Case of the Day – Friday, August 11, 2017

YOU’RE ON YOUR OWN, PAL

From the hatcheck to the parking lot to the dry cleaner to the amusement park, we grant pre-injury waivers of liability all the time. And we’re helpless to stop it. Don’t believe us? Try negotiating that fine print on the back of your parking lot ticket next time you leave the Mercedes in the hands of some teenager named “Kent Steerwell.” You’ll be handed your keys, probably with a suggestion of where to put them (and it won’t involve inserting them in the ignition, either).

It’s still in the 80s  at 8 p.m. as we write this, so it’s a nice escape to think about skiing.  Here goes: When expert Alpine skiing enthusiast Bill Rothstein parted with his hard-earned cash for a couple of souped-up passes to the Snowbird resort (your basic pass and a special one that let him skip lines and not have to mingle with the great unwashed), he signed the waivers without a second thought. You know, the ones that said the resort wasn’t liable for a ding-dong thing in case he got hurt.

031-downhill-skiingWhile skiing the “Fluffy Bunny” run (hardly sounds like a double-diamond course, does it?) Bill ran into a poorly-marked retaining wall and messed himself up but good. Fortunately, his favored hand wasn’t injured, so he quickly signed off on a lawsuit against the ski operator. But the trial court was impressed by the breadth of the release Rothstein had signed — as tall as the Wasatch and as wide as the Bonneville Salt Flats — and it threw the case out.

The Utah Supreme Court saved Rothstein’s bacon. It held that, no matter what the pre-injury waivers said, Utah public policy required that ski resorts take responsibility for the results of their negligence. A state statute, the Inherent Risks of Skiing Act, exempted ski resorts from certain risks that are inherent in skiing — such as broken legs, frostbite, fashion faux pas — so that the operators could buy insurance against actual negligence. The Court held that inasmuch as the legislature exempted ski resorts from certain types of risks so that they could afford insurance to cover the remaining ones, it was contrary to public policy for a ski resort to try to exempt itself from liability for any negligence whatsoever. The Romans had a word for it: expressio unius est exclusio alterius, which means “the expression of one excludes all others.” This means that because the law expressly carved out certain acts from liability – such as the effects of the relentless pull of gravity – it specifically intended not to carve out other unlisted acts: like failing to adequately mark a retaining wall.

Now available - expressio unius coffee mugs!

Now available – expressio unius coffee mugs!

The waiver was void, and Rothstein was free to sue… if not to ski the “Fluffy Bunny.”

Rothstein v. Snowbird Corp., 175 P.3d 560 (S.Ct. Utah, 2007). “Fast Billy” Rothstein, an expert skier collided with a retaining wall while skiing at Snowbird Ski Resort. The retaining wall was unmarked and no measures had been taken to alert skiers to its presence. Although Snowbird had placed a rope line with orange flagging near the wall, there was a large gap between the end of the rope and a tree, which Mr. Rothstein incorrectly understood indicated an entrance to the Fluffy Bunny run.

No - not this kind of

No – not this kind of “law suit”

Rothstein sued Snowbird for negligence. Snowbird defended itself by asserting that Mr. Rothstein had waived his ability to sue Snowbird for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence.

Rothstein’s super passes — which let him have faster access to the slopes than mere mortals — required him to sign an agreement that said

“I hereby waive all of my claims, including claims for personal injury, death and property damage, against Alta and Snowbird, their agents and employees. I agree to assume all risks of personal injury, death or property damage associated with skiing… or resulting from the fault of Alta or Snowbird, their agents or employees. I agree to hold harmless and indemnify Alta and Snowbird… from all of my claims, including those caused by the negligence or other fault of Alta or Snowbird, their agents and employees…”

If that wasn’t enough, a second agreement he signed said,

“In consideration of my use of the Snowbird Corporation (Snowbird) ski area and facilities, I agree to assume and accept all risks of injury to myself and my guests, including the inherent risk of skiing, the risks associated with the operation of the ski area and risks caused by the negligence of Snowbird, its employees, or agents. I release and agree to indemnify Snowbird, all landowners of the ski area, and their employees and agents from all claims for injury or damage arising out of the operation of the ski area or my activities at Snowbird, whether such injury or damage arises from the risks of skiing or from any other cause including the negligence of Snowbird, its employees and agents.”

Read the fine print

Read the fine print – if your eyes are up to the challenge

The trial court thought these agreements were pretty comprehensive, not to mention dispositive. It granted summary judgment in favor of Snowbird. Quicker than you could say, “Fluffy Bunny,” Rothstein appealed.

Held: The trial court was reversed, and Rothstein was allowed to sue the ski resort. The Court held that releases that offend public policy are unenforceable. Under Utah’s Inherent Risks of Skiing Act, certain hazards inherent in skiing are defined. Resorts aren’t liable for those risks — like breaking a leg on a downhill run — thus clarifying the hazards sufficiently to enable the ski operators to by insurance against those risks that aren’t excluded.

The Court said that by expressly designating a ski area operator’s ability to acquire insurance at reasonable rates as the sole reason for bringing the Inherent Risks of Skiing Act into being, the Utah legislature “authoritatively put to rest the question of whether ski area operators are at liberty to use pre-injury releases to significantly pare back or even eliminate their need to purchase the very liability insurance the Act was designed to make affordable. They are not.” The premise underlying the passage of a law to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The Court said “the bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.”

Inasmuch as the legislature had determined that resorts should insure themselves against risks not inherent in the sport of skiing, the Court held that it was contrary to public policy to permit an operator to duck liability for negligence that could have been avoided by requiring its patrons to waive claims for negligence as a condition of use.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, August 10, 2017

WE DON’T KNOW NUTHIN’

fallentree141117When the Santiagos parked on a side street in Vineland, New Jersey, to attend the christening of their god-daughter, they had no idea that Mrs. Santiago was about to get christened with a 60-foot tall maple tree.

It seems that the tree’s roots had girdled — which is what happens when the roots grow back around themselves and essentially strangle the tree. Girdling is a problem with city trees, the roots of which may grow in confined places. When it happens, trees have no subsurface support, and often fall in conditions that wouldn’t affect normal trees.

That’s what happened to the tree that struck Mrs. Santiago, and her lawyer and expert witness arborist did an excellent job of explaining the problem to the court. But the City won on summary judgment anyway. It seems that the city workers responsible for the trees all testified that they were nothing more than glorified leaf-rakers — one of them, when asked what he knew about trees, responded “[t]rees have leaves, that’s about it” — and none of them knew how to inspect a tree to determine whether it might have girdled roots.

The city workers involved were not the sharpest bulbs on the tree --- or something like that.

The city workers involved were not the sharpest bulbs on the tree — or something like that.

Now you’d think that the fact that city owned the urban tree and its tree people had no idea how to care for them ought to make this case a dunker for the injured Mrs. Santiago. But in New Jersey, the Tort Claims Act requires that a plaintiff show that the city’s failure to act was “palpably unreasonable.” The fact that city’s tree workers couldn’t find the business end of a chain saw turned out to be a fact that favored the city. The Court of Appeals agreed that the city’s decision not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality was not “palpably unreasonable.”

Compare this decision to holdings in other jurisdictions that an urban owner has a heightened duty to inspect his or her trees (see Conine v. County of Snohomish, a Washington State decision, for example). Seems if you’re a New Jersey city worker, the less you know, the better off you are. We don’t know much about girdling, but we know nonsense when we read it.

Santiago v. City of Vineland, Not Reported in A.2d, 2007 WL 2935035 (N.J.Super. A.D., Oct. 10, 2007). The Santiagos drove to 8th Street to attend the christening of their god-daughter. As they crossed the street, a 60-foot maple tree fell and struck Mrs. Santiago. She sued the City, claiming it was responsible for the care and maintenance of trees on its property, and was negligent, careless and reckless in permitting a dangerous condition to exist.

girdling141117Mrs. Santiago submitted a report prepared by Russell E. Carlson, a master arborist, saying that the tree broke at its base, a few inches below the surface of the ground, because it lacked a root system sufficient to support the tree. He found that girdling roots had effectively strangled the tree, resulting in decay of the base of the trunk and inadequate development of the root system. Girdling roots form when a root grows in a direction that crosses the trunk of the tree. Ordinarily, roots will grow away from the trunk of the tree but when a root meets an obstruction, it will change direction, and may grow around the edges of the planting pit.

Carlson said that eventually, circling roots will come in contact with the growing tree trunk. The cells of the bark of both trunk and root are compressed. Symptoms of this are a thinning of foliage and reduction of twig growth in the crown, followed by twig and branch dieback. The tree may eventually die above the area of contact. When this girdling condition persists for many years, the roots that normally extend away from the tree may atrophy and eventually decay. While healthy trees usually withstand winds over 70 mph, trees that have lost their structural support at the base can topple in much lower winds, and in some cases when there is no wind at all.

Even when the roots are underground, the expert said there are signs that girdling roots may be present. The trunk of the tree goes straight into the ground, without the normal flare from trunk to roots. Carlson stated that excavation of the soil at the base of the tree is “sometimes necessary” to determine the extent of the girdling. This process could take a few minutes, or several hours, depending on the size of the tree, soil conditions, and the extent and depth of the girdling roots.

Only one of three city employees whose depositions were taken knew anything about trees, and even he had no experience identifying diseased or dying trees. The general supervisor of streets and roads for the City said it would be a hardship both economically and logistically for the City’s Department of Public Works to inspect every tree within the City’s borders, or even within the City’s right of way and on City property, for the multitude of diseases that are capable of causing damage to any or all of the varieties of trees within the City’s borders.

The City moved for summary judgment, arguing that Santiago had not presented sufficient evidence to support a claim under the Tort Claims Act because she did not establish that the City had actual or constructive notice of a dangerous condition. The judge concluded that the City’s actions respecting the tree were not palpably unreasonable. Santiago appealed.

Held: The suit was properly dismissed. The Tort Claims Act provides that a public entity may be liable for an injury caused by a condition of its property if a plaintiff establishes (1) that the property was in dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) a public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The workers in question should have gone to shcool ...

The workers in question should have gone to shcool …

A public entity is deemed to have “actual notice of a dangerous condition” when it had “actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” In addition, a public entity is deemed to have “constructive notice” of a dangerous condition if a plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Here, Mrs. Santiago had the burden of showing that the City’s action or failure to act was palpably unreasonable. Although the term “palpably unreasonable” is not defined in the TCA, it has been interpreted to mean “more than ordinary negligence, and imposes a steep burden on a plaintiff.” For a public entity to have acted or failed to act in a manner that is palpably unreasonable, it must be obvious that no prudent person would approve of its course of action or inaction. The trial judge correctly determined that the Santiago had not presented sufficient evidence to raise a genuine issue of material fact as to whether the City’s actions in this matter were palpably unreasonable. The City’s public works employees were not trained to identify girdling roots or whether a tree was in danger of imminent failure as a result of such condition. The judge also pointed out that the City had not retained an arborist to “go around and inspect trees for girdling roots and perhaps a myriad of other types of similar problems, which would make a tree unsafe.” Based on the evidence, the judge correctly found that a jury could not find that the City’s failure to have such an inspection program was “patently unacceptable under any given circumstance.”

The evidence showed it is obvious that a regular program to inspect the City’s trees for imminent failure due to girdling roots would require additional manpower and resources. In this case, the City elected not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality. Such a determination, the Court said, was not palpably unreasonable.

– Tom Root
TNLBGray140407

Case of the Day – Wednesday, August 9, 2017

SPIDERS AND SNAKES

spiders150520Jim Stafford and Greg Barnett have something in common — neither one likes spider or snakes. In Greg’s case, he doesn’t think much of Southern California Edison, either.

The utility had an easement along one side of his yard, where he and his neighbor had parallel fences. The easement was to maintain power lines, but when Greg cleaned up some debris between the fences, a big ol’ spider bit him. Arachnophobia reared its ugly head, followed close on by a lawsuit.

Greg said Edison had a duty to maintain its easement, and it should be liable to him for the spider bite. The trial court disagreed, and the Court of Appeals concurred. It found Greg’s argument, like the spider of waterspout fame, just an “itsy bitsy” bit light on common sense. The easement was one known as an easement “in gross,” meaning that it was limited, in this case to activities related to delivering electricity. Edison could (and had) trimmed and cut down trees that interfered with its lines, but it had no duty to Barnett to do things unrelated to the right for which the easement was granted. Such as kill spiders.

itsybitsy150520The Court rightly concluded that to make the utility liable would be a major burden on a public utility given the thousands of miles of easement territory the company had. Nothing except the fact that the cleanup job bites kept Barnett from cleaning up his own land.

Barnett v. Southern California Edison Co., Not Reported in Cal.Rptr.3d, 2007 WL 2751874 (Cal.App. 4 Dist., Sept. 21. 2007). Gregory J. Barnett owned a place on Hayes Avenue. Edison held a six-foot wide easement on the west side of the property to “construct, lay, install, use, maintain, alter, add to, repair, replace, inspect and/or remove, at any time and from time to time, aerial and underground electric lines and communication lines, consisting of poles, guys and anchors, crossarms, wires, cables, conduits, manholes, vaults, pull boxes, markers[,] and other fixtures and appliances, for conveying electric energy to be used for light, heat, power, telephone[,] and/or other related uses …”

Barnett’s neighbor built a fence along the western boundary separating Barnett’s property from the neighbor’s, and Barnett had installed his own fence which overlapped the neighbor’s fence. There was a small gap of land between the two fences measuring two feet wide and four feet long. The gap was located within Edison’s easement. One day, Barnett was bitten by a spider while cleaning the area between the two fences of small pieces of concrete, branches, leaves, and old paper trash. He said he was trying “to abate the infestation of rats, spiders, and other vermin …” that Edison had ignored.

Barnett claimed Edison told him that he could not close the gap or take other remedial measures because Edison’s lineworkers needed access to the utility pole located between the two fences. Barnett sued Edison for negligence and premises liability, arguing it had the duty to clean up the space and eradicate the spiders.

Edison argued it owed no duty of care to prevent the spider bite. Barnett argued Edison exerted exclusive control over the area and, therefore, had a duty to maintain the premises in a safe condition. The trial court agreed that Barnett could not establish the duty element of his cause of action for negligence. Instead, there was merely a nonexclusive easement for the maintenance of electric facilities that burdened Barnett’s property. Barnett’s alleged injury from a spider bite was unconnected to Edison’s use of the property pursuant to its easement. Therefore, as a matter of law, Edison did not owe Barnett a duty of care to prevent spiders from nesting behind his fence. Barnett appealed.

socallines150520Held: The easement did not create a duty for Edison toward Barnett. An easement such as this one, called an easement in gross, is not attached to any particular land as dominant tenement, but belongs to a person individually. Here, it is undisputed there was just a parcel of property owned exclusively by Barnett. Edison held an easement in gross, limited to the purpose of conveying electricity to its customers. Edison owed no general duty of care for all purposes on its easement in gross, or more specifically, any duty to rid the area of spiders, rats, and other vermin.

The easement owner’s possessory right is limited to the use of the land granted by the easement. Accordingly, an easement holder has a duty to act reasonably under the circumstances in its use of the servient estate, but the duty does not extend beyond the scope of that use. Barnett didn’t cite a single case where an easement holder was held to have a duty to guard against a risk of harm unrelated to the scope of the interest represented by the easement. The Court said that to impose such an unlimited duty “would impose a tremendous burden on Edison, its customers, and all other utilities in California.

Barnett argued he presented evidence Edison exerted exclusive control over the easement property and therefore assumed the duty of care typically held by a landowner. The Court held he had failed to provide relevant admissible evidence to support his claims. Although Barnett claimed Edison had once removed a rat-infested palm tree, he admitted he had told Edison the palm tree was growing up into Edison’s lines, and Edison had an obligation to maintain a certain clearance between its trees and electric lines. Trimming and removing trees was part of the express terms of its easement right. The eradication of the rats was merely incidental.

– Tom Root
TNLBGray140407

Case of the Day – Tuesday, August 8, 2017

SHOW ME WHERE IT HURTS

king160615At common law, it was always good to be king. Because a cool crown and a nice castle to live in, the king could not be sued by his subjects without his permission. This concept is known as “sovereign immunity.” Sadly, the concept never extended to a private citizen. This is hardly surprising. A sovereign usually takes care of itself, not his subjects. However, where social utility calls for it, states have extended immunity to the common man and woman.

The most obvious of these kinds of statutes are “Good Samaritan” laws in the United States and Canada, legislation that shields from liability those who choose to aid the injured or ill. The laws are intended to reduce bystanders’ hesitation to assist out of fear of being sued for unintentional injury or wrongful death.

Of particular interest to us is the class of immunity laws known as recreational user statutes. Recreational user statutes, although they vary from state to state, generally create tort immunity for landowners who open their land to the public free of charge for recreational use. If you let people wander your woods, you weren’t liable if they step in a woodchuck hole. The statutes serve a public purpose. If you had to shell out every time Bertha Birdwatcher tripped over an exposed root, then you would respond by posting your land to prohibit hikers, campers and boaters.

The public benefits from getting back to nature are obvious. In fact, in many cases, the recreational use statutes apply to governments as well, such as the nice little park a small town maintains around the municipal reservoir. Recreational use acts are intended to encourage landowners to offer free use of their land to the public for recreational purposes in order to preserve and utilize the state’s natural resources.

The foregoing has not ridded us of creative lawyers. We all dislike crafty litigators (at least, until we need one ourselves). Today’s case – which is, unfortunately, very timely – concerns a little girl who was camping with her family in a California state park. During the night, a tree 60 feet from her campsite fell, hitting the family’s tent and leaving the 3-year old with severe brain damage. A sad state of affairs to be sure, one that makes the plaintiff a very sympathetic party.

The family’s crafty litigator figured out the California recreational use statute only applied to unimproved land. The tree was on unimproved land, but the campsite it fell on was improved. The plaintiff’s attorney argued that because the injury occurred on improved land, California was liable for little Alana’s serious injuries.

angels160615Much of the decision turned on whether one measure “unimproved area” from where the defect it located, or where the injury occurs. Remember President Clinton? It depends on what the meaning of “is” is. Often on the heads of such semantic pins an entire case can turn. Here, it did not matter whether Alana was on improved property when she was hurt. It mattered whether the tree that fell was standing on improved property because it toppled.

Alana M. v. State of California, Case No. A142240 (Ct.App. Calif. 1st Div., March 29, 2016).  Three-year old Alana M. was camping with her family in Portola Redwoods State Park, which is owned by the State and is located in existing forest in the Santa Cruz Mountains.

As Alana’s family slept in their tent, a tanoak tree fell directly on the campsite and struck Alana on her head, resulting in brain damage. The tree was a growing on a hillside about 60 feet away from the Campsite. Tanoak trees are indigenous to the area. The nearest man-made object to the tree before it fell was a picnic table at Campsite 42, which was about 30 feet away. The tree broke about three feet from the ground.

The State had built improvements and amenities in the Park, including roads, campsites, hiking trails, a visitor center and various other buildings. The amenities are scattered throughout the park, occupying about 5 percent of the parkland.

Tanoak tree

Tanoak tree

Alana sued the State, asserting claims of premise liability under Government Code § 815.2, and dangerous condition of public property under Government Code § 835.2. She said the tree that fell had rot, a cavity, and a hatchet wound and it “was overextended with poor taper.” Alana alleged the State negligently failed to properly maintain Campsite 41 “and its environs” and negligently failed to warn of the danger of falling trees and, further, the State knew or should have known of the structural defects of the tree that fell and injured her.

The State argued it was immune from liability under Government Code § 831.2 because Alana was injured by a natural condition of unimproved public property. The State pointed to Alana’s concession that the fallen tree “was an object of nature.” Alana maintained there was a dispute of fact as to whether the tree that injured her was on improved or unimproved public property. She relied on the Department’s Tree Hazard Program, which established a process for identifying and removing dangerous trees from developed areas. In Portola Redwood State Park, the Tree Hazard Program applied to all the trees in the campgrounds, including the tree that fell. Under the program, the campground was subject to biannual tree inspections, and periodically hazardous trees were removed. Alana cited language from a Department operations manual that said the Tree Hazard Program applied “solely within the developed areas of all parks operated by the Department.” The publication thus raised a question whether the entire area of the campground, including the tree that injured her, was “improved public property” outside the ambit of § 831.2.

The trial court granted summary judgment to the State, and Alana appealed.

Held: Alana failed to raise an issue of fact as to whether the tree was on “unimproved public property” for purposes of Government Code § 831.2, and the State’s “natural condition immunity” applied.

Government Code § 831.2, commonly referred to as the “natural condition immunity,” provides that “[n]either a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.” The statute provides for absolute immunity, intending “to encourage public entities to open their property for public recreational use” by providing immunity “because the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.” The natural condition immunity applies even “where the public entity had knowledge of a dangerous condition which amounted to a hidden trap,” and even “where a governmental entity voluntarily assumes a protective service” – such as the Department’s Tree Hazard Program – that induces “public reliance, and through the negligent performance of that protective service concurrently causes a member of the public to be victimized by a dangerous, latent, and natural condition.”

It is also the rule that “improvement of a portion of a park area does not remove the immunity from the unimproved areas.” Otherwise, the Court said, the immunity of an entire park area would be wiped out even if only a small portion was improved.

Finally, because the phrase “of unimproved public property” in § 831.2 modifies the “natural condition” that caused the injury, the relevant issue for determining whether the immunity applies is the character (improved or unimproved) of the property at the location of the natural condition, not at the location of the injury.

tent160615Alana did not dispute the tree that injured her was a natural condition under § 831.2. Portola Redwoods State Park is existing natural forest and tanoaks are indigenous. There is no evidence of any artificial change in the tree’s condition nor any evidence of artificial improvements to the tree. Alana argued there was a causal link between the improvements to the campsites and the dangerousness of the tree because “the campsites increased the likelihood that humans would be present when a tree fell in the area and hence increased the likelihood that one of them might be injured.” But, the Court said, the public is always more likely to visit public lands with amenities such as parking, informational signs and maps, toilets, lifeguards, fire rings, hiking trails, picnic tables, campsites, and the like, than similar public lands with no amenities. Such amenities do not abrogate the natural condition immunity for areas that are not improved. If Alana’s argument were to prevail, this would seriously thwart accessibility and enjoyment of public lands by discouraging the construction of such improvements as restrooms, fire rings, camp sites, entrance gates, parking areas and maintenance buildings.

California’s natural forests provide great natural beauty and recreational opportunities along with natural hazards. Alana points to “evidence that all trees eventually fail” and “the simple fact that the tree that fell was 86 feet tall and only 60 feet from Campsite 41” as evidence the tree that injured her was on improved property. This evidence, however, only shows there is risk associated with spending time among the trees of Portola Redwoods State Park; it does not show the tree that fell was on improved property. The Court said, “We do not believe the State became a guarantor of public safety by providing campsites.”

Alana argued the fact the tree was subject to the Tree Hazard Program “leads ineluctably to the inference that the [Department] considered that tree to be standing on improved property within the meaning of § 831.2.” Even if this were so, the Court said, Alana offered no authority for the proposition a defendant’s belief regarding a legal conclusion creates a triable issue on the matter in the absence of any evidence supporting that legal conclusion. Here, there is no evidence raising a triable issue of fact as to whether (1) there was a physical change in the condition of the property where the tree grew or (2) an improvement or human conduct contributed to the danger of the tree. The Department’s belief that the tree was on improved property is not competent evidence on either of these issues.

Essentially, the Court concluded, Alana’s position is she was entitled to a campsite in the forest safe from falling trees, but this “is exactly the type of complaint § 831.2 was designed to protect public entities against.”

– Tom Root

TNLBGray

Case of the Day – Monday, August 7, 2017

DOUBLE DIPPING, KENTUCKY STYLE

Lon Chaney was not a part of this lawsuit.

Lon Chaney was not a part of this lawsuit.

It’s hard to feel too much sympathy for Mr. Chaney (Dave Chaney, not Lon Chaney) in today’s case. He and his wife lived in a hollow on the Ohio River, downhill from the Wilsons.

When the Chaney homestead filled with mud because of a landslide, the Chaneys saw green where most homeowners would just see brown. They sued the hilltop Wilsons, complaining that their neighbors had trespassed and cut down some 400 trees, many of them belonging to the Chaneys. The Chaneys alleged that the removal of the trees — insulting enough on its own — led to the hillside ending up in the Chaneys’ living room.

The trial court got the two sides to agree that their surveyors would decide on the proper boundary. The surveyors did so, and concluded that Mr. Wilson had cut down his own trees, not Chaney’s trees. Meanwhile, The Chaneys lost or fired their attorney — we’re unclear what happened, but regardless, it came at a bad time — and proceeded to lose on summary judgment. They then appealed, arguing for the first time that they hadn’t agreed to have their surveyor work with the other side’s surveyor.

The Court of Appeals ruled against the Chaneys, holding that their allegation was too little, too late. Because it hadn’t been raised in the trial court (where it could have been corrected), the argument could not be raised on appeal. Besides, the Chaneys’ lawyer had agreed to the two-surveyor mechanism, and that agreement was binding on the parties.

There may have more to the Court’s repudiation of the Chaneys’ position. The trial judge was clearly a little put off that the Chaneys had told their insurance company that the landslide was caused by rain, thus collecting a cool $200,000 for the damage (the Chaneys must have had quite a living room). Now, the Chaneys were saying that the mudslide resulted the Wilsons’ alleged tree cutting. The shifting story didn’t especially smack of sincerity.

Most people see a mudslide as a disaster ... the Chaneys saw it as a ticket to Easy Street.

Most people see a mudslide as a disaster … the Chaneys saw it as a ticket to Easy Street.

It is considered poor form to try to collect twice.

Chaney v. Wilson, Not Reported in S.W.3d, 2007 WL 2019673 (Ct.App. Ky., July 13, 2007). Philip and Michaelynn Wilson owned property adjacent to David Chaney’s property in Maysville, Kentucky. The Chaneys lived at the bottom of a steep hill near the banks of the Ohio River. The Wilsons lived at the top of the hill, overlooking the river.

The Chaneys charged that the Wilsons caused timber to be cut and removed from the Chaneys’ property, and that such actions caused the removal of lateral and subjacent support, either causing or aggravating a landslide that damaged their property. At the behest of the trial court, two surveyors surveyed and agreed on boundary line between the parcels. The surveyors also concluded that any trees that had been cut were in fact on the Wilsons’ property.

The Chaneys may have been perfectly honest with the insurance company ... but if they were, it meant they were trying to snooker the court.

The Chaneys may have been perfectly honest with the insurance company … but if they were, it meant they were trying to snooker the court.

The trial court entered a final order, incorporating by reference the surveyors’ agreed description as the disputed boundary line and granting the Wilsons’ motion for summary judgment. Regarding the Chaneys’ claim that some 400 trees had been cut, the trial court found that the physical evidence on the site did not support the allegation, and, “based upon the boundary line as agreed and established by the parties two independent surveyors, any minimal cutting of trees occurred on the defendant’s side of the established boundary line, effectively negating any claims of improper ‘cutting of timber’ as alleged in the Complaint.”

The court also took judicial notice of a separate legal proceeding filed by the Chaneys against their insurance company in which they also alleged that their home was damaged by a landslide in March 1997 – nine months before the Wilsons cut down any trees –which had been triggered by heavy rains. The Chaneys had received a settlement of $200,000 from their insurer for the landslide damage.

The trial court dismissed the Chaneys’ complaint. An appeal followed.

Held: The summary judgment was upheld. On appeal, the Chaneys — who had lost their attorney during the proceedings — only made one argument, that they did not authorize counsel to agree to the surveyors’ collaborating on the legal description of the disputed boundary line. But the Court held that while an attorney cannot substantively settle a case without his client’s express authority, a party is nonetheless bound by the procedural agreements and stipulations of its attorney in the conduct of the litigation for which that attorney was hired. The agreement entered to have the surveyors conduct a joint survey was such a procedural agreement, and was within the attorney’s authority.

What’s more, the Chaneys never complained in the trial court that their attorney lacked the authority to make the agreement. The Court noted that an issue not timely presented to the trial court may not be considered for the first time on appeal.

Tom Root
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Case of the Day – Friday, August 4, 2017

HAPPY TRAILS TO YOU

It’s easy enough to imagine the liability headaches a political subdivision might face operating parks. There are so many ways to get into trouble in a park: There are ponds to drown in, gopher holes to step in, cliffs to fall over, and the occasional falling tree.

Most states have recreational use statutes that limit public and private liability for the noncommercial use of land in its natural state. Before one can sue a sovereign – not just a king, but the federal government, state government or a political subdivision, permission to do so (these days, in the form of federal and state tort claims acts) must give permission to sue.

In California, for instance, an injured park user must show that a dangerous condition of public property existed. This is not your average gopher hole: instead Government Code § 830(a) says it “means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” To win money from the State of California, which (despite the legislature’s best efforts, still has some left), one must show 1) a dangerous condition of public property; (2) a foreseeable risk arising from the dangerous condition of the kind of injury the victim suffered; (3) either negligence on the part of a public employee in creating the danger or failure by the political subdivision to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the victim’s injuries; and (5) actual injury suffered by the victim.

That’s a pretty tall order for a victim to fill. And if that were not enough, the State has granted itself “trail immunity.” Section 831.4 of the Government Code holds that a political subdivision “is not liable for an injury caused by a condition of… [a]ny unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas… [and] any trail used for the above purposes.”

You may see where this is headed. A 10-foot-long eucalyptus branch split off from a tree in July 2013 and fell on Lorin Toeppe while she was walking with her boyfriend. Lorin, a physical therapist, suffered a crushed leg, fractured spine and lacerations to her face.

She sued the City, alleging its workers negligently maintained eucalyptus tree that dropped its branch on her. The City countered that she was walking on a park trail when it happened, so the City had “trail immunity.”

Lorin appealed, and – even in the face of dire predictions that parks would close – the court held that things were not quite as cut and dried as the City argued they were.

Toeppe v. City of San Diego, Case No. D069662 (Ct.App. 4th Dist., July 27, 2017). While Lorin Toeppe was walking through Mission Bay Park with her boyfriend, a branch fell off a eucalyptus tree and struck her. She was badly hurt.

Lorin sued, claiming the tree constituted a dangerous condition of public property under Gov. Code 830(a). The City moved for summary judgment, arguing it was immune from liability under Gov. Code § 831.4, because Lorin was on a trail when she was injured. The trial court agreed, holding “[t]he evidence shows the injuries to Toeppe were caused when she was walking on the trail. Although it is disputed whether she was actually on the physical paved trail or just off of it, Toeppe’s contention is that the trail immunity does not apply to the other condition (failure to adequately maintain a tree next to the trail). Even if… the tree’s condition was a dangerous condition – and… substantially contributed to the accident, it does not create liability to fulfill its purpose, the immunity should apply to the tree (and its condition) because of the location of the tree to the trail.”

Lorin appealed.

Held: The City’s tree maintenance is not immune from negligence claims just because the trees are near a trail.

Lorin argued that between 2004 and 2013, a City employee negligently trimmed the eucalyptus tree. She claimed the City created and was aware of a dangerous condition of the tree, and as such, the City is liable for the harm caused by the falling branch.

The Court noted that trail immunity “is afforded ‘to encourage public entities to open their property for public recreational use, because the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.

     That’s what the City thought… but the Court saw it differently.

Lorin argued that trail immunity applied to the condition of the trail, not the fact that she may have been on the trail. She claimed that the negligently maintained eucalyptus tree was the dangerous condition giving rise to the City’s liability and her damages, not the trail. The City countered that Lorin was on the trail when she was struck by the branch, and the dangerous condition at issue here was thus connected to the trail.

In short, the Court said, “this is not a case about trails. It is about trees. Trees that were planted and maintained by the City. Trees that were not naturally occurring in Mission Bay Park. This is not a case where Toeppe was injured walking on a City trail in a naturally occurring forest. This is not a case where Toeppe had to walk on a trail to reach a dangerous condition or a dangerous condition was part of the design of the trail. Instead, Toeppe was injured when a tree branch struck her. She maintains the branch fell on her because the City was negligent in maintaining the eucalyptus trees in the park. There are no allegations that she was harmed based on a condition of the trail. There are no allegations that she was injured because of the location or design of the trail. On the record before us, we find no basis on which to apply trail immunity.”

The Court was not persuaded by the City’s argument that finding trail immunity does not apply here could result in the closing of City parks in which trees exist. “Although it might be prudent for the City to evaluate its maintenance of trees in its parks,” the Court said, “we do not foresee several park closures based on this opinion. Here, we merely conclude trail immunity is not applicable based on Toeppe’s allegations and the evidence submitted in support of and in opposition to the City’s motion for summary judgment. This case does not establish that the City is liable for Toeppe’s injuries.”

– Tom RootTNLBGray

Case of the Day – Thursday, August 3, 2017

DRIVE-BY INSPECTIONS, FEDERAL STYLE

Delaware Water Gap National Park

Delaware Water Gap National Park

Ms. Merando and a friend had been enjoying the scenery of Delaware Water Gap National Park – a beautiful place – one summer day, when a tree (which had previously been topped) fell from an embankment and crushed the car, killing Ms. Merando and her young daughter, Kaylyn.

It was a tragedy, and sometimes tragedies drive the bereaved to push harder than makes sense. That happened here, where Ms. Merando’s husband sued the National Park Service for not having removed this topped tree before it fell. The tree was a disaster waiting to happen, a dead, previously-butchered hulk leaning over the road like an ogre waiting to pounce.

A legal tradition – dating back to the days of knights and knaves and peasants and ogres – holds that no one may sue the king without the king’s permission. The doctrine is known as “Sovereign Immunity.” To address the unfairness of this rule, the U.S. government and virtually all states have passed tort claim acts, which give permission in certain circumstances to sue the sovereign (here, the sovereign is an Uncle named Sam, not a King or Queen).

The federal statute is called the Federal Tort Claims Act. Under the Federal Tort Claims Act, an individual may sue the government in some cases but not others. There are limitations. One of those limitations is that you can’t sue the government if it failed to perform a discretionary act. Whether hazard tree removal is a discretionary function is at the heart of this case.

The Court of Appeals upheld the lower court, dismissing Mr. Merando’s case. The National Park Service, it appears, had written guidelines that essentially directed every park to adopt a hazard tree removal policy that makes sense for the individual park. The result is a patchwork of unwritten policies. That sounds like a prescription for chaos.

Actually, it’s a prescription to avoid liability. If the Service had a written hazard tree removal policy and the local rangers hadn’t adhered to it with the tree in questions, then liability on the part of the government would be pretty clear. But, as some sharp National Park Service lawyer undoubtedly figured out — and yes, even Smokey the Bear has his own mouthpiece — if you don’t write it down, it’s that much harder for a plaintiff to prove that you failed to follow it.

The Delaware Water Gap National Park had a rather amorphous “drive-by” inspection policy, and Mr. Merando was unable to demonstrate that anyone had violated it. The lesson seems to be that “the less you do, the safer you are.”

Some hazard trees are easier to spot than others ...

Some hazard trees are easier to spot than others …

Merando v. U.S., 517 F.3d 160 (3rd Cir., 2008). Janine Noyes, Kathleen Merando and Kathleen’ daughter, Kaylyn, were sightseeing in Delaware Water Gap National Recreation Area. While traveling in Ms. Noyes’s car along the New Jersey side of the Park, a large dead oak tree fell from an embankment and crushed the vehicle. Mrs. Merando and her daughter were killed instantly. The tree was approximately 27 feet in length, and had been had “topped” and delimbed, leaving it standing in a “Y” shape with no bark or branches and with the dead tree pole leaning toward the roadway.

The 63,000-acre Park lies along four miles of the Delaware River in Pennsylvania and New Jersey. It is mainly forested land, and is accessed by approximately 169 miles of roadways, 68 miles of trails, and several streams. As with other national parks throughout the country, the National Park Service, an agency within the U.S. Department of the Interior, is responsible for maintaining the Park, including the area where the accident in question occurred. The Government took title to the land where the oak tree was situated in 1969 and to the roadway itself in 1996.

Plaintiff, as administrator of the estates of Ms. Merando and her daughter, sued the Government for negligence, alleging that the Government negligently pruned the tree causing it to die and eventually collapse, and that the tree constituted a hazardous and extremely dangerous condition of which the Government knew or should have known and that it negligently failed to act to remove the tree. The Government moved to dismiss the complaint on the basis of the discretionary function exception to the Federal Tort Claims Act (“FTCA”). The Government also argued that the New Jersey Landowners Liability Act barred the action. The trial court dismissed on the basis that the FTCA stripped the court of jurisdiction to hear the case. Mr. Merando appealed.

Held: The district court’s dismissal was affirmed. The federal, as a sovereign, is immune from suit unless it consents to be sued. That consent, and the extent of the consent, is set out in the Federal Tort Claims Act, and it is a plaintiff’ burden to prove that the FTCA has waived the immunity. Generally, the government is immune from a suit claiming negligence in the discharge of a discretionary function.

car150518The purpose of the discretionary function exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. In determining whether the discretionary function exception applies in any particular case, a court must first determine whether the act giving rise to the alleged injury involves an element of judgment or choice. The requirement of judgment or choice is not satisfied if the law, a regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive. – But even if the challenged government conduct involves an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The focus of the inquiry is on the nature of the actions taken and on whether they are susceptible to policy analysis.

In this case, determining whether the discretionary function exception applied to a tort action arising when the dead tree fell on the passing car, the relevant conduct was not the National Park Service’s alleged violation of its mandatory policy not to “top” trees, because there was no evidence that the Government was involved in or consent to the topping of the tree. Instead, the relevant conduct was the Service’s decisions that comprised its hazardous tree management plan and its execution of that plan. The issue was whether the controlling statutes, regulations, and administrative policies required the Park Service to locate and manage hazardous trees in any specific manner. The Court concluded that the Service’s unwritten tree management plan did not mandate any particular methods of hazardous tree management, and its choice to use “windshield inspections” in low usage areas of the park was a discretionary decision — driven by limited resources — not to individually inspect every potentially hazardous tree in the park.

– Tom Root

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