Case of the Day – Wednesday, October 11, 2017

WHERE THERE’S SMOKE, THERE’S FIRE

fire160805Although it’s a little late for vacation season, because it is getting cooler (and darker earlier), a roaring blaze in the backyard fire pit may sound like a good idea. As a public service, we thought we’d give all you happy campers a surprising and useful piece of information: campfires can be hot, even when you can’t see flames.

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

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

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

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

Darn good advice...

Darn good advice…

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

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

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

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

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

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

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

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

– Tom Root
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Case of the Day – Tuesday, October 10, 2017

A TREE GROWS IN BROOKLYN – AND THAT’S DIFFERENT

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

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

I hear the ALI singing ...

I hear the ALI singing …

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

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

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

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

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

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

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

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

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

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

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

Held: The appellate court reinstated the lawsuit.

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

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

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

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

– Tom Root
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Case of the Day – Friday, October 6, 2017

GIVE ‘EM AN INCH, THEY’LL TAKE A MILE

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

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

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

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

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

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

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

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

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

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

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

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

nopruning141229

The neighbors won… but the matter wasn’t settled in court. That means that come the next blackout, the chainsaws could be unleashed again.

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

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

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

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

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

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

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

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

The plaintiffs appealed.

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

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

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

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

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

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

– Tom RootTNLBGray140407

Case of the Day – Thursday, October 5, 2017

UNLIKELY HERO MEETS LIKELY DUNCE

Tequila Isaacson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

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