Case of the Day – Thursday, January 31, 2019

AN ADOPTION GONE BAD

You’ve seen the “adopt a highway” signs along local roads, where some company or organization undertakes to take care of a strip of the road. Governments have figured out that the adoption program was a sweet deal. The government gets free labor to maintain a public asset. A local group gets its name attached to a do-gooder project.

Some places have gone beyond the stretch-of-road adoption program in favor of entire enclaves. The City of Fort Worth, Texas, had such a program, one in which groups could adopt a whole park.

Last time we checked the geography, Fort Worth was pretty flat. That did not prevent the City from having a mountain bike park, or for that matter, a band of dedicated mountain bike riders ready to adopt it. What a perfect arrangement – synergy on knobby tires – at least until Norm DeLamar, a mountain biker, got clotheslined by a dead tree.

Adopted kids have parents who are obligated to take care of them. Norm figured that it worked for kids and parents, it must work for parks and adopt-a-park groups. Like most injured parties who know how to find the courthouse, Norm figured that because he was hurt, someone was obligated to pay him money. After all, this is America.

But the adoption turned out to be symbolic more than real. The mountain bike group was allowed to pick up litter, but the most it could do for dangers from hazard trees was to call the City Forester and cajole him or her to send a guy with a chainsaw. So the adopting parent really lacked any decision-making power when it came to park maintenance. But that hardly mattered to Norm and his lawyers.

Like the old poem so sagely observed:

It’s not my place to run the train, the whistle I can’t blow.
    It’s not my place to say how far the train’s allowed to go.
It’s not my place to shoot off steam or even clang the bell.
    But let the damn thing jump the track and see who catches hell.

DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466 (Ct.App. Texas Jan. 24, 2019). Norm was riding his mountain bike one summer day on a trail in Gateway, a park owned by the City of Fort Worth, when he came upon a downed tree blocking the trail at head level. Although Norm was reputed to be a “really good rider,” he apparently was not that good. Norm did not have time to stop or avoid the tree, and as a result, he was “clotheslined.” His head and neck stopped when they hit the tree; the rest of him did not. Norm was knocked from his bicycle and was injured.

Norm sued the City, claiming ordinary and gross negligence. The City answered that filed an answer and identified the Fort Worth Mountain Biker’s Association as a responsible third party because of an “Adopt-A-Park Agreement” between the City and the Association. Under the contract, the Ft. Worth Mountain Bikers were “responsible for constructing and maintaining the bike trail in question.” Norm added the Association as a defendant, arguing premises liability, claiming the Association owed “a duty to protect the general public from dangerous conditions such as falling trees.” Norm claimed the Association had breached this duty by failing to ensure the trees alongside of the bicycle trail were not a danger to cyclists, and consciously disregarding the heath of the trees and the danger that they pose.

The Adopt-A-Park Agreement provides the Association “shall perform all work and services hereunder as an independent contractor… [and] shall have exclusive control of, and the exclusive right to control the details of the work…” The Association is obligated to maintain the its sole cost and expense, and it defines “trail maintenance” as including but not being limited to, “pruning of trees; [and] removal of brush[.]”

The Contract prohibits the Association from “trimming and pruning, until written approval is obtained from the Director [of the Parks and Community Services Department],” and from “remov[ing] any tree without prior written permission from the City Forester.” Finally, the Contract expressly provides that the City “does not relinquish the right to control the management of the Parks, or the right to enforce all necessary and proper rules for the management and operation of the same.”

The Association answered that there was no evidence that it was negligent, as it owed neither Norman nor anyone else a duty with respect to the condition of the premises, or to keep the premises in reasonably safe condition, inspect the to discover any defects, or to repair any defect or give an adequate warning of any dangers.

Norm filed a response and attached a short affidavit and an expert report from an arborist, Matthew Clemons. In his response, Norman appeared to adopt the Association’s characterization of his claim as one for premises liability and in doing so focused on his status, arguing that he was an invitee. The Association filed a reply and objected to the expert report.

The trial court granted the Association’s motion, and threw out the suit.

Norm appealed.

Held: Norm failed to establish that the Association owed him a legal duty to protect him from the tree that the Association did not cause to fall, that may have fallen only hours, but no later than a day or two, before the biker struck, and that the Association was not authorized to unilaterally remove under its agreement with the City to maintain the trail.

To prevail on a premises-liability claim, Norm had to prove the Association had actual or constructive knowledge of some condition on the premises; that the condition posed an unreasonable risk of harm; that the owner did not exercise reasonable care to reduce or eliminate the risk; and that the owner’s failure to use such care proximately caused Norm’s injuries. For a general negligence claim, he had to prove the Association owed him a legal duty; that it breached the duty, and as a result of the breach, he was damaged.

While, theoretically, Norm could maintain causes of action for both general negligence and premises liability, the Court said, a general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the Association’s contemporaneous activity. If the injury is caused by a premises defect, rather than by the Association’s contemporaneous activity, Norm could not circumvent the true nature of the premises defect claim by pleading it as one for general negligence.

Because the lines between negligent activity and premises liability are “sometimes unclear,” the Court said, determining whether a claim is one for a premises defect or general negligence “can be tricky.” Negligence encompasses a malfeasance theory based on affirmative, contemporaneous misconduct that causes an injury. Premises liability, on the other hand, encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.

But regardless of which horse Norm chose to ride, premises liability or general negligence, the sine qua non of his claim was the existence of a legal duty. It is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case.

Three categories of factors have emerged, the Court held. First, a court must consider the relationship between the parties. Then, a court examines the reasonable foreseeability of harm to the person injured. Finally, a court considers any public policy considerations.

Here, Norm argued the Association contractually assumed “responsibility for maintenance, construction and safety of the trails,” and as such, owed a duty to “protect the general public from dangerous conditions[.]” The record showed the Association members regularly worked on the trials, but had to identify problem trees to City employees who “were the only ones that [could] operate the chainsaws.”

Norm admitted he had ridden the same trail “no more [than] two days” earlier and that he had not seen the downed tree, so it was possible that the tree had fallen only a day or two before his crash. Indeed, he conceded that it was possible that the tree could have actually fallen only a few hours before his crash. What is more, the Agreement expressly prohibited the Association from pruning trees without the Director’s prior written approval and expressly prohibited the Association from removing any tree without prior written permission from the Forester. Norm cited nothing in the Agreement showing that the Association had agreed to assume a legal duty to maintain the safety of the trails for the general public.

The Court was not persuaded to create a legal duty regarding the downed tree and trail safety based on public policy considerations. Indeed, it said, public policy considerations weigh heavily against imposing such a legal duty on what is essentially a group of volunteer mountain bike enthusiasts who have been granted such limited oversight over the safety of the bike trails, if any.

Thus, the Court said, Norm had failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours—but no later than a day or two—before Norm struck it, and that the Association was not even authorized to unilaterally remove.

– Tom Root

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Case of the Day – Wednesday, January 30, 2019

BELLYACHING

When I was a kid, we had a magnolia in the backyard that my father would fume about at least twice annually. He called it “the mess tree.”

When I finally owned a backyard with a magnolia of my own, I understood. The tree is a thing of beauty every spring… for about 24 hours. Then the petals fall in a slimy, stinky mess. In the fall, the magnolia’s leaves turn from green straight to a uniform, blah brown, and then fall in a thick blanket that is resistant to most leaf rakes and machines of any size.

At least I bellyache about my own trees. What happens when your neighbors start to complain about your trees, which – while remaining on your property – mess their yards with leaves, twigs and general mess?

We all know at least the first prong of the Massachusetts Rule. A property owner has the right to trim back overhanging branches and encroaching roots of a tree standing on his or her neighbors’ yard, at least back to the property line. The second prong of the Rule, of course, is where all the variations arise. In Massachusetts, the neighbor cannot sue. In other places, the neighbor can. And even where nuisance actions are contemplated – think Mr. Houlton’s banyan tree in the famous case that begat the Hawaii Rule – at what point does a tree’s general messiness (leaves, pine cones, fruit, twigs and the such) cross the line from unremedied annoyance to actionable nuisance?

The Massachusetts Rule’s self-help provisions do not do a neighbor much good if the tree stands wholly on the next-door property. There is no trimming or root-hogging that will keep wind-blown twigs, leaves, fruit and other debris from raining onto your property.

Is there nothing that can be done? How many times have we noted that hard cases make bad law. Today’s case provides yet another illustration of the truth of this old saw.

John Leech apparently took Dorothy’s mantra to heart, believing there was no place like home. So when he and his wife had the chance, they moved into John’s boyhood home. There they lived, happy and proud (especially of the majestic coastal redwood tree in the side yard, already 80 years old or so).

John remembered the tree from when he was a boy. He nurtured it as an adult. But about 18 years after he and Brenda returned to reside in the house in which John had grown up, the Boyles moved in next door.

The Boyles never said a word to John or Brenda about the coastal redwood. But they were plenty agitated that the tree dropped pine cones and other debris on their yard, and in the process stained everything a sticky, unappealing brown. You would think that the neighbors might engage the tree’s owners in pleasant conversation, looking for a mutually acceptable solution to the problem. If so, you would be thinking wrong.

Terri and Kent Boyle might be great people, but their conduct as neighbors was as puzzling as those people who buy a house a quarter mile from the threshold of the primary runway at O’Hare and the complain about the noise. And puzzling not just to me, either. It is hard to read the Court’s opinion that John’s and Brenda’s tree was not a nuisance without concluding that the Court was a little put out that the Boyles never bothered to discuss the problem with their neighbors, but rather hired an expert and then ran for the courtroom.

Besides, there is something vaguely unjust that a couple of Johnnies-come-lately can move in, and within a couple years demand that a tree that had stood for 80 years on land inhabited by the same people for over 20 years (and more, when the lord of the manor was a mere stripling), be chopped down, all because they did not like it.

I have the sense that if the Boyles had sought a collegial solution, resorting to litigation as a last resort, their petition might have been greeted with less skepticism.

Ah well… hard cases make bad law.

Boyle v. Leech, 2019 Wash. App. LEXIS 224 (Ct.App. Washington, Jan. 28, 2019). John Leech lived at his current residence as a child in the 1950s. He and his wife Brenda moved back to the property in 1995, and have lived there for the past 24 years.

From the time John was a child, a large coastal redwood tree has grown on the property, about 70 feet from the boundary line the Leeches share with their neighbors Theresa and Kent Boyle. The branches of the stately tree do not come closer to the property line than about 50 feet.

The Boyles moved into their home in July 2013. Soon enough, Terri and Kent noticed that the wind blows debris from the Leeches’ tree onto their property. Sometimes, the debris, which contains tannic acid, causes staining. The staining does not remove easily, requiring power washing or strong cleaning products to remove.

The Boyles hired Brian Allen, a certified arborist, to inspect the coastal redwood. Brian determined that the tree “is dying slowly,” causing excessive sap and cone production. Despite this diagnosis, the tree is not currently considered high risk. On a one-to-ten health scale (one being the highest risk, with the potential for critical failure at any moment), Brian ranked the health of the tree as close to seven. Brian recommended that, “due to client’s motivations, and the potential for continued and worsening damage to surrounding property, removal is recommended.”

Inexplicably, Terri and Kent never complained to the Leeches about the coastal redwood. Rather, they filed a nuisance action against the Leeches, asking for $5,000 in damages and for a court order that the Leeches abate the nuisance by cutting down the tree. When the Leeches recovered from their shock at being sued, they moved for summary judgment, arguing the Boyles failed to establish a prima facie case of nuisance. The trial court agreed, throwing out the Boyles’ lawsuit.

The Boyles appealed.

Held: The Leeches have acted reasonably by keeping the tree, which is entirely on their property, without complaint from anyone before the Boyles. The Boyles’ claim of nuisance thus fails as a matter of law.

RCW 7.48.010 defines “actionable nuisance” as including a number of specific events, such as obstructing a highway or clogging a stream with floating timber, and includes a “catch-all” provision that holds “whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance.”

In Washington, the Court said, “an unreasonable interference with another’s use and enjoyment of property” constitutes a nuisance. Thus, in nuisance cases, the trial court mainly considers whether a party reasonably uses his or her property, balancing the rights, interests, and convenience unique to the case and considering all the surrounding facts and circumstances.

Here, the Court observed, the tree was growing entirely on the Leeches’ property, without any branches overhanging roots encroaching on the Boyles’ yard. The tree is about 80 years old, or any underground Leech believes the tree has been on the property for 80 years. Aside from the Boyles, no neighbor has ever complained to John or Brenda about the tree.

The Boyles described the tree as “a dying tree shedding toxic debris,” but their expert evidence only opined that the tree is dying slowly, but remained relatively healthy. The tree’s debris may have been “excessive,” but it was in no way toxic. Arborist Brian Allen only explained there was a “potential” for continued damage. He recommended the tree be cut down only because that was what his clients, the Boyles, wanted.

The Court of Appeals concluded that the Leeches did not act unreasonably with regard to the tree, especially given the redwood was located entirely on their property. Thus, there was no nuisance, and the Leeches would not be required to remove the tree to prevent staining from occurring on the Boyles’ property.

The Court admitted that no case it could find in Washington or any other state addressed a nuisance action regarding a tree situated wholly on someone else’s property. In Gostina v. Ryland, the Washington Supreme Court ruled that overhanging tree branches or encroaching roots onto a neighboring property constitute nuisances, and that the offended party could cut back any tree branches or roots that intrude onto his or her property. But in dicta, the Gostina court noted, “[t]he remainder of the trees will doubtless shed their leaves and needles upon the [plaintiff’s] premises; but this they must endure positively without remedy.” As well, the Court of Appeals said, in Whitesell v. Houlton – the case that adopted the Hawaii Rule – that court was careful to exclude from the definition of nuisance a tree that only was “casting shade or dropping leaves, flowers, or fruit.”

Certainly, the Court of Appeals ruled, “if natural debris from an overhanging tree should not constitute a nuisance, neither should such debris from a tree that does not encroach onto neighboring property… Wind blowing natural debris from the Leeches’ tree causes staining on the Boyles’ property. We decide that this – debris from a tree wholly on another’s property – does not constitute a nuisance.”

– Tom Root

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Case of the Day – Tuesday, January 29, 2019

THE ENDS NEVER JUSTIFY THE MEANS… EXCEPT WHEN THEY DO

I grew up learning that Niccolo Machiavelli said “the ends justify the means.”  (He didn’t).  But Alexandr Solzhenitsyn did dispute the aphorism Machiavelli never spouted. In The First Circle,  Solzhenitsyn  complained that “the end never justifies the means. Vile means defeat the ends they seek to bring about.”


It made sense to me. But it turns out that, at least in Kentucky, the ends do sometimes justify the means. That’s the principal lesson to take away from today’s case.

And in a strange way, that makes good sense, too. In yesterday’s case, a Kentucky court of appeals quite logically held that where Kentucky law said that a county engineer is responsible for keeping highways clear of fallen trees, a county engineer could not argue that he did not have to comply with the statute simply because the Louisville area metro government decided to organize its department of public works differently. The duty, the Court said, was not held discretionary. Instead, it is ministerial. That is, the duty is clearly stated in law, and all the engineer has to do is perform it.

But when County Engineer Rick Storm went to trial and admitted the statute made him responsible – regardless of the fact he never knew it and had no ability to discharge the statutory obligation even if he had – the jury listened to all the evidence, heard the court’s legal instructions, and yet inexplicably held that Rick was not liable.

Juries. Living contradictions to the belief in the wisdom of the crowd. My first reaction to Rick’s jury was to appreciate a thoughtful survey that appeared yesterday in The New York Law Journal. Entitled “Are We Boring Juries to Death?” the article rightly complained:

Between the closing arguments and the deliberations, judges take jurors on a pseudo crash course through law school. However, law students receive an entire semester of guidance to become versed in the intricacies of substantive law (approximately 48 in-class lecture hours in addition to in-home studying), whereas jurors receive complicated instructions, that cover wide ranging topics, and take between 90 and 120 minutes to disseminate.

And what do we expect from jurors? We expect them to listen to, process, retain, and apply a burdensome breadth of information throughout the course of a trial. We demand they understand at least two different legal theories, digest all testimony and documentary evidence, contemplate issues like credibility, truthfulness, bias, and more. If that was not enough pressure, we require them to almost instantaneously understand dense legalese that attorneys have had the luxury to research and study for hours, and in many cases, years.

Certainly, the authors had a point. You take a group of legal laymen, bore them to death in a warm, sleepy courtroom, cram them with arcane legal jargon, and set them loose to apply knowledge they have only heard once. It’s as amazing that juries ever hit the mark as it is unsurprising that anyone with any sense avoids jury duty.

Yet, the more I thought about the jury letting Rick off the hook, the more sense that inexplicable decision made. The end is getting fallen trees off roads . If Louisville chooses other means to reach the end, why does it really matter? It is the end that justifies the means, even if those means do not include Rick.

Storm v. Martin, 540 S.W.3d 795 (Supreme Ct. Ky., 2017). A windstorm that blew across Louisville dropped power lines and trees. Three days later, Lou Martin was riding his motorcycle on Phillips Lane when he collided with a downed tree in the roadway. Lou was badly hurt.

Lou sued Ted Pullen, Jefferson County Director of Public Works and Rick Storm, who was the Metro Louisville County Engineer, in their individual capacities, alleging negligence due to their failure to remove the downed tree or to warn motorists of the hazard. At the time, Rick reported directly to Ted. Rick and Ted filed a joint motion for summary judgment on grounds that they were entitled to qualified official immunity in their individual capacities. The trial court agreed with Ted but denied the motion with respect to Rick.

Rick appealed. The Court of Appeals noted that KRS 179.070, which sets forth the powers and duties of a county engineer, specifically states that “(1) [t]he county engineer shall… [r]emove trees or other obstacles from the right-of-way of any publicly dedicated road when the tree or other obstacles become a hazard to traffic[.]” Rejecting Rick’s argument that he was not aware of the statute and that the operations and maintenance division of the Department of Public Works was the entity responsible for tree removal, the panel cited Wales v. Pullen (a contemporaneous case against Rick involving a motorist injured by a downed tree in the same windstorm, which we covered yesterday), holding that despite the fact “the Louisville Metro Government Department of Public Works may have chosen to structure its department differently, “based on the statutes as written, a member of the public… would expect the county engineer to remove trees, as evidenced by the clear statutory mandate and power to do so.” The Court said the statute’s use of the word “shall” rendered Rick’s duty ministerial. Thus, he had no qualified immunity.

After that, Rick went to trial. He testified that as county engineer, he and his staff were a division of a larger Department of Public Works, that he had never been responsible for trees, and that the task had always been performed by the operations and maintenance division. Rick admitted that he was unaware of KRS 179.070, and that no one ever told him tree removal was part of his job responsibilities. In fact, Rick said his department did not even have equipment to remove trees. Similarly, Greg Hicks, the Assistant Director in charge of the operations and maintenance division of Public Works, testified that it had always been his division’s responsibility to remove trees from the roadway.

At the close of all evidence, Lou moved for a directed verdict, arguing that Rick had proved the plaintiff’s case. The trial court denied the motion. The jury then returned a unanimous verdict in favor of Rick, finding that Lou had not proven that Rick failed to comply with his duty as set forth in the instruction.” Lou asked for a judgment n.o.v., pointing out that Rick’s testimony conclusively established that he failed to comply with KRS 179.070(1)(j). Lou argued that the jury’s question to the trial court during deliberations showed jurors were less concerned with Rick’s duty and more concerned with whether a judgment would wipe him out financially. The trial court was unmoved.

Not so the Court of Appeals. It reversed and remanded for a new trial, holding that the jury’s findings that Rick did not fail to comply with his duty was against the weight of the evidence, and overlooked the specific duty the statute imposed on Rick.

Rick appealed to the Kentucky Supreme Court.

Held: The Supreme Court disagreed. It found that the record held ample evidence on the issue of Rick’s duty as county engineer, but the evidence supported the jury verdict rather than cut against it. The trial court’s jury instructions did not misstate the engineer’s duties. After the jury heard extensive testimony that the director of public works had assigned tree removal duties to the assistant director in charge of operations and maintenance, and after being instructed on the specific duties required of the county engineer, the jury unanimously found that he had not breached his duty, holding that the statute was directory and substantial compliance could satisfy its provisions.

In order to determine whether strict compliance or substantial compliance is sufficient to satisfy a statutory provision, the Court held, a trial judge must first determine whether the applicable provision is mandatory or directory. This determination is vital, because a proceeding not following a statute’s mandatory provision is illegal and void, while the failure to observe or conform to a directory provision is not. In other words, if the directions given by the statute to accomplish a given end are violated, but the given end is in fact accomplished – without affecting the real merits of the case – then the statute is to be regarded as merely “directory.”

Clearly, the Court held, the intent behind KRS 179.070(1)(j) is to ensure that trees or other obstacles do not block a public roadway. To achieve this goal, the statute requires that, when such obstacles become hazardous, they must be removed. Section 179.070(1)(j) does not mandate that this duty is non-delegable, nor does it provide guidance for how the county engineer is to actually ensure the removal of hazardous trees from a roadway.

“Obviously,” the Supreme Court said, “the statute does not contemplate personal strict compliance on the part of the county engineer as the sole means to accomplish this, particularly so close in time to a severe weather event when a huge number of trees have fallen. Especially under the facts of this case, delegation of tree removal to other agencies or persons could accomplish the intent of the statute, and therefore, the statute is directory and substantial compliance may satisfy its provisions. This duty is ministerial, meaning that Rick Storm is not entitled to immunity, but that does not dictate the duty is absolute. Whether Rick acted negligently by failing to perform a ministerial duty is an issue for the jury to determine… After hearing the testimony, and being instructed on the specific duties required of the county engineer, the jury unanimously found that Storm had not breached his duty.”

– Tom Root

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Case of the Day – Monday, January 28, 2019

THE OSTRICH DEFENSE

It is not an enviable position to be in. As Jefferson County Engineer (Metro Louisville, Kentucky), Rick Storm had a laundry list of duties assigned by the legislature. One of them was to see that downed trees were cleared from the road.

Louisville and metro Jefferson County is a big place, and over the years, the Department of Public Works had swollen to eight departments and 800 employees. Rick’s County Engineer department was a kind of a backwater, with about 50 people mostly doing planning and oversight of other departments’ projects. The days of the County Engineer showing up with a couple guys and a dump truck were long gone in urban, complex, high-speed Louisville.

As for tree removal, Rick’s boss, the Director of the Department of Public Works had a separate office that handled that.

The problem was that state statutory codes are a lot like Roach Motels. Statutes check in, but they rarely check out. One antiquated law on the books required the County Engineer to clean up downed trees.

Rick had no idea the law said that, and in Jefferson County, that wasn’t how they did things, anyway. But when Wally ran his Harley into branches still on the roadway six days after a severe windstorm, he didn’t care what Rick did or didn’t know, or what the Dept. of Public Works did or didn’t prefer to do in cleaning up trees. The law said the inaptly-named Rick Storm was responsible for cleaning up storm-damaged trees, and that was all that Wally needed to know.

Wales v. Pullen, 390 S.W.3d 160 (Ct. Appeals Kentucky, 2012). On September 14, 2008, Louisville was hit by a significant windstorm that resulted in downed power lines and downed trees across the city. Six days later, Wallace Wales was returning home his motorcycle after a night out with friends. As he rode down Wilson Avenue, he hit branches of a tree thin the middle of the roadway and crashed.

Ted Pullen is the Metro Louisville Director of Public Works and Assets, running an agency of almost 800 employees working in eight divisions. Each division has either an assistant director or a manager who supervises the division and reports directly to Pullen. Rick Storm was one of those managers, an Assistant Director of Public Works, overseeing the engineering division. He also served as the County Engineer to represent the Louisville Jefferson County Metro community on the Planning Commission. As the Assistant Director over the engineering division, Storm supervised about 50 employees who managed all manner of engineering, including highway construction and maintenance, Rick also helped Ted run the department.

Following the motorcycle accident, Wally Wales sued Louisville Gas & Electric, Ted Pullen and Rick Storm in their official and individual capacities, for failure to remove the downed trees or place adequate warnings of the trees on Wilson Avenue. Ted and Rick filed a joint motion to dismiss, claiming that the allegations against them in their official capacities were barred by the doctrine of sovereign immunity and that the claims against them in their individual capacities should be dismissed because they were entitled to qualified official immunity.

Wally admitted that Rick and Ted could not be held liable in their official capacities, but argued that they were only subject to qualified official immunity. Kentucky Revised Statutes (KRS) 179.070 required the county engineer to remove trees or other obstacles from the right-of-way when they become a hazard to traffic. The trial court held that appears that Storm’s action or omission of removing a downed tree would be considered ministerial in nature.

Under normal circumstances, when a tree falls onto a Louisville street, someone notifies 911 and 911 will contact Police or Fire and Public Works. A Public Works supervisor is dispatched to the scene, and the utility company, Public Works or a private contractor (if the job is too big) will cut up the tree. Ted said this is an unwritten procedure that everyone knows from his or her experience in the Public Works Department.

Following the 2008 windstorm, the Public Works Department, feeling “vastly overwhelmed” by the number of calls, put incoming calls about downed trees on a list and distributed those lists to the district areas. Ted’s executive assistant maintained the list and was responsible for making the assignments. Ted admitted he knew Kentucky statutory law placed a duty upon the County Engineer to remove trees in the road hat cause a public safety hazard. However, Ted never discussed Rick’s statutory duty with him and never told him that removing trees was included in his official duties.

Rick said he never read KRS 179.070 and that no one ever told him that removing trees was part of his job duties. He indicated that Public Works had a sub-department that handled tree removal, and that he was simply too busy to have that function as one of his job duties, especially given the size of the city. When asked why he thought the statute did not apply to him, Rick said he was simply not aware of the statute. He admitted he did not remove trees from the roadway during the post-storm cleanup period, and he did not ask anyone to remove any such trees from the roadway during that time.

Ted argued to the trial court that as the head of Public Works, he was only required to supervise his employees and ensure implementation of the department’s policies. He claimed that he was not personally responsible for removing trees from roadways or otherwise ensuring that roadways were safe. For his part, Rick denied that as the County Engineer, he was responsible for removing trees and other obstacles from the roadways.

The trial court found both Ted and Rick were entitled to qualified official immunity. Th judge concluded no one alleged that Ted or the employees he directly supervised were charged with the removal of the tree. The court held that “none of [Pullen’s] duties involve obedience to the orders, or the execution of any specific act, such that they are ministerial in nature.” With respect to Rick, the trial judge overlooked his previous holding that given the language of KRS 179.070, Rick’s “action or omission of removing a downed tree would be considered ministerial in nature.” Instead, the trial court relied on Ricks own statement that he was never informed of the statute and that he was never told that removing trees was part of his job. Concluding that Rick had no actual authority to direct the removal of storm debris, the trial court held that he did not owe Wally any duty.

Wally appealed.

Held: Under KRS 179.070, the county engineer had the duty and authority to remove a downed tree, and he was liable for any negligence in failing to remove the trees or in improperly removing the trees. Rick was not entitled to qualified official immunity. Ted, however, was entitled to qualified official immunity inasmuch as his duties were discretionary in nature. Nothing in the record suggested Ted acted in bad faith with respect to any of his duties.

While government officials and employees like Ted and Rick may enjoy immunity in their official capacity, they do not enjoy immunity for negligent performance of ministerial tasks when sued in their individual capacity. When a state officer or employee is sued in his or her individual capacity, he or she is protected only by a qualified official immunity.

Sovereign immunity is the principle that a sovereign nation is inherently immune from suit unless it has given its consent to be sued. This immunity extends to legislators in the performance of their legislative functions, judges for their judicial functions, and prosecutors for the performance of the prosecutorial functions. The rationale for this is to protect these offices against the deterrent effect of a threat of suit alleging improper motives where there has been no more than a mistake or a disagreement on the part of the complaining party with the decision made.

Questions regarding immunity for other governmental positions are resolved by examining the nature of the functions with which a particular official has been lawfully entrusted, and evaluating the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Absolute immunity of a government official from suit for monetary damages is justified only when the danger of the official being deflected from the effective performance of his or her public duty is great.

Qualified immunity affords protection from damages arising from good faith judgment calls made in a legally uncertain environment. It applies to negligence only where the acts or functions are discretionary, where the acts were taken in good faith; and where the acts are within the scope of the employee or the officer’s authority. Government employees are not afforded qualified immunity for any ministerial act or any discretionary act performed in bad faith.

The decision as to whether acts are discretionary or ministerial must be determined by the facts of each particular case after weighing such factors as the nature of the official’s duties, the extent to which the acts involve policymaking or the exercise of professional expertise and judgment, and the likely consequences of withholding immunity. An act is not discretionary merely because some judgment is used in deciding on the means or method used. Where the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will be liable to the individual for any injury which he may proximately sustain in consequence of the officer’s failure or neglect to perform the duty at all or to perform it properly. In such a case the officer is liable as well for nonfeasance as for misfeasance or malfeasance.

Wally argued that the trial court disregarded KRS 179.070(1)(j), which stated that county engineers will remove trees from roadways and held that Storm had no actual authority in his position to remove the trees at issue in this case. KRS 179.070 holds that a county engineer shall, among other things, remove trees or other obstacles from the right-of-way of any publicly dedicated road when the tree or other obstacles become a hazard to traffic.”

Given the clear statutory mandate to remove trees, the Court of Appeals said, Rick as the County Engineer had “the duty and authority to remove a downed tree.” While the Jefferson County Metro Public Works Department may have chosen to structure its department differently, based on the statutes as written, a member of the public – like Wally – would reasonably expect the county engineer to remove trees, as evidenced by the clear statutory mandate and power to do so. Rick’s duty, the Court found, was not discretionary, but rather was ministerial. Therefore, he was personally liable for negligence in failing to remove the trees or in improperly removing the trees.

Parenthetically, the Court noted, “the trial court’s reliance on Rick’s statements that he was never informed of this statutory duty was in error. This Court does not believe this is an adequate defense for a public official or employee seeking the protection of sovereign immunity… [W]here the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will be liable to such individual for any injury which he may proximately sustain in consequence of the failure or neglect of the officer either to perform the duty at all, or to perform it properly.

Ted, however, did have qualified official immunity. As the director of public works, his duties did not involve mere obedience to others, and were discretionary in nature.

– Tom Root

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Case of the Day – Friday, January 25, 2019

FORCE MAJEURE

Does anyone remember Hurricane Katrina? Who could forget the immensity of the storm, the devastation, the lives lost, the agony?

Ms. Title spent a lot of money in court defending herself against the Hoerners ... but she won this chic tote bag. She should read its message ... every day.

Ms. Title spent a lot of money in court defending herself against the Hoerners … but she won this chic tote bag. She should read its message … every day.

Doctor and Mrs. Hoerner, that’s who. These folks – Big Easy residents for 25 years – sued their neighbor, Beulah Title, under the Louisiana Civil Code article that governed negligence. It seems Ms. Title’s trees were kind of bushy, and the neighbors were always cutting them back. Ms. Title, a better neighbor to the Hoerners than they were to her, always let them trim the trees and even cut down an oak once when the Hoerners asked her to. She was a very a nice neighbor … a kindly lady who learned the hard way that Oscar Wilde was right: no good deed goes unpunished.

When the big blow came, it took down a couple of Ms. Title’s pine trees, damaging the Hoerners’ brick wall, patio and pool. And probably spilled their pitcher of martinis. Imagine the horror! We bet those poor folks in the Lower Ninth Ward didn’t have it any worse than the Hoerners. But the Hoerners had something those victims in the Crescent City’s worst neighborhood didn’t have: a lawyer. He sued Ms. Title, arguing that because she knew the trees were overgrowing the Hoerners and needed trimming, that she was liable for the damage caused when they toppled.

The courts made pretty short work of this. Rather patiently, we think, the Court of Appeals explained to the clueless (or avaricious, take your pick) Hoerners that the trees didn’t fall because of the overhanging branches. They fell because of this Cat 5 hurricane that hit the city, the one the Hoerners must have overlooked.

The Court held that even the branches had been the cause, Ms. Title could avail herself of the force majeure defense, specifically that even if she had exercised reasonable care, the injury couldn’t have been avoided because of the intervention of a greater force unforeseen by the parties.

Hoerner v. Title, 968 So.2d 217 (La.App. 4 Cir., Sept. 26, 2007). Be warned: Beulah Title is a person, not a title insurance company. Beulah Title the person had property right behind the home of Linda and Harry Hoerner. The Hoerners complained that that they had had problems with Ms. Title’s pine trees and other foliage along their brick wall since 1991. Yet, every time Dr. Hoerner sought permission to trim the trees and shrubs back to the property line, Ms. Title allowed him to do so. On many occasions, the Hoerners removed branches from Ms. Title’s trees that were hanging over the brick wall. On one occasion, Ms. Title removed an oak tree from her backyard at the Hoerners’ request. The Hoerners did not allege that the trees in question were defective, just that they were bushy.

During Hurricane Katrina, the trunks of Ms. Title’s trees were blown, damaging the Hoerner’s brick wall, patio, pool and landscaping. The damage was not caused by branches hanging over the wall, and the trees did not fall due to lack of maintenance or improper trimming. Nevertheless, the Hoerners sued Ms. Title for repairs to their property, alleging that she was strictly liable under Article 2317.1 of the Louisiana Civil Code. That provision directed that the owner of a thing (like a tree) was liable for damage occasioned by its defect upon a showing that she knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that she failed to exercise such reasonable care. Ms. Title argued that the trees were not defective and she is entitled to the defense of force majeure. The trial court agreed with Ms. Title, and the Hoerners appealed.

Force majuere - not a French superhero group - rather, a rational legal concept.

Force majeure – not a French superhero group – rather, a rational legal concept.

Held: Ms. Title was not liable. Under Article 2317.1, in order to establish liability a plaintiff must demonstrate that the owner of the thing knew, or should have known, in the exercise of reasonable care of the defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that the owner failed to exercise such reasonable care. Here, the Hoerners admitted that the trees were healthy, but they complained they were defective because they were neglected and overgrown and placed too close to the brick wall. The Hoerners cited a case where lack of tree maintenance was considered in finding that the owner had knowledge, but the Court observed that case involved a diseased tree. Ms. Title’s trees, on the other hand, were healthy.

Based on the evidence, the Court said, it did not find that Ms. Title’s trees were defective for lack of maintenance or location. While the Hoerners had shown Ms. Title’s trees had plenty of overgrowth into their yard, the evidence showed that the trees themselves were blown over and into the brick wall, causing all of the damage to the Hoerners’ property. It was not the overgrowth that did the damage. Additionally, Ms. Title was entitled to the defense of force majeure. The Court observed that the winds of Hurricane Katrina caused trees to fall and damage property regardless of maintenance or location all over the Greater New Orleans area. Thus, she could not be liable for the fallen trees under any circumstances.

– Tom Root

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Case of the Day – Thursday, January 24, 2019

THAT’S PERSONAL

Reader Paul D. sent a comment yesterday:

Figuring damages for tree loss… I don’t understand why you would use diminution of property value… Unless you were going to soon sell the property or you had a business on the property or your property generated some kind of income. But if the trees were for a personal reason, such as shade or privacy, wouldn’t the better way of proving damages be the current value of trees removed or at least restoration costs?

I think placing a diminution price on a residential property can often be very subjective and inaccurate, especially compared to having a qualified arborist make a value assessment .

Paul asks a good question. Why would anyone prefer diminution in property value over restoration costs or stumpage value?

Here’s a prime example of someone who might: A few years ago, a tree service company sent a crew to an address in Grove City, Ohio, to remove a maple on the front lawn. Instead of going to 1553 Main Street, the crew mistakenly went to 1533 Main Street. That house, coincidentally, also had a maple tree in its front lawn, a magnificent and healthy specimen that the homeowner loved very much.

You can guess what happened. While the homeowner was obliviously toiling in his office 10 miles away, the tree cutting crew made short work of the beautiful maple. When the owner arrived home that evening, his arboreal pride and joy was nothing but a stump and some sawdust.

There was no question about liability: the tree service company goofed. But how much to pay for the tree? Stumpage value makes no sense. The homeowner wasn’t raising the tree to sell the timber. Replacement cost for the tree might be a fairer measure. However, the largest tree that could be planted for the homeowner – with costs of a few thousand dollars – will not begin to replace the lost tree.

In our homeowner’s case, the measure of damages we finally settled on was a real estate appraisal that concluded that the value of the home had been lessened by about $17,000 by the removal of the mature tree.

Today’s case considers what might happen if the removal of the trees does not diminish the value of the property. A man named Chung bought a parcel of land for a home. When he had a tree cutting service clear the land for construction, the cutters crossed the line onto Rora Park’s land, and removed about 560 trees. The decision only implies this, but it appears that the “accident” might not have been accidental at all. Rather, Chung may have steered the cutters in the wrong direction in order to improve the view from his land.

Whatever the reason, the liability was certain. The problem arose because removing 560 trees didn’t really decrease the value of Rora Park’s land at all. Hard to believe, but then, Alaska is a pretty big place. So Ms. Park demanded restoration damages, payment of the cost of restor-ing the property by planting new trees. That would have been about $400,000. The trial court granted damages equal to the cost of replanting 50 trees, but the Alaskan Supreme Court reversed.

Chief Justice Oliver Wendell Holmes, Jr.

       Chief Justice Oliver Wendell Holmes, Jr.

It seems that if the wronged property owner doesn’t have a “reason personal to the land-owner for restoring the trees,” an Alaskan court won’t use that measure of damages. In this case, Ms. Park waxed eloquent about how that she had once had cancer, and “this natural beauty of my yard is [a] healing spot for me, and . . . after work I come by, see my property and see the natural beauty and the trees and all that[. W]hen I [saw] that all cut out it just [made] me very – [it] just [broke] my heart, and then very angry . . .” Unfortunately for her, she later tried to downplay how often she visited the property.

The trial court wouldn’t let her have it both ways, and found that she hadn’t justified restoration damages. But, apparently troubled by Ms. Parks’ neighbor getting away with a fast one, the trial court nevertheless awarded her restoration damages anyway. It may have seemed like justice, but it wasn’t the law.

The Alaskan Supreme Court said that restoration damages could be awarded only if Park had a “reason personal” for restoring her property. Because she failed to prove she had such a reason, she ended up being entitled to pretty much nothing.

There’s something not right about letting a slippery character like Chung pull a fast one, cut down 50 of the neighbor’s trees for a better view, and not have to pay damages for it. But that’s the system for you. It reminds one of a quotation attributed to Oliver Wendell Holmes, Jr: “This is a court of law, young man, not a court of justice.”

Chung v. Park, 339 P.3d (Sup.Ct. Alaska, 2014). Landowner Rora Park sued her neighbor Christopher Chung for trespass, alleging that he cleared about 50 trees from her property without permission. The trial court found that the tree cutting did not diminish the property value and that there was no reason personal to the landowner for restoring the trees. But the trial judge nevertheless awarded damages equal to the cost of restoring 50 trees on the property.

Ordinarily, a landowner damaged by a trespass may recover either the loss in property value or reasonable restoration costs. But restoration costs are inappropriate if they are disproportionate to the loss in property value, unless there is a reason personal to the landowner for restoring the land. We thus conclude that we must vacate this award.

Chung hired a company to build the foundation of his new house. As part of that project, the contractor agreed to clear trees and other vegetation from the lot. Aerial photographs indicate that some trees were removed from Park’s property near the border of Chung’s lot between August 2008 and the end of September 2008, and more trees were removed between 2008 and 2009. The trees appear to have been removed more or less directly behind the house built on Chung’s property. Timber debris, presumably from the cleared trees, was also discovered buried on Park’s property. An expert witness hired by Park estimated that 562 trees were cleared from about a third of an acre of Park’s property. He calculated that it would cost over $400,000 to restore the property to its former condition. But Chung’s expert witness testified that the market value of Park’s property was likely not affected by the removal of trees.

trespasstimber150126The trial court found Chung liable for the trees removed from Park’s property. Although the court acknowledged that Park had not proved that the tree cutting reduced the value of her property and found that Park had no reason personal for replacing the trees, it nevertheless concluded that “it would be reasonable both aesthetically and legally to award damages that would permit replacement of trees on that first portion of the lot that can be clearly shown to have been scraped clean as of September 27th, 2008.” The court therefore awarded Park the cost of replacing 50 trees, $23,500. Because the court found that Chung’s trespass was intentional, it awarded treble damages under AS 09.45.730.

Chung appealed.

Held: The Alaska Supreme Court vacated the damage award. It held that a party who is injured by an invasion of his property not totally destroying its value may choose as damages either the loss in value or reasonable restoration costs. But reasonable restoration costs are an inappropriate measure of damages when those costs are disproportionately larger than the diminution in the value of the land and there is no reason personal to the owner for restoring the land to its original condition. A reason personal is one that is “peculiar or special to the owner.” The Court said “We require the landowner to demonstrate a reason personal because we believe it indicates circumstances where the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.”

meditation160218

     Ms. Park tried to sell the court that the trees were her “personal healing spot.” New wave … or just trying to pump up her damages?

During trial in this case, Park tried to establish a reason personal  for replacing the trees that Chung had allegedly removed. She talked about having had cancer, and relying on her property as a “healing spot for me.” But later in the trial, she downplayed her visits to the property. As a result, the court found that Park had not established a reason personal for restoring her property.

According to the unrebutted testimony of Chung’s expert witness, the removal of trees from Park’s property did not appreciably affect the value of her property. The trial court accepted that testimony in its findings of fact. Therefore, the Supreme Court concluded, the damages the trial court awarded – $23,500 before trebling – were disproportionate to the diminution of the property value. The Court said that the trial court could award restoration damages only if it found that Park had a reason personal for restoring her property. Because it did not, the trial court’s award of compensatory damages that exceeded the diminution in the market value of Park’s property was not appropriate.

– Tom Root

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