Cases from December 2015

Case of the Day – Tuesday, December 1, 2015


newspaper140421The year 1929 ended badly for a lot of people, with the stock market crash wiping out millions. It started just as badly for one Lou Cotillo (not to be confused with Lou Costello), when a chestnut tree on suburban land being developed by a real estate firm crashed onto the road. Under the spreading chestnut tree was Mr. Cotillo’s car, which, unfortunately enough, contained him and a passenger.

It turned out the chestnut in question, a rather big specimen, had been dead for a few years. However, the Court noted, “beyond its deadness, [it] bore no exterior evidence of decay.”

Deadness? Is that even a word?

Maybe not, but the jury had little trouble determining that the tree’s obvious “deadness” made the real estate developer liable for the accident. Brandywine appealed, arguing that the trial court should have taken the case away from the jury and thrown it out. It argued that, as a matter of law, it wasn’t liable for the results of a tree’s natural condition (that is, it’s “deadness”).

Applying what little Delaware law the United States Court of Appeals for the Third Circuit could find, the appellate panel upheld the jury verdict. The Court held that responsibility for an owner’s property is one of the burdens of ownership, and, as a landowner has the right to enjoy his property unhampered by the actions of his neighbor, his neighbor – ­whether a landowner or a highway traveler ­– is similarly entitled. The trial court told the jury that Brandywine had a duty to keep its property from being a source of danger to the travelers on the highway “to the extent that reasonable care can guard against” the danger. The jury decided that Brandywine had breached its duty. Game, set and match.

This case was an early decision in the general trend of imposing a duty of reasonable care on non-rural landowners. The issue in negligence cases such as this one is always the nature of the duty owed by the defendant. Defendants – such as Brandywine Hundred Realty in this case – want the duty to be as minimal as possible – where plaintiffs want the jury charge to describe a duty of the first water. From the “trees will be trees” laissez faire approach of the 19th century, where owners generally had no duty whatsoever to protect passers-by from hazardous trees, to a modern view that while not guarantors of their trees, property owners had a duty to correct problems of which they had actual or constructive knowledge.

chestnutdown140421Brandywine Hundred Realty v. Cotillo, 55 F.2d 231 (3rd Cir. 1931). On a dark winter night in January 1929, Mr. Cotillo and a passenger were driving forested suburban land owned by Brandywine Hundred Realty, Inc. A chestnut tree, standing about 10 feet from the road, fell suddenly, crushing Mr. Cotillo’s car and killing his passenger. The tree had been dead for four years, but, “beyond its deadness, bore no exterior evidence of decay.”

Cotillo sued, and the case went to trial. The real estate company asked the judge to take the case from the jury and find in its favor as a matter of law, because the natural condition of the tree caused the accident, and it had no duty to Mr. Cotillo. The judge disagreed, and instead told the jury that Brandywine had a duty to exercise reasonable care in the use of its property, so as not to harm neighboring landowners or motorists. The jury found for Mr. Cotillo.

Brandywine appealed, arguing that the trial court had misdefined its duty.

Held: The trial court was correct in its definition of Brandywine’s duty. The appellate court said that “[a]fter all is said and done, this case turns on the application of the time honored principle of law, ‘sic utere tuo ut alienum non laedas’–so use your own as not to injure another.” It held that Mr. Cotillo had a right to use the highway, and that Brandywine had the duty “to so use his property on his own land that it shall not cumber the highway and endanger the safety of those using it …” It agreed with the trial court’s charge to the jury that “ the owner of property abutting on a public highway is under a duty to keep it from being a source of danger to the public or to the travelers on such highway, to the extent that reasonable care on his part can guard against.”

Negligencedef140421The Court of Appeals also concurred that the fact the tree had died of natural causes, rather than because of Brandywine’s conduct, had no effect on the realty company’s duty. Regardless of how the tree ended up in a condition of “deadness,” if its deadness was known by Brandywine or could have been known “by the exercise of ordinary case … then it became the duty of the defendant to exercise reasonable care and diligence to prevent the tree from falling and injuring those who might have occasion to use the public highway.”

Thus, the question of Brandywine’s alleged negligence was for the jury to pass upon. It did so, and found negligence. The Court found no basis for disturbing that finding.

As for “deadness” as a word – the dictionaries give the Court a pass on it, but as far as we’re concerned, the jury’s still out on that one …

The dismissal of this ridiculous suit was upheld.


Case of the Day – Wednesday, December 2, 2015


prison151202It’s the beginning of December, and you know what means. That’s right – the United States bankruptcy courts have adopted the new bankruptcy forms! Effective yesterday, we have spankin’ new forms with which to rid ourselves of all those pesky creditors and ill-advised financial flings.

You may not be as excited as we are (and make no mistake, there was excitement: several U.S. District Court websites crashed over the onslaught of new filings). But bankruptcy is one of the important developments of our modern society, a means to give people who have made a lot of financial mistakes a fresh start. You’d be surprised who’s gone down. P.T. Barnum went banko, and then got into the circus business. Walt Disney got wiped out in bankruptcy, losing his Laugh-o-Gram business. He went to Hollywood and got into animation. For that matter, in the unlikely event Donald Trump becomes president, the old Boffin of Bankruptcy himself (four times to the courthouse for companies he controlled) will join august company. Abe Lincoln went bust in 1833. Ulysses S. Grant was financially embarrassed after he left the presidency, and wrote his memoirs to pay off the debts.  Harry Truman’s haberdashery failed, and it took him years to pay off his creditors (he refused the dishonorable but efficient bankruptcy route).

There are those who persuasively argue that American bankruptcy laws encourage the kind of risk-taking that benefits the economy. Nevertheless, it’s not all roses: some try to take advantage of the bankruptcy laws. The statutes provide a protection against bad apples wanting to use bankruptcy to regain undeserved polish. We’ll look at one such bulwark today, the Act’s prohibition against debtors discharging debts resulting from willful and malicious injury to someone else.

busted151202The difference is important. A debtor who injured someone else because he or she negligently ran into that someone’s tree with a car could have the debt discharged. But if he or she deliberately came on someone else’s land, for example, to cut down a Christmas tree and carry it home, the debt that misconduct represented would not be forgiven.

Sometimes the line isn’t that clear, such as in today’s case. The debtor, Ken Harper, got sued because when he had 47 acres of his own timber harvested, the crew he hired also harvested trees on 30 acres belonging to his neighbor. A state court jury had found him liable for trespass and conversion of timber, and had awarded punitive damages and treble damages. The Bankruptcy Court found that the debt couldn’t be discharged, because trespass was an intentional tort (in that the trespassing party intended to go where his feet took him, whether he knew it was his neighbor’s land or not) and because timber conversion required a willfulness to exercise ownership over the property (whether or not the actor knew it was someone else’s to begin with).

fico151202As for the maliciousness of the injury, the Bankruptcy Court found that it was enough that the state court jury had assessed punitive damages against Harper. The jury couldn’t have done that, the Bankruptcy Court said, unless it was clear that Harper knew his conduct was likely to cause harm. And as for the treble damages, the Court said, those are part of the judgment, and those aren’t dischargeable either.

Harper151202In re Harper, 378 B.R 836 (Bankr. E.D.Ark., 2007). Ken Harper owned Real Estate Development, Inc. (“REDI”). REDI bought about 47 acres of land from Quadrangle, leaving Quadrangle with about 1,200 acres of land surrounding REDI’s purchase. REDI hired Arkansas Timber & Logging to log timber on REDI’s land. On or about the same time that this logging occurred, Arkansas Timber logged several acres of Quadrangle’s property. Quadrangle sued Harper, REDI and Arkansas Timber for trespass and malicious conversion of timber on 30 acres, asserting that Harper hired Arkansas Timber to cut timber on REDI’s own lands, and that this agreement became a collusive effort to harvest and convert timber from Quadrangle’s land.

The jury did not find that the defendants acted in collusion, but it did return a verdict finding that Harper was guilty of trespass and conversion. The jury was instructed that trespass required that the defendants be found to have intentionally entered Quadrangle’s property. It held that Harper continued his trespass conduct with malice or in reckless disregard of the consequences, or that Harper intentionally pursued a course of conduct for the purpose of causing injury or damage. Quadrangle was awarded compensatory, treble and punitive damages against Harper, who went bankrupt without paying the judgment.

Quadrangle filed a complaint in the bankruptcy to determine whether Harper could discharge its judgment against him in bankruptcy.

pig151202Held: The judgment could not be discharged in bankruptcy. Quadrangle argued that the judgment obtained against Harper was nondischargeable under 11 U.S.C. § 523(a)(6) as a debt for a “willful and malicious injury by the debtor to another entity.” Here, the issue was whether Harper’s actions constituting trespass and conversion of timber were willful and malicious, as required to except a debt from discharge under § 523(a)(6).

Quadrangle argued that the jury instructions, jury questionnaire and judgment supported a finding of willful and malicious injury on their face. Harper argued that the mens rea requirement of intent was missing from the state court proceeding, and the issue should be tried in the bankruptcy court. The Court said that a “willful” act was “deliberate or intentional,” and the “willful” element is satisfied if the injury is the result of an intentional tort. The malicious element is satisfied if, in committing the intentional tort, the perpetrator intended the resulting harm, or the harm was substantially certain or nearly certain to result. In this case, the Court said, the jury instructions regarding trespass and conversion clearly established that the element of willfulness was presented to the jury. The jury instruction regarding the intent necessary for a finding of trespass specifically stated, “[t]he intent necessary to commit a trespass is that to be on a particular piece of land that does not belong to you.”

With respect to conversion, the jury was instructed that Harper must have had the “intent to exercise dominion or control over the goods that is in fact inconsistent with Quadrangle’s rights.” Finally, the jury instruction for “malicious conversion of timber” requires a finding that the Debtor “acted with intentional and deliberate disregard for the plaintiff’s property rights.” All of these standards describe a willful injury, the Court said, the purposeful invasion of another’s legally protected interests. As well, trespass and conversion are considered intentional torts under Arkansas law, and are therefore willful acts. The Bankruptcy Court found that the jury’s findings with respect to trespass and conversion established that Harper’s actions were willful, but not necessarily malicious. But because the jury awarded punitive damages — that the action was taken with either the intent to cause harm or with the knowledge that harm was substantially certain to occur — it was clear that the likelihood that Harper knew that harm was substantially certain to occur as a result of his intentional actions, was decided by the jury.

Although Harper argued that the treble damages were dischargeable, the Supreme Court determined that treble damages are encompassed by the term “debt” as it is used in the Bankruptcy Act.


Case of the Day – Thursday, December 3, 2015


Lesprit140422Ah, l’esprit d’escalier! Those biting, snappy comebacks we wish we had said at the time. Today’s case is about something akin to that, not rapier ripostes, but rather one of those rather important contract terms — how long the multi-year agreement would last — that both parties kind of wished they had discussed at the time they first made their deal.

And maybe one of them did. To be sure, each probably had what is today called an “exit strategy” in mind. But neither brought it up. And what’s worse, nothing was in writing on the parties’ joint venture to raise and harvest peaches. Samuel Goldwyn was right when he observed that “a verbal contract isn’t worth the paper it’s printed on.” What’s surprising is that their verbal deal lasted as long as it did. Invariably, however, problems ensued. When Miami Valley Fruit Farm wanted to terminate the deal after about 20 years, Southern Orchards protested that the length of the venture was for the useful life of the trees, meaning that the deal would go on until the trees were worn out. It sort of turns the old Stripes line on its head: you can’t go … until all the plants die.

The Court agreed, because that was the only interpretation that made sense to it. You see, without a contract in black and white, everything was pretty gray. Think of how much they saved on lawyers by not writing up a detailed contract. Probably less than 5% what they spent litigating the issue 20 years later …

verbalk140422Miami Valley Fruit Farm, Inc. v. Southern Orchard Supply Co., 214 Ga.App. 624, 448 S.E.2d 482 (Ga.App., 1994). Southern Orchard Supply Co. and Miami Valley Fruit Farm entered into an oral agreement whereby Miami Valley, which owned the 295 acres of land, purchased peach trees, and Southern Orchard planted, cultivated and harvested the trees. Under the agreement, which has been in effect about 20 years, the parties equally divided the net profits from the sale of each year’s peach crop.

After the 1993 peach crop was harvested and sold, Miami Valley told Southern Orchard that it was terminating the oral agreement and that Southern Orchard would not be allowed to cultivate and harvest the 1994 peach crop. Southern Orchard sued for an injunction, arguing that it had made substantial investments in the planting and cultivation of the peach trees and in equipment and packing facilities based on the mutual understanding of the parties that the agreement would continue for the “economic life” of the peach trees.

The evidence showed that after a peach tree orchard is planted, the trees have to be cultivated for years before they mature enough to bear fruit and begin to produce profitable, full crops. Once mature, the trees have an “economic life” for an indefinite period of years, during which they produce profitable crops each year until their fruit production declines to the point where they are no longer profitable and new trees must be planted. The “economic life” of the trees varies based on factors such as the variety of the peach and cultivation techniques. The trees at issue still had years of “economic life” remaining.

Southern Orchard argued the agreement had to last for the “economic life” of the trees in order to provide for recoupment of its expenses. Miami Valley argued there was no agreement between the parties for any specific duration of the contract, that the parties considered the agreement to run from year-to-year, and that in any event the “economic life” of a peach tree could not provide the agreement with a definite term since the duration of the life cannot be determined with any degree of certainty. Accordingly, Miami Valley argued it had the right to terminate the agreement.

The trial court held that there was an enforceable oral contract for Southern Orchard to cultivate and harvest the peach trees on the land at issue for the “economic life” of the trees, and because Southern Orchard had no adequate remedy at law for the breach of the agreement, the trial court could grant injunctive relief, ordering Miami Valley not to interfere with Southern Orchard’s performance of the agreement for the 1994 peach crop. Miami Valley appealed.

stitch140422Held: The injunction against Miami Valley is upheld. The Court of Appeals held that the question as to the length of time the contract remains in force is governed by the circumstances of each particular case. Here, the Court said, evidence showed that the parties intended the employment contract to continue for more than a single crop season. Considering the particular circumstances and expenses incurred to plant, cultivate and harvest the peach trees, the Court found, the parties agreed that the employment contract would continue for as long as the trees produced reasonably profitable crops, the “economic life” of the peach trees.

The old aphorism that a “stitch in time saves nine” is worth recalling here. A little consideration to all of the material terms of the agreement at the outset – maybe a few bucks spent on a lawyer whose forte is thinking about all the “what ifs” that the parties aren’t considering ­– would have saved a lot of time and expense two decades down the road.


Case of the Day – Friday, December 4, 2015



literally140423One of the many badges that marks us as curmudgeons, according to a recent book, is our preoccupation with proper language. It irritates us no end when people say “irregardless” when they mean “regardless,” say “affect” when they mean “effect,” or use “like” every third word or so.  And don’t get us started about made-up nonsense like “Mx.”  As far as we’re concerned, “MX” will always be a missile program.

But what metaphorically drives us batty is the casual and improper use of the word “literally.” The word means “actually” or “without exaggeration.” Believing as we do that the widespread devaluation of like every corner of the English language is like literally send us to hell in a handcart, we were surprised to see that today’s case ­– well over 50 years old – featured a witness describing “literally thousands of bees inside the trunk” of the decayed tree.

We were fascinating that, with such a swarm pursuing him, the witness took the time to count the bees, at least until he passed 2,000. That took nerves of steel. Literally.

Beyond our disquiet over the witness’s imprecise and flawed language, we were interested in the application of both Hay v. Norwalk Lodge No. 730, B. P. O. E., 92 Ohio App. 14, 109 N.E.2d 481 (Sup.Ct.Ohio 1951) and Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231 (3rd Cir. 1951). While those decisions, which we’ve discussed in recent posts, related to injury to passing motorists, the court here couldn’t see any practical difference between the landowner’s duty to a motorist and to a parked car. Furthermore, it found that the tree was so obviously dead and dangerous that the landowner was chargeable with knowing about its condition, although he’d only owned the property for a few weeks.

How many bees? Literally thousands ...

How many bees? Literally thousands …

The court said that a few weeks was not so legally insufficient a period time for him to have gotten over and inspected the place that the factfinder was wrong for finding him liable.

The trend here is clear: the law was moving toward holding that a property owner had an affirmative duty to inspect the land. Actual or constructive knowledge wasn’t enough. The absentee owner should have done a drive-by, the court decided by implication. And thus, the evolution of a requirement that an owner affirmatively care for his or her property continued.

Turner v. Ridley, 144 A.2d 269 (Ct.App.D.C. 1958). Turner owned a house facing a street on which automobiles were regularly parked. The small front yard featured a single large tree. On a fall evening, Ridley’s friend parked Ridley’s car at the curb in from of Turner’s house. Early the next morning, with no inclement weather to blame for the event, the tree toppled and fell across the sidewalk, striking Ridley’s car.

At the time the tree fell, according to the man who had parked Ridley’s car – a man named Reid ­–the tree ‘was rotten and looked like it was dead and had very few leaves on it.’ and on the night before it fell he had remarked to a friend ‘that tree looks like it is going to fall some day.’ The tree in falling broke off even with the ground, and then it was observed that the tree was hollow and badly decayed with ‘literally thousands of bees inside the trunk.’

Turner testified he had purchased the property through an agent at a foreclosure sale a month before the mishap, that the property had been vacant since he purchased it, that he had never seen the property or the tree, and that he had no notice or knowledge that the tree was in a dangerous or rotten condition. The trial court awarded judgment to Ridley for the damages he sustained.

Turner appealed.

Held: Turner was liable for the damage to Ridley’s car. While prior cases diverge somewhat, the Court found the Ohio decision in Hay v. Norwalk Lodge No. 730, B. P. O. E., instructive, holding that “an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway.”

Knowledge could either be actual or, as held in Brandywine Hundred Realty Co. v. Cotillo, constructive, “if such condition was known or by the exercise of ordinary care could have been known by the defendant.”

The car was the first casualty ... but not the only one.

The car was the first casualty … but not the only one.

The Court admitted that Hay and Brandywine dealt with personal injuries to travelers on the highway, but it observed that there is “no distinction in principle between the case of personal injury to one lawfully traveling on a highway and the case of property damage to a vehicle lawfully parked on the highway.” The issue was whether the owner – who had only owned the property for a few weeks and who had never seen it before – could be charged with constructive knowledge of the tree’s condition. There was no question that the tree was obviously dangerous and quite dead. The Court acknowledged that “[a] three-week period is no great length of time, but we cannot rule that such period was legally insufficient time for appellant to look over his property and observe the condition of the tree and take steps to prevent its fall. We think the evidence presented a factual question as to notice and lack of care.”

“Hard cases are the quicksands of the law,” as an old maxim put it. Here, the intersection of an absentee owner, an obviously defective tree, a fairly minor damage bill, a colorful witness and lack of any defense by Turner, combined to bring about a holding that imposed additional duties on a landowner.


Case of the Day – Monday, December 7, 2015


Last Friday, we noted the incremental creep of the law toward imposing an affirmative duty to inspect trees. The Turner v. Ridley court suggested that it was no longer enough that an owner lacked actual or constructive knowledge of a defective tree. In some cases, he had a duty to inspect, and in the absence of having done so, he was charged with knowing that his trees were dangerous.

Which one is Tilford E. Dudley?

Which one is Tilford E. Dudley?

Were we wrong in predicting that Turner portended the judicial application of a duty to inspect? Today’s case was decided only a few years after Turner by the same court, the District of Columbia Court of Appeals. In this case, a tree standing next to an apartment house fell across an alley onto Tilford E. Dudley’s place. The name itself is classic – evocative of a titled cousin come to visit the Granthams at Downton Abbey.

Tilford sued the apartment owner, Meadowbrook, Inc. At trial, the Lord Dudley showed that the tree, although quite alive at the time it fell, had a five-foot long concrete patch in one side and was decayed from the inside out. It hadn’t been shedding branches, but due to the proximity of the apartments, soil had been banked several feet high around the tree and a “well” had been dug at its base for the trunk.

The trial court threw out the case after Tilford Dudley finished his direct case, holding that the defendants won as a matter of law, because there was no evidence they were on notice that the tree was defective.

A concrete patch in a tree.

A concrete patch in a tree.

The Court of Appeals was apparently rather impressed that the tree had been patched with enough concrete to build rebuild the 14th Street Bridge. Concrete plugs in trees was a common enough treatment to fend off decay years ago, but – like physicians’ blood-letting as a cure for illness – it has fallen into disfavor recently. But in this case, the Court said, such a big concrete patch – as well as, possibly, the banked soil and apartment building only four feet from the truck ­– ought to have caused the owner’s manager to do something to inspect the tree or, importantly, hire an arborist to inspect the tree. There may have been evidence she did so, but the Court of Appeals said that Meadowbrook couldn’t hide behind a general lack of obligation to inspect.

The Court thus nudged the standard a bit further along. If something in the tree’s history – and the concrete patch apparently was over 10 years old – might suggest that it was diseased or injured at one time, the Court seemed to say, an owner might have an affirmative duty to inspect, or even to hire an expert to inspect, her trees.

Of course, there’s no telling what condition might trigger such an affirmative obligation. Decayed trunk? Dead limbs? Bracing or cabling installed by a tree service? A surfeit of twigs shed by the tree? Insects clinging to the bark? There’s no telling, but you can be sure that a court will be more willing to Monday morning quarterback a defect that results in collapse, holding that the property owner should have been inspecting for that.

Dudley v. Meadowbrook, Inc., 166 A.2d 743 (C.A.D.C. 1961). A large tree on Meadowbrook’s property fell across an alley and onto Dudley’s premises, damaging his garage and other property. Dudley sued for his damages. At the end of his case the trial court found for Meadowbrook, ruling that it was unnecessary for the defense to put on any answering evidence.

Dudley appealed.

Held: The holding was vacated, and the vase returned to the trial court.

The tree, which had been growing since before 1942, fell at a time when no strong wind was blowing. When an apartment house was built there, the soil had been banked 2 or 3 feet deep on two sides of the tree and a concrete well was built around the tree trunk. The apartment building was about 4 feet from the tree well and a paved parking area was about a foot away. Dudley testified that the tree was about 75 feet tall and 2 .5 feet wide at the base. Where it broke off at ground level there were indentations extending about 6 inches below the ground and into the base of the tree trunk, and an area of about 2 feet inside the trunk appeared to be “spongy, decayed and soft,” although no decay showed on the outside of the trunk. Dudley said the tree was in full foliage with no dead branches but that on one side of the trunk there was a strip of cement extending from near the base to a height of about 5 feet . The cement had been there for at least 12 years before the tree fell.

No longer part of an arborist's bag of remedies ...

No longer part of an arborist’s bag of remedies …

The Court admitted that the law was muddled, but held that “the sound and practical rule is that liability in such cases is to be determined by the test of negligence and that a landowner should be held to the duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor’s property.” It then opined that “[a] healthy tree does not ordinarily fall of its own weight without some exterior force being directed against it. Though some evidence indicated that the tree looked sound, it was in fact full of decay. At least 13 years earlier it had been subjected to surgery and a large area filled with concrete. We think it cannot be said as a matter of law that during all the intervening years the owners were under no duty to inspect it or have it examined by an expert to see whether it required further attention and whether it was safe to let it remain standing.”

Without any evidence other than its own sense that something didn’t seem right that the tree had fallen without any apparent external factor and that it had once had surgery, the court substituted its judgment for the evidence in the record. Some of its holding can be ascribed to as courts’ natural bias in favor of letting a jury decide rather than having the case taken from the factfinder by a trial judge. But if evidence of surgery more than 13 years prior is sufficient to “require … [the owners] to produce evidence as to what they knew about it or what examinations they made during the many years since the tree was last treated,” then a generalized rule that requires urban owners to inspect their trees cannot be far behind.

Here, the case was sent back for a new trial.

Case of the Day – Tuesday, December 8, 2015



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 much 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.

silvermaple140425Here, 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.


Case of the Day – Wednesday, December 9, 2015


After the Virginia Supreme Court decided in Fancher v. Fagella that Linda Landowner has a duty to ensure that her trees doesn’t become a nuisance to her neighbor Arnie Adjacency, you could be forgiven for reasoning that she also has a duty to be sure that her trees don’t fall on Mortimer and Mildred Motorist. After all, a duty to protect others from physical harm ought to rank higher on the hierarchy of social good than keeping Arnie’s retaining wall from collapsing.

One of the beauties of the law, however, is that it often does not make sense. The Virginia Supreme Court had an opportunity to underscore that unsurprising phenomenon a few years ago, when it ruled that Fancher’s departure from the old Virginia Rule of Smith v. Holt didn’t extend to a landowner’s duty to the passing public. When a tree on the front yard dies, decays and falls in the road, let the driver beware …

Cline v. Dunlora South, LLC, 726 S.E.2d 14 (Sup.Ct. Virginia, 2012). Facts: Cline was driving on a public road when a tree fell and crushed the roof of his car. Cline suffered severe and permanent injuries, including fractures of his cervical spine.

The tree was located about 16 feet from the edge of the road, on land owned by Dunlora South. At the time of the mishap, the road was traveled by about 25,000 vehicles per day. The tree, approximately 25 inches wide was “dying, dead, and/or rotten” at the time it fell, and had been in this condition for a period of “many years and exhibited visible signs of decay, which were open, visible and/or obvious.” According to Cline, the tree’s condition was or should have been known by Dunlora, just as it should have been aware of the hazards presented by trees being next to the public highway. Cline sued, but the trial court held that Virginia law did not provide for recovery of personal injury damages caused by a private tree falling on a public highway. Cline appealed, and the case reached the Virginia Supreme Court.

Another Latin phrase ... this one more familiar ...

Another Latin phrase … this one more familiar ...

Held: The Court held that, even after Fancher v. Fagella, a private landowner was not responsible for damages to a person using a public highway, when that damage was caused by a tree located on the landowner’s property. At common lawthat is, law imposed and changed incrementally by decisions handed down judicial decision – a landowner owed no duty to those outside the land with respect to natural conditions existing on the land, regardless of the danger posed by such dangerous conditions. Although Virginia courts had never recognized that principles of ordinary negligence apply to natural conditions on land, in Smith v. Holt, an adjoining landowner was held to have a nuisance cause of action if injury was inflicted by the protrusion of roots from a noxious tree or plant on the property of such adjoining landowner. The Court observed that the duty it recognized in Smith v. Holt was “in accord with the broad common law maxim: “sic utere tuo ut alienum non laedas” – one must so use his own rights as not to infringe upon the rights of another … The principle of sic utere precludes use of land so as to injure the property of another.” It was this principle that gave birth to the “Virginia Rule,” a splitting of the difference between the Massachusetts Rule and the Hawaii Rule.

Fancher changed a lot, the Court admitted. It modified Smith’sVirginia rule” by discarding the subjective requirement of “noxious” nature, and imposing a limited duty on owners of adjoining residential lots to protect against actual or imminent injury to property caused by intruding branches and roots. Fancher articulated a rule allowing relief where trees encroaching onto the land of another begin to constitute a nuisance, that is, when they encroach upon the property of another such that they cause actual harm or the imminent danger of actual harm. Fancher thus recognized that a trial court must determine whether circumstances are sufficient to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots.

We bet the driver heard this one ...

We bet the driver heard this one …

The Court held here that the Fancher rule imposing a duty on a tree owner to protect a neighbor’s land from damage caused by the tree, only “addresses a narrow category of actions arising from nuisance caused by the encroachment of vegetation onto adjoining improved lands.” The Fancher and Smith duties are dramatically different than imposing a duty on a landowner to monitor the natural decline of his or her trees adjacent to a roadway. Fancher does not impose a duty on a landowner to inspect and cut down sickly trees that have the possibility of falling on a public roadway and inflicting injury.

Instead, the duty owed by adjoining property owners is to not do anything to make the highway more dangerous than it would be in its natural state. In this case, no one suggested that Dunlora engaged in any affirmative act that made its property adjoining the highway different than it had been in its natural state. Cline’s complaint was that Dunlora failed to act, and Virginia common law tort principles do not hold that a landowner owes a duty to take affirmative acts to protect travelers on an adjoining public roadway from natural conditions on his or her land.

Case of the Day – Thursday, December 10, 2015



lee140501Robert E. Lee 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 Monday. There, when a tree in the right-of-way fell on a driver, the court found that requiring a “walkaround” inspection was unreasonable.


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 earlier this year.

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.


Case of the Day – Friday, December 11, 2015


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.


Case of the Day – Monday, December 14, 2015


Today, we consider what liability you might have when the people doing work for you cross the line. Literally. You know, as in trespass on the neighbors’ estate .. commit a trespass. We suspect there’s a backstory here of some neighbor animosity, as well.

fence2-140506The little Schievink homestead (300 acres, but that’s little in Texas, where everything’s bigger) was surrounded by the mega-hunt reserve Wendylou Ranch. Wendylou was having some fence put in, and hired Rudy’s Fencing to do the work. Eventually, Rudy’s Fencing accidentally colored outside of the lines with its bulldozer – a fairly minor mistake, which was promptly corrected and seemed to cause little damage – and the Schievinks raced to their lawyer’s office.

Something seems rather peculiar about this case, and we wish we knew the backstory. Maybe it was the Hatfields and McCoys. Or David and Goliath. Whatever the history between them, the Schievinks were bound and determined that they were going to hang the trespass on Wendylou (despite the fact that Rudy’s, a company with 25 employees and 20 years in business, probably could have easily paid for the actual damage caused to the 15-foot wide, 1,600-foot long strip that had been bulldozed accidentally). The cost and aggravation of litigation hardly seems worth it for them, although their lawyer must have been pleased.

We suspect the neighbors' animosity toward Wendylou went back a long time.

We suspect the neighbors’ animosity toward Wendylou went back a long time.

To be sure, he fired both barrels at the mega-hunters. And missed. The Court found that Wendylou hadn’t been an aider or abettor of the trespass, because its people had been careful to identify the property lines, instruct Rudy’s to install the fence 15 feet inside the boundaries, and insisted on walking the boundary with Rudy’s staff before each segment of fence was installed to be sure everyone knew where the frontier on the frontier really was. It was mere happenstance that Rudy’s crew got ahead of schedule, and pressed on one day into new territory without alerting Wendylou’s manager that more boundary needed to be identified.

More important for our purposes today, the Court agreed with Wendylou that Rudy’s was an independent contractor. This was important, because while Wendylou would be responsible for the negligent acts of its employees, it was not responsible for its independent contractor’s accidental trespass.

So what is the difference between this case and those situations where the owner has to pay when the hired bulldozer over-dozes? Chiefly, it would seem to be the extra care Wendylou took to ensure that its contractor remained independent yet adequately directed.  “Misteaks” do occur, but a careful property owner can minimize their effect. Usually, when an owner hires a guy with a ‘dozer, the transaction is much more casual.

Schievink v. Wendylou Ranch, Inc., 227 S.W.3d 862 (Tex.App., 2007). The Schievinks own 300 acres of land, surrounded on all sides by land owned Wendylou, which does business as Wendy Lou Classic Game Ranch, a “true Tex African game experience” on 4,500 acres of land.

... but people do. That's why homeowners should be as careful as Wendylou ... and they may still end up as defendants.

… but people do. That’s why homeowners should be as careful as Wendylou … and they may still end up as defendants.

Wendylou hired Rudy’s Fencing to build a game fence around parts of its ranch. The manager of Wendylou, Mike Odell, gave verbal instructions to Rudy’s Fencing personnel about where the fence should be, and Rudy’s Fencing used its own equipment and — other than being told where to start, stop, or put a gate —was not instructed as to the details of building the fence or clearing the fence line.

Odell walked the boundary line with Rudy’s Fencing’s on-site during each stage of the construction, only going as far as the fence builders were expected to go in that stage. Odell checked the progress occasionally but did not supervise the day-to-day activities. Odell told Rudy’s to build the new fence two to three feet inside the old fence (which followed the boundary line) to keep from encroaching on the Schievinks’ land. Odell had not yet walked the fence line with Rudy’s at the point where the fence veered onto the Schievinks’ place, because Odell had thought the previous phase through a creek would take longer than it did.

Rudy’s used a bulldozer to clear the fence line. Rudy’s supervisor was confused about his location, and he directed the bulldozer operator to cut the boundary fence and follow another fence row onto the Schievinks’ property. The operator bulldozed a strip of land approximately 15 feet wide by 1,600 feet long before Mr. Schievink arrived to tell Rudy’s supervisor that they were on Schievink’s land.

The Schievinks sued Wendylou for trespass and for breaching a duty as an adjoining landowner. Wendylou moved for summary judgment because the evidence showed that Wendylou did not trespass on the Schievinks’ land or instruct Rudy’s Fencing to trespass, and because Wendylou is not liable for the trespass of an independent contractor. The trial court granted Wendylou’s motion for summary judgment. The Schievinks appealed.

A long fenceline, not a lot of landmarks denoting the property line ... a 15-foot error was foreseeable, which is why Wendylou was so careful.

A long fenceline, not a lot of landmarks denoting the property line … a 15-foot error was foreseeable, which is why Wendylou was so careful to instruct its contractor.

Held: Wendylou is not a trespasser. The Schievinks argued Wendylou breached a duty as an adjoining landowner by failing to instruct Rudy’s Fencing as to the property line, that Rudy’s Fencing wasn’t really an independent contractor, and — even if it were an independent contractor —Wendylou was negligent for failing to give adequate instructions to Rudy’s Fencing.

The Court agreed that a person may be liable for trespass if he aids, assists, advises, or causes another to enter the property, even if the person entering the adjoining land is an independent contractor. But here, the Court said, there was no evidence that the Ranch manager had any role in the trespass. Instead, he had guided the contractor to avoid trespass, but through confusion on the part of the independent contractor, the trespass had occurred anyway. The Court found no genuine issue of fact concerning Wendylou’s breach of any duty that it owed to the Schievinks to instruct Rudy’s Fencing as to the correct property line.

The Schievinks also argued that an issue existed whether Rudy’s Fencing was an independent contractor. If Rudy’s Fencing or its personnel were employees of Wendylou, rather than independent contractors, then Wendylou could be liable for their negligent acts under the doctrine of respondeat superior. But a person who hires an independent contractor is generally not liable for the acts of an independent contractor unless the employer exercises sufficient control over the details of the independent contractor’s work.

The Court considered seven factors in deciding that Rudy’s was an independent contractor: (1) the independent nature of the business; (2) the obligation to furnish necessary tools, supplies, and material to perform the job; (3) the right to control the progress of the work, except as to final results; (4) the length of time for which Rudy’s was employed; and (5) the method of payment, whether by time or by the job. The uncontested evidence showed that Rudy’s Fencing had been in the business for over 20 years, had 25 employees, had bid the job competitively by the foot, had furnished its own people and tools, and had supervised the day-to-day work.

The Court thus held that the evidence established as a matter of law that Rudy’s Fencing was an independent contractor.

Case of the Day – Tuesday, December 15, 2015


ghostbusters140515It’s not easy to defeat a utility company holding an easement for transmission lines, especially after the great power outage of a decade ago. The great Blackout of August 2003, after all, started because power lines sagged into trees in the Cleveland, Ohio, area.

Yeah, it’s not easy to beat the power company and its chainsaw-wielding minions … but the Corrigans did it for awhile. They had granted an easement to a Cleveland electric utility for a transmission line. In the wake of the blackout, the utility told the Corrigans (and thousands of others) that it would vigorously pursue cleaning up vegetation in the easements. This mean, among other things, no trees within 25 feet of the lines.

The Corrigans had a big silver maple that was about 22.5 feet from the lines. They loved the tree, so they hired an arborist at considerable expense to trim the tree away from the lines and to inject the tree with a hormone to slow growth. Tough luck, the utility said, it’s coming down anyway.

So who do you call when the power company shows up with chainsaws and a gleam in its institutional eye? The Corrigans raced to the local common pleas court, and asked for an injunction. The trial judge agreed, and the Court of Appeals concurred. Both of those courts sided with the Corrigans that the utility could only cut trees that were “a possible threat to the transmission lines.”

It seemed important to the Court of Appeals that the community had not experienced any service interruptions since the Corrigans had pruned the tree, although that reasoning’s pretty thin. The tree has to only fall once, cascading one failed transmission lines into a continental disaster. But the Court seems to have been favorably impressed by the amount of money the Corrigans had spent getting the tree professionally trimmed.

utilitytrim140515The utility saw an issue here that was bigger than just the Corrigans and their lone silver maple tree. It framed the question as being just who was in charge here, the 88-odd common pleas courts spread throughout Ohio or the public utilities commission. The Ohio Supreme Court agreed that this was indeed the issue, and ruled that the inclusiveness of the state statute and regulations delegating power to the Public Utilities Commission of Ohio gave PUCO the sole authority to decide questions of vegetation management.

We have to admit that the Court of Appeals had left us with the uneasy feeling that the Court of Appeals’ attempt to do some rump justice here may have made it much more difficult for a utility to exercise its easement rights. To be sure, a utility being sued in a case like this would have to be prepared with an expensive and eye-popping case that graphically depicts the dangers that a tree in the transmission path — even a well cared-for tree — can pose.

The Ohio Supreme Court’s holding provides electric utilities a much friendlier forum in which they must litigate issues of vegetation management, although that may not be a bad thing. Utilities have to walk a fine line, incurring ire if property owners think trees were pruned too aggressively, and facing universal fury when service is interrupted by vegetation coming into contact with transmission and distribution lines.

Corrigan v. Illuminating Co., 122 Ohio St.3d 265 (Sup.Ct. Ohio 2009). The Corrigans granted a quitclaim deed to The Illuminating Company, the local electric utility, for a transmission line to run through their yard. The easement gave the Illuminating Company the right to “enter upon the right-of-way occupied by said transmission lines … with full authority to cut and remove any trees, shrubs, or other obstructions upon the above described property which may interfere or threaten to interfere with the construction, operation and maintenance of said transmission lines.” The Corrigans had a large silver maple tree located about 22.5 feet from the centerline of the transmission lines. At considerable expense, they had their own arborist trim the tree and inject slow-growth hormone to keep the tree from posing a risk to the transmission line. Nevertheless, the Illuminating Company decided to remove the tree, and the Corrigans sued for an injunction.

The trial granted an injunction barring the Illuminating Company from removing the tree, and the Court of Appeals agreed. The electric utility, seeing the issue as one that transcended the issue of one tree, but rather affected the company’s ability to manage vegetation in its rights-of-way throughout the state.

Held: The Corrigans argued that the issue was purely a contract matter, but the Supreme Court disagreed. Noting that “[t]here is no question that the company has a valid easement and that the tree is within the easement” and the easement’s language was unambiguous that the utility had the right to remove trees that might interfere with its transmission lines, the Court said the issue was the correctness of “the company’s decision to remove the tree instead of pruning it.” That was “really an attack on the company’s vegetation-management plan [and] that type of complaint is a service-related issue[] which is within PUCO’s exclusive jurisdiction.”

The statute creating PUCO to administer and enforce these provisions provides that the commission hears complaints filed against public utilities alleging that “any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential.” This jurisdiction is “so complete, comprehensive and adequate as to warrant the conclusion that it is likewise exclusive.”

The Court used a two-part test to reach its determination. First, it asked whether the commission’s administrative expertise was required to resolve the issue in dispute, and, second, whether the act complained of constituted a practice normally authorized by the utility.

rules140515The Ohio Administrative Code chapter on electric service and safety standards requires that utility companies establish a right-of-way vegetation-control program to maintain safe and reliable service. The Code requires that each electric utility inspect its electric-transmission facilities (circuits and equipment) at least once every year, in accordance with written programs, and takes a number of factors into consideration such as arcing, sagging, and line voltage as well as regulatory requirements from OSHA, FAA, and the Army Corps of Engineers. In addition, electric utilities are required to comply with the American National Standard Institute’s National Electrical Safety Code. The utilities are required to submit their programs to the Commission, which will resolve any disputes as to the efficacy of the plan.

The Court concluded that the Ohio Administrative made it clear that PUCO’s administrative expertise is required to resolve the issue of whether removal of a tree is reasonable.

The second part of the test determined whether the act complained of constitutes a practice normally authorized by the utility. Again, the Court said, the Administrative Code made it clear that vegetation management is necessary to maintain safe and reliable electrical service. Thus, the Supreme Court ruled, the second part of the test was satisfied, and the Corrigan’s complaint fell within the exclusive jurisdiction of PUCO.

That meant that the Illuminating Company’s decision that the silver maple interfered or threatened to interfere with its transmission line was a service-related question, and one that the Corrigans could only dispute in front of PUCO. The Court of Appeals judgment was thrown out.


Case of the Day – Wednesday, December 16, 2015


goodintent151216Our sainted 91-year old mother has several favorite expressions. One of them is “he meant well.”

According to Mom, everyone meant well. The Khmer Rouge? Maybe just a little too zealous. Mao? Well, there were too many people to feed, anyway.

Sure, Mom. Everyone means well.

If you want a real-life example of someone who meant well, look no further than our hero in today’s saga, timberer Brad Fournia. Brad was hired to harvest some hardwood up in Clinton County, New York. And we mean “up.” Not all of New York is urban, you know. Clinton County is hard against the Canadian border, home to 78,000 people, a few thousand hardened criminals, and a lot of forest.

Well, maybe not quite as much forest as before.

Remember these guys? We doubt they meant well, no matter what Mom says.

Remember these guys? We doubt they meant well, no matter what Mom says.

It seems that landowner John Jamison hired Brad to harvest some trees. Brad, being a careful sort, asked John to mark the property line, so he didn’t stray into anyone else’s timber. Jamison showed Brad an old line of surveying ribbons that purportedly marked the property line.

Regular readers of this blog know where we’re going. It wouldn’t be much of a story if the ribbons were really marking the boundary, and Brad and his crew carefully cut on the Jamisons’ side of the line. Of course not.

Surprisingly, the ribbons did not mark the actual property boundary, which resulted in Brad cutting down 488 trees belonging to Mr. Halstead. Of course, Mr. H sued.

There wasn’t any question that Brad had trespassed. After all, a trespasser does not have to intend to trespass. He just has to intend to be where he ends up, which is on someone else’s land. The issue was how much Brad owed Mr. Halstead for the blunder. (And, yes, John Jamison got sued, too, so you can be sure he’ll be sharing in paying the damages).

Both Brad and Mr. Halstead submitted proof of the stumpage value of the 488 trees, and it came to about $5,000.   Unfortunately for Brad, about 12 years ago, the New York legislature – apparently between scandals ¬– decided that timber theft was rampant in the Empire State. It passed RPAPL 861, which confusingly directed that the penalty for defendants cutting trees that didn’t belong to them “shall be … the stumpage value or [$250] per tree, or both.”

You can do the math. At $250 per tree times 488 trees, Brad and his codefendants were looking at about $122,000 in damages for timber that was worth about $5,000.

Clinton County - pretty far from the Big Apple.

Clinton County – pretty far from the Big Apple.

The trial court had trouble with such a princely figure, the result of the state lawmakers not really thinking through how their “get tough on timber thieves” measure might get applied in the real world. The court said there was a question of fact to be decided, whether the defendants “had good cause to believe that [they] had a legal right to cut plaintiffs’ trees.” Even Mr. Halstead had to concede that Brad and John Jamison believed in good faith that they were entitled to remove the trees.

In New York, good-faith belief and $3.00 is enough for a small Starbucks. Last week, the appellate court noted that Mr. Halstead was electing to seek statutory damages of $250 per tree, and that’s what the minimum he’s entitled to under the law.

Brad argued that damages of $250 per tree were not mandatory, and RPAPL 861 affords discretion to the trial court to award a lesser amount of statutory damages. The Appellate Division rejected that novel reading of the statute. Statutory damages of $250 per tree cannot be reduced, and the damages in this case amount to $122,000 “given the undisputed fact that 488 trees were removed.”

However, the Court said, because the parties put in evidence of actual loss, the trial judge could decide that the lesser amount was enough to compensate Mr. Halstead. It sent the case back for trial.

Timber trespass in New York State just got very costly.

mybad151216Halstead v. Fournia, 2015 NY Slip Op 09153 (Supreme Court, Appellate Division (December 10, 2015).  Defendant John Jamison hired defendant Brad Fournia to cut timber on Jamison’s land.. Jamison showed Fournia an old line of surveying ribbons that purportedly marked the property boundary. It turned out they did not, which resulted in Fournia cutting and removing 488 trees on plaintiffs’ property.

Plaintiffs sued. The trial court granted summary judgment on the issue of liability, but found that questions of fact required a trial on the issue of damages. Plaintiffs appealed.

Held: If statutory damages are imposed, Plaintiffs must be awarded $250 per tree. Defendants conceded that they removed timber without permission to do so, rendering them liable under RPAPL 861. However, the trial court found questions of fact with regard to whether defendants “had good cause to believe that [they] had a legal right to cut plaintiffs’ trees.” Even plaintiffs concurred that they did.

However, plaintiffs’ good faith but mistaken belief does not matter. RPAPL 861 provides that a successful timber trespass plaintiff may elect to get actual value of the trees, a statutory sum of $250 per tree, or both. Here, Halstead elected to collect $250 per tree – which was far more that the $5,000 the 488 trees were worth – and he was entitled to do so.

Mr. Halstead had to be singing this song ... after the law let him "sell" his $5,000 worth of trees for $122k.

Mr. Halstead had to be singing this song … after the law let him “sell” his $5,000 worth of trees for $122k.

Defendants argued that damages of $250 per tree are not mandatory, and that RPAPL 861 affords discretion to a trial court to award a lesser amount of statutory damages. But the language in the statute is clear, and the court must follow it. The statute unambiguously directs that defendants “shall be liable for the stumpage value or [$250] per tree, or both,” and gives no indication that a lesser amount of statutory damages per tree may be awarded. And the legislative history of RPAPL 861 – enacted in 2003 to deter the illegal taking of timber by increasing the potential damages for that activity – supports the interpretation of the statute. It was meant to “provid[e] for more suitable fines of at least $250 per tree.

The statutory damages of $250 per tree cannot be reduced. Defendants are liable for $122,000, given the undisputed fact that 488 trees were removed.

However, the trial court is not obliged to award statutory damages. It is instead entrusted with the discretion to award “the stumpage value or [$250] per tree, or both” for an unlawful taking. RPAPL 861[2]. Both plaintiffs and defendants submitted proof as to the other measure, with plaintiffs providing the affidavit and report of a forester who opined that the stumpage value of the trees was under $5,000. Inasmuch as plaintiffs’ own motion papers left unresolved the issue of whether “a lesser amount than that claimed . . . will sufficiently compensate for the loss,” the trial court correctly directed an immediate trial on the issue of damages.

Case of the Day – Thursday, December 17, 2015


treefall140516When a late summer storm blew up in Minneapolis, Chauncey Moua and his wife decided to retreat to the safety of their home to await its passing. They pulled up at home to take shelter. That’s when Mr. Moua decided to park in front of the neighbors’ house, because the neighbors’ tree, the branches of which were overhanging the Moua homestead, was swaying dangerously in the high winds. As he parked the car, a branch fell, killing him.

What do you do after the funeral?  After a suitable period of mourning – maybe a few hours or so – you hire a really dedicated lawyer.  Like maybe Doug Crawford.  According to the California Court of Appeals, Mr. Crawford appeared at a deposition with pepper spray and a stun gun. Before the questioning began, Crawford held the can of pepper spray about 3 feet from the face of the opposing lawyer, Walter Traver, and warned him: “I will pepper-spray you if you get out of hand.”

Way to be an advocate, Doug!  We’ve sat through countless droning hours of depositions ourselves, and we can fairly predict that we’d have paid cash money to see Doug yell, “Objection!” and fry his learned opponent’s butt.  Any plaintiff wants a lawyer who won’t mess around.

Objection! Counsel is tasing the witness.

Objection! Counsel is tasing the witness.

Mrs. Moua couldn’t line up barrister Crawford, but she found herself a shark nonetheless.  Her attorney sued her neighbors, the Hastings, for negligence. That was hardly a surprise, but the count for trespass he added on Mrs. Moua’s behalf made the case unusual. The claim was novel: the complaint alleged that branches from the Hastings’ tree fell on the Moua property, creating a trespass. The damage from the trespass, Mrs. Moua claimed, was the death of Mr. Moua.

Credit her lawyer with a creative argument, but the Court of Appeals said “no cigar.” Mr. Moua had pulled up in front of the neighbors’ house, and was standing in the street next to his car when he was struck. In other words, the tree branch that caused the damage – that is, struck Mr. Moua – was not trespassing on Moua property. As for the claim that the trespassing branches on Moua’s property forced Mr. Moua to move his car elsewhere, and while doing so he was killed, the Court found the injury to Mr. Moua was too remote to the trespass for a causal link to have been shown. Shades of Mrs. Palsgraf!

The original "reasonable foreseeability" negligence action ... a Rube Goldberg tort.

The original “reasonable foreseeability” negligence action … a Rube Goldberg tort if ver there was one.

What, you might wonder, was to be gained from adding a trespass count to the lawsuit? Mrs. Moua had already claimed the neighbors were negligent in not taking care of their tree. The answer lies in fault finding. To win a negligence count, Mrs. Moua had to show the neighbors had actual or constructive notice that the tree was dangerous. Trespass is much simpler. All Mrs. Moua had to show there was that the branches fell onto the Moua property. A trespass cause of action would make collecting big bucks from the Hastings much easier.

The Court left for another day the interesting question of whether a falling branch belonging to another that strikes a landowner on his land might be a trespass.

Moua v. Hastings, Not Reported in N.W.2d, 2008 WL 933422 (Minn.App., April 8, 2008). Blia Moua and her husband, Chauncey Moua, left their home in Minneapolis to pick up their daughter from work. After driving a few blocks, they noticed that the weather suddenly worsened. Moua and her husband became fearful and decided to return home after they saw tree branches falling due to the heavy rain and wind. When they got there, they stopped their vehicle in front of their own home, but Chauncey decided to move the car because he was worried that the storm would blow branches of trees belonging to their neighbors, the Hastings, onto the car. The Hastings lived next door to the Mouas, and some branches of a tree in their front yard hung over the Mouas’ yard. Mr. Moua parked the vehicle in front of the Hastings’ home — where he parked often — and got out of the car when a branch fell from a tree, killing him.

Mrs. Moua admitted that she saw the Hastings’ trees on a daily basis and had never noticed any dead branches. Neither she nor her husband had ever asked the Hastings to trim the trees.

After the Mouas sued for trespass and negligence, the Hastings moved for summary judgment. As for Mrs. Moua’s claim that the branches that had fallen were a trespass on her land by the Hastings, the trial court held that Mrs. Moua had not established how the branches interfered with her use and enjoyment of her property, and the only danger caused by the tree’s branches was due to a severe storm that was noted as one of the worst in several years. Mrs. Moua appealed.

Mrs. Moua's lawyer was pretty sharp - just a little ahead of his or her time.

Mrs. Moua’s lawyer was pretty sharp – just a little ahead of his or her time.

Held: Summary judgment was affirmed. The Court of Appeals held that in Minnesota, a cause of action for wrongful death is purely a legislative remedy. A cause of action for wrongful death exists when death is caused by the wrongful act or omission of any person. Although causation is generally a question of fact for the jury, where reasonable minds can arrive at only one conclusion, causation becomes a question of law, and it may be disposed of by summary judgment. Trespass encompasses any unlawful interference with one’s person, property, or rights, and requires only two essential elements: a rightful possession in the plaintiff and unlawful entry upon such possession by the defendant.

Here, the Court said, the trial judge correctly concluded that even if there had been a trespass, there was no causal link between that trespass and the injury that occurred. The undisputed facts showed that the injury to Mr. Moua occurred on the public street in front of Hastings’ house. Even looking at the evidence in the light most favorable to Mrs. Moua, the Court said, as a matter of law she failed to present a causal link between the alleged trespass by the Hastings’ tree branches and Mr. Moua’s death in the street.

The Court thus concluded that summary judgment in favor of the Hastings on the wrongful death claim was proper.


Case of the Day – Friday, December 18, 2015


The old trial strategy aphorism recommends that “if your case is weak on the law, pound on the facts; if it’s weak on the facts, pound on the law; and if it’s weak on the law AND facts, pound on the table.”

transguide140519It doesn’t work all that well, as our hapless landowners in today’s case, the Wimmers, found out.

“Wimmer” rhymes with “winner,” which is ironic given the outcome in this case. It seems the Wimmers owned land for which they had given the electric utility an easement for its power lines. That’s pretty common – anywhere power or communications lines cross over land, or pipes run under the ground, there’s probably an easement involved. The easement in the Wimmers case let Ohio Edison trim and remove trees as needed to keep vegetation clear of the lines.

The Wimmers didn’t want to see much of their foliage cut away, but because trimming and removing trees costs money, the utility didn’t want to do more than was absolutely necessary. Thus, there was a happy confluence of interest that continued for years.

transdanger140519Then came August 14, 2003. Some high-voltage transmission lines owned by the same Ohio Edison – hot from weather and the high electrical demand of the day – sagged into untrimmed trees just south of Cleveland. Three lines shorted out simultaneously. Normally, such a condition would have tripped an alarm at a monitoring center, letting technicians redistribute the load. But a bug in the software permitted what engineers call a “race condition,” and the alarms didn’t sound. The result was a cascading power failure that became the great North American Blackout of 2003, affecting 55 million people on the eastern seaboard and midwestern United States, as well as the province of Ontario.

After that day, everything changed. The public fumed, the media chastised, politicians fulminated. Changes had to be made. Ohio Edison was understandably humiliated by being the utility whose poor vegetation management started it all. Suddenly, occasional and desultory tree trimming became much more scorched earth. For the Wimmers, that meant that the power company’s crews showed up at their place one day to clear-cut the entire easement.

The family took exception to the plan, and sued to stop it. While their case was wending its way through the courts – not very satisfactorily to them, because Ohio Edison was winning every step of the way – the Ohio Supreme Court handed down its decision in Corrigan v. Illuminating Co. (which we discussed last Thursday). Corrigan held that vegetation management issues fell within the exclusive jurisdiction of the Public Utilities Commission of Ohio. Common pleas courts have no authority to decide whether tree trimming or tree removal within easements is prudent or unduly robust.

Mulligan140519The Wimmers recognized a break when they saw one, and promptly took a mulligan. Sadly, they fared no better before PUCO than they had in the state court system. That might be because Ohio Edison rolled out the IEEE standards for vegetation management, and produced an expert witness who had inspected the easement, who could identify the individual trees involved, and who had facts and figure at her fingertips on the risk each tree posed to the power lines.

There wasn’t any question that the easement permitted Ohio Ed to cut down trees. The only issue was whether the tree cutting was reasonably necessary. The Wimmers didn’t have any facts to counter the power company’s showing. They didn’t have any compelling legal arguments. All their lawyer could do was pound on the table, and argue that it was speculative that the trees would grow to be a hazard to the power lines.

The philosopher has a point, but do you really think the jury will find it's less likely that the sun will than it is more likely? Really?

The philosopher may have a point, but do you really think the jury will find it’s less likely that the sun will than it is more likely? Really?

Well, sure … the expert was only speculating that the trees would grow, and that they would reach the average height for that kind of tree, and for that matter, that there would ever be a high wind or ice storm that would cause them to ensnare the electric lines. Likewise, it’s speculation that the sun will rise in the morning, based on nothing more than a sheer guess based on the fact that it’s done so for the past 1.6 trillion days since the earth was formed. You see where this is going?  Any prediction is speculation, but that doesn’t make the prediction impossible, or even improbable.  We’d give you two-to-one odds the sun is going to rise tomorrow, based on nothing but speculation.

Neither PUCO nor the Ohio Supreme Court – which reviewed the agency’s denial of the family’s complaint – was impressed with the Wimmers’ defense. “Who are you going to believe – me, or your own eyes?” their lawyer seemed to argue. The Commission and the Court both answered that question. Actual evidence carried the day.

Pound on the table, indeed.

Wimmer v. PUCO, 131 Ohio St.3d 283, 964 N.E.2d 411 (Sup.Ct. Ohio, 2012). Ohio Edison owned a transmission-line easement running over the Wimmers’ property. For years, Ohio Edison – in accordance with the company’s general policy – trimmed and once in a great while removed trees growing in the easement. But its policy changed after the 2003 Northeastern United States blackout. When the company tried remove all of the trees in the easement, the Wimmers sued to stop it. They went to court, where Ohio Edison won. But before the decision was final, the Ohio Supreme Court ruled in Corrigan v. Illuminating Co. that PUCO, not a court, was required to decide whether removal was reasonable.

The area of North America affected by the 2003 Blackout is marked in red.

The area of North America affected by the 2003 Blackout is marked in red.

The Wimmers then took their complaint to PUCO. After an evidentiary hearing, the commission ruled that Ohio Edison could remove the trees.

The Wimmers appealed.

Held: Ohio Edison was permitted to remove the trees. The Supreme Court held that there was “no question that the company has a valid easement,” that “the tree is within the easement,” and that the easement “grants the company the right to remove any tree within the easement that could pose a threat to the transmission lines.”

The Wimmers nevertheless argued that PUCO’s decision that the circumstances permitted Ohio Edison to remove the trees was not reasonable. They argued that Ohio Edison failed to present evidence that their trees “may interfere with or endanger the utility’s transmission lines.” The Wimmers maintained that the utility’s evidence was “long on Ohio Edison’s fear and speculation and short on hard facts.”

The Court disagreed. It found that evidence presented to the commission showed that “the vegetation in question has the genetic disposition to grow to heights tall enough to potentially interfere with” the power lines, and that Ohio Edison “reasonably determined that this vegetation may interfere or threaten to interfere with the transmission line and should be removed.” The utility had presented an expert witness who had described the trees growing in the right-of-way – which she had personally examined – and explained that their average mature heights were well above the height of the power lines. She had testified that “even with continuous trimming and pruning, at least one tree had already grown to within four feet of the line, in violation of the National Electric Safety Code, which is published by the Institute of Electrical and Electronics Engineers and sets the industry-accepted safety standards. “

groucho140519The Wimmers didn’t present any contrary evidence or challenge the Ohio Edison witness’s credentials, but rather just complained that her testimony was speculative. In order to overturn PUCO’s determination, the Wimmers had to show that the decision was “so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty.” They did not come close to doing that.

The Ohio Supreme Court did, however, “note with approval the commission’s admonition that Ohio Edison ‘attempt to minimize the impact to property owners, to the extent possible and without sacrificing safety and reliability, when performing [utility-vegetation-management] activities’.” The Court dryly observed that “Ohio Edison must comply with the commission’s order.”


Case of the Day – Monday, December 21, 2015


Trees falling on vehicles never work out well for the vehicle.

Trees falling on vehicles never work out well for the vehicle.

A family’s Christmas – and for that matter, its future – was ruined on a rural Ohio one dark December night (like tonight, when the winter solstice occurs at 11:48 p.m. Eastern time).

Mike and Traci Reed were driving their two kids home from a Christmas celebration, Traci and her 5-year old son in her car following her husband and their daughter in his, because they had picked up her car at her office, where she had left it earlier. When Mike and daughter Samantha got home, Traci – who had been following them – was no longer behind them. Mike backtracked to find her car crushed by a tree. An EMS worker at the scene told him that his wife was dead and son in critical condition.

The wheels of justice ground slowly after the accident. Four years after the accident, the Ohio Court of Claims – which decides questions of the State’s liability – finally decided the question of the Ohio Department of Transportation’s liability. The case is of interest not just because of the dry reduction of human tragedy into dispassionate allocation of responsibility (although it is interesting for that, too). The findings of fact and conclusions of law handed down by the magistrate (who is kind of an assistant judge) illustrate a well-structured case presented by the plaintiff and a poor rebuttal by ODOT.

One wonders why the State of Ohio didn’t just settle the case if it was going to make such a poor showing. Its own employees made the plaintiff’s case, and its expert pretty much just “phoned it in.” But from the plaintiff’s perspective, the case is a veritable “how to” try a claim of liability against a state agency in a “danger tree” case.

Reed v. Ohio Dept. of Transportation, 2012-Ohio-1244 (Ct.Cl., Mar. 23, 2012). Traci Reed and her young son, Conner, were driving northward through the hilly eastern Ohio countryside, when a tree fell on their car. Traci was killed and her son was badly injured.

The tree that fell on Traci had shown as “substantial ‘lean’” in the year prior to the accident, and other trees on the same embankment had fallen during that time. Traci’s husband had observed this, but he had never complained to the Ohio Department of Transportation himself. Rather, he assumed that ODOT knew about the condition because road crews maintained the area throughout the years.


The Court noted that ODOT had a general duty to maintain its highways in a reasonably safe condition for the traveling public, but it is not an insurer of the safety of its highways. ODOT may be held liable for damage caused by defects, or dangerous conditions, on state highways where it has notice of the condition, either actual or constructive. Actual notice exists where, from competent evidence, the trier of fact can conclude the pertinent information was personally communicated to, or received by, the party. Constructive notice is that notice which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. Under Ohio law, in order for there to be constructive notice of a nuisance or defect in the highway, that nuisance or defect must have existed for such length of time as to impute knowledge or notice.

The plaintiff (who was the husband of the deceased wife and mother) presented several ODOT employees responsible for vegetation management and hazard abatement along the road in question. He established that some of the employees knew of the tree and believed it to be dangerous, and others – while not recalling the tree ­ – agreed when studying the accident photos that it was dangerous. Plaintiff called a surveyor to establish that the tree had fallen within the state’s right-of-way on the highway, and put people on the stand who had lived close to the accident site, and who testified that they had seen the tree and thought it was a hazard.

Additionally, the plaintiff produced an urban forestry consultant who was certified by the International Society of Arboriculture as an arborist. The forester prepared for his testimony by reviewing court documents, photographs, visiting the accident site, and examining cut-up tree remnants. He testified that that the tree was a 50-year old red oak, and that it contained “reaction wood,” which forms to counter a lean of the tree. He observed that the pith, the biological center of the tree, was off-center, and that the tree’s roots in the embankment showed mild to moderate decay. He concluded that the tree was “hazardous” (as defined by the International Society of Arboriculture Hazard Rating System). His conclusion was based on the tree’s potential to fail and the potential to hit a target, because of its significant lean, its location in a sloped embankment with exposed roots, and the visually obvious deadwood in the crown of the tree. He testified that once a tree is “off vertical” with unstable soil, each progressive year increases the risk of failure. The tree was located on a steep slope, which compromised its stability.

The expert concluded that ODOT failed in its duty to remove a hazardous tree that had several significant defects, readily observable from the roadway. He said it was “not a question of if, but a question of when” the tree would fall on to the highway.

ODOT presented the testimony of one of its employees who said he had removed the tree from the road after it fell, and he had been familiar with it prior to that time. He said he had never seen any condition that concerned him, and if he had, he would have reported it. ODOT also presented its own expert, who prepared his testimony in the same manner as did the plaintiff’s expert. He said that the tree has a “classic natural lean,” due to the fact that the tree was on the edge of the woods and it grew toward the sunlight. According to ODOT’s expert, the center of the tree was asymmetric but there was no indication that the tree was dead or distressed. The State’s expert opined that the tree falling was “natural, it was not predictable.” However, on cross-examination, he conceded that the tree’s center of gravity was “probably not over the roots” and that a tree does not have to be dead, decayed, or diseased in order to be a hazard.

The finder of fact – in this case, a magistrate who heard the evidence for the court ­– found the Reed’s expert to be more persuasive. The evidence about the tree’s shifted center of gravity carried the day; the court concluded that the red oak tree that fell on Traci Reed’s vehicle was a hazard to the motoring public. As for notice, although ODOT said it had received no complaints from either its staff or the public regarding the tree, two of its employees acknowledged that they were aware that the canopy of the tree extended over the roadway. The court found that ODOT had actual knowledge of the hazardous condition, which had existed for more than a year prior to the accident and which was within the State’s right-of-way.


An “Act of God?”

ODOT argued that the property owner where the tree was located was liable for the tree, but ODOT presented no evidence showing that the landowner had actual or constructive notice. As well, it argued that the tree fell due to an act of God. The court rejected that argument. The evidence showed that there was no weather than night that was sufficiently “unusual and overwhelming as to do damage by its own power” to make the falling tree an Act of God. Even if there had been an adverse weather condition on the night of the accident, the Court said, “it has also been the rule of law that, ‘[i]f proper care and diligence [on a defendant’s part] would have avoided the act, it is not excusable as the act of God.'” ODOT’s failure to exercise proper diligence resulted in the tree falling, the Court said, not an act of God.

ODOT was held liable for the falling tree, and Traci Reed’s death.

And after considering the damages showing? The Court awarded the family $4 million.


Case of the Day – Tuesday, December 22, 2015


It sounds like some kind of leafy hero – you know, “look, out in the woods, it’s a fern, it’s a shrub, no, it’s … Danger Tree!!!

Alder, Hemlock and Big Leaf Maple - the "bad boys" of danger trees.

Alder, Hemlock and Big Leaf Maple – the “bad boys” of danger trees.

To arborists, a danger tree is no superhero, but rather a menace. In the non-utility context, a danger tree generally has two attributes. First, there’s something wrong with the tree – old age and decay, disease, an injury … something that adversely affects the tree’s structural integrity.

Second, the tree has to be in such a location that its falling or shedding branches is a hazard to people or property. A weakened and decayed tree in the middle of the forest might concern the fauna, but it’s like a shark in the middle of the Pacific – no cause to empty the beaches a thousand miles away.

Today’s case illustrates again – as did yesterday’s tree falling on a car – that good trial preparation trumps purity of purpose. Perhaps proving in the starkest of terms that no good deed goes unpunished, young and sharp-eyed Patrick Connelly spotted a brush fire burning next to the road. Unaware that the fire had been started after a power line was knocked downed by a poplar tree that had fallen in the wind, our hero jumped from his car to stamp out the flames. But sadly (and terminally), what he stomped on was the live power line tangled in the flaming grass.

Death lasts an eternity; litigation only seems to. Mr. Connelly’s estate sued after the 2003 accident. Nearly ten years later, the case was finally over.

gooddeed140521Besides the pathos, our interest is in the power utility’s own Transmission & Distribution Guidelines, which defined a “danger tree” from the electric company’s perspective. For a utility, a tree can be structurally unsound to be a “danger tree,” but it doesn’t have to be. Sometimes, just being too close to the wires will be enough. In fact, three trees – the hemlock, the adler and the big leaf maple – pose an existential threat, according to the T&D Guidelines.

But here, the tree in question was not even within the clearance zone under the lines, and by all reports was strong and healthy. Connelly’s executor was unable to convince the court that the utility should be held responsible for what happened beyond its 12’ clearance zone. The power company’s adherence to its own standards, as well as to national guidelines, was its salvation.

That’s the takeaway in most of these cases. Adherence to an accepted standard is enough to show that you’re meet the applicable standard of care.

Connelly v. Snohomish County Public Utility District, Case No. 66714-9-I (Ct.App. Wash. 2012). During a high windstorm, one of the Lombardy poplar trees located on the property owned by a local school district fell approximately 40 feet across a road onto three high-voltage electrical distribution power lines. Two of the power lines shut off, but the third broke off and landed in a ditch on the north side of the road. The energized power line started a small brush fire.

cartoon140521Michael Varnell and Patrick Connelly were driving westbound on the street when they saw the brushfire. Connelly suggested they stop and stomp out the flames. He was electrocuted when he came into contact with the downed power line.

The Connelly Estate filed a wrongful death action against the Public Utility District No. 1, charging that it negligently performed vegetation management and designed and operated the electrical distribution system. But after a trial, the court ruled that the PUD did not have a duty to inspect trees that did not obviously pose a danger, and did not breach its duty of utmost care in the design, operation, or maintenance of the distribution power line system.

The Estate appealed.

Held: The PUD was not liable.

The parties agreed the PUD owed Connelly a duty of the “utmost care.” However, they disputed whether this meant that the PUD had a duty to inspect every tree outside of the 10- to 12-foot power line “clearance zone,” and whether the protection devices the PUD used were sufficient to meet the duty to protect the public and prevent exposure from high-voltage power lines.

Connelly’s expert testified that the standard of care required the PUD to inspect every tree outside the 10- to 12-foot power line clearance zone that was tall enough to fall on a power line. Relying on prior testimony regarding the condition of the poplar tree, the expert also testified that the PUD had a duty to remove the poplar tree located on the School District property. However, on cross-examination, he admitted that he did not know when the tree would have been an imminent danger and that “I, of course, didn’t see the tree and don’t know anything — don’t know much about the trees.” Bollen also admitted the last time he oversaw a vegetation management program was from 1951-56.


Now THIS is a Danger Tree.

A PUD expert examined the tree in 2007 and 2009, and reviewed photos of the fallen tree. He testified the poplar tree that fell showed signs of preexisting rot, decay, and disease. Furthermore, a PUD arborist had inspected the tree within a week of the accident, and found were no external indicators of rot or decay. He said that he would not have identified the tree as a hazard for removal or trimming.

Another PUD expert, Stephen Cieslewicz ­– a certified arborist and a national consultant on vegetation management practices for utility companies –testified that PUD’s vegetation management practices were consistent with industry standards during the period in question. Mr. Cieslewicz testified that the objective of “line clearance inspections is to review the air space between the lines and along the lines for trees or limbs.” PUD periodically inspected the trees within the 10- to 12-foot clearance zone of the power lines, and removed trees or tree limbs that posed a threat to the power lines. As well, PUD also identified “danger trees” outside the clearance zone that pose a threat to the electrical lines. Mr. Cieslewicz said that the vast majority of electrical utility companies do not routinely inspect trees outside the clearance zone simply because the trees are tall enough to fall on the line.

Powerlinetotreeclearance140521Mr. Cieslewicz also said that absent an obvious danger or notification from a property owner, the PUD had no duty to inspect every tree outside the clearance zone. In fact, such inspection would border on being impossible. He also testified that inspecting every tree outside the clearance zone in Snohomish County was impossible. Cieslewicz also testified that “[t]here likely would not be records” of the inspection of East Sunnyside School Road “if there was no work required.”

A PUD line clearance coordinator testified that he inspected the area several years before the accident. He said that he had looked down the line segment “and saw that the line was clear; that no tree was in the line.” At no time did the School District notify the PUD that any of the poplar trees located in the area posed a hazard. The evidence showed that during the five years before the accident, the poplar trees were healthy.

The trial court found the testimony of the PUD witnesses more credible than the Estate’s experts, neither of whom had inspected the trees. It held that absent obvious signs or notice that a tree posed a danger, the standard of care did not require the PUD to investigate every tree outside the 10- to 12-foot power line clearance zone. The court also concluded the PUD did not breach its duty of utmost care in the design of the electrical power distribution system.

The Court of Appeals held that in order to prevail on a negligence claim, the Estate had to establish duty, breach, causation, and damages. The standard of care for a utility in Washington is daunting: a power company must exercise “the utmost care and prudence consistent with the practical operation of its plant” to prevent injury.

Although the Estate disputed it, the Court of Appeals found that the trial court had correctly applied this “utmost care” standard.In so doing, the trial court did not improperly emphasize the practical operation of the utility; rather, such practical operation is a relevant factor in determining “whether the utility has conducted its operations under the known safety methods and the present state of the art.” The trial court was within its discretion to let PUD present testimony about whether it was practical to inspect trees outside the clearance zone that did not obviously pose a danger.

The Estate challenged a number of the trial court’s factual findings as well, but the Court of Appeals held that there was substantial evidence to support the determinations. That was all the law required. In particular, the appellate court held that “the evidence established the PUD vegetation management met the standard of care, and the PUD was only required to inspect trees outside the clearance zone if there is ‘obvious evidence of decay or rotting or threat to the power line’.”

The Estate also claimed the trial court’s findings were inconsistent with the utility’s own Transmission and Distribution Guidelines. The T&D Guidelines are evidence of the standard of care, but the state statute relied on by Connelly – RCW 64.12.035 – did not require PUD to comply with the T&D Guidelines. Instead, it only provided electric utilities with immunity for cutting or removing vegetation. The statute does not set a standard of care for the utility, and as the PUD points out, no cases have interpreted the statute as creating a duty or setting a standard of care.

PUD’s T&D Guidelines stated that a “danger tree” was

  • forked trees;
  • dead or rotten trees;
  • trees weakened by decay, disease or erosion;
  • trees visibly leaning toward the power line;
  • trees or parts of trees which may contact the line under snow, ice or wind loads;
  • trees originating from fallen decaying logs, old growth stumps or other unstable rooting positions; or
  • troublesome trees such as alder, big leaf maple and hemlock.

The T&D Guidelines did not impose a duty to inspect every tree that may come in contact with the power lines, but rather just trees within the clearance zone and obvious “danger trees.”

The power company prevailed.


Case of the Day – Wednesday, December 23, 2015


reptiles151223Poor Capital One. First they wore us out with Alec Baldwin and his band of pillaging Vikings, all hawking Capital One credit cards with the annoying tagline, “What’s in your wallet?”

Now it’s Samuel L. Jackson, who lectures us in a mildly imperious way about how he is not amused by some credit card offers, like we care whether he’s amused or not. Initially, he promised credit card rewards “every damn day,” and you’d think the republic was collapsing. Wasn’t this the guy who spoke so colorfully about snakes on a plane?  No matter – angry customers threatened to close their accounts over his use of the word “damn.” Capital One promptly folded like a cheap suit, and edited the offensive word out of the ad.

It sort of makes you long for the Viking horde. Certainly, we can play from the Capital One question today. What’s in your file cabinet? That may be a lot more important than whether you have an American Express Centurion card, a Capital One VISA, or even just a SNAP card in your wallet. They’re probably people who have all three in their wallets, anyway.

All of that brings us to today’s case, where a conspiracy buff ran headlong into a City of Omaha tree-trimming crew. It seems that Ms. Richter didn’t think much of the City trimming her trees. She approached the crew to lodge her protest, only to find no love. In fact, one of the workers told her (in colorful language, perhaps) to step away from the truck. She did so, tripping on a hole in her tree lawn.

consp140523A “grassy knoll” fan, Ms. Richter claimed that the hole obviously had been created by the City’s removal of a street sign, which was mysteriously replaced sometime soon after the accident. It didn’t help the case that the City had a habit of destroying work orders on sign replacement several years after the work was done, and so couldn’t completely rebut her claims.

Lucky for Omaha (home to famous steaks), the Nebraska Supreme Court was little impressed by Ms. Richter’s “I-believe-it-so-that-proves-it” approach to the case. It held that the City’s normal-course-of-business document destruction wasn’t the effort to hide the “truth” Ms. Richter so badly wanted to be. Omaha prevailed.

Still, there’s a lesson here for businesses — sometimes, when it comes to document preservation, what’s in your file cabinet had better be more rather than less.

And a note to Alec Baldwin – chill, man!

Richter v. City of Omaha, 729 N.W.2d 67, 273 Neb. 281 (Sup.Ct. Neb., 2007). A city work crew was trimming overhanging branches from a tree located in front of Ms. Richter’s home. Ms. Richter walked outside and asked the workers to stop trimming the trees. The workers refused and told her to back away from them and their truck. As Richter backed away, she stepped into a hole with her right foot and fell to the ground, injuring her ankle and twisting her knee.

The Nebraska Supreme Court did not tell Ms. Richter to "chive on."

The Nebraska Supreme Court did not tell Ms. Richter to “chive on.”

The hole in which Ms. Richter fell was located on a grassy area between the street and the sidewalk in front of her residence. Although this section of land is a public right-of-way, Richter was responsible for maintaining the area. She claimed the City had removed a sign some time prior to the accident, thus creating the hole, but replaced it some time thereafter. City records — while nonexistent for periods of time prior to the accident — showed no change in signage at the location during the relevant period.

Not to be detained by the facts, Ms. Richter sued under the Political Subdivisions Tort Claims Act. She alleged that the City was negligent in failing to warn the public of a dangerous condition, failing to provide safe passage of a right-of-way, and failing to exercise due care in the operation of its business. The trial court found in favor of the City, holding that the evidence was insufficient as to how the hole came to be, when it came to be a hole, and whether the City knew of this hole prior to Ms. Richter’s injury. There was insufficient evidence that the City caused the hole or that it knew it was there so it could be repaired in a timely manner.

Richter appealed.

Held: The City was not liable.

Ms. Richter said the evidence was "spoliated," not "spoiled." Either way, the Court said her argument stank.

Ms. Richter said the evidence was “spoliated,” not “spoiled.” Either way, the Court said her argument stank.

Ms. Richter argued that Omaha had destroyed old work orders from years prior to the accident, and this conduct indicated fraud and a desire to suppress the truth. The Court disagreed, holding that she was not entitled to the adverse inference allowed under the rule of spoliation because the record indicated that the work orders were destroyed in the ordinary course of the city’s business. The Court said that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator; however, such a presumption or inference arises only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.

In order to be successful on her negligence claim Ms. Richter had to establish, among other things, that the city created the condition, knew of the condition, or by the exercise of reasonable care should have discovered or known of the condition. Other than her belief that this was so, she had no evidence to support her contention.

Sorry, Ms. Richter … you’re entitled to your own opinion, but not your own facts.


Case of the Day – Thursday, December 24, 2015

Missed you

We’re out until Monday, December 28th, watching the early bowl games. See you then!



The boys voted for standing rib for this year's Christmas Dinner. The girls graciously acceded.

The boys voted for standing rib for this year’s Christmas Dinner. The girls graciously acceded.

No heavy lifting right now (unless we’re talking really big presents, maybe a new chainsaw or something). We’re taking the Christmas weekend off – time to start to work on the chestnut stuffing, then eat it, then regret our over indulgence for the next few days. However, we’ll be back on Monday, December 28th with a report on a recent U.S. Court of Appeals for the Second Circuit decision addressing whether you can sue officious little bureaucrats who pick on you because they just don’t like you. 

For now, we have an arboriculture law present for you from us.

We’re kidding, you say? Of course not. Here’s a little literary gem, a simple case in which the landowner sued a driver who careered off the road and ran into the landowner’s beloved oak tree. The tree was badly damaged, the owner said, and would need special care for the remainder of its days. The driver defended on jurisdictional grounds, arguing that Michigan’s “no fault” insurance law meant that the court could not assess property damages against him for the mishap.

The Court denied the landowner’s case, but it did so in verse:

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.

Christmas2014Doggerel? We don’t think so. Perhaps “poetic justice” instead. Whatever it might be, it makes for more interesting reading, and no doubt amused everyone except the plaintiff, who was left uncompensated for the damage to the oak tree.

May your trees remain healthy, happy, properly trimmed by a professional arborist, and clear of easements, rights-of-way, neighbors and passers-by for this season and all of 2016.

Merry Christmas to all!



Fisher v. Lowe, 333 N.W.2d 67, 122 Mich.App. 418 (Ct.App. Mich., 1983).

The facts:

“A wayward Chevy struck a tree,
Whose owner sued defendants three.
He sued car’s owner, driver too,
And insurer for what was due
For his oak tree that now may bear
A lasting need for tender care.
The Oakland County Circuit Court,
John N. O’Brien, J., set forth
The judgment that defendants sought
And quickly an appeal was brought.”


“Court of Appeals, J.H. Gillis, J.,
Gave thought and then had this to say:
(1) There is no liability
Since No-Fault grants immunity;
2) No jurisdiction can be found
Where process service is unsound;
And thus the judgment, as it’s termed,
Is due to be, and is,


Case of the Day – Monday, December 28, 2015


hate151228How many of us standing in line at the DMV or quaking with fear in front of an IRS auditor worry about what might happen to us if we somehow offend one of these officious little paper-pushers?

Do you need a building permit? Kiss my ring, peasant! Don’t like your property valuation? Let’s see you do something about it! Want the city to do something about a dangerous tree overhanging the street? What’s it worth to you?

Is there anyone who hasn’t wanted to unload on some governmental employee whose only purpose in life seems to be stealing the oxygen needed by people who actually create value? We read about it all the time – IRS workers sitting on applications filed by people they don’t like. Building inspectors who demand some grease for their palm in order to get anything done.  Small-town cops riding someone they don’t like. But what can you do about it?

John Mangino thought he knew. He bought some rental units in Patchogue, New York, and rounded up tenants. He bought his local permit to be a landlord, too. But when it was time to renew two years later, John decided he shouldn’t have to buy a piece of paper from the local government in order to manage his own property.

The City issued misdemeanor summonses to Mangino to force him to give them his money. He responded with a blunderbuss lawsuit challenging everything he could think of related to the rental permit program. The Village raised the stakes, telling him in so many words that it would make his life as a landlord a regulatory hell if he didn’t cave on the permit.

Need the assistance of a government functionary? Kiss the ring ...

Need the assistance of a government functionary? Kiss the ring …

Finally, the Village made good on the threat. When one of Mangino’s tenants complained to Mangino wouldn’t let them in without a warrant. The inspectors called the fire department, which stormed the place – sirens blaring – to look for the electrical short. They didn’t find any sparks, but the smoke-eaters found a passel of housing violations that – along with a cascade of criminal charges for not buying the rental permit – landed on Mangino’s head.

Mangino sued the Village under a Federal law – 42 U.S.C. § 1983 – that lets a person sue state and local officials for violating one’s constitutional rights under color of state law. That is, when a local official misuses the law to give someone the shaft. He claimed that Village inspectors tried to shut him up in violation of the First Amendment, and engaged in abuse of process, by misusing the housing code to retaliate against him because they just didn’t like him.

The District Court threw out the case, holding that because the summonses for not buying a rental permit were based on probable cause – that is, the charges were righteous because he really did break the law – the fact that they may have been intended to shut him up didn’t matter.

As far as the abuse of process claim, the law was not clear whether probable cause would likewise defeat such a claim. In other words, it could be that if there was reason to believe he had broken the law, there could not by abuse of process. Or maybe not. But because the law was unsettled, the officials were entitled to immunity from prosecution. Only if the law is clearly established and an official breaks it anyway will the government employees be liable to us commonfolk.

Sadly, the rule is smile at all those miserable little twits, grit your teeth, and show fealty. The alternative is too expensive and uncertain to contemplate.

Mangino v. Village of Patchogue, Case No. 14‐3253 (U.S. Court of Appeals for the 2nd Circuit, Dec. 22, 2015). About 14 years ago, John Mangino and his wife bought an apartment building in Patchogue, New York. When they got the place, they applied for a two-year rental permit and began renting apartments to tenants. When his permit expired in, the Manginos did not bother to renew it.

There was some suggestion in the case that Mangino might have had some substandard rental property.

There was some suggestion in the case that Mangino might have had some substandard rental property.

In January 2005, James Nudo, the Patchogue Housing Inspector, issued criminal summonses to the Manginos for continuing to rent out apartments without a rental permit. Mangino challenged in court these summonses and their manner of service, as well as the validity of the Village’s rental-permit law.

Mangino said that, in response to his lawsuit, the Village prosecutor threatened him that if he did not settle his litigation against the Village or accept a plea bargain on the criminal charges, he would be “hit with a barrage of summonses.”

A few months later, one of Mangino’s tenants asked the Village Housing Department to check the power in her apartment. Nudo answered Gucciardo’s call, and later reported Gucciardo had told him she feared that the conditions in her apartment, which included electrical problems, would result in a fire. Gucciardo called again a few days later to complain that the outlets in her apartment were sparking. A Village inspector went over to the apartments immediately, but Mangino refused to let him in without a warrant. The inspector told Mangino that he’d call the fire department if he wasn’t allowed in, would call the Village Fire Department. Mangino still refused, so the inspector called in an “all encompassing general alarm.”

When the Village firemen arrived, they inspected the building, including Gucciardo’s apartment and the basement. They did not find any sparking or arcing outlets in Gucciardo’s apartment, but they did notice two fire protection code violations. The firefighters called in the inspector, who was waiting outside. He cited Gucciardo for the conditions, and required him to get them fixed within 90 days.

A few days later, inspectors returned to inspect Gucciardo’s apartment with her consent. On the same day, they issued 18 separate summonses to Mangino for a variety of alleged violations of the Village Code. A few weeks later, Mangino was served with additional more summonses dated August 5, 8, 9, 11, 12, 13, 14, 15, and 16, for failure to renew his rental permit on those dates. Although Mangino admits that he did not have a rental permit in August 2005 and that he continued to rent apartments in his building during this time, all of the summonses issued to him for violation of the Village’s rental-permit law were ultimately dismissed.

Mangino sued Village officials under 42 U.S.C. § 1983 for violating his First and Fourth Amendment rights. Mangino’s sole First Amendment claim was for retaliation and his Fourth Amendment claims included abuse of process and warrantless entry. The District Court dismissed Mangino’s retaliation claim because he hadn’t shown that the Village’s allegedly retaliatory conduct chilled the exercise of his First Amendment rights. The District Court dismissed Mangino’s Fourth Amendment abuse-of-process claim on the ground that Village officials enjoyed qualified immunity against such claims. Mangino’s warrantless entry claim went to trial, where the jury found against him.

Mangino appealed.

Held:  Mangino loses.

The Court of Appeals held that the District Court was wrong to dismiss the First Amendment retaliation claim because Mangino hadn’t proved that his speech was “chilled,” that is, that the retaliation caused him to curtail his speech. Rather, the Court of Appeals said Mangino had standing to sue if he could show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm.

However, the Court said, “the existence of probable cause will defeat … a First Amendment claim that is premised on theviol151228 allegation that defendants prosecuted a plaintiff out of a retaliatory motive, in an attempt to silence him. Here, there was probable cause for each of the criminal summonses issued to Mangino, and Mangino admitted as much. Because there was probable cause, the District Court was right to dismiss Mangino’s First Amendment retaliation claim insofar as it is premised on the summonses.

But Mangino’s First Amendment retaliation claim was also premised on the investigator’s issuance of the non-criminal fire protection code violation tickets . Because those were civil matters, probable cause cannot defeat Mangino’s First Amendment claim. But the fact that the tickets were justified – and that the regulatory action, even if unjustified, was not significantly more serious than other action the Village had discretion to take.

The Court of Appeals held that Inspector Nudo was entitled to qualified immunity on the abuse of process claim. A governmental official is entitled to qualified immunity when there is no clearly established right that he or she violated by the conduct at issue. The Court of Appeals held that here, it was not clearly established that probable cause was not a complete defense to a claim of abuse of process. Since the Village’s citation of Mangino had occurred, case law had suggested that abuse of process is “misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish.” In other words, an improper motive for doing something that is otherwise proper may be enough to establish abuse of process.

The Court of Appeals did not decide which standard was right. Instead, it held that the precise definition was not established at the time the Village cited Mangino, and where the state of the law is not clearly established, Mr. Nudo and the other Patchogue officials were entitled to immunity. The Court said, “If the district judges in the Southern District of New York, who are charged with ascertaining and applying the law, could not determine the state of the law with reasonable certainty, it seems unwarranted to hold … officials to a standard that was not even clear to the judges …”


Case of the Day – Tuesday, December 29, 2015


negligence-overviewWhen negligence rears its ugly head, compensation usually depends on the extent of the duty owed the victim by the party whose pocket the injured plaintiff seeks to pick. Take Tim Jones, an experienced cable television installer. One cold day in the bleak midwinter, he climbed an Indiana Bell pole to work on a cable installation. On the way down, he grabbed a phone line instead of a ladder rung. Not being intended as a support structure, the line gave way, and down Mr. Jones went.

Having no evidence that Indiana Bell knew the line was defective and likely to fall away from the pole, Mr. Jones did the only thing he could do – he sued anyway. The issue was a little daunting, because Indiana Bell hadn’t ever hired Mr. Jones. Instead, it just rented pole space to the cable company, which in turn hired the company that employed Jones. So what duty did the telephone company owe Jones in this totem-pole relationship?

Not that much of one, as it turned out. Mr. Jones lost his case, but the Court of Appeals took the opportunity to clarify the duty an easement holder has to invitees on the easement. The lesson is one that a utility holding an easement for, say, power lines, might owe to the employee of a tree-trimming service brought in to keep the easement clear of vegetation.

Jones v. Indiana Bell Telephone Co., 854 N.E.2d 1125 (Ind.App., 2007). Timothy Jones was doing a cable equipment upgrade for Sentry Cable, a cable TV provider. Jones – who had been doing this type of work for about twenty years and was aware of the associated dangers – was working as a subcontractor on this project. He was wearing the appropriate safety equipment.

The plucky old Field Marshal might have been Jones' lawyer here ... but the attack failed nonetheless.

The plucky old Field Marshal might have been Jones’ lawyer in this case … but the legal attack on the easement holder failed nonetheless.

Jones climbed a telephone pole owned by Indiana Bell, in order to access the cable TV line, which was located about a foot above the telephone line. On his way down, he grabbed the telephone line like it was a ladder rung. It wasn’t. It broke free, and Jones fell 20 feet to the ground, breaking his ankle. Jones sued the phone company for negligence.

At trial, Jones admitted he hadn’t observed any problems with either the telephone line or the clamp assembly. He also admitted he had no evidence that Indiana Bell knew that there was anything wrong with the pole, telephone line, or clamp assembly. Indiana Bell moved for judgment “based upon the … absence of any evidence of a breach of duty as the duty is established in Indiana law.” The trial court found Indiana Bell had no duty to Jones, and granted judgment to the phone company.

Jones appealed.

Held: Indiana Bell owed Jones nothing.

The Court observed that to prevail on a theory of negligence, Jones had to show Indiana Bell owed him a duty, it breached the duty, and his injuries were caused by the breach. Whether a defendant owes a duty of care to a plaintiff is a question of law for the court to decide. Whether an act or omission is a breach of one’s duty is generally a question of fact for the jury, but it can be a question of law where the facts are undisputed and only a single inference can be drawn from those facts.

The parties and the Court focused on the Indiana Supreme Court’s opinion in Sowers v. Tri-County Telephone Co., 546 N.E.2d 836 (Sup.Ct. Ind. 1989), which involved a telephone utility, the employee of an independent contractor, and a discussion of both duty and breach. In Sowers, the telephone company hired Covered Bridge Tree Service to trim trees located near its telephone lines and clear a right of way in order to ease the work of crews mounting cable television lines on the same poles. While trimming trees, a Covered Bridge employee fell into an abandoned manhole.

manhangfromtelephonepole140603The phone company did not own the land on which the manhole was located, but it had a prescriptive easement on the land. Sowers sued Tri-County for negligence, and the trial court granted summary judgment in favor of Tri-County. The Sowers court held that a landowner or occupier is under a duty to exercise reasonable care for the protection of business invitees and that the employees of independent contractors are business invitees. The court held that Tri-County did not have a duty to inspect and warn and that the boundaries of Tri-County’s duty of reasonable care to its business invitees “must be defined from the utility’s own use of the easement.”

But here, the Court said, the facts of Sowers were distinguishable. There, the telephone utility itself hired the tree service company, whose employee was then injured while on the telephone utility’s easement. Here, Indiana Bell just rented space on its telephone poles to the cable company, whose subcontractor was then injured on Indiana Bell’s telephone pole. Still, the Court said, the policy reasons articulated in Sowers apply to this case, making the duties owed the same. Sowers first acknowledged that a telephone utility is a special breed in that it is not a traditional landowner or occupier. In addition, it acknowledged that a telephone utility does not often access its property except for the occasional necessity to effect repairs. Because of these facts, Sowers concluded that a great burden would be placed on a telephone utility if it were required to conduct regular inspections of its property for the sole purpose of discovering possible hazards.

Applying Sowers here, the Court concluded, Indiana Bell owed a duty of reasonable care to its invitees – including Jones – but the duty did not include the duty to inspect and warn. However, to the extent that Indiana Bell learned of dangerous conditions on its poles, it had a duty to warn its invitees. The evidence did not show Indiana Bell had any actual knowledge of the dangerous condition, meaning that the trial court properly entered judgment on the evidence in favor of Indiana Bell.


Case of the Day – Wednesday, December 30, 2015


OOPS sign with clipping pathAnyone can make a mistake. Or two. Consider today’s case on mutual mistake. It all started with a barren cow with a fancy name, Rose 2nd of Aberlour (popularly mislabeled as “Aberlone”), in the case of Sherwood v. Walker, the classic case on mutual mistake in contract law. And the doctrine’s alive and well.

In this Ohio decision, Mr. Thomas entered into an easement with Ohio Power to let the company string lines across his place to service his neighbor’s new house. But it turned out the house was in another power company’s service area, something no one figured out until after Ohio Power had sliced up Mr. Thomas’s trees. Thomas sued Ohio Power to rescind the easement and for damages, claiming mutual mistake. The trial court disagreed, but the Court of Appeals threw out the easement.

The Court’s most important point was this: maybe Thomas and his neighbor Baker didn’t know where the electric service boundary lay. But after all, they weren’t in the power binness. Why should they know? Ohio Power, on the other hand, was just plain sloppy in not recognizing the problem. In Court-speak, “the equities of this situation show that Ohio Power, as the company in the business of providing electric power, was in a much better position than the Thomases to discover the mistake.”

mistakes141223In order to provide grounds to rescind (undo) a contract, the mistake must be mutual. The Battle of New Orleans was a mutual mistake – Andy Jackson thought we were at war with the British, and British Admiral Thomas Cochrane thought they were still at war with the U.S.  Meanwhile, on the mythical planet of Tatooine, it appears that the mistake was not mutual – Obi-wan Kenobi was fully aware that the droids he was with were the ones the storm troopers sought, but he led the storm troopers to believe otherwise. Not a mutual mistake at all.

Thomas v. Ohio Power Co., Slip Copy, 2007 WL 2892029, 2007 -Ohio- 5350 (Ct.App. Ohio, Sept. 27, 2007). The Thomases owned 159 acres of property in Augusta Township. Right next door was land owned by Brent Baker. The Thomas property is within the geographical area served by Ohio Power Company, but the Baker property is served by Carroll Rural Electric Power. Neither of the power companies may provide power to the area assigned to the other without the consent of both companies and the affected customer.

Baker asked Thomas for permission for Ohio Power to take an easement across the Thomas property to bring power to a house Baker planned to build. Thomas agreed. As a result, an easement was executed, and Ohio Power — in reliance on the easement — cut and cleared many trees on the Thomas property and along the neighboring road. But then Baker found out the house wasn’t in the Ohio Power service area, and the other power company wouldn’t permit Ohio Power to provide service to him, frustrating the purpose for the easement. The Thomases sued Ohio Power, seeking rescission of the easement contract and damages. The trial court concluded that the easement was valid and, therefore, not subject to rescission.

The Thomases appealed.

Rose, not barren at all, was worth about 12 times what farmer Sherwood sold her for.

Rose, not barren at all, was worth about 12 times what farmer Sherwood sold her for.

Held: The parties had made a mutual mistake, and the contract should be rescinded. Mutual mistake is grounds for rescission of a contract if there is a mistake made by both parties as to a material part of the contract, and where the party complaining is not negligent in failing to discover the mistake. A mistake is material to a contract when it is “a mistake … as to a basic assumption on which the contract was made [that] has a material effect on the agreed exchange of performances.” Thus, the intention of the parties must have been frustrated by the mutual mistake.”

In order to claim mutual mistake as a basis for rescinding a contract, a complaint must allege (1) the existence of a contract; (2) a material mutual mistake by the parties when entering into the contract; and (3) no negligence in discovering the mistake on the complainant’s behalf. Here, the Court said, the purpose of the easement was to provide electric power to the Thomases’ neighbor. Both the Thomases and Ohio Power believed Ohio Power could provide electric power to that neighbor, but they were both mistaken about that fact. Ohio Power was in a better position to know that this belief was mistaken than the Thomases, and thus, the Court held, the contract should have been rescinded at the Thomases’ request.


Case of the Day – Thursday, December 31, 2015


dancing-nuns140606If you’re suing a neighbor because you claim title to a piece of her property, the last thing you want to see happen is for her to sell it to the Sisters of the Poor before your lawsuit is completed. The neighbor makes off with the money from selling your property, and when you finally win, you have the PR problem of the bailiff dragging a gaggle of nuns off your land while TV crews report your heartlessness live on CNN.

It was for precisely this reason — well, maybe not precisely this reason — that the law has a mechanism known as lis pendens. A lis pendensliterally, “lawsuit pending” – is a notice filed with the office of the county responsible for deeds (often the county recorder) that puts the world on notice that litigation is going on that relates to ownership of the piece of land at issue. Practically speaking, the filing will send prospective buyers and lenders fleeing for the next county.

The purpose of lis pendens is laudable: it keeps wily defendants from transferring interests in land subject to a lawsuit, so a plaintiff doesn’t have to endlessly sue new buyers and lessees in ordercollect on a judgment. But like with any reasonable and necessary mechanism, there are those who — as the legendary trickster Dick Tuck would have said — who want to run it into the ground.

In today’s case, the plaintiff sued the defendant over a large tree on the boundary between their properties, alleging that it had been negligently trimmed to lean onto their property, that it constituted a “spite fence,” and that its size and location constituted a nuisance. Of interest to us was the last allegation, that in a prior lawsuit between the parties, the defendant’s lawyer had filed a lis pendens on plaintiff’s lot that caused a sale to fall through. The plaintiffs said that the lis pendens — which a court had later thrown out — constituted a tort known as “slander of title.” This was so because the underlying litigation had nothing to do with whether the defendant claimed title or the right to possess the plaintiff’s property. Defendant’s lawyer filed it simply as a club with which to bludgeon the plaintiffs, as part of a take-no-prisoners litigation strategy.

kkdk73106pet1140606The defendant’s lawyer argued the slander of title had to be dismissed, because as counsel for the other side, he owed no duty to the plaintiffs. The California court conceded that he didn’t, but said that was irrelevant: slander of title is an intentional tort (like a judge hauling off and slugging a public defender). Unfortunately, the Court said, the plaintiffs’ pleading wasn’t very well written, and the Court couldn’t be sure that they had alleged malice. The more prudent course, the Court thought, was to offer them a chance to amend their complaint to make clear that they were alleging the defendant’s attorney had acted maliciously.

Castelanellis v. Becker, Not Reported in Cal.Rptr.3d, 2008 WL 101729 (Cal.App, Jan. 10, 2008). The The Castelanellis owned real estate in Humboldt County. They sued the owner of the neighboring home, Kristine Mooney, and her lawyer Thomas Becker, alleging that on the border between their unimproved lot and Mooney’s property, “a large tree” curves from the bottom portion of its trunk toward the Castelanellis’ property and takes up so much space that “the subject property cannot reasonably be developed as a residential property.” They also claimed that Mooney’s house tree blocked light to the tree and caused the tree to grow almost exclusively over their property, and that Mooney had trimmed or negligently maintained the tree to contribute to its “odd and unusual angle.”

The complaint maintained that the tree constituted a spite fence within the meaning of California law, and was “maliciously maintained for the purpose of annoying the plaintiffs and in an attempt to gain ownership of plaintiffs’ land at less than fair value.” The complaint alleged nuisance, trespass, tortious interference with contractual relations, and tortious interference with economic relations. The Castelanellis alleged that Mooney sought to “purchase plaintiffs’ property at below fair market value” and had “threatened legal action if plaintiffs trimmed the subject tree in order to make their property capable of being developed and sold.” Finally, they alleged that Mooney and Becker published “false statements” in a lis pendens filed as to the Castelanellis’ property, and this lis pendens — later thrown out by another court — had prevented the Castelanellis from selling the property. The trial court agreed that because Mooney and Becker owed the Castelanellis no duty, there could be no slander.

The Castelanellis appealed.

Held: The Castelanellis had made out an adequate cause of action against Attorney Becker. A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged, called a lis pendens. Such a notice places a cloud on the title, and effectively keeps any willing buyer from wanting to close on a transaction until the lis pendens is cleared. In order to be privileged, so that no party may later sue a party or its attorney for filing such a notice, a notice of lis pendens must both (1) identify a specific action “previously filed” with a superior court and (2) show that the previously-filed action affects “the title or right of possession of real property.

In this case, the notice of lis pendens clearly identified that it was signed and filed in conjunction with litigation involving a tree growing upon a shared property line. But nothing in the record enabled the Court to determine that litigation involved the “right of possession” of either of the two properties involved in that litigation. If it did, a litigation privilege clearly applied, and the action against Attorney Becker could not stand.

Becker argued that he had no duty to the Castelanellis, and he could therefore not be sued by them. The Court pointed out that this would be true if the action were based on negligence. However, the action was an intentional tort, like the tort of malicious prosecution, and there need not be a duty of care owed to the victim by the perpetrator before an intentional tort can be inflicted. The Court said that while an attorney cannot be liable in negligence to a formerly adverse party, that rule does not exempt the attorney from liability for malicious prosecution.

The tort of slander of title does not rise to the level of either malicious prosecution or abuse of process. The elements of the tort have traditionally been held to be publication, falsity, absence of privilege, and disparagement of another’s land which is relied upon by a third party and results in a pecuniary loss. Slander of title does not include express malice as an intrinsic factor. Here, while the Castelanellis did not specifically plead malicious prosecution in their amended complaint, that complaint does include allegations that the actions “were done knowingly, willfully, and with malicious intent.” The allegations seemed to the Court sufficient to inject into the slander of title cause of action an allegation of malice, even as to attorney Becker.

punchIn any event, the Court said, the law is clear that, in evaluating a complaint against a general demurrer, it is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action is alleged, the complaint is good against a general demurrer.

The Court held that the absence of any suggestion in the Castelanellis’ opposition to Becker’s demurrer that they either wished to amend or intended to plead some sort of intentional tort via their fifth cause of action left the Court reluctant to rule that the trial court abused its discretion by sustaining the demurrer without leave to amend. Under all the circumstances, the Court thought the better course of action was to remand this matter to the trial court with instructions to consider whether any intentional tort — as distinguished from a claim of negligence — was in fact pled by the Castelanellis and (2) if not, whether the Castelanellis wish to and can plead a valid intentional tort cause of action against Becker regarding the allegedly improper lis pendens.