HEDGE FUN

The other day, we found ourselves reading a fascinating brief – and only a lawyer can employ the adjective “fascinating” to describe the noun “brief” – that argued against what the writer called the “common-hedge rule.” Under the common-hedge rule, the argument went, vegetation growing on or near a boundary might be regarded as property held in common, meaning that adjoining landowners would have to protect the vegetation from harm.

To the initiated among us (and because you’re reading this, you are among the initiated), this merely sounds like something close to the rule in Rhodig v. Keck. To the brief writer, however, the common-hedge rule was an un-American mischief-maker that would spawn vexatious litigation, engender confusion, and threaten the freedom-loving people of Earth. What was worse, the writer argued, it would interfere with the first prong of the Massachusetts Rule (that is, the doctrine that a landowner may trim overhanging branches and encroaching roots up to his or her property boundary).

Alas, the brief was for naught: the case in which it was filed, an Arizona hedge encroachment action, was decided on an arcane procedural question regarding the timeliness of a post-judgment motion under Arizona Civil Rule 60(c)(1). But the whole notion of a “common-hedge rule” was interesting.

But on closer examination, the common-hedge rule appears to be nothing special, at least, nothing we could not divine with what we know of the Massachusetts Rule and boundary-tree law. The highlights:

First, a person on whose land a hedge is located is the owner of it, although the roots and branches thereof extend into and over a neighbor’s land.

Second, a landowner whose property is invaded by the boughs of a hedge growing on adjoining premises may cut them at the point where they enter her property. However, the fact that a landowner trims branches overhanging her property from a hedge growing on an adjoining landowner’s land is not evidence that she has any ownership in the hedge, or that it is a boundary between the properties.

Third, if a hedge constitutes a boundary between adjoining lands, it is the common property of the owners of the lands, but neither has a right to cut, injure, or destroy the hedge without permission of the other.

This is pretty basic stuff. It appears the rules we know and love will apply whether the vegetation in question is a tree, a hedge or even a beanstalk.

Jurgens v. Wiese, 151 Neb. 549 (Supreme Court of Nebraska, 1949). Martin and Anna Jurgens sued John and Tena Wiese to stop them from destroying a hedge located entirely on the south boundary of the Jurgens’ and Wieses’ properties, and for damages suffered because of John’s partial cutting of the hedge.

The Jurgens and the Wieses (and the people who owned the properties before them) had for more than 10 years recognized the boundary between their lands to be the center of the hedge. The Wieses trimmed it on their side, not claiming to own the whole thing but rather just the part they trimmed.

The trial court found that the row of hedge trees was completely on the Jurgens’ land and awarded them damages for the Wieses interference with the hedge. The Wieses appealed.

The hedge had been there for about 78 years. The owner prior to the Jurgens, John Lenners, maintained the hedge and claimed it was his. In about 1936, John complained he was running into trouble with Lenners, and said, “I want to take that hedge from the old gentleman.” When Lenners died, the Jurgens bought the western 133 acres of the property.

John’s father, George, had owned John’s tract previously. George never made any claim to the hedge, but he did complain that it was too close to the line. More than 30 years before the trial, George said, “To my notion it ain’t right. Lenners has got that big hedge so close… it is damaging my land…. by sapping and they had to go along it every so often and cut branches.”

After John and Tena acquired the land, they did not claim the hedge was on their land or on the boundary line, but they did complain that it was sapping his ground and causing damage. After the Jurgens bought their land, John told Martin he could get “damage off you” because the hedge damaged his land and that he wanted to receive compensation for the injury done to his land. The hedge was so close to the line, he said, it sapped some of his ground. When Martin asked him how much he wanted, John said, “Half of it.”

Held: The hedge belonged to the Jurgens, but John and Tena were entitled to trim the part that overhung their property.

The Supreme Court found that the hedge clearly was planted and the trunks of the trees within the hedge were wholly upon the Jurgenses’ land. The Court said the hedge was the Jurgenses’ property, and no part of it has ever been owned by the Wieses. The Court held that ownership of trees standing wholly on the land of one owner, although their roots or branches extend into or over the land of another, is vested in the person on whose land the trees stand, and the adjoining owner has no property in them.

The fact that the Wieses trimmed branches from trees and the hedge which extended over their property was not evidence that they had any interest in or ownership of any part of the hedge, the Court held. One whose property is invaded by the boughs of trees growing on adjoining premises, the Court ruled, may cut them at the point where they enter his property. The act of cutting the branches to the extent they have entered the adjoining property is the exercise of a right, but it is not evidence of the ownership of a tree or trees from which the branches grew.

The Wieses admitted they were cutting the hedge but claimed they were cutting within their legal rights to protect their property, and that they owned at least one-half of it. They had cut about 20 yards of the hedge and more than 20 hedge trees, and were continuing to cut the hedge at the time the suit was filed. Because a substantial portion of the hedge they cut was on Jurgens’ land, an injunction was a proper remedy. One who has trespassed upon the land of another, and threatens to continue such a trespass may be enjoined from so doing. The owner of real estate is not required to permit the devastation of his hedge by a trespasser and seek relief in an action at law for damages, the Court said, but instead may resort to an action to prevent such trespasses.

– Tom Root

GETTING HIT BY A BUS

Many times during our seemingly long, long, long career practicing law, we ran into clients who resisted putting their agreements and understandings in writing. “But,” Ray might sputter, “Tom and I have been partners for years. We don’t need anything in writing. We know each other and trust each other.”

Of course they trust each other. After all, partners always conduct the affairs of the enterprise with “not honesty alone, but the punctilio of an honor the most sensitive…,” as Judge Cardozo once put it. Don’t they?

Still, knowing that partners or contractors or even buyers and sellers seldom complete a relationship or transaction with the same good feelings they had going into them did us little good. It was like telling a bride and groom about to walk down the aisle that in 10 years she would devolve into a screaming shrew and he would sit around in his underwear drinking beer, belching and watching televised bowling. So what if it’s as likely as the sun rising tomorrow? No one wants to hear it.

Thus, we would never argue to Tom that Ray was a bum, or tell Ray that Tom liked to use the partnership till to play the ponies. Instead, we would always nod knowingly and say, “Of course you two honest chaps don’t need a written agreement. But what if you walk out the door and Tom here gets hit by a bus? Suddenly, he’s dead, and you’re in business with Tom’s wife, or kids, or executor, or even some distant cousin you’ve never met. And none of them knows the deal, and none of them is likely to be the upstanding guy Tom is.”

That usually worked. Tom and Ray would sign a detailed agreement, and when the falling out came in a couple years (as it inevitably did), the business divorce was much easier for everyone.

In today’s case, neighbors bought adjoining properties subject to a bare-bones easement signed by the prior neighboring owners. The previous people knew the deal and probably had each other over for cookouts. But when the new neighbors proved to be considerably cooler to each other, the imprecision of the easement was decidedly unhelpful.

Kersey v. Babich, 780 N.W.2d 248 (Ct. App. Iowa, 2010). The Kerseys and Leslie Babich owned adjacent properties. Les’s lot had a driveway serving the front of his home. A second driveway located on the Kerseys’ lot provided access to the garages of both property owners. Both landowners purchased their properties subject to a “Drive and Landscaping Easement” agreed to by the previous owners.

According to the easement, Les Babich had the right to use the western 30 feet of the Kerseys’ lot, which he was responsible for maintaining. The easement was intended for “a residential driveway to serve the garage” located on Leslie’s property. Les normally allowed friends, relatives, and home maintenance workers to use the second driveway, but he did nothing to trim vegetation along the western driveway.

The Kerseys sued him, seeking a declaratory judgment. They argued that third-party use of the driveway should be restricted, Les should be required to maintain the whole easement, and he should be liable for injury to a tree along the driveway.

The district court found that Les, his family, friends and agents had the right to use the driveway. It also found that Les was required to maintain a tree canopy over the driveway at a height and width of 10 feet. Finally, the trial court found he was liable for repairs to the driveway.

The Kerseys and Leslie were unhappy, and both parties appealed.

Held: The Court of Appeals agreed with the trial court. The overarching goal of contract interpretation is to determine the intent of the parties at the time they entered into the contract. Words and conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties can be ascertained, it is given great weight.

The court’s interpretation, in this case, was consistent with the evidence showing Les’s expansive use of the second driveway for more than a decade, as well as with the absence of limiting language in the easement. While the Kerseys argued that the term “garage” limited Les’s use to garage ingress and egress, the easement did characterize the driveway as “residential,” a term that suggested a more expansive use. The appellate court thus agreed with the trial court’s interpretation of the purpose of the easement.

Both parties argued that the 10-foot width allowed by custom for the easement (the document setting out which was itself silent on the driveway dimensions) should be changed. The Kerseys claimed that the dimensions should be reduced to a width that would allow Les to fit his vehicles into his garage. Les wanted more, arguing that the easement should be 12 feet wide by 14 feet high. Ruling that a grantee of an unspecified easement “is ordinarily entitled to a way of such width as is sufficient to afford reasonable ingress and egress,” the Court agreed with the trial judge that there was “scant” evidence that residential use of a driveway would require a width in excess of 10 feet.

Finally, Les argued that the Kerseys should not have been awarded damages for his tree trimming and tree removal. The appellate court reasoned that the easement required Les to landscape the easement area on an ongoing basis. He failed to do so, compelling the Kerseys to do the job. Thus, they were entitled to damages for Leslie’s failure to have done so.

– Tom Root

LARA’S THEME

Cue the balalaikas for Lara’s Theme, one of the most memorable leitmotifs in movie history. Today’s victim was singing, all right, after Dr. Zhivago patched him up, but this Lara’s theme went something like ”An employee, no contractor am I; so my rehab, workers comp now must buy…”

We’re not quitting our day jobs to become lyricists, but Lara – that is, Jose Lara – seemed to himself, his customers and the Lord to be an independent contractor right up until the time he fell off a restaurant customer’s roof while trimming bushes. Only then, in a rewrite of history that would have made Stalin blush, did Mr. Lara decide that he had been an employee all along, and thus was entitled to workers’ comp payments for the rest of his natural life.

Workers’ compensation covers employees, but not independent contractors, as an efficient and reasonable way to deliver benefits to employees injured on the job. It is intended to provide quick assistance to the injured and to free employers from costly and protracted litigation over claims. This is not to say that the system is intended to be an ATM for any worker with a claim. A claims board seeks to protect the system from bogus claims, and the employer ­– which is likely to see workers’ comp insurance premiums take off like a rocket after a claim – has a lively interest in, as Rodney Dangerfield put it, keeping it honest.

In this case, both the claims board and the restaurant cried foul. It seemed Mr. Lara was in the business of doing odd jobs, and that the restaurant had hired him once, months before, to trim the bushes and perform light maintenance. The restaurant was hardly his only customer, and he arrived on the scene with his own tools. The owner told Mr. Lara what had to be done – the bushes trimmed – but left it to Lara to determine how best to do the job.

The workers’ comp board, inexplicably, at first held that Mr. Lara had been the restaurant’s employee, but the restaurant asked for reconsideration. Usually, seeking reconsideration is an exercise in futility. Few things in the known universe are as immovable as a judge who’s made up his or her mind. Asking a judge to rethink the matter and announce that he or she was wrong the first time around is like trying to teach a pig to sing – it wastes your time and ends up annoying the pig.

In this case, however, the board (maybe because it was not made up of real judges) revisited the issue and held that Mr. Lara was indeed an independent contractor. Mr. Lara’s lawyer promptly sought judicial review. We say his lawyer instead of Mr. Lara because it isn’t at all clear the ingenuous injured workman was on board. In fact, he freely testified that he had a number of customers, that no one at the diner told him how to do his job, and that he didn’t consider himself an employee of the place.

It seems no one other than his lawyer did, either. On review, the court took as most important among the factors the fact that no one directed Mr. Lara in how to trim or when to trim. He wasn’t being paid hourly, but rather by the job. Everything about the relationship said “independent contractor.”

We start to sound drearisome, but how much easier it would have been for the restaurant if it had signed a simple agreement with Mr. Lara before he fell from the roof. It would have saved a mountain of litigation.

Lara v. Workers’ Compensation Appeals Board, 182 Cal.App.4th 393 (2010). Mr. Lara, a 62-year-old man, suffered injuries to his head, lower back, neck, right shoulder, arm, hand, and thumb when he fell from a roof while pruning bushes for a diner. Lara filed a workers’ compensation claim against Metro Diner’s then-sole shareholder, Scott Broffman, personally and against Metro Diner.

The diner leases space inside a hotel. Lara fell from the hotel’s roof. At the hearing, Lara testified that he has been gardening, painting, pipe fixing, and doing graffiti removal for 25 years. His clients are people who either know him or who find him on the street corner. He charges by the hour, but sometimes he contracts for the entire day. He usually does the same type of work but for different people each day. He has no employees and does not work out of an office or advertise.

The restaurant manager’s wife, Patricia, arranged for Lara to do gardening work at Metro Diner on two occasions. The first time, Patricia – who was Lara’s dentist’s secretary – had asked Lara what kind of work he did. When he told her he gardened, she stated that her husband owned a diner. She gave him an address and told him to go early in the morning so his work would not make the restaurant’s tables dusty. When he arrived, Lara asked him to trim the bushes along the roofline. The second time he went to Metro Diner – the day the accident occurred – was about a year later.

Lara was paid in cash by the hour for his services at Metro Diner the first time but was not paid the second time because he did not complete the work after his fall, and he never sent a bill. Metro Diner did not take taxes out of his pay; Lara paid his own taxes. Lara and Patricia did not discuss how many hours he would work, nor did they discuss the price until he finished the work. The first time, Patricia paid him $15. They did not discuss when he would provide services in the future, only that she would contact him when services were needed.

These things can happen …

On the second occasion about a year later, Patricia asked Lara to do the same job, that is, trim the bushes along Metro Diner’s roofline. They did not discuss terms of employment, such as the number of hours, or the price he would be paid for the job. Lara had no plans to do any additional work after the second occasion, only that he would trim the bushes for Metro Diner when Patricia asked him to. Lara brought all the equipment he needed to do the job, including a trimmer, rake, broom and blower, all tools he owned. He also brought a ladder that he borrowed from a friend. He arrived in his own truck. No one told him how to do his job “because he already knew how to do his job.” Patricia did not tell him to bring an assistant or how long the job would take. She did not tell him to arrive on Saturday at 7:00 a.m., just to go early because the diner opened between 7:30 and 8:00 a.m.

The Board ruled that Lara was an independent contractor and thus not entitled to workers’ compensation benefits. Lara did not testify during the trial that he was an employee of Metro Diner. Rather, he testified he handled his own taxes and contracted with numerous individuals to perform specific jobs. The Board also noted Lara’s statement in his civil action against the hotel, filed after his injury, that “I am self-employed as a gardener.” However, the Board recognized that the distinguishing characteristic of an employer is the power to control the details of the work and methods of performance. On that point, the Board found “no evidence that Metro had the power to control the details of [Lara’s] work in pruning the bushes or the method by which he performed that task.”

Lara appealed.

Held: Lara was an independent contractor. The Workers’ Compensation Act extends only to injuries suffered by an ’employee’ which arise out of and in the course of his ’employment. California law holds that an “independent contractor” is any person “who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”

The Court held that the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. The existence of such a right of control, and not the extent of its exercise, gives rise to the employer-employee relationship. Other secondary factors, derived largely from the Restatement Second of Agency, include “(1) whether or not the worker is engaged in a distinct occupation or an independently established business; (2) whether the worker or the principal supplies the tools or instrumentalities used in the work, other than tools and instrumentalities customarily supplied by employees; (3) the method of payment, whether by time or by the job; (4) whether the work is part of the regular business of the principal; (5) whether the worker has a substantial investment in the business other than personal services; (6) whether the worker hires employees to assist him.” Two additional factors are whether the parties believe they are creating an employer-employee relationship and the degree of permanence of the working relationship.

Applying the criteria, the Court found that Metro Diner did not possess the right of control and the factors do not otherwise weigh in favor of employee status. Lara was engaged to produce the result of trimming the bushes, the Court said. Neither party presented evidence that Metro Diner had the power to control the manner or means of accomplishing the pruning. The means and manner of accomplishing the result of pruning were neither discussed nor made part of the agreement.

The Court observed that its conclusion that Lara was an independent contractor at the time of his injury is further supported by other criteria. “First, Lara performed this work as part of his own occupation as a gardener, which he had been doing independently for approximately 25 years. Not only did Lara have many clients, but Patricia did not ask him to perform any service other than pruning the bushes. Second, Lara supplied the equipment he used for the job. Such tools were not ones that a restaurant would have. Third, Lara had a substantial investment in his business, such as his equipment. Although Lara does not advertise, he has several different clients who either pick him up from the street corner or who telephone him to perform specific jobs. Fourth, he was not hired by the day or hour, or even on a regular basis. Payment was only discussed after the work was complete. Sometimes Lara charged by the hour and sometimes by the job, so Lara was paid on a job-by-job basis, with no obligation on either Metro Diner or Lara for future work. Taxes were not taken out of the money he was paid. Lara estimates and pays his own taxes. Fifth, no date for Lara’s return was specified after he first pruned bushes for Metro Diner. Lara understood only that he would be contacted when his services were needed, so he worked for a limited period with no permanence in his working relationship with Metro Diner. Thus, Lara’s profit or loss depended on his scheduling, the time taken to perform the services, and his investment in tools and equipment.

The Court noted that the criteria were not to be applied mechanically as separate tests, but “are intertwined and their weight depends often on particular combinations… [T]he process of distinguishing employees from independent contractors is fact specific and qualitative rather than quantitative.” Although the workers’ compensation statutes are to be construed liberally in favor of awarding compensation, the Court said, “no amount of liberal construction can change the balance of evidence here. Nor does our conclusion that Lara was an independent contractor defeat the purposes behind the workers’ compensation system. Lara had control over his work and safety, and there was no evidence that he could not have spread the cost of insurance against work-related injuries through fees he charged for his services.”

– Tom Root

AS CORNY AS KANSAS IN AUGUST

I am often corny and it is August, but we’re not in Kansas any more, Toto, not that I ever was (instead being full of skibidi Ohio rizz, something for which I should get aura points. But even in Ohio, I am familiar with the concept of “corn to the corn”rs,” planting corn right up to the fence, even if it makes driving through a country intersection a crap shoot as to whetyou’llu’ll get T-boned by an oncoming driver who cannot see you for the cornstalks.

I have written about the visibility problem before, specifically whether a landowner is liable for obstruction of view caused by trees overhanging the right-of-wIt’sIt’s something I think about a lot in late August in Ohio, where the corn looks lit’siclimbin’bin’ clear up to the sky. Just like it is in Kansas.

A few years ago, the Kansas Supreme Court held off a concerted effort to change its rule that the rural landowner lacked any liability for sightline obstruction.

What made the ruling especially interesting was the Court’s comparison of two different versions of the American Law Institute Restatements on Torts, and the trend proposed in the latest Restatement version that makes any tort duty of care dependent solely on whether the landowner knew or should have known that the risk was obvious. Traditionally, some duties – such alandowner’ser’s duty of care to people passing by his rural property – were independent olandowner’ser’s knowledge what’sat’s worse, what a reasonaowner’ser’s knowledge should have been. The Restatement (Third) conflates duty and foreseeability into a single element so that anything a landowner could reasonably foresee would establish a duty to avoid.

The Kansas Supreme Court, in a nod to tradition, refused to waltz down that path. Kansas precedent excuses a landowner from a duty to maintain sightlines on highways. And thus, the Court ruled, it still shall be.

Manley v. Hallbauer, Case No. 115,531 (Supreme Court of Kansas, Aug. 10, 2018). Darren Manley died after his truck collided with JPatton’son’s truck at the intersection of two gravel roads with no traffic signs. Officers investigating the accident found no evidence suggesting that either driver tried to avoid the collision. The officers testified trees located on land abutting the southeast corner made it impossible for northbound traffic to see approaching westbound traffic and for westbound traffic to see approaching northbound traffic.

About five years before the accident, Steven and Kathie Hallbauer purchased the property that included the offending trees. The growth remained unchanged from the time Steve and Kathie bought the property until the accideDarren’sen’s estate sued Labette County, John Patton and the Hallbauers. Manley settled with Patton and Labette County, but the case proceeded against the Hallbauers. John testified no one could have had a clear view of Anderson Road south of the intersection because of the tree row and underbrush. John said he did not see Darren before entering the intersection. In the opinionDarren’sen’s engineering expe”t, “The lack of proper signage and site distance caused the accident which resulted in the death of Darren Man”ey.”

Steve and Kathie agreed that the view of the intersection was obstructed from around 50 to 60 feet away when traveling north or west, and they said the intersection would be safer with a stop sign.

The Hallbauers moved for summary judgment, arguing they could not be held liable under Kansas law for the failure to remove trees or other vegetation. The district court agreed, and the court of appeals affirmed, holding that the Hallbauers had no common-law duty to Darren to keep their trees trimmed for visibility purposes.

The appeals panel found that no prior Kansas case governed the outcome and therefore looked to the Restatements of Torts for guidance. But it found the answer differed depending on whether it consulted the Restatement (Second) or the Restatement (Third) of Torts. Under the Restatement (Second), a rural landowner generally is not liable to someone who, while off the property, is injured by a natural condition of the land, like trees. But under the Restatement (Third), a landowner could be held liable if the landowner knew of the risk or if the risk was obvious.

The Court of Appeals followed the older Restatement (Second) view, nothat tingKansas Supreme Courtcond)been appd byRestatement (Second)Court many timesthat  and the Restatement (Third) differs from Kansas law in its analytical approach to negligence. Cases from other states also found no duty under similar circumstances.

The Manley Estate appealed to the Kansas Supreme Court.

Held: Steve and Kathie owed no duty to passing motorists to trim their trees so as not to obstruct visibility on the highway.

Anyone claiming negligence must prove that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the breach caused injury to the plaintiff, and (4) the injury resulted in real damages to the plaintiff. Here, the Kansas Supreme Court focused on the first element, duty. Where a duty exists, a person generally has the duty to act as a reasonably prudent person would act in similar circumstances.

The Supreme Court agreed that no Kansas precedent had found such a duty. Kansas law limits the person to whom a duty extends, however, to one who is a foreseeable plaintiff and only to cases where the probability of harm is foreseeabWhat’sat’s more, the Supreme Court will recognize a new duty only when the duty is consistent with public policy.

Under the traditional rule applying to the circumstances of this ca”e, “the owner of land is under no affirmative duty to remedy conditions of purely natural origin upon his l”nd.” Instead, the duty is on drivers”to “observe obstructions to view and to exercise reasonable care for their own safety and protect”on.”

The Restatement (Second) of Torts states the traditional rule as being that the possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the la’d. ‘Natural condition of the ‘and’ inclu”es “the natural growth of trees, weeds, and may be imposed on an urban landow”er “for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the high”ay.” The Restatement (Second) expresses no opinion on whether this exception should apply in rural areas.

sign’sgn’s obscured by a rainforeThat’sat’s fine with Kansas, as long as didn’tdn’t plant it …

Two Kansas cases from the 1920s addressed obstructions to view but established that public policy does not support imposing tort liability on landowners to correct natural conditions occurring entirely on their property that infringe on the visibility of an intersection of public highways. While the Court of Appeals found the cases irrelevant to its analysis in this case, the Supreme Court did not. In fact, the Supreme Court said, the prior decisions recognized Kansas public policy that obstructions caused by woodland or crops ought not to cause the abutting landowners to be liable.

Manley argued that the Supreme Court should depart from traditional Kansas law, and follow the Restatement (Third) of Torts. That rule would impose liabil”ty “for natural conditions on land that pose a risk of physical harm to persons or property not on the land… if the possessor knows of the risk or if the risk is obvi”us.”

The Restatement (Third) criticizes the use of foreseeability in a duty analysis as invading the function of the jury as fact-finder. The Supreme Court decided”to “leave for another day the decision whether to adopt other aspects of the Restatement (Third), in particular, whether we should abandon foreseeability as a consideration when analyzinperson’son’s duty to anot”er.”

Its reasoning was straightforward: it wo”ld “adhere to precedent unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from preced”nt.”

Here, the Supreme Court was not persuaded to abandon the traditional rule that a landowner owes no duty in the circumstances of this particular case, and thus to weigh into the question of whether Kansas should shift how courts determine a common-law duty. Drivers have a responsibility to drive with caution when conditions result in obstructed visibility. Plus, the traditional rule in premises liability is that landowners have no duty to protect against open and obvious dangers. Instead, individuals have a responsibility to protect themselves from such conditio”s. “These rules provide strong support for limiting liability under the circumstances of this c”se,” the Court rul”d, “because the active participants in the accident can take steps to avoid a collision given that drivers should drive with caution to protect themselves and others at intersections, especially those with decreased visibil”ty.”

Corn to the corners – and no clear sightline.

The Court noted t”at “in our state, tall crops and natural conditions often obstrucdriver’ser’s view at a rural intersection. And rural landowners often have many miles of property to maintain. Some of these considerations underlie the distinction between rural and urban landscapes recognized in both the Restatement (Second) and (Third) as influencing court decisi”ns.” Additionally, Kansas statutes confirm that public policy imposes no duty on landowners. Our Legislature has conferred responsibility for the care and maintenance of r”‘ s “‘for the safe passage of persons and property on various government entities… Kansas law recognthat izes landowners have some duty to maintain their property so that trees, plants, shrubs, or other obstructdo not ions crate no traffic hazard by obstructing the view of passing drivers. However, the responsibility for determining whether a traffic hazard exists falls to the secretary of transportation or local authority. The statute imposes a penalty only if a landowner fails to respond to one of thauthorities’ies’ noti”e.

“Had the Legislature wished to effect a different public policy than that articulated by this court and impose additional civil tort liability on the landow”er,” the Court reason”d, “it has had more than 90 years in which to do”so.”

To be sure, a different rule may be appropriate for urban areas. Or a different rule may be appropriate when natural growth on the property extends outside the bounds of the property. But the Court “as “not faced with those situations today. Here, the accident occurred in a location that is undisputedly rural. There is no indication any part of the trees or overgrowth extend outside the property bou”ds.”

The Court thus held that a landowner whose property abuts a rural intersection owes no duty to passing drivers to trim or remove trees or other vegetation on the property.

– Tom Root

MR. NATURAL

There was an era – back in a time when giants roamed the land – in which a landowner had no duty to protect anyone else from harm resulting from the natural condition of the land. The judicial thinking was that everyone took the land the way they found it. There’s a century-old oak on the place, and it dies? Well, trees grow, and then they die. If it happens to fall on old Zebediah’s cabin next door, that’s just one of those acts of God.

The concept made a certain amount of sense when the land was rural, and no one did much landscaping around the cabin. But as time passed, courts found themselves trying to determine whether that sweet gum that fell on the random horse-drawn wagon passing by had been planted by human agency or just had happened to grow there on its own. Time marched on, the horse gave way to a lot of horsepower, and courts abandoned the “natural condition” rule.  Instead, they simply held that a landowner has a duty of reasonable care over all of the conditions of his or her premises, no matter what their origin.

Samara – a botanical term for “whirligig.”

There were a few reasons for the courts’ change of heart. First, if a landowner had a duty to take reasonable care of his or her premises, there was no rational basis for limiting that duty to vegetation that had not been planted by the landowner or those who had owned the place before. After all, when we were kids, we used to break samaras off the backyard maple tree and use them in whirligig contests. Under the old standard, if one of the samaras we dropped during our game took root and grew into a magnificent sugar maple, our folks would have been responsible for the tree. If the wind dropped the same samara, and it took root without our help, the old rule would have absolved our parents of any liability if the tree decayed and then fell on the neighbor boy (an outcome that we, who had been long afflicted by the obnoxious kid next door, would have cheered).

Second, the times, they were a-changin’. America was becoming more urban, and progress demanded that people living in closer proximity to each other with more developed streets and highways assume more responsibility for injury to each other. Most parcels of property had become smaller – home plots in towns and cities rather than 40-acre and up farms – and the burden placed on landowners to inspect and maintain their premises became less even as the harm that their negligence could cause became greater. The utility and importance of modern roads and the cars and trucks that used them argued for a more responsible approach.

All of that leads to a case like today’s decision, an Indiana decision that asks the philosophical question: If a tree falls in the forest and hits a car, does it sound like a lawsuit?

That’s certainly the question Stan Valinet was pondering after a tree standing in his forest fell onto Ann Eskew’s car back in 1987.

Robert Frost admitted that “whose woods these are I do not know.”  But Stan Valinet knew.  The woods in Clay Township near 106th and Spring Mill Road were his, and – like most reasonably prudent absentee landowners – Mr. Valinet would occasionally drive through Clay Township to inspect his property. He especially admired a massive oak tree, almost two centuries old, growing about 28 feet from the edge of Spring Mill Road.

One dark and stormy December night, Ann Eskew was driving by this very tree when 60-mph winds blew the mighty oak onto her car, seriously injuring her. It turned out the tree had been dead for at least three years and had shown signs of decay for at least 8 years before that.

Even in 1991, the Indiana rule held that rural landowners were not liable for physical harm caused to others outside of the land by a natural condition of the land. Mr. Valinet argued that the oak tree had always been there, and its falling on Ms. Eskew – while regrettable – had nothing to do with him.

The Indiana Supreme Court ruled that, regardless of whether the old oak tree was a natural condition of Mr. Valinet’s land or not, he could be liable to Ms. Eskew if his land was located in an area with sufficient population density, and whether the seriousness of the danger is weighed against the ease with which Mr. Valinet could have prevented it. Finding the facts needed to determine the answers to these questions was a job for the jury.

Valinet v. Eskew, 574 N.E.2d 283 (Supreme Court of Indiana, 1991). Stanley Valinet owned wooded land in a residential area of Clay Township, Hamilton County, Indiana, near the intersection of 106th Street and Spring Mill Road. He lived in Indianapolis but testified he would occasionally drive through Clay Township to inspect his property.

Valinet’s land included a large oak tree, perhaps almost 200 years old, with a 48” diameter trunk. The tree stood 28 feet from Spring Mill Road. On December 15, 1987, Ann Eskew was driving by the property during a windstorm when the tree fell onto her car, seriously injuring her. It turned out that the tree had been dead for three years and had been showing visible signs of decay well before that.

Eskew sued. Valinet argued that the 200-year-old oak was a natural condition of the land, and he was not liable for natural conditions of the land. The jury found him liable to Eskew, and he appealed, first to the Court of Appeals (which agreed with the jury), and then to the Indiana Supreme Court.

Held: The Supreme Court decided that Indiana would follow the general statement of law set out in the Restatement of Law. Restatement (Second) of Torts § 363 provided that while a possessor of land would not be liable for physical harm caused to others outside of the land by a natural condition of the land, if the land is in an urban area, the possessor is liable to people “using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The Supreme Court acknowledged that the old rule had been no liability for natural conditions on land. That rule, however, had arisen at a time when the land was largely unsettled and the burden imposed on a landowner to inspect was thought to exceed the benefit to society of preventing possible harm to passersby. However, the Court observed, a line of cases had developed since then in which courts imposed a duty on landowners in more heavily populated areas to inspect trees to try to prevent their posing an unreasonable risk of harm to passing motorists. The rationale for imposing the duty on urban landowners is that the risk of harm to highway users is greater there, and the burden of inspection on landowners is lighter.

The Court agreed that the modern approach made more sense, but it underscored that whether the land was in an area of sufficient population density to invoke the rule requires a factual consideration of factors like land use and traffic patterns. Also, whether the landowner exercised reasonable care would require the jury to weigh the seriousness of the danger against how easily it could be prevented. The Court noted that a landowner need not continually inspect his or her property for natural dangers, but sometimes fulfilling the owner’s duty to passing motorists “might reasonably require periodic inspections to be sure that the premises do not endanger those lawfully on the highway.”

– Tom Root

THOSE DOG-GONE COVENANTS

More and more home developments deliver to their residents not just houses, but a particular ambiance, one which remains free of eyesores like sheds, clotheslines, and even colors of exterior trim and paint that are deemed outside the color scheme of the place. These restrictions are often contained in the deeds conveying ownership of the homes. And quite often, the restrictions begin to be violated before the ink is dry.

Many of the violations are slight, not worth the time of the neighbors or associations charged with enforcing the restrictions. But someone usually pushes things too far and then defends himself or herself in court by complaining that Joe Doaks or Jane Doe down the street violated the same restriction, too, and no one complained.

In today’s case, an Ohio dog trainer tries the same excuse when the homeowners’ association tries to shut down his obedience school.

It’s like complaining to a cop that everyone is speeding, making his act of stopping you somehow … well, unfair. Like President Carter told us once, “Life is unfair.” And so is selective enforcement. But that doesn’t mean that you can’t do it.

Here, the Court told Dick Marchus that what mattered wasn’t whether other people were getting away with violating the covenants. What mattered was whether the restriction had a “substantial value” that should be protected. Where substantial value could be found, equity will enforce a restrictive covenant. No matter who else is violating it.

The guy down the street is selling on eBay for a living? Once a day, he loads his pickup truck with small boxes and goes to the post office? There’s probably no “substantial value” to be served by enforcing the prohibition. But Mr. Marchus’s baying hounds? Customers and their masters were driving in and out all day long on the private road?  The other property owners were worried about wear and tear on the road, the congestion, and liability for accidents. Those concerns were legitimate.

The Court refused to let the neighborhood go to the dogs.

Rockwood Homeowners Assn. v. Marchus, 2007-Ohio-3012, 2007 Ohio App. LEXIS 2766, 2007 WL 1731621 (Ct. App. Lake Co., June 15, 2007). Rockwood Homeowners Association consists of the owners of ten individually owned tracts of land on Girdled Road in rural Lake County, Ohio. Each owner has a primary residence on the property. Rockwood Lane, a paved, private road, provides access to the residences and runs off Girdled Road.

The developers drafted specific land use restrictions, attached to each deed, intended to preserve the land’s rustic character while permitting property owners to operate a home-based business without detracting from the rural atmosphere. Section I(A) of the Declaration of Restrictions provides that “no commercial or institutional activity shall be conducted on these lots, which is not wholly contained within the residential dwellings or which causes damage to the private gravel drive by heavy vehicles.” The Homeowners Association Bylaws incorporated the restrictions.

Over the years, various owners operated home-based businesses from their Rockwood Estates residences, including a pest control business, a security systems business, a log home business and a tree maintenance business. In September 2001, one owner, Dick Marchus, built a 60′ x 80′ building to be used as a dog training facility. After it was done, his wife ran her dog training business in the new outbuilding, conducting one class on Monday and two classes per day from Tuesday through Saturday. Although some attendees arrived with two or three dogs, she limited commercial vehicle traffic to ten cars per class.

Almost immediately, the Association sought an injunction to keep Marchus from continuing the commercial activities from the outbuilding, on the grounds that the activity violated the covenant. The Marchuses answered and counterclaimed. At trial, the Association argued the Marchus’s business was in violation of the restrictions. Marchus admitted the activities were not contained within the residential covenant, but he argued the restrictions had been waived or abandoned by the Association’s failure to enforce them against past violations by other property/business owners. The trial court granted the injunction, and Marchus appealed.

Held:   The trial court’s injunction was affirmed. The Court of Appeals noted that restrictive covenants on the use of property are generally viewed with disfavor. However, this disfavor may be overcome by evidence of a plan or scheme into which the restrictions are incorporated and notice of that plan or scheme. A plan like the Rockwood one, designed to maintain the harmony and aesthetic balance of a community, will often be upheld where the restrictions are reasonable.

The evidence indicated the restriction was drafted to maintain the bucolic atmosphere of the development and prohibit increased traffic from entering and exiting the development. The Court said the restriction was uniform and applied to all property owners in the development. When the evidence was viewed as a whole, the Court said, it concluded the restrictions and the development to which they pertained were premised upon a general plan or scheme.

The evidence also showed that Marchus had notice of the restrictions. Consequently, the Court found that the restriction was valid and enforceable. As for waiver or abandonment, the Court said, the test was whether, under the circumstances, there remained a substantial value in such restriction which should be protected. Where there was a substantial value to the dominant estate remaining to be protected, equity will enforce a restrictive covenant.

     Even with the Marchus’ restricting classes to only ten vehicles (leading to dog carpools, no doubt), it was still too much for the neighbors …

Here, the Court found, various residents expressed concerns they held since Greta Marchus opened the business. Increased traffic created congestion and destroyed the development’s rural atmosphere. Because the residents were responsible for the upkeep and maintenance of their private drive, some worried about increased repair costs resulting from the wear and tear. Some were concerned about liability if any of the Marchuses’ customers happened to be injured on the private road. The Court found that the concerns expressed were legitimate and rationally related to the appellants’ violation of the covenant; thus, the restriction still had substantial value.

As for acquiescence, the evidence didn’t show that prior businesses operated anywhere but in the owners’ residences, which the restrictions permitted.

– Tom Root