Case of the Day – Wednesday, February 21, 2024

Posted on February 21, 2024 by TLRoot tagged.

NO GOOD DEED…

Regular readers of treeandneighborlawblog.com know that many benefits usually flow to Harry and Harriet Homeowner from hiring an independent contractor to remove a tree. Primary among those advantages is that if (or maybe “when”) things go south on you – such as the tree falls on somebody’s house or a tree service employee takes a header from 100 feet up – you, the homeowner, aren’t liable.

Alas, this isn’t always true. If Harry and Harriet have superior knowledge of the particular latent danger that causes an injury to the contractor, they may be liable. Likewise, if Harry can’t keep his nose out of things, and starts participating in the tree removal, he may be liable for injuries resulting from injecting himself into the contractor’s work. Generally (and reasonably), however, the law protects people who hire the experts and then leave them alone to do their jobs.

So what was Tony Cox’s problem? First, he was a tightwad, not wanting to drop a grand on removing a hazardous tree. So instead of hiring the experts, he decided to cut it down himself. After all, he had a saw and gravity to assist him. What could go wrong?

Then, there was Tony’s acrophobia. To solve this problem, he recruited his neighbor Dick Strayer. Dick wasn’t afraid of heights. He climbed radio towers for a living (usually using a safety rig that attached to the towers). Plus, he cut down trees on the side.

Hey, Dick, Oscar Wilde (or maybe Clare Booth Luce, who knows for sure?) said no good deed goes unpunished. What do you suppose he meant by that?

Dick and Tony began cutting. Dick was in the tree because Tony, as we mentioned, was afraid of heights. Dick was sawing away on a limb when something happened. No one really saw the accident, but everyone saw Dick, as well as the decayed limb he had been sawing, on the ground.

Of course, a lawsuit ensued because otherwise, we would not be writing about this tragedy-in-a-teapot to begin with. Dick claimed Tony was liable for his injuries because Tony did not tell him the limb was rotten, and Tony was actively participating in the tree-removal job. Lucky for Tony, the court was convinced that Dick’s tree experience and his position astraddle the rotten branch made the hazard open and obvious to Dick. What’s more, the court held, Tony did not owe Dick any duty under the participation exception to a property owner’s general lack of duty to an independent contractor, because while Tony was on the crew, he did not “actively participate” by directing the activity that resulted in Dick’s injury.

Strayer v. Cox, 38 N.E.3d 1162 (Ohio Ct. App. Miami Co., 2015). Richard Strayer was injured while attempting to cut down a tree located on the property owned by his neighbor, Anthony Cox. Dick Strayer had some qualifications for the job: he had been involved in various types of residential and commercial construction and had been employed climbing cell phone towers. Prior to the accident, he had climbed trees 20 to 25 times to cut them down.

At some point, Tony decided that he wanted to remove a 25’ tall tree in his front yard. Tony presumed it was dead, and he balked at the $1,000 estimate from tree services to remove the tree. So he told Dick he wanted to take the tree down, and asked Dick to help because he was afraid of heights.

Dick first inspected the tree and thought it looked “okay,” although he later admitted no one short of a tree expert could have told that any of the branches were rotting, and Tony would have had no way to determine if there was rotting or damage to any of the limbs.

At one point, Dick’s feet were on the base of the tree (where a branch met the trunk), and he was standing in the middle of a series of big limbs about 12 feet up. Dick began cutting a branch with his chainsaw. The next thing he knew, he had fallen to the ground, riding the rotted-out branch all the way down. As a result of the fall, Dick hurt his left ankle, which required surgery.

Dick sued, but the trial court granted summary judgment for Tony and his insurance carrier. Dick appealed.

Held: Dick’s lawsuit was thrown out. The appellate court ruled that the trial court did not err in rendering summary judgment in Tony’s favor. The court held that the undisputed facts showed Tony had no duty to protect Dick from an open and obvious hazard on Tony’s property. Furthermore, Tony did not owe Dick any duty under an exception to a property owner’s general lack of duty to an employee of an independent contractor. Tony did not “actively participate” as required for the application of this exception by directing the activity that resulted in Dick’s injury, by giving or denying permission for the critical acts that led to Dick’s injury, or by exercising sole exclusive control over a critical variable in the working environment.

The Court said, “It is fundamental that in order to establish a cause of action for negligence the plaintiff must show the existence of a duty, a breach of that duty, and an injury proximately resulting therefrom. The status of the person who enters upon the land of another ( i.e., trespasser, licensee, or invitee) defines the scope of the legal duty that the landowner owes the entrant.” Here, Dick was an invitee, someone who rightfully came onto Tony’s property by invitation, express or implied, for a purpose beneficial to Tony, to wit, the removal of the tree.

An owner owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that invitees are not unnecessarily and unreasonably exposed to danger. However, the Court observed, the owner does not act as an insurer of an invitee’s safety and owes no duty to protect invitees from open and obvious dangers on the property. Open and obvious hazards are those hazards that are neither hidden nor concealed from view and are discoverable by ordinary inspection. The question is always whether an invitee exercising ordinary care under the circumstances would have seen and been able to guard himself against the condition.

“Liability only attaches when an owner has ‘superior knowledge of the particular danger which caused the injury’,” the Court wrote, “as an ‘invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate.’ The open and obvious doctrine is determinative of the threshold issue, the landowner’s duty. In the absence of duty, there is no negligence to compare.”

Dick was barred from recovery because the deteriorating tree was an open and obvious hazard that he freely ascended. He was in a better position to assess the safety of standing on the branch. Naturally, the Court held, Tony had no duty to warn Dick about dangers of which Tony was unaware, such as that the limb Dick was cutting was deteriorating from the inside, decay that was not observable from the outside. In addition, the court observed that Dick had significant experience with cutting trees and that the risk of encountering deteriorating branches was open and obvious.

Dick also argued that Tony should have contacted a certified arborist prior to removal to conduct a risk assessment of the tree. He claimed Tony’s failure to have a risk assessment conducted violated American National Standards Institute (ANSI) sections Z133 and A300, part 1 and 9, which require that any tree being worked on “undergo a tree risk assessment for tree worker safety.” However, the court ruled that homeowners like Tony are not subject to the requirements of ANSI, even if the standards were not voluntary to begin with (which they are).

Even if the ANSI standards were somehow to apply to a Harry-Homeowner-tree-removal job, the court ruled, “Ohio courts have held that summary judgment may be granted in cases where building code violations are open and obvious ‘because the open-and-obvious nature of the defect obviates the premises owner’s duty to warn.” The hazard of climbing on the tree limb in a tree with dead branches was open and obvious.

Finally, Tony’s participation in the job did not make him liable to Dick. One who engages the services of an independent contractor and who actually participates in the job operation performed by such contractor and thereby fails to eliminate a hazard which he, in the exercise of ordinary care, could have eliminated can be held responsible for the injury or death of an employee of the independent contractor. Here, the testimony of the parties indicated that if anyone directed the activities that day, it would have been Dick, who was the individual experienced in cutting down trees and using chainsaws. The record was devoid of any indication that Tony directed Dick to do anything on the day of the accident or even that Tony had any prior experience with chainsaws or with cutting down trees.

Dick “directed the activity which resulted in the injury or gave or denied permission for the critical acts that led to the… injury.” The cause of Dick’s injury, in his own words, was that the limb on which he stood fell, taking him down with it, because the limb “was rotted.” Tony had no role in the injury, and thus no liability.

– Tom Root

Case of the Day – Tuesday, February 20, 2024

Posted on February 20, 2024 by TLRoot tagged.

THE ODD COUPLE

What is it with some neighbors? These folks — an “odd couple” of neighbors if ever there were such — lived next to each other in a pretty good Iowa City neighborhood for over 20 years. And they were always at each other’s throats.

Ironically, it was the Felix Ungar neighbors who were the victims. Apparently the Oscar Madisons were unhappy with two trees that stood entirely in the Felix property, but had branches overhanging the Oscars. So what, you wonder, and for good reason. The Oscar property was such a mess that a couple leaves and twigs hardly mattered. However, all of you loyal readers know the answer: under the Massachusetts rule, the Oscars can trim the trees’ branches back to their property line. In fact, borrowing from Virginia and Hawaii, maybe the Oscars could sue the Felixes, alleging that the trees were a nuisance.

Nothing that subtle for our heroes. Instead, the Oscars came onto the Felix property and simply cut the trees down. There. That settled that!

Well, not really.

The Felixes sued. The trial court was clearly appalled at the brazenness of the Oscars. It observed with some amazement that in order to cut down the trees, the Oscars “had to intentionally trespass on [Felixes’] property to cut down the trees and that is exactly what they did.”

The Court rendered its opinion accordingly. What the Oscars did was a trespass, pure and simple, and the damages in a trespass are the costs to restore the property. Those costs were the cost to replant trees about as mature as the two 50-foot tall trees that were removed. On top of that, the Court imposed treble damages under Iowa Statute 658.4 for “willfully injuring any timber, tree, or shrub on the land of another.” The Court held it applied because the Oscars “willfully trespassed” in order to cut down the trees.

They’re after your trees …

We don’t want to be critical, because the Oscars clearly were bad actors here and deserved what befell them. However, courts need to be careful not to get out in front of their statutes. The trial court, in its ire, focused on the wrong “willfully.” Treble damages applied when the Oscars “willfully injured” the trees, not when they “willfully” trespassed. Under the court’s mangled standard, the treble damage statute would have applied if the Oscars willfully sneaked onto the Felixes’ property to smash a jack-o-lantern, but accidentally trampled on Mrs. Felix’s prize rose bushes in their haste to run home. It’s not the willful trespass, it’s the willful chainsaw that matters.

Luckily for the Felixes, the error made no difference. Any way you apply the “willfully” here, the Oscars are liable. They willfully trespassed, willfully fired up their chainsaws, and willfully undertook arboreal mayhem. Game, set, match.

Wunder v. Jorgensen, Not Reported in N.W.2d, 2004 WL 3569694 (Iowa Dist., 2004) (unpublished). The Wunders and the Jorgensens lived next to each other in a wooded neighborhood on Iowa City’s west side for over 20 years. During this period, their relationship was acrimonious, with the Wunders continually upset about the debris, both natural and manufactured, which the Jorgensens allowed to build up on or over their common boundary. Among other complaints, the Wunders complained that the Jorgensens erected a lean-to next to an outbuilding, essentially on the property line, which the Jorgensens used to keep garden tools.

Two trees stood on the Wunders’ property, scotch pines or Canadian hemlocks, with branches that extended over the Jorgensen property. The Jorgensens knew the trees were on Wunders’ lot because they had built the lean-to roof around one of the trees. The trees disappeared one day, setting the Wunders to wondering. Suspecting the Jorgensens, the Wunders sued. And small wonder.

Held: The Jorgensens were liable. The Court found that the Jorgensens had knowingly and willfully cut down two mature trees that they knew to be on Wunders’ property. The Court found the conduct to be inexcusable, noting that the “Jorgensens had to intentionally trespass on Wunders’ property to cut down the trees and that is exactly what they did.”

The Court found that the replacement cost for the trees was $4,061.40. The measure of damages for trespass is replacement cost, and treble damages — awarded if trees are willfully cut down on another’s property — apply in this case, the Court said, because, Jorgensen willfully trespassed on Wunders’ property to cut down the Wunders’ trees.

The Court threw in an observation for the Jorgensens: if trees are replanted, the Jorgensens ought to be informed that the general rule is that an adjoining landowner may cut off growth that intrudes on his or her property … but not more.

– Tom Root

Case of the Day – Monday, February 19, 2024

Posted on February 19, 2024 by TLRoot tagged.

A DEFENDANT MUST BE FOUND

Almost 19 years ago, my daughter Leslie – then, fresh out of college with a B.A. in linguistics (but now with a Ph.D. in demographics) – was spending a year in Vladivostok, Russia, on a Fulbright Fellowship. Along with learning to play the balalaika and sampling dozens of varieties of vodka, she learned that your average Russian is a lot like your average American.

One evening, she and a friend were crossing the street at an intersection when a young Russian couple, in a hurry to pick up their son from daycare, were in a car waiting impatiently behind a driver turning left. The light changed, the left-turner turned, and – just like just about every driver in the world – the young Russian husband burst through the light, now red. Unfortunately, he collided with my daughter, who went up on the hood of his car and then slid to the ground. At some point in Leslie’s unplanned flight, her leg was broken.

The driver and his wife were distraught at what their negligence had caused, and they bundled my daughter into the back seat of the car and drove her to an emergency unit. The next day, Leslie’s Russian friends visited her in the hospital, and during all of the talk about the accident, someone asked Leslie whether she had filed a police report. My daughter already knew from the State Department that she would have come back to the United States for treatment, American confidence in Russian medicine not being that high. So Leslie told her Russian friends it was just an accident, and thus there would be no point filing a report with the Primorsky Krai Directorate for Internal Affairs (you may know them as Управления МВД России по Приморскому краю). After all, a Russian hospital stay costs about $40.00 a night. Leslie reasonably figured that no Russian auto insurance company would have the stomach for what turned out to be a measly $50,000 in American medical bills.

So what was the point in filing a police report, Leslie wondered. But her Russian friends were appalled. She did not intend to demand prosecution of the driver? “But, but… ” one of them sputtered, “he must be punished!”

So, you see, those Far Eastern Russians are just like we are – when there is a terrible accident, any good plaintiff’s lawyer knows that you tell the jury the story with just the right amount of drama and pathos, and pretty soon, the jurors start looking around the courtroom for someone to blame. After all, there was injury and suffering and pain. Someone must pay! Someone must be punished!

But that’s not the way real life is. You can ask Cassandre and Rachele, who are the young daughters of Joel Baudouin. Joel was driving his mother and the girls down New Jersey’s Garden State Parkway late one dark and stormy night when an 80-foot tall hickory tree fell on his car. Joel and his mother perished. The girls were injured.

The girl’s mother sued on their behalf, naming a thundering herd of defendants, including the New Jersey Turnpike Authority (a public entity established in 2003 to operate the Garden State Parkway). Mom alleged the Turnpike Authority negligently failed to “properly maintain, remove, inspect, secure or otherwise properly care for the rotting, falling, dead and decaying trees adjacent to the roadway in the area of the accident.”

Everyone agreed the Turnpike Authority lacked actual notice the hickory tree was rotten (as it surely was). The only issue was whether the Authority had constructive notice of the tree’s deteriorated condition, and that turned on whether the Authority’s “drive-by” inspection program was reasonable. This is where governmental units, vulnerable to lawsuits only to the extent permitted by the state tort claims act, need only show they have used their discretion in a reasonable way. Here, no matter how much Mom’s tree experts argued that a 360-degree walk-around was the only acceptable way to inspect a tree (and such an inspection would have discovered the dangerous hickory tree), the court agreed that the extent of the inspection task and the resources available to the Authority required that the Turnpike Authority be held to a lesser standard.

We are often adjured not to let the perfect become the enemy of the good. Under state tort claim statutes, that rarely happens.

Baudouin v. New Jersey Turnpike Authority, Case No. A-3903-13T2 (Super.Ct. N.J., March 1, 2017) 2017 N.J. Super. Unpub. LEXIS 1085, 2017 WL 1548708. Just after midnight on Christmas, 2008, Joel Baudouin was driving southbound on the Garden State Parkway. His mother sat next to him, while his two daughters sat in the backseat. A hickory tree, measuring eighty feet high and twenty-one inches wide, fell across the three southbound lanes of the Parkway and crushed the front passenger compartment of the car. Joel and his mother were killed. The children, who were initially trapped inside the backseat, were injured.

The kids’ mother filed a civil suit against a number of public entities and one private contractor. Finally, only the Turnpike Authority remained. The plaintiffs argued the Turnpike Authority negligently failed to “properly maintain, remove, inspect, secure or otherwise properly care for the rotting, falling, dead and decaying trees adjacent to the roadway in the area of the accident.”

The trial court granted summary judgment to the Turnpike Authority, holding the plaintiffs failed to produce evidence showing the Turnpike Authority had “actual or constructive notice” of the tree’s deteriorated condition.

Mom and the girls appealed.

Held: The Turnpike Authority was not liable. At the time of the accident, the Authority was responsible for inspecting the 172-mile long Parkway, which was tree-lined over much of its length both northbound and southbound and in the median and had more than 300 tree-lined shoulder miles to inspect. In order to accomplish this, the Authority employed what it called the Hazard Tree Inspection Program, which “consists of making periodic ‘windshield inspections’ of the trees that can impact the roadway,” according to the Authority’s witness. The Authority’s inspectors inspected Parkway trees while seated in the front passenger seat of a car that drove at approximately ten to fifteen miles per hour along the shoulder of the Parkway. If something was spotted that indicated a potentially serious problem with a tree, the driver would stop the vehicle so that the tree could be inspected further. At that point, a determination would be made as to what, if anything, had to be done with the tree and at what priority based on the seriousness of the problem.

Of the 554 trees listed in the January 2007 Hazard Tree Inventory, only five trees were identified in the vicinity of where the accident occurred. Three trees were identified as high priority, and two were marked as an immediate priority.

Mom’s experts examined the fallen tree and concluded it was rotten to the core. Both said the decay was only visible from the side of the tree away from the road, and they said a walk-around with a 360-degree close visual inspection of individual trees was the only method sanctioned by the industry. They did not address the Authority’s contention that an individualized walk-around inspection was not applicable to a six-lane 172-mile long road with 300 miles of shoulder space.

The Superior Court noted that the Legislature intended the New Jersey Tort Claims Act “to serve as ‘a comprehensive scheme that seeks to provide compensation to tort victims without unduly interfering with governmental functions and without imposing an excessive burden on taxpayers.'” The purpose of the TCA is to shield public entities from liability, subject only to the TCA’s specific liability provisions. Thus, the Superior Court ruled, when a court is required to balance the liability and immunity provisions of the TCA, “immunity is the rule and liability the exception.”

The TCA defines a dangerous condition as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” The Superior Court said, “80-foot tall trees are not inherently dangerous. The Garden State Parkway is a three-lane wide highway, running 172 miles north and south, with 300 miles of shoulder. The eighty-foot tall hickory tree that fell at milepost 151.5 on December 25, 2008, is one of thousands, if not millions, of similar trees abutting or near both sides of the Parkway. Neither this record nor the Parkway’s history suggests that this tragedy occurs frequently.”

Given the length of the Parkway and the number of trees involved, the Court held, “it is patently unreasonable to expect the Turnpike Authority to conduct [walk-around] inspections. Therefore, as a matter of law, we conclude that, at the time of the accident, neither the Parkway nor the trees situated nearby constituted a dangerous condition under N.J.S.A. 59:4-1(a) because they were used with due care in a manner in which it is reasonably foreseeable that they would be used.”

Under the New Jersey TCA, a public entity has constructive notice of a dangerous condition “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” N.J.S.A 59:4-3(b). The mere existence of an alleged dangerous condition is not constructive notice of it.

– Tom Root

Case of the Day – Friday, February 16, 2024

Posted on February 16, 2024 by TLRoot tagged.

THE DOMINATRIX

Hardly anything can sow discord among neighbors like an easement. Rarely described with much specificity or limited as to use by a detailed statement of purpose, easements cause problems for the holder. Or the grantor. Or often, both.

Where the easement is for the benefit of an adjacent property owner, we talk about the dominant estate – the property being benefitted – and the subservient estate, which is the property (or property owner) burdened by the easement.

In today’s case, the Dzingles bought a landlocked parcel of land about 60 years ago, and – in order to get back and forth from the road – bought an ingress easement from their neighbor. As the name implies, the easement, 25 feet wide and containing a “trail,” was intended to let the Dzingles get to and from their property. The property was held by the Marilyn Dzingle Trust, making her sort of the Dominatrix.

The mind is fallible (just ask Joe Biden). Especially where the owner of the subservient estate (cool term, right?) sells the property to someone else, someone like Jim Platt. Jim knew what he was buying, and he wasn’t the kind of guy to spend a lot of time poring over deeds and those appurtenances, principal places of beginning, heirs and assigns, and all of the legal mumbo jumbo. He knew the Dzingles had a driveway going over his land, and who needed to know any more than that?

Jimbo, that’s who. When Dzingle cleared vegetation from either side of his drive (but within the 25’ limit of the easement), Platt objected that the Dzingles had diminished the value of his property. When Platt dropped a dumpster next to the driveway, crowding the use of the road, the Dzingles objected right back. Platt said, “Sure, I’m encroaching on the easement, but you still have enough room to get by.”

Well, enough was finally enough. When the Dzingles wanted to build a modular house, they needed 22 feet of clearance to haul the pieces in. Those of us who are good at math can figure that this should be fine, with 1½ feet of clearance on each side. Well, yeah, except for Jimmy’s dumpster, and he would not move it.

So the Dzingles took Jimmy Platt to school, this class being held in a courtroom, where Jimmy Platt finally figured out what all that fine print on the deed really meant.

Dzingle Trust v. Platt, Case No. 330614 (Ct.App. Mich., Feb. 14, 2017) 2017 Mich.App. LEXIS 227. The Dzingles had contentedly enjoyed their landlocked 59 acres for nigh on 50 years, partly because they had had the foresight to buy a 25-foot ingress easement from their neighbor. But time passed, and after Jim Platt bought the subservient estate, the parties began feuding about what rights the dominant estate had over the easement.

The deed granting the easement stated that it was “an easement for ingress and egress over a parcel of land 25 feet wide…” and referred to an attached survey for the exact location of the easement. The survey clearly identified the location of the easement and indicated that the “existing trail lies entirely within easement.”

The Dzingles placed gravel in the easement and cleared vegetation to use it for ingress and egress and to improve his attached residential property with a water well and pond, which required large trucks to use the easement. They planned to build a modular home on the property, but delivering the modules would require 22 feet of clearance, just within the easement’s 25-foot width. Jim complained that the Dzingle’s vegetation cutting within the easement “unreasonably burdened my property and eliminated my use of the property.” For their part, the Dzingles complained that Jim Platt’s placement of a dumpster in the easement did not let them use the full 25 feet for ingress and egress. That may be so, Jim said, but it did not keep the Dzingles from ingress or egress.

The Dzingles sued for a declaratory judgment regarding their rights to remove obstructions to bring the modular home onto the property and asked the trial court to order Platt to remove his dumpster and any other obstacles from the easement. The trial court granted summary judgment to the Dzingles, holding they were entitled to the full 25-foot easement, and clearing brush from the easement was not an addition or improvement to the easement. The trial court rejected Jim Platt’s argument that the Dzingles’ proposed use of the easement would materially increase the burden on his estate because their rights as the dominant estate to ingress and egress on the easement were paramount to Platt’s rights to wildlife and natural beauty. Finally, the trial court ruled that Platt must remove his dumpster from the easement because it was inconsistent with the Dzingles’ rights to ingress and egress.

Jim Platt appealed.

Held: The Dzingles’ rights extended to the whole 25 feet of the easement, and those rights included trimming vegetation so that the easement was usable for its intended purpose. It’s a rough lesson for a subservient estate holder to learn, but the dominant estate holder’s “rights are paramount to the rights of the soil owner to the extent stated in the easement grant.” The language of the instrument that granted the easement determines the scope of the easement holder’s rights.

In this case, the deed grants the Dzingles an easement for “ingress and egress.” The deed does not define ingress and egress, so the Court referred to a dictionary to determine the common meaning of the terms. “Ingress” is the “right or ability to enter; access,” and “egress” is defined as the “right or ability to leave; a way of exit.” Thus, an “ingress-and-egress easement” is an easement that grants the right to “use land to enter and leave another’s property.” Thus, the Court concluded the deed expressly granted the Dzingles the right to enter and leave their property, and the right to do so is paramount to Jim Platt’s rights in the same property.

What’s more, the easement gives the dominant estate “all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement.” While the dominant estate’s exercise of the easement must place as little burden as possible on the subservient estate, still “the making of repairs and improvements necessary to the effective enjoyment of an easement… is incidental to and part of the easement.”

A repair maintains an easement in the condition it was in when the easement was made. Improvements, on the other hand, are alterations to an easement, and alterations are not permitted unless necessary for the effective use of the easement, provided they unreasonably burden the servient tenement. Here, the Dzingles offered evidence that clearing vegetation, placing gravel in the easement, and using the easement to allow large trucks to improve the Dzingle acreage were consistent with the use of the easement since the easement was granted. Thus, the Court said, the Dzingles “presented evidence that removing vegetation and leveling would maintain the easement in the condition and uses it was in when the easement was granted. Platt presented no contrary evidence that clearing or leveling were outside the easement’s scope or changed the easement’s character.”

Finally, the Court said, any rights in the grant of an easement must be reasonably construed. The Dzingles have a right to reasonable ingress and egress, but they are not entitled to an unobstructed right-of-way. However, the Court said, the evidence showed that Jim’s dumpster intruded into the easement, and the Dzingles showed they needed at least 22 feet of the 25-foot easement for clearance to move the modular home pieces onto the property. Jim Platt may use the easement as long as his use does not interfere with the Dzingles’ right of ingress and egress. However, the Court said, because the Dzingles need the vast majority of the easement for ingress clearance and the dumpster intrudes into the easement, Jim Platt must move the dumpster.

– Tom Root

Case of the Day – Thursday, February 15, 2024

Posted on February 15, 2024 by TLRoot tagged.

ACORNS KEEP FALLIN’ ON MY HEAD…

It started as a simple idea: establish a court without lawyers, a place where people with a beef could be heard, where small-scale justice can be dispensed, where people found common-sense answers to problems. And thus, small claims court was born, having its origin – ironically enough – as the “court of conscience” in medieval England.

The rules are simple, the docket is swift: usually, from the filing of the action to the hearing, not much more than a couple of weeks pass. There is no fancy-Dan pleading, no arcane procedures, no onerous discovery. Just two people with a problem and one judge to listen and decide.

Many years ago, long before law school interrupted my life, I sent roses by FTD to a girl in another state on Valentine’s Day. I thought it strange when she thanked me for the “flowers.” People would normally say, “Thanks for the roses.” After about the third time she said “flowers” instead of “roses,” I thought to ask her what she had received from me. It turned out that I paid for roses, and got a mixed-flower arrangement suitable for a funeral… but not a valentine.

When I complained to my local florist, he told me dismissively that if the receiving florist in the other state was out of roses, he or she could substitute “another arrangement of equal value.” Getting no satisfaction there, I filed a small claims complaint. On the day of the hearing, the flower shop owner stalked into the courtroom and gave me my money back.

Sweet justice!

So I love small claims court. But I recognize its principal drawback, which is that lawyers can still show up and make a mess of things. That’s what happened in today’s case.

Daphne Kohavy, a savvy resident of Gotham, rented a parking space in a lot next to her co-op apartment building in the Bronx. The co-op had a management company, Veritas, running the lot. Daphne’s car was parked under an oak tree that rained acorns on her ride. This should not seem surprising to many of us who understand that those funny little acorns hanging on oak trees like to drop. But Daphne was a New Yorker and had only the most fleeting acquaintance with green things that grow from the earth. The acorn rain surprised her, and – according to her complaint – caused over $1,500 in damage to her wheels.

She sued in small claims court. Veritas brought its lawyers (in its defense, the law required it appear through lawyers because it was a limited liability company). Its lawyers started milking the case for fees, filing motions to dismiss for all sorts of reasons.

The court was not amused. Small claims court is supposed to be easy, where parties aired the claims instead of tying each other up in “gotcha” motions. The court scolded the defendants, holding that because Daphne said the tree was defective, she should have a chance at trial to prove it.

We don’t think much of Daphne’s lament. Oak trees drop acorns. That’s no surprise. But on the other hand, Veritas tried to muck up the small claims process (forcing poor Daph to go out and hire her own lawyer). Perhaps distributive justice – where the right thing gets done for what nominally is the wrong reason – triumphed.

Kohavy v. Veritas Management, LLC, 2017 N.Y. Misc. LEXIS 1380 (Civil Ct. Bronx County, 2017): Daphne Kohavy leased a parking space next to her apartment building on a lot owned by defendant 511 W. 232nd Owners Corp. was the owner of the parking lot. Veritas Management, LLC was the lot’s managing agent. While parked there, Daphne’s car was damaged from acorns falling from a tree overhanging her parking space. It sounds like classic encroachment and sensible harm. She sued in small claims court for $1,500.

Veritas, through its lawyers, moved to have Daphne’s claim dismissed because it was just the manager, not a party to the contract for her space between Daphne and the Co-op, and not the owner of the lot or the oak tree. What’s more, Veritas claimed, it did not maintain exclusive control of the premises, and even if it did, the law does not recognize a cause of action in negligence for damage due to falling acorns.

The motion to dismiss also claimed that the Co-op could not be held liable as the damage to Daphne’s car was caused by a healthy tree, and even it was not, the Co-op lacked notice of any such defect.

Held: The court began by scolding Veritas for gumming up the court’s processes with dispositive pretrial motions, noting that the “informality and convenience of small claims practice is necessarily frustrated by requiring pro se litigants to respond to formal motion practice…” But in the interest of moving things along, the Court addressed Veritas’ motion.

The Court found that there was a question of fact (because Daphne had said so) regarding the condition of the overhanging oak tree that had damaged her car. While the Court said there was no privity of contract between Daphne and Veritas, “questions of fact with regards to defendant Veritas’ control over the parking lot, as per the terms of the management agreement between defendant Veritas and defendant Cooperative, exist.” If Daphne could show that Veritas maintained exclusive control over the parking lot under the management agreement between it and the Co-op, and that Daphne’s damages were the result of Veritas’ negligence, she might be able to recover in negligence from Veritas.

The Court noted that Daphne “commenced this Small Claims action as a pro se litigant. It was not until the plaintiff was served with this instant motion that the plaintiff retained counsel to represent her. Accordingly, in this case, the filing of this instant motion prior to a hearing has indeed frustrated the purpose of New York City Civil Court Act § 1804 and its concern for protecting inexperienced pro se litigants and providing them with an expeditious and inexpensive forum to resolve small claims.”

– Tom Root

Case of the Day – Wednesday, February 14, 2024

Posted on February 14, 2024 by TLRoot tagged.

WATCH OUT FOR THAT TREE!

The old ‘60s cartoon George of the Jungle featured an earworm theme song that always warned George to “watch out for that tree!” just before he collided with an unforgiving trunk. Tom Kranz discovered that life imitates art.

Grandpa Tom should have watched out for that tree, too. As he pushed his granddaughter’s stroller past the Perkinses’ house, he noticed a limb from one of their trees was overhanging the sidewalk. He moved onto the tree lawn to sidestep the branch, but somehow managed to skewer his eardrum with a twig.

Ouch. But in a case with parallels to Friday’s coffee-shop debacle, Tom sued the Perkinses, claiming they owed him a duty to be sure he did not run into a branch he could clearly see and avoid. And just like yesterday, the court said (albeit it with some legalese), “C’mon, man!”

Even when someone is just walking past your house, they are a licensee, entitled to use the public sidewalk, and you have a duty not to engage in willful or wanton conduct that cause them harm. But an untrimmed branch does not rise to such willful or wanton conduct, and that’s especially so where the pedestrian is perfectly able to see the danger. Tom admitted to an accident investigator that the tree was “easy to go around.” Where a licensee has equal knowledge of the dangerous condition or the risks involved, the court told Tom, “there is no willful or wanton action on the part of the owner and there is no liability to the licensee.”

Common sense… parents, mind your kids. And Tom, for heaven’s sake, watch out for that tree.

Perkins v. Kranz, 316 Ga.App. 171 (Ct.App. Georgia, 2012). While walking in a Gwinnett County subdivision, Thomas Kranz’s eardrum was punctured by a branch from a tree overhanging the sidewalk. Kranz sued Jerry and Nyda Perkins, on whose property the tree was located, claiming negligence. The Perkinses asked the trial court to throw out Tom’s complaint, but it refused.

The Perkinses appealed.

Held: Tom’s case was thrown out. After all, he saw the tree, with its limbs extending over the sidewalk, obstructing his path. To avoid them, Tom moved off of the sidewalk onto the strip of grass between the sidewalk and street. But as he passed the tree, he felt a sharp pain, and eventually realized that a twig had entered his ear and pierced his eardrum.

The essential elements of a negligence claim are the existence of a legal duty, breach of that duty, a causal connection between the breach and the plaintiff’s injury, and damages. The threshold issue is whether the Perkinses owed a legal duty to Tom Kranz. The Perkinses argued that Tom was, at best, a licensee, but Tom said he was an anticipated licensee, and argued the Perkinses had to exercise ordinary care to prevent injuring him.

But the Court said it did not matter what Tom was. “Pretermitting any decision on Kranz’s potential status as a licensee, anticipated licensee, or invitee, he may not recover as a matter of law because the evidence establishes that he had equal knowledge with the Perkinses of the potential danger posed by the tree.” In other words, the Court said, Tom could see the branch. If he was negligent enough to walk into a tree branch he could easily observe and avoid the branch, he had no one to blame but himself.

An owner, the Court held, “has no duty to a licensee to keep the premises up to any standard of safety, except that [the property] must not contain pitfalls, mantraps, and things of that type.” Here, the tree and its overhanging branches were “in no way a pitfall, mantrap, or hidden peril.” Tom should have avoided the danger. He did not. Tough luck.

– Tom Root

Case of the Day – Tuesday, February 13, 2024

Posted on February 13, 2024 by TLRoot tagged.

TEACH YOUR CHILDREN WELL

This is hardly a law school final exam question: Two parents and a couple of hellion-spawn walk into a Starbucks. The kids promptly begin running amok, using the furniture and fixtures like a jungle gym. Specifically, the whelps start swinging from ropes and climbing stanchions used to mark off the line for coffee. After taking plenty of abuse from the ankle-biters, one of the stanchions falls, injuring one of the kids.

Quick: Who’s liable?

If you said Starbucks, we congratulate you, because you have a wonderful future ahead of you as a plaintiff’s attorney. If you said the parents should be responsible for their offspring’s monkeyshines, you have a future, too… as a judge.

The Roh family, a father and mother, and a pair of boys – ages 3 and 5 – visited a newly-opened Chicago Starbucks. This one had some fancy line dividers (as the line-divider industry likes to call them), created from recycled 19th-century ironwork. The dividers were mounted on concrete plugs to prevent tipping.

You’ve probably seen parents like these two, maybe focused on their smartphones, perhaps lost in conversation, perhaps just tuned out… the kids run wild, and their folks remain oblivious. But when the inevitable disaster befalls, it becomes anyone’s fault except the kid’s. Or the parents’…

But contrary to breathless Internet stories and hand-wringing commentators, America remains a land of individual responsibility. To be sure, a landowner who invites kids onto the premises is liable for dangerous conditions where the risk to the child is reasonably foreseeable. But while this rule applies where a kid is on his or her own. But where the child is with a parent, the landowner may be relieved of his or her duty to the child because parents are primarily responsible for their child’s safety because it is their “duty… to see that his behavior does not involve danger to himself.”

What a refreshing concept! Parents are responsible for their kids…

Roh v. Starbucks Corporation, 881 F.3d 969 (7th Cir. 2018): The Roh family was visiting a recently-opened Starbucks store in downtown Chicago, two parents with sons Marcus, age three, and Alexander, age five. The store had custom metal stanchions for placement within the store to direct the flow of customer traffic, salvaged posts made of 1800s-era iron fences or stair posts. The stanchions were freestanding but mounted on heavy concrete bases and connected with ropes to control shopper traffic.

As the family was leaving, the parents heard their son Marcus begin crying. The father, who had heard a loud noise immediately preceding Marcus’s cries, saw that one of the stanchions had been knocked to the ground, striking the boy and pinning his hand. Marcus lost his left middle finger and seriously injured his index finger.

Neither parent witnessed what had happened, but the boys admitted to swinging on the ropes, running around the dividers, and climbing the stanchions.

Naturally, the Rohs sued Starbucks, claiming it was negligent by failing to safely maintain the premises, to adequately secure the stanchion, to properly inspect it to ensure its stability, to warn patrons of the potential danger posed by the stanchion, or to realize that minor patrons would not appreciate the risk posed by the unsecured stanchion. The district court granted summary judgment for Starbucks, holding that the boy’s parents, not Starbucks, bore the responsibility to protect Marcus from the obvious danger posed by playing on the unsecured stanchions.

The Rohs appealed.

Held: The Rohs collect nothing, because any duty owed Marcus by Starbucks was abrogated by his parents’ presence with him in the store that day.

Whether a duty exists in a given case turns on the foreseeability and likelihood of the injury, the difficulty of guarding against it, and the consequences of laying the burden to guard against the danger on the defendant.

Generally, landowners or occupiers in Illinois owe no greater duty to small children than the duty owed to adults. In premises-liability cases involving injury to a child, “the true basis of liability [is] the foreseeability of harm to the child.” The Court said that a child’s injury will be deemed foreseeable to the landowner if (1) the owner or occupier knows or should know that children habitually frequent the property; (2) a defective structure or dangerous condition is present on the property; (3) the defective structure or dangerous condition is likely to injure children because they are incapable, due to their age and immaturity, of appreciating the risk involved; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition is slight when compared to the risk to children.

Things change, however, when the child is accompanied by his or her parents. This is because “the responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself.” A landowner’s duty to a child is abrogated if “the child was injured due to an obvious danger while under the supervision of his or her parent, ‘or when the parents knew of the existence of the dangerous condition that caused the child’s injury’.”

Both parents admitted they saw the heavy stanchions. The Court stated the obvious, that “it is a matter of common sense that serious injury could result from climbing on the stanchions and swinging from the ropes connecting them together.” Maybe the parents did not foresee Marcus getting his finger crushed, but they didn’t have to foresee the particular injury. It is enough that the Rohs saw the stanchions, which were plainly very heavy. Any parent could foresee that a child hanging from the rope connecting the stanchions or otherwise playing on and around them could be injured, the Court said, and that is “sufficient to support the conclusion that Starbucks did not breach any duty to Marcus, who was engaged in an activity while under his parents’ supervision that could obviously lead to injury of some kind.”

What the Court was saying was they should have known better. “It was plainly evident to the Rohs that the heavy stanchions were intended to control traffic flow in the store; their failure to prevent their sons from climbing and playing on them led to Marcus’s injury, not the breach of any duty on Starbucks’ part.”

– Tom Root