Case of the Day – Thursday, December 31, 2020


Quite unintentionally, the execrable 2020 – as it slinks out the door in well-deserved shame – is ending with an orgy of self-reliance versus resort to the courts. Tuesday, we reviewed a Florida case, Balzer v. Maxwell, in which the court held that the fact that an aggrieved landowner has no remedy but self-help means that when he or she exercises that right, the tree owner has no claim for what might become of the tree. Yesterday, we read a Massachusetts court holding that, on the other hand, when a city takes over an abandoned property for taxes, it assumes liability for hazard trees on the property.

In today’s case, Pennsylvania applies the Massachusetts Rule principles of self-reliance to encroaching tree roots.

Keiper v. Yenser, 1967 Pa. Dist. & Cnty. Dec. LEXIS 171 (Common Pleas Ct, Carbon County, Pa., January 23, 1967). Bill and Becky Keiper complained that for more than five years, the roots of Yensers’ willow tree have been extending into their land and penetrating their sewer line, which has cost the Keipers $166.07. They seek reimbursement for the money they have spent and a court order for the permanent abatement of the root encroachment (that is, an order that the Yensers remove the roots at their expense).

The Yensers filed a demurrer; in the alternative, they argued that laches prevented the Keipers from winning, and contended that abatement should not be ordered because the Keipers had an adequate remedy at law.

Held: The Keipers claim had to be dismissed.

Pennsylvania has no statute that would permit the Keipers to claim that the Yensers’ tree was a nuisance. Nor was there any case precedent.

However, looking at other states, the Court noted that in Gostina v. Ryland, a Washington state case, the court held that “were it not for our statute of nuisances, the respondents herein would not be accorded any judicial relief”. And Michalson v. Nutting, the Court said, held in very similar circumstances that “the neighbor, though without right of appeal to the courts if harm results to him, is nevertheless, not without remedy. His right to cut off the intruding boughs and roots is well recognized. His remedy is in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

Thus, the Court held, while the Keipers could cut the offending roots themselves, they had no cause of action to compel the Yensers to do so. “It is a principle well settled by many adjudicated cases, that an action does not lie for a reasonable use of one’s right, though it be to the injury of another. For the lawful use of his own property, a party is not answerable in damages, unless on proof of negligence…”

– Tom Root


Case of the Day – Wednesday, December 30, 2020


I live near enough to Cleveland to be aware of the blight of homes abandoned there during the Great Recession. The owners leave, the banks foreclose, the homes decay, the taxes are no longer paid, and the city tries to sell them for tax debts. Many times, the city ends up owning them.

Yet, Cleveland is an enclave of plenty compared to Detroit, where the blight covers mile after mile. A third of all homes in that bankrupt city had been foreclosed upon by 2015.

So who is responsible for the nuisances that these decaying homes (and untrimmed foliage) create? Generally, it’s the owner, or the entity with the right to control the property. In today’s case, decided when I was not yet a teen, a city argued that it owned and controlled an abandoned property for some purposes, but not where abating a nuisance was concerned.

Neighbor Harry Homeowner, who was beaned on the noggin by a branch from a dead tree on the neighboring lot, argued, “Hey, if you own it, you own it.”

Kurtigian v. Worcester, 203 N.E.2d 692 (Supreme Jud. Ct., Mass. 1965). Harry Kurtigian was working in his yard one windy October day in 1959 when he was struck by a limb blown from a decayed tree on adjoining property.

A large elm tree was situated in the southeast corner of the lot next to Harry’s, one which had been owned by Beatrice R. Norling. By 1954, Beatrice was dead and the tree was soon to follow, having been afflicted with Dutch elm disease. By 1956, there were no leaves on the 35-foot tall tree at all, and the bark peeled from the trunk by year’s end.

Two years later, a large branch fell during a summer thunderstorm, crushing Harry’s fence. He called the City, who sent an inspector to look at the tree. About 15 months later, the tree still standing undisturbed, Harry was walking in his yard when he heard a cracking sound, looked up, and saw a heavy limb falling toward him. He was knocked unconscious, suffering a skull, arm and wrist fracture.

The lot next door was undeveloped and wooded, having been acquired by the City of Worcester in 1950 for nonpayment of taxes. Harry sued for the City for negligence and for maintaining a nuisance tree,

The lower court found the City was negligent, but that the tree was not a nuisance. The City appealed.

Held: The tree was a nuisance, and the City was liable to Harry.

Liability for damage caused by the defective condition of premises turns upon whether a defendant was in control, either through ownership or otherwise. The City argued that it did not have title to and control of the real estate. But the records showed that the City recorded in the registry of deeds an instrument of taking in August 1950, pursuant to law for nonpayment of taxes. Three years later, the City recorded a notice of foreclosure, and seven years after that, a “Notice of Disposal in Tax Lien Case” executed by the Land Court was recorded in the registry of deeds, noting that there had been entered in the Land Court a decree foreclosing and barring rights of redemption by the prior owners to the lot. That was enough for the Court to rule that “at all material times the city… to the extent permitted by that chapter, engaged in the operation, maintenance, control, and sale of tax title property

The City said its taking of the property pursuant to vested title, subject only to the right of the owners to redeem the property by paying the taxes, is really more in the nature of security until the right of redemption was foreclosed. In other words, the City complained it did not have absolute title, would have been able to keep only the amount of its lien in the event of a taking by eminent domain, and before the right of redemption was foreclosed could not have collected any rents.

Harry, on the other hand, argued that G. L. c. 60, § 54 grants the City the right to possession as soon as a tax title is issued, as opposed to another statute not letting a private buyer from getting possession for two years after buy at a sale.

The Court said that dispute was irrelevant, because the City acquired a tax title nine years before the branch fell, so that even if the two-year period applied, it had long since passed. “In any event,” the Court said, “the city’s right to possession long preceded the date of injury.”

The City, however, contended that held the property in its “governmental capacity” rather than in its “proprietary capacity.” The collection of taxes is a governmental function, the City argued, and it is not liable for the tortious acts of its officers in fulfilling a governmental function. The Court made short work of that argument. The City was maintaining a nuisance on the vacant lot, the Court ruled and “there is no such immunity, however, where there is a nuisance maintained on real estate owned or controlled by a municipality, and this principle obtains ‘even where the nuisance arises out of the performance by the municipality of a governmental duty in the interests of the general public’.”

The liability of a municipality as owner of land for a private nuisance on the land is no different than the liability of natural person, the Court said. Trees can be a nuisance as much as can a dilapidated building. “As the limb did not overhang the plaintiff’s land,” the Court said, “we have no occasion to examine the question whether the plaintiff is limited to self-help as in Michalson v. Nutting.” What’s more, the Court said, no one has argued that there should be a distinction between trees naturally on land and those which have been planted, “even assuming it is possible to ascertain the origin of this particular tree.”

The Court held that the evidence showed that there was, as early as 1956 when the tree died, a private nuisance as to Harry and his property. While not a public shade tree, the elm was on land owned by and subject to the control of the city. It was obviously decayed. A nuisance came into existence while the City was in control of the land. “Public policy in a civilized community requires that there be someone to be held responsible for a private nuisance on each piece of real estate, and, particularly in an urban area, that there be no oases of nonliability where a private nuisance may be maintained with impunity.”

– Tom Root


Case of the Day – Tuesday, December 29, 2020


I confess that I have always been a little uneasy at the cases that balance the Massachusetts Rule against harm – even inevitable harm – to a neighbor’s tree. If the Massachusetts Rule says that a landowner suffering harm from a neighbor’s tree has no recourse but to trim branches and roots back to the property line, it seemed like holding that the tree owner had no recourse if the trimming harmed the tree was just a practical application of the commonsense notion that what is sauce for the goose is as well sauce for the gander.

The property line limitation of the Massachusetts Rule is quite necessary. You cannot have the neighbor wandering into your yard, hacking the tree branch back to the trunk. But at the same time, standards of careful tree maintenance (think ANSI Standard A300) would suggest that cutting a limb halfway back to the trunk is negligence. Inasmuch as the afflicted neighbor cannot trim the tree beyond the property line to acceptable standards without the tree owner’s permission, the neighbor would be sandbagged if she were liable for not trimming it in a way that did not damage it.

Likewise, if a neighbor can save her foundation only by severing so many roots on her property that the tree’s health and safety is jeopardized, why should she be liable for what happens to the tree? It’s not as though she could have sued to have the tree removed: that’s the whole point of the Massachusetts Rule.

And yet, in cases like Brewer v. Dick Lavy Farms, LLC, Fliegman v. Rubin, and Booska v. Patel lead the march toward limiting the Massachusetts Rule with the rule that a landowner had a duty to act reasonably when exercising self-help rights. Such a limitation on the Massachusetts Rule almost guarantees that the Rule will be further watered down by permitting suits against tree owners for encroachment. And when that happens, the Massachusetts Rule will be indistinguishable from the Hawaii Rule.

My worry that what some may be progress is just needless change is why I ended 2018 so cheered by a year-end decision from Florida that so succinctly expressed my own feeling that the Massachusetts Rule requires that the prohibition on bringing suit apply as much to the goose as it does to the gander.

Balzer v. Maxwell, Case No. 1D18-3182 (Ct.App. 1st Dist., Dec. 31, 2018), 2018 Fla. App. LEXIS 18792. A large pine tree stood on Barbara Balzer’s property near her boundary with a parcel owned by Cindy Ryan. The tree’s roots encroached onto Cindy’s property, damaging the sewer line that ran under their driveway. To fix the sewer line, Cindy hired Hoyt Maxwell to remove her driveway and replace the line. While removing the driveway, Hoyt cut some of the encroaching tree roots. Although he did not kill the tree, Hoyt undermined the tree’s structural integrity and increased the risk that it might someday fall on Barbara’s house. To be prudent, Barbara paid to have the tree removed.

Afterwards, she sued Cindy to recover the costs of removing the tree. After a nonjury trial, the court awarded Barbara only a portion of her costs to remove the tree. Barbara appealed, arguing that the county court erred by not awarding all of her costs. Cindy and Hoyt cross-appealed, arguing that the county court erred in finding them liable for damaging the tree because Cindy had the right to cut the encroaching tree roots. The circuit court reversed, reasoning that because Barbara could not be compelled to pay for Cindy’s damaged sewer line, she likewise had no cause of action against Cindy and Hoyt if the tree was damaged when Cindy exercised her privilege to cut the roots encroaching onto her property.

Barbara sought review of the circuit court appellate decision.

Held: Because the circuit court’s decision did not violate any clearly established principle of law, its decision holding that Cindy and Hoyt were not liable was upheld.

The holding in this decision, known as a second-tier certiorari proceeding, was limited to deciding whether the lower court’s decision departed from “clearly established principle of law” resulting in a miscarriage of justice. If there is no controlling precedent, certiorari relief cannot be granted because without such precedent, the reviewing court “cannot conclude that a circuit court violated a clearly established principle of law.”

Under Florida law, the Court observed, it is well-established that an owner of a healthy tree is not liable to an adjoining property owner for damage caused by encroaching tree branches or roots, but the adjoining property owner “is privileged to trim back, at his own expense, any encroaching tree roots or branches… which has grown onto his property.”

The issue in this case, however, was slightly different, whether an adjoining property owner is liable to the tree owner when the self-help remedy damages to the tree. The Court held that while there is conflicting decisions on the issue in other states, no Florida court has weighed in on the issue. For that reason, the Court said, “it follows that the circuit court did not violate clearly established law in ruling the way that it did.”

Barbara argued that McCain v. Florida Power Corp., established negligence principles extended to suits against landowners in circumstances like this case. The Court disagreed, because Barbara did not allege and the evidence did not show that Cindy damaged anything other than the tree whose encroaching roots Cindy “undisputedly had a right to cut.” The Court concluded that a “rule imposing liability for causing any damage to the tree in these circumstances would effectively eviscerate that right.”

– Tom Root


Case of the Day – Monday, December 28, 2020


pinkyswear150204Hey, kids! Remember “cross my heart and hope to die?” How “swear on a stack of Bibles?” Even if you’re too young for those old chestnuts, you all know what a “pinky swear” is.

Sadly, Robert Grey Johnson, Jr., does not. Mr. Grey Johnson lived in tony Monarch Bay Terrace, on the Pacific Ocean between Long Beach and San Diego. The community is governed by the Monarch Bay Terrace Property Owners Association, a type of local quasi-governmental regulatory body that gives despotism a bad name. A few years ago, Monarch Bay POA and Grey Johnson became embroiled in a dispute concerning his alleged installation of various “unapproved” trees on his property, and his failure to properly trim and maintain all of his trees so they didn’t impede either use of the sidewalks adjacent to his property or – more important when the “starter houses” in your neighborhood sell for over a million bucks – the ocean views of his neighbors.

To settle that earlier case, Grey Johnson promised to abide by a settlement that spanned more than 20 pages. He said he abide by Monarch Bay’s “Covenants, Conditions and Restrictions” and seek prior approval of any trees planted on his property. He conceded that Monarch Bay POA’s board of directors would have “sole discretion” to determine the proper height of any tree, or whether any new or existing planting constitutes a view impediment or a nuisance – and that its decisions would be “final.” Finally, Grey Johnson promised to remove certain trees, trim or top other trees, as necessary, to maintain them at rooftop level; and pay a fine of $250.00, plus $500.00 in attorney fees to Monarch Bay.

crossedfingers150206No one looked behind Grey Johnson’s back while he signed off on the deal, or they might have seen his crossed fingers. A few years later, after Grey Johnson had failed to trim his trees as he promised, the parties were back in court. The POA wanted the trial judge to enforce the deal. Grey Johnson, who channeled Joyce Kilmer, argued that he should not be required to “top” the tree that some of his neighbors characterize as an impediment to their ocean views, even though he earlier agreed to do that very thing.

The court was unimpressed. Kilmer, the judge pointed out, didn’t say that trees were lovelier than ocean views – just poems. Grey Johnson offered fifty shades of justification for not honoring the deal, but the court saw through them. After the trial court upheld the deal, he took his plea to the Court of Appeals, which wisely observed that “this case is not about whether Johnson should be required to top his tree – or whether Kilmer would have approved of his doing so. It’s about whether Johnson’s voluntary agreement to do it is legally enforceable, even though he doesn’t want to do it anymore. It is.”

Our hats are off in homage to the salesmanship of the lawyer who convinced Grey Johnson that he ought to bankroll this turkey. Had Grey Johnson come to us, we probably would have uncreatively told him to “keep your word… you signed the deal, now live with it.” Which, come to think of it, is exactly what the Court of Appeals told him.

The moral? Lawyers often say that a “bad settlement is better than a good lawsuit.” True, but that settlement is more than a technicality on the road to ending some pesky litigation. Courts presume the parties understand what they’re signing, and won’t later entertain deviceful arguments for ignoring the plain terms of the deal.

It's a pretty fine view - what you'd expect for ocean vistas that start round $2.5 million.

It’s a pretty fine view – what you’d expect for ocean vistas that start around $2.5 million.

Monarch Bay Property Owners Ass’n v. Johnson, Case No. G043518 (Ct.App. 4th Div. Cal., Oct. 19, 2011), 2011 Cal. LEXIS 13258. Bob Johnson, a homeowner in Monarch Bay, became embroiled in a dispute with the Monarch Bay Property Owners Association over his installation of various “unapproved” trees on his property, and his failure to properly trim and maintain other trees to ensure they were not impeding use of the sidewalks adjacent to his property, or the ocean views of his neighbors. In 2008, the parties settled the dispute with a lengthy settlement agreement, in which Johnson promised abide by the community’s Covenants, Conditions and Restrictions, and would seek prior approval of any plantings on his property. He also agreed that the POA’s board of directors would have sole discretion to determine the proper height of any trees, or whether new or existing trees constitutes a view impediment or a nuisance. Johnson promised to remove some trees and trim others as necessary to maintain them at roof level, and to pay a modest fine. The parties agreed that a particular Canary pine “will be inspected” nine months after the date of settlement to determine whether it creates any view impediments. If it does, it would be further trimmed – but only if a “neutral arborist” (paid by Monarch Bay) determines that doing so would not permanently injure the tree. The settlement specified that the POA could enter a judgment against Johnson if he didn’t comply.

Right after signing the settlement agreement, Johnson removed and trimmed trees as he had promised to do. However, when Monarch Bay inspected his property nine months after the settlement, it determined that he had failed to properly maintain the trimming of his existing trees, and also that the Canary pine appeared to be impeding the views of his neighbors. The POA concluded that Johnson was in breach of the settlement agreement, and sought entry of judgment against him.

Monarch Bay’s motion for entry of judgment was filed just over one year after the settlement date. Johnson opposed the motion, arguing that he was in compliance with the terms of the settlement agreement, but that Monarch Bay had breached it by “fail[ing] to inspect the Canary pine within the nine month period of the agreement.” Johnson also argued that Monarch Bay had provided no evidence that further trimming of the Canary pine would not endanger it, and that the stipulated judgment was too “vague” and lacking in objective standards to be enforceable.

The court denied the POA’s motion, without prejudice, because it lacked sufficient supporting evidence to establish Johnson’s breach of the agreement. The POA refiled its motion for entry of judgment five months later, supported by additional evidence, including the declaration of a neutral arborist, and declarations of neighbors attesting to view impairment. Also included with the moving papers was a copy of the stipulated judgment which the court was being asked to enter. Johnson again filed opposition. The trial court entered judgment for the POA on December 29, 2009.

Johnson appealed.

Held: The POA was entitled to its judgment. Johnson asserted two primary bases for challenging the stipulated judgment which arose out the prior settlement. First, he claims the court was without jurisdiction to enter an order enforcing the parties’ settlement pursuant to Code of Civil Procedure section 664, because Monarch Bay’s motion was brought more than one year after the date of the settlement, in violation of a provision requiring that the case be dismissed no later than one year after the settlement date. And second, Johnson claimed that the terms of the judgment as entered are materially different from those he stipulated to. Neither argument is persuasive.

stackofbibles150204The Court ruled that the settlement agreement did not actually require that the case be dismissed within a year after the settlement date – or at all. Instead, what the provision Johnson relies upon does is prohibit dismissal of the case for a period of time. But even if settlement had imposed a deadline or dismissal of the case, Johnson would have waived any right to rely upon it by failing to enforce it prior to entry of judgment. Until the case was actually dismissed – which this one never was – the court retained jurisdiction to enter judgment.

The Court also held that Johnson’s argument concerning the specific terms of the judgment ignored the plain fact that, as part of the settlement agreement, Johnson expressly stipulated to the exact terms of the judgment to be entered against him if he failed to comply with his obligations under the settlement agreement. While Johnson may be unhappy with its terms, the Court held, it is too late for him to raise that issue now.

Finally, Johnson also challenged the trial court’s award of about $60,000 in attorney fees incurred by the POA in enforcing the settlement agreement. The Court of Appeals upheld the award, holding that “the parties specifically provided in their stipulated judgment for an additional award of attorney fees incurred by Monarch Bay ‘in enforcement of the stipulation,’ which would equate to the fees expended to obtain entry of the stipulated judgment. Nor did the court err by including in its award the fees Monarch Bay incurred in its first motion to obtain entry of judgment. The court explicitly denied the first motion “without prejudice, ” thus signaling that the issue of whether Monarch Bay was entitled to such a judgment was yet to be determined – in other words, that neither party had yet won nor lost the fight. The court’s fee award, entered after Monarch Bay ultimately prevailed, was consistent with that approach: One fight, one victor – and to the victor went the spoils.

– Tom Root


Case of the Day – Wednesday, December 23, 2020


crash150303Mr. Elder drove his dump truck onto the Union Pacific tracks in Nephi, Utah — a town, not a soft drink — where he was promptly hit by what the Utah Supreme Court described as a “ninety-one car train.” It’s unlikely 78 cars or 23 cars or even just a set of GE diesel-electric locomotives would had a less deadly result.

Mr. Elder was killed, and his widow set off trying to find someone to pay for it. She sued Union Pacific and the City, suggesting that someone should have trimmed the trees near the tracks so her husband could have seen the train. The UP, which was quite adept in its own right in blaming others for grade-crossing mishaps, had a great excuse: the railroad didn’t own the trees to begin with.

It seems that no one ever remembered to give the Union Pacific title to its right-of-way, due to — what else? — a federal government screw-up back in the 19th century. It almost makes you glad Uncle Sam is shut down. However, the ever-resourceful Mrs. Elder argued, the Railroad had acquired all of the land under and around the tracks by prescriptive easement. She was thus in the unusual position of arguing in the lawsuit that UP was entitled to own a big piece of land on which it had been squatting for a hundred years — and was therefore liable for not keeping up the land it had never claimed to own — all at the same time.

Pretty creative lawyering! But the Utah Supreme Court held Mrs. Elder had no standing to claim the UP’s prescriptive easement on its behalf, probably because the Court suspected she didn’t have the Railroad’s best interests at heart. Imagine! As for the City, the Court agreed it had no duty under statute to trim the trees, but it observed the City did have a common law duty to Mr. Elder. The case was sent back to figure out whether that duty required it to trim the trees obscuring the crossing.

Elder v. Nephi City ex rel. Brough, 164 P.3d 1238 (S.Ct. Utah, 2007). Shelley Elder was killed on a Union Pacific Railroad railway track in Nephi City, Utah, when the dump truck he was driving was struck by a freight train. His widow sued, contending that her husband’s death was caused by the negligence of Union Pacific Railroad and the City of Nephi.

The tracks may have been a little obscured by trees, but not quite like this.

The tracks may have been a little obscured by trees, but not quite like this.

According to Mrs. Elder, her husband would not have lost his life had a line of trees located parallel to the railroad tracks not obscured his vision of the train. The trees were situated on land owned by the City of Nephi, but Union Pacific owned the tracks and operated the train. The Railroad had no recorded property interest in the ground where the trees were located. The trial court summarily dismissed Mrs. Elder’s wrongful death claim, ruling as a matter of law that neither Nephi nor the Railroad owed a duty to Mr. Elder to assure that the trees did not impair motorists’ ability to observe approaching trains. She appealed.

Held: The Railroad had no property interest in the trees and was under no duty to remove them. While the City of Nephi owed no statutory duty to Mr. Elder, it did owe a common-law duty to him, and the case had to be reversed on that point.

As for the Railroad’s right-of-way through Nephi, the UP route was acquired by prescriptive easement rather than by statute, and thus did not extend to land bordering tracks, including the land on which the offending trees stood. Under the Federal Townsite Act of 1867, the United States conveyed by patent to a probate judge the land within the city limits, including the railroad crossing area. Because this conveyance occurred before Congress passed the Railroad Right of Ways Acts granting railways a right-of-way through public lands, the statute could not have conveyed the right-of-way through Nephi.

Mrs. Elder claimed that the Railroad’s prescriptive easement extended not only to the railbed, however, but also to the land on which the trees stood. The Court ruled that while it wouldn’t rule that out, Mrs. Elder lacked standing to make a prescriptive easement claim on behalf of the Railroad. Standing to bring a quiet title action to perfect title is limited to parties who could acquire an interest in the property created by the court’s judgment or decree. What Mrs. Elder sought to do was to stick Union Pacific with the prescriptive easement as a way-station on the road to making the Railroad liable for her husband’s death.

As for the City of Nephi, the Court said, municipalities owe a duty of reasonable care to ordinary people, and this duty extends to travelers upon their highways. The scope of a governmental entity’s common-law duty to persons using roadways under its control extends beyond the boundaries of the thoroughfare. A governmental entity does not undertake a duty to remove vegetation from private land that may obstruct the vision of motorists utilizing its roadways; nor does a private party bear a common-law duty to keep roadways free of visual obstructions caused by vegetation growing on his land.

Crossing 150303The Court ruled that the Utah statute requiring landowners to remove vegetation “which, by obstructing the view of any operator, constitutes a traffic hazard,” did not impose on city a duty on the City to monitor railroad crossings for visual obstructions. U.C.A. § 41-6-19.  Rather, the City’s statutory obligation to remove the trees would have been triggered by receipt of notice from the department of transportation or a local authority that an investigation had deemed the trees to be a traffic hazard, and city did not undertake any such investigation itself.

Nevertheless, the Court said, a genuine issue of material fact remained as to the allocation of duties between the City — which owned land near railroad tracks that contained irrigation ditch and trees which sprouted from the ditch embankment — and the irrigation company, which maintained irrigation ditch along the land pursuant to an irrigation easement. The common-law duty of a governmental entity to safeguard those who travel its roads may extend to visual hazards located on its land outside the bounds of the roadway itself, and the mere fact that an easement existed did not automatically assign that common-law duty to the servient estate. The issue of whether the City or the irrigation company was responsible for tree trimming, and whether the City breached its duty to the late Mr. Elder, precluded summary judgment.

– Tom Root


Case of the Day – Tuesday, December 22, 2020


       It was such a safe vehicle … so it must have been the tree’s fault.

Times change and trees grow. That’s the lesson in today’s case.

Mr. Paredes was driving along I-805 in the driving rain, transporting his daughters in a superannuated Volkswagen with bald tires. He lost control of the VW and it slid down a bank, colliding with a eucalyptus tree located about 25 feet from an on ramp. His 6- and 9-year old daughters died in the accident, and he was badly hurt.

Normally, one would shake his or her head and observe that Mr. Paredes maybe was going too fast, or driving a junker in weather that was too bad, or perhaps engaging in risky conduct by relying on bald tires. But this being America, it had to be someone else’s fault.

Mr. Paredes blamed Caltrans, the California Department of Transportation. It was the agency’s fault, because the trees were closer to the on-ramp than should be permitted by Caltrans standards, and in fact shouldn’t have been there at all. Only problem was, when the trees were planted, they complied with all standards. Even today, they were more than 30 feet from the road and 25 feet from the on ramp. In other words, Caltrans may have set in motion the factors that caused the damage, but it didn’t create it negligently: the construction complied with all standards when built.

Under the law, the agency had to have actual or constructive knowledge of the dangerous condition. Splitting hairs, the Court found that Caltrans knew that the trees were planted where they were planted: after all, Caltrans had planted them. But, the Court said, Caltrans didn’t have knowledge that the trees, located as they were, were dangerous.

It strikes us as maybe parsing things a little too finely. But as we’ve said before, hard cases make bad law. Here, the jury may have gone off on a frolic, and — notwithstanding all of the expert testimony — figured that Mr. Paredes was a little too much at fault to be entitled to much. The Court of Appeals, which is legally disposed to defend a jury verdict anyway, may have agreed.

Driving 60 mph in a beater of a car with bald tires through heavy rain? So exactly who was negligent here? Some workers who planted a tree 15 years ago or the idiot who jeopardized his most precious possession — two little girls — in his haste to get somewhere?

Mr. Paredes claimed the trees were too close to the road ...

Mr. Paredes claimed the trees were too close to the road …

Paredes v. State, 2008 WL 384636, 2008 Cal. App. Unpub. LEXIS 1262 (Cal.App. Feb. 14, 2008). Marco Paredes was injured and his two daughters killed when Paredes lost control of his vehicle in heavy rain, after which the vehicle slid down an embankment and struck a eucalyptus tree. Paredes claimed that California Department of Transportation (Caltrans) employees created the dangerous condition by creating the slope and planting eucalyptus trees within 30 feet of the on ramp without protecting them with guardrails, demonstrating negligence per se as well as placing Caldrons on notice of the defect.

The jury disagreed. It found that the property was in dangerous condition at the time of the accident and was a substantial cause of Paredes’s injury and the death of his children, but it nonetheless concluded that the State did not have actual or constructive notice of the condition in sufficient time before the incident to protect against it. The jury also found the dangerous condition was not caused by a negligent or wrongful act or omission of a State employee acting within the scope of employment.

Paredes appealed.

Held: The verdict against Paredes was upheld. The Court of Appeals observed that California law held that except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The law, the Court said, plainly requires a finding that a public entity’s negligent or wrongful acts created a dangerous condition. It does not impose liability for mere creation of a dangerous condition. In this case, the jury was instructed that the plaintiffs had to establish that negligent or wrongful conduct by a State employee acting within the scope of employment created the dangerous condition. The Court concluded that substantial evidence from State’s expert, as well as Paredes’ own experts, supported the jury’s finding that State did not act negligently or wrongfully in planting the accident trees on the slope along the accident site.

The State’s expert explained that the standard applicable at the time of the planting was Caltrans’s “clear zone principle,” which required only that trees be planted 30 feet beyond the traveled way of the I-805 mainline and 20 feet from the on-ramp. For that matter, Paredes’ expert agreed the accident tree was over 31 feet from the edge of the traveled way of the I-805, and 25 feet from the edge of the traveled way of the nearby on-ramp. Another expert explained that a fixed immovable object under the Caltrans clear zone standard was a tree having a trunk with eight inch diameters or greater. The State’s expert testified that a guardrail would not have been required at the site of the accident tree applying standards prevalent at the time of trial.

The testimony of a single witness may be sufficient to establish substantial evidence, the Court said, and here, the jury as the exclusive judge of credibility was entitled to believe defendant’s witnesses.

Someone should have told Mr. Paredes this ...

Someone should have told Mr. Paredes this …

The Court also concluded that substantial evidence supported the jury’s finding that State did not have actual or constructive notice of the dangerous condition. A public entity has actual notice of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. 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.

Here, State employees planted the accident tree as well as other trees on the embankment. But the Court refused to fault the jury’s finding that the public property was in a dangerous condition at the time of the accident required it to also find the State had notice of that condition. On the evidence here, the jury could have concluded that the planting of the young eucalyptus tree on the embankment was not dangerous in 1979 or 1980 when that project was completed, but became dangerous only when its trunk grew to a larger diameter. Thus, while State may have had notice of the physical condition it had created — the presence of trees on the slope — the jury was entitled to conclude it did not have notice that the condition was dangerous. Substantial evidence supported such a conclusion, the Court held.

– Tom Root