Case of the Day – Monday, April 29, 2019

WHAT THE HECK?

It is almost an anachronism. A Tennessee movie theatre is airing the movie “Hellboy,” but so as not to offend, it has listed the flick on its marquee as “Heckboy.”

“Hellboy,” of course, is a 2019 American supernatural superhero film based on the Dark Horse Comics character of the same name. I know this because I looked it up on Wikipedia, not having any independent knowledge of who this mutt character might be. Heckboy looks like a Hell’s Angel who fell asleep under the summer sun having forgotten his sunblock. But then, the movie industry hardly has me in mind when it looks to get into consumers’ pocketbooks. Lucky for them.

Suffice it to say that my heart warmed that in this raucous day and age, some people still think that “Hellboy” is an offensive term.

I bring this all of this up because of the Heckerts (not a Bowdlerization of “Hellert”), who are the plaintiffs in today’s case. While lacking a sunburn and probably a set of the Hell’s Angels colors, the Heckerts nonetheless were bikers. At least they were until they ran into a tree branch that had fallen over a rural Ohio road. In true, merciless Hell’s Angels fashion, they sued the County and poor old Mary Weinman, who owned the woods in which the limb-shedding tree stood.

But Mary was ready to rumble, and by the time she was done, the Heckerts had had a heck of a time. Mary had no duty to inspect, and because the Heckerts could not show that Mary knew anything about a hazard tree on her land, she owed them nothing.

Truly a heck of a heck of a thing.

Heckert v. Patrick, 473 N.E.2d 1204 (1984). The Heckerts were riding their motorcycle on a country highway in rural Stark County, Ohio, an area of mainly farmland and forest areas. Without warning, a large limb fell in front of their motorcycle. They collided with it, injuring them badly and damaging the motorcycle. They sued Mary Weinman, who owned the land on which the tree stood.

Mary inherited the property from a relative. She lived in an adjoining county, and hardly ever visited the land. She had no idea of any decay or disease in any tree on the property.

A county inspector testified that during the years prior to the accident, he had patrolled the road at least twice a week, and that the tree appeared to be healthy. He said his opinion was that there was no danger of the tree limb falling onto the road. Photographs in the record confirmed this.

The trial court granted summary judgment to Mary and the County (which had also been named as a defendant in the suit).

The Heckerts appealed, and eventually, the case ended up in the Ohio Supreme Court.

Held: Mary and the County were not liable.

The Court held that in Ohio, generally, an urban owner has a duty to inspect his or her trees to ensure they are safe. By contrast, a rural landowner has no duty to inspect every tree on his or her property, but if the rural owner has knowledge — actual or constructive — of a defective condition of a tree that may result in injury to someone using a highway next to the property, the owner must exercise reasonable care to prevent harm from the falling tree or branches.

The Court recognized that suburban sprawl was causing increasing difficulty in differentiating between rural and urban land, but noted the distinction may have more to do with the location of the highway, its size and type, as well as the number of people utilizing it, than any other factors.

– Tom Root

TNLBGray

Case of the Day – Friday, April 26, 2019

MOW MY LAWN

Your neighbor cannot force you to mow his lawn (unless you’re some kind of masochistic marshmallow). So can the city force you to mow its lawn?

Of course not, you snort. “This is ‘Murica. I have rights! They can’t make me do nuthin’!”

“Not so fast,” as Lee Corso might say. Despite the fact that this is ‘Murica, and in ‘Murica the government seemingly cannot conscript you to do its bidding, it turns out that you can be forced to mow the city’s grass in some limited circumstances.

The other day, I talked about the constitutional police power. Today, we see a darker side of it.

Goodenow v. City Council of Maquoketa, 574 N.W.2d 18 (Sup.Ct. Iowa, 1998). The City of Maquoketa, Iowa, enacted an ordinance requiring landowners whose properties were next to a city street to mow grass and trim weeds growing in the City-owned right-of-way, or pay the City to do it. J.E. Goodenow saw it as an unconstitutional a taking of property for private use in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and in violation of article I, section 18 of the Iowa Constitution.

This being ‘Murica, he sued.

Held: A municipality may exercise its police power by adopting ordinances to promote public welfare, to provide for safety and comfort of its inhabitants, and to declare and prevent nuisances. Such ordinances would include the mowing ordinance at issue in this case.

The Supreme Court of Iowa held that in order to be constitutional, an ordinance must have a definite rational relationship to the ends sought to be served by the ordinance.

The Court observed that in Northern Pacific Railway Co. v. Adams County, 138 P. 307 (Wash. 1914), the Washington supreme court upheld a state statute requiring abutting landowners to cut weeds growing along public highways at the landowner’s expense. That decision compared the statute with statutes requiring abutting landowners to remove snow and ice from city-owned sidewalks on their property, reasoning that the policies supporting the snow removal statutes likewise justified requiring abutting landowners to cut weeds along state highways.

Also, the Court noted, in Commonwealth v. Watson, 223 Ky. 427, 3 S.W.2d 1077 (Ky. 1928), a Kentucky court of appeals upheld a statute requiring abutting landowners to cut or clear away weeds and bushes growing along public highways. As in the Washington case, the Kentucky court concluded that it was reasonable to require abutting landowners to clear away weeds along public highways for the same reason that cities had authority to require landowners to remove snow from city-owned sidewalks abutting their property.

Thus, the Court held, that Maquoketa’s ordinance requiring abutting landowners to mow grass and weeds growing on city owned property for the benefit of the public at the expense or labor of the landowners promoted and protected public health, safety and welfare of persons who traveled upon city streets. What’s more, the ordinance was reasonably related to achieving those goals.

The ordinance was a valid exercises of police power, and did not constitute an unconstitutional taking of property without compensation.

– Tom Root

TNLBGray

Case of the Day – Thursday, April 25, 2019

TESTING THE BOUNDARIES

forgot150430Before I forget to do this, I’d like to report on a case of a conveniently-forgetful property owner from the Land of 10,000 Lakes.

Mr. Meixner made an agreement with his neighbor, a sawmill, to replace some boundary fences. The first several fencelines were replaced according to the parties’ agreement, with Meixner and the sawmill sharing the costs. Everything seemed hunky-dory, as they like to say in Minnesota..

Out of nowhere, Mr. Meixner sued, claiming that the sawmill had cut down 73 trees on his land before replacing the second of the three fences.

The sawmill said, “Yup. Sure did.” These Minnesotans are people of few words, when they’re not saying things like “hunky dory.” But the sawmill employee did say, “Had to cut down the trees to build the new fence. Meixner agreed.” Those words were plenty, and the jury found for the sawmill.

On appeal, the Court agreed with the level-headed jurors. It first adopted the general principle that trees on a boundary line are owned in common by the property owners, and neither may cut down a boundary tree without consent of the other. But here, the Court said, it’s pretty clear that the sawmill employees had Mr. Meixner’s OK to axe the trees. After all, the Court observed, Mr. Meixner had given the sawmill permission to build the new fence, and he even shared the cost. If permission is given to enter onto the property to build a new fence, that permission implies authority to do all acts necessary to completion of the task.

Don't you believe it ...

Don’t you believe it …

The sawmill employee said the trees had to go if the new fence was to be built. That evidence was good enough for the Court. Mr. Meixner wanted a fence, so he necessarily wanted the trees cut in order to build it.

Meixner v. Buecksler, 216 Minn. 586, 13 N.W.2d 754 (Sup.Ct. Minn. 1944). Meixner owned property next to a lumber company. He had an agreement with the company to replace old fences standing on the common boundary line.

Meixner and Buecksler, a tenant and employee of the company, built a new east-west fence in September 1938. Pursuant to the lumber company’s direction, Buecksler then cleared out the brush and cut down some trees in preparation for building a new fence to replace the old one which marked the boundary between Meixner’s south forty and the company’s north forty. A survey was made of this line, and thereafter Meixner and Buecksler constructed the replacement fence. A third fence was later completed, marking the east-west boundary.

Meixner contended that Buecksler and the company unlawfully cut 73 trees on his property prior to building the north-south fence, and that such acts were done without his knowledge or consent, and constituted trespass. The lumber company claimed Meixner had consented to clearing away the brush and cutting the trees, and that such acts were necessary in order to carry out the mutual plans to build the fence. The jury found for the defendants.

Meixner appealed.

Held: The appeals court upheld the verdict. It found that trees on boundary line are common property of the adjoining landowners which neither may destroy without consent of other. However, trespass is not committed if there is permission or consent to do acts complained of, which consent may be implied from circumstances, and the jury was entitled to find that the Defendants had Meixner’s consent.

Generally, the Court said, permission to do a particular act carries with it authority and right, by implication, to do all that is necessary to effect principal objects and to avail licensee of his rights under license. Meixner’s agreement with Buecksler and the company for building a line fence between the adjoining properties carried with it by implication the right to do such things as were reasonably necessary in order properly to build the fence, including the cutting of trees on boundary line.

Meixner had asked the court to award him treble damages under the Minnesota statute in wrongful cutting. The court declined, pointing out that there had to be damages in order to treble them, and Meixner simply had none.

– Tom Root

TNLBGray

Case of the Day – Wednesday, April 24, 2019

THE POWER TO DESTROY

A news story yesterday picqued my interest. Everyone knows that the Tree of Heaven, sometimes more accurately called the “tree of hell,” is an aggressive and invasive species. Likewise, everyone knows that the spotted lanternfly is a noxious pest.

It seems Pennsylvania may declare the TOH to be a noxious plant because – in addition to all of the other excellent reasons to try to tear it out by the roots and burn it – the Tree of Heaven is a favorite host of the spotted lanternfly. Being introduced to the noxious plant list won’t be enough to require Pennsylvania landowners to eradicate the Tree of Heaven wherever it is found, but what if it Pennsylvania ordered it?

The Commonwealth’s noxious plant list is a textbook example of the police power, not necessarily the guys with fast cars, flashing lights and doughnuts, but rather the basic right of governments to enact laws and adopt regulations for the benefit of their communities. Under the system of government in the United States, only states have the right to make laws based on their police power. The lawmaking power of the federal government is limited to the specific grants of power found in the Constitution.

Could Pennsylvania use its police power to force the homeowner who planted a row of trees of heaven in his front yard – if such an idiot exists – to tear them out without compensation?

Eighty years ago, in Miller v. Schoene, the U.S. Supreme Court upheld the constitutionality of a Virginia law requiring landowners to destroy cedar trees to stop the spread of cedar rust. The rust didn’t hurt the cedar trees at all, but it was devastating to apple orchards. The Commonwealth would not pay the owners for the loss of their trees.

The Supremes held that Virginia was within its rights to issue the order. The Commonwealth was “under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity… When forced to such a choice a state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.”

The high court said there was a public interest in the preservation of the apple crop over the cedars. And where the public interest is involved, “preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.”

A more current application of the police power of the government to order the emergency abatement of a threat, relying on the Miller ruling, happened 18 years ago, when five beetles went on a walkabout.

In re Property Located At 14255 53rd Ave S., Tukwila, King County, Washington, 120 Wash.App. 737, 86 P.3d 222 (Court of Appeals, Washington, March 22, 2004). Three citrus long-horned beetles were found in a Tukwila nursery in August 2001, in maple tree bonsai stock imported from Korea. One beetle was a pregnant female. Because there were eight beetle exit holes on the stock, five beetles had presumably escaped from the quarantine area. In fact, one was seen flying away from the nursery. The discovery of the accidental escape was alarming because the beetle, a major pest of citrus, also feeds on many other trees, including apple and other fruit trees as well as alder, willow, oak and some conifers. Eventually the beetle kills all host trees.

The Governor proclaimed an emergency in June 2002 and authorized the Department of Agriculture to implement the eradication plan. The Department immediately began to remove trees. The landowners within the one-eighth mile radius found themselves in the predicament that through no fault of their own, their lovely trees had become a threat to the community because of their susceptibility to being commandeered by a noxious pest. The Department established a $100,000 fund for the purchase of replacement trees and other vegetation for yards and gardens, and arranged to supply landowners with vouchers that could be used to obtain various non-host species of vegetation from participating nurseries.

These efforts to mitigate the effect of the eradication plan fell short of what several landowners regarded as fair. The landowners took the position that they were constitutionally entitled to just compensation before their trees could be destroyed. Targeted for destruction on land belonging to Sheila Malbrain and Lee Terrell were fruit trees, flowering plums, poplar trees, rose and lilac bushes, azaleas, and fir trees their arborist valued at a total of $116,262. Seven fruit trees on Carl Gorgey’s land were valued at $4,430. Six broadleaf trees on land belonging to Ralph and Thelma Kissinger were valued at $17,215.

The Department sought administrative warrants to gain entry to the respondents’ properties. The superior court found that the warrants were supported by probable cause. The court made an unchallenged finding that the beetle constituted an “extreme threat to the interests of the state” and that the Department acted reasonably in its response to this threat. The court nevertheless ruled that destruction of the trees was a compensable taking, and conditioned the issuance of the warrants upon the landowners first being compensated.

Held: The Court followed Miller v. Schoene and applied the law of necessity, holding that in meeting an emergency — such as fire, flood, or pestilence — public officials and private citizens may employ almost any available means in an endeavor to control the danger.

The Court ruled that not eradicating the trees constituted a noxious use of property — a nuisance, if you will — because of the risk the healthy tree might become a host to the beetle. Although the landowners complained they had to bear a disproportionate cost of the State’s response to the threat, the Court of Appeals held, as in Miller v. Schoene, that the State of Washington had to make a choice to address the threat, and “when the private sacrifices that must be made to defeat a public enemy are not evenly distributed, the Constitution will not necessarily compel an equalizing adjustment.”

Interestingly, both the Supreme Court in Miller and, seventy years later, the Washington court in Tukwila, suggested that the law of necessity was related to the law of nuisance. Both recognize the obligations of property owners to each other and to the community. The power that the State possesses to prohibit uses of property that injure health, morals, or safety of the public is not burdened with the requirement that the State must compensate individual owners for the losses they sustain because they cannot use their property to inflict injury upon the community.

– Tom Root

TNLBGray

Case of the Day – Tuesday, April 23, 2019

YOUR MOTHER WEARS COMBAT BOOTS

boots150429We’re offering up a little slug of neighbor law today, actually ‘neighbor-denouncing-neighbor’ law. Who knew that such dry topics as beachfront preservation and development could be flash points for acrimony?

In today’s case from New York State, the debate – and we can’t tell for sure what it was about, although it included beaches, landscapers and trespass – devolved into name calling. And that was when someone’s skin got a little thin.

Contrary to popular belief, slander isn’t an easy thing to prove, and it’s even harder to prove that the slander was collect damages from. So what if Arnie Saltzman called Phil Galasso “no good” and a “criminal” and “connected?” The Court ruled it was protected opinion, and even if it weren’t, Phil couldn’t show that Arnie actually knew what he said was false.

The decision is kind of curious, because the Court seemed to apply a First Amendment standard to slander that is usually reserved for the news media, not private spats. But it was clear that the appellate court found the complainant, Mr. Galasso, not to be guilt free. The Court noted that he could have been prosecuted for criminal trespass, and implied that the fact that he was not should be victory enough.

slander150429Galasso v. Saltzman, 839 N.Y.S.2d 731 (N.Y.A.D. 2007). In the context of a heated dispute among residential property owners in Sands Point, a beach community in Nassau County, Phil Galasso allegedly committed criminal trespass on Arnold Saltzman’s yard by removing trees and a fence. When he threatened to do more, Arnie obtained a cease-and-desist order.

Subsequently, Arnie allegedly said that he was intent on “getting” Phil Galasso, who was “no good” and “a criminal.” He alleged that Phil was “engaged in criminal conduct” and had “committed crimes” against Arnie’s property in an effort to “destroy both our properties and our beach.” Arnie also claimed that he had had Phil “checked out, and I don’t care if he’s connected, I’m going to get him.”

true150429The statements were made to a former neighbor, a current neighbor and a local businessman. Phil conceded that he held meetings with the subdivision neighbors to explain his protest actions.

When the trial court denied Arnie Saltzman’s efforts to get Phil’s slander action dismissed, Arnie appealed.

Held: The Court dismissed Phil’s complaint in its entirety. The Court said that given the subjective context and the facts underlying Arnold Saltzman’s statements, the statements constituted opinion and were not actionable as a matter of law.

When Saltzman said

When Saltzman said “connected,” he wasn’t talking about the electric company.

Arnie’s listeners were familiar with the issues in dispute and with the positions of each side. His references to criminality referred to the arguable criminal trespasses on his property and on common areas of the subdivision.

The Court did find that the record did not offer a reasonable basis for interpreting the statements to imply that Arnie knew of additional, undisclosed facts regarding Phil’s purported criminality. But even if the statements were not protected opinion, the Court ruled, Phil’s general allegations that Arnie’s alleged lies had hurt his reputation and subjected him to scorn and hatred were insufficient to support his slander claims.

A viable slander claim requires allegations of special damages, such as economic or pecuniary loss. And Arnie’s use of the term “connected,” generally referring to an affiliation with organized crime, did not constitute slander per se (something exempt from the requirement that special damages be pled).

Finally, the evidence did not show that Arnie’s statements were made with “actual malice,” that is, with a reckless disregard for the truth or with knowledge that it was false. Rather, the Court said, the statements were made in the context of Phil’s purported demolition and reconstruction activities, for which legitimate issues of fact existed: the question of whether they were authorized by the Village in each instance and whether they encroached upon Arnold Saltzman’s property rights.

For that matter, the Court said, Phil could arguably be subject to prosecution for felonious criminal mischief.

Quit while you’re ahead (or, at least, not yet behind), Phil.

– Tom Root

TNLBGray

Case of the Day – Monday, April 22, 2019

LOOKING FOR THE DEEP POCKET

deeppocket150424In the legal world, a “deep pocket” – or sacculus profundis for you Latin scholars out there – is a defendant who possesses the wherewithal to pay a big damage award and who has the misfortune to be related to the plaintiff’s claim sufficiently enough to get a court to order the purse to be opened. Generally, the deeper the pocket (and the greater the dearth of alternative deep pockets), the more willing a plaintiff is to stretch the claim to encompass the deep pocket’s participation. Today’s case illustrates the point.

The Nelsons needed to have their trees trimmed, so they called Julian Rodriguez Landscape and Tree Service, the same tree service they and their neighbors had used many times before. The outfit seemed competent and efficient, and the Nelsons found over the years that they could simply tell the tree service owner what they wanted, and he’d make the decisions on how to do it.

During the course of the Nelsons’ dealings with Rodriguez Landscape, no one had ever asked whether the company was licensed. That, after all, was more a state requirement than a practical one. Julian Rodriguez Landscape and Tree Service did good work, and the price was right. What more does a homeowner need to know?

On the day in question, however, things didn’t go so well. Luis Flores, one of Julian’s workers, was using a polesaw when it came into contact with a high voltage line, killing him. Unsurprisingly, investigation bore out that Rodriguez Landscape had cut a few corners, technicalities such as obtaining a state license and paying workers’ compensation on its employees. Sadly, the late Mr. Flores left a family was left without a breadwinner, and no money would flow from the nonexistent workers’ comp to compensate the survivors for their loss.

Luckily for the Flores next-of-kin, they hired a creative personal injury lawyer whose ad probably ran on daytime TV and appeared on the back of the phonebook (remember phonebooks?). Their lawyer correctly identified the Nelsons and their homeowners’ insurance policy as the only money tree available for trimming by the Flores family. Thus, he put together a wrongful death action for the family that argued that (1) under California workers’ comp law, homeowners who hire unlicensed contractors are deemed employers of the contractors’ workers for workers’ comp purposes; and (2) an obscure California criminal statute made workers and employers criminally liable if any tools came within six feet of a high voltage line. Therefore, the Flores’ legal theory went, the Nelsons – as de facto employers of Mr. Flores – were liable to his family because he died when he touched the high voltage line.

The Flores family couldn’t sell this very creative theory to the trial court, but the California Court of Appeals loved it. Unhappy with the gossamer thin argument connecting them to Mr. Flores’ accident, the Nelsons took the issue to the California Supreme Court.

The California Supreme Court let reason prevail. The purpose of the statute, the Court said, was to protect third parties from injury because a tree trimmer’s equipment comes into contact with a high voltage line. The statute was never intended to protect a worker who foolishly contacts a power line by letting him or her collect from the employer for the worker’s own negligence. That being the case, the Court said, it wasn’t necessary to figure out whether the homeowners would be considered Mr. Flores’ employer as a matter of law.

Proper use of a polesaw ... which did't happen in today's case.

Proper use of a polesaw … which did’t happen in today’s case.

A lesson here: In California – in fact, anywhere – a prudent homeowner will make sure the arborist or tree service contractor is licensed, regardless of whether a license has anything to do with competence or skill. And service providers should volunteer to customers proof of their credentials, not just because it looks professional, but because it’s the kind of attention to detail now that helps avoid lawsuits then.

Julian Rodriguez didn’t pay attention to detail, and the Nelsons never asked. Years of expensive litigation resulted, and at the end of the day, the Flores widow and kids were left destitute. In fact, the only people who were better off for it all were the lawyers.

Ramirez v. Nelson, 44 Cal. 4th 908, 80 Cal.Rptr. 3d 728, 188 P.3d 659 (Sup.Ct. Cal. 2008). Homeowners Thomas and Vivian Nelson had a number of trees, including a large eucalyptus tree, in their back yard. Every few years, Southern California Edison trims the eucalyptus tree trimmed so that its branches do not reach the very visible high voltage electrical lines that run above the tree. When Southern California Edison’s tree trimmers gave the Nelsons notice they would trim the eucalyptus tree in 2004, but failed to show up when they were expected, the Nelsons hired Julian Rodriguez Landscape and Tree Service — an unlicensed contractor, although the Nelsons didn’t know this — to “top” and trim several trees in their backyard, including the eucalyptus tree. The Nelsons and their neighbors had used Rodriguez Landscape four or five times in the past to top and trim trees, and everyone thought the company did professional work trimming trees.

The Nelsons left it to Rodriguez’s good judgment as to how, or to what height, to top and trim the trees, and they neither supervised the trimming, nor did they furnish the tools for the job. A few hours after the job began, Mrs. Nelson heard men shouting and saw them running to the eucalyptus tree. She went out onto her deck, and saw tree trimmer Luis Flores hanging in the eucalyptus tree from his safety harness. He had been had been killed by electrocution when his polesaw – made of aluminum and wood – contacted the power lines.

Luis’s family sued the Nelsons, alleging negligence and wrongful death. The Flores argued that the Nelsons knew the high voltage lines constituted a dangerous condition on their property, knew the utility company responsible for the power lines had in the past trimmed the tree on which the decedent was working when electrocuted, and knew or should have known Rodriguez and his workers were unlicensed contractors. Nonetheless, the Flores asserted, the Nelsons negligently failed to warn or act as reasonable homeowners would have acted under similar circumstances in contracting with Rodriguez to trim the tree in question.

The Flores family argued that California Penal Code §385(b) made it a misdemeanor for any person, either personally “or through an employee,” to move any tool or equipment within six feet of a high voltage overhead line. They contended that the late Mr. Flores had been the Nelsons’ employee by operation of law under Labor Code §2750.5, making the Nelsons vicariously liable for any breach of the duty of care embodied in the law.

The Nelsons argued they had hired Rodriguez Landscaping to perform domestic tree trimming services, that Mr. Flores was contractor Rodriguez Landscaping’s employee, not theirs; that they didn’t owe him a duty of care under §385(b), and that the duty of care owed to him was simply that of reasonable homeowners acting under circumstances similar to those giving rise to the fatal accident.

Mr. Flores’ status as the homeowners’ “employee at law” under Labor Code §2750.5 was pivotal to the contested claim that the homeowners should be found liable. The trial court refused to allow the plaintiffs to refer to Mr. Flores as the Nelsons’ employee, and refused jury instructions on Penal Code §385(b) or plaintiffs’ proposed negligence per se theory of the case.

The jury found for the Nelsons.

The Court of Appeal reversed the judgment, concluding Mr. Flores was the Nelsons’ employee at law under Labor Code §2750.5, and that Nelsons were liable for violating the statutory duty of care embodied in Penal Code §385(b). The Nelsons appealed to the Supreme Court of California.

Held: The Nelsons were not liable. The Supreme Court held that even if they were deemed to be the employers of Mr. Flores because they had hired an unlicensed contractor to trim trees — for purposes of liability for workers’ injuries — they owed no statutory duty of care under Penal Code §385(b).

Under the test for a statutory presumption of a failure to exercise due care based on violation of a statute, the Court said, a trial court must determine as a matter of law whether the death or injury resulted from an occurrence of the kind which the statute was designed to prevent, and whether the person suffering the death or the injury was one of the class of persons for whose protection the statute was adopted. If a plaintiff is not within the protected class of persons that a statute was designed to protect, or if the injury did not result from an occurrence of the nature which the transgressed statute was designed to prevent, then the statutory “negligence per se” doctrine has no application to the negligence claim.

The

The “reasonable man” – he wears both a belt and suspenders.

Here, the statute prohibiting moving tools and equipment within six feet of power lines augments the common law “reasonable person” standard of care owed to the general public with regard to the activity of moving or operating equipment in close proximity to power lines, by setting forth a standard of care making it a misdemeanor to move or operate tools and equipment within six feet of a power line, and by assigning strict liability for its violation.

The standard of care imposed by the statute amplifies the duty owed by people using tools or operating equipment near power lines to anyone in the world at large who might be injured by such conduct. However, it did not protect Mr. Flores from himself, and it certainly did not create a separate duty or standard of care owed by an employer to an employee engaged in the operation of tools or equipment in close proximity to high voltage lines. The statutory standard did not prescribe any particular course of conduct employers must take, or refrain from taking, in order to ensure their employees’ safety, or establish any standard of conduct with regard to supervision of employees engaged in such activity.

– Tom Root

TNLBGray140407

Case of the Day – Friday, April 19, 2019

THEY’RE BA-A-A-ACK!


Yesterday, we reported on the 2008
Gertz v. Estes decision, in which the Gertzes were told to remove their 8-foot tall “spite fence.” Why anyone thought that people who (a) built nail-studded fences; (b) peered at their neighbors with an array of surveillance cameras that the NSA would covet, or (c) heckled the Estes family with a PA system, would be impressed with a court order is a good question. You can just hear them through the loudspeaker:Court order? I don’t need no stinkin’ court order.”

A “spite fence,” after all, isn’t something that one constructs accidentally, or even negligently. Why the Gertzes should be expected to pay attention to some old fool in a black robe …

Hadrian's Wall - Did the Picts think it was a "spite fence?"

Hadrian’s Wall – Did the Picts think it was a “spite fence?”

Ever since the first recorded “spite fence” – not including Hadrian’s Wallwas first used by San Francisco millionaire Charles Crocker to try to force a neighbor to sell his property for the construction of the Crocker Mansion – “spite fences” have required intent.

You have to intend to harass a neighbor with the fence. And if you set out to harass and oppress, it’s not terribly likely that you’re going to be brought up short by some man or woman in a fancy black robe.

Charlie Crocker's fence (highlighted in orange) - definitely a "spite fence."

Charlie Crocker’s fence (highlighted in orange) – definitely a “spite fence.”

The Gertzes ignored the 2008 court order until the Estes family dragged them back into court. That was when the Gertzes suddenly announced that they had lopped off the top two feet of the fence. Now it was only six feet tall, studded with nails and festooned with more surveillance devices than the Trump Tower. “Gee,” the Gertzes told the trial court, “now it’s under seven feet – guess it’s not a ‘spite fence’ anymore.”

The Court did what courts do – used procedural rulings to achieve substantive ends. The Court ruled that the Gertzes were trying an “end run” on the prior decision, when they should have raised the reduced height on appeal. Thus, the Gertz motion was thrown out. The Court made clear that the Gertzes’ real problem was that they hadn’t read the 2008 order carefully: it wasn’t the height of the fence alone, it was the intent and the ugliness that made it a “spite fence.” It was still a “spite fence,” albeit it a shorter one. The fence still had to go.

Gertz v. Estes, 922 N.E.2d 135 (Ind.App. 2010). The unsavory neighbor Gertzes had been told to take down the “spite fence” which separated their home from the Estes property. The fence was a doozy, too – while the Gertzes had gotten permission from the town to build a 7-foot tall fence, they had put up an 8-foot fence just a few inches from the property line, studded it with thousands of nails protruding on the Estes side, painted “no trespassing” and “do not climb” notices all over the fence, and equipped the structure with surveillance cameras. There was a PA system, too, which the Gertzes used to make disparaging comments to and about the Estes family on various occasion.

The Berlin Wall - President Reagan could have said, "Mr. Gorbachev - tear down this 'spite fence'!"

The Berlin Wall – President Reagan could have said, “Mr. Gorbachev – tear down this ‘spite fence’!”

After a bench trial, the trial court found that the “fence was maliciously erected and now maintained for the purpose of annoying the Estes family” based upon the “course of conduct exhibited by Gertze [sic] toward Estes.” Holding that the fence was thus a nuisance, the court ordered the Gertzes to remove it. For good measure, the judge found that the “surveillance of the Estes property and the use of a loudspeaker to harass and annoy Estes constitute[d] an invasion of privacy” and said that all had to go, too.

The Gertzes appealed the trial court’s order, arguing that: (1) the trial court erred by applying the “spite fence” statute to them because they had obtained a local permit for the fence; and (2) the trial court erred by finding that the fence was unnecessary and that the public address system was used to make disparaging comments about the Estes family. The trial court was upheld in Gertz v. Estes, 879 N.E.2d 617 (Ind.Ct.App.2008), and the Indiana Supreme Court denied further review.

On September 12, 2008, the Esteses filed a petition for rule to show cause. The Esteses alleged that the Gertzes had failed to remove the fence, cameras, or public address system and had continued to harass and threaten them. The Gertzes answered by asking the trial court to let them remove the top one foot of the fence rather than the entire fence. The Gertzes said they had already removed the top two feet of the fence, so it was no longer a “spite fence.”

The trial court found that cutting a foot off of the top of the fence didn’t comply with the prior order, because the fence’s height was only one of the factors making it a spite fence. The trial court concluded that the “fence is, and remains, a nuisance.” The Gertses appealed.

Held: The Gertzes’ reduction of the fence’s height didn’t matter: the fence had to go. The Court noted that Indiana Code Section 32-26-10-1, which governs ”spite fences,” provides: “A structure in the nature of a fence unnecessarily exceeding six (6) feet in height, maliciously: (1) erected; or (2) maintained; for the purpose of annoying the owners or occupants of adjoining property, is considered a nuisance.”

The Court held that the Gertzes were just asking for a mulligan. Their petition was really just a motion for relief from the 2008 judgment under Indiana Trial Rule 60(B), and that rule won’t serve as a substitute for a direct appeal. The Gertzes filed a direct appeal of the trial court’s order requiring them to remove the fence. Although the trial court’s remedy of removal of the fence was an issue available to them, they did not raise any argument on appeal about keeping the fence if they only reduced the height.

What’s more, the trial judge’s order that they remove the fence was not based solely upon the height, but instead on a variety of factors. The appellate court held that the Gertzes showed nothing justifying the extraordinary remedy of modification of the trial court’s judgment.

Meanwhile, the Estes – who had had enough of the expensive litigation – argued that they were entitled to appellate attorney fees because the Gertzes’ appeal was meritless. The court was hesitant to award such fees where the appeal was not “utterly devoid of all plausibility.” The Court said that although “the Gertzes’ brief fails to fully comply with the Appellate Rules and that their argument on appeal fails, we cannot say that their arguments were ‘utterly devoid of all plausibility’.” It refused to order the Gertzes to pay the Esteses’ fees, but cautioned “the Gertzes that future court filings against the Estes family could be considered harassment and result in various sanctions, including but not limited to an award of attorney fees.” The Court “encourage[d] the Gertzes to fully comply with the trial court’s order and protective orders.”

Good luck with that.

– Tom Root

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