared such strip in order to access Tillson Lake for his boating and bathing activities.

Beginning in 1998, Bradley complained that he regularly saw Johnson trespass on Awosting’s land, cutting timber, mowing the grass and using the lake even after being told repeatedly that he was to leave. Since 1998, the lock on the gate nearest to Johnson’s property was frequently broken and replaced by a lock similar in appearance. In 2002, Bradley told Johnson to remove a dock he had built from Tillson Lake. Two years later, Johnson stacked firewood, parked his vehicle, planted grass seed and erected a wooden fence across a portion of Cherry Street, a private road owned by the Awosting Reserve.

In 2004, the Awosting sent Johnson a letter telling him to get his personal property out of Tillson Lake. When none of these entreaties was successful, Awosting sued Johnson for trespass, seeking a permanent injunction barring him from entering the property or using the lake. Johnson counterclaimed, asserting, among other things, easements by prescription and adverse possession. The trial court granted judgment to Awosting.

Johnson appealed.

posted160307Held:  Johnson had trespassed, and an injunction issued barring him from further trespass. The Court rejected Johnson’s claim of an easement, holding that to create an easement by express grant there must be a writing containing plain and direct language evincing the grantor’s intent to create a right in the nature of an easement rather than a revocable license. The writing must unequivocally establish that the grantor’s intent was “to give for all time to come a use of the servient estate to the dominant estate.” If there is an ambiguity with regard to the permanency of the restriction placed on the servient estate, it is to be treated as a license or an easement in gross which is revocable at will by the grantor.

Here, although Johnson said that the last portion of the Tillson to Quackenbush deed — which said that “the above restrictions, agreements and covenants shall run with the land” — created an easement entitling him to the use of Tillson Lake, the Court held that the license allowing the specific grantee to use Tillson Lake for boating, bathing and fishing was merely a temporary exception to the enjoining restriction which was intended to run with the land.

Extensive record evidence established Johnson’s trespass both on the Cherry Street property, as well as Tillson Lake. Finding these acts to establish plaintiff’s prima facie burden of a trespass, the Court said, and it was up to Johnson to show that he had either a lawful right to enter these properties or had the owner’s permission. He did not do so.

– Tom Root

TNLBGray

Case of the Day – Wednesday, December 12, 2018

HIGHWAYS, BYWAYS AND WATERWAYS

By now, we all know that the modern arboriculture negligence rule places a duty on urban landowners to use reasonable care to inspect trees that could otherwise injure the public if they fell onto public highways, sidewalks and the such.

Today’s case has a twist, however, in that the owner’s tree fell onto a boat on the Cape Fear River, not a highway at all. Or was it?

This is where the courts, whether they say so or not, try to honor the intent of the rule. Here, the boaters were waiting to use the landowner’s public boat ramp, which the landowner had installed to benefit its bait shop, located right next to the ramp. The court did not expressly say so, but it clearly believed that the duty owed to an “invitee” – someone whose presence was desired for the benefit of the owner – was higher than it might be to a casual passer-by, even if North Carolina law said all comers – invitees, licensees and trespassers – were entitled to the same protection.

The other interesting aspect of the decision was the blurring of the old rural-urban distinction. Sure, the Court said, the land was undeveloped and out in the middle of nowhere. But it was developed, at least for tree inspection purposes, around the boat ramp, and that was good enough.

Wallen v. Riverside Sports Ctr., 173 N.C. App. 408, 618 S.E.2d 858 (Ct.App. N.C., Sept. 2, 2004). Since 1977, brothers John and Sol Rose had operated Riverside Sports Center. Riverside leases 25 acres of undeveloped land fronting the Cape Fear River off of Person Street in Fayetteville, North Carolina. On a portion of the leased property, Riverside operates a small bait and tackle shop and a boat repair business. Riverside held a permit from the Army Corps of Engineers to build a boat ramp by the repair shop.

As part of the construction of the boat ramp, Riverside installed wooden “pylons” in the river. These pylons, also called “fender piles,” were placed both upstream and downstream from the boat ramp to prevent logs floating downstream from harming the boat dock or ramp. Customers often tied their boats to the pylons while waiting to use the ramp.

In late August 2001, Tim met Rick George and his son at Riverside to go fishing. At about 4:00 p.m., George paid the access fee and launched his pontoon boat using Riverside’s ramp. After the party had fished for a while, the wind picked up and dark clouds rolled in. They decided to get off of the river until the storm passed. By the time Tim and Rick got back to the Riverside boating facility, it was raining and there were four boats ahead of them waiting to use the ramp to get off the river. Rick tied his boat to one of the downstream pylons. Tim and Rick began putting a tarp over the boat to keep it dry. Rick said he heard a loud noise, like an artillery round, and felt something hit the boat. When he turned, he saw Tim on his back, unconscious.

A box elder tree had fallen and struck Tim, rendering him a paraplegic.

Tim sued Riverside, alleging he was injured by their negligence. He asserted that Riverside failed to exercise reasonable care to keep the premises in reasonably safe condition, and more specifically, that they failed to properly inspect their property and remove dead trees around the pylons. As a result of their negligence, Tim said, he was injured. Riverside filed for summary judgment, contending Tim (a) failed to show Riverside owed any duty to him; (b) failed to show defendants were negligent; and (c) failed to show that his injury was reasonably foreseeable to Riverside. The trial court granted Riverside’s motion for summary judgment.

Tim appealed.

Held: Tim had raised a genuine issue of fact about Riverside’s duty to him and whether it was negligent, and the case must proceed to trial.

The Court of Appeals began its analysis skeptically, noting that summary judgment is seldom appropriate in a negligence action. In order to establish a prima facie case of negligence against a defendant like Riverside, a plaintiff like Tim must show (1) the defendant owed the plaintiff a duty of care; (2) the defendant’s conduct breached that duty; (3) the breach was the actual and proximate cause of the plaintiff’s injury; and (4) plaintiff suffered damages as a result of the injury.”

In North Carolina, the Court observed, the law had evolved to hold that a landowner has a duty to exercise reasonable care regarding natural conditions on his land which lies adjacent to a public highway in order to prevent harm to travelers using the highway. A landowner is subject to liability only if he had actual or constructive notice of a dangerous natural condition.

To impose liability upon property owners, plaintiffs must show not only that the tree constituted a dangerous condition to users of the adjacent public road, but that the landowners had actual or constructive notice of the dangerous condition.

The Court ruled that Riverside “had a duty to exercise reasonable care with respect to natural conditions on their land, which was adjacent to a public highway.” However, Riverside would be shown to be negligent only if it had actual or constructive notice of a dangerous natural condition existing upon its property.

At the time Tim was injured, he was on the Cape Fear River, a navigable waterway. Under North Carolina law, the river is a “public highway,” since navigable waters constitute a public highway.

The record contained no evidence that Riverside or its principals had actual notice of the decayed condition of the box elder tree. Thus, the Court looked to evidence of constructive notice of the tree’s condition sufficient to withstand Riverside’s motion for summary judgment. Each party offered affidavits from expert arborists expressing opinions about the condition of the box elder tree, and those affidavits directly contradicted each other. The evidence, taken in the light most favorable to Tim (the non-movant for summary judgment) showed that Riverside Sports Center has been in business since 1977, the principals knew that customers routinely tied their boats to the downstream pylons to prevent the boats from drifting downstream while they waited to use the boat ramp, that there were trees along the riverbank, the limbs of which hung over the river in the area of the downstream pylons, and that Riverside had had employees previously trimmed the trees on both sides of the ramp.

Tim’s expert said the trunk of the box elder that had fallen had snapped off 13 feet above the ground about two years earlier, and a portion of the upper tree trunk had broken off 6 to 10 years before that, causing the tree bark to be stripped, and created a V-shaped wound on the tree, which accelerated decay. The trunk was leaning at a “very pronounced angle, from the top of the bank” out over the river in the direction of the pylon where Rick had tied his boat. The expert said in his affidavit that the tree was about 40′-60′ feet in length and was definitely capable of striking Rick’s boat. The expert also said that he believed that the box elder “had been extensively decayed for many years prior to its breaking, that it exhibited a number of conspicuous dead branches and external trunk decay, and that these obvious symptoms of decline and hazard-potential (dead branches and trunk decay), should have been observed with considerable concern by the owners of the property (particularly because of the strong lean of the tree towards the water) …”

The Court held that this opinion presented a genuine issue of material fact on the issue of constructive notice.

Finally, the Court ruled, in order for a defendant to be liable for a negligence claim, the injury must be reasonably foreseeable. A plaintiff must show that a person of ordinary prudence would have known that Tim’s injury or some similar injurious result was reasonably foreseeable. The Court wrote that, “Given the facts as recited above in our discussion of duty, constructive notice, and negligence, we hold that the evidence taken in the light most favorable to plaintiff demonstrates there existed a genuine issue of material fact on the issue of foreseeability.”

– Tom Root
TNLBGray140407

Case of the Day – Tuesday, December 11, 2018

HALFWAY BETWEEN MASSACHUSETTS AND HAWAII

In the world of tree encroachment, regular readers of this site know that there is a continuum of liability extending from the Berkshire Mountains of Massachusetts all the way to Mauna Kea on the Big Island of Hawaii.

We all know about the Massachusetts Rule, which holds that a landowner has no liability whatsoever for encroachments of the branches or roots of his or her tree over, on or under neighboring land. Your neighbor doesn’t like it? That’s why Poulan sells chainsaws.

On the other end is the Hawaii Rule, where with the privilege of tree ownership comes great responsibility. If you own a tree that causes sensible harm to your neighbor’s property and you know or should know that, you are liable for harm that it causes.

In today’s case, there is no doubt that Ken and Jeannine Carvalho suffered harm from roots belonging to Larry and Judy Wolfe’s trees. When the foundation damage was discovered, the Carvalhos reported to the Wolfes, who cut the trees down.

But that was not good enough. I suspect the Carvalhos hoped to nick the Wolfes’ homeowners’ insurance. It seems a shame that their lawyer’s pleading skills were not equal to the aggressiveness of the Carvalhos’ avarice. Or maybe they demanded that counsel bring the suit, and he or she was honest in not claiming the Wolfes knew or intended the roots grow into the Carvalho’s foundation when neither evidence no common sense suggested they did.

Still, the case gave Oregon to stake out a position on the continuum that certainly was not the Massachusetts Rule but wasn’t the Hawaii Rule, either. Instead, the Oregon Rule – such as it is – comes out something like halfway between.

Carvalho v. Wolfe, 207 Ore. App. 175, 140 P.3d 1161 (Ct.App. Oregon 2006). The former owners of Larry and Judy Wolfe’s property planted trees along the property line. Once the property became theirs, the Wolfes became responsible for the ongoing care, maintenance, and control of those trees.

In 2004, Ken and Jeannine Carvalho discovered that trees’ roots had grown to all the way to the foundation of their home, causing structural damage that then amounted to over $61,000 and that was increasing. After the Carvalhos discovered the damage, the Wolfes cut down the trees but did nothing to be sure then roots had stopped growing.

The Carvalhos sued the Wolfes for trespass and nuisance. In their trespass claim, Ken and Jeannine alleged that they had legal possession of their property and that they did not authorize the entry “of any trees, roots, or vegetation of any kind onto their land from defendants’ land.” In their nuisance claim, the Carvalhos said the roots “have severely and unreasonably invaded plaintiffs’ land” and that the invasion had interfered with their “ability to use and enjoy their land” as a result of the damage to their house. The Carvalhos did not allege in either claim that he Wolfes acted with any specific level of culpability or that they were engaged in an ultrahazardous activity.

The Wolfes moved to dismiss both claims for failure to state a claim for relief. They asserted that the Carvalhos’ claim was fatally defective in several respects, including by failing to allege the Wolfes had been negligent or had engaged in an ultrahazardous activity by allowing the roots to encroach on the Carvalho property. The Wolfes also argued that the encroaching tree roots did not constitute a nuisance, because a landowner is limited by law to using self-help remedies for such an encroachment, not seek relief in the courts. The trial court agreed, granted the Wolfe’s motion and entered a judgment dismissing the action.

The Carvalhos appealed denial of the trespass and nuisance claims.

Held: The Carvalho claims were properly dismissed.

Each of those the Carvalhos’ theories of liability – trespass and nuisance – involved a different kind of interference with their interest in their land. An actionable invasion of a possessor’s interest in the exclusive possession of land is a trespass; an actionable invasion of a possessor’s interest in the use and enjoyment of his land is a nuisance. Courts in some places have concluded that tree roots or branches that intrude into or over neighboring lands may be either a trespass or a nuisance; others have rejected liability under either theory.

The Court of Appeals reviewed the two cases of the extreme ends of the tree encroachment continuum. In Michalson v. Nutting, the Massachusetts court held that there was no distinction between an intrusion by overhanging branches and one by invading roots. In either case, an owner has the right to grow trees on its land, which naturally leads to branches and roots crossing the boundary line. When that happens, the owner of the other land is limited to cutting the branches and roots where they intrude, a holding now known as the Massachusetts Rule.

On the other end was of the continuum was Whitesell v. Houlton, in which a banyan tree’s branches overhung the plaintiffs’ property, damaged their garage and threatened additional damage until the plaintiffs had them cut back. The Hawaii court held that the Massachusetts Rule was unfair. “Because the owner of the tree’s trunk is the owner of the tree, we think he bears some responsibility for the rest of the tree,” the Court ruled. Thus, Hawaii provides that, if the owner of a tree knows or should know that it constitutes a danger, the owner is liable for harm that it causes on or off the property. In that case, the damaged or imminently endangered neighbor may require the tree’s owner to pay for the damages and to cut back the endangering branches or roots.

Splitting the difference was Abbinett v. Fox, the New Mexico case in which roots from the defendants’ cottonwood tree damaged structures on the plaintiffs’ property. The New Mexico Court of Appeals discussed Michalson and Whitesell, ultimately holding that, although landowners may use their property in ways that maximize their own enjoyment, they may not unreasonably interfere with the rights of adjoining landowners or create a private nuisance.

Here, the Court noted that intrusions were different in each of the cases that we have discussed. In Michalson, the defendants simply planted the tree and refused to remove the roots; there is no suggestion that they intentionally or negligently caused harm to the plaintiffs. In Whitesell, however, the defendants knew or should have known that their tree would cause damage to the plaintiffs’ property, which in Oregon would support a finding that they intended to cause that harm.

Unlike the Massachusetts and Hawaii Rules, the Court ruled that “the issue of culpability is decisive in this case. Thus, we do not need to decide whether we would agree with the Hawaii and New Mexico courts if defendants had acted with some level of culpability or if they had been engaged in an ultrahazardous activity.”

At common law, an unauthorized entry onto the soil of another was in itself a trespass. Oregon law appears to have applied that rule of strict liability, one court holding that because “we hold that the intrusion in his case constituted a trespass it is immaterial whether the defendant’s conduct was careless, wanton and willful or entirely free from fault.” But an Oregon Supreme Court holding applied the rule that “there is liability for an unintentional intrusion only when it arises out of negligence or an ultrahazardous activity.” After these decisions, Oregon law applying to both nuisance and trespass claims required that a plaintiff allege that the “defendant’s actions were intentional, negligent, reckless or an abnormally dangerous activity.”

Here, the Carvalhos did not allege that the Wolfes acted with any level of fault or that they were engaged in an ultrahazardous activity. Rather, they simply sought to hold Larry and Judy strictly liable for the damage that the trees caused. However, the Court ruled, “neither trespass nor nuisance provides for strict liability except for an ultrahazardous activity. While the Wolfes might be liable for intentional trespass or nuisance if they knew or should have known that their caring for the trees would result in the tree roots damaging the Carvalhos’ house, the Carvalhos did not allege that the Wolfes had or should have had that knowledge. While they do allege that the Wolfes have not taken any action to ensure that the trees have been killed and the growth of their roots permanently stopped, Ken and Jeannine seemed to be careful to not allege either that the growth is continuing or that defendants knew or should have known that it is continuing.

By failing to allege that the Wolfes acted or failed to act with any form of culpability, and to allege that they engaged in conduct that could make them strictly liable for trespass or nuisance, the Carvalhos failed to state a claim for relief under either nuisance or trespass.

– Tom Root

TNLBGray140407

Case of the Day – Monday, December 10, 2018

MAKIN’ BACON

piggies150220Running a swine farm is a smelly but serious business. When a tree fell onto a power line on his neighbor’s land and interrupted his electricity, farmer Timmerman was glad that Northern States Power came out to his neighbor’s place and promptly trimmed the tree and fixed the lines.

But his relief turned to dismay when 10 minutes after the trimmer left, the remainder of the same tree collapsed onto the power line. It turned out the tree that had caused the first outage was completely rotten and, even after being trimmed, it remained a hazard.

The first power failure was an inconvenience. The second power failure was a catastrophe: it cut off the ventilation to Timmerman’s hog barn, and 160 pigs met an untimely demise.

Timmerman sued both his neighbor for not having inspected the tree — which had been rotten for at least five years — and the power company for being grossly negligent in trimming the tree. He claimed gross negligence because Northern States Power’s tariffs excluded it from liability except for gross negligence. The trial court turned him down.

The Court of Appeals agreed. It noted that gross negligence is a pretty serious derelection of duty, and Timmerman’s saying it didn’t necessarily make it so. The neighbors didn’t have a duty to Timmerman, it held, because he wasn’t an invitee (or even a trespasser) onto its land. It noted that NSP had trimmed the tree to the national code, and meeting a national standard was performance enough.

It’s fairly well established that an owner has a duty to inspect trees (with a degree of care that varies according whether the land is urban or rural). If Timmerman had been driving by and the tree had fallen onto his truck, there might have been liability. Why not when the damage isn’t an F-150, but instead 160 hogs’ worth of bacon?

Hard to believe the trees can interfere with the wires.

It’s hard to believe the trees can interfere with wires …

Timmerman v. Manguson, Not Reported in N.W.2d, 1996 WL 266404 (Minn.App. 1996). Timmerman owned and operated a hog farm, to which Northern States Power provides electrical power. The power lines run north across the Mangusons’ farmland and continue onto Timmerman’s land. One afternoon, limbs on a willow tree located on the Mangusons’ land broke, striking the power line and causing a power outage on Timmerman’s farm.

NSP investigated the site, found the burned tree limb that had struck the power line, and trimmed some branches back. The tree trimmer investigated the trunk of the tree from his position on the power pole, but he did not see any signs of cracking or damage to the tree trunk. Ten minutes after he left the area, the power went out a second time. The trimmer returned to the site and trimmed back the tree sufficiently so that, if it continued to topple over, the tree would not hit the power lines again. The next morning, he called another NSP representative to report the outages and suggest that they send in the tree trimming crew to clean up the area.

The second power outage left about 160 pigs in Timmerman’s barn without ventilation, and despite Timmerman’s efforts, nearly all of the pigs in two of the five rooms in the barn died. The tree turned out to be rotten and, according to Timmerman’s expert witness, “undergrown … or there was a lot of trees in that area.” The expert determined that the tree had been rotting for at least the past five years and posed a significant hazard to the power lines.

Timmerman sued NSP for gross negligence and the Mangusons for negligent maintenance and inspection. Both NSP and the Mangusons moved for summary judgment. The district court granted both motions, finding, as a matter of law, that NSP had not been grossly negligent and that the Mangusons owed Timmerman no legal duty.

Timmerman appealed.

sweating150220Held: The decision in favor of the Mangusons and NSP was upheld. The Court held that gross negligence was substantially and appreciably higher in magnitude than ordinary negligence. It was materially more want of care than constitutes simple inadvertence, an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.

Timmerman presented evidence that the tree and power lines at issue could not be viewed properly from the road, but required an on-site, on-foot inspection. He also presented evidence that NSP failed to trim the tree near the lines and allowed them to become overgrown with vines and vegetation.- But the Court said that this evidence did not rise to the level of gross negligence. NSP did not demonstrate an “indifference to present legal duty” nor did it act without “scant care” or “slight diligence.”

NSP had most recently trimmed this tree within NSP’s policy of trimming every four years. Since 1990, NSP had routinely checked the power lines at issue here in accord with the National Electric Safety Code (NESC). NSP representatives have viewed the power lines and trees from the road when driving through the area. NSP also trimmed portions of the tree after the first power outage to restore service. Although, the Court found, the evidence suggests that NSP could have more diligently exercised its duties, that evidence only raises the question of ordinary negligence, for which NSP is not liable under its own tariffs.

As for the Mangusons, the Court held that they had no legal duty to protect Timmerman because they did not have a “special relationship” in which Timmerman had entrusted his safety to the Mangusons. The parties’ relationship as neighboring farmers does not fall into any of the limited number of “special relationships” that the Minnesota supreme court has recognized. Although Timmerman contended the Mangusons had a duty to inspect and repair the tree or else warn him of the dangers on their land, the Court held that the theories of duty and liability don’t apply here because Timmerman was not an “invitee” or “licensee” on the Mangusons’ property. Furthermore, the Court said, even if the Mangusons knew the old tree was near the power lines, knowledge of a dangerous condition, by itself, without a duty to protect, was not sufficient to establish liability for negligence.

Given that no legal duty existed, Timmerman’s negligence claim against the Mangusons could not stand.

– Tom Root

TNLBGray140407

Case of the Day – Friday, December 7, 2018

THAT DOES NOT MAKE SENSE

The news report noted in yesterday’s “And Now the News” feed nagged at me all day. You recall, the report that an Elkhart, Indiana, resident got up one morning to discover that the City had cut down a beautiful 33-foot spruce in his tree lawn – that strip of grass between the sidewalk and street – for use as the municipal Christmas tree.

That does not make sense. Unless Indiana is different from most of the other states in the nation, a property owner whose property lies along a highway (known as an “abutting landowner”) is deemed to own the land to the middle of the highway, with the highway and portions beyond it merely reserved to the City or State (or whatever political subdivision it might be) as a “right-of-way.”

The thing about a right-of-way, which is simply one flavor of an easement, is this: the political entity (we’ll just say “City” here, because that’s the bad guy in the news report) is entitled to use the right-of-way for an intended purpose, a highway. If there comes a time when it ceases being a highway, the right-of-way  is extinguished, and the landowner is free to use the property all the way up to the centerline of the old road as he or she wishes.

And that’s what bothered me so. No one would question the City’s right to remove a tree that somehow created a hazard to the public using the highway. That is simply a reasonable exercise of the City’s privileges under the easement. But here, the City decided to save a few bucks by cutting down a free Christmas tree, not to facilitate use of the highway but instead for the purpose of decorating another part of town.

The article suggested that maybe the whole episode resulted because a prior owner has asked that the tree be removed. Elkhart Building and Grounds Department head Mike Lightner said, “We thought we were doing a good thing by getting a tree removed from the tree lawn, for a resident who wanted it removed, and being able to repurpose it as a Christmas tree for other people to enjoy it instead of hauling it away, while saving the city some money.”

Maybe so, but the City should not be imperiously telling people that it owns the trees in the tree lawn. It can do what it likes with the tree lawn, as long as the act is reasonably related to the purpose of its right-of-way. But it does not “own” the trees.

While I was researching the issue, I stumbled across the obverse situation, where a homeowner who was hurt by a falling tree in the tree lawn blamed the City for not reasonably using its right-of-way, more particularly, not properly discharging its duty to inspect.

Czaja v. Butler, 604 N.E.2d 9 (Ct.App. 3rd Dist. Indiana, 1992). Karen and Joseph Czaja lived along U.S. Highway 6 in Butler, Indiana. There were three trees located on the State of Indiana right-of-way in the front yard of their home. On January 25, 1990 two severe storms blew through the city, causing severe damage in the area and blowing over several trees. The first storm dropped a 12” diameter limb from one of the trees in Czajas’ front yard onto U.S. 6. The City removed it after the first storm passed through.

But later in the day, a second storm hit. Karen was returning from picking her children up from school during the storm. As she was waiting to turn into her driveway from the street, the tree closest to her driveway fell on top of her car, injuring her.

The storms that day caused extensive damage. Roughly eight whole trees were uprooted or broken off, and many others lost large limbs or parts of their trunks.

The Czajas sued the City, alleging city employees were negligent in failing to inspect the tree in front of the Czaja home and in failing to remove the tree which the city knew, or should have known, was dangerous. The City moved for summary judgment, which the trial court granted.

The Czajas appealed.

Held: The City was not negligent.

The City’s evidence described the storms’ intensity that day, including the facts that eight trees were blown over, four other cars were struck by fallen trees and an uprooted tree fell onto the roof of the Butler Quick-Mart. In addition, it filed deposition testimony of the City superintendent that he inspected the Czajas’ tree the following day and found that while the core was rotten to within four inches of the outside diameter of the tree, there were no outwardly visible signs that any part of the tree was dead or rotten. The evidence showed that before the tree fell, the superintendent had no actual notice that the tree was rotten. The tree had green foliage two years before when Joe Czaja spoke to him about removing it so that Czajas could widen their driveway.

In their depositions, the Czajas both admitted that before the tree fell, they had no reason to believe that the tree was likely to fall. Nevertheless, at the trial court, they pressed the argument that the City had an absolute affirmative duty to maintain an inspection procedure concerning all the trees located in its right-of-way along the highway.

The appellate court rejected the Czajas’ position, holding that while the City has a duty to keep its streets reasonably safe, the duty is only triggered when it has actual or constructive knowledge of the dangerous or defective condition. Here the City’s established it neither had knowledge that the tree was defective, nor did it have any reason to know the dangerous condition of the fallen tree.

All the Czajas were able to show was that during the years they had lived there, dead branches occasionally fell from the tree, the sidewalk had buckled from tree roots, and some erosion showed next to the curb near one of the trees.

The Court held that the Czajas’ evidence was insufficient to raise a genuine issue of fact requiring trial. “We take it to be common knowledge that mature trees, as these were described to be, have limbs and branches that die and occasionally fall from the tree,” the Court ruled. “It is also a common experience that the root systems of such trees buckle and crack cement sidewalks laid too close to the tree. Indeed, the city superintendent stated in his deposition that he attached no particular significance to these conditions. The Czajas have not pointed to any evidence supporting the notion that the city should have been forewarned in this particular instance that the tree was in danger of falling. It would be nothing but sheer speculation to draw that conclusion from the evidence relied upon. It follows that the summary judgment was properly granted.”

– Tom Root

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Case of the Day – Thursday, December 6, 2018

BLAMING THE VICTIM

Just when I think I have seen all of the chutzpah that it is humanly possible to muster, someone impresses me with an Olympian performance.

Take Henry and Angela D’Andrea, for example. When the roots of their maple tree, after 14 years of impressive growth, began to eat a lightweight concrete-block fence – made with Waylite Superock® blocks, something new to me but apparently a material of note a generation or two ago – Hank and Angie did not offer to fix their neighbor’s wall. They did not even keep their mouths shut, which you might expect the tree’s owners to do under the circumstances.

Not these brawlers. The D’Andreas sued their neighbors, the Gugliettas, demanding that they remove the cracked and decayed fence because… well, because the D’Andreas’ tree had caused the fence to be cracked and decayed. It was a sort-of “because I made the mess, you need to clean it up” argument.

Cosmic justice has a way of getting done. The neighbors did the only thing they could do (lawfully, that is), and counterclaimed against the D’Andreas. The trial court agreed that the fact that the Guglietta fence was unsightly was not enough to make it a nuisance. (Good thing, too… imagine the precedent that would set for all of the unsightly people in this world if their unsightliness made them a per se nuisance). The court did, however, award damages to the defendant Gugliettas for the damage that the D’Andrea maple roots had done to the fence.

The appellate court strained to justify the award, but justify it it did. The Superior Court held that while the Massachusetts Rule addressed both branches and roots in dictating that self-help was the only remedy available to an afflicted neighbor, it could not possibly mean it. Really, the Court ruled, roots were quite different from branches. For instance, roots grow differently than branches, vertically, horizontally, every which way. Plus, the roots are underground: you can see branches and can trim them when needed, the Court opined. But you never see a root until it has caused damage.

Does any of this make sense? That hardly matters… cosmic justice requires that sometimes logic and precedent yield to its demands.

D’Andrea v. Guglietta, 208 N.J. Super. 31, 504 A.2d 1196 (Superior Ct. N.J. 1986). Henry and Angela D’Andrea’s maple tree had been planted about three feet from the boundary about 14 years before. As healthy trees are wont to do, it grew, extending both branches above ground and roots below, until it cracked a Waylite block boundary fence owned by John and Pat Guglietta. The D’Andreas sued the Gugliettas on the grounds that the fence was cracked  and falling down – an unsightly mess – and a nuisance, asking that the trial court order that it be removed.

The Gugliettas counterclaimed, arguing that the fence was fine, but the D’Andreas’ maple tree was the true nuisance.

The trial court dismissed the D’Andreas’ action because their only proof was that the boundary fence was aesthetically displeasing to them. Mere homeliness, the Court ruled, is not enough to support a finding of a nuisance, As for the Gugliettas’ claim, however, the trial court held that the D’Andreas were liable for the unforeseen damage to their neighbors’ wall arising out of root growth from the maple tree.

The maple tree was planted around 1970, about the same time the Gugliettas installed a chain link boundary fence. Three years later, they removed the chain link fence, and replaced it with their Waylite block fence; the maple tree roots were nowhere near the wall when the Gugliettas dug down to put in foundation footings.

Eleven years later, things had changed. The Gugliettas noticed a crack in the wall. Or several cracks. They dug along the wall’s foundation and discovered “gigantic” maple roots up to 30 feet long coming through the wall. A masonry contractor estimated repair would cost about $ 3,000.

The D’Andreas never argued the obvious defense, that the Gugliettas could have avoided the injury to their masonry wall by self-help, that is, by digging down, severing and removing the maple tree roots on their side of the common boundary. The trial court awarded judgment for the Gugliettas on their counterclaim, and gave them damages but no specific relief (like an order that the D’Andreas do something about their tree.

The D’Andreas appealed.

Held: The maple tree was a nuisance, and had to go.

Under common law principles, the Gugliettas were entitled to cut off invading tree roots by exercising self-help, under the Massachusetts Rule. In fact, the trial court held that overhanging tree branches may constitute a nuisance for which an action for damages lies, and that a landowner may exercise the common law right of self-help to lop off overhanging branches to the property line but no further. “As a matter of logic,” the trial court ruled, “no distinction can be made between roots and branches.” It nevertheless awarded damages to the Gugliettas.

The Superior Court, needing to bolster the damage award it obviously agreed with, disagreed. The approach that roots and branches are the same “overlooks real distinctions between the two,” the Court held. “Unlike tree branches, tree roots are largely underground and evident only upon digging down; their extent and girth may be uncertain and unpredictable; they are not commonly pruned or otherwise tended; their severance may endanger the tree’s stability in high winds and rainstorms. A tree root system may extend vertically downward or may spread laterally close to the surface. The relatively uncomplicated law governing invasion of adjoining  property by tree branches may not be fairly applicable under all circumstances to tree roots.”

There is general agreement, the Superior Court said, that tree roots extending under a neighbor’s land are owned by the owner of the land on which the tree trunk stands; that the owner of a tree has no right to its sustenance from adjoining land; and that a neighbor may resort to self-help to remove invading tree roots. The Court acknowledged that the Massachusetts Rule is that damage caused by tree roots spreading from an adjoining property is damnum absque injuria and that the only redress is self-help.

Other reported decisions however, have recognized a cause of action for damages for injury caused by tree roots from a tree or trees planted by the owner of adjoining property or his predecessor. As well, they have barred recovery of damages for tree root injury by applying the defense of avoidable consequences, In fact, the Court observed, the Hasapopoulos court in Missouri viewed as decisive the evidence that the tree involved was “healthy and undecayed” and that plaintiff had failed to resort to self-help.

The Superior Court noted that the Restatement of Torts draws a distinction between nuisances resulting from artificial and natural conditions of land. The former are actionable, while the latter are not.

Here, the Superior Court ruled, the trial court was right to hold that injury to an adjoining property caused by the roots of a planted tree was actionable as a nuisance, irrespective of the absence of proof of prior notice of the nuisance to D’Andreas. Damages were recoverable, even in the absence of any proof that the damages were avoidable or that defendants had “come to the nuisance.”

When the Gugliettas dug down for foundation footings for their masonry wall in 1973, roots from the D’Andreas’ maple tree planted three years before were nowhere about. Nothing in the record, the Superior Court said, suggests that the maple tree’s roots heaved up or were in any way evident in the vicinity of the masonry wall between 1973 and 1984, when the wall cracked, or that the Gugliettas should have foreseen the direction and extent of the tree roots’ growth.

– Tom Root

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Case of the Day – Wednesday, December 5, 2018

STAYIN’ ALIVE

Yesterday, pro se plaintiff Caryn Rickel survived the arguments advanced by the slick lawyers representing her bamboo-lovin’ neighbors, the Komaromis. The trial court held that her complaint about the Komaromis’ invading bamboo was a claim on which she could get relief.

But subsequently, the trial court bought the Komaromis’ argument that because Caryn admitted that they planted the bamboo in 1997 and Caryn sustained damage in 2005, she had at most until 2008 to sue for trespass and nuisance.

The reason, of course, are the statutes setting limitations, that is, deadlines by which certain legal complaints have to be brought. The Komaromis’ lawyer probably shouted “a-ha!” when he found that Caryn had admitted she was damaged five years before she sued. Certainly, the trial court shouted it when it agreed with the Komaromis and dismissed Caryn’s lawsuit as untimely.

But for a novice, Caryn was pretty sharp. She took an appeal, arguing that every day the kudzu-like bamboo grew was a whole new affront to her property, and thus the trespass was continuing. The appeals court agreed, although not without a lot of confusing differentiation between continuing trespasses and continuing nuisances, on the one hand, and permanent trespasses and permanent nuisances on the other.

I’m not sure I see the distinction myself. It may be that the confusing definitions won’t help, leaving it like obscenity: we can’t describe it, but we know it when we see it.

For now, Caryn survives a second near-dismissal experience, and she stays alive to fight the bamboo fight.

Rickel v. Komaromi, 144 Conn. App. 775, 73 A.3d 851 (Ct.App. Conn. 2013). After plaintiff Caryn Rickel, won the right to go forward on her claim that the Komaromis’ bamboo had invaded her property, the Komaromis won summary judgment against her in the trial court. Caryn claimed nuisance and trespass. The trial court ruled that because the bamboo began its inexorable crawl across Caryn’s backyard in 2005, her suit filed in 2010 was well beyond the statute of limitations for such actions.

Caryn appealed, arguing that the repeated bamboo encroachment from the Komaromis’ property to her property constituted a continuing nuisance and a continuing trespass, and thus the statute of limitations did not start running.

The Komaromis lived next to Caryn Rickel. In July 1997, the Komaromis planted phyllostachys aureosulcata, a type of invasive running bamboo, along their corner property line, but they did not put up any barrier to contain it. The bamboo encroached upon Caryn’s property. In 2005, during the installation of a patio at the corner of Caryn’s property, a landscaper used a backhoe and dump truck in order to eradicate the bamboo, and then installed steel sheathing along this corner property line in order to protect the patio. Despite the steel sheathing, the bamboo had reentered the area by July 2010.

Caryn sued the Komaromis four months later, bring claims of nuisance, trespass and negligence. She alleged in her complaint that the bamboo “further and repeatedly encroached” on her property and continued to do so. The Komaromis raised a statute of limitations defense on all of the claims against them.

The trial court granted the Komaromis’ motion, concluding that the applicable statutes of limitations had provided Caryn with a maximum of three years from “the date of the act or omission complained of” to bring suit. Because there was no dispute that the Komaromis planted the bamboo in 1997 or that Caryn “discovered the actionable harm in 2005…” Because Caryn did not commence her action against until 2010, the court held that each count of the action was time barred as a matter of law.

On appeal, Caryn claimed that the trial court failed to address the factual question of whether a nuisance or trespass is continuing or permanent requires the  denial of a motion for summary judgment made solely on statute of limitations grounds. She claims that this is because, for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass creates a new cause of action, while a permanent nuisance or trespass involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run.

Held: The Komaromis’ bamboo was engaged in a continuing trespass, and thus Caryn’s lawsuit was timely.

Caryn’s complaint alleged that that the Komaromis’ bamboo repeatedly has encroached on her property, resulting in a continuing nuisance and a continuing trespass. For example, in her nuisance count, she alleged the Komaromis “have planted this nonnative invasive bamboo with no containment of any kind. They have continued to cultivate it and freely allow it to aggressively spread to… adjacent properties… This has been continual nuisance to my use and enjoyment of my land.”

Similarly, Caryn complained the Komaromis “have allowed this nonnative invasive bamboo to aggressively spread from their original planting which was directly on my property line to all three of the [neighboring] properties. The infestation is massive… and has continuously been aggressively invading my land.” Caryn’s continuing nuisance and trespass allegations, the Court said, therefore factor into the question of whether the court correctly concluded that the defendants met their summary judgment burden with respect to the plaintiff’s nuisance and trespass claims, as framed by her complaint.

The Court noted that recent cases treat trespass as involving acts that interfere with a plaintiff’s exclusive possession of real property and nuisance cases as involving acts interfering with a plaintiff’s use and enjoyment of real property. The essentials of an action for trespass are (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; (3) done intentionally; and (4) causing direct injury…” Because it is the right of the owner to exclusive possession that is protected by an action for trespass, usually the intrusion of the property must be physical. Thus, the Court said, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another’s land.”

The statute of limitations for trespass actions in Connecticut is General Statutes § 52-577, which provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” The only facts material to the trial court’s decision on a motion for summary judgment must be the date of the wrongful conduct alleged in the complaint and the date the action was filed.

A “private nuisance,” on the other hand, “is a nontrespassory invasion of another’s interest in the private use and enjoyment of land… The law of private nuisance springs from the general principle that it is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his  neighbor… In order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The interference may be either intentional… or the result of the defendant’s negligence.” A permanent nuisance is one which inflicts a permanent injury upon real estate, while a temporary nuisance is one where there is but temporary interference with the use and enjoyment of property. Whether a nuisance is temporary or permanent is ordinarily a question of fact.”

The statute of limitations for a nuisance claim based on alleged negligent conduct is General Statutes § 52-584. No action to recover damages for injury to real property, caused by negligence, or by reckless or wanton misconduct shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of…” An injury occurs when a party suffers some form of actionable harm.

Nuisance and negligence may share the same statute of limitations, depending on the factual basis for the nuisance claim, but otherwise they are completely distinct torts, different in their nature and in their consequences. A claim for nuisance is more than a claim of negligence, and negligent acts do not, in themselves, constitute a nuisance; rather, negligence is merely one type of conduct upon which liability for nuisance may be based. “Nuisance,” the Court said, “is a word often very loosely used; it has been not inaptly described as a catch-all of ill-defined rights. There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance… There is general agreement that it is incapable of any exact or comprehensive definition.”

In applying these principles to the plaintiff’s claims, the Court said, “summary judgment may be granted where the claim is barred by the statute of limitations… as long as there are no material facts concerning the statute of limitations in dispute.” But here, the date of the act or omission and the date when Caryn first sustained or discovered injury depend on whether the alleged nuisance and trespass are continuing or permanent. Caryn argued that this is because, for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass situation creates a new cause of action, whereas a permanent nuisance or trespass situation involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run.

The applicable statute of limitations runs differently for a continuing nuisance or trespass than it does for a permanent nuisance or trespass. For limitations purposes, the Court ruled, a permanent nuisance claim accrues when injury first occurs or is discovered while a temporary nuisance claim accrues anew upon each injury. Therefore, in the case of a continuing trespass, the statute of limitations does not begin to run from the date of the original wrong but rather gives rise to successive causes of action each time there is an interference with a person’s property. If there are multiple acts of trespass, then there are multiple causes of action, and the statute of limitations begins to run anew with each act.

On the other hand, the Court said, if a trespass is characterized as permanent, the statute of limitations begins to run from the time the trespass is created, and the trespass may not be challenged once the limitation period has run.” Whether a nuisance is deemed to be continuing or permanent in nature determines the manner in which the statute of limitations will be applied. If a nuisance is not able to be abated, it is permanent, and a plaintiff is allowed only one cause of action to recover damages for past and future harm. A nuisance is deemed not abatable, even if possible to abate, if it is one whose character is such that, from its nature and under the circumstances of its existence, it will probably continue indefinitely.

A nuisance is not considered permanent if it is one which can and should be abated. In this situation, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie, and the statute of limitation will begin to run at the time of each continuance of the harm.

Similarly with trespass, the typical trespass is complete when it is committed; the cause of action accrues, and the statute of limitations begins to run at that time. However, when the defendant erects a structure or places something on or underneath a plaintiff’s land, the invasion continues if the defendant fails to remove the harmful condition. In such a case, there is a continuing tort so long as the offending object remains and continues to cause the plaintiff harm. Each day a trespass of this type continues, a new cause of action arises.”

Here, Caryn alleged facts to support her claims that the Komaromis’ conduct in planting the bamboo and then failing to control its growth resulted in a continuing nuisance and a continuing trespass. In seeking summary judgment, however, the Komaromis referred only to three dates to establish the untimeliness of Caryn’s claims — the 1997 planting of the bamboo, the 2005 installation of the patio, and the 2010 commencement of the action – ignoring Caryn’s other allegations.

By conducting its summary judgment analysis only on the basis of the 1997, 2005 and 2010 dates, the trial court did not address the allegations of the defendants’ failure to control the underground spread of the bamboo rhizomes and the above ground spread of the bamboo on the plaintiff’s property. This continuing underground and above ground activity on the plaintiff’s property created a genuine issue of material fact about whether the statutes of limitations were a bar to all of Caryn’s claims encompassed in her trespass and nuisance counts.

Whether the alleged nuisance and trespass by the rhizomes and bamboo were continuing or permanent presents a genuine issue of material fact with respect to the plaintiff’s trespass and nuisance counts. The trial court erred in rendering summary judgment without addressing the plaintiff’s continuing nuisance and continuing trespass allegations, because, by doing so, the court overlooked genuine issues of material fact about whether the alleged nuisance and trespass were continuing or permanent, and thus whether the applicable statutes of limitations had run on the plaintiff’s nuisance and trespass claims.

– Tom Root

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