Case of the Day – Friday, July 17, 2020

THE MASSACHUSETTS RULE LIVES!

We should all age this well.

The Massachusetts Rule, which we have rightly or wrongly identified as the wellspring whence flows all tree law on encroachment, is a spry 89 years old this year. Over the years, other states have chipped, chipped, chipped away at its granite-solid underpinnings, the notion that your neighbor has no right to sue you if your healthy tree sends branches spanning over her property or roots snaking through her subsoil.

After being belted and flayed by decisions from a host of more encroachment-progressive states over the years, the Massachusetts Rule finally received some good news two days ago: Massachusetts’ highest court issued an opinion which was a full-throated defense of the venerable Rule.

Don’t like the mess your neighbor’s honey locust makes in your gutters? Or the way his sweet gum roots are displacing your basement wall? Tough noogies. The Massachusetts Rule holds that you are free (at your expense, so maybe we should not use the word “free”), that is, you are entitled, to cut down the offending branches or dig up the offending roots up to your property line with his place.

What you are not free to do is to sue your neighbor because his tree is a nuisance. As the Bay Staters put it, your rights are limited to self-help.

To be sure, the Massachusetts Rule has gotten a raft of bad press in the last few decades. Hawaii is the most famous, with the Hawaii Rule (set out in Whitesell v. Houlton). That rule holds that your neighbor is liable to you if encroaching branches or roots from her tree cause “sensible harm” to your property. Complaints that the Massachusetts Rule was archaic, a relic of an era when population density was much less and life was simpler, have become common. Don’t believe it? Refer to the definitive decision assessing the various rules, Herring v. Lisbon Partners, for the modern view that the Massachusetts Rule is an arboreal dinosaur.

Well, it turns out the old dinosaur still has a bite. A Massachusetts litigant with more spare change for legal fees than she had common sense sued her neighbor because, she claimed, the neighbors’ stately oak caused algae to grow on her roof. She demanded her neighbors cut it down. They declined, pointing out to her that the Massachusetts Rule immunized the owner of a healthy tree from such an obligation, and, by happy coincidence, they were all in Massachusetts, so the Rule applied to them.

The neighbor was undeterred, and she hired a lawyer (who undoubtedly told her she was backing the wrong horse). But back it she did. She lost in the trial and appeals courts, both of whom took pains to explain the Massachusetts Rule to her.

“But,” we imagine she said, “the Massachusetts Rule is a doddering fossil, rejected by just about all modern thinking in our sister states’ courts! It should be consigned to the dustbin of history!”

But two days ago, the Supreme Judicial Court of Massachusetts seized the opportunity not only to refuse to undo the plucky 87-year old Rule, but to explain how all the other states who had rejected it as irrelevant in the modern day and age are just plain wrong.

Famous Massachusetts patriot John Adams died on July 4, 1826. His last words were reputed to be a joyful acknowledgement that his old friend, Thomas Jefferson, survived him. As he expired, Adams breathed, “Jefferson lives!

He could have said the same about the Massachusetts Rule. Despite all the grief that the Herring court, the Fancher court, the Lane court, and even the Whitesell court have given it, the Rule still lives.

Shiel v. Rowell, Case No. SIOC-1274 37 (Sup.Jud.Ct. Mass, July 16, 2018). Keli-Jo and John Rowell owned property next to Mary Shiel. The Rowells’ property included a 100-foot tall sugar oak tree with majestic branches that stretched over Mary’s property.

Alas, Mary was not a fan of the tree. She complained that the tree caused algae buildup on her roof. She demanded that the Rowells cut it down. They refused. So Mary sued, demanding money for damage to her roof and an injunction ordering the Rowells to cut back the branches overhanging Mary’s land.

A District Court judge dismissed Mary’s claims, on the grounds that under Massachusetts law, a person whose property is injured by a neighbor’s healthy tree has no cause of action against the tree’s owner. The appellate court agreed.

Mary appealed to the Supreme Judicial Court, admitting that the Massachusetts Rule was against her, but asking that the Rule be thrown out as antiquated.

Held: The Massachusetts Rule remains the law.

The law in Massachusetts has long been that a landowner may not hold a neighbor liable for damage caused by that neighbor’s healthy tree.

In Michalson v. Nutting, roots from Nutting’s poplar tree clogged the Michalson’s sewer and drain pipes, and cracked his concrete cellar, risking serious damage to the house’s foundation. The Court concluded that Mr. Nutting could not be held liable for that damage because “an owner of land is at liberty to use his land, and all of it, to grow trees.” The Court recognized Mr. Michalson had the right to cut off intruding boughs and roots and reasoned 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.”

Mary urged the Court to adopt the Hawaii Rule, which grants neighbors the right to sue to resolve disputes in court over healthy trees. A neighbor may use the courts to require that the tree owner pay for damage and cut back branches and roots if the tree causes, or there is an imminent danger of it causing, “sensible harm” to the neighbor’s property. The Hawaii Rule, like the Massachusetts Rule, allows any landowner the right to cut back overhanging branches or intruding roots from a neighboring landowner’s tree. But unlike the Massachusetts Rule, the Hawaii Rule offers the aggrieved homeowner a right to sue to have branches and roots removed by the tree’s owner.

Mary argued the Massachusetts Rule is outdated, because these days people are living in closer proximity to one another on smaller tracts of land than when the Massachusetts Rule was adopted. She contended that trees today are more likely to cause damage to neighbors’ property than in days past, and tree owners are better able to manage their trees. This, she maintained, justifies giving parties a right to sue to resolve disputes in court.

The Rowells argued in favor of stare decisis, the doctrine that courts should adhere to rules previously adopted in resolving similar cases. While adhering to stare decisis is not an inexorable command, the Court held, it is “our preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

Even more than that, the Rowells maintained, the Massachusetts Rule is more sensible than the Hawaii Rule. The Court agreed. “We would discern a need to change the Massachusetts Rule if it were outdated and no longer fit the circumstances of contemporary life,” the Court said. But, the Court ruled, the Rule is still very relevant.

It may be true that people today are living in closer proximity to one another on smaller tracts of land than they were when the Massachusetts Rule was adopted in the early Twentieth Century. :But if changes in property ownership would lead us to believe that tree owners are now better able to monitor their trees,” the Court said, “the same would be true for their neighbors to monitor and trim encroaching trees. It may be easier to recognize impending or potential harm to one’s own property from overhanging branches and intruding roots than it would be for the tree owner to recognize what is happening next door. And even if it is also true that trees today are more likely to cause property damage to neighbors’ property, it would be “undesirable to categorize living trees, plants, roots, or vines as a ‘nuisance’ to be abated.”

The Court recognized that other states, such as North Dakota, Tennessee and Virginia, had declared the Massachusetts Rule to be an antique. The Court rejected the rationales in those cases, observing that while the cases all said the Massachusetts Rule was outdated, none ever explained satisfactorily why that would be. True, as those decisions noted, the Massachusetts Rule law arose at a time when land was so unsettled and uncultivated that the burden of inspecting it and putting it in a safe condition would have been unduly onerous and out of all proportion to any harm likely to result. But this rationale seemed to apply to danger trees only. If a tree is healthy, it does not need to be put “in a safe condition” to begin with, and Massachusetts Rule trees must be healthy trees to begin with in order to come within the Rule.

Mary did not identify any consequences of the Massachusetts Rule, the Court observed, that would not have been thoroughly appreciated by when the Rule was adopted. The growth of trees “naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others,” the Court declared in Michalson, and that has not changed.

Contrary to the criticisms of the Rule, the Court ruled, “multiple benefits to the Massachusetts Rule [are] still relevant to circumstances of contemporary life. The rule simplifies assignment of responsibility, leaving no doubt as to the rights and obligations of the parties and minimizing legal costs. It reduces “unnecessary burdening of courts” and vexatious lawsuits: “The Massachusetts Rule today, just as it did when Michalson was decided,” the Court found, “may prevent unnecessary legal harassment from neighbors who merely have an axe to grind for reasons other than purported tree problems.”

Thus, the Court ruled, “We retain the law that an individual whose property is damaged by a neighbor’s healthy tree has no cause of action against a landowner of the property upon which the tree lies.”

The dinosaur still roars.

– Tom Root

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Case of the Day – Thursday, July 16, 2020

I WOULD WALK 500 MILES …

proclaimers140502The Kentucky Department of Highways has a lot to do. Besides keeping up the state’s highways, the DOH has the duty to inspect roadside trees. And there are a lot of trees in Kentucky.

So many, in fact, that – like its habit with parking spaces (see yesterday’s decision) – the DOH favored drive-by inspections. You can see a lot of trees from the passenger seat of a Silverado. There are Proclaimers who would say it was better than walking 500 miles, and then walking 500 more, just to see the back side of some right-of-way trees.

Ioseb Besarionis Dze Jugashvili – you might have known him as “Papa Joe” Stalin – is reputed to have had a favorite saying, “Quantity has a quality all its own.” All right, he probably didn’t say it … after all, he spoke Russian with a strong Georgian accent, and “quality” and “quantity” probably are not especially alliterative in that tongue. But when it came to the Kentucky DOH, the fact that its inspectors could inspect miles of trees every hour didn’t necessarily mean that they were getting it right.

When old Cecil Callebs came up on the bottom side of a sycamore tree that fell on his car during a windstorm, his widow sued the Department of Highways, arguing that if its inspectors had only gotten out of the car and walked a little, they would have known that the tree was rotten and a threat to passing motorists.

The case went to a state Board of Claims first. No one suggested that the DOH knew that the tree was decayed, but the widow Callebs argued that its employees would have known if they had only gotten out of the truck to inspect the tree. The Board disagreed, but when she appealed to a trial court, it sided with her. The DOH, it held, should have done a “walkaround.”

Whenever the analysis is focused on whether someone should have known something, rather than whether he or she actually knew it, the courts employ a balancing test (whether they call it that or not). The test considers how critical to its duty discovering the particular information was, and weighs that against how difficult discovering the fact would have been.

Here, the omission was a slight one, although the late Mr. Callebs might have disagreed. The tree had plenty of green leaves, and no defect was obvious from the highway. The DOH had a generalized duty to inspect and maintain trees along the highway. It missed one of the millions in its charge, but the error wasn’t an obvious one.

treeoncar140502The Court of Appeals agreed that a “walk-around” would probably have discovered the defect. But such a “walk-around” would have been infeasible. Even if the DOH had the personnel to conduct such inspections, it probably would have had to get permission from private landowners to enter onto their property to see the back side of the tree. Multiply the permission process by thousands of trees, and the unreasonableness of expecting walking inspections is obvious.

Commonwealth v. Callebs, 381 S.W.2d 623 (Ky. 1964). Cecil Callebs was killed when a large sycamore tree, standing on the edge of the right of way some 12 feet from the edge of the pavement, fell across the highway and hit is car. Callebs’ estate filed a claim against the Kentucky Department of Highways for wrongful death with the Commonwealth’s Board of Claims. The board, after hearing evidence, found no negligence on the part of the DOH. The circuit court reversed, holding the DOH negligent. The DOH appealed.

Held: The Department of Highways was not negligent.

The Court of Appeals agreed that DOH lacked actual notice of the defective condition of the tree. The issue in the case, rather, was whether the department had constructive notice of the defective condition, or, stated another way, whether a reasonable inspection would have disclosed the condition. This involved, the Court said, “the question of how close an inspection was reasonably required.”

californiasycamore140502The leaves on the sycamore tree were green, and the defective condition of the trunk was on the side away from the highway. The defect could have “been discovered only by walking around behind the tree, which perhaps would have involved an entry upon private land abutting the highway.” The Court of Appeals observed that “[i]n order to affirm the circuit court judgment … we would be required to hold that as a matter of law the Department of Highways had a duty to make a ‘walk-around’ inspection of the tree, involving perhaps an entry on private lands. We do not believe that such is the law.”

The Court considered it important that the area around the tree was rural, and that the burden “of a walk-around inspection of each tree near the highway (perhaps requiring the obtaining of entry permission from the abutting landowners)” would be unreasonable in comparison with the risk. Note again in this case the distinction drawn by the Court between in-town and countryside. The Court concluded that highway authorities “under conditions such as existed in the instant case” do not have a duty as a matter of law to make the kind of inspection that would have been required here in order to keep the tree away from Mr. Callebs.

The Court reversed the trial court’s judgment, and let DOH off the hook.

– Tom Root

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Case of the Day – Wednesday, July 15, 2020

DUTY

lee140501Robert E. Lee (if we are still allowed to write favorably about him in this #metoo and BLM era) adjured us all to “do your duty in all things. You cannot do more, you should never wish to do less.” Today’s case is about duty, which as far as we’re concerned is more the basis for determining legal liability than a moral concept.

In Kentucky, the Commonwealth (that’s what they call themselves, and who are we to dispute it?) is liable when it has notice of a defect in a highway. The defect in this case was a hole in the pavement, located at the curb end of a parking space. The Department of Highways people inspected that stretch of urban street regularly, but always by driving by. That area of town was teeming with commerce, so the parking spaces were always full and the hole went unseen.

When Mary Maiden fell by stepping in the hole, she sued. The Board of Claims, Kentucky’s tribunal for hearing claims against the Commonwealth, figured that the DOH employees had done all they could do to inspect the street. Thus, it found that DOH wasn’t on notice of the hole.

But the Court of Appeals reversed. In a two-to-one decision, it decided that a drive-by inspection that couldn’t see the whole street wasn’t a reasonable inspection. The case is interesting to us because the Court contrasted this situation to the decision in Commonwealth v. Callebs, a case we’ll look at tomorrow. There, when a tree in the right-of-way fell on a driver, the court found that requiring a “walkaround” inspection was unreasonable.

princess151210

A maiden … but not Ms. Maiden

But Ms. Maiden’s Court said that Callebs was different: it placed an unreasonable demand on the DOH to require it to inspect every tree in a rural setting. Besides, to have seen the defect in the tree that fell on Mr. Callebs, the DOH workers would have to gone behind the tree onto private property in order to see the defect.

This case — and the one we’ll consider next — together illustrate the “touchy-feely” nature of some determinations of what is and is not “reasonable.”

Commonwealth v. Maiden, 411 S.W.2d 312 (Ct.App. Ky. 1966). Mary Maiden fell and was hurt when she stepped into a hole in Cumberland Avenue in Middlesboro. This being America, she sued.

Unfortunately for the Commonwealth, not every hole in the street is this obvious.

Unfortunately for the Commonwealth, not every hole in the street is quite this obvious.

The Kentucky Department of Highways had agreed to maintain the street as a part of the state road system. The block in which the accident occurred is in a busy commercial area with diagonal parking on both sides of the street which is usually full during business hours. The hole was about 24 inches long, 9 inches wide and 3 inches deep and was located almost entirely at the back end of a parking space, substantially concealed from view when a car occupied the space. It had been there for some six months.

It was the statutory duty of the DOH to inspect all state-maintained roads. A foreman inspected Cumberland Avenue at least every two weeks by driving along the street in a pick-up truck during business hours. It would have been impossible to see the hole in question if there had been a car parked there, and no DOH employee had ever made a ‘walk-around’ inspection, looking under the parked cars along the street. The Board of Claims rejected Ms. Maiden’s claim, but the trial court reversed the decision, entering judgment for Mrs. Maiden. The DOH appealed.

Held: The judgment for Ms. Maiden was upheld.

The Court said the law in Kentucky is that if a defect in a highway existed for such a period of time that the authorities, by exercise of ordinary care and diligence, should have discovered it, notice will be imputed. A “drive-along” inspection of a busy city street during business hours when parking areas normally were fully occupied – so that defects in the parking spaces cannot be seen – is not a reasonable inspection. Thus, the law assumed that the Department knew of the defect which caused her fall.

Kentucky, of course, is famous for unexpected holes, like the one that swallowed eight vintage Corvettes at a Bowling Green museum earlier this year.

Kentucky, of course, is famous for unexpected holes, like the one that swallowed eight vintage Corvettes at a Bowling Green museum in early 2014.

The Court acknowledged that while the burden of inspection may be a serious problem to the DOH, it was not too great a burden to require an inspection of streets in commercial areas to be made in ‘off’ hours when the parking spaces are not occupied. The Court distinguished the facts from the Callebs case (which we’ll look at tomorrow). In Callebs, the Court had held that DOH did not have a duty to make a ‘walk-around’ inspection of trees along the edge of the right of way. That defect, however, was not in the street itself but rather in the side of the road, and the area was a rural one with light travel rather than an urban one with heavy traffic. Besides, the Court observed, an effective inspection of the trees would have required the use of a considerable amount of time, whereas in this case, an effective inspection would not have involved more time but only the selection of a different hour in which to make it.

One judge dissented, arguing that there was really no distinction between this case and the Callebs case. A lone dissent, however, is an interesting footnote and little more. You can ask the ghosts of Robert E. Lee and the leaders of the Confederacy about being mere footnotes.

– Tom Root

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Case of the Day – Tuesday, July 14, 2020

YOU CAN ALWAYS BE SAFER

The archetype of a safe man ... he wears both a belt and suspenders.

The archetype of a prudent man … he wears both a belt and suspenders.

No matter how safe you try to be, there is always something else you could have done to be safer. We all make compromises when the utility of what we are doing to be safer becomes more burdensome than the incremental increase in safety our act attains. On one hand, it’s safer to wear seat belts than not to wear them, and the cost of wearing them is exceedingly slight compared to the benefit derived. On the other hand, while it would be a lot safer for all traffic not to exceed 15 mph, the cost of such an act far outweighs the benefits derived from enforcing such a rule.

A similar situation applied in this landmark municipal liability case from Omaha. During a windstorm, a motorist pulled over because he couldn’t see to drive. A tree belonging to the City fell, hitting his car and paralyzing him. The tree, a silver maple, was badly decayed. The motorist sued the City, arguing that for a tree owner to permit a danger tree to stand violated the City’s own ordinances. At trial, the disabled plaintiff was awarded $5 million.

On appeal, however, the Supreme Court of Nebraska was more persuaded by the City’s argument that if every person in its arborist crew spent an entire work year inspecting silver maple trees, each tree would only receive a 12-minute inspection. The City had a tree inspection program in place, and the Court found it reasonably conceived and discharged. Could the City have done more? Certainly. Had it done so, would the damaged tree have been found? No one could say.

The City’s tree inspection program was reasonable, and that was all that was required. The verdict was reversed.

treecar140425McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545 (S.Ct. Neb., 1984). Mr. McGinn was driving in the City of Omaha on a rainy, blustery afternoon, when the inclement weather made him pull over to park. As he was doing so, a silver maple tree fell in front of him, and a branch struck his car, rendering him a quadriplegic.

Photographs taken after the accident revealed that the trunk of the tree was extensively decayed. McGinn sued the City, arguing it was negligent in failing to inspect the tree for disease, decay, and structural defects, and in violating a city ordinance making it unlawful for a landowner to permit a dangerous tree to stand. The City countered that McGinn was contributorily negligent and that the storm, which could not have been reasonably anticipated, caused the tree to fall. The trial court rendered judgment in favor of McGinn and awarded $5 million in damages.

The City appealed.

Held: The judgment was reversed. The Nebraska Supreme Court held that city was not negligent for having failed to remove the tree where there was no evidence that inspection program conducted by city was negligently designed or carried out, or that the tree had been found to be hazardous as a result of any inspection made by the city.

Normally, governmental units are liable under ordinary negligence principles for injuries or damages which result from a tree falling onto a public road from land in possession of a governmental unit. In this case, while McGinn was correct that the City had violated an ordinance rendering it unlawful for any property owner to permit diseased or structurally weak tree from standing upon his property, the violation was at most evidence of negligence, and did not impose strict liability upon the City. Rather, negligence must be measured against particular set of facts and circumstances present in each case, and the utility of the City’s conduct has to be measured against the magnitude of the risk.


Here, the City had established an annual inspection program to check for hazardous trees. The program was neither negligently designed nor negligently carried out. Alternatives might have reduced the risk, such as cutting down any silver maple older than a certain age or conducting lengthy, individual tree inspections, but these remedies were expensive and unreasonable. There was no indication that the tree which fell on McGinn’s car during the severe storm had been found to be hazardous during any inspection made by the city.

Thus, the Court said, the city was not negligent in not having had the tree removed, and thus was not liable for personal injuries sustained by McGinn.

The takeaway here is that in a proper weighing of the reasonableness of a defendant’s actions, courts traditionally weigh the magnitude of the task. A homeowner with ten trees cannot reasonably fail to ascertain the condition of his or her trees. A municipality with 10,000 trees can get away with failing to ascertain the condition of any particular one of those trees if it has an inspection program that is a reasonable balance of cost and efficacy.

– Tom Root

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Case of the Day – Monday, July 13, 2020

THE RESTATEMENT RULE FALLS AWAY, CHIP BY CHIP

In the development of liability law for danger trees, the “every-dog-for-himself” school of thought has reigned supreme for 150 years. The authoritative Restatement of Torts (2nd) rule says that “a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land, except in an urban area, where the possessor is liable to people using a public highway for physical harm resulting from his or her failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of his or her trees.”

A real mouthful, the Rule said in so many words, “if you live in the country, you owe nobody anything. If you live in the city, you owe a duty to someone on the highway, but no one else.”

The Restatement – which ideally states the law as it generally exists in the 50 states – has instead become the driver. The rule is followed almost everywhere, with the Restatement being cited as the authority. So instead of summarizing what the various state court have held, the Restatement has made the law in many places. 

But times change, populations shift, and what was a workable (or at least an acceptable) rule suddenly makes little sense. That happened in today’s case from the Hoosier State, in which a neighboring landlord neglected a danger tree. After all, he was a landlord, and what landlord will spend a dime that won’t increase his return?

So the neighbor pointed out the decaying tree, the City pointed out the decaying tree, and all the chattering passersby pointed out the decaying tree. And then, the landlord found a drive-by arborist who eyeballed the tree (without even being able to identify the species as a Basswood from his quick “look-see”), and pronounced it fit as a fiddle. A Basswood fiddle.

Except it was not so fit. When the tree fell on the neighbor’s house, her insurance paid for repairs and then (justifiably) came after the landlord. He said, “Tough luck. The Restatement rule says I’m only liable to people on the public street.”

And that was what the rule said. So the Court changed the rule. And that, boys and girls, is how the law evolves.

Marshall v. Erie Insurance Exchange, 923 N.E.2d 18 (Ind.App. 2010). John and Marjorie Marshall owned many rental properties, which John supervised. One was a vacant lot next to Cindy Cain’s home.

A tree stood on Marjorie’s lot near the boundary of the two parcels. From the time Cindy purchased the home, she worried about the tree’s health and the danger it might pose. Cindy talked to her neighbor about the tree, but got nowhere. She talked to a City code enforcement officer about the tree. The officer told Marjorie’s property manager the tree had to come down. He also spoke to John, who said he would have the tree checked. Cindy told a guy who worked for the Marshalls’ maintenance worker and a woman who claimed her husband was the Marshalls’ new maintenance worker about the hazard tree. The man Cindy spoke to agreed that the tree should be taken down and said he would speak to John about it.

On New Year’s Eve, the tree fell onto Cindy’s house, knocking over her chimney and causing damage to the roof and frame. Cindy filed an insurance claim with Erie, which held her homeowner’s insurance policy. Erie reimbursed her for the necessary repairs to her home (minus her deductible, of course). Then, Erie sued the Marshalls for damages stemming from their negligent maintenance of the tree.

Jake Denlinger, a professional arborist, testified that before the tree fell, he had looked at the tree at John’s request. Jake inspected the tree but did not take any samples of the tree’s core. He testified he did not see enough evidence of decay in the tree to warrant removing the tree. His cross-examination must have been withering, because Jake – filled with doubt –  Jake returned to the vacant lot after his testimony to look at the tree stump to determine what type of tree had fallen on Cindy’s house. He found it was a Basswood tree, and returned to testify that it is difficult to judge a Basswood’s health without internal sampling, because the trees do not show many exterior signs of decay.

The trial court found for Erie, and the Marshalls appealed.

Held: The trial court’s decision in favor of Erie Insurance was upheld.

The Court said that to recover in negligence, a plaintiff must establish a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; a failure on the part of the defendant to conform his conduct to the standard of care; and (3) an injury to the plaintiff proximately caused by the breach.

Absent a duty, there can be no breach and, therefore, no recovery in negligence.

In Valinet v. Eskew, the Indiana Supreme Court adopted the rule in Restatement (Second) of Torts section 363, that a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land, except in an urban area, where the possessor is liable to people using a public highway for physical harm resulting from his or her failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of his or her trees.

The Court of Appeals observed that the Valinet rule seemed to foreclose the issue of whether the Marshalls owed a duty to protect Cindy from the fallen tree. The Court, however, was unwilling to “leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure an obviously decayed and dangerous tree simply because it was a natural condition of the land.”

The Court concluded that it should depart from “the strict application of the Restatement rule in the context of urban or residential property.” That Rule was adopted when land was mostly unsettled and uncultivated. In urban or residential areas, however, the Court held, it should not be an undue burden for a landowner to inspect his or her property and take reasonable precautions against dangerous natural conditions. “Living in close quarters with one’s neighbors in an urban or residential setting substantially increases the risk that a falling tree will cause damage to property or injury to persons, and, similar to the problem relating to a highway, the reduced size of property lots in an urban or residential setting makes the burden of time and money to inspect and secure trees on one’s property relatively minor especially as compared to the potential damage that could result from the tree’s fall.”

Thus, the Court said, an urban or residential landowner has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners, arising from the condition of trees on his or her property. Whether the land in question is of sufficient population density to invoke the rule is a factual question for the fact finder. In addition, in determining whether the landowner exercised the requisite reasonable care, the fact finder must weigh the seriousness of the danger against the ease with which it may have been prevented. In some circumstances, fulfilling this duty may require a landowner to conduct periodic inspections of his or her property.

In this case, the Court said, the trial court applied a duty of reasonable care to the Marshalls with respect to preventing the damage caused by the fallen tree. The trial court heard evidence that the code enforcement officer contacted the Marshalls to inform them of the dangerous tree and the need to remove it, and several witnesses testified to the physical state of the tree. True, the Marshalls provided some evidence they contacted a tree specialist, but he only performed a superficial examination of the tree and did recommend its removal. Because reasonable minds could draw different conclusions from the facts in evidence, it was for the trial court to determine whether the Marshalls’ conduct breached the duty of reasonable care. Sufficient evidence supported the trial court’s judgment that the Marshalls did so, and that Cindy’s home was damaged as a result.

– Tom Root

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Case of the Day – Friday, July 10, 2020

WHAT DID THE GOVERNMENT KNOW, AND WHEN DID IT KNOW IT?

One of the enduring lines from the endless (or so it seemed at the time) Watergate investigation was Howard Baker’s famous question, “What did the president know and when did he know it?” On the answer to that question turned the culpability of the President for the high crimes and misdemeanors of his minions. It still does, despite the fact that we now know that the Watergate investigation timetable was a rocket ship compared to Whitewater-Lewinsky, Valerie Plame, BenghaziFast and FuriousIRS, and Trump-Russia.

It’s a great question. Many plaintiffs have discovered that possessing or lacking the answer to it often is the difference between winning and losing a tort action.

We talked about strict liability yesterday, but that’s not generally the way we do things. Were it otherwise, commerce and society would screech to a halt, because anything act, regardless of how responsibly it was performed, could lead to liability and financial ruin.

Consider today’s case. A tree branch cracked and settled so far down the tree that it dangled dangerously low over a road. Linda hit it, damaging her car. No one would disagree that the branch should not have been there. Nevertheless, the harm it caused did not mean Linda could pick the State of Ohio’s pocket for repairs itself unless the State had a duty to the motoring public which it failed to discharge.

Shouldn’t the Ohio Department of Transportation have known about the danger? Should it not have corrected the defect before Linda happened along? Shouldn’t those highway workers do something to justify their paychecks? That all depends on the State’s knowledge of the defect. Or, as the late Sen. Howard Baker might have put it, “What did ODOT know, and when did it know it?”

Coleman v. Ohio DOT, 2009-Ohio-6887 (Ct. Claims, Aug, 25, 2009), 2009 Ohio Misc. LEXIS 3. One February day, Linda Coleman was driving along a state highway a half mile outside of the village of Westville, Ohio, when her 2004 Honda Accord hit a very low tree branch overhanging the road. The impact broke the windshield and damaged the right side of her car.

Linda sued ODOT, theorizing that the damage to her car was proximately caused by ODOT’s negligence in failing to maintain the roadway free of hazardous conditions. She sought a paltry $745.01, the cost of fixing her Honda.

ODOT denied liability, contending that none of its employees or agents had any knowledge of the hazardous overhanging tree limb prior to Linda’s collision with it. ODOT denied receiving any reports about the limb prior to the accident from anyone. ODOT did receive a report after Linda struck the tree, and responded by dispatching two ODOT workers to remove the tree limb the same day Linda hit it. ODOT argued that the facts suggested that “it is likely the tree limb existed for only a short time before the incident.”

ODOT related that its manager for that county inspected all state roadways n the county at least twice a month. Apparently, no overhanging tree condition was discovered at Milepost 2.50 on State Route 560 the last time that section of roadway was inspected.

Held: ODOT had no liability to Linda.

To be sure, ODOT has the duty to maintain its highways in a reasonably safe condition for the motoring public. However, the state agency is not an insurer of the safety of its highways. In order to prove a breach of ODOT’s duty to maintain the highways, Linda would have had to prove that ODOT had actual or constructive notice of the precise condition or defect alleged to have caused the accident. ODOT would only be liable for a roadway condition of which it has notice but failed to take reasonable steps to correct.

In order to recover on a claim of this type, the Court said, Linda had to show either that ODOT had actual or constructive notice of the low-hanging tree limb and failed to respond in a reasonable time or responded in a negligent manner, or that ODOT in a general sense maintains its highways negligently. For constructive notice to be proven, Linda would have had to show that sufficient time has passed after the dangerous nature of the tree limb came into being, so that under the circumstances, ODOT should have learned of its existence.

The court hearing the case may not infer that ODOT knew, unless Linda presented evidence of when the defective limb first appeared to be too low over the roadway. Here, Linda had no proof that ODOT had any notice, either actual or constructive, of the damage-causing tree limb.

Generally, to prove negligence, a plaintiff must prove that a defendant owed her a duty, that it breached that duty, and that the breach proximately caused her injuries. She must also show she suffered a loss, and that this loss was proximately caused by the defendant’s negligence.

Linda had no evidence that her injury was proximately caused by ODOT’s negligence, because she could not show when the dangerous condition came into being. Therefore, she was unable to show that the damage-causing object was connected to any conduct under ODOT’s control, or to any ODOT negligence.

– Tom Root

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Case of the Day – Thursday, July 9, 2020

STRICTLY SPEAKING

Strict liability statutes, also known as “liability without fault,” occupy the blameless end of the “mens rea” spectrum. Our traditional notions of fair play lead us to believe that people should not be held to blame for injury unless they are somehow at fault, either being negligent, grossly negligent, reckless, or just plain acting with intent to bring about the harm they cause.

But at common law, some acts were considered to be so inherently dangerous – the classic case was a lion that escaped from a keeper of exotic animals – that courts let the res ipse loquitur, the “thing speak for itself,” and found the owner liable for whatever mayhem ensued from a force that had once been under the owner’s control. Negligence need not be shown.

Remember the radioactive spider that bit Peter Parker and made him super-powered Spiderman? Peter (or maybe Spidey) could have sued the lab that let the spider escape. Everyone knows that a radioactive spider is an inherently dangerous instrumentality, and whoever the last guy was to have the arachnid in captivity had better be prepared to pay big, regardless of whether he was at fault or not.

But should strict liability extend to dogs? Speaking as the owner of a 37-lb. canine who is a terror to woodchucks but a marshmallow around humans, we don’t really see why they should. Nevertheless, many states have dog bite statutes that make owners strictly liable for their canines’ misdeeds, regardless of fault. To be sure, some of the statutes are hybrids, making the owner absolutely liable except for all the cases in which he or she is not. In today’s case, the statute at issue made an owner strictly liable for his or her dog’s bite, unless the person so bitten was engaged in criminal trespass or other criminal conduct, or was tormenting or teasing or harassing the dog. So the owner is absolutely liable… sort of.

Today’s case is the kind of tree law/neighbor law mashup that you have come to rely on us to deliver. The trial court here made the tree trimmer into a trespasser, despite the obvious fact that the power company had every right to enter its easement to prune back trees. The Court of Appeals could not swallow that, but instead suggested that while not a trespasser, the employee owed the dog’s owner notice that he was entering the premises, so the owner had the chance to control his dog.

With Chief Justice Roberts disappointing troglodytes everywhere by deciding cases according to his perception of the law rather than the politics (you can tell I’m a fan of Supreme Court judges who act contrary to their perceived politics), there will be a lot of talk over the next few months about “judge-made law.” You want to see judge-made law? Just look at the gyrations of the trial and appellate court in the case below.

The judges here clearly could not accept that the dog’s owner should have to pay, when the dog had been contained in a yard behind a fence and a “no trespassing” sign, but a stranger – regardless of intention and right – barged in anyway, and complained because the dog chased him. And they found a way to bend the law to suit their sense of propriety.

Collins v. Bergman, 2010-Ohio-6213 (Ct.App. Montgomery Co., Dec. 17, 2010), 2010 Ohio App. LEXIS 5233, 2010 WL 5274. Jason Collins worked for Nelson Tree Service, which was under contract with the power company to remove trees that were too close to utility poles and lines. Jason’s job was go from house to house inspecting inspect all trees encroaching DP&L utility lines and poles, so any trees too close could be trimmed back at a later time.

When Jason reached Jeff Bergman’s house, there was no answer when he knocked on the door. Jason left a courtesy card on the door, notifying Jeff that a tree trimming would occur in the future. Jason then went around the back of the house to count the trees. He could hear a dog barking. The dog was a Labrador-Rottweiler mix named Taz. Jason didn’t know Taz had a dog door giving him unfettered access to the back yard.

Jason could see that Jeff and his neighbor had built 6-foot privacy fences, which made it impossible for the power company to check its easement. Thinking that Taz was inside, Jason entered the fenced-in back yard through a gate marked “no trespassing.”

Taz was not inside. As Jason fled the barking dog, the cantankerous canine planted his fretwork in Jason’s pant leg. Jason tried to climb the privacy fence, but fell back, injuring his shoulder.

Jason sued Jeff under Ohio’s dog bite statute, O.R.C. 955.28. Jeff filed for summary judgment. At the time, that statute provided that “the owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property… or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog …”

The issues in this case were whether Jason entered Jeff’s property pursuant to the utility easement, and whether he was a trespasser within the meaning of the dog bite statute.

The court determined that Jason was injured within the easement, where he had a right to be. However, the court said, the easement did not provide a specific place for the utility to enter the property, and therefore Jason was required to make use of the easement in a reasonable manner. The court found that Jason did not act reasonably in deciding to enter Jeff’s property without notice and through a latched gate and a fence with a posted “no trespassing” sign. The court also noted that Jason failed to follow his own company’s policy in entering a property when there is a dog barking in an enclosed area. Because Jason did not make reasonable use of the express easement granted the utility company, he was a trespasser within the terms of O.R.C. 955.28(B). The trial court granted Jeff’s summary judgment motion.

Held: Jason was a trespasser and not entitled to damages.

The Court of Appeals agreed with Jason that he had a right to enter the easement, and because it was blocked, he the only reasonable avenue open to him through the backyard fence.

However, in determining whether a person is a “harborer” under the statute, the Court said, “the focus shifts from possession or control over the dog to possession and control of the premises where the dog lives.” The hallmark of control is the ability to both prevent and exclude others from coming onto the property. Because Jason entered the property without permission, Jeff lost the ability to control his property at the time of the incident. Thus the trial court properly denied Jason’s motion for partial summary judgment and properly granted summary judgment to Jeff on the O.R.C. 955.28 claim.

– Tom Root

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