Case of the Day – Friday, March 8, 2019


nag150327Today, we continue our consideration of the problem posed by Tracy from Pinebark, New York. You recall Tracy’s problem from yesterday: the neighbor’s arguably dead tree fell on her car, crushing it. She and her husband are tenants, and her landlady’s insurance carrier won’t cover the damage because it says the tree was dead. The neighbors’ insurance company won’t cover because it says the tree was alive. Tracy’s arborist agrees with her landlady that the tree was quite dead, and the neighbors appear to have had actual knowledge from work done by a previous arborist they had hired that the tree was a hazard.

Yesterday, we discussed why Tracy’s local lawyer should argue that the neighbors are liable, no matter what their skinflint insurance carrier may say. But Tracy, who understandably is looking for as many deep pockets as she can find, has asked whether her landlady is liable as well, because she knew the neighbor’s tree was a hazard but she never informed the neighbor of that fact. And that raises a very interesting (and rather creative) question.

Once again, we warn Tracy that we are not New York lawyers, and we are not rendering legal advice. She should see her local attorney for that. That being said, there’s not much guidance in New York law for her problem. A landlord who holds her land open to the public is under a legal duty to exercise reasonable care under the circumstances to maintain the premises in a reasonably safe condition. This duty is usually discussed in the context of landlords who don’t keep their premises secure against reasonably foreseeable criminal acts by third parties (locked doors, security cameras and the like). The duty “imposes a minimum level of care on landlords who ‘know or have reason to know that there is a likelihood that third parties may endanger the safety of those lawfully on the premises’.”

sign150327A landlord must anticipate the risk of harmful acts of third persons, adopting the duty of care set out in the Restatement (Second) of Torts § 344: a landlord must exercise reasonable care to discover that such harmful acts are being done or are likely to be done, give an adequate warning, or otherwise protect the visitors against it.

Most of these principles address the landlord’s duty to warn tenants and invitees of harmful conditions. Even if this created a duty on the part of the landlord to warn Tracy and her husband that the neighbor’s tree might fall, it doesn’t necessarily mean that the landlady had a duty to Tracy that required her to tell the neighbors that they had a dangerous tree on their hands. We just can’t find any holdings that create such a duty.

One part of the reason might be the futility of it. Telling the neighbor that he has a danger tree on his land that might someday injure the landlord’s tenant doesn’t really get anyone anywhere, because the landlord is without any power to remove or trim the tree herself (it was well within the neighbor’s premises). The landlord might have sued the neighbor for maintaining a private nuisance, and may have won a judgment against the neighbor — especially after limbs fell from other trees last summer, causing damage to the landlord and the tenant — but the likelihood that the suit would have been successful is problematic.

Another part of the reason might be Palsgrafian causation. Just like Mrs. Palsgraf in the famous Long Island Railroad case, the causation link — the landlady’s failure to warn the neighbors led to the tree falling and the injury — is pretty tenuous.

A third problem lies in Tracy’s analysis of her status as a tenant. As a tenant, she has the exclusive right to possession of the property. If the landlady had a duty to tell the neighbor about a danger tree on the neighbor’s property, we would be very surprised if Tracy didn’t have as much of a right and duty as did the landlady to tell the neighbor about the tree. Likewise, we would be surprised if Tracy couldn’t have maintained the private nuisance action against the neighbor themselves to force removal of the tree. Generally speaking, having the right of possession of a piece of real estate is a powerful club, one which lets the possessor wield nearly as much power as does the titleholder. In this case, we suspect that Tracy herself had the power to do what she complains her landlady didn’t. And clearly, she had as much knowledge of the tree’s condition as her landlady did.

And that brings us to the final point. Tracy makes a compelling case that the neighbors knew all about the condition of the dead tree. Their agent, the tree surgeon, certainly knew as well, because he had removed a diseased bough, and that knowledge is imputed to the neighbors. If the neighbors had gotten a report from the arborist on which they refused to act, it’s pretty hard to argue convincingly that things would have changed if the landlady or Tracy had also told the neighbors what they already knew: the tree was dangerous and should be removed.

Causation and foreseeability are often wrapped in the same package. In a New York case we’ll consider today, Mr. Fleury knew that his big ol’ apple tree was pretty close to the power line running to his house. Well, nature’s bounty — a really good apple crop — caused the tree to fall over partially, and the tree touched the wires. Mr. Fleury called the power company and said, “You need to fix this!” The power company said, “Nope, it’s your wiring from the transformer to the house. You fix it.” Mr. Fleury didn’t, and within about 10 days, the tree on the wires caused a short circuit.

appletree150327But, electricity being the capricious thing it is, it didn’t hurt Mr. Fleury. Instead, a “backfeed” went through the transformer and down his neighbor’s lines, setting fire to the neighbor’s place 165 yards away. Should Mr. Fleury be liable? He would have been if it had burned his own house. The Court said it all depended on whether Mr. Fleury could reasonably foresee that his procrastination at getting the tree trimmed might have the effect it had.

How likely is it that a court find that the landlady’s failure to hector her neighbor about a tree the neighbor already knew was a hazard would foreseeably lead to Tracy’s car being crushed? Probably not very. Such a holding would open the floodgates, making homeowners everywhere liable to their invitees if they were deemed not to have nagged their neighbors sufficiently over conditions which the homeowner had no power to correct. For example, we live on a side street where a neighbor has a testosterone-driven teenage son. He recklessly speeds his old junker of a car up and down the street. If we get run down by the lad, would we be liable on a claim that we had been negligent because we never complained to the boy’s mother about the kid’s speed? It seems an awful lot like “blame the victim.”

Certainly, Tracy should ask her local lawyer about her claim against the landlady. But we think it’s a stretch the courts won’t buy.

Allstate Ins. Co. v. Fleury, Slip Copy, 2007 WL 1200137 (N.D.N.Y. Apr. 20, 2007). A fire took caused substantial damage to the Thaddeus Jastrzab residence. Allstate Insurance paid the Jastrzab claim, and then sued Niagara Mohawk Power Corporation and Jim Fleury, the next-door neighbor. It seems the fire started at the Jastrzab home, but it was caused by a “backfeed” from the NiMo transformer that fed both the Jastrzab and Fleury homes. Fleury had an apple tree that had grown near the lines for years without trimming. About 10 days before the fire, a large apple crop on the tree partially uprooted it, and caused a limb contact the electric wires feeding Fleury’s house. Fleury asked NiMo to fix it, but NiMo said Fleury owned the electric wires and was responsible for their upkeep. Fleury said he was concerned that the tree limb’s touching the wires might cause a fire, but he did nothing more after NiMo passed the buck.

fire150327After the Jastrzab fire, an investigation found that the backfeed was caused by a tree limb that touched the old-style two-wire system, forcing the wires into mutual contact. The contact energized the neutral line owned by NiMo, which dumped excess current through its transformer and down the electric lines supplying the Jastrzab home. The electricity caused the grounding wire to overheat and arc onto Jastrzab’s roof. The fire was intensified by the fact that Jim Fleury’s home was not adequately grounded at the time, sending the electricity to look for a ground at the Jastrzab’s place. The trial court found that neither Fleury nor NiMo liable for the damages caused by the Jastrzab fire. Allstate moved for reconsideration.

Held: Allstate loses. Allstate complained that the Court inaccurately applied the law of negligence and foreseeability to the facts in this case. It argued that the Court was wrong when it found that the fire at the Jastrzab residence was not a reasonably foreseeable consequence of Fleury’s failure to remove the apple tree limb from his power lines. Allstate argued that the “precise occurrence” did not have to be foreseeable in order for liability to be imposed on Fleury. Fleury would have been liable if the fire started at his house, Allstate said, and therefore, liability should be imposed for the fire that started 165 yards away.

The Court disagreed. The proper focus of the inquiry is on the foreseeability of the risk. This is an essential element of a fault-based negligence cause of action, because the community deems a person at fault only when the injury-producing occurrence is one that could reasonably have been anticipated. Although virtually every untoward consequence can theoretically be foreseen “with the wisdom born of the event,” the Court said, the law draws a line between remote possibilities. No person can be expected to guard against harm from events that are so unlikely to occur that the risk would commonly be disregarded.

The precise manner in which the harm occurred need not be foreseeable, but still, the Court held, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty requires on to try to prevent. Here, no fire took place on the Fleury property. Instead, it started 165 yards away. No one reasonably foresaw that happening.

The law draws a line between remote possibilities and those that are reasonably foreseeable. Here, the likelihood that Defendant Fleury could have foreseen the chain of events – that the tree limb touching his power lines might create an electric backfeed fire that damaged the Jastrzab residence – was too tenuous and remote to permit recovery under a negligence cause of action.

– Tom Root


Case of the Day – Thursday, March 7, 2019


Mailbag140924Today we go to the mailbag!

Today we consider an interesting problem, this one submitted by alert reader Tracy of Pinebark, New York. Tracy reports that “our neighbor’s old dead tree came down across our parking area, totaling both our cars. Their insurance company denied the claim saying no one notified them and that it was a live tree. My landlady’s insurance company denied the claim saying it wasn’t her tree, so she wasn’t responsible. She knew about the problem trees on their property and didn’t notify them. I need to get some sound legal advice and the NY state statutes to show first that the neighbor should have done something and that my landlady should have notified them that they should do something. Help!! Thanks so much.”

So, someone owes Tracy money.  But who?

Now this guy played a New York lawyer on TV - but Tracy needs to get one who, while not so photogenic, has a real New York license hanging on the wall.

Now this guy played a New York lawyer on TV – but Tracy needs to get one who, while not so photogenic, has a real New York license hanging on the wall.

First, our obligatory disclaimer, Tracy. We’re not New York lawyers, and for that matter, we don’t even play them on TV. For sound New York legal advice, you should consult a local attorney. Not Sam Waterston, either. But right now, get out your yellow pad and take down a few concepts to pass on to your solicitor.

There are two problems to contemplate here. First, what responsibility do the neighbors have? And second, what liability does your landlady have?

First, the neighbors: You reported that in the past year, a branch from the tree crushed your gazebo tent and another took out part of your landlady’s shed. You also said your landlady’s insurance company adjuster said it wasn’t her responsibility because the neighbors’ tree was dead. You told us that you agree with the dead tree analysis, because you had an arborist inspect the tree and arrive at the same conclusion. In fact, you reported, the neighbors have had work done on the tree before, so they had certainly had constructive notice of its precarious condition. But you say the neighbors’ insurance company asserts the tree was alive, so the neighbors aren’t liable. You think the insurers may be dissembling.

An insurance adjuster lie? Horrors!

An insurance adjuster tell a lie? Horrors!

We are shocked, shocked we say, by the suggestion that insurance companies would prevaricate! Let’s consider New York law with respect to the neighbors. In Ivancic v. Olmstead, the Ivancic boy was hurt when a branch fell from the Olmsteads’ tree. The Court held that a property owner has no duty to consistently and constantly check all trees for nonvisible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. If visible evidence of decay is present, the failure to inspect won’t be a defense.

We don’t think you’re quite correct on your mention of “constructive notice.” “Constructive notice” means the neighbors reasonably should have known. It’s much like if you’re sitting in your windowless cube at the office, and you see 10 co-workers get off the elevator, shaking water off umbrellas and removing water-spotted raincoats. You don’t have actual notice that it’s raining, but any reasonable person should be aware its probably raining just based on what you’ve observed. That’s constructive notice.

She's walking down the hall carrying a wet umbrella. Might it be raining outside?

She’s walking down the hall carrying a wet umbrella. Might it be raining outside?

Your neighbors, on the other hand, probably had actual notice, which you would have if you wandered into the corner office and saw the rain falling outside the window. Because the neighbors’ tree experts had removed one side of a “y” prior to the tree falling, they undoubtedly saw the decay and heard the arborists’ report. They didn’t have to know that the tree has to be dead — just that it was decaying in such a manner as to create a foreseeable risk.

If we were cynical, we’d suggest the neighbors’ insurance company is “gaming” you. Perhaps the adjusters figure that if it denies ten claims, some of the claimants – say four or so – will give up.  Six will press on.  By denying everything initially, the insurance company has cut its exposure from 10 claims to six. No claims examiner gets promoted for paying claims, we might suggest. If we were cynics. Which we’re not.

Your local lawyer might want to collect a good, written report with photos from your certified arborist, add to it observations that the neighbors were on notice of the tree’s condition, and write to the neighbors’ insurance company. It would be good not to feed your lawyer before he or she contacts the carrier, so he or she is especially grumpy. If that doesn’t work, your avenue for relief is going to court. We would strongly urge you to use legal counsel rather than trying to represent yourself in small claims court. It’s not that we get a commission from referring you to counsel. If we did, we’d send you to our Uncle Fred (who’s a pretty good mouthpiece). But you hired an arborist, so you already know the value of hiring people who know what they’re doing. You shouldn’t stop now.

You also asked about going after your landlady for not telling the neighbors they had a problem. That’s a fascinating question, one we’ll take up tomorrow.

Ivancic v. Olmstead, 66 N.Y.2d 349, 488 N.E.2d 72 (1985). Ivancic was working on his truck in the driveway of his parents’ home in Fultonville. Since 1970, Olmstead had owned and lived next door. A large maple tree stood near the border of the two properties, and its branches extended over the Ivancic land. During a heavy windstorm, an overhanging limb from the tree fell and struck Ivancic, causing him serious injuries. He sued, maintaining that the branches hanging over his parents’ property constituted trespass, and that the Olmsteads were negligent. The trial court refused to instruct on the trespass claim, but the jury found against the Olmsteads on negligence. The Olmsteads appealed.

Held:   The verdict against the Olmsteads was reversed. The Court held that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition of the tree. Ivancic made no claim that the Olmsteads had actual knowledge of the defective nature of the tree, and presented no evidence that the Olmsteads had constructive notice of the alleged defective condition of the tree. None of the witnesses who had observed the tree prior to the fall of the limb saw so much as a withering or dead leaf, barren branch, discoloration, or any of the other indicia of disease which would alert an observer to the possibility that the tree or one of its branches was decayed or defective.

Tracy - watch the insurance adjuster's nose carefully while he or she explains that the tree was healthy.

Tracy – watch the insurance adjuster’s nose carefully while he or she explains that the tree was healthy.

The Court held that as to adjoining landowners, a property owner has no duty to consistently and constantly check all trees for nonvisible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. Ivancic’s expert surmised that water invaded the tree through a “limb hole” in the tree, thus causing decay and a crack occurring below. But he admitted that the limb hole was about 8 feet high and located in the crotch of the tree which would have made it difficult, if not impossible, to see upon reasonable inspection. Although, the Court said, there may have been evidence that would have alerted an expert that the tree was diseased, there was no evidence that would put a reasonable landowner on notice of any defective condition of the tree.

Thus, the fact that Mrs. Olmstead testified that she did not inspect the tree for over 10 years was irrelevant. On the evidence presented, even if she were to have inspected the tree, there was no indication of decay or disease to put her on notice of a defective condition so as to trigger her duty as a landowner to take reasonable steps to prevent the potential harm.

As for the trespass, the Court held that the Olmsteads didn’t plant the tree, and the mere fact that they allowed what appeared to be a healthy tree to grow naturally and cross over into the Ivancic parents’ property airspace, could not be viewed as an intentional act so as to constitute trespass.

– Tom Root


Case of the Day – Wednesday, March 6, 2019


Evil-Spawn-1Mrs. Dahlquist and her evil spawn, Jeff Zube, lived in pretty close proximity to several neighbors, including the Careys. The constant obscenities, threats, spitting from balconies onto the neighbors, rotten eggs and lit cigarette butts got a little wearing on the Careys. They finally sought an anti-harrassment order under a California statute — Section 527.6 of the Code of Civil Procedure — to get Ma Dahlquist’s gang of two to stop.

Common law provides no remedy to restrain a neighbor who unfortunately has a sewer for a mouth and a tar pit for a soul, sad to say. Statutes like the California’s CCP § 527.6 are not all that common, but they are becoming more and more so, because – and here we can all bemoan the erosion of the Republic – neighbors like Joe and Dorothy (who’ll mow your lawn for you and deliver warm brownies from time to time – are getting to be scarcer, and next-door harridans like Ms. D and her whelp are becoming more common.

The lesson in today’s case is that if you’re going to be nasty to one neighbor, be sweet to the others. If you’re a jerk to everyone, expect some piling on. Not surprisingly, that happened here: complainants against Ms. Dahlquist and fil came out of the woodwork, with everyone on the block more than happy to cite the constant bird-flipping, the obscene insults and the general squalor that surrounded the harpie and her mordent boy.

CarrieDahlquist and Zube of course denied everything. Movie fans will remember the memorable Blues Brothers scene with Jake Blue (John Belishi) telling a gun-totin’ Mystery Woman (Carrie Fisher) that “it wasn’t my fault!” In the face of rather detailed, graphic even, descriptions of the Dahlquist/Zube misconduct by the neighborhood, the trial court didn’t believe a word of it.

BelushiThe Dahlquist/Zube gang appealed. Appellate courts expect that, winner or loser, a party will give the court a reasonably complete and balanced assessment of the record below. Not Dahlquist and Zube. If the fact didn’t fit with their world-view, they just left it out. That didn’t leave much in their recitation of the “facts.” The Court of Appeals wasn’t detained long by this creative pleading: it held that the record below amply made out a pattern of harassment that was such that would cause a reasonable person to suffer substantial emotional distress. It certainly did for the Careys, and the Court found that under the circumstances, a three-year order was fully justified.

Carey v. Dahlquist, 2007 Cal. App. Unpub. LEXIS 10631, 2007 WL 4555793 (Cal.App. 1 Dist.)  Dahlquist and Carey live next door to each other in Sausalito, California. Dahlquisht’s 19 year old son, Zube, lives with her. Carey filed a § 527.6 petition alleging that, among other things, her neighbor Dahlquist screamed obscenities at her and used “constant foul language, verbal comments (‘this is war’) and written threats.” Dahlquist had also “ordered tree people onto my property and cut down (removed two 30 ft high trees).” Carey requested an order that Dahlquist stay away from her, and that “she not be able to come out on her deck and scream obsenities [sic] at me or my husband as I go up and down my stairs.” In addition, Carey asked the court to order that Dahlquist “not hire workmen to come onto my property and destroy my property” and that she “pay for the survey and replace the trees she removed.”

The same day, Carey filed an application for a temporary restraining order against young Zube, alleging that in a two-page list of “confrontations” with Zube, that he had thrown eggs from his balcony, shouted obscenities at her husband as he came up the stairs, threw poppers onto the stairs while Carey and her husband were walking up the stairs, made “exceptional noise” from Zube’s stereo, and that on multiple occasions when lighted cigarette butts were found on the wooden stairs at Carey’s house. Neighbors provided affidavits complaining of similar acts.

The record also contained a declaration from Jeff Zube’s father claiming that Carey was a chronic complainer, and anyway, young Zube would be leaving soon for Santa Barbara to attend college. Nevertheless, the trial court granted the petition as to both Zube and Dahlquist, holding Zube had “an out-of-control and extremely disrespectful side of you and I’ve seen it in court, and I’ve heard it from the testimony.” The court found that Carey and her witnesses were credible and that the testimony of Dahlquist and Zube was not. It issued a 3-year restraining order, and Dahlquist and Zube appealed.

restraining-order1Held: The order was upheld. Section 527.6 provides that a person who has suffered harassment as defined in the statute may seek an injunction prohibiting harassment as provided in this section. “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff. A “course of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail.

The Court decided that Carey had provided clear and convincing evidence of a knowing and willful course of conduct by Dahlquist. She described confrontations with Dahlquist in which Dahlquist threatened legal action against her and shouted obscenities at her husband as he came up the stairs. Carey found Dahlquist’s behavior threatening. Carey’s neighbor testified that he, too, had been on the receiving end of threatening and harassing behavior from Dahlquist, including her falsely accusing his wife of leaving an obscene message on her voice mail. The Court held that the trial judge had found substantial evidence on which the base the issuance of a permanent injunction.

badpennyAs for Zube, the evidence established that he had thrown lighted cigarettes on the wooden stairs leading to Carey’s home, that he had spit on the deck, and had thrown poppers on the stairs while Carey was walking up them and also shouted obscenities at Carey. Neighbors confirmed that this sort of behavior had been directed at them as well. Substantial evidence, therefore, supports the trial court’s issuance of the permanent injunction. The continuing course of harassing conduct by Zube and Dahlquist left both Carey and her husband fearful and distressed. This showing was sufficient to indicate a reasonable probability that the course of conduct would continue into the future. It didn’t matter that Zube was leaving for college. The trial court found his other testimony lacked credibility, and the Court of Appeals said it was entitled to disregard his representation that he was leaving.

Even if he did, like bad penny, he’d probably return.

– Tom Root

Case of the Day – Tuesday, March 5, 2019


Abe Lincoln could have been talking about Mr. Victor, who has a real dummy for a client.

Abe Lincoln could have been talking about Mr. Victor, who has a real dummy for a client.

Honest Abe Lincoln was right: Mr. Victor had a first-class knucklehead for a client. The old lawyer’s proverb warns that “The man who is his own lawyer has a fool for a client.” Today’s case from Iowa puts meat on those bones.

Mr. Victor’s car was hit by a truck at an intersection. That kind of thing happens on a daily basis. After the crash, he took matters into his own hands. That does not.

Usually, people use lawyers for that kind of thing. Back when we had phonebooks, the solicitors we needed were on the back cover soliciting us. Those guys usually take cases like this one on a contingency basis, meaning that they don’t get paid unless you win.

Of course, lawyers tend to be picky about the kinds of personal injury actions they will bring, , for the same reason that more people bet on the horse “California Chrome” than lay money down on “Old Glue Factory.” Who wants to waste time and money?

Maybe Mr. Victor didn’t like lawyers. Maybe (as is more likely), no attorney would touch the case from a remote control bunker in the Amazon rain forest. For whatever reason, Mr. Victor represented himself. Apparently subscribing to the old Vladimir Ilyich Lenin maxim, “Quanity has a qualtity all its own,” Mr. Victor sued the other driver, the company that owned the truck the other driver was operating, the property owner whose trees allegedly obscured the stop sign, the county for poor maintenance of the intersection, and the state for poor design of the road. Certainly someone in that thundering herd must have a fat wallet. 

Mr. Victor did it all in federal court, no doubt because suing in federal court sounds a whole lot cooler than suing in state court. And it is, too, except for those pesky rules about jurisdiction and sovereign immunity. Guess he only skimmed those chapters in Personal Injury Law for Dummies.

You thought we were kidding? There's really such a book ...

You thought we were kidding? There really is such a book …

By the time the Court was done, the State of Iowa was dismissed as a defendant, as was the property owner. In fact, the only defendant left was the County, which was unable to prove that its tree-trimming practices were a discretionary function. Still, Mr. Victor got pretty badly decimated, proving once again that there’s a reason trained professionals cost money – it’s because they know what they’re doing.

Victor v. Iowa, 1999 U.S. Dist. LEXIS 23530, 1999 WL 34805679 (N.D. Iowa, 1999). A car driven by Martin L. Victor collided with a truck driven by Ronald Swoboda and owned by the Vulcraft Carrier Corp. The accident happened at the intersection of County Road C-38 and U.S. Highway 75. Then the fireworks started.

Victor, acting as his own lawyer, sued the State of Iowa, Plymouth County, Vulcraft and adjoining property owner Elwayne Maser in U.S. District Court. Vic apparently alleged (1) that “Iowa law regarding the right to sue private property owners for negligence is unconstitutional;” (2) that Victor should be allowed to sue Maser for acting negligently in failing to trim vegetation that obstructed his view of southbound traffic on U.S. Highway 75; (3) that the State of Iowa and Plymouth County acted negligently by failing to properly maintain a roadway, investigate the accident thoroughly, and place warning signs and markings appropriately; (4) that the highway patrol failed “to perform duties of safety officers, in assessment of dangerous conditions existing;” and (5) that Vulcraft is responsible for its driver’s failure to follow safety standards for commercial trucking. All the defendants moved to dismiss or for summary judgment.

Held: The State of Iowa was dismissed, because the Iowa Tort Claims Act, which gives permission to residents to sue the State, limits those actions to state court. The Court held that the 11th Amendment to the U.S. Constitution barred actions in federal courts against States except under narrow exceptions. One of those is that the State have given a waiver and consent that is clear and express that it has waived sovereign immunity and consented to suit against it in federal court. Although a State’s general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment. In order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court, and the ITCA does not do so. Therefore, Victor’s claims against the State of Iowa was dismissed.

It was just your basic accident ... until Mr. Victor made a federal case of it.

It was just your basic accident … until Mr. Victor made a federal case of it.

As for the property owner Maser, the Court ruled that Iowa law put no duty on a private property owner to remove trees which obstructed the view of a highway. Although Victor claimed the Iowa law on the matter unconstitutionally deprived him of the right to sue, he never explained why. The Court observed that “while mindful of its duty to construe pro se complaints liberally, it is not the job of the court to ‘construct arguments or theories for the plaintiff in the absence of any discussion of those issues’… Besides the bare assertion that the Iowa law is unconstitutional, Victor has provided no other discussion of the issue.” Thus, the property owner Maser was dismissed as a defendant.

Victor’s claims that Plymouth County was negligent in failing to install proper warning signs and cut tree branches that obstructed his were not dismissed at this point. Section 670.4 of the Iowa Code exempts a municipality such as Plymouth County from liability for discretionary functions, if the action is a matter of choice for the acting employee, and — when the challenged conduct does involve an element of judgment — the judgment is of the kind that the discretionary function exception was designed to shield. Here, Plymouth County’s policy directed that employees “may trim branches of trees because the trees may constitute an obstruction to vision of oncoming traffic at an intersection,” thus giving employees discretion in implementation of this policy. Thus, the Court said, “the action (or inaction) of which Victor complains was a matter of choice for the county’s employee.”

However, the Court said, Plymouth County’s policy did not encompass “social, economic, and political considerations” and therefore the discretionary function exception does not apply. Victor could proceed with rebutting the County’s claim that the view was not obstructed.

– Tom Root


Case of the Day – Monday, March 4, 2019

Toga, Toga!!

AnimalHouse150306So you heard about the sweethearts of Sigma Chi? The story broke a few years ago about how the Sigma Chi frat brothers at Southern Methodist University – who lived off campus in an upscale place called Maison des Animauxharassed the O’Connells, their next-door neighbors, for sport. Oh, the highjinx of these fun-loving rascals! Among other pranks, they liked to urinate on the O’Connells’ fence, write obscenities in the snow in their yard, spit on the O’Connell house and throw raw meat onto the patio (prime cuts of beef, we hope).

It all started with a noise complaint, something to do with the brothers’ 24/7 partying. As the Grinch might have said, “The noise, noise, noise, noise, noise!” Mr. O’Connell said he “brought it to their attention and said ‘you can’t do that.’ They told me they pay rent and they can do whatever they want. It’s their right.”

The O’Connells now, after a year of abuse, had the media worked into a righteous froth. So that should take care of that. But were the brothers right? Can they do whatever they want until you’re finally able to get a crew from Action News to show up with cameras and a scowling investigative reporter?

Consider the poor aggrieved neighbors, the Rileys, in today’s case. They didn’t have an Eyewitness News crew. But they did have a lawyer. The house next door to the Rileys was owned by a landlord who rented it to some dopers. But not just any dopers. This wasn’t just boom boxes blasting the Grateful Dead and the wafting smell of freshly decriminalized marijuana. Nope, the neighbors here were good capitalists, appearing to run a brisk retail operation, with traffic at all hours of the night and unsavory customers. Imagine a 24-hour McDonald’s drive-thru window, but handing out nickel bags instead of Big Macs and Eggs McMuffin. [Editor’s note – we had a lively debate over how to pluralize McDonald’s famous breakfast sandwich. The Editor won.]

The traffic was accompanied by the screeching of tires, the occasional and casual vandalism toward the Rileys’ property, cursing and shouting, and the discharge of firearms. Someone even shot the Rileys’ dog.

Now we’ll put up with a lot, but we won’t put up with that. You shouldn’t shoot a dog. The Rileys felt the same. They complained in winter 1999, but nothing changed. The police raided the place, but all they found was some personal-use marijuana. The Rileys complained to landlord Richard Whybrew again. The Attorney General complained to Mr. Whybrew. Nothing happened. Mr. Whybrew said the tenants were paying their rent, so he wasn’t going to do anything. Apparently, he believed that money talks, and neighbors walk.

Riley v. Whybrew, 185 S.W.3d 393 (Ct.App.Tenn. 2005). The Rileys lived in a house in a subdivision next to a house Richard Whybrew leased to the Parkers. Problems ensued.

Shortly after the Parkers moved in, the Rileys began experiencing problems with their tenant neighbors. A high number of unknown persons would come to the Parkers’ house at all hours of the day and night, with horns honking, tires squealing and loud voices. They would drive up, engage in a brief conversation or transaction with a resident at the Parkers’ home, and leave after a few minutes. The Rileys overheard many conversations about the sale of drugs, as well as frequent profane and abusive language. On several occasions, firearms were discharged at the Parkers’ residence at various times during day and night. Some activities were directed toward the Rileys: chemicals were put in their gas tanks, a laser pointer was aimed at Timothy Riley, personal property was stolen from the Rileys’ home, and when the Rileys were seen by the Parkers or their visitors, they were taunted, cursed at or stared at menacingly. The Rileys’ dog was even shot by a visitor to the Parkers’ home.

A month later, the police conducted a raid on the Parkers’ residence, and Marina Parker was arrested for possession of marijuana. Despite the arrest, the disturbing activities at the Parkers’ home continued. As a result, the Rileys employed an attorney to notify Whybrew of the problems. In February 2000, the attorney sent Whybrew a letter informing him that his rental property was “being used for illegal activities, in violation of the housing and zoning codes, and probably in violation of the terms of [the] lease.” Later that month, Whybrew received a letter from the director of the Narcotics Prosecution Unit of the Office of the Shelby County Attorney General about the drug trafficking. The letter noted that the amount of controlled substance found at the Parkers’ home was not enough to compel Whybrew to evict the Parkers, but stated that Carter wanted Whybrew to be aware of the situation. A year later, the Rileys again complained to Whybrew, who said the Parkers had a lease and paid their rent on time, and he did not plan to take action against them.

Of course, sometimes your neighbor's harassment is a little more subtle ...

Of course, sometimes your neighbor’s harassment is a little more subtle …

The Rileys sued Whybrew, the Parkers, and ten “John or Jane Doe” defendants, seeking damages for infliction of emotional distress and asking for abatement of the nuisance. Whybrew asserted that the other defendants were the sole cause of any injuries suffered by the Rileys. Whybrew maintained that the Rileys failed to state a claim upon which relief could be granted and asked the trial court to dismiss the complaint. The trial court granted summary judgment to Whybrew.

Held: The case was reinstated, and the Rileys were entitled to a trial. The Court of Appeals found that a material question of fact existed as to whether Whybrew negligently allowed the tenants’ illegal behavior to continue, and that issue precluded summary judgment against the Rileys on their nuisance claim. The Court agreed that even if Whybrew had had knowledge of his tenants’ illegal activities – including drug use, discharging firearms and harassment – his failure to stop the Parkers’ activities could only be characterized as negligence. Thus, as a matter of law, it could not constitute the intentional infliction of emotional distress.

However, the claim of negligent infliction of emotional distress was related to the claim of negligence for landlord’s failure to abate the nuisance caused by the Parkers’ illegal activities, and as such, the Rileys’ claim for damages for emotional distress was not a stand-alone claim, and could be heard even absent expert medical testimony as to their damages. Most importantly, the Court ruled, while Whybrew argued that there was no breach of any duty to the Rileys because there was no proof that he was aware of the Parkers’ illegal activities until February 2000 (and the Parkers moved from the residence after being served with this lawsuit two months later), it disagreed and held that the Rileys had established a genuine issue of material fact on the claims of maintaining a nuisance and negligent infliction of emotional distress, sufficient to withstand a motion for summary judgment.

The case went back to trial.

– Tom Root


Case of the Day – Friday, March 1, 2019


I do not often report on a case that is probably destined for the dustbin of history, but then, these are unusual times, an era in which every Democrat who has announced for president is backing a Green New Deal that will cost America trillions to banish non-renewable energy.

“You’re getting a little political, there, aren’t you, tree man?” readers are probably muttering. I am not saying that political wunderkind AOG is wrong… just that use of renewable energy is primed to become a national priority. In today’s case, from 33 short years ago, access to sunshine was not a right that a landowner could assert against a neighbor whose trees had gotten too tall. I do not think that a California court today would reach the same conclusion, more’s the pity.

Sher v. Leiderman, 181 Cal.App.3d 867 (Ct. App., 6th District, 1986). In 1962, Rudolph and Bonnie Sher entered into a long-term land lease with Stanford University for a lot on the Stanford campus in an area known as Pine Hill 2, one of five model planned subdivisions developed by Stanford for use by faculty and staff. All building and landscaping on subdivision lots was subject to Stanford’s prior review and approval. Shortly after the Shers’ plans were approved, Herb and Gloria Leiderman leased an adjacent lot. They in turn obtained design approval for their home and proceeded with construction. Both families moved into their new homes in 1963 and have lived there ever since.

The Shers’ lot sits on the northeast slope of a hill. The Leidermans’ lot is southwest of the Shers’ and occupies the upper slope and the crest of the hill, fronting on Lathrop Drive. The two lots share a common boundary along the Shers’ southern — and the Leidermans’ northern — property line.

The Shers’ home was designed and built to take advantage of the winter sun for heat and light. The home is oriented on the lot so as to present its length towards the south. South-facing windows are relatively larger than others in the house. The south side of the house is also “serrated” to expose the maximum area to the sun. A large south-facing concrete patio operates to radiate sunlight into the home’s interior. Skylights add to the light inside the house and an open floor plan in the common areas increases the general circulation of light and air. Roof overhangs are designed at an angle and length to block the hot summer sun while permitting winter sunlight to enter the house. Roof and walls are well insulated. Deciduous trees and shrubs along the southern side of the house aid in shading and cooling in the summer but allow winter sunlight to reach the house.

The Sher home is a “passive solar” home., with design features and structures identified forming a system intended to transform solar into thermal energy. A concomitant design goal was to create a bright and cheerful living environment. Although the home includes many passive solar features, it does not make use of any “active” solar collectors or panels. Nor does it employ any “thermal mass” for heat storage and distribution. Building materials used throughout were typical and conventional for the time; the house does not contain any special materials primarily selected for effective thermal retention.

At the time the Shers and Leidermans designed and built their homes there were no trees on either lot. But over the years both the Shers and the Leidermans, as well as their neighbors, landscaped their properties. As noted above, the Shers’ landscaping was designed to enhance and complement their home’s effectiveness as a solar system. The Leidermans’ landscape plan was disapproved in part by the Stanford housing office, specifically because of trees to be planted along their northern property line bordering the Shers’ lot.

Despite the lack of approval, the Leidermans planted the trees, including a large number of Monterey pine, eucalyptus, redwood, cedar and acacia. The trees were planted to beautify the Leiderman property, to attract birds and other small creatures, and to provide shade and privacy, not with any intent on the Leidermans’ part to deprive the Shers of sunlight.

In 1972, the Shers discovered that some of the Leiderman trees cast shadows on the Sher house in the wintertime. The Shers paid to have the offending trees topped. In 1977, several other Leiderman trees were removed because their continued growth posed a threat to the sewer line. The cost of this removal was shared by the Shers and Stanford. Further tree work was done at the Shers’ expense in the winter of 1979. The Leidermans themselves also engaged in other tree trimming and removal over the years at a cost of about $ 4,000. Since 1979, however, the Leidermans refused trimming, either on their own or in cooperation with the Shers.

At time of trial, trees on the Leiderman property completely blocked the sun to much of the Sher home in the winter months. From December 21 to February 10, the central portion of the Sher home was cast in shadow between 10 a.m. and 2 p.m. The Shers added a skylight over their kitchen area to help alleviate the problem, but now this too is largely shaded during the winter.

The shade problem transformed the formerly cheerful and sunny ambience of the Sher home; the interior is now dark and dismal in the winter months. The shading has also had an adverse impact on the home’s thermal performance. The Shers’ expert testified that heat loss during the winter months amounted to an equivalent of $30 to $60 per season in heating costs. Two experts testified that the loss of sunlight to the Shers’ house has resulted in a diminution of market value between $15,000 and $45,000. The trial court also found that the Shers have suffered actual and serious emotional distress as a result of the blockage of sunlight to their home.

In order to restore sunlight to the Sherså’ home during the winter months it would be necessary to trim some of the Leidermans’ trees, top others and remove those where topping would destroy the character of the tree or possibly kill it. Annual trimming would also be necessary.

The Shers sued, claiming the Leidermans’ trees were a private nuisance; a public nuisance under the California Solar Shade Control Act (Pub. Resources Code § 25980); and negligent infliction of emotional distress. The trial court found for the Leidermans.

The Shers appealed.

Held: The Leidermans did not owe a duty to the Shers, and their trees were not a nuisance just because they blocked the sunlight.

The trial court found that the relief requested by the Shers would amount to burdening the Leiderman property with a permanent easement for passage of light to the Sher property. It is well settled in California, however, that a landowner has no easement for light and air over adjoining land in the absence of an express grant or covenant. Nuisance law likewise holds that blockage of light to a neighbor’s property, except in cases where malice is the overriding motive, does not constitute actionable nuisance, regardless of the impact on the injured party’s property or person.

The public interest in promoting solar energy, the Court said, did not justify creating a private cause of action in nuisance by one neighbor against another for obstruction of light to a house designed to take advantage of winter sun for heat and light. Each landowner’s right to use his property lawfully to meet his legitimate needs is a fundamental precept of free society, and, although his use may be made subject to limitations for the public good, it cannot be said his rights as to adjoining landowners are thereby diluted.

The general rule is that in determining whether any interference with use and enjoyment of land is unreasonable a court must balance the gravity of the harm against the utility of the conduct. As for the value of solar energy, it is solely within the province of the Legislature to gauge the relative importance of social policies and decide whether to effect a change in the law so as to create a private cause of action in nuisance for blockage of light to a neighbor’s property.

The California legislature has created an exception to established nuisance law in the Solar Shade Control Act, Pub. Resources Code, §§ 25980-25986 The Act prohibits landowners from planting or allowing a tree to grow which will shade more than 10 percent of a neighbor’s solar collector during certain hours of the day. The Court observed that judicial expansion of the law would be unwarranted, whether it constitutes a limitation on legislative protection of solar access or the initial phase of a more comprehensive legislative plan to guarantee solar access, particularly where legislative solutions are feasible as shown by legislation enacted by another state.

The Court said that allowing a landowner to bring a nuisance action to prevent a neighbor’s blockage of sunlight to the owner’s property would violate established principles of due process and property law, which require that a property owner or prospective purchaser have notice of limitations on the use of his property. Zoning and other local ordinances provide such notice as do the recording laws, while abatement through a nuisance action does not. Furthermore, creation of such a cause of action would foster ill will and proliferate litigation between neighbors.

In an action to enjoin a public nuisance under the Solar Shade Control Act, Pub. Resources Code, §§ 25980-25986, the windows and skylights could not be construed as solar collectors as defined in Pub. Resources Code, § 25981, which includes in its definition a structure or part of a structure used primarily as part of a system which makes use of solar energy for space heating or cooling. Although the windows and skylights were intended to catch the winter sun and provide warmth to the house, this was not their primary purpose. Furthermore, inclusion of portions of a house such as the windows, walls, roof, patio, and skylights as within the act’s definition of solar collectors would impose upon the local law enforcement agencies responsible for enforcing the act the enormous task of determining whether a portion of a house was actually a solar collector whenever it was not readily identifiable as such.

In determining whether the Legislature intended the term “solar collector” in the Solar Shade Control Act to include passive solar collectors such as windows and skylights, Pub. Resources Code, § 25980 is not controlling. That section speaks of imposing only specific and limited controls on the shade cast by trees and shrubs on solar collectors. The Legislature’s intent to exclude passive solar collectors from the act’s coverage is also established by the requirement of § 25981 that structures must be primarily used as solar collectors to be included within the act’s coverage.

Finally, in their action for negligent infliction of emotional distress, the Shers proved they had suffered emotional distress due to the fact that trees planted on the Leidermans’ property had grown to the point that they shaded the south-facing windows of the Shers’ house, making it gloomy and cold during the winter months. Nevertheless, the trial court properly denied the Shers any recovery, where the injury causing the emotional distress was only to their property, where there was no trust, contractual, or other special relationship between the parties giving rise to a duty on defendants’ part, and where defendants had acted reasonably in planting trees on their property and allowing them to grow.

– Tom Root


Case of the Day – Thursday, February 28, 2019


Denise Pevarnek’s agent chopped down her neighbors’ trees so she’d have a better view of the river. The neighbors complained (surprisingly enough), but Denise steadfastly ignored their remonstrances. The neighbors then sued, but Denise ignored the summons. She finally decided to start paying attention after a default was entered against her and the trial court intended to assess treble damages against her in the amount of $77,000.

YouSnoozeYouLoseDenise tried futilely to undo the consequences of her earlier indolence. Alas, a stitch in time saves nine. The Court ruled that she had had plenty of notice, but her decision to ignore the lawsuit was her problem, and undoing the default she so richly deserved would have turned her problem into her neighbors’ problem. And they were already smarting from the loss of their trees.

Of interest in the case — one argument Denise included in her scattershot but untimely defense — was her contention that the cost to replace the trees wasn’t the right measure of damages, and that the trial court was wrong to rely on an affidavit of an arborist that didn’t explain in detail how he had arrived at the damage costs. The Court rejected this, saying that in the case of trespass, the measure of damages is either the reduction in value of the property, or — where the property can be repaired — the cost to fix things. The goal of the damage award, according to the Court, is to come as close as possible to compensating the owner for the damages, and trial courts have a lot of latitude to choose the method that seemed more reasonably calculated to do so.

The affidavit, the Court noted, laid out the expert’s education and experience, showed that he had inspected the damaged real estate. and proposed a reasonable strategy for repairing the harm. The arborist listed what had to be done and how much he’d charge to do it. It might not be perfect, but perfection is often the enemy of “good enough.” The affidavit, the Court ruled, was “good enough.”

Stitch2The Court reminded the defendant that if she really had found the damage showing to be flawed and superficial, she could have come to the hearing and contested it. Snooze and lose, indeed.

Bologna v. Pevarnek, 2007 Mich. App. LEXIS 2689, 2007 WL 4207801 (Mich.App., Nov. 29, 2007). Denise Pevarnek hired Chester Damiani to clean up her property. He was zealous to a fault, deciding that to improve the view of the Detroit River from her adjacent lot by cutting down trees belonging to her neighbors, the Bolognas. Believing that Denise and Chester’s conduct was baloney, the Bolognas sued for trespass, alleging that the destruction reduced the value of their property and exposed a view to Pevarnek’s unsightly neighboring property and asking for $28,000, trebled by Michigan’s wrongful cutting statute to $84,000.

Denise Pevarnek was served with the lawsuit, but she didn’t answer. As is customary when that happens, the Bolognas got a default judgment. Thereafter, they presented an affidavit of a certified arborist that the cost of landscape restoration was $24,050. At this point, Denise took notice, and began taking action to defend, seeking to have the default undone. The trial court refused, and it entered judgment against her for $77,730. Pevarnek appealed.

Held: The judgment was upheld. Much of the case revolves around whether Denise  should be relieved from her default judgment. The Court of Appeals ruled, in essence, that she knew about the suit and did nothing. In other words, “you snooze, you lose.” But of interest in the area of tree law was Denise’s claim that the trial court was wrong in using the cost of replacing the trees as a measure of the damages the Bolognas suffered. The Court of Appeals said where the wrong consists of a trespass to property resulting in an injury to the land that is permanent and irreparable, the general measure of damages is the diminution in value of the property. If the injury is reparable or temporary, however, the measure of damages is the cost of restoration of the property to its original condition (if less than the value of the property before the injury).

perfectThe rule is, however, flexible in its application. The ultimate goal is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss. Here, the Court said, given the fact that the Bolognas’ trees could be restored, it was proper for the trial court to use the cost-of-restoration method.

Pevarnek argued that the trial court erred by adopting without question the assertion of alleged damages without sufficient foundation. The plaintiff had filed an affidavit of arborist Steve McCollum, who swore that – in order to return the property to its pre-trespass condition, that is, with no view of Pevarnek’s property – 12 new trees had to be planted, some existing trees had to be replanted, the over-pruned trees had to be removed, and the lawn had to be repaired. He stated that the total cost of this work was $24,050. The trial court awarded plaintiffs damages of $77,730, equal to three times the sum of the cost of work proposed by McCollum and $1,860 for the cost of a privacy fence. Although McCollum’s affidavit didn’t explain how he calculated the damages, he stated his qualifications and education, he said he had personally inspected the Bologna property, assessed their needs, specifically listed the work to be done, and listed the cost for his business was to complete it. The Court said the expert affidavit put forth a reasonable basis for the damage computation, and that was enough.

– Tom Root