Case of the Day – Tuesday, July 30, 2019



… that confounded sodbuster neighbor just done cut our power line with his plow. In the ensuing fire that swept across the plain, the trees planted in our windbreak went up like Roman candles, and the ranch hands couldn’t stop the conflagration. Sure, the farmer was negligent, but to what extent?

One of the first things new law students learn is the lesson of Hawkins v. McGee, the “case of the hairy hand,” in which we find that the measure of damages is the difference between the value before the breach or the negligence, and the difference after the breach. Nebraska law in this case held that if the trees were used for residential or recreational purposes, the damages are the replacement cost of the trees up to the value of the real estate. But if they were just used for agricultural purposes, the Hawkins v. McGee formulation is fine.

hairyhandHere, replacement of the trees would cost over $270,000, but the reduction in value of the farmland was only $30,000. David Spicer, owner of the ranch, tried to bootstrap himself into qualifying for the “recreational” formulation by arguing that not only did he use the windbreak for the usual agricultural purposes, but he relied on it for recreational purposes as well, including for his kids’ 4-H projects. The 4-H projects argument was especially touching, except that David Spicer’s youngest kid was 25 years old. And we thought the President and the “fake news” media twisted the facts occasionally

The trial court granted summary judgment on the damages question, holding that the replacement cost exceeded the value of the land, and that $30,000 was adequate to compensate for the loss of the trees. The Court of Appeals ruled, however, that whether the trees were recreational in nature or agricultural in nature was a question of fact, and the trial court was wrong to resolve that question without a trial.

The issue of how to value the loss of trees – especially where the value of the tree to the homeowner is due to noneconomic reasons such as beauty, sentimentality or recreational value, arises often, and for good reason. The aphorism in real estate is that value of a home depends on location, location, location. Much could be said of trees as well. The mighty oak that shades the plantation house is worth far more than its identical twin standing a quarter mile into the woods behind the fields. Determining exactly how much more may require juries to consider not so much stumpage prices as the quality of 4-H projects.

Spicer Ranch v. Schilke, 734 N.W.2d 314 (Neb.App., 2007). Schilke farmed leased land next to the Spicer Ranch. While he was plowing one day, he cut a power line leading to some irrigation pumps. A fire resulted, which — before it burned out – destroyed a windbreak on Spicer Ranch consisting of red cedar and juniper trees, and located about five hundred yards from the ranch house. Spicers used the windbreak, which was on a 110-acre tract of land, in the normal fashion of slowing the wind, providing shelter for cattle, for calving, for horses and for general farm use. David Spicer – mindful of how damages were figured in cases such as these – also maintained that he used the trees for recreational purposes including his kids’ cataloging the trees for 4-H projects (except it turned out that his youngest child was 25 years old). Spicer sued for negligence, which was pretty much conceded.

Claiming the windbreak was worth $270,000 was just so much puffery ...

The Court found that Spicer’s claim that the windbreak was worth $270,000 was just puffery …

In an affidavit to the trial court, Spicers’ expert valued the windbreak at $270,000 for replacement of the trees. But the trial court granted summary judgment to Schilke, finding that to value the trees on the 110-acre tract at $270,000 far exceeded the value of the real estate involved. The trees included only made up a small percentage of the tract, the Court found, and that small percentage of land likewise would not be permanently damaged because of the loss of the trees. The trial court awarded Spicer Ranch $30,000 as the highest amount of damages suffered by Spicer Ranch.

The sodbuster was relieved. The rancher was not, and appealed.

Held: Summary judgment was reversed on the damages issue. Spicer Ranch argued the district court erred in using a “before and after” measurement of damages. Instead, it said, to determine compensatory damages for destroying trees and for related damage to the land – where the owner of land intends to use the property for residential or recreational purposes – the owner is not limited to the difference in value of the property before and after the damage or to the stumpage or other commercial value of the timber, but instead may recover the cost of reasonable restoration of the property to its preexisting condition or to a condition as close as reasonably feasible.

The Court of Appeals noted that the trial court’s implicit rationale for its calculation of damages is that the land was used for the farming business, not for any recreational purposes, apparently because of the age of the youngest child was then 25 years old. The trial court’s finding failed to account for the material question of fact as to whether the windbreak was used for residential and recreational purposes, as stated in David’s affidavit, or whether the windbreak was simply a “normal and average farm windbreak,” as could be implied from David’s deposition testimony and as stated in the affidavit of a real estate appraiser. The Court of Appeals noted that measure of a plaintiff’s damages would depend upon the evidence presented at trial and might require alternative instructions, depending upon the jury’s determination of contested factual issues. Because a material issue of fact existed, the Court of Appeals held, summary judgment with respect to damages was improper.

Even under the “before and after” theory of damages used by the trial court, the evidence revealed a range of damages — not just a fixed, undisputed figure of $30,000. The trial judge made a factual finding when he awarded Spicer Ranch $30,000, which he said “is the highest amount of damages suffered by the Ranch according to the before and after damage appraisal.” He should have simply determined whether a material issue of fact existed with respect to damages, and – if one did – set the case for trial. The matter had to be returned to the trial court.

– Tom Root

Case of the Day – Monday, July 29, 2019


Barton Swaim penned a thoughtful piece in today’s Wall Street Journal exploring what may be causing the Democratic Party to veer so abruptly toward socialism.  Agree with him or not, there’s no denying that phenoms like the Squad, as well as dozens of Democrats tripping all over each other to propose abolition of private health insurance, a wealth tax, reparations for slavery and free college for all, are openly advocating ideas that were only whispered about a decade ago.

I am reminded daily of those corporation-hating New Radicals, whose work is still hanging around on YouTube warning us that “you only get what we give.” The defendants in today’s case found that out a bit too late.

McCammon's excuse - the dog chewed off the boughs - didn't cut it with the jury.

McCammon’s excuse – an arboriculture version of “the dog ate my homework” – didn’t really resonate with the jury.

In many ways, a civil action is little more than a gladiatorial contest, with the court sitting to referee according to procedural rules, to apply the law when needed, and to correct inequities only in egregious circumstances. That’s sort of what happened when the McCammons – garden center owners who were buying tree boughs wholesale from “Trees 4U” – cut the boughs they needed not only from the trees Reicosky had designated but also from some landscape trees they had been told not to damage (sounds kind of like Adam and Eve and the tree of knowledge, doesn’t it?).

The owners of “Trees 4U” — the Reicoskys — told McCammon that those trees were definitely not for him, and sued. They claimed McCammon had destroyed $35,000 in trees, and they wanted treble damages under Ohio law. McCammon claimed that Mr. Reicosky had given him permission to cut boughs from the landscape trees. Mr. Reicosky denied it. It was up to the jury to decide whose story to believe, and it believed Mr. Reicosky.

There may not have been any compelling basis for believing the one story over the other, but when the jury makes its decision, it has pretty much settled things. It’s sort of how pro football was before instant replay: what the official said happened was what had happened. (Cursed instant replay … but that’s a rant for another day, )

The other problem the McCammons faced came with jury instructions. A trial court gives a jury detailed instructions on what the law is, so that jurors can decide how the facts they find (such as determining that McCammon cut boughs from Reicosky’s landscape trees after Reicosky said not to) leads to the legal outcome (McCammon thereby committed a trespass and was reckless). Both sides may suggest jury instructions to the Court. Here, McCammon didn’t think things through, and agreed with an instruction that the jury figure up damages by adding the market value of the tree times the number of trees. Later on, McCammon realized that the real measure of damages should be lost profits, that is, the market value of the trees minus the cost of producing and selling them. After all, even kids running a lemonade stand know that you only get to keep the money you’re paid minus what it cost you to buy the lemonade and handmade sign. McCammon complained that he should get a new trial, because the jury hadn’t considered the costs of production when it calculated damages.

The Court of Appeals said McCammon was out of luck. The jury had made its decision on his liability, and whether it’s what the Court agreed with or not, there was evidence enough for a rational jury to reach its finding. And as for the damages, well, Mr. McCammon, “we get what we give.” The instruction might have been flawed, even unfair to the McCammons, but the McCammons were happy enough with it when it was given. A party can’t make a mistake, and then cry foul that the mistake happened.

Bough? Wow.

Bough? Wow.

Reicosky v. McCammon, Case No. 2006 CA 00342, 2008-Ohio-2775, (Ct.App. Ohio, Feb. 19, 2008), 2008 WL 442567, 2008 Ohio App. LEXIS 2344 . The McCammons ran a garden center, from which they sold, among other things, tree boughs to cover gravesites. They had trouble getting enough boughs, and began buying them from the Reicoskys, who operated “Trees 4U.” The Reicoskys delivered them one year, but in subsequent years, let the McCammons come to the “Trees 4U” tree farm and cut the boughs they needed. The first year the McCammons did so, the Reicoskys instructed them not to take any boughs from trees east of a particular drainage ditch, because those were landscape trees to be resold.

The McCammons limited their cutting to the west side of the ditch one year, but the next year came back, and this time cut boughs from the landscape trees on the east side of the ditch as well. The McCammons said Mr. Reicosky had given them permission to do so on trees taller than 16 feet east of the ditch. Mr. Reicosky denied doing so, and claimed he lost 211 trees, worth over $35,000. The Reicoskys sued.

There's an old legal aphorism - never trust the judgment of twelve people who aren't smart enough to know how to get out of jury duty.

There’s an old legal aphorism – never trust the judgment of twelve people who aren’t smart enough to know how to get out of jury duty.

At trial, the jury heard both sides, and then found for Reicosky, holding that he had suffered $35,000 in damage. The trial court trebled this under Ohio’s treble damages statute. The McCammons’ motion for a directed verdict – in which they argued that no evidence supported the finding of recklessness was needed for treble damages – was denied by the trial court. Likewise, the McCammons’ motion for a new trial – based on the fact that the jury considered the market value of the destroyed trees without deducting any of the costs associated with selling the trees — was turned down. The McCammons appealed.

Held: The treble damages were upheld. The Court of Appeals observed that it was limited to determining whether there was any evidence that could have convinced a rational juror the McCammons had been reckless. The evidence, because the Reicoskys were the winner, had to be construed in favor of the Reicoskys.

The Court concluded that the jury simply chose to believe Mr. Reicosky’s version of what happened — that he had never given permission to cut east of the ditch and had previously made clear that the trees there were off limits — and to reject Mr. McCammon’s version. The jury is the fact finder, and its determinations as to who to believe are entitled to great deference by reviewing courts. The jury having accepted that the McCammons trespassed on the east side of the ditch without permission, the Court of Appeals was not entitled to decide that it may like Mr. McCammon’s recitation of events better.

As for the faulty calculation of damages, the Court said McCammons’ complaint was too little, too late. The McCammons had an opportunity to make sure the jury instructions accurately described how to deduct costs from the market price to determine lost profits. Instead, they submitted a jury instruction that was the same as the one the Court used, which omitted any direction as to how to calculate damages by deducting costs from market price. The Court found that “any error in the jury’s determining of damages was invited by [the McCammons]. Under the invited error doctrine, ‘a party will not be permitted to take advantage of an error which he himself invited or induced’.”

– Tom Root


Case of the Day – Friday, July 26, 2019


The news out of California last fall was not good. Paradise was anything but, as wildfires consuming homes and thousands of acres of forest and wilderness. And now, a billion-dollar corporation, PG&E, is in bankruptcy over it. It’s the kind of thing Smokey Bear always warned us about (and no, his name is not “Smokey the Bear.” I thought it might interesting to revisit the tale of another large corporation involved in a wildfire, the Great Storrie Fire of 17 years ago.

One hot August day in northern California, a Union Pacific track repair crew let some grass next to the tracks catch fire. They tried to put the blaze out … rather ineffectively, it turns out.

The Bear was not amused.

The Bear was not amused.

By the time it was all over, 81 square miles of national forest burned in the Storrie Fire of August 2000. The Forest Service, which has compiled a poor record of reforestation – chiefly because of lack of money – sued Union Pacific for the cost to rehabilitate the burned-out area. Smokey Bear would have his day in court.

Before the case was to go on trial, the lawyers tussled over the proper measure of damages. The railroad argued that the correct measure was diminution of property value caused by the fire. What’s more, the losses had to be mitigated by the value of the timber that could be salvaged from the burned land. The catch was that most of the land was restricted by law, and could not be harvested until the law expired several years after the fire. Union Pacific argued that if it could have been sold, it would have fetched so much that the damages only reached about $5.7 million.

The Government cried foul, contending that the traditional measure of damages wasn’t appropriate for natural resources. Instead, it claimed damages to the timber, damages to the soil, reforestation costs and loss of environmental habitat to birds and mammals on the order of $167 million.

Over 71,000 acres were burned by a railroad crew's careless fire.

Over 71,000 acres were burned by a railroad crew’s careless fire.

Big difference! So the crucial battle was joined, well before the trial commenced, when the court was asked to rule on what damages would be allowed. When the decision was handed down, it turned out to be a bad day for the railroad. The trial court showed little sympathy for Union Pacific, holding that California law let the Government pile on the damages – timber, soil, reforestation and loss of habitat. What’s more, in a double whammy if ever there was one, the District Court ruled that, even though the timber on the restricted land couldn’t be sold in 2000 (and couldn’t be for many years thereafter, because the law was extended), the value of the timber was appropriately considered in setting damages. OK, Union Pacific conceded, but then the salvage value of the timber left on the restricted land should be considered in mitigation. No, the Court disagreed, it couldn’t be considered … because it could’t be sold. The law, you know.

Having been thoroughly sandbagged by the Court, the railroad knew better than to go to trial. It settled the case for $102 million. And that was real money back then.

For all of the Court’s feel-good rhetoric about the sacred trust of the national forest, the Forest Service hadn’t done very much to remedy the mess the fire left behind in the eight years after the fire. Private landowners who suffered loss have done much more, but then they’re not hamstrung by regulation and interest groups. Once the Union Pacific millions started pouring in, the Forest Service didn’t have any excuse for further sloth.

How about Union Pacific? A settlement of over $100 million has to hurt, right? Take heart — the venerable old railroad had insurance.

As for the national forest, it’s slowly returning to green. But even an untrained eye looking at August 2013 satellite pictures can tell that the timber is gone. To the north and west of Storrie, rising from the Feather River, the unforested land stands in obvious contrast to the rest of the area.

The interesting tree law lesson drawn from today’s case is the Federal District Court’s free-wheeling approach to damages. With a creative lawyer, a political hot potato and a sympathetic court, the sky can be the limit.

United States v. Union Pacific Railway Co., 565 F.Supp.2d 1136 (E.D.Cal., 2008). A Union Pacific (“UP”) track repair crew negligently ignited the fire while repairing a rail, and — not recalling their Boy Scout days — didn’t put it out properly. The resulting conflagration, known as the “Storrie Fire,” destroyed 52,000 acres of National Forest in August 2000. The Government sued UP.

Union Pacific on span northeast of Storrie.

Union Pacific on span northeast of Storrie.

The issue raised before Federal district court ncerned the proper measures of natural resource damages, whether diminution of the market value of the forest land was the over-arching measure of the Government’s damage in the case, and if not, whether the Government may recover as separate injuries timber damages of over $121 million, reforestation costs of $33 million, and loss of habitat and environment during the period of regrowth of $13 million.

Also, some of the National Forest had been specified by Congress as being temporarily exempt from timber harvest. Had the trees on these lands not been wholly destroyed by the fire, the Government could have harvested the trees over time, after the expiration of the law. Similarly, no logging or reforestation was allowed in the Bucks Lake Wilderness at the time of the fire, and the general forest areas were lands where commercial logging may occur subject to other legal restrictions, such as environmental assessment requirements.

The Government conducted salvage sales of the charred timber that was not located on restricted lands, recovering $335,616. UP contended a post-fire salvage sale of the burned timber on the restricted lands — had federal law permitted it — would have generated over $73.6 million. UP claimed that at most, the Government incurred only $5.7 in net lost timber value ($79.3 million minus $73.6 million).

Held: The U.S. District Court found that the loss in market value of the land was not the proper measure of damages. Instead, the Government could argue to the jury that it was entitled to recover damages for damages to the trees, to the soil and pre-merchantable timber, and its loss of use of habitat and environmental services during the period of forest regrowth. UP would not be allowed to argue at trial that it was entitled to an offset based on the theoretical salvage value of the timber. Finally, the Government’s habitat equivalency damages were legally permissible.

California law applied to the Government’s damage claims. Although UP argued that under California law, the measure of damage for negligent injury was the difference between the value of the property before and after the injury. The Court agreed this was generally correct, but California law also held that [t]here is no fixed rule for the measure of tort damages under Civil Code §3333 … [and t]he measure that most appropriately compensates the injured party for the loss sustained should be adopted.” The general measure of tort damages under California law is broadly defined as “… the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”

Don't kid yourself - the case was a political hot potato, and politics undoubtedly influenced the District Court decision.

Don’t kid yourself – the case was a political hot potato, and politics undoubtedly influenced the District Court decision.

Thus, the Court held, the Government – as the injured party here – was entitled to full compensation for all of its damages, considering the unique character of the land at issue and that natural resources have values not fully captured by the market system. Resource damages, including timber damages, rehabilitation and restoration costs, and environmental and habitat damages all were recoverable as separate injuries, the Court ruled. In this case, the fire damaged the Government’s property and reduced its value, not only through destruction of trees used for timber, but through damage to the soil. In addition, the USFS was required by law to replant to a certain minimum density, and they incurred expenses in their salvage operation. These, the Court said, were separate injuries.

UP also argued that the Government couldn’t recover damages for the value of the trees located on the restricted lands because commercial logging of those lands was not permitted by law. But, the Court held, when the Storrie Fire occurred in August 2000, the restriction was set to expire in 2004. Had the fire not destroyed the trees within the restricted areas, the trees would have been commercially available for harvesting within a few years, and the Government could have recovered their timber market value. Instead, as a result of the damage caused by the fire and the subsequent decay of the burned trees, the trees were dead or dying and no longer had any viable timber value. That the law had subsequently, post-fire, been extended, the Court ruled, was of no consequence because at the relevant time in 2000, the law had a definite expiration date.

UP argued that in areas where commercial logging is not allowed the reasonable cost of reforestation is the proper measure of damages, but the Court rejected the argument. It said that the Government’s timber damages of $121.9 million were supported by detailed expert analysis of actual timber values. The Court waxed eloquent that UP had wholly ignored the wilderness areas in question “[w]ere national treasures created by Congress ‘to secure for the American people of present and future generations the benefits of an enduring resource of wilderness’ … ” In such circumstances, the Court held, the Government could recover damages for the timber burned in the wilderness areas. Destroyed timber values were a relevant means to capture at least part of the lost value of the burned lands because there is no available real property market value by which to determine the pre- and post-fire value of thousands of acres of national forest lands that can’t be sold.

UP asserted that if such damages were permitted by the court, it should be allowed to argue to the jury that the damages calculation did not account for the full administrative costs that the Government would have incurred in marketing unburned timber at the prices it claims, including environmental assessment costs and road building costs. The Court disagreed, holding that the harm in this case was caused by UP’s admitted negligence which essentially created a “forced sale” of the trees. Thus, the Court said, deduction for administrative costs was not appropriate.

The area of the fire - 13 years later, growth is still sparse.

The area of the fire – 13 years later, growth was still sparse.

Finally, UP argued it was entitled to an offset of the timber damages based upon the amount UP contended the Government could have obtained in a theoretical post-fire salvage sale of the timber on the restricted lands, $73.6 million. The Government argued against this, noting that the law prohibited the post-fire salvage sale. UP agreed, but pointed out that the law also prohibited a pre-fire sale, and thus, if the Govern-ment were permitted damages based in part on the theoretical pre-fire, sale value of the timber on these lands, UP should also receive a corresponding offset to those damages based on a theoretical post-fire salvage sale.

The Court disagreed, holding that salvage value is a question of mitigation after actual damages have been ascertained and then only for amounts that were realized or could have been realized. Thus, assessment of the Government’s actual damages are a separate inquiry from the assessment of the Government’s duty to mitigate its damages after the commission of the tort. Under the doctrine of avoidable consequences (or mitigation of damages), the person injured by another’s wrongful conduct may not recover continuing damages “that the injured person could have avoided by reasonable effort or expenditure.” Thus, the Court said, UP was entitled to an offset of damages only for the salvage value realized by the Government for its salvage sale with respect to timber not located on the restricted lands.

– Tom Root


Case of the Day – Thursday, July 25, 2019


fire160805We enjoyed an uncharacteristically cool July evening last night, making a roaring blaze in the backyard fire pit sound like a good idea. That reminded me to provide, as a public service, a surprising and useful piece of information: campfires can be hot, even when you can’t see flames.

Now, you may say, “this is transpicuously obvious!” (especially if you have an excellent command of vocabulary), but alas, this is not necessarily so. Ask the Morrises of Texas. They went camping at beautiful Goliad State Park, taking over a campsite which had been recently vacated by another camper. Their 3-year old wandered into the campfire ring, where the child was burned. Not being folks to look in a mirror and ask why they hadn’t supervised an inquisitive child who was exploring a strange and exciting new location, the Morrises sued the Parks and Wildlife Department for not making sure the campfire pit was cold, and the previous camper for not putting her fire completely out.

The Parks Department claimed it was immune from liability under the Texas Tort Claims Act and Recreational Use Statute, but the Morrises claimed the Department and the prior camper were grossly negligent, which – if true – would deny the Department the protection of the statute.

The trial court disagreed, as did the Court of Appeals. In a decision sure to be denounced by Smokey T. Bear, the Court held that it was socially useful for a prior camper to leave a smoldering fire for the next camper to build on, and anyway, it was sort of foreseeable to the Morrises that a campfire pit might be hot and the kind of place from which you’d want to keep your 3-year old somewhat distant.

The Department was found to be immune from suit, and the prior camper left the courtroom a happy but smarter one. She’ll no doubt douse her campfires in the future, just like Smokey advises.

Darn good advice...

Darn good advice…

Morris v. Texas Parks and Wildlife Dept., 226 S.W.3d 720 (Tex.App., 2007). The Morrises arrived at Goliad State Park, where they set up their campsite. Shortly after arriving at the Park, their 3-year-old child fell into a campfire ring containing hot coals from a previous fire. The toddler suffered second- and third-degree burns requiring medical treatment.

The Morrises sued the Texas Department of Parks & Recreation and Sandra Carson — the previous camper at the site — alleging common-law negligence and gross negligence. Carson filed a motion for summary judgment, and the Department claimed governmental immunity as a “plea to the jurisdiction.” The trial court granted both defendants’ motions, and the Morrises appealed.

Held: The trial court was right to dismiss the case. As to camper Carson, the Court quickly disposed of the Morrises’ negligence claim. Carson, the Court said, had no legal duty to the next campers to extinguish her campfire. The campfire was left burning in a place designated for fires at that campsite, and it was hardly unforeseeable to the Morrises that hot coals might be found within the campfire ring. The Park did not require or expect campers to extinguish fires left in designated campfire rings. In fact, the Court held, there was significant social utility in a policy that encouraged campers leaving unextinguished fires from which the next camper could start his or her campfire.

Yeah, prior camper - I'm talkin' to YOU.

Yeah, prior camper – I’m talkin’ to YOU.

As for the Department of Parks, the Morrises attemped to circumvent sovereign immunity by claiming that the Department was grossly negligent in not inspecting campfire rings to ensure that the fires are extinguished. Under the common law doctrine of sovereign immunity, the Court said, a governmental unit is immune from suit for the performance of governmental functions. The Department had waived sovereign immunity under the Texas Tort Claims Act to the extent specified by the recreational use statute, which is to injuries caused through gross negligence. To establish liability for a premises defect — which is what the hot campfire pit was — under the Tort Claims Act, a plaintiff must prove either willful, wanton, or grossly negligent conduct, or that the defendant had actual knowledge of the dangerous condition, the plaintiff did not, and the defendant failed to warn of the condition or make the condition safe.

In this case, the Court ruled, the Morrises’ task was more daunting because a landowner has no duty to protect trespassers from obvious defects or conditions. A hot campfire ring from the previous night’s camping was a condition inherent in the use to which the land was put, and thus, the Department had no duty to protect Morrises’ child from the obvious and expected condition. Thus, the Court held, under the recreational use statute there could be no gross negligence on the part of the Department because there was no duty.

A substantial part of the case related to the proper venue for the case, a matter of great procedural interest to lawyers but not terribly relevant to application of the recreational use statute.

– Tom Root

Case of the Day – Wednesday, July 24, 2019


Poster140306Time was, trees were just trees, and what they did, how they lived, grew and died, was out of the control of the property owner. No one blamed little Francine Nolan if the tree growing in Brooklyn fell on a Sabrett’s cart.

About the time little Francine was living in her Williamsburg tenement, an influential group of judges, scholars and lawyers in Philadelphia formed an organization known as the American Law Institute. They believed, among other things, that they could write comprehensive treatises about all areas of the law – which they called “Restatements” – that would serve as authoritative statements of the principles of common law. No more confusion, no more divergence of holdings, no more contentious arguments! You can just about hear the group, lemonades hoisted (this was during Prohibition, after all), singing “We Are the World.”

I hear the ALI singing ...

I hear the ALI singing …

Alas, Prohibition failed, and so did the ALI’s goal of replacing all of those tedious casebooks and treatises with the Restatement of the Law. Everyone loved the Restatements, but far from replacing state common law, case reporters and codes of statutes, the volumes became just another secondary source. To be sure, some of the ALI members never really thought an entire law library could be replaced with one shelf of Restatements, notably Benjamin Cardozo. He believed that the Restatement “will be something less than a code and something more than a treatise. It will be invested with unique authority, not to command, but to persuade.”

The Restatement of the Law continues today, with some volumes in their third printing. And courts love them, even if they don’t always follow them.

Today’s case is a good example. When the Browns’ tree fell on Ms. Barker’s property, it made a mess. She sued her neighbors, arguing that they should have recognized that the tree is at risk of falling, and done something about it. The Browns pointed out that no less persuasive source than the Restatement (Second) of Torts said that they weren’t responsible for the natural condition of trees on their property. The trial court agreed, and threw the case out.

The appellate court disagreed. It rejected the Restatement approach as being outdated and not sufficiently attuned to the differences between urban and rural life. In other words, the Court said, if a tree grows in Brooklyn, little Francine had better keep her eye on it.

Francine - be careful that tree doesn't fall on the hot dog vendor's cart.

Francine – be careful that tree doesn’t fall on the hot dog vendor’s cart.

Barker v. Brown, 236 Pa.Super. 75, 340 A.2d 566 (Pa.Super. 1975). Virginia Barker’s property adjoins that of the Browns. Both are located in a residential district of State College. A large tree stood on the Browns’ property, a tree which Barker said the Browns knew or should have known was in a decayed, rotting and dangerous condition. Barker alleged that the Browns negligently failed to take steps to avert the danger and, as a result, the tree fell onto her property.

The tree’s fall destroyed two of Barker’s trees, valued at about $600 each. Barker had to have the fallen tree removed from her property at a cost of $147.50, and the process required her to miss two days of work, causing lost wages of $34.00. Finally, the incident caused a loss of value of Barker’s property in the amount of $600.00.

The trial court threw out the case on the grounds that section 363 of the Restatement (Second) of Torts (1965) precluded holding the Browns to blame. That section provided:

(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

Held: The appellate court reinstated the lawsuit.

The court held that the Restatement’s distinction between natural and artificial conditions – which had never been the focus of prior Pennsylvania court decisions – was outdated. “It may very well be true,” the Court said, “that the distinction between artificial and natural conditions was valid in a time when landowners were possessed of, and hence would have been charged with the care of large quantities of land. It would still be valid today in rural areas where large landholdings are common. [However], we do not believe that the distinction should be applied to land in or near a developed or residential area. Urban living, by altering the purpose for which the land is used, must also bring with it certain responsibilities. A tree growing in an urban or residential area does not have the same natural relation to surrounding land as a tree located in a rural setting.”

Basswood140306While acknowledging that its approach imposed more cost on landowners, the Court nevertheless believed that “the relatively minor expenditures in time and money that it will take to inspect and secure trees in a developed or residential area is not large when compared with the increased danger and potential for damages represented by the fall of such a tree.”

The Court thus held that a possessor of land in or adjacent to a developed or residential area was subject to liability for harm caused to others outside of the land by a defect in the condition of a tree thereon, if the exercise of reasonable care by the possessor would have disclosed the defect and the risk involved, and repair would have made the tree reasonably safe.

In this case, the Court held, Barker alleged in her complaint that the Browns “knew, or should have known, that the said tree was in a decayed, rotting, and dangerous condition.” This is denied by the Browns, but for purposes of this appeal, the Court had to accept the facts alleged in Barker’s complaint as true. On remand, it noted, the question would be one for the fact finder.

– Tom Root

Case of the Day – Tuesday, July 23, 2019


outhouse141229Seems like it was only 80 years ago or so when Grandpaw emerged from his outhouse one day to find a couple of duded-up flatlanders standing on his little piece of Tennessee hillside. They had some kind of deed full of fancy writin’, and they told him if he signed it, they’d string some wires on poles across the place, and he’d have electric lights just like the big city folks.

That sounded like a pretty good deal to Grandmaw, who was good and tired of hand pumping wellwater, cooking on a stove and buying ice whenever the iceman decided to cometh. She made Grandpaw put his ‘x’ on the dotted line.

The flatlanders were as good as their word. They ran some wooden poles and a couple of wires over the homestead, and pretty soon, Grandmaw had her Frigidaire and electric stove, Grandpaw had an electric light in the privy, and life was grand. The flatlanders from the Tennessee Valley Authority sold Gramp power at dirt cheap rates, and only appeared once every couple years or so and trimmed back a few trees under the wires.

Some time in the 1960s, crews came in and replaced the poles with gigantic steel trussed transmission towers on concrete pads. They cut a bigger swath of timber, removing trees under the towers and a few feet to either side. Grandpa and Grandma were pretty unhappy about it, but they were quite old and didn’t know what to do. You checked things with a lawyer, who told you that TVA had an easement from your grandparents, and was within its rights.

Time marched on, your grandparents went to their reward, and your inherited the old place. You tore down the rambling farmhouse and replaced it with a beautiful log home, a rustic but modern weekend getaway. You like sitting on the porch and looking out over the hills and woods. Every so often, a TVA tree trimming crew would stop by, and trim back a few trees near the power lines. You assured them that they didn’t have to worry about the mature trees beyond about 25 feet, because you’d look after them yourself.

Then, about 500 miles north northeast of your idyllic retreat, an overtaxed transmission line sagged in the August Ohio heat, and arced to a nearby tree. The cascading errors and failures that followed plunged the northeastern United States into darkness that lasted in some places for several days.

Blackout141229Several years after the blackout, the North American Electric Reliability Corporation (NERC) – a government-certified industry organization that sets reliability standards for the transmission of electricity – established tougher rules for vegetation management around electric transmission lines.  Electric utilities faced hefty fines if they did not vigorously maintain their rights-of-way under transmission lines.  In 2012, you got a letter advising you, among other things, that TVA would no longer allow taller, incompatible trees within its rights-of-way, even if landowners say they will control tree height, and that it would be removing –sometimes extensively – incompatible species from its rights-of-way. Any tree that could grow more than 15 feet high at maturity would have to go.

When you found out that the new vegetation management policy will result in TVA cutting down more than 200 trees, you decided to take action.

That’s what Donna Sherwood and a host of neighbors did, suing TVA in U.S. District Court. They argued that TVA had improperly classified the so-called 15-foot rule as routine maintenance which was exempt from the National Environmental Policy Act. In fact, Ms. Sherwood contended, the new 15-foot rule would essentially denude 260,000 acres, a square of land over 20 miles to a side. Besides, Ms. Sherwood argued, TVA didn’t have the right to remove trees in its right of-way that did not interfere with or endanger the transmission lines.

The District Court threw out the case, holding that TVA had complied with the NEPA and that the easements clearly encompassed removal of timber. The plaintiffs asked the court to submit the easement interpretation issue to the Tennessee Supreme Court, a procedure known as certifying a question. The District Court ruled that it didn’t need to certify the question, because state law was well settled. The easements pretty clearly gave TVA the right to clear trees from its rights-of-way.

The Court of Appeals reversed the District Court, but the decision didn’t give the neighbors much comfort. The appellate court held that record did not show that TVA had complied with NEPA, so the case was sent back to the District Court to compile the record. But on the crucial issue, the Court held that crucial Federal interests, as well as Tennessee law, supported a reading of the old easement Grandpaw created to encompass the 15-foot rule, and clear-cutting a swath as wide as the limits of the easement (in some cases, 200 feet).

The likelihood that NEPA would stop TVA is about as likely as your electric bill falling by 50%. That being the case, Ms. Sherwood is undoubtedly scratching her head with gleeful puzzlement that TVA announced after the appellate decision that it would abandon the 15-foot rule without further litigation.


The neighbors thought they had won… but the matter wasn’t settled in court. Later this week, we’ll see what that meant when the chainsaws came out again.

Sherwood v. Tennessee Valley Authority, 590 Fed.Appx. 451 (6th Cir. 2014). The Tennessee Valley Authority (TVA) provides electric power to consumers in seven states across the Southeast. In order to reliably deliver that power, TVA maintains the vegetation under and around its power line structures. Historically, TVA has removed all trees directly under its power lines, but did not cut down all of the trees in what TVA called buffer or border zones, the edges of the easements TVA possesses.

Over the years, TVA acquired easements that are typically between 75 and 200 feet wide. Built within those easements are approximately 15,900 miles of power transmission lines. Those easements permit the TVA “the perpetual right to enter” and “to erect, maintain, repair, rebuild, operate, and patrol” electric power transmission lines and all necessary appurtenances. As well, the TVA is granted the “right to clear said right-of-way” and keep the right-of-way clear, including brush and trees. TVA has established a vegetation-management program for its easements. TVA maintains the easements by keeping the area beneath the transmission lines clear, while leaving a narrow buffer zone on either side of the easement. The sectors are on five-year cycles for tree removal and three-year cycles for mowing or spraying the undergrowth.

Although the TVA has been maintaining the vegetation in its easements for more than seventy years, it has not removed all of the taller, mature trees located within its rights-of-way. Its right-of-way specialists have been afforded discretion in deciding which, if any, trees to remove. Budget constraints have further restricted the discretion afforded the specialists. As a result, many tall trees remain standing within TVA’s easements. TVA has also made exceptions when landowners have promised to control the height of the trees.

After the August 2003 Northeast U.S. blackout, the wisdom of allowing these taller trees to grow within electric transmission line easements was called into question. In 2007, NERC established rules for vegetation management around electric transmission lines.

TVA altered its vegetation-management practices in order to comply with the new NERC rules and to avoid paying fines and penalties. TVA may allow low-growing species (less than 15 feet at mature height) to be planted in the within the right-of-way, but not directly under transmission lines, but express TVA approval would be required in each case. It would no longer allows taller, incompatible (species that exceed 15 feet mature height) trees within its rights-of-way when requested, even if landowners promise to control tree height. TVA would remove all incompatible species from its rights-of-way.

A TVA spokesman said TVA would have a “zero tolerance policy,” explaining that “we’re going to remove trees that can grow 15 feet or more. We’re also going to clear the full width of the easement.”

Donna Sherwood and her neighbors sued, arguing that TVA’s new policy would result in the removal of millions of taller, older, mature trees from TVA’s rights-of-way. They argued that TVA had failed to conduct the required NEPA studies before implementing this new rule. The plaintiffs have submitted evidence showing that TVA identified more than 200 trees for removal from plaintiffs’ properties. The plaintiffs submitted evidence of the environmental consequences of removing tall, mature trees from the easements.

The district court granted TVA’s motion to dismiss the plaintiffs’ claim that TVA had exceeded the scope of the easements, denying the plaintiffs’ motion to certify a question to the Tennessee Supreme Court. After reviewing the record, the district court held that TVA had not established a new policy, and was acting consistent with the maintenance policy that had been in place for the past fifteen years. Finally, the district court held that TVA’s 2012 vegetation-maintenance policy was not arbitrary or capricious.

The plaintiffs appealed.

Held: The plaintiffs’ request that the District Court certify a question of state property law to the Tennessee Supreme Court was rejected. However, the record showed that TVA had not adequately considered the environmental consequences of its new 15-foot policy, so the case had to be sent back to the District Court.

Easement141229As for the NEPA claim, the Court of Appeals held that the administrative record submitted by TVA did not consider the environmental consequences of the 15-foot rule. The Court held that the plaintiffs were alleging that TVA’s alteration of its vegetation-maintenance practice – the removal of all trees over 15 feet, as well as those trees that will grow to a height over fifteen feet – constituted a major federal action under NEPA. The TVA must compile an administrative record for the decision it made that is being challenged by the plaintiffs, in order for the court to evaluate the decision’s propriety under NEPA.

As for the scope of the easements, the Court of Appeals agreed with the District Court that “[b]ecause federal interests are sufficiently high in this matter, the easements are governed by federal law, not state law.” When the United States is a party to a lawsuit, and the underlying activities arise from a federal program, the federal interests implicated may warrant the protection of federal law.

The Court also agreed that the unambiguous language in the easements gave TVA the perpetual right to remove trees. Although state law was not determinative when applied to a Federal easement, the Court said, under Tennessee law the scope of an easement created by a grant is determined by the language of the grant. Here, the easements involved here unambiguously give the United States three rights: (1) the right to enter and to construct electric transmission line structures, (2) the right to clear the easements of brush, trees, and timber, and (3) the right to remove danger trees from the surrounding land. In describing the rights granted, the easements use the plural “purposes,” not the singular “purpose.”

The Court said that nothing in the language of the easements, explicitly or implicitly, limited TVA’s right to clear trees from the right of-way.

Thus, although the NEPA issue remained to be litigated on remand, the easements were broad enough to clear-cut the full width of the easements, regardless of prior practices or the landowners’ opinions as to what was necessary to protect the transmission lines.

– Tom RootTNLBGray140407

Case of the Day – Monday, July 22, 2019


Tequila Isaacson

America has to love this story. It has heroics, action, danger – and an O. Henry twist at the end.

A few years ago, in beautiful Snoqualmie Pass, Washington, truck driver Tequila Isaacson stopped at a rest area to use the facilities. As she returned from the restroom, she saw a family desperately trying to rescue their child from a burning pickup truck.

No worms in this Tequila: she leapt into action, and raced over to the glass front door of a coffee shop. The café was closed, but – seeing a fire extinguisher hanging inside – Tequila smashed the glass, seized the red canister, and knocked back the fire.

The fire was extinguished, the child was saved, and Tequila was a heroine.

But then the Washington State Police showed up. Tequila explained what she did to help save the boy and put out the fire. When she reported how she broke down the coffee shop door to grab the fire extinguisher, the Trooper said, “Oooooh, Tequila!” He told her that using the fire extinguisher without permission is theft no matter how good her intentions. The cop said, “Your choice is fix the window or, Tequila, slammer!”

Fortunately for Tequila, God and Al Gore created the Internet, and social media went wild in her defense. But the whole kerfluffle set us to wondering. Could the cop be right? Or course, Mom told us when we were young that the policeman was our friend, and that suggests that he would never mislead us. But then, we also recall law school, where a professor suggested to us that the policeman was not always our friend, and certainly was not always right.

So the following day, will Tequila see the sun rise as a burglar or a hero? That depends, of course, on the law.

Is getting the kid out more important than a broken window?

If you cannot believe that the law is such an ass as to punish someone in Tequila’s position, you’re largely right. Flood waters are rising, so you take that old boat parked in the neighbor’s back yard in order to save Grandma. You commandeer a soccer mom’s SUV to get an injured kid to the hospital. You knock a tainted burrito out of the hands of a Chipotle patron before she can take a deadly bite. At common law (and in many states), you have an affirmative defense to the crimes you committed – trespass, theft, even assault – because it was necessary to serve some greater good.

But consider the standard for a necessity defense, described in the case below. Did Tequila reasonably believe that breaking the coffee shop window was necessary to avoid a harm? The young boy at risk of becoming a krispy kiddie probably thought so. His parents undoubtedly thought so. And what’s worse, a kid burning to death or a broken window and discharged fire extinguisher? That’s not a hard one, either. Finally, did any legal alternative exist? Tequila said she looked for a fire extinguisher, but found nothing besides the one behind the locked door.

If the cop had been successful in finding a prosecutor who didn’t care about keeping his or her job, maybe Tequila would have been charged. But if she had been, the jury would not even have to leave the box to acquit. The necessity defense and common sense would carry the day.

And it apparently did, as a pro-cop website, Blue Lives Matter, reported that Tequila would not be charged. The site explained that the Washington State Trooper simply was not familiar with burglaries, being a “highway patrol agency” (we call them the “misdemeanor police” where we live). The author opines that “through no fault of his own, this trooper was likely completely unfamiliar with criminal law surrounding burglaries.”

The Trooper’s ignorance, of course, did not keep him from throwing his weight around. Thanks to social media, the Washington State Patrol “will be reviewing the way this case was handled with the trooper, adding they are grateful for Isaacson’s courageous effort to help save the child.” That’s code, meaning “the Trooper is going to get his butt chewed” for his sin, which was making his employer look bad.

State v. Clark, Case No. 74934-0-I (Ct.App. Washington, Sept. 25, 2017) 2017 Wash. App. LEXIS 2196, 2017 WL 4232607. Frank and Rebecca Scott owned two dogs, Ellie and Zalo. The Scotts hired Linda Clark, who owned a dog-walking business, to walk the dogs once a day.

But within a month or two, Linda began walking the dogs several times a day of her own accord, sometimes late at night or in heavy rain. Linda let herself into the garage at all hours to check on the dogs and leave notes regarding what she believed was proper care for them. She even replaced the dogs’ collars with collars that had her own name and phone number instead of the Scotts’.

The Scotts were a little creeped out, and Frank told her that her services were no longer required. Linda did not take it well, telling Frank that he would regret firing her. The Scotts told the sheriff, and a deputy went to Linda’s place to tell her to stay away.

One day the dogs disappeared. The crime hardly required Sherlock Holmes. After receiving a report that a local citizen had seen Linda with Ellie and Zalo that morning, a deputy went to her house. Linda denied everything, but when he told Linda that Zalo had not had his medication that day, Clark admitted she had the dogs.

The State charged Linda with second degree burglary. Linda wanted to raise a necessity defense, on the grounds that she took the dogs because she believed the Scotts were not taking good care of them. The trial court ruled that she could request a necessity instruction if the evidence supported it.

At the end of the trial, Linda’s lawyer did not ask for the instruction because he believed “would be a frivolous motion, frankly, at this point.” A jury convicted her.

Linda filed a motion complaining that her lawyer rendered ineffective assistance during the trial for not asking for a necessity defense instruction.

Held: Linda’s lawyer was right. The court observed that “necessity” is a common law defense with limited application, a defense “available to a defendant when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law.”

A defendant, however, has to produce some evidence to support the defense before a court will give the instruction to the jury. In order to sustain a necessity defense, the defendant must show by a preponderance of the evidence that (1) he or she reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, and (3) no legal alternative existed.

All Linda had was her own opinion that the Scotts did not take proper care of Ellie and Zalo the way she would have preferred. Because she did not testify in her own defense – probably a good idea, given how rickety her case was – nothing in the record supported a necessity defense.

– Tom Root