Case of the Day – Monday, April 30, 2018


One of the beauties of American tort law (if we’re even allowed to use that phrase, which is doubtful) is that if you’re a defendant, you often can daisy-chain as many other people or entities to share your pain as your creative lawyer can find.

Many times, the plaintiff will do your job for you, naming multiple defendants. For example, in the recent Southwest Airlines engine explosion that killed one passenger and – but for some serious flying by an unflappable Navy fighter pilot turned airline captain – might have killed everyone on board, the first lawsuits have already been filed.

Let’s say Joe Doaks, a passenger on board who had the scare of his life, sues Southwest for negligence in maintain the airplane. Southwest could be both the defendant and a third-party plaintiff, in turn suing the maintenance company that inspected the engine last without finding a crack in a turbine blade. The maintenance company could then bring in the engine maker for selling a defective engine, and the engine maker could sue the company that made the blade for defective manufacture, and the blademaker could sue the metal supply company for selling a nickel-based high-performance alloy that did not meet specifications, and the metal supply company can in turn sue the company making the test equipment that gave faulty readings that the metal was within limits… Before you know, Joe Doaks has a chain of six defendants, each one pointing the finger at the next guy, and claiming that any liability it may have is shared among all of them.

This is generally a good thing for the plaintiff, because the more defendants, the deeper the collective pocket from which to collect. But the daisy-chained defendant has to have a duty to the injured party before it is liable, and the lure of finding someone else with a checkbook to stand in the defendant’s dock with you can lead to some fairly strained interpretations of “duty.”.

In today’s case, a landlord’s tree dropped a limb onto the heads of two of his tenants. They sued, complaining the landlord company failed in its duty to them to maintain the tree. No argument there – of course it did. But the landlord, looking for someone to share its pain, went after the electric company. Dominion Virginia Power had an easement across the property, the landlord argued, and the defective tree stood in its easement. The power people, the landlord claimed,  had a duty to keep the trees in the easement trimmed, and thus shared any liability the landlord had to the injured tenants.

Well, yes, the court said, there is a duty there, but there is also some fine print as to the extent of the duty. And, as the lawyers like to say, the details are where the devil resides

Vaughan v. S.L. Nusbaum Realty Co., Case No. CL15-5895-00/012016 (Virginia Circuit Ct., Nov. 30, 2016), Va. Cir. LEXIS 183. Travis Vaughan and Alexander Goldenberg were injured when the “wind picked up” and they were struck by a falling limb from a tree located at an apartment complex owned and managed by S.L. Nusbaum Realty Co. Travis and Alex sued Nusbaum, who in turn sued Dominion Virginia Power, the electric company. It seems the tree that dropped the limb was located on a utility easement held by Dominion, and Nusbaum argued Dominion had a duty to maintain the tree.

The easement granted Dominion “the right, privilege and easement of right of way, to construct, operate and maintain a pole line for the transmission and distribution of electricity,” and, with respect to the issue before the Court, “the right to trim, cut and keep clear all trees, limbs and undergrowth and other obstructions along the lines or adjacent thereto that may in any way endanger or interfere with the proper and efficient operation of the same.” Nusbaum argued that as holder of the easement, Dominion had the same rights and responsibilities that Nusbaum did, and had “the duty to maintain the easement, including by maintaining any trees growing on the easement.”

Dominion argued it owed no contractual duty to Travis and Alexander to maintain trees located within the easement.

Held: The Court held that Dominion had no duty toward Travis and Alex.

The trial court said the relevant question was whether the duty to maintain the easement right of way imposes a concomitant duty upon Dominion — as the owner of the dominant estate—to maintain all aspects of the tree.

The right to use an easement comes a duty to maintain the easement in a manner consistent with the use allowed. Although Virginia courts apparently have not articulated the extent of a power company’s duty pursuant to an easement, at least one other jurisdiction has. In a case stemming from a property owner’s personal injury when his heel struck a metal shield on a guy wire supporting a pole bearing equipment of defendants, a New Jersey court held that, as owners of the dominant estate, “defendants were under an affirmative duty to make reasonable inspections of their easement upon plaintiff’s property and to use due care to keep the guy wires and metal shield in good repair.”

Here, the trial court said, the easement does not impose an affirmative duty on Dominion, as owner of the dominant estate, to tend to the tree beyond those actions necessary to maintain the easement in a manner consistent with the use allowed. Dominion has the duty to inspect the easement and make repairs as necessary, including trimming, cutting, and clearing trees, but only to the extent that such trees, or parts thereof, “endanger or interfere with the proper and efficient operation” of the “wires, poles, attachments, equipment and accessories.”

The court said Dominion nevertheless could be liable if Travis’s and Alex’s injuries were caused by its improper maintenance of the easement consistent with its use by, for example, failing to clear portions of the tree from the vicinity of power lines when necessary, trimming the tree in a way that the public was placed in danger, or compromising the health of the tree through improper trimming. Stated differently, the court said, Dominion “must take necessary actions to properly maintain the pole line and its accessories and, if Dominion exercises its right to ‘trim, cut and keep clear all trees, limbs and undergrowth and other obstructions along said lines or adjacent thereto that may in any way endanger or interfere with the proper and efficient operation of the same’ [which is what the easement specified], it must exercise reasonable care in doing so.”

The duty arises from the easement, so facts must be alleged in the complaint to support a breach of such duty. It was not enough for the landlord to say the tree was on the easement and a limb fell, to justify bringing the electric company into the lawsuit.

– Tom Root


Case of the Day – Friday, April 27, 2018


The first rule of plaintiffs advocacy ... look for the deep pockets.

The first rule of plaintiffs advocacy … look for the deep pockets.

Mr. Spano was a municipal employee, detailed to haul away debris left by a tree trimming company that had been hired by the village government to trim trees along a street. A fellow municipal employee – using a village front-end loader – dropped a log on Spano, injuring him.

Quick, legal scholars – whose fault was it Spano was hurt? Could it be the village worker whose ham-handed running of the loader had caused the log to fall on Spano? Could it be the village manager, who had let an unqualified worker run some dangerous heavy equipment? Perhaps the Village itself, for not budgeting enough to buy a decent front-end loader or staff up the Street Department so that Spano had more help?

C’mon, you would-be lawyers! We need to be creative here. The real culpable party, according to Spano’s lawyers, was none of these. Instead, it was the tree-trimming company. Of course! It had cut the logs too large, so large that the front-end loader could not handle them easily.

At first, this notion may seem puzzling. But not to a good plaintiff’s attorney. The back story here, of course, is that a patchwork of well-intended New York laws (and may God save us from well-intended laws) made it impossible for Spano to successfully sue his employer or, for that matter, his fellow workers. It wasn’t so much that anyone entertained the notion that the private tree-trimmer, Northwood Tree Service, was negligent. No one really thought that. However, Northwood was the sole party at the scene that wasn’t immune to a lawsuit. Thus, it wasn’t just the deepest pocket, it was the only pocket.

Of course, Spano also could have sued the front-end loader manufacturer for making a machine that couldn’t safely pick up a big log, or the chainsaw manufacturer for negligently making chainsaws that cut big pieces instead of small pieces, or even Starbucks for putting too much caffeine in the front-end loader operator’s latte. With lawyers this creative, the list could be endless.

lawyer-cartoon140402The court thought so, too. It held that Northwood owed no duty to Mr. Spano simply because it had a contract with the Town. Even if it did, it was hired to cut down a tree, and that’s what it did. Spano’s attorney could see where the case was heading and tried to amend his way out of it, but the Court said where the complaint was palpably without merit and the amendment not sufficient to fix the problem, pulling the plug on the whole case was the only humane thing to do.

Spano v. Northwood Tree Care, Inc., 852 N.Y.S.2d 289, 48 A.D.3d 667 (N.Y.A.D. 2 Dept., 2008). Spano was injured while performing tree debris removal for his employer, the Town of Mount Pleasant, which contracted with Northwood Tree Care to cut down a tree. The Town provided its own employees to haul the logs away. When one of Spano’s coworkers attempted to pick up a particular log with a front-end loader, the log — which was too big for the bucket — fell on Spano’s ankle.

And how big was the log?

And how big was the log?

Spano said Northwood Tree Care’s employees negligently created unreasonably large and unmanageable logs for Town employees to haul away. He sued Northwood Tree Care, seeking to recover damages for injuries suffered as a result of the accident. The trial court granted summary judgment for Northwood Tree Care, and Spano appealed.

Held: The suit was properly dismissed. Northwood Tree Care established that it did not owe a duty of care to Spano by virtue of its contract with the Town, and in any event, the Town properly performed its obligations. The trial court also correctly denied Spano’s cross motion for leave to amend the complaint. While leave to amend a complaint shall be freely given under the rules, the Court said leave may be denied where, as here, the proposed amendment was palpably insufficient or patently devoid of merit.

– Tom Root


Case of the Day – Thursday, April 26, 2018


Tip O’Neill famously said that “all politics is local.” And he was right. We spent 15 years in the Washington, D.C., metro area, where what happens on Capitol Hill makes the local news. But the Nation’s Capital and all of its intrigue doesn’t begin to match the politics in a small town smack in the center of a small county in the Corn Belt.

When we would no longer

When we would no longer “pay any price,” we beat feet out of town.

We had a municipal election here not too long ago. The incumbent mayor and his challenger debated during the campaign, and the wannabe, a fresh face in politics, embarked on his usual riff about crime (which is not an especially serious problem around here). The local paper reported that the challenger asserted that

“there should be no limits when it comes to achieving a safe city. ‘I’m not worried about budgets,’ he said with regarding the way he would address the drug epidemic.”

Our hometown’s mayoral challenger is way too young to remember John Kennedy’s inaugural address in January 1961. JFK intoned that “we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.”

JFK wasn’t around to see the end game in Saigon, when the North Vietnamese tanks rolled into town. Come to think of it, no Americans were around for it either, as they all had hightailed it out of town on the last chopper. Uncle Ho drove a stake into the Kennedy Doctrine’s heart that day. It turned out that no matter what the late President had said, we wouldn’t pay any price, meet any hardship, and so on. Guess what? There are limits to how much we’re willing to pay for anything.

Our hometown’s young mayoral hopeful doesn’t know this. He’ll give $10,000 extra to the police if that gets ten more drug dealers arrested. In fact, that sounds like a bargain. So how about $100,000 for 15 more? Or $1 million for 20 more? Or $10 million for 30 more? You get the idea – there comes a point when the price you’re paying for an incremental increase in city safety is just too much to justify for the benefit your extra money buys you. The neophyte’s inexperience shows: there are limits to what us town dwellers will pay for a safe city. There are always limits.

Is your PBJ sandwich worth the risk to some peanut-adverse kid somewhere? C'mon ... let's be socially responsible.

Is your PBJ sandwich worth the risk to some peanut-adverse kid somewhere? C’mon … let’s be socially responsible. Eat Vegemite instead.

All of which leads us to today’s case. A tree-related case may seem rather a prosaic illustration of this limiting principle, but the hard fact is that a dollar value on safety is set every day. People are always making demands on government or industry that are objectively unreasonable, but that they believe with all their hearts are absolutely necessary because of our own experiences.

It’s the old “cost of a human life” argument, as in “how can you place a price tag on a human life?” We do, of course, all the time. If we didn’t balance lives against costs to society, we’d have no cars, airplanes, or even peanut butter. Think of the lives that would be saved! Without cars, over 34,000 lives would be saved annually in the U.S. alone. Hundreds of people a year die in aviation-related mishaps. And how about peanut butter? Is your guilty pleasure of peanut butter-banana sandwiches before bedtime worth the horrendous risk to countless children with peanut allergies? Tough policy questions, to be sure…

In today’s case, Mrs. Lacasto didn’t lose her life, but she was a mite inconvenienced (and a bit injured) in her run-in with gravity in beautiful Santa Barbara, California. A piece of city-owned sidewalk had been pushed up by the roots of a city-owned ficus tree. Mrs. Lacasto tripped on the 1-inch rise and injured herself.

In the inevitable lawsuit — this was California, after all — she argued that the City’s tree maintenance program was deficient, and if it hadn’t been so defective she wouldn’t have fallen. The deficient maintenance program meant that the City had “constructive notice” of the damaged sidewalk, and it thus owed her a lot of money for her fall. The defect? Why, she argued, Santa Barbara only inspected trees once every five years! Horrors! If it had inspected more often, she complained, the defective sidewalk caused by the ficus tree would have been discovered.

The numbers tell the story: the City employed four tree trimmers, who had responsibility for maintaining some 32,000 city trees along some 500 miles of sidewalks. The trimmers trimmed 5,500 trees a year, and tried to get to each tree in town once every five years. The Court didn’t use a calculator, but it reckoned that the cost of inspecting sidewalks and trees every two years, as Mrs. Lacasto thought would be prudent, would have been “an onerous burden” on the City.

What’s more, the Court wisely observed, even if the ficus tree had been inspected every two years, it was sheer speculation that sidewalk rise would have been found to be a dangerous condition two years before appellant’s fall.

Of course, the City could just replace the 500 miles of concrete sidewalk with rubber. The taxpayers clearly wouldn’t mind shouldering the cost: after all, who can put a price on Mrs. Lacasto’s shins?

cracked_sidewalk140401Lacasto v. City of Santa Barbara, Case No. 1188148, 2007 WL 3203036 (Cal.App., Nov. 1, 2007). On a sunny morning in September 2005, appellant tripped on a rise in a sidewalk maintained by City. The one and a quarter-inch rise occurred at the expansion joint between two adjoining concrete panels. One foot to the south of the maximum rise, the elevation diminished to one inch. Appellant tripped at a point between the one and a quarter-inch rise and the one-inch rise. Her toe caught on the sidewalk rise and she fell, breaking her left hip.

A search of the records of the City Division of Public Works showed that, before Lacasto’s trip and fall, the division had never received any complaints or information regarding the condition of the area of sidewalk in question. A search of the records of the City Risk Management Division also failed to disclose any reports, but the City’s Street Maintenance Manager said the sidewalk defect was a hazard and should have been repaired. Near the rise in the sidewalk, a ficus tree had been planted, and a city expert opined that the rise was caused by the tree root lifting the sidewalk. The lifting had also caused a crack in the sidewalk that ran perpendicular to the rise. Mrs. Lacasto’s expert said that ‘[r]aising of hardscape does not happen overnight but over a period of time …” The City admitted it “would have taken several years” for the tree root to grow to the point where it would cause a one and a quarter-inch rise in the sidewalk.

The only sidewalk inspection the City had was to charge all City employees to be on the lookout for hazards. No City employees were responsible for inspecting sidewalks for defects. The only way the City would know about a sidewalk hazard would for a citizen or City employee reporting it to the City. The City has over 500 miles of sidewalk area. About five years before Mrs. Lacasto’s fall, City tree trimmers performed maintenance on the ficus tree in question. The City employed four tree trimmers to maintain over 5,500 of the 32,000 City trees. The City’s current system for pruning trees was based on elapsed time, with every City street and park tree receive some type of maintenance over five years. Lacasto’s expert said the City’s trees should have been inspected at least every two years. The trial court found for the City on summary judgment. Mrs. Lacasto appealed.

Held: Mrs. Lacasto’s case was thrown out. She had based her complaint on the California Tort Claims Act, that provided that a public entity is liable for injury caused by a dangerous condition on its property if the 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. A public entity had constructive notice of a dangerous condition only if the plaintiff established 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.

scalelife140401Mrs. Lacasto conceded that there was no evidence that the City had actual notice of the defective condition. Therefore, the City’s liability had to be predicated on constructive notice, which would be found to exist only that have existed for such a length of time and are of such a conspicuous character that a reasonable inspection would have disclosed them. In order to charge the city with constructive notice, Mrs. Lacasto had to show some element of notoriety to put the city authorities on notice as to the existence of the defect or condition and its dangerous character. An inch and a half-inch rise in the sidewalk, the Court said, simply wasn’t sufficiently conspicuous to put the city on constructive notice of the defect.

In view of the City’s more than five hundred miles of sidewalks and approximately 32,000 street and park trees, the Court said it would not have been reasonably practicable to impose such an onerous burden upon the City. Even if the ficus tree had been inspected every two years, as recommended by Mrs. Lacasto’s expert, the Court said it would be speculative whether the sidewalk rise constituted a dangerous condition two years before appellant’s fall.

– Tom Root


Case of the Day – Wednesday, April 25, 2018


diving140330The last snow has finally melted, and the first mowing of the grass is under our belts.  Can Memorial Day and the official start of the summer swim season be far behind?

The advent of the swim season got us thinking about – what else? – liability. Nationally, there are about 800 spinal cord injuries a year from swimmers — mostly young people — diving into shallow water. The idea that you ought to check the depth of the water before diving in is a pellucid as Bahamian waters. Yet diving accident victims and their families often litigate the issue anyway. Today’s case is an interesting application of the “open and obvious” doctrine.

The Koops, who were lakeside property owners, weren’t recreational users, because their property was open only to invited guests, not the public. So they had no immunity under Ohio’s recreational user statute. As invitees, their guests were owed ordinary care by the Koops – which included a warning of any dangers that weren’t open and obvious. When one guest ran across the dock and dove into 18-inch water — rendering himself a quadriplegic — he sued the Koops for negligence. The Court ruled that the danger was open and obvious.

Not to be deterred, Galinari argued he had been distracted by “attendant circumstances.” Not a bad argument: “attendant circumstances” can defeat the “open and obvious” doctrine. But such circumstances must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of injured party. Attendant circumstances in the past have included such circumstances as time of day, lack of familiarity with the route taken, lighting conditions, and accumulation of ice. But here, the best the plaintiff could muster was that the water was inviting, other people were swimming in the lake, and there were no posted warnings. Not enough, the Court ruled, to excuse the young man from the simple precaution of checking water depth first.

Not all shallow water is so well labeled ...

Not all shallow water is so well labeled …

Galinari v. Koop, Slip Copy, 2007 WL 2482673 (Ct.App. Clermont Co., Ohio, Sept. 4, 2007). In a tragic July 4 accident, 21-year old Nick Galinari dove off a dock into a shallow lake owned by Koop, severely injuring his spinal cord and rendering him a quadriplegic. Galinari was invited by his girlfriend, Kristin Bounds, to attend a family party hosted by Koops on their property.

The property included a small, man-made lake on which guests are permitted to swim, canoe, fish, and generally use for recreational purposes. On the shore of the lake, there was a ramp connected to a floating dock, all of which extends about 28 feet into the water. The water near the shoreline is quite shallow, fluctuating between approximately ankle-deep and knee-deep. Galinari and his girlfriend pitched a tent and then mingled with guests at the party for about 45 minutes. Galinari, Kristin, and Kristin’s sister then decided to go swimming. Kristin went into the lake while Galinari changed clothes. He then headed down the stairs to the ramp and floating dock to enter the water. He saw Kristin in the water near the end of the dock, but could not recall later if she was standing or swimming. Without stopping to check the depth of the water at the end of the dock, Galinari jogged to the end of the dock and attempted a “shallow dive” to the right of Kristin. The water where he dove was about 18 inches deep. He struck the bottom of the lake, severely injuring his spinal cord. There was no sign on the property, nor did anyone give any verbal warnings, about diving off of the dock due to the depth of the water.

Galinari sued the property owners for negligence for failure to warn him about a dangerous condition on their property. The owners moved for summary judgment, arguing that they were under no duty to warn Galinari of something as open and obvious as the shallow lake. The trial court granted the Koops summary judgment, agreeing that the shallow water was an open and obvious condition and that theytherefore had no duty to warn Galinari about a danger which he could have discovered through ordinary inspection. Galinari appealed.

Held: Galinari lost. he contended that despite the known dangers involved in diving, the question of the Koops’ negligence in failing to warn him of the shallow water required jury evaluation. He argued that he was a social guest on Koops’ property and that they breached a duty of care in failing to warn him of the dangers of diving off of the dock into their lake.

No-DivingThe Court disagreed, holding that in order to establish a cause of action for negligence, Galinari had to first show the existence of a duty. A social host owes his invited guest the duty to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises. This includes warning the guest of any condition of the premises known to the host and which a person of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover the dangerous condition.

However, a property owner owes no duty to warn invitees of dangers which are open and obvious. The rationale for this “open and obvious” doctrine is that the nature of the hazard serves as its own warning, and invitees then have a corresponding duty to take reasonable precautions to avoid dangers that are patent or obvious. In determining whether a condition is open and obvious, the determinative question is whether the condition is discoverable or discernible by one who is acting with ordinary care under the circumstances. This determination is an objective one: a dangerous condition does not actually have to be observed by the claimant to be an open-and-obvious condition under the law.

Here, the Court held, it is clear that the depth of water at the end of the Koops’ dock was a discoverable condition. Kristin was standing in the water near the end of the dock when Galinari dove in. The water on that day was at or below her knees. The lake bottom was clearly visible from the floating dock where Galinari dove. Galinari presented no evidence justifying any reason to believe that the water may have been deeper where he dove. He hadn’t been told he could dive from the dock and that he hadn’t seen anyone dive from that dock before him. Kristin was the only person he recalled seeing in the water as he jogged forward along the ramp and dove off of the dock. Based on this evidence, the Court said, the water was a discoverable condition by someone exercising reasonable care under the circumstances. Sadly, the Court said, if Galinari had merely looked at the water at the end of the dock, or stepped into the water to determine its depth, he would have easily determined that the lake was too shallow for diving. However, he took no precautionary measures prior to diving into the lake.

fall161214But Galinari argued that despite the open and obvious danger created by the shallow water, the doctrine of attendant circumstances precluded summary judgment. Attendant circumstances are an exception to the open and obvious doctrine and refer to distractions that contribute to an injury by diverting the attention of the injured party and reduce the degree of care an ordinary person would exercise at the time. An attendant circumstance must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of injured party. The phrase refers to all facts relating to the event, including such circumstances as time of day, lack of familiarity with the route taken, lighting conditions, and accumulation of ice. Galinari argued the “inviting nature of the water,” “other water activity” and the “lack of warnings” were circumstances contributing to his belief that the water was safe for diving.

The Court noted that while the nature of the cool water may have been inviting on a hot Fourth of July, it could not consider that to be an attendant circumstance distracting appellant from the ordinary use of care. Certainly, the Court said, inviting water did not prevent appellant from being able to discover its depth. Nor did the existence of other docks and slides, the length of the dock from which he dove, and the presence of people and canoes in the water create a visual appearance that diving from the end of the dock was safe. It was clear from this testimony that the “attendant circumstances” which Galinari asserted were not distracting him from exercising due care because he did not even notice them. These circumstances in no way prevented him from exercising the ordinary amount of care or led him to believe that the water was safe for diving.

– Tom Root


Case of the Day – Tuesday, April 24, 2018


A little neighbor law today: Dog bites are big business in the United States. They happen all the time, which is why “Dog Bites Man” and its obverse are the archetypical predictable or unpredictable newspaper headlines. Man’s best friend sinks canine fretwork into a human over 3.5 million times a year. Insurance payouts for dog bites exceed $1 billion a year (or, by comparison, a week’s groceries at Whole Foods).  Some dog attacks can be fatal. Many more are just plain ugly.

Today’s case is one of those ugly ones, a sweet little 3-year old girl attacked without provocation by her cousin’s pit bull.   Our focus today is on the denouement, as the Delaware court apportions the financial blame for the accident.  Not that it much matters –the defendants didn’t bother to put on a case, which suggests that neither little Destiny or her mother will ever collect a dime. 

Still, it’s a reminder that (1) just about every state regulates the liability a dog owner has for the bites inflicted by Fido, and most of those statutes impose liability without any proof of negligence; (2) permitting a default judgment to be entered against you is a very bad idea; and (3) the concept of “joint and several” liability means that a plaintiff can collect it equally from several defendants, or all from one and none from the other. 

Campbell v. Robinson, 2007 WL 1765558 (Del.Super.Ct., June 19, 2007). Young Destiny Campbell was attacked by a dog kept by Frances and Turquoise Robinson. The attacked caused severe injuries, including the removal of Destiny’s right ear and a significant portion of her scalp, and created long-term physical and mental health consequences. Her mother, Alicia Campbell experienced emotional distress after witnessing the attack. 

Alicia sued on behalf of her daughter, complaining that as owner of the dog, Turquoise was liable under Del. Code Ann. Title 16, § 3053F, which imposes liability upon owners for injuries caused by their dogs. Additionally, she claimed that Turquoise was negligent in maintaining a dog she knew to be vicious and in failing to warn those on the premises of the dog’s vicious nature, and that Frances Robinson was liable for housing and maintaining a dog known to be vicious and dangerous, for failure to warn, and for failure to protect those who entered the premises.

The Robinsons apparently decided to let sleeping dogs lie, and failed to answer the complaint.  The trial court granted default judgment against both defendants, and set a hearing to consider damages.  The Robinsons showed up for that one, but did not testify.  That probably wasn’t such a good idea, because the trial court entered a judgment of $750,000 for compensatory damages against Turquoise Robinson. 

Based on the fact that the plaintiff alleged violation of the dog bite statute, the trial court reasoned that Frances Robinson could not be liable to Destiny Campbell because she didn’t own the dog.  The trial court apportioned $20,000 damages apiece against Turquoise and Frances for emotional distress caused to Alicia Campbell. 

Alicia appealed, complaining that the trial court should have made Frances liable for the $750,000 as well.

Held:   The Court agreed that the $750,000 must be apportioned equally between the Robinsons.  Delaware has long recognized that “when the negligent acts of two or more persons concur in producing a single indivisible injury, such persons are jointly and severally liable, though there was no common duty, common design, or concerted action.”  The joint and several liability of two codefendants, the Court said, entitled a plaintiff to seek recovery from either or both of the defendants, provided that total recovery does not exceed the full amount of damages. At the election of the plaintiff, either defendant may be held individually liable for the entire judgment. 

A default judgment constitutes a final judgment that provides a determination of the merits of a case, and — the Court noted — a defaulting party admits all of the allegations contained in a complaint.  Here, the Court said, its entry of default judgment established that both Robinsons were joint tortfeasors and were jointly and severally liable for all damages arising from both of the claims contained in Plaintiffs’ complaint.  The allegations in the complaint supported joint and several liability, charging wanton and negligent acts by the Robinsons, which combined to proximately cause harm to Destiny and her mother in a manner not “divisible” or separately attributable to either defendant. 

The Court held that the fact that Count I of the complaint was labeled “Count I-Violation of 16 Del.C. §3053F” does not permit Frances to evade joint and several liability to Destiny Campbell.  While she was not the dog’s owner and was not liable under the dog bite statute, Count I nevertheless established negligent and wanton conduct unrelated to the dog bite statute, and made Frances equally liable.

– Tom Root


Case of the Day – Monday, April 23, 2018


Weyerhaeuser Co. bought a big old farm in southeastern Oklahoma for timber operations back in the 1980s. No sooner had it harvested its last tree but next-door neighbor Brantley started taking advantage of the absentee owner.

Not so fast, Mr. Brantley ... it's not quite that easy.

Not so fast, Mr. Brantley … it’s not quite as easy as all that.

Over a 20-year period, Brantley claimed, he had grazed his cattle on the place, even running off hunters authorized to hunt there and denying access to Oklahoma Wildlife officers who had a deal with Weyerhaeuser to open the place as a recreation area. But the farm was a big place and there were a lot of players. Brantley’s father grazed his cattle on the place, too, for awhile, but unlike his boy, Père Brantley had a lease from Weyerhaeuser. Brantley’s brother — cut from the same cloth as Brantley himself — grazed his cattle on the place and claimed a piece of it, too. Even Oklahoma State University had a lease from Weyerhaeuser to use part of the farm as a research facility.

Finally, the time came that Weyerhaeuser was ready to resume timber and gravel operations. it found Brantley to be underfoot, so the company sued him in trespass to remove him from the place. Brantley claimed he owned the place under the doctrine of adverse possession.

No, the Court said, he did not. Adverse possession requires, among other things, that the possession of the land be exclusive. Brantley’s possession of the place was more communal, the Court observed, with other actors coming and going all the time. You just can’t have a committee of people commonly possessing a place adversely. Where two people have entered on land, the one who has the better title is the one in possession. And in this case, that was the guy who occupied the land as lessee. Brantley’s Dad, who had leased the land from Weyerhauser, was the one in possession. Not his piratical son.

Weyerhaeuser Co. v. Brantley, 510 F.3d 1256 (Ct. App. 10th Cir., 2007). Sherrill Farm is located in a scenic portion of southeastern Oklahoma, along the Mountain Fork River and near the Arkansas border. Weyerhaeuser had owned the farm since the early 1980s at least, the entire period of the dispute. Young Carl Brantley claimed he had began grazing livestock on Sherrill Farm as early as 1980-81, although he had never had permission to use it. Since then, Brantley said he had built corrals, feed troughs, and fences on the property. He also removed brush, applied fertilizer, harvested wheat, and maintained roads. Although he installed a locked gate on the farm in the early 1980s, he never paid property taxes on the land. Brantley claimed his adverse possession of Sherrill Farm began in the winter of 1987-88, after Weyerhaeuser last harvested a stand of trees on the property.

During the years Weyerhaeuser used the area for its timber operations, it permitted others to use on Sherrill Farm. Brantley’s father had a license agreement to graze on Sherrill Farm beginning in 1983 until 1992. In 1987, Weyerhaeuser leased parts of Sherrill Farm to Oklahoma State University. OSU planted two research sites in the southern part of Sherrill Farm but made no use of the northern half. OSU complained to Weyerhaeuser about damage to its research plantations from livestock and built a fence to protect the plantations, but it did not seek to have Brantley’s cattle removed from Sherrill Farm entirely. OSU asked Brantley to cease grazing in the leased area, but Brantley was uncooperative. OSU also maintained its own locked gate to Sherrill Farm. Because of this alternative access, Brantley’s gate never prevented OSU or Weyerhaeuser from accessing Sherrill Farm.

In 1998, Weyerhaeuser and the Oklahoma Department of Wildlife Conservation included Sherrill Farm in the Three Rivers Wildlife Management Area. According to the agreement, the general public could access Sherrill Farm for hunting, fishing, and other recreation. Brantley’s locked gate prevented a state wildlife officer from accessing Sherrill Farm during some visits. Brantley testified he saw hunters on the property during this time and asked them to leave. In 2003, Weyerhaeuser granted an easement to another landowner to access her property across Sherrill Farm, but Brantley refused to allow access to the easement through his gate.

You can't adversely possess by committee ...

You can’t adversely possess by committee …

Oklahoma State’s lease terminated in 2004. Weyerhaeuser had to resume timber production and begin gravel mining, but Weyerhaeuser said Brantley’s presence delayed these activities, resulting in monetary damages. In 2006, Weyerhaeuser sued Brantley for trespass.

Brantley asserted adverse possession or prescriptive easement as affirmative defenses. After a trial, the district court entered judgment in favor of Weyerhaeuser. Both the parties appealed. Brantley argued he possessed the land adversely, and Weyerhaeuser complained it should have been awarded $200,000 in lost profits.

Held: Weyerhaeuser’s judgment was upheld, but not the lost profits. Under Oklahoma law, to establish adverse possession, Brantley had to show that his possession was hostile; under a claim of right or color of title; actual; open; notorious; exclusive; and continuous for the full 15-year statutory period.

Weyerhauser owns or controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum's rush.

Weyerhauser controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum’s rush.

The Court found that Brantley did not have exclusive use of property for 15 years – that length of time being the Oklahoma standard (your home state’s period may vary), and thus failed to establish adverse possession of the land. During the 15-year period, Brantley’s father held a grazing lease on property, Oklahoma State conducted activities on the property, Weyerhaeuser conducted activities such as road maintenance and gravel sampling on property, the land was part of a wildlife area managed by the State, it was open to the public, horses not belonging to Brantley grazed on the property and Brantley’s own brother also claimed grazing rights to property by adverse possession. To show exclusive possession, Brantley had to show an exclusive dominion over the land and an appropriation of it to his own use and benefit. Two persons cannot hold one piece of property adversely to each other at the same time, the Court said, and where two persons have entered upon land, the one who has the better title will be deemed to be in possession.

However, Brantley did not have to pay the $200,000 special damages for trespass. A forest manager’s testimony that, but for the presence of Brantley’s cattle, the property owner would have netted $200,000 in profits from gravel mining — based on 150,000 tons during first year and 300,000 tons during second year — was held by the Court to be too uncertain and speculative to support damages award for lost profits. But the award of $10,000 against Brantley based on Weyerhaeuser’s lost timber sales, was reasonable: Weyerhaeuser had previously used the property for timber harvesting, and the property was currently suitable for planting and harvesting. Weyerhaeuser’s witness was a certified forester who had submitted an affidavit identifying methodology for his damage calculations.

– Tom Root


Case of the Day – Friday, April 20, 2018


The old fence marked something ... just not the boundary.

The old fence marked something … just not the boundary.

Poor (and we mean that literally) Mr. Hartshorne. He and next-door neighbor Coldsnow had had some disagreements about the property boundary about 25 years ago or so, and it’s fair to conclude that the Hartshornes probably don’t ask the Coldsnows over for tea and crumpets all that often.

In the late 90s, Mrs. Hartshorne went to her reward. Her death left Mr. Hartshorne saddled with debts, and he sold some of his timber to pay for it. He probably should have had his property surveyed (which would have cut into the timber profits, meager though those might be). Instead, Widower Hartshorne just told the logger that he could log to the old fence, which the Hartshornes had always thought was the property boundary.

It wasn’t. You know how these things go.

Sadly, had the timber sale been enough to cover Mr. Hartshorne’s debts, no one would ever have discovered that some of trees he sold had actually belonged to his neighbor. But the proceeds were a little light. Thus, Mr. Hartshorne divided his property in order to sell some of it off. When you divide property, you have to line up a surveyor. The survey showed Mr. Hartshorne that the old fencerow was not the boundary after all.

His neighbor, Coldsnow (perhaps aptly named for all the sympathy he showed a poor widower), found out the same, and realized that this meant that some of the trees Hartshorne’s logger had cut were on his land. Coldsnow sued for trespass, and asked the court to treble the damages under the Ohio treble-damage-for-timber-trespass statute. The jury agreed with Coldsnow that the cost to restore or replace the timber was $11,500, and that Hartshorne was reckless. The damage award trebled to $34,500.

Hartshorne complained that the proper measure of damages should have been the decrease in value of Coldsnow’s land, and anyway, he wasn’t reckless. He had just made a mistake, and regular negligence did not support treble damages under the statute.

The Court of Appeals didn’t buy it. Coldsnow’s successful conflation of a few isolated border skirmishes over an eight-year period into a boundary war convinced the Court that Hartshorne — knowing of Coldsnow’s prior aggressiveness in enforcing the boundary — should have gotten a survey. Frankly, we suspect that Mr. Hartshorne must not have cleaned up very well for court, because there’s very little in the written decision that supports a conclusion that he acted recklessly, and thus, no other reason the Court should have oppressed him so.

work_for_freeWe don’t think a lot of this decision. The Court is saying in essence that the more unreasonable your neighbor is, the more careful you’re required to be. It certainly makes it hard to define a community-wide standard of care. Because I live next to a sweet old lady who would let me sell her front door if I wanted to, I should be held to a lower standard of reasonableness? That simply does not make sense.

Knowing that your neighbor’s a curmudgeon is hardly a basis for saying that your failure to take his cantankerousness into account is reckless conduct.

Coldsnow v. Hartshorne, Not Reported in N.E.2d, 2003 WL 1194099 (Ohio App. 7 Dist.), 2003-Ohio-1233. Coldsnow sued Hartshorne for cutting down some of the trees on Coldsnow’s property. Hartshorne began to cut down some trees, one of which was near the fence line between his and Coldsnow’s property, in 1991. At the time, Coldsnow complained to Hartshorne about cutting down that tree and Hartshorne stopped cutting down trees near the fence line. In 1995, Hartshorne had problems with people trespassing on his land to hunt. In response, Hartshorne bought some “no trespassing” signs and placed them all around his property. He also spray-painted orange circles on trees near the signs to bring them to people’s attention. Some of the trees he spray painted were on Coldsnow’s property. Coldsnow complained about the signs and the spray paint to the Hartshornes. In 1997, Hartshorne’s wife died, and to pay the bills from her illness, Hartshorne decided to log and sell some of the trees on his property. He hired a forester, to do the logging and agreed to evenly split the profits with the forester.

Lawyers always advise their clients to dress well for court. Maybe Mr. Hartshorne ignored his attorney's advice. What else would account for this whacked decision?

Lawyers always warn their clients to dress well for court. Maybe Mr. Hartshorne ignored his attorney’s advice. What else would account for this whacked decision?

Hartshorne asked the forester to selectively harvest the forest, in order to thin out the canopy to allow smaller trees to grow more quickly. He also showed the forester the property lines and asked him to only log trees more than 15-20 feet away from those lines. He did not have his property surveyed before hiring the forester, instead just showing him an old fence line which Hartshorne believed was the property line. Coldsnow became aware of the tree harvesting when Hartshorne’s property was being surveyed so a portion of it could be sold as another means of paying off his wife’s debt. Coldsnow hired a surveyor, who found that some of the stumps from trees which had been harvested were on Coldsnow’s property. Coldsnow sued, claiming trespass and a violation of §901.51 of the Ohio Revised Code, and Hartshorne claimed adverse possession, a claim that was dismissed before the end of trial. The jury returned a verdict in favor of Coldsnow in the amount of $11,500 as the cost of restoration or replacement, and found Hartshorne had acted recklessly. Accordingly, the trial court granted judgment in the amount of $34,500. Hartshorne appealed.

Held: The jury verdict was upheld. The Court found the jury’s damages award was reasonable and its conclusion that Hartshorne acted recklessly was not against the manifest weight of the evidence. Hartshorne argued that the proper measure of damages was the diminution of value of the real estate because of the logging. But in a case involving a violation of O.R.C. § 901.51, the Court said, the restoration/replacement cost of the trees is a proper measure of damages when the injured party intended to use the property for residential and/or recreational purposes, according to their personal tastes and wishes. As Coldsnow used his property in this way, the Court held, he did not first need to show a diminution in value of the land before receiving restoration damages. The Court found that the jury’s conclusion that Hartshorne acted recklessly was not against the manifest weight of the evidence, because the evidence showed that Hartshorne had a history of ignoring the boundary line between the properties.

– Tom Root