Case of the Day – Thursday, August 17, 2017


Snooze141120The whole issue of “conflict of laws” is about as dry as toast, at least until someone’s injury will go uncompensated because the wrongdoer is immune from liability.

In today’s case, Mr. Cain — a Mississippian — worked for a Mississippi tree-trimming company. The company signed on with a Louisiana public utility to trim trees along a right-of-way in Louisiana. Mr. Cain was hurt when his bucket truck came into contact with an electric line, and he collected on workers’ comp from the Mississippi company. But he sued the electric utility for his injuries, too.

We have no basis for saying that the utility was or was not negligent, and thereby was liable for his injuries. What we do know is that the utility company and Cain’s employer had entered into a agreement which made Cain a “statutory employee” of the utility while he was working on the job, although he really remained an employee of the tree-trimming service. So under Louisiana law, the utility was immune from Cain’s suit. But under Mississippi law, companies couldn’t use the “statutory employee” dodge to avoid liability. The trial court said that Louisiana law applied because the accident happened there. Pretty logical, huh? The U.S. Court of Appeals for the Fifth Circuit in New Orleans didn’t think so.

The Court said that while normally that would be the case, Louisiana state law provided an exception, to apply where the other state’s policies would be seriously harmed by applying Louisiana law. Mississippi had a strong policy in favor of protecting the subcontractor’s worker — and that policy carried the day. The lesson here for companies working across state lines — or hiring out-of-state companies to work in their home states — is to check carefully beforehand to be sure that protective measures like “statutory employees” really will work. What goes on in Vegas stays in Vegas … but what goes on at home sometimes doesn’t really travel well.

Does this make conflict of laws clear to you? We thought so ...

Does this make conflict of laws clear to you? We thought so …

Cain v. Altec Industries, Inc., 236 Fed.Appx. 965 (5th Cir.,  2007). Francis Cain, a Mississippi resident, worked for Carson Line Service, Inc., a Mississippi corporation. Carson signed a contract with Washington – St. Tammany Electrical Co-operative (“WST”), a Louisiana corporation, under which Carson agreed to clear rights-of-way for WST’s power lines.

Working on this project, Cain was trimming trees along a power line in St. Tammany Parish, Louisiana, when his aerial truck boom came into contact with an energized WST power line. Cain was badly hurt.

Cain got workers’ compensation benefits under Mississippi’s workers’ compensation law through Carson’s insurance carrier, but that wasn’t enough. He and his wife decided to raise cain with WST, too, so they sued.

WST filed a third party claim against Carson for defense and indemnity. WST filed a motion for summary judgment claiming tort immunity based on the “statutory employer doctrine” in Louisiana’s workers’ compensation law. That law lets contractors agree that a subcontractor’s employees are “statutory employees,” which makes the contractor immune from liability to them. Cain argued that their case was an “exceptional case,” pursuant to La. Civil Code Article 3547. Mississippi law — under which no “statutory employee” exception existed for the companies to hide behind – should govern the claim, he argued. The trial court granted WST’s motion, concluding that Louisiana law applied.

The Cains appealed.

Held: Mississippi law, not Louisiana law, governed. The Court of Appeals first determined that the laws of Louisiana and Mississippi conflicted. It then found that under Louisiana law, a written contract between a principal and contractor recognizing the principal as the statutory employer of the contractor’s employees was valid and enforceable, making WST immune from civil tort liability. Mississippi law, on the other hand, didn’t recognize and wouldn’t enforce contracts giving tort immunity to a principal sued by a contractor’s employees unless the principal has the legal obligation under the Mississippi Workers’ Compensation Act to secure compensation for that contractor’s employees.

Why all this legal hair-splitting? An injured worker thought workers' comp was;'t enough ... and was looking for a deep pocket.

Why all this legal hair-splitting? An injured worker thought workers’ comp wasn’t quite enough… and was looking for a deep pocket.

WST had no obligation under the Act. Thus, there was a substantive difference between Louisiana and Mississippi law, requiring a choice-of-laws determination. The Court said that the issue of whether WST was immune from tort liability was an issue of loss distribution and financial protection governed by La. Civ.Code article 3544. Under its mechanical rule, Louisiana law would apply because, at the time of the injury, Cain, who lived in Mississippi, and WST, a Louisiana corporation, were domiciled in different states, and both the injury and the conduct that caused it occurred in one of those states, that is, Louisiana. Thus, the Court said, WST would be entitled to the statutory employer tort immunity afforded it under Louisiana law.

However (and this was the big “however”), article 3547 also holds that where “from the totality of the circumstances of an exceptional case, it is clearly evident under the principles of Article 3542, that the policies of another state would be more seriously impaired if its law were not applied to the particular issue …” the law of the other state will apply. The Court ruled, after comparing the policies and interests of both Louisiana and Mississippi, it was clear the policies of Mississippi would be more seriously impaired if Louisiana law were applied to this dispute than would Louisiana’s if Mississippi law were applied.

Consequently, the Court said, it would apply Mississippi law to this dispute. Thus, WST was not immune from suit.

– Thomas L. Root

And Now The News …

New York City, DNA Info, August 16, 2017: Central Park tree that fell on mom and kids was ‘decayed,’ officials say

The tree that collapsed in Central Park on Tuesday, nearly killing a mother and her three children, was rotted at the roots, according to the private company charged with maintain the park. The American elm tree toppled over as a “result of decay in the root system beneath the surrounding pavement,” according to the Central Park Conservancy, which is tasked with maintaining the park’s 20,000 trees On Tuesday, the tree’s upper branches crashed on top of 39-year-old Anne Monoky Goldman while her infant was strapped to her chest and she was pushing her two other young boys in a stroller on West Driver near 59th Street, officials said.  “The tree had been inspected annually over the last six years, most recently in November 2016, and there were no visible signs of decay or disease,” the Conservancy said in a statement Wednesday…

Pittsburgh, Pennsylvania, Tribune, August 16, 2017: Council strengthens roots of Penn Hills Shade Tree Commission

Penn Hills council has placed four members onto its newly formed Shade Tree Commission.  Mayor Sara Kuhn said that granting the appointments was a real pleasure.  “Any well-groomed community with trees and shrubbery, when people ride through, it just makes your community look so inviting, so warm and so taken care of,” Kuhn said before council voted to approve a list of appointees at a recent meeting.  Shade Tree Commission President and owner of Raborn Landscape Design, Kathy Raborn, found four other members in June when council approved of the commission. She presented the mayor and council members with the resumes of four Penn Hills residents. The members share a wide range of experience…

Only In Your State, August 16, 2017: Visit the world’s oldest tree stump at this national park In Nevada

The Great Basin National Park is home to one of the world’s oldest living tree: the Bristlecone Pine. Back in 1960, a researcher was studying the great Prometheus tree and after getting his sampling bore caught in the trunk, proceeded to cut down the magnificent tree, subsequently dated as being the oldest living organism in the world. Today, Prometheus—the world’s oldest tree stump—sits below Nevada’s Wheeler Peak. Prometheus is located in Nevada’s Great Basin National Park in eastern Nevada by the Utah border. In 1960, a graduate student searching for the world’s oldest trees received permission to take a sample from Prometheus. His drill bore got stuck in the tree’s massive trunk, and, tragically, he cut it down to retrieve his tool. Upon doing so, he realized his huge mistake. After counting the rings, he determined that he had felled, perhaps, the oldest tree in the world. Prometheus was dated as having lived 4,862 years – longer than any other single organism…

Philadelphia, Pennsylvania, KYW Radio, August 16, 2017: Invasive insect poses threat to fruit trees, grapevines

The spotted lantern fly is a growing threat to fruit trees and grape vines in the region. State officials are still trying to develop an effective way to stop it. The invasive insect is a large colorful bug that was first detected in Berks County in 2014 and can endanger apple and peach trees, grapes and hardwoods. “This insect lands on a tree and it inserts its piercing sucking mouth parts into the tree and it sucks out the juice of the tree,” said Amy Korman, from the Penn State Extension Service. Korman says in that process it lays a sticky substance that promotes growth of a black, sooty mold that can endanger a tree’s leaves. “We have some scientific evidence from Asia that it can kill plants by doing this,” she said…

New York City, Fox News, August 16, 2017: NYC mom critically injured while saving kids from falling tree

A New York City mom on Tuesday was hailed a hero after she shielded her three children–including a 41-day-old– from a massive tree that fell on them during a stroll in Central Park. Anne Monoky Goldman, 39, broke her neck and her son Grant, 2, suffered a fractured skull, The New York Post reported. A witness told the paper that if not for the mother’s quick action, all three children could have been killed. “It was terrifying,’’ Jamie Brown, 42, a Virginia tourist, told the paper. “You heard the tree fall and didn’t know what happened, and then you hear a baby scream.’’ The Post reported that the mom was walking along West Drive near West 62nd Street with her 1-and-a-half-month-old infant, James, strapped to her chest and Grant and his 4-year-old brother, Will, in a stroller when the towering elm toppled on them at about 10 a.m…

Dallas, Texas, KTVT, August 16, 2017: Texas Legislature OKs scaled-back anti-tree ordinance bill

The Texas Legislature has approved new limits on local tree ordinances, but they aren’t as sweeping as original proposals to virtually wipe out all such ordinances statewide. The House voted 119-23 on Tuesday to send a bill allowing property owners to plant new trees to offset municipal fees for removing old ones to Gov. Greg Abbott’s desk. There’s no guarantee he’ll sign it, though. A similar measure cleared the Legislature during the regular legislative session, but Abbott vetoed it. He then convened a special session, asking lawmakers to axe nearly all local tree-cutting ordinances. The Senate passed a broad anti-tree ordinance bill, but eventually scaled it back enough for the House to accept. Abbott will have to call a second special session if he wants to revive the issue…

Bergen, New Jersey, Record, August 16, 2017: New Milford planners mulling fate of sycamore trees

Witnesses representing a developer that wants to build a bank and supermarket on the 14-acre Suez tract substantially finished direct testimony in front of the Planning Board on Tuesday, but a key component of the project remains unresolved. Board members must decide whether River Road should be widened to accommodate what some fear may be a significant increase in traffic. To do so would require lumberers to fell seven mature sycamore trees on the west side of the roadway. The trees tower over the street, providing not only shade, but a sense of splendor. “Honestly, it’s very likely that, if you don’t make this improvement today,” the developer’s attorney, Antimo DelVecchio, said to board members about widening the road, “you’ll never make it.” He added, “That opportunity won’t arise again. Traffic isn’t getting better…”

Napa, California, Napa Valley Register, August 15, 2017: Man in critical condition following tree trimming accident in west Napa

An employee of a city-contracted tree trimming service was hospitalized with serious injuries following an incident in west Napa on Tuesday, according to officials. The 24-year-old man, whose identity has not been released, was working on a neighborhood improvement project on Karen Drive when he was injured. The man was taken to Queen of the Valley Medical Center in critical condition, according to Napa City Fire. Napa Police advised residents to avoid Karen Drive between Sutro and Malone drives due to “police activity” via a Nixle alert at about 1:20 p.m…

Arlington, Massachusetts, August 14, 2017: Arlington Center residents fight to save tree from developer

Over the past decade, the neighborhood surrounding Webcowet Road has seen a boom in development. Five teardowns of single family homes have introduced duplexes and, neighbors say, put street trees in jeopardy. Developer Keith Lombardi is constructing another duplex at 40 Webcowet Road and has petitioned to remove a street tree from in front of the lot in order to build a driveway. The tree is an ash tree, according to the town of Arlington’s recent tree inventory, and is in good condition. “We went from walking down the street, a nice leafy street, and now we’re getting less and less trees. So when this one got posted, it was the straw that broke the camel’s back,” said Linda Annear, a resident of Webcowet Road. She and her neighbors are trying to save the nearly 60-year-old tree from being removed by Lombardi…

Pasadena, California, Star News, August 14, 2017: espite changes to plan, developer of Sunnyview Care Center in Alhambra still plans to remove hundreds of trees, angering activists

You’ve probably seen them in the past two months, at the intersections of Marengo Avenue and Valley Boulevard, Garfield Avenue and Main Street, in front of City Hall — dozens of residents carrying signs reading “Save the trees!” For two months, these residents have been pushing the City Council to block a proposed development that would see most of the Sunnyview Care Center — once part of the Scripps Kensington Retirement Community — razed so the property owner can build a 126-unit condominium complex, a smaller skilled nursing facility, a medical office building and spaces for retail. The first plan presented would have seen 229 of the 268 trees on the property at 1428 South Marengo Avenue removed, and a 91-year-old former chapel building demolished. Without ordinances protecting trees or preserving historic resources, Alhambra had no way to mandate that the trees or chapel be saved, said Councilman Jeff Maloney…, August 14, 2017: Probiotics help poplar trees clean up toxins in Superfund sites

Trees have the ability to capture and remove pollutants from the soil and degrade them through natural processes in the plant. It’s a feat of nature companies have used to help clean up polluted sites, though only in small-scale projects. Now, a probiotic bacteria for trees can boost the speed and effectiveness of this natural cycle, providing a microbial partner to help protect trees from the toxic effects of the pollutants and break down the toxins plants bring in from contaminated groundwater. Researchers from the University of Washington and several small companies have conducted the first large-scale experiment on a Superfund site using poplar trees fortified with a probiotic—or natural microbe—to clean up groundwater contaminated with trichloroethylene (TCE), a common pollutant found in industrial areas that is harmful to humans when ingested through water or inhaled from the air. Their results were published in final version Aug. 11 in the journal Environmental Science & Technology. The successful field trial could be a game changer to quickly and effectively clean up Superfund sites around the country and polluted sites abroad that have high levels of TCE, the authors say…

Sacramento, California, KTXL-TV, August 14, 2017: Trees come down as crews clear brush around Lodi condominium complex

Fire safety is on everyone’s mind these days — including Union Pacific Railroad. The rail operator cleared out overgrown brush along its line in Lodi last week, but some neighbors say they went too far. Twenty-nine trees were cut down. Neighbors say the grass near their Mokelumne Village condominium complex say it was about time for the dry brush and grass to be removed because their homes would be in danger if a fire was sparked by a nearby train track. “They actually did a beautiful job cleaning it all up,” resident Nancy Campbell said. “The next day they came along and cut the rest of the trees down. All of them.” Six of the 29 trees that were cut down were redwoods planted in the 80s. Campbell said homeowners should have been notified the trees would be removed. A Union Pacific spokesperson told FOX40 the city requested they remove all fire hazards. The railroad determined the trees endangered homes…

Dave’s Garden, August 14, 2017: Trees’ vascular system: The big suck

Imagine being handed a very long straw, and told to lean out of a 35-storey building and drink from a glass on the sidewalk below. Sounds like a challenge? Well if you are a California redwood, it’s just part of everyday life. Reaching as much as 350 feet in the air, and so just as far down for water, these are the tallest trees on the planet. Even for relative dwarfs like western hemlock, or ponderosa pine, where the tallest are a mere 250 feet tall, the task is daunting. The basic problem is easy to see. We could take a tall tube, with the lower part standing in water, and attached the top to a pump to remove the air. Even if we create a perfect vacuum at the top of the tube, the water will rise a mere 33.8 feet, before stopping. This is because, with a vacuum at the top, the water is lifted by the pressure of the atmosphere, which at sea level is normally 14.7 pounds per square inch. That is sufficient pressure to lift water 34 feet up, but no more. So how do these majestic trees manage to draw water up to such extraordinary heights, despite this apparent limitation? Ever since botanists began to look at the workings of plants, this problem has been apparent. Following the discovery of human circulation, a similar concept was accepted for plants, although there was no physical equivalent of the pumping heart driving fluids around our bodies. As late as 1905, it was thought that plants had an active function – of an unknown nature – pumping water and sap around the tree. Professor E.J. Ewart, an Australian botanist, climbed 300-foot Australian mountain ash (Eucalyptus regnans) to measure the pressure inside branches. This tree rivals the Redwood for height, and Ewart concluded that the ability to lift water to those heights required living wood, and thus some activity by the tree that was only possible in life – the exercise of a ‘vital force’…

Austin, Texas, Native Plant Society of Texas, August 14, 2017: Legislative ax threatens to undo tree protections across Texas

In the wake of Governor Abbot’s agenda for one of the state’s most precious assets, city’s rights to their trees have been hanging in the balance. As you have probably seen posted this summer during this 85th Texas Legislature’s Special Session (week of July 14, 2017), Abbot’s “Ax Bill” as it has been referred, House Bill 70 (and Senate Bill 14), landed back in the house with neither side satisfied. Abbot’s agenda has been to gut, deregulate, and abolish cities’ ordinances for what property owners can do to act, or not act, on private land concerning trees, essentially at the risk of losing citizen’s say to what happens collectively to their city’s trees as a whole. Some recent articles say Abbot is mad because his current city’s ordinance in Austin is not in agreement with his pocketbook when he wanted to chop down a pecan tree on his more than two-acre property. A number of Texas municipalities who currently have the protection ordinances under their jurisdiction are having to fight back Abbot’s efforts to remove their power that is provided them by the home rule charter under the State of Texas. The ordinances vary from city to city. Some cover the types and size of trees regulated, including other conditions affecting property owners who want to remove trees…

Cleveland, Ohio, Plain Dealer, August 12, 2017: Look for laughter in the woodpile, not chainsaw danger (videos)

Had a little accident with the chainsaw over the weekend. “Little” is such an inappropriate word when referring to a tool that cuts through hardwood like butter. But there was minimal blood – just a few scrapes from a bark encounter – and a bit of vaudeville. I even laughed right after it happened. It wasn’t funny. The good things I learned: Read up on a power tool the first time you use it. Watch a You Tube video, something safety oriented. Have someone else there. They might talk some sense into you. Listen to your instincts. Especially when you find a black walnut limb resting against your house after a big storm…

Off The Grid News, August 13, 2017: It’s the quirky medicinal tree that pharmaceutical companies use

The tamarack tree is an oddity. It is the duck-billed platypus of the tree world, refusing to be solidly classified into any one category. Part softwood, part hardwood, and completely unique, the tamarack is a distinctive component of the northern forest. It’s useful for everyone from off-gridders to pharmaceutical companies and – not surprisingly – Native Americans made use of it, too. Tamaracks are native to North America, primarily in Canada and in the United States, from the northern Great Lakes region to the Northeast. It has more than one name, often even within in the same region. Its Latin nomenclature is Larix laricina, and it is also known as a larch — eastern, black, red or American — or a hackmatack. The word “tamarack” is said to be derived from a Native American word, but there are several theories as to the meaning, ranging from an Algonkian word meaning “snowshoe wood” to an Ojibwa word meaning “swamp tree.” Whichever origin is correct, both meanings are accurately descriptive of the tamarack tree…

Arlington Heights, Illinois, Daily Herald, August 10, 2017: Tree preservation stressed for proposed Libertyville subdivision

Planning for a small residential subdivision on the west side of Butterfield Road in Libertyville will proceed, but village officials made it clear that saving trees is a priority. Whether a developer guarantees to fix any future flooding that impacts neighbors is another issue to be addressed before officials grant final approval the proposed North Pointe Estates. Mount Prospect developer Paul Swanson wants to build 15 homes on a 7.6-acre triangular property bordered by Butterfield Road, the North Shore bike path just south of Route 176 and Victory Drive. Originated last fall, the proposal has been reviewed at four public hearings and at one point was recommended for denial by Libertyville’s advisory plan commission. Swanson proceeded to the village board, but the plan was sent back to the advisory group for revisions. Among them was dedicating a wooded area at the tip of the triangle furthest from Butterfield Road as open space. The area would be maintained by a homeowner association, but the village also wants it available to residents living outside the subdivision…

Binghamton, New York, WBNG-TV, August 10, 2017: Maple tree leaves falling, concerning Broome County residents

It’s something that can be seen happening all around Broome County. “The tree was green and then we got back from vacation in a matter of four or five days the leaves were already starting to turn brown and we were worried that we were going to lose the tree,” said town of Union resident Dave Tidick. Many people are noticing their maple trees are becoming bare, as the leaves turn brown and fall off. “We’ve had a lot of fungal disease and the trees, the leaves have become infected due to the wet conditions we had this spring,” said Extension Educator for Cornell Cooperative Extension of Broome County Kevin Mathers. “Now those infections are getting severe enough that the leaves are falling off the trees.” Mathers said the good news is the maple trees aren’t dead. Mathers also said there is something people can do. “Rake up the leaves, try not to leave them there,” explained Mathers. “The real problem is if you leave the leaves on the ground all winter long, next spring those leaves are a source of infection for the disease which gets started early in the spring…”

Prior Lake, Minnesota, American, August 10, 2017: Area company removes tree for grieving Prior Lake woman in honor of late husband

Diana Kaiser stood in her yard at 9:30 a.m. on Aug. 10. She was wearing a fleece pullover — it was an unseasonably cool morning — and holding a cigarette loosely in one hand. As she watched, branches cracked, buckled and fell from the colossal silver maple, which has been feet from her house on Colorado Street since the day she moved in. She had been alternately laughing and crying all morning. After years of fear, sadness and desperation, the tree was finally coming down. “We were always worried it was going to fall,” she said. During the last big windstorm in Prior Lake, she’d watched the whole crown shake, like it was headbanging at a metal concert, and just hoped that it wouldn’t topple onto her son’s bedroom directly beneath it. For a long time, her husband, Byron, had wanted to cart the thing away. But three-and-a-half years ago, Bryon had been diagnosed with cancer. Before that, she’d been battling breast cancer herself, and before that diagnosis, her father had died. “So, things haven’t been real easy,” she said. A little less than a year ago, Byron died. For years, they’d been struggling with treatment, and with grief, and all the while, the tree had been put on the back burner. It was after he passed away that Diana decided something had to be done about the tree. It was a looming threat over her son’s bedroom, and the close-by power lines, but there was another reason besides that. She wanted to get rid of the tree for Byron…

Charlottetown, P.E.I, The Guardian, August 10, 2017: Several majestic, old elm trees in Charlottetown are receiving potential life-saving treatment

The city has been inoculating trees since 2010 but has switched this year to the fungicide Arbotetc 2020-S, which is believed to be more effective than the previous product the municipality had used, says Beth Hoar, Charlottetown’s parkland conservationist. Morgan Laverty, a Dutch elm disease technician, was treating an American elm tree on Hillsborough Street Thursday morning. The tree, which stands about 85 feet tall and is at least 100 years old, is the eighth tree Laverty has treated this year in Charlottetown. He is looking to do one or two more this year, notes Hoar. She says the treatment lasts for three years. The city plans to treat another set of elm trees next year at an average cost of $360 per tree…

Washington, D.C., Times, August 9, 2017: Officials want help watching for invasive tree-eating beetle

Have trees around your house? Take a few minutes to check them for an invasive beetle. The request comes from the U.S. Department of Agriculture, which has designated August as National Tree Check Month. In Michigan, officials are primarily worried about the Asian longhorned beetle. The distinctively large, shiny black beetles have random white blotches or spots. They turned up in the U.S. more than 20 years ago and likely came from Asia in wood packing materials. They haven’t been spotted in Michigan but have been found in neighboring Ohio. The beetle eats its way through the insides of trees, damaging and often killing them. It prefer maples but also will infest other hardwoods…

Walla Walla, Washington, Union-Bulletin, August 9, 2017: Oregon company that failed to trim tree pays for fatal crash

A Portland industrial shop has been court ordered to pay nearly $300,000 for failing to trim tree branches that blocked a stop sign and contributed to a fatal car crash. In June 2013, driver Jason Rodriguez ran the stop sign and ended up crashing into cross-traffic, killing one of his passengers, 33-year-old Michael Dominguez. The Oregonian/OregonLive reports Dominguez’s family sued Rodriguez for poor driving and Portland Engine Rebuilders for failing to keep the leaves on a tree bordering its property from obscuring the stop sign. A jury ordered Rodriguez to pay $678,000 and the industrial company to pay $291,000 to the family…

Lubbock, Texas, KFDA-TV, August 9, 2017: BBB alerting residents of tree-trimming scammers

Homeowners in need of yard work following recent storms in the area are being targeted by scammers.  According to the Amarillo Better Business Bureau, scammers target homes after storms because it’s when people need help in their yard the most. The Better Business Bureau has received several calls from residents who paid workers to trim their trees. They say they took their money and never finished the job.  A local landscaping company says there are some red flags to watch for before hiring someone to help with your yard. “You just want to watch out for people looking to receive your money upfront before any work is done. [Also] any individuals in unmarked cars, unmarked clothing,” said Tye Debord of Krause Landscaping…

DieHard Survivor, August 9, 2017: 15 Types of trees to never have in a front or backyard

The trees covered below are not just trees to avoid if you are planning your homestead or survival location layout; they all possess either a very shallow root system, produce toxins to other plants, attract pests, suck up a disproportionate amount of water/nutrients or have very weak wood. If they already are present, you should consider removing them or altering your plans to accommodate for their weaknesses…

Hilton Head, South Carolina, Island Packet, August 8, 2017: A tree limb fell and injured a child in Palmetto Dunes Resort. His family has filed a lawsuit

The Palmetto Dunes Property Owners Association should have known a tree in its resort posed a danger before a limb broke off and fell on a 10-year-old boy, resulting in over $285,000 in medical expenses, a lawsuit alleges. The suit, filed July 28 in Beaufort County Circuit Court, said the son of Christopher and Heather LeCroy, who are residents of Pickens County, was walking with a friend along a leisure path in Palmetto Dunes Resort in April 2014 when a loblolly pine tree limb fell about 50 feet, landing on the child’s buttocks, back and lower portion of the right leg. The lawsuit claims that “one could clearly see a great deal of evidence of prior limb breakage,” and a “reasonable inspection” of the tree would have caused the Palmetto Dunes Property Owners Association to notice a 20-foot “split” in the trunk of the tree along with other limb breakage “directly above the leisure pedestrian pathway.” Andrew Schumacher, the association’s chief executive officer, said this week he could not comment on the suit. The attorney for the LeCroys did not immediately respond to multiple requests for comment…

Ecosalon, August 8, 2017: You’re not the only one with insomnia: City trees don’t sleep well, either

Streetlights and everything else that makes a city hustle and bustle are messing up trees’ sleep cycle. Peter Wohlleben, author and forester, wrote a book,The Hidden Life of Trees: What They Feel, How They Communicate – Discoveries from a Secret World”, about this disturbing modern reality. Wohlleben has studied forests since 1987 and has built on his knowledge ever since. The book, which came out in 2016, isn’t the only bit of literature to discover this finding. For example, a recent (2016) European Commission funded study published in the Journal of Ecology found that artificial light affected when trees’ spring buds burst, leaves’ coloring, and when trees shed leaves. “[The] study concluded that changes in trees’ annual rhythm of producing leaves and blossom attributed to artificial light ‘may have significant effects on [their] health, survival, and reproduction’”, The Times of London reports…

Charleston, South Carolina, WCBD-TV, August 8, 2017: Mount Pleasant Town Council to discuss tree removal following routine utility limb cutting

Mount Pleasant Town Council will discuss an issue regarding routine tree trimming to keep limps away from power lines. This discussion comes after several people complained to the council, and the News 2 I-Team, about the way the contractors cut the trees. During a full council meeting Tuesday night, members will discuss and vote on a new ordinance that would allow home owners to remove the trees they believe are damaged without the required mitigation. That means the homeowner will not have to replace the tree. In June, Leigh Rowe was one of the Mount Pleasant residents who complained to the I-Team about the tree cutting. SCE&G contracted crews to perform the maintenance, but she was not happy with the way contractors performed the work. “The tree guys showed up and just kind of chopped down the middle of it,” Rowe said…

TD World, August 8, 2017: Crews track danger trees in new mobile application

Every electric utility across North America has one central mission — to keep the lights on for its customers. Overgrown vegetation and danger trees, however, can inflict unplanned outages for line crews. Case in point: the 2003 blackout can be traced back to vegetation management issues on a transmission right-of-way (ROW) in Ohio. Because of this event, the North American Electric Reliability Corporation (NERC) developed a special focus on transmission vegetation management and its impact on reliability. Utilities responded to this focus by redoubling their on-ROW vegetation management efforts and implementing technologies that enhance their ability to detect and mitigate so-called danger trees at and beyond the edges of transmission ROW. The New York Power Authority (NYPA), for example, has implemented an aerial mapping technology called light detection and ranging (LiDAR) that can identify vegetation, including danger trees that could pose a danger to transmission lines. NYPA, which manages 1400 circuit miles of transmission lines, has been using LiDAR to survey its facilities for years, but it just recently started including danger trees in its measurements. In the near future, line crews will start using an advanced mobile application to pinpoint which LiDAR-identified trees off a ROW need to be cut down…

Red Bank, New Jersey, Red Bank Green, August 8, 2017: Fair Haven: Outcry halts tree cutdown

Fair Haven’s elected officials faced a storm of criticism by residents Monday night over a plan to cut down 10 mature trees alongside the borough’s main ballfields. By the end of the semimonthly council meeting, the governing body had decided to put the plan on hold and “go back to square one,” in the words of Mayor Ben Lucarelli. The plan, which came to widespread attention in recent days and was scheduled to begin August 15, called for removal of the sweetgum trees, which line Third Street and Cedar Avenue, to clear the way for a cinder walking path and other improvements around the Community Center Ballfields. The trees, some of which are 50 feet tall, were to be replaced by a dozen saplings. Outraged homeowners in the area complained they’d gotten no notice of the plan, whose details had not been made generally known as it made its way through committees toward a funding vote. Even the Shade Tree Commission was caught off guard, said two members of that advisory group…

Environment Guru, August 7, 2017: How to identify tree ailments 

Plant diseases can cause a loss in yield of the crop or damage to the aesthetics of the plant itself. To make matters worse, these issues can also weaken the integrity of a tree. In this instance, hazardous situations may occur in which property damage or even serious bodily injury could result from falling branches or even the toppling of the tree itself. In order to avoid such hazards, it is important that you are able to recognize the telltale signs of common tree diseases so that you may take the necessary actions to remedy the issues. Disease outbreaks are often seasonal, regional, and species specific. The following list are some tree ailments that you may encounter, but infestations and disease will vary from location to location. AnthracnoseAnthracnose is one of the leading plant diseases in trees and shrubs. This condition stems from a fungus that attacks the leaves, twigs, flowers, and fruits of several different species. It is commonly found throughout North America, with sycamore and flowering dogwood being the most heavily impacted species. The symptoms of this condition vary by the pathogen as well as the host species. Nonetheless, some of the common indicators include premature leaf defoliation and twig blight that presents as witch’s broom – a deformity that causes shoots to densely grow in one spot…, August 7, 2017: What’s killing trees during droughts? Scientists have new answers

As the number of droughts increases globally, scientists are working to develop predictions of how future parched conditions will affect plants, especially trees. New results published today in the journal Nature Ecology and Evolution by 62 scientists, led by Henry Adams at Oklahoma State University, synthesized research from drought manipulation studies and revealed the mechanisms by which tree deaths happen. “Understanding drought is critical to managing our nation’s forests,” says Lina Patino, a section head in the National Science Foundation’s (NSF) Division of Earth Sciences, which co-funded the study through its Critical Zone Observatories program. “This research will help us more accurately predict how trees will respond to environmental stresses, whether drought, insect damage or disease.” Adds Liz Blood, director of NSF’s MacroSystems Biology program, which co-funded the research, “Droughts are simultaneously happening over large regions of the globe, affecting forests with very different trees. The discovery of how droughts cause mortality in trees, regardless of the type of tree, allows us to make better regional-scale predictions of droughts’ effects on forests…”

International Business Times, August 8, 2017: Couple buy San Francisco street, trees and all, for $90,000

Well, if you can’t afford to buy a house in a pricey neighborhood, you should buy the whole street. A $14-a-year tax property bill not paid for three decades, resulting in a wealthy neighborhood owing the city $994 in back taxes, has allowed Tina Lam and Michael Cheng to make a mind boggling investment. The couple paid $90,000 for Presidio Terrace, a San Francisco street in an upscale part of town, where houses frequently sell in the $35 million range. The deal includes the long block street and sidewalks, well-coiffed garden islands and palm trees. The posh enclave contains a total of 35 mansions, a gated and guarded community at the end of Washington Street, just off Arguello Boulevard and down the hill from the Presidio – a park that is part of the Golden Gate National Recreation Area…


Looking for an older news story we featured on this page? Check our Prior News Links page.


Case of the Day – Wednesday, August 16, 2017


We liked our lunch at Jimmy John's, and didn't discover that we were really victims - not patrons - until more than a year later.

We liked our lunch at Jimmy John’s, and didn’t discover that we were really victims – not patrons – until more than a year later.

A couple years ago, we grabbed a Jimmy John’s meal on the way to a high school football game. While paying, I noted a stack of official-looking notices, informing me that my wife and I had  been grievously injured a year and a half ago before when we ate a Jimmy John’s sub sandwich in Winston-Salem, North Carolina.

At the time, the sub tasted pretty good to some hungry travelers, and we seem to recall that we left the place feeling like we had gotten our money’s worth. Boy, were we ever wrong! It turns out that we may have gotten a sandwich that may have been advertised as having alfalfa sprouts, but did not. We don’t really remember what sandwich we ate, and if alfalfa sprouts were omitted (and if that had been important to us), we imagine we would have noticed. No matter, we are members of a class of consumer harmed by high-handed chicanery, alfalfa sprout deprivation that shocks the conscience! Admittedly, our damages would never make us lead plaintiffs in the post Spokeo v. Robins world. Fortunately, we’re not here to talk about that decision (because we’re not sure we understand it).

Likewise, there’s much about the alfalfa sprout class action lawsuit against Jimmy John’s that we don’t understand. According to the information we’ve gleaned from the settlement documents, we’re maybe going to get a coupon for a free pickle, or perhaps a bag of chips. The lead plaintiff gets $5,000 for her trouble, and her lawyers get about $400,000. Regardless of the amount of damages that may someday flow our way to heal our psyches, we were intrigued. It made us wonder about causation and damages. And, of course, about trees…

America's right to alfalfa sprouts – vindicated by the majesty of the law.

America’s right to alfalfa sprouts – vindicated by the majesty of the nation’s legal system.

Back in the early days of the last decade, Georgia Power was building a new transmission line through some swampland. The utility mapped out an area in which, due to environmental considerations, trees had to be cut by hand instead of machine. The area was larger than the minimum required by law. While an employee of one of its contractors was cutting down trees, a branch fell from behind him and paralyzed him.

So what caused the injury? The fact the worker didn’t watch the trajectory of what he was cutting? Just bad luck? His employer’s lousy safety program? Maybe a sproutless sandwich from Jimmy John’s? Or was it the fact – as Rayburn argued at trial – that Georgia Power insisted more trees be cut by hand than the law mandated? Or maybe it was the fault of the consumers whose need for more electricity caused the building of the power line? Or maybe mainstream religion, for rejecting an Amish lifestyle that would eschew electricity?

You get the idea… when someone is badly hurt (and often when they’re not hurt at all), it’s good sport to look around for someone to blame, someone with deep pockets. But here, the Court refused to stretch the limits of causation unreasonably. And while not conceding that tree cutting was inherently dangerous, the Court nevertheless said in essence that the Plaintiff was a consenting adult, and he freely agreed to assume the risks.

pickle141017The lesson, kiddies, is this (and we don’t care what the slick lawyer’s ad on daytime TV says): Someone else doesn’t have to pay every time you get hurt. Here, have a pickle …

Rayburn v. Georgia Power Co., 284 Ga.App. 131, 643 S.E.2d 385 (Ct.App. Ga., 2007). Georgia Power set out to build a new transmission line. The coastal plain on which the power line was being built included wetlands and rivers. Because of Army Corps of Engineers concerns with destruction of wetlands, Georgia Power maintained a policy of clearing wetland buffers of trees by hand rather than with machines, which tended to tear up root mats and the ground. As well, the Georgia Erosion and Sedimentation Act required at least a 25-foot buffer to be cleared by hand on each side of a warm water stream, and at least a 50-foot buffer for trout streams, within which vegetation must be cleared by hand. In one case, a Georgia Power environmental supervisor specified a 50-foot buffer because the area was especially sensitive, but his assistant, an environmental analyst, marked in her notebook that they put 100-foot buffers on the stream. She set out flags showing the buffers. At some point, Georgia Power staff moved the wetland buffer to the edge of the right of way.

Caffrey Construction won a contract to clear timber, having taken into account that several areas in the project had to be hand-cleared. While working in a buffer zone, Rayburn was struck from behind by a limb from another tree. Rayburn sued Georgia Power, contending that the company’s negligence caused his injury. The trial court granted summary judgment for Georgia Power, holding that Rayburn’s injury was “the product of a normal risk faced by persons employed to cut down trees.” The court held that the decision to extend the buffer did not cause Rayburn’s injury, the cause of which was either his decision to cut down the tree in the circumstance presented, or else an unforeseen occurrence for which no one was responsible. The court also declined to find that tree-cutting is an “inherently dangerous” occupation or that Georgia Power directed the time and manner of Caffrey’s work. Rayburn appealed.

lawgold141017Held: Georgia Power was not responsible for Rayburn’s injury. The Court noted that the employer of an independent contractor owes the contractor’s employees the duty of not imperiling their lives by the employer’s own affirmative acts of negligence. However, the employer is under no duty to take affirmative steps to guard or protect the contractor’s employees against the consequences of the contractor’s negligence or to provide for their safety. This is especially true where a plaintiff has assumed the risk. An injured party has assumed the risk where he or she (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself or herself to those risks.

Here, Rayburn argued that Georgia Power owed him a legal duty not to expose him to unreasonable risks of harm by requiring hand-clearing in an area that could have been more safely cleared by machine, and that it breached this duty. He submitted evidence that clearing timber by hand is more dangerous than clearing it by machine. While state regulations only required a 25-foot buffer to be hand-cleared on each side of a creek, Georgia Power marked a buffer line more than 100 feet from the stream. Rayburn complained that, despite the option of a safer means of tree cutting, Georgia Power “directed that the work be performed by inherently dangerous methods in extremely hazardous conditions contrary to accepted construction industry standards.” Therefore, he argued, Georgia Power’s decision to hand-clear this section of property regardless of the danger to Caffrey’s employees should make it liable for his injury.

The Court held that notwithstanding all of this, Georgia Power could not have appreciated the dangers better than he did. The Court said that exposing someone to harm generates liability only when the person exposed does not appreciate the harm or is helpless to avoid it, which was not the case here. While Rayburn’s experts concluded that the working conditions were “abhorrent,” the Court said, none of the witnesses said that the conditions were out of the ordinary for that part of the state. If the contractor’s employees can ascertain the hazard known to the entity hiring the contractor, the contractor need not warn the employees of the hazard. Rayburn argued that, even if he knew the general risk involved in felling trees with a chain saw, he did not assume the specific risk that the particular branch that hit him would do so.

Chainsawb&w140225Rayburn was hired to cut trees. He had experience cutting trees. He testified that he observed the conditions and would have spoken to his supervisor if he thought they were unsafe. He already knew that cutting trees with a chain saw was hazardous, and therefore Georgia Power had no duty to warn him that he could get hurt by doing the job which presented hazards that he fully understood. He had actual knowledge of the danger associated with the activity and appreciated the risk involved.

Rayburn also argued that OCGA §51-2-5 made Georgia Power liable for Caffrey’s negligence, because the work was “inherently dangerous,” and because it controlled and interfered with Caffrey’s method of performing the job. But the Court said the statute only makes an employer liable for the contractor’s negligence, and here, Rayburn has not established that Caffrey’s negligence led to his injury. Even if he had, Rayburn had not shown that Georgia Power retained the right to direct or control the time and manner of clearing the timber. Georgia Power’s on-site supervisor visited the property once or twice a week, but did not direct the Caffrey employees in how or when to do their jobs. The Court observed that merely taking steps to see that the contractor carries out his agreement by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable.

– Tom Root


Case of the Day – Tuesday, August 15, 2017


Remember Alexander? He didn't have anything on Heidi ...

Remember Alexander? He had nothing on Heidi …

Ever have one of those days? Heidi Cordeiro knows how you feel. Heidi had a terrible, horrible, no good, very bad day once. First, she heard a crash in her driveway, and looked out to see that a tree belonging to the hospital next door had fallen, crushing her car. Then, she hurried out to assess the damage, only fall over the branches of the downed tree, spraining her ankle. At least she didn’t have to hobble far to the emergency room.

She of course sued the hospital — who doesn’t like suing hospitals? — for the damage to her car and her ankle. Her case was essentially that the tree fell, so of course the hospital was negligent. Unfortunately, that just set her up for another bad day.

The Superior Court made short work of Heidi’s suggestion that landowners were strictly liable for falling trees. It correctly pointed out that in Connecticut, a plaintiff must plead (and of course later prove) that the landowner knew or should have known that the tree was diseased, decayed or otherwise dangerous.

Heidi couldn’t do that, and her case was dismissed. We’ll never know whether liability would have extended to paying for Heidi not being careful where she stepped.

She had a bad day.

Cordeiro v. Rockville General Hospital, Inc., Not Reported in A.2d, 44 Conn. L. Rptr. 58, 2007 WL 2570406 (Conn.Super., Aug. 21, 2007). A tree belonging to the Rockville General Hospital fell into the yard and driveway of the premises Heidi Cordeiro was renting, damaging her car. When she went out to look at the damage, Heidi tripped and fell on the branches of the tree. She sued her landlord and the Hospital, alleging negligence and asking for damages for her personal injury and for damage to her car. Rockville Hospital moved to strike the count against it arguing that the plaintiff has failed to state a claim.

Held: Rockville Hospital was dismissed as a plaintiff. The Hospital argued the facts alleged in Heidi’s complaint did not give rise to any duty owed by the Hospital to the plaintiff, the falling tree was caused by an “act of God” for which the Hospital was not liable, and the falling tree was an open and obvious defect that the plaintiff should have avoided.

Fallen_treeThe Court observed that the essential elements of a negligence action were duty, breach of duty, causation and actual injury.Here, Heidi Cordeiro alleged that “a tree … belonging to the defendant … fell upon the yard and driveway area of the premises where the [plaintiff] resided [as a tenant], and when the plaintiff went out to look at the damage to the vehicle parked in her driveway, she was caused to trip and fall over the branches of said tree, causing her to sustain … injuries.”

In early times, there was generally no liability for trees falling on neighboring lands, an obvious practical necessity when land holdings were very large and in a primitive state, but the rule made little sense in urban settings. In urban areas like the City of Rockville, there is generally found to be a “duty of reasonable care, including inspection to make sure that the tree is safe.” It is now generally recognized, particularly in urban areas, that a tree owner has a duty to an adjoining landowner to exercise reasonable care to prevent an unreasonable risk of harm presented by an overhanging dead branch in a residential area. Thus, an invitee of commercial premises may recover for injuries sustained from the fall of a defective or unsound tree growing on adjoining premises, including trees of a purely natural origin.

George of the Jungle could have been Heidi's doppelgänger.

George of the Jungle – Heidi’s doppelgänger?

However, the owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition. A landowner who knows that a tree on his property is decayed and may fall and damage the property of an adjoining landowner is under a duty to eliminate the danger. But a landowner does not have a duty to consistently and constantly check all trees on his property for non-visible rot. Instead, the manifestation of decay must be visible and apparent. In   Connecticut, if the tree condition is one of which the defendant would become aware through reasonable exercise of its faculties, the defendant is chargeable with notice.

In this case, Ms. Cordeiro had to plead and prove facts showing that the Hospital knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition, or other such proof of actual or constructive notice, in order to state a claim. But she made no such allegation here. Instead, she only alleged that the Hospital “was responsible for the proper maintenance of its trees and was responsible to assure that its trees did not fall into adjoining properties, causing injury.” The law does not require landowners to continuously examine their trees for invisible decay to assure they do not fall. Instead, it requires them to take action when there is actual or constructive notice of a dangerous natural condition.

– Tom Root


Case of the Day – Monday, August 14, 2017


Nickel Plate Beach on a warm but windy Memorial Day.

Nickel Plate Beach on a hot but windy summer day.

We are into the final weeks of summer now (not the astronomical kind, but the vacation-from-school and lazy-days kinds. We took some time this weekend for a visit to Nickel Plate Beach in Huron, Ohio. Nickel Plate (named for a great railroad of the same name) is a substantial extent of sand on the south shore of Lake Erie. Usually, it’s sunny and peaceful there. But sometimes, when the wind is out of the northwest, the deceptively tranquil beach develops a serious undertow.

The story is repeated often enough that lifeguards hear it in training as a cautionary tale. Someone is drowning, and a rescuer tries to help, only to die as well. On a stormy summer day in 2002, a woman was trapped in the undertow at Nickel Plate Beach. She was rescued, but not before four young men perished when they entered the troubled water to save her.

Afterwards, families of the men sued the City of Huron, arguing that despite Ohio’s recreational user statute, the City was not immune from liability for the men’s deaths. The trial court disagreed, and dismissed the suit. An appellate court agreed. The City ran the beach, but there was no evidence that it controlled or tried to control the waters of Lake Erie, which belonged to the State of Ohio. The men drowned in Lake Erie, the Court held, not on the grounds of the city park. Thus, even if Lake Erie constituted a nuisance, it wasn’t the City’s nuisance, but rather the State’s.

hand150525Smith v. Huron, Slip Copy, 2007 WL 4216133, 2007 -Ohio- 6370 (Ohio App. 6 Dist., Nov. 30, 2007). Four people died at Nickel Plate Beach on July 10, 2002, when another person screamed for help from the water. The four entered the water to save her, but although she survived, the four would-be rescuers drowned in the windswept waters of Lake Erie.

Their survivors sued the City of Huron, seeking recovery for the drowning deaths from the city and entities that controlled the beach. They claimed that the city failed to maintain the swimming area it owned in a safe manner and failed to warn the general public of hazardous defects on the premises. The complaint also alleged the city maintained or abetted the creation of a nuisance at the beach and in the water; that the deceased men had reasonably relied upon representations that the beach and waters were safe, and that the city voluntarily assumed a duty of controlling and maintaining the waters adjacent to the beach.

The City of Huron filed for summary judgment arguing that it was entitled to immunity as a political subdivision pursuant to O.R.C. Chapter 2744, that it was not liable because it had satisfied the requirements of Ohio’s recreational user statute, that the men engaged in recreational pursuits prior to their deaths, and that the decedents assumed the risk by voluntarily exposing themselves to the waters of Lake Erie even though they were warned of the dangerous conditions. The trial court granted the City summary judgment. The survivors appealed.

sign150525Held: The City of Huron was immune from liability. The survivors claimed that O.R.C. §2744, Ohio’s Political Subdivision Tort Liability Act, did not confer immunity on Huron. And indeed, under O.R.C. 2744.02(B), in some situations, a political subdivision can be held liable for damages in a civil suit arising from injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or its employees in connection with a governmental or proprietary function.

The survivors claimed the City was liable under the exception that a political subdivision can be held liable for damages in a civil suit arising from injury, death, or loss to persons or property caused by its failure to keep the public grounds within their political subdivision open, in repair, and free from nuisance. They argued that Nickel Plate Beach and the waters of Lake Erie adjacent to the shoreline are public grounds within the city of Huron.

The Court of Appeals ruled that the city didn’t maintain any actual control over Lake Erie itself by placing buoys in the lake or at times posting “no swimming” signs on the beach. The city didn’t actively keep swimmers from going beyond the buoys or boaters from going inside the marked area; nor did the city take overt actions to prevent swimmers from going in the water when the beach was “closed” due to rough conditions. More important, the Court said, title to Lake Erie clearly belongs to the state of Ohio, which holds it in trust for the benefit of the people of Ohio.

The victims in this case drowned in Lake Erie, not on grounds within Nickel Plate Beach or Huron. The City didn’t maintain any actual control of Lake Erie. Based on that, the Court found that the trial court correctly granted summary judgment in favor of the City of Huron.

– Tom Root


Case of the Day – Friday, August 11, 2017


From the hatcheck to the parking lot to the dry cleaner to the amusement park, we grant pre-injury waivers of liability all the time. And we’re helpless to stop it. Don’t believe us? Try negotiating that fine print on the back of your parking lot ticket next time you leave the Mercedes in the hands of some teenager named “Kent Steerwell.” You’ll be handed your keys, probably with a suggestion of where to put them (and it won’t involve inserting them in the ignition, either).

It’s still in the 80s  at 8 p.m. as we write this, so it’s a nice escape to think about skiing.  Here goes: When expert Alpine skiing enthusiast Bill Rothstein parted with his hard-earned cash for a couple of souped-up passes to the Snowbird resort (your basic pass and a special one that let him skip lines and not have to mingle with the great unwashed), he signed the waivers without a second thought. You know, the ones that said the resort wasn’t liable for a ding-dong thing in case he got hurt.

031-downhill-skiingWhile skiing the “Fluffy Bunny” run (hardly sounds like a double-diamond course, does it?) Bill ran into a poorly-marked retaining wall and messed himself up but good. Fortunately, his favored hand wasn’t injured, so he quickly signed off on a lawsuit against the ski operator. But the trial court was impressed by the breadth of the release Rothstein had signed — as tall as the Wasatch and as wide as the Bonneville Salt Flats — and it threw the case out.

The Utah Supreme Court saved Rothstein’s bacon. It held that, no matter what the pre-injury waivers said, Utah public policy required that ski resorts take responsibility for the results of their negligence. A state statute, the Inherent Risks of Skiing Act, exempted ski resorts from certain risks that are inherent in skiing — such as broken legs, frostbite, fashion faux pas — so that the operators could buy insurance against actual negligence. The Court held that inasmuch as the legislature exempted ski resorts from certain types of risks so that they could afford insurance to cover the remaining ones, it was contrary to public policy for a ski resort to try to exempt itself from liability for any negligence whatsoever. The Romans had a word for it: expressio unius est exclusio alterius, which means “the expression of one excludes all others.” This means that because the law expressly carved out certain acts from liability – such as the effects of the relentless pull of gravity – it specifically intended not to carve out other unlisted acts: like failing to adequately mark a retaining wall.

Now available - expressio unius coffee mugs!

Now available – expressio unius coffee mugs!

The waiver was void, and Rothstein was free to sue… if not to ski the “Fluffy Bunny.”

Rothstein v. Snowbird Corp., 175 P.3d 560 (S.Ct. Utah, 2007). “Fast Billy” Rothstein, an expert skier collided with a retaining wall while skiing at Snowbird Ski Resort. The retaining wall was unmarked and no measures had been taken to alert skiers to its presence. Although Snowbird had placed a rope line with orange flagging near the wall, there was a large gap between the end of the rope and a tree, which Mr. Rothstein incorrectly understood indicated an entrance to the Fluffy Bunny run.

No - not this kind of

No – not this kind of “law suit”

Rothstein sued Snowbird for negligence. Snowbird defended itself by asserting that Mr. Rothstein had waived his ability to sue Snowbird for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence.

Rothstein’s super passes — which let him have faster access to the slopes than mere mortals — required him to sign an agreement that said

“I hereby waive all of my claims, including claims for personal injury, death and property damage, against Alta and Snowbird, their agents and employees. I agree to assume all risks of personal injury, death or property damage associated with skiing… or resulting from the fault of Alta or Snowbird, their agents or employees. I agree to hold harmless and indemnify Alta and Snowbird… from all of my claims, including those caused by the negligence or other fault of Alta or Snowbird, their agents and employees…”

If that wasn’t enough, a second agreement he signed said,

“In consideration of my use of the Snowbird Corporation (Snowbird) ski area and facilities, I agree to assume and accept all risks of injury to myself and my guests, including the inherent risk of skiing, the risks associated with the operation of the ski area and risks caused by the negligence of Snowbird, its employees, or agents. I release and agree to indemnify Snowbird, all landowners of the ski area, and their employees and agents from all claims for injury or damage arising out of the operation of the ski area or my activities at Snowbird, whether such injury or damage arises from the risks of skiing or from any other cause including the negligence of Snowbird, its employees and agents.”

Read the fine print

Read the fine print – if your eyes are up to the challenge

The trial court thought these agreements were pretty comprehensive, not to mention dispositive. It granted summary judgment in favor of Snowbird. Quicker than you could say, “Fluffy Bunny,” Rothstein appealed.

Held: The trial court was reversed, and Rothstein was allowed to sue the ski resort. The Court held that releases that offend public policy are unenforceable. Under Utah’s Inherent Risks of Skiing Act, certain hazards inherent in skiing are defined. Resorts aren’t liable for those risks — like breaking a leg on a downhill run — thus clarifying the hazards sufficiently to enable the ski operators to by insurance against those risks that aren’t excluded.

The Court said that by expressly designating a ski area operator’s ability to acquire insurance at reasonable rates as the sole reason for bringing the Inherent Risks of Skiing Act into being, the Utah legislature “authoritatively put to rest the question of whether ski area operators are at liberty to use pre-injury releases to significantly pare back or even eliminate their need to purchase the very liability insurance the Act was designed to make affordable. They are not.” The premise underlying the passage of a law to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The Court said “the bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.”

Inasmuch as the legislature had determined that resorts should insure themselves against risks not inherent in the sport of skiing, the Court held that it was contrary to public policy to permit an operator to duck liability for negligence that could have been avoided by requiring its patrons to waive claims for negligence as a condition of use.

– Tom Root


Case of the Day – Thursday, August 10, 2017


fallentree141117When the Santiagos parked on a side street in Vineland, New Jersey, to attend the christening of their god-daughter, they had no idea that Mrs. Santiago was about to get christened with a 60-foot tall maple tree.

It seems that the tree’s roots had girdled — which is what happens when the roots grow back around themselves and essentially strangle the tree. Girdling is a problem with city trees, the roots of which may grow in confined places. When it happens, trees have no subsurface support, and often fall in conditions that wouldn’t affect normal trees.

That’s what happened to the tree that struck Mrs. Santiago, and her lawyer and expert witness arborist did an excellent job of explaining the problem to the court. But the City won on summary judgment anyway. It seems that the city workers responsible for the trees all testified that they were nothing more than glorified leaf-rakers — one of them, when asked what he knew about trees, responded “[t]rees have leaves, that’s about it” — and none of them knew how to inspect a tree to determine whether it might have girdled roots.

The city workers involved were not the sharpest bulbs on the tree --- or something like that.

The city workers involved were not the sharpest bulbs on the tree — or something like that.

Now you’d think that the fact that city owned the urban tree and its tree people had no idea how to care for them ought to make this case a dunker for the injured Mrs. Santiago. But in New Jersey, the Tort Claims Act requires that a plaintiff show that the city’s failure to act was “palpably unreasonable.” The fact that city’s tree workers couldn’t find the business end of a chain saw turned out to be a fact that favored the city. The Court of Appeals agreed that the city’s decision not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality was not “palpably unreasonable.”

Compare this decision to holdings in other jurisdictions that an urban owner has a heightened duty to inspect his or her trees (see Conine v. County of Snohomish, a Washington State decision, for example). Seems if you’re a New Jersey city worker, the less you know, the better off you are. We don’t know much about girdling, but we know nonsense when we read it.

Santiago v. City of Vineland, Not Reported in A.2d, 2007 WL 2935035 (N.J.Super. A.D., Oct. 10, 2007). The Santiagos drove to 8th Street to attend the christening of their god-daughter. As they crossed the street, a 60-foot maple tree fell and struck Mrs. Santiago. She sued the City, claiming it was responsible for the care and maintenance of trees on its property, and was negligent, careless and reckless in permitting a dangerous condition to exist.

girdling141117Mrs. Santiago submitted a report prepared by Russell E. Carlson, a master arborist, saying that the tree broke at its base, a few inches below the surface of the ground, because it lacked a root system sufficient to support the tree. He found that girdling roots had effectively strangled the tree, resulting in decay of the base of the trunk and inadequate development of the root system. Girdling roots form when a root grows in a direction that crosses the trunk of the tree. Ordinarily, roots will grow away from the trunk of the tree but when a root meets an obstruction, it will change direction, and may grow around the edges of the planting pit.

Carlson said that eventually, circling roots will come in contact with the growing tree trunk. The cells of the bark of both trunk and root are compressed. Symptoms of this are a thinning of foliage and reduction of twig growth in the crown, followed by twig and branch dieback. The tree may eventually die above the area of contact. When this girdling condition persists for many years, the roots that normally extend away from the tree may atrophy and eventually decay. While healthy trees usually withstand winds over 70 mph, trees that have lost their structural support at the base can topple in much lower winds, and in some cases when there is no wind at all.

Even when the roots are underground, the expert said there are signs that girdling roots may be present. The trunk of the tree goes straight into the ground, without the normal flare from trunk to roots. Carlson stated that excavation of the soil at the base of the tree is “sometimes necessary” to determine the extent of the girdling. This process could take a few minutes, or several hours, depending on the size of the tree, soil conditions, and the extent and depth of the girdling roots.

Only one of three city employees whose depositions were taken knew anything about trees, and even he had no experience identifying diseased or dying trees. The general supervisor of streets and roads for the City said it would be a hardship both economically and logistically for the City’s Department of Public Works to inspect every tree within the City’s borders, or even within the City’s right of way and on City property, for the multitude of diseases that are capable of causing damage to any or all of the varieties of trees within the City’s borders.

The City moved for summary judgment, arguing that Santiago had not presented sufficient evidence to support a claim under the Tort Claims Act because she did not establish that the City had actual or constructive notice of a dangerous condition. The judge concluded that the City’s actions respecting the tree were not palpably unreasonable. Santiago appealed.

Held: The suit was properly dismissed. The Tort Claims Act provides that a public entity may be liable for an injury caused by a condition of its property if a plaintiff establishes (1) that the property was in dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) a public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The workers in question should have gone to shcool ...

The workers in question should have gone to shcool …

A public entity is deemed to have “actual notice of a dangerous condition” when it had “actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” In addition, a public entity is deemed to have “constructive notice” of a dangerous condition if a plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Here, Mrs. Santiago had the burden of showing that the City’s action or failure to act was palpably unreasonable. Although the term “palpably unreasonable” is not defined in the TCA, it has been interpreted to mean “more than ordinary negligence, and imposes a steep burden on a plaintiff.” For a public entity to have acted or failed to act in a manner that is palpably unreasonable, it must be obvious that no prudent person would approve of its course of action or inaction. The trial judge correctly determined that the Santiago had not presented sufficient evidence to raise a genuine issue of material fact as to whether the City’s actions in this matter were palpably unreasonable. The City’s public works employees were not trained to identify girdling roots or whether a tree was in danger of imminent failure as a result of such condition. The judge also pointed out that the City had not retained an arborist to “go around and inspect trees for girdling roots and perhaps a myriad of other types of similar problems, which would make a tree unsafe.” Based on the evidence, the judge correctly found that a jury could not find that the City’s failure to have such an inspection program was “patently unacceptable under any given circumstance.”

The evidence showed it is obvious that a regular program to inspect the City’s trees for imminent failure due to girdling roots would require additional manpower and resources. In this case, the City elected not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality. Such a determination, the Court said, was not palpably unreasonable.

– Tom Root