Case of the Day – Thursday, January 18, 2018

THE SINKHOLE WAS LINED WITH GOLD AFTER ALL

When we last left our intrepid Air Force Academy cadets, they had just been rescued in the nick of time from the runaway train that was the U.S. District Court for the District of Colorado. At the same time, the dastardly Jim Nelson saw the Tenth Circuit Court of Appeals snatch the cadets’ $7.7 million (it was probably the mortgage money) from his grubby mitts.

OK, that’s both hyperbolic and fictional. The 4,400 USAFA cadets had not been sued individually, but rather the U.S. government was the defendant. What’s more, Jim was not dastardly. His hands may have been grubby, but that was because he fell into a massive sinkhole on what may or may not have been a bike path on the expansive Academy property. The District Court found the Academy management had breached a duty to Jim, who it found was USAFA’s invitee (despite the bike path having signs warning against trespassing). But the Tenth Circuit Court of Appeals rode (or flew) to the Academy’s rescue, applying the Colorado Recreation User Act and holding that USAFA was immune from liability because it had opened up its bike path without charge for the public’s use, whether it intended to (or even knew it had) or not.

But the Tenth Circuit decision had a little “gotcha” right at the end. After finding the RUA applied, the appellate court remanded the case to the District Court to determine if an exception to the RUA’s liability limitations applied — whether the Air Force Academy’s actions constituted a “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm…” Such a failure is an exception to the RUA’s broad immunity.

Last spring, the case was again in front of the District Court, who seemed just a little too enamored of the bike rider and too dismissive of USAFA management for our tastes. After all, a sinkhole big enough to swallow Jim? We’ve seen the Academy grounds, even the unimproved parts, and they are pretty wide open, sparse of trees and underbrush. How did Jim, who admitted he rode the trail regularly, miss seeing the sinkhole well before he rode into it?

Alas, we’ll never know. What we do know is that the District Court concluded that the Academy folks knew people used the trail although they were not supposed to. A USAFA employee who maintained the 40-square mile grounds saw and photographed the sinkhole a few weeks before the accident, but because he himself did not know that people were using the path despite the signs, he saw no reason to fill the sinkhole.

But thanks to the tort doctrine of respondeat superior, which is a Latin way of saying the company is to blame when its employees are negligent in the course of their employment, the District Court strung together management’s knowledge that people ignored the signs and used the path with the employee’s knowledge of the sinkhole, and found that USAFA willfully failed to guard or warn against a known dangerous condition…”

Voilà! Just like that, the Air Force Academy was back on the hot seat, and Jim rode off on his bicycle with 160 lbs. in his rucksack, which is about what $7.3 million in 100-dollar bills weigh.

Nelson v. United States, 256 F. Supp. 3d 1136 (D.Colo. 2017): James Nelson was seriously injured in a bicycle accident on September 3, 2008, when he encountered a sinkhole/washout on a bike path on United States Air Force Academy land. He sued under the Federal Tort Claims Act for damages. The Tenth Circuit previously determined that the Academy was immune from liability within the limits of Colorado’s Recreational User Act.

USAFA knew, prior to Jim’s accident that the path existed on its property, and that members of the public used the path where Jim was injured. Upkeep of the property was the Academy’s responsibility. The Academy had a Trails Management Plan that provided guidance about the proper maintenance to be performed on official trails, but the asphalt path on which the biking accident occurred was not on the Academy’s Real Property Record, so maintenance of the path did not fall within the scope of a contract the USAFA had with a maintenance company.

The sinkhole Jim encountered was the result of off-site water flowing onto Academy property that overwhelmed the culvert running under the path, causing a washout. Dr. Brian Mihlbachler, an Academy contractor responsible for grounds maintenance, testified that the sinkhole was large and readily visible during the day. However, a witness who encountered the sinkhole while jogging the morning after Jim’s accident thought the sinkhole was water until he was significantly closer to it.

Dr. Mihlbachler said the condition of the path with the sinkhole would be a safety hazard for users of the path if it were an official Academy trail. Thus, if it were an official trail, he would have reported the condition of the path to maintenance to get it repaired. He was the only Academy employee actually aware of the sinkhole before the accident, and in fact had photographed the sinkhole two weeks before Jim was injured. However, he did not report the sinkhole or to anyone else before the accident, because the trail management plan did not reference any asphalt surface trails. There was no rule or regulation in the trail management plan or otherwise that would have required fixing a hole on an unofficial path such as the asphalt path. Dr. Mihlbachler also said the Academy’s trail management plan contained guidelines about what constitutes a safe trail for the users, and that “criteria would have applied in this situation [to the asphalt path] had I known that it was designed – . . . as a trail, yes.”

The Court held that Dr. Mihlbachler chose not to do anything about the sinkhole when he encountered it (other than to take its picture). His decision was based on his perception that it not the Academy’s responsibility because he did not think people were using the path for recreational purposes. He “didn’t feel the Air Force Academy considered it to be a trail of any sort” and that the hole was thus unlikely to cause anyone harm.

The Court found the Academy unreasonably failed to exercise reasonable care to protect against a danger – the sinkhole on the path caused by erosion – of which it actually knew. Under the respondeat superior doctrine, “an employer or principal is liable for acts that its employee or agent commits on behalf of the employer or principal within the scope of the employment or agency… based on the theory that the employee acts on behalf of the employer when the employee is acting within the scope of his authority.” The evidence shows that Dr. Mihlbachler knew of the significant erosion problems in the immediate area of the path and its condition prior to Jim’s accident.

The RUA places the risk of injury for recreational activity upon the recreational user rather than the landowner subject to certain specifically enumerated exceptions to its limitations on landowner liability. One of these exceptions to liability is a landowner’s “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.”

The RUA does not define the terms “willful” or “malicious,” but the court concluded the phrase had its plain and ordinary meaning of “voluntarily, purposefully and with a conscious disregard for the consequences of the act”. Willfulness does not require that a government employee be consciously aware that his acts or omissions create danger or risk to the safety of the public. It was enough that the Academy knew that the asphalt path existed on its property and knew that persons used the path for recreational purposes, including bicycling, by invitation or with permission.

What’s more, the Court said, the Academy knew that people were using the path for recreational purposes, yet chose not to communicate that to its agent Dr. Mihlbachler even though he played a safety role at the Academy in connection with his role as Trail Manager. Thus, the court concluded, Dr. Mihlbachler acted “voluntarily, intentionally, and with a conscious disregard for the consequences of the act” when he chose not to make the sinkhole a priority or to do anything to warn about it or guard against its danger.

Despite the immunity normally afforded by the RUA, the Air Force Academy was liable to Jim.

– Tom Root

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Case of the Day – Wednesday, January 17, 2018

SOMETIMES, DOING NOTHING IS AN OPTION

We’ve talked before about recreational users acts, which are statutes in just about every state that encourage landowners to permit recreational activity on their undeveloped land. The notion goes that by shielding property owners from liability when Connie Klutz, out for an afternoon of bird-watching, blunders into a pool of quicksand, they will magnanimously open their lands for free to the litter, noise and hubbub of the general public.

That’s the theory.

But sometimes, an RUA can ride to the rescue of a landowner who never intended that people traipse across his or her land. Why would that be? Imagine you live in Colorado. And why not? It’s a nice place, Rocky Mountain highs, nowadays from marijuana as much as from taking in the scenic splendor. One day, some knucklehead ignores the “trespassers will” signs posted around your property, hikes through your fields, and falls in a gopher hole. It could happen, you know. His lawyer shouts “negligence.” And you respond, “I let him take the path that was just as fair, and having perhaps the better claim… Therefore, I am protected by the RUA.”

Your alternative to RUA protection is hardly as pretty. If you invited him onto your premises, and he was not a recreational user, you owed him “the highest duty of care.” If he was a mere licensee, a person “who enters or remains on the land of another for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s permission or consent”, you still are liable if there is an “unreasonable failure” on your part to exercise reasonable care with respect to dangers you created or failure to warn of dangers you did not create but which “are not ordinarily present on property of the type involved and of which the landowner actually knew.” Even if your clumsy hiker is simply a “trespasser,” a person who “enters or remains on the land of another without the landowner’s consent,” he may recover only for damages you willfully or deliberately caused.

How much easier just to make anyone who gets hurt on your land a recreational user. Under Colorado’s RUA, “the owner of land who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes” will not be responsible for “any injury to person or property… caused by an act or omission” of the landowner.

The Colorado landowner under the gun in today’s case is the United States Air Force Academy. USAFA has a sprawling complex of academic buildings, airfields, athletic complexes, housing for support personnel, and a lot of undeveloped land, all nestled up against the Front Range. Within the 40 square miles or so of Academy land was a bike trail, ominously marked at the entrance with a sign prohibiting entrance. Another sign, put up by persons unknown but not removed by Air Force Academy folks, said “Bicycle Path – No Motorized Vehicles.”

Jim Nelson, a guy who regularly ignored the “Entry Illegal” signs, managed to ride into a “large sinkhole” – what, Jim, you didn’t see it? – and racked himself up rather badly. At trial, he stuck it to USAFA to the tune of millions of dollars. The Tenth Circuit, however, had other ideas. Whether it invited Jim or not (and the Academy was sure it had not), he was a recreational user, and the Academy seemed to be as free as a falcon.

Who said “doing nothing is not an option?” Certainly not the Tenth Circuit.

Nelson v. United States, 827 F.3d 927 (10th Cir. 2016). Jim Nelson was a regular user of a bicycle path located on property that is part of the United States Air Force Academy. While riding in the fall of 2008, he struck a large sinkhole and severely injured himself.

Two signs stood near the path’s entrance. The first sign was erected by the Academy and informed visitors that entry was illegal without permission. The second sign, located closer to the path’s entrance and easier for bikers to read, stated, “Bicycle Path, No Motorized Vehicles.” The Academy did not erect the “Bicycle Path” sign, nor did anyone there know who did or when. But the sign was displayed for at least as long as Mr. Nelson had been using the path.

A year before the accident, the Colorado Department of Transportation offered to remove the sign, which was near the right-of-way on Interstate 25 as the highway crosses Academy property. The Academy, however, never responded to this email and the sign remained in place until Mr. Nelson’s accident the following year. After the accident, the Academy closed the path.

Mr. Nelson sued the United States  for his injuries. The district court found the Academy knew the path was used for recreational purposes such as jogging and biking, although USAFA considered bike path users trespassers on Academy land. Nonetheless, the Academy never confronted recreational users or prevented them from using the path. The district court also found that the Academy did not intend for the path to be a recreational trail open to the public.

Based on these findings, the district court held the Academy could not take advantage of the limitations on liability under the Recreational Use Act because the Academy had not intended to open the path for public recreational use. And since the Academy knew bikers were using the path and was aware of the sinkhole, it breached its duty of care by failing to repair the sinkhole or warn users of the risk.

Held: USAFA is entitled to rely on the Recreational Use Act. The U.S. Court of Appeals for the Tenth Circuit held that the Academy was shielded from Jim Nelson’s tort claims because it knew the bike path was being used by the public and took no steps to block such usage. Thus, for purposes of the Act, the Academy “indirectly permitted” Jim’s use for recreational purposes. The Court of Appeals said the RUA extends protection to any person the landowner “directly or indirectly invites or permits” to use property for recreational purposes. Under Colorado law, “permission” is defined as “conduct that justified others in believing that the possessor of property is willing to have them enter if they want to do so.”

No one thought USAFA directly permitted use of the path – in fact, the Academy considered users of the bike path to be trespassers. But the Air Force Academy knew people used the path all the time, knew someone had placed an unauthorized sign at the start of the party, and never removed the sign or otherwise prevented use of the path. This conduct, the Court said, “can only be seen as indirectly permitting bikers such as Mr. Nelson to use the path for recreational purposes.

The Court said there was no “subjective intent requirement” required under the RUA. In other words, you don’t have to intend to offer your land for free recreational use. It’s enough that you don’t stop people.

Here, the Court said, the Academy’s purposeful actions implicitly allowed or acquiesced in Mr. Nelson’s use of the path. USAFA’s knowledge that the path was used by the general public, combined with its knowledge of the sign and its refusal to remove it, was enough to demonstrate permission under the Act. The Court ruled, “Landowners are entitled to protection by knowingly permitting recreational use of their property. Under a plain reading of the statute, the Academy “indirectly permitted” Mr. Nelson’s use of the path through its conduct.”

Sounds like a sweet deal for the Zoomies, right? Just wait until tomorrow…

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, January 16, 2018

DANGER TREES AND PIXIE DUST

pixie150916Recently, we took up the question of trees on tree lawns, an issue that arose because Jim Busek, a Norwalk, Ohio Reflector columnist, was up in arms over that city’s plans to cut down 62 boulevard trees that were interfering with the sidewalks.

Instead of removing the trees, Jim proposed that the offending roots be chopped out, and the trees then be encouraged not to grow any to replace them. While Jim was busy whispering to trees, we were wondering whether he might be liable if a dead ash tree standing on his tree lawn fell onto a passing motorist. Now, mind you, we don’t know whether Jim even has any trees on his tree lawn, but you know how it is when you hold yourself to the public as a famous columnist. You become a lightning rod. Sorry, Jim… you’re fair game.

In our discussion of Wertz v. Cooper, we delivered the bad news that Jim, as owner of the strip of grass between the public sidewalk and street, may well be liable. As an urban property owner, he has a duty to inspect and remove trees that may reasonably pose a danger to third parties passing on public streets. So Jim’s hanging out there a country mile (or maybe a city mile, because he is an urban landowner, and Wertz tells us they’re different).

But is he hanging out there alone? Although Jim owns the tree lawn, it lies within in the 60-foot wide right-of-way of the street. The Ohio Supreme Court has pointedly said that the “roadway, the space immediately above the roadway, the shoulder, the berm, and the right-of-way are all under the control of the political subdivision … [which] has a duty to keep the areas within its control free from nuisance, i.e., conditions that directly jeopardize the safety of traffic on the highway. Where the [subdivision] fails in its duty, it may be liable for injuries proximately caused by the nuisance.” Manufacturer’s Nat’l Bank of Detroit v. Erie County Road Comm (1992), 63 Ohio St.3d 318, 322-23.

So the City has Jim’s back (or is on the hook, depending on your viewpoint) in case the pixie dust dosen’t work on the tree roots. Of course, the City has to have actual or constructive notice of the defect, just like the landowner in yesterday’s case. However, the City has already noted that 62 trees should be removed, and – if the homeowners balk enough to convince the City otherwise – the City’s previous decision that the trees should go would cut against any denial by the powers-that-be that they were blissfully unaware.

All of which brings us to today’s case. This lawsuit relates to an unfortunate man who was killed when a dead tree fell onto his car one stormy November night. The tree was on private property out in the country, but it had been dead for so long that the landowner may have had liability. We can’t tell, because this case — in the Ohio Court of Claims — was solely against the Department of Transportation. The Court held that ODOT would be liable, notwithstanding the fact that the tree was on private land, if it had breached its duty to inspect the tree.

If "Lance" happens to ride a bike, he might be at risk from the decayed tree, too ...

If Jim happens to ride a bike, he might be at risk from the decayed tree, too …

ODOT had a “drive-by” inspection program, reminiscent of one we considered recently in Commonwealth of Kentucky v. Maiden. The victim’s heirs argued that if ODOT had gone around behind the tree (away from the road), they would have seen the decay. Well, yes, the Court said, but that’s beside the point. ODOT has over 40,000 miles of road to inspect, and to inspect every tree in the manner suggested by the plaintiff would be economically infeasible.

Still, the principle we take away from this decision is that just because the tree is on private land, the City of Norwalkl would not get off the hook. That doesn’t mean that Jim’s going to feel that much better in the defendant’s dock if the mayor has to stand next to him.

Our sad conclusion: Jim may not be the only one liable here. He knows the City has identified the trees as a hazard, and that alone places him on actual notice. If his 98-cent remedy of cutting some roots and hoping for the best doesn’t work, both his homeowners’ insurance and the City’s pocketbook could get a workout.

What a pain in the ash that would turn out to be!

Blausey v. Ohio Dept. of Transportation, Not Reported in N.E.2d, 2005 WL 894878 (Ohio Ct.Cl.), 2005 -Ohio- 1807. Dale Blausey was killed during a windstorm when the car he was driving was struck by a falling Norway spruce tree on a U.S. highway in Erie County, Ohio. The tree had been growing on a roadside right-of-way obtained by defendant on land that was owned by Joe Henry but occupied by a tenant. The primary proximate cause of the fall was the severe deterioration of the roots on the east side of the tree and the high wind that blew the tree onto the highway. The tree had been struck by lightning in 1973, and the damage from that strike led to interior rotting and an infestation of carpenter ants, the combination of which destroyed much of the root system. The deterioration had existed for as long as ten years, gradually weakening the tree to the extent that it became a hazard.

Before it fell, the east side of tree that faced the highway showed little, if any, evidence of decay. Dead limbs were not clearly visible from the highway. Limbs had been removed from the lower part of the tree, which was not uncommon as landowners sought to mow, decorate, or otherwise use the land. Additionally, the lower part of the tree was obscured by bushes and vegetation. The upper growth of both the healthy and the diseased spruce trees was green and quite similar, although on close inspection, the growth on the healthy spruce appeared to be slightly more dense. Cone growth was normal on both trees. Although the 1973 lightning strike had caused the tree to lose its “Christmas tree” shape at the top, the loss was not very noticeable. However, an inspection of the west side of the tree would have revealed evidence of deterioration and of a potential hazard. The State had not inspected the tree except from the highway, and that inspection did not reveal any defect.

Blausey’s executor sued the State for negligence in not identifying and removing the danger tree prior to the accident, and accused it of maintaining a nuisance.

Held: The State was not negligent. In order to prevail upon a claims of negligence, a plaintiff must prove by a preponderance of the evidence that defendant a duty, that it breached the duty, and that the breach proximately caused the injury. The State has a duty to maintain its highways in a reasonably safe condition for the motoring public, but it doesn’t have to become an insurer of the safety of state highways.

treedown140513To constitute a nuisance, the thing or act complained of must either cause injury to the property of another, obstruct the reasonable use or enjoyment of such property, or cause physical discomfort to such person. In a suit for nuisance, the action for damages is predicated upon carelessly or negligently allowing such condition to exist. But in order for liability to attach to a defendant for damages caused by hazards upon the roadway, a plaintiff must show the defendant had actual or constructive notice of the existence of such hazard. The distinction between actual and constructive notice is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever from competent evidence the trier of fact is entitled to hold as a conclusion of fact and not as a presumption of law that information was personally communicated to or received by a party, the notice is actual. Constructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. To establish that defendant had constructive notice of a nuisance or defect in the highway, the hazard “must have existed for such length of time as to impute knowledge or notice.

The court found that there was insufficient discernible evidence available to defendant’s inspectors to warrant further investigation of the damaged tree or to determine that it was hazardous prior to the accident. While a close inspection of tree would have revealed that tree was a hazard, the deteriorated condition of tree was not apparent through Department’s routine visual inspections from roadway, and with over 40,000 miles of road to inspect, the Department was not — as a matter of social and economic policy —expected to individually inspect the trees.

– Tom Root

TNLBGray140407

Case of the Day – Friday, January 12, 2018

SOMEONE’S GOTTA DO SOMETHING ABOUT ALL THESE ASH HOLES


busek150915We read a lot of newspapers. Some are truly excellent. Some are pretty good. A few are so-so.

Then there’s the Norwalk, Ohio, Reflector, which we read for reasons too complex to explore here. Suffice it to say, if you have a parakeet, the Reflector is all the newspaper you’ll ever need. 

A couple of years ago, Reflector columnist Jim Busek complained about the city’s plan to axe 62 trees that are accused of wreaking havoc with sidewalks. Jim bemoaned the fact the City had removed a number of ash trees eight years ago (which he admitted was a “smart ash policy”). Jim was pleading for the 62 targeted trees, publicly and plaintively asking Norwalk Safety Director Josh Snyder whether there wasn’t an alternative to cutting down these old trees. Surely, Jim hypothesized, these at-risk trees are so mature that if the offending roots were cut, no new ones would dare grow, and the sidewalks would thus remain in place. Right?

Maybe if we cut the trees' roots, but ask it real nicely, it won't grow any new ones ...

Maybe if we cut the trees’ roots, but ask them real nicely not to grow any new ones, our problems will be solved …

Sure thing, Jim. While Norwalk arborists are busy looking for the anti-root pixie dust that Jim figures will prevent new growth, we thought we’d consider the strange legal limbo in which property owners find themselves when tussling with municipalities over trees located on tree lawns.

It turns out that Norwalk – known as the Maple City – didn’t rid itself of all of its ash trees. A few still stand on city streets, and ash borers haven’t overlooked them. So who’s responsible for those dead trees? Ironically, we’ve seen the issue arise before, as cities – operating under tight budgets – lean on homeowners to pay for the removal of tree lawn trees. So exactly whose problem is it?

An interesting question… actually, two questions, and we’ll pick on Jim in order to answer them. Let’s say for example, that the dead ash on Jim Busek’s tree lawn falls on a motorist. Is Jim’s ash in a sling? And might the Maple City be liable as well?

So someone’s gotta do something about the tree. But who – Jim or the Mayor?

The infestation on this ash is pretty obvious.

The infestation on this ash is pretty obvious.

Let’s consider Jim’s liability. There’s no doubt that the tree lawn is Jim’s property, despite the fact it is subject to the City’s highway dedication. There’s a lot an owner can’t do with a tree lawn because of the City’s highway rights, but it’s still his or her property. Generally, the owner can plant and take down trees. And the fact that an owner has the right to add or remove trees suggests that he or she has a duty to as well.

And what is that duty? In Wertz v. Cooper, one of Cooper’s trees fell onto Wertz’s fence during a storm. When Wertz sued her, she countered that she had no idea the tree was diseased, and that the tree’s falling over was an act of God. The Court agreed. It held that in order for a landowner to have a duty, the evidence must establish that he or she had actual or constructive notice of a patent danger that the tree would fall.

There is an exception. Where the tree overhangs the street in an urban area, an owner may be held liable on negligence principles under certain circumstances for injuries or damages resulting from the tree or a limb falling onto the highway. Generally, an urban owner has a duty of reasonable care relative to his or her trees, including inspection to make sure that they are safe.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

So Jim may have a problem, beyond the fact that he’ll find no tree-root pixie dust at the nearby Home Depot. The duty to inspect isn’t an issue here. If Jim owns that dead ash tree, he already has notice that the tree’s dead. The bare branches in mid summer, the sloughing bark, and the borer tracks looking like spaghetti done in bas relief, is more than enough constructive notice anyone ever had. Whether the City does something about the dead tree or not, Jim would do well to hire an arborist to inspect the tree. If the tree should go for safety’s sake, Jim shouldn’t wait for the City to do it.

Would the same apply if tree roots damaged the sidewalk, making pedestrian passage dangerous? Absent any municipal code relieving property owners of liability for condition of the sidewalks, it would hardly be a stretch for an unfortunate passerby suing under the law of nuisance. Need an illustration? Look no further than Fancher v. Fagella.

Our next question: Would the Maple City be liable to remove the tree, independent of Jim’s obligation as a landowner?

Wertz v. Cooper, Case No. 06CA3077 (Ct.App. Scioto Co., Dec. 13, 2006), 2006 WL 3759831. Following heavy rains, a tree that sat on Cooper’s property tore loose from its roots, and leaned into Wertz’s fence and into a Shriner Colorado Blue Spruce tree that sat upon Wertz’s property. Wertz sued Cooper, complaining that Cooper failed to timely remove her tree. Wertz sought damages, including the cost of removing the fallen tree, the expenses to replace the damaged Blue Spruce, and other incidental damages.

Cooper argued that she had no knowledge of a defective condition of the tree, that she could not have been negligent in failing to maintain the tree, and that she could not be liable for the damage when an “act of God” caused the tree to uproot. The trial court agreed that there was no evidence that the tree was deteriorating, and that Cooper was not liable for an Act of God.

Wertz appealed.

If the dead tree falls n a car, watch the scramble to avoid liability begin ...

If the dead ash tree falls on a car, watch the scramble to avoid liability begin …

Held: Judgment for Cooper was upheld. A negligence action in Ohio requires a plaintiff to establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered injury. In order for a plaintiff to establish the duty element in a negligence action arising from a fallen tree, the evidence must establish that the landowner had actual or constructive notice of a patent danger that the tree would fall.

There is an exception to the general rule, however, concerning the duty of a property owner relating to growing trees with limbs overhanging a public street or highway. An owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property. In addition, there appears to have developed a distinction throughout the United States that there is a lesser standard of care with reference to rural, farm, timber, or little used land as opposed to strictly urban property. Generally, an urban owner has a duty of reasonable care relative to the tree, including inspection to make sure that it is safe. The duty placed upon the urban landowner, who has only a few trees, is not a heavy burden. This is in contrast to the rural landowner who may have a forest full of trees, which would impose a duty of immense proportions, and constitute an onerous burden on the owner.

Despite the heightened standard to be applied to an urban tree, Wertz had no evidence in this record to establish that Cooper had either actual or constructive notice of a defective condition of the tree. While Wertz advanced her belief that the tree was dead or dying, her allegation was conclusory. She presented no evidence to support her claim. What’s more, even if Wertz were right that she believed that the tree was dead or dying hardly establishes that Cooper knew or should have known that the tree was dead or dying.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, January 11, 2018

BOB AND TED’S EXCELLENT ADVENTURE

This day and age, when so many people do the bare minimum needed to get by, it’s refreshing to read about a pair of go-getters like Bob and Ted. When the Weisslers built their dream home on the Finger Lakes in Palmer, Alaska, they arranged for electric coop Matanuska Electric Association for power. They signed off on an easement with MEA for a 4-foot wide easement, a matter of some importance to the Weisslers, who wanted the maintain their privacy by cutting as small a swath through the trees as possible.

A work order was drawn up for the electric installation, noting “R2-4, 80 ft,” which in MEA-speak meant a four foot right of way, 80 feet long. MEA dispatched Bob and Ted to clear the path on Weissler’s property. Ted admitted that they knew the clearing was to be four feet wide, 80 feet long, but the boys were energetic and looking for a chainsaw adventure. They cleared the stately pines from the road all the way to the northeast corner of the house and then, spying the meter box on the southeast corner of the building, decided to continue to clear to that corner as well. Ted knew the Weisslers wanted electrical service as soon as possible, and he and Bob figured they were exceeding expectations by enlarging the clearance, so as to get the lights turned on that much quicker.

Their enthusiasm was as unbridled as their chainsaws were sharp. Bob and Ted cut a swath that, instead of being four feet wide, was up to 21 feet wide. The cutting cleared about 1,200 square feet, some four times what the work order called for and the Weisslers wanted.

The Weisslers sued MEA for breach of contract and trespass, claiming treble damages for loss of timber under Alaska Statute 09.45.730. Punitive statutes mandating double or triple damages for wrongful cutting of timber are common in virtually all states, the thinking being that merely requiring a wrongdoer to pay the value of the tree was insufficient deterrence where the cutting was reckless or intentional.

There is always a tension in calculating damages when the trees cut were not for commercial timber. It’s easy where the stand of timber is kept for sale. The plaintiff does some timber cruising, and the stumpage value is set. The trial court then trebles it, and sometimes (depending on the state) dumps in attorneys’ fees, too. But when the loss is of trees that lack much commercial value but are of great value to the homeowner – say, like the Weisslers did, the homeowner loves the privacy a stand of trees affords. Here, the court chose, as the proper measure of damages, the cost of restoring the property to the approximate condition that existed before the cutting. The judge awarded compensatory damages of $5,250.00 ($4,050.00 restoration costs and $1,200.00 for maintenance), and then applied the treble damages provision of AS 09.45.730 and ultimately awarded $15,750.00, as well as attorney’s fees of $2,200.00 and interest of $6,300.00 for a total judgment of about $25,000.00.

MEA argued vigorously that the treble damages statute did not apply to cases like this one, where it was lawfully on the property but just sort of exceeded its brief. The statute provides that treble damages apply unless “the trespass was casual … or the defendant had probable cause,” in which case, only actual damages may be recovered. But the appellate court said nothing doing. “Casual” means, essentially, negligent entry onto the property, such as if a care swerved off the road and hit a tree. MEA’s crew intentionally went beyond the easement and meant to cut down the trees.

As for probable cause, the court said that means “an honest and reasonable belief.” Ted and Bob knew the easement limits. They went beyond them, and – good intentions aside – they were trespassers, and not casual ones, either.

Matanuska Electric Association v. Weissler, 723 P.2d 600 (Alaska 1986). A couple of overzealous electric utility workers cleared a swath of up to 21 feet wide to bring electric service to a new home, despite the fact that the homeowner had given the utility only a 4-foot wide easement. The homeowners sued for trespass, and asked that Alaska’s treble damages statute for wrongful timber cutting be applied.

The trial court agreed, and trebled the damages, which for restoration of the property. The homeowners won a $25,000 judgment. The utility, MEA, appealed.

Held: MEA was liable for treble damages. The utility argued that the treble damage statute’s primary purpose was to deter those who pursue their own objectives on a public right of way from disregarding the adjacent landowner’s interest. The Alaska Supreme Court rejected that argument, pointing out that “MEA’s construction of the statute would allow the most willful of trespassers, i.e. those who enter onto timber land to cut and sell another’s merchantable timber, to be liable for only single damages.”

MEA also argued that urges the court to apply common law principles governing punitive damages. Punitive damages require malice, MEA argued, and there was none here. The Supreme Court looked to Oregon’s treble damages statute, on which Alaska’s was based, and there the courts had held that the legislature exercised its prerogative to define when single damages applied and when treble damages applied. The legislature abrogated common law here, and the statute is reasonable.

The statute requires that the trespass be without lawful authority, and MEA argued that it did not trespass because it had the Weisslers’ permission to be there. But, harkening to the Restatement (Second) of Torts § 168 comment d (1965), the Court held that the rule is well recognized that “one who has a private easement of way becomes a trespasser when he goes beyond its boundaries.” MEA exceeded the scope of the easement that the Weisslers granted, and thus trespassed without lawful authority.

But, MEA asserted, any trespass it committed was “casual,” and hence only single damages should be awarded. MEA contended the trial court “found MEA’s excessive cutting to be the result of negligence and mistake,” but the Alaska Supreme Court disagreed: while the trial judge said that this was not a case where people were “recklessly cutting down other people’s trees without regard for them,” she nevertheless, described MEA’s conduct as negligence “verg[ing] on recklessness.” At any rate, “casual” does not mean negligent. Rather, it comes from a 19th century New York statute, in which “casual” meant “casualty” or “involuntarily,” contrasted with “designedly and under a claim of right.”

“Casual,” the Court said, “does not include a mistaken belief in the authority to cut trees.” A trespass committed under a negligently mistaken belief in the right to cut would not be “casual,” the Court said, because “the trespasser intends to cut.” Only where the trespass is unintended is it “casual.” Once a trespasser forms an intent to enter the land, the trespass becomes “willful” and the plaintiff may recover treble damages.

The Court said “MEA’s negligent decision to exceed the scope of the Weisslers’ permission to cut cannot qualify as “casual” negligence. MEA’s agents intended to cut the trees under a mistaken belief that Weissler would approve. Since MEA’s agents intended to cut, their actions were not ‘casual’.”

Finally, MEA lacked probable cause to cut the Weisslers’ trees. The statute awards only single damages where a defendant had probable cause to believe that the land on which the trespass was committed was the defendant’s own or that of the person in whose service or by whose direction the act was done. The Court said that probable cause means “an honest and reasonable belief.” By definition, the Court ruled, “a negligent mistake as to authority cannot qualify as probable cause since negligence involves unreasonable conduct.

The Alaska Supreme Court concluded that the tree damages statute “mandates treble damages unless the trespasser exempts him or herself” by proving, as an affirmative defense, that single damages apply.

– Tom Root

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Case of the Day – Wednesday, January 10, 2018

NOT EVERYTHING IS SOMEONE ELSE’S FAULT

One fall day a few years ago, a 9-year old boy named Julian Terry – who was busy being a 9-year old boy – decided to climb a utility pole. Why did he want to do this? He was a 9-year old boy… What more reason did he need?

The utility pole was one of those older styles with metal foot pegs that began more than seven feet up the pole, high enough that trespassers (such as young boys) could not reach them. Unfortunately, the utility company did not reckon with Julian Terry. The intrepid young man climbed a tree next to the pole until he got high enough to reach the iron pegs on a utility pole, then climbed using the pegs and tree branches together.

Alas, it was an accident looking for a place to happen. Julian’s foot slipped off a peg. He grabbed a tree branch, which broke beneath him. Julian seriously injured his arm on the iron rod that stopped his fall.

Julian’s mom wasted little time suing the electric company and two phone companies, all of which were using the pole. She argued the utilities created a dangerous condition when they allowed a tree to grow near the utility pole, because the tree made it possible for little urchins like Julian to climb 8 feet up to the iron pegs.

Come on, man… There’s a reason the law requires that defendants actually have a duty to the plaintiff before they have to pull out their checkbooks. As we all learned back law school when we read Palsgraf v. Long Island Railroad, “the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” (Regular readers know how we love Palsgraf).

And so it is here. If the tree was too close to the utility pole, and fell in the wind, causing a short that set a house afire, the homeowner would have a point. Risks to the power grid from a tree too close to the utility pole is reasonably perceived, and the utilities had a duty to maintain the lines by keeping the easement clear.

We recall going down the basement once to discover that our 8-year old son and his cousin had coated the concrete floor with WD-40, and were gleefully sliding around the room on pieces of cardboard. Should we have sued The WD-40 Company?

There was a lesson there for us, just as there was for Mrs. Terry. No adult has sufficient capacity for imagination to reasonably foresee what kids might do.

Terry v. Consumers Energy Company, 2016 Mich. App. LEXIS 303 (Ct.App. Michigan, 2016). Nine-year-old Julian was injured after he fell while climbing in a tree next to a utility pole. His goal was to climb high enough to reach the iron climbing pegs on the pole, which started at over 7 feet off the ground precisely to keep curious kids from using them to climb the pole.

Julian’s foot slipped from a metal peg, so he grabbed a tree branch to break his fall. The branch broke instead, and Julian seriously injured his arm on an iron peg on the way down. His mother sued, alleging the defendant power company and telephone carriers using the pole had created a dangerous condition when they allowed a tree to grow nearby. The defendants moved for summary judgment, arguing that they had acted reasonably in placing the pegs on the pole. Mrs. Terry responded that the defendants had a duty to reasonably inspect the pole and trim the tree to prevent the hazard.

The trial court granted summary judgment, holding that, “Quite frankly, I cannot find a duty that would have been owed to this young man that would have been breached.”

Mrs. Terry appealed.

Held: The defendant utility companies owed no duty to curious Julian. To prove negligence, a plaintiff must show that the defendant owed the plaintiff a duty of care, the defendant breached that duty, the plaintiff was injured, and the defendant’s breach caused the plaintiff’s injury. Generally, a plaintiff proves a defendant breached the duty of care by establishing that the defendant’s actions fell below the general standard of care to act reasonably to prevent harm to others.

Here, no one disputed that climbing pegs on the pole were over 7 feet off the ground, and that nothing about the pole itself was unreasonably dangerous. In fact, the Court said, the Defendants exercised reasonable care when they placed the pegs higher than even an adult could reach.

But Mrs. Terry claimed the defendants had a duty to inspect the nearby trees to ensure that they did not provide access to the power line. This case is different from one where a defect in the pole or wires caused the electrocution of someone holding a ladder nearby: there, the power company had “an obligation to reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects.”

Here, by contrast, Mrs. Terry sought to hold the defendants liable “for a condition of land aris[ing] solely from a defendant’s status as an owner, possessor, or occupier of the land.” She offered no evidence that the utilities owned or controlled the tree that Julian used to circumvent their safety precautions. The Court said, “Defendants are no more responsible for the tree that Julian used to circumvent that precaution than they would be had Julian used a ladder to reach the rods.”

We have to admit that we’re a bit confused by the holding’s failure to consider the location of the tree. Presumably, if it was close enough to the pole for young Julian to use it to gain access to the climbing pegs, it was within the utilities’ easement (and was probably too close to the wires). We question whether the utilities did not “control” the tree. But, as old Judge Miller used to tell us when we were young lawyers (a long time ago), you dance with the girl who brung you. If Mrs. Terry offered no evidence about an easement that permitted the utilities to trim (or even remove) trees, the trial court was not free to imagine it.

– Tom Root

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Case of the Day – Tuesday, January 9, 2018

THE PENNSYLVANIA CHAINSAW MASSACRE

We write a lot about trespass and the wrongful cutting of trees as a civil matter, where courts award money damages and occasionally injunctive relief. So much so, perhaps, that it’s easy sometimes to forget that trespass is also an offense against the public peace that is punishable in every state as a criminal offense.

Darlene Gall’s nickname could have been “Unmitigated.” There is pretty clearly a backstory of neighbor animosity here, but all we get are the facts of the offense: one summer day, while her neighbor Gloria was at work, Darlene drove onto Gloria’s yard and lopped a 20-foot long branch off an apple tree. She then dragged it back to her place behind her pickup truck.

Darlene already had a driveway, meaning that the easement was not essential to get from her house to the road. But rather than use her Massachusetts Rule rights to trim the tree limb back to the edge of her easement, Darlene went next door and took a bough – the whole bough. Darlene said she did this because the branch scratched her truck cab when she drove by on her easement. And because someday an ambulance might have to get to her house by means other than her driveway. And because Gloria’s people dumped dirt in the easement once. And so on.

When another neighbor saw Darlene cut the branch and tow it away, he reported it, and Darlene got charged with criminal trespass, a misdemeanor. She admitted cutting the branch, but tried to convince the judge she thought she had the right to walk onto Gloria’s land with her chainsaw whirring. Her lawyer argued that it is “a well-settled principle in the civil law that a non-owner of vegetative property, like a tree, is privileged to physically damage the property when it is intruding onto her property.”

Well, not exactly. The Massachusetts Rule lets a landowner cut off boughs and roots of neighbor’s trees which intrude into his or her land when the tree causes “sensible harm.” Darlene could have cut the apple tree branch back to the edge of the easement. But the branch’s encroachments were not a license for her to enter her neighbor’s yard and cut the encroaching limbs all the way back to the trunk.

Commonwealth v. Gall, 2017 Pa. Super. Unpub. LEXIS 1709 (Pa. Superior Ct.2017). Darlene Gall drove onto her land owned by her neighbor, Gloria Hieter, and used an electric chain saw to cut down a 20-foot limb from an apple tree. She then threw a rope around it and dragged it behind her truck back to her own property. She did so without ever asking Gloria’s permission, claiming the limb was blocking her use of an easement, making it impossible for her to drive past without scratching the roof of her vehicle. She also rather disingenuously claimed she was concerned about the possibility of an ambulance being able to reach her property by means other than her driveway.

Darlene was charged with the crime of simple trespass, which makes it a misdemeanor for a person, knowing that he or she is not licensed or privileged to do so, to enter or remain in any place for the purpose of, among other things, defacing or damaging the premises. She was found guilty, and sentenced to pay a $50.00 fine and costs of prosecution.

Darlene appealed.

Uh… but then, it’s not trespassing.

Held: Darlene was guilty of criminal trespass. She complained there was no evidence to show she knew she was not allowed to go on to Gloria’s land to cut the branch that was interfering with the use of her easement. But the Superior Court agreed with the trial judge that Darlene knew that the base of the apple tree was on her neighbor’s property, that she knew she was entering Gloria’s property, and that she intended to enter the property in order to cut the tree branch.

The trial court found from circumstantial evidence that Darlene knew she was not privileged to be on her neighbors’ property to cut down the apple tree branch. But she argued on appeal that the evidence was insufficient, and anyway, the law permitted her to be on the property for the purpose of removing a personal hazard to her health, and that she did not have the specific intent of defacing or damaging the premises.

The Superior Court, however, observed that intent can be proven by circumstantial evidence, and that it can inferred from timing. Here, Gloria testified that she drives past the easement, which is on her left, to go to work. A neighbor, Mr. Goldman, heard the chainsaw and the large cracking sound and saw Darlene’s truck going by, towing this huge branch around 11:30 am on a Tuesday. The Superior Court said it was permissible to infer from Darlene’s choosing to cut down the branch at a time Gloria would not be at home that Darlene knew she was not privileged to enter Gloria’s land to cut down the branch. Gloria confirmed that Darlene never asked her about the tree branch.

Darlene took a bough… but not like this.

Mostly, Darlene was heisted by her own petard. She whined that “there was nothing there to say I couldn’t go up there. There was nothing there, no signs or nothing. They posted, actually, their signs into my easement, in other words, with the — may I say something? There was time when they encroached on my easement there, trying to take it on me, and it cost me thousands of dollars in court to establish that I had the right to that road. They were pushing dirt on my — they built a shed a foot over their property line without a permit, and I have no… other way to explain the need to go on there and just take care of it myself.”

The trial court said Darlene “seems all too aware of where the easement line is and where her property is and where her property isn’t. She acknowledges that she went four steps onto her neighbor’s property.” The Superior Court concluded that Darlene “knew that she was not licensed or privileged to enter onto her neighbor’s property to cut down the apple tree branch. Furthermore, as has already been stated above, [Darlene] has been quite forthright about her entry onto [Gloria’s] land having the sole destructive purpose of removing the apple tree branch that was hanging in the easement.” What’s more, the fact that Gloria’s property was not posted with “No Trespassing” signs was irrelevant for the crime of simple trespass. It was enough that Darlene knew she was trespassing.

Darlene tried to raise necessity as a defense of justification, but the trial court held that “the necessity would be as to why she had to go onto the property as opposed to cutting the limb at the edge of the easement, and that’s not what’s in front of us today.” In other words, for necessity to work, Darlene had to show why exercising her rights under the Massachusetts Rule – that is, to trim the apple tree branch to the edge of her easement – was not good enough.

On appeal, Darlene argued that cutting the limb “was to avoid a ‘harm or evil,’ namely the harm of not being able to receive emergency services at her home,” and therefore, she “was privileged to enter upon [Gloria’s] property to cut the potentially harmful branch.” But before the trial court, all she said was that her “entry upon the alleged victim’s premises was for the sole purpose of maintaining the right-of-way, and not to intentionally deface or damage the alleged victim’s property.” When the issue is not raised in front of the trial court, the appellate court will not entertain it.

Darlene’s conviction was upheld.

– Tom Root

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