Case of the Day – Friday, May 26, 2023

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HEIDI AND THE TERRIBLE, HORRIBLE, NO GOOD,
VERY BAD (WATCH OUT FOR THAT TREE!) DAY

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 to 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 essentially was 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., 44 Conn.L.Rptr. 58 (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 ensure 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

TNLBGray140407

And Now The News …

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Detroit, Michigan, News, May 25, 2023: Mich. agriculture officials find another infestation of bugs that damage hemlock trees

Michigan agricultural officials have spotted another infestation of a small bug that can affect the growth of hemlock trees and potentially kill them within 10 years. The Michigan Department of Agriculture and Rural Development said Washtenaw County has become the seventh county in the state with confirmed infestation of hemlock woolly adelgids. Hemlock woolly adelgids are small insects with long, siphoning mouths that they use to extract sap from hemlock trees, weakening needles, shoots, and branches over time and slowing tree growth, according to the Michigan Department of Agriculture and Rural Development. The bugs were spotted earlier this month in the Nichols Arboretum in Ann Arbor…

Science News, May 25, 2023: Soil microbes that survived tough climates can help young trees do the same

Microbial stress can be a boon for young trees. Saplings grown in soil microbes that have experienced drought, cold or heat are more likely to survive when faced with those same conditions, researchers report in the May 26 Science. And follow-up tests suggest that the microbes’ protective relationship with trees may linger beyond initial planting. The team’s findings could aid massive tree planting efforts by giving new saplings the best chance of survival over the long run, says Ian Sanders, a plant and fungal ecologist at the University of Lausanne in Switzerland. “If you can control which microbes are put onto tree saplings in a nursery, you can probably help to determine whether they’re going to survive or not when they’re transplanted to the field.” As climate change pushes global temperatures ever higher, many species must either adapt to new conditions or follow their ideal climate to new places (SN: 1/25/23). While forests’ ranges have changed as Earth’s climate has warmed and cooled over hundreds of millions of years, the pace of current climate change is too fast for trees to keep up (SN: 4/1/20)…

Seattle, Washington, Times, May 25, 2023: Centuries-old cotton tree, a national symbol for decades, felled by storm in Sierra Leone

Torrential rains in Sierra Leone’s capital felled the centuries-old Cotton Tree, a national treasure whose loss has left “a gap” in people’s hearts, the country’s President Julius Maada Bio said Thursday. “There is no stronger symbol of our national story than the Cotton Tree, a physical embodiment of where we come from as a country,” Bio told the Associated Press. “Nothing in nature lasts forever, so our challenge is to rekindle, nurture, and develop that powerful African spirit for so long represented,.’ Standing 70 meters tall and 15 meters wide, the roughly 400 year-old tree has been Sierra Leone’s national symbol for decades. It has appeared on bank notes, woven into lullabies and visited by royalty, such as Queen Elizabeth the II, to mark the country’s independence in 1961, according to a statement by Zebek International, a press agency working with Sierra Leone’s government. While the tree had withstood damage throughout the years, including a lightning strike that has left it partially scorched, Wednesday’s storm left nothing of the tree but a stump…

Detroit, Michigan, WDIV-TV, May 25, 2023: Complaint had been filed against Huron Township developer who was cutting down trees without permit

State officials did not address a complaint a resident had filed against a developer in Huron Township who was cutting down trees in a wetland area. People who live in the New Boston area have said the construction project is destroying the reason they purchased their homes in the first place — the trees. The developer said it has been clear for years about its plans to build 43 more homes there and they said they had all the permits to do so. When Local 4 checked with the state last week to confirm that Infinity Homes had all the permits, the state revealed they did not have a final issued permit to chop down the trees. Infinity Homes has acknowledged the violation notice and stopped working. According to state officials, residents got a restraining order from a judge to stop the work. Last week, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) issued a notice finding Infinity Homes in violation of Michigan wetland law — citing unauthorized activity including tree clearing and soil disturbance. EGLE said part of the area where Infinity Homes cut down trees and moved dirt around is a designated wetland. EGLE told Local 4 that residents should have filed a complaint, then the state could have acted. Local 4 Investigators have learned that a resident had filed a complaint and the state did not address it…

Seattle, Washington, Times, May 24, 2023: Seattle City Council passes tree ordinance after years of debate | The Seattle Times

Seattle City Council passed a sweeping tree ordinance Tuesday that will regulate and protect tens of thousands more trees and create new requirements for replacing those that are cut down. After more than an hour of public comment with arborists, residents and builders testifying for and against the bill, Seattle council members passed the ordinance 6-1. Councilmember Alex Pedersen voted against it. Several council members said while the ordinance is not perfect, the bill is better than the current code and that they intend to keep working to improve the law before it is implemented in 60 days. “This is a very hard vote for me,” said Councilmember Tammy Morales, saying many of her constituents feel they did not get a sufficient chance to weigh in. Though council members disagree on whether the tree ordinance sufficiently protects trees versus regulating them, the new ordinance will affect between 88,100 and 175,000 trees, far more than the 17,700 protected under the current code…

Vancouver, British Columbia, May 24, 2023: Have you seen the cottonwood killer? Kelowna RCMP seeks witnesses after deliberate poisoning of mature tree

Mac Logan is getting tired of seeing mature trees being intentionally poisoned in Kelowna, B.C., and is now asking for witnesses to come forward after a third such incident in the city in 12 months. Logan, infrastructure manager for the City of Kelowna, says an RCMP investigation has been opened after a mature cottonwood in a small city park was deliberately vandalized. The 18-metre-tall tree, located at 1055 Sunset Dr., had more than two dozen drill holes in it that Logan said were filled with herbicide. “We don’t believe it’s going to survive,” said Logan of the tree. City arborists expect the tree, which is the largest in the park and provides ample shade in summer months, will be completely dead within weeks. It’s not the first time of late that Logan and his colleagues have seen a tree poisoned this way. Last August, a large elm located at 900 Manhattan Dr., along with several aspens in the Kuipers Peak neighbourhood, were killed using the same technique…

Case of the Day – Thursday, May 25, 2023

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A TRAGEDY WITHOUT COMPENSATION

Nickel Plate Beach on a warm but windy Memorial Day.

Nickel Plate Beach on a hot but windy summer day.

We hear the opening gun of summer this weekend (not the astronomical kind, but the vacation-from-school and lazy-days and, thankfully, the-pandemic’s-over kinds). I plan to some time on Sunday 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.

Afterward, 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, 2007-Ohio-6370, 2007 Ohio App. LEXIS 5589, 2007 WL 4216133 (Ohio App. Erie Co., 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.

Held: 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 importantly, 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

TNLBGray140407

Case of the Day – Wednesday, May 24, 2023

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YOU’RE ON YOUR OWN, PAL

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 your Bugatti Chiron 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).

With the first meteorological day of summer still a week away (and 83º outside today), 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, and 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 some words 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 buy 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

TNLBGray140407

Case of the Day – Tuesday, May 23, 2023

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WE DON’T KNOW NUTHIN’

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 the 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 the city’s tree workers couldn’t find the business end of a chainsaw 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 where 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, 2007 N.J. Super. Unpub. LEXIS 1551, 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 the 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 New Jersey 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 a 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 Santiagos 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 a 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
TNLBGray140407

Case of the Day – Monday, May 22, 2023

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SPIDERS AND SNAKES

spiders150520Jim Stafford and Greg Barnett have something in common — neither one likes spiders or snakes. In Greg’s case, he doesn’t think much of Southern California Edison, either.

The utility had an easement along one side of his yard, where he and his neighbor had parallel fences. The easement was to maintain power lines, but when Greg cleaned up some debris between the fences, a big ol’ spider bit him. Arachnophobia reared its ugly head, followed close on by a lawsuit.

Greg said Edison had a duty to maintain its easement, and it should be liable to him for the spider bite. The trial court disagreed, and the Court of Appeals concurred. It found Greg’s argument, like the spider of waterspout fame, just an “itsy bitsy” bit light on common sense. The easement was a kind known as an easement “in gross,” meaning that it was limited, in this case to activities related to delivering electricity. Edison could (and had) trimmed and cut down trees that interfered with its lines, but it had no duty to Barnett to do things unrelated to the right for which the easement was granted. Such as killing spiders.

itsybitsy150520The Court rightly concluded that to make the utility liable would be a major burden on a public utility given the thousands of miles of easement territory the company had. Nothing except the fact that the cleanup job bites kept Barnett from cleaning up his own land.

Barnett v. Southern California Edison Co., 2007 Cal. App. Unpub. LEXIS 7648, 2007 WL 2751874 (Cal.App. 4 Dist., Sept. 21. 2007). Gregory J. Barnett owned a place on Hayes Avenue. Edison held a six-foot-wide easement on the west side of the property to “construct, lay, install, use, maintain, alter, add to, repair, replace, inspect and/or remove, at any time and from time to time, aerial and underground electric lines and communication lines, consisting of poles, guys and anchors, crossarms, wires, cables, conduits, manholes, vaults, pull boxes, markers[,] and other fixtures and appliances, for conveying electric energy to be used for light, heat, power, telephone[,] and/or other related uses …”

Barnett’s neighbor built a fence along the western boundary separating Barnett’s property from the neighbor’s, and Barnett had installed his own fence which overlapped the neighbor’s fence. There was a small gap of land between the two fences measuring two feet wide and four feet long. The gap was located within Edison’s easement. One day, Barnett was bitten by a spider while cleaning the area between the two fences of small pieces of concrete, branches, leaves, and old paper trash. He said he was trying “to abate the infestation of rats, spiders, and other vermin …” that Edison had ignored.

Barnett claimed Edison told him that he could not close the gap or take other remedial measures because Edison’s lineworkers needed access to the utility pole located between the two fences. Barnett sued Edison for negligence and premises liability, arguing it had the duty to clean up the space and eradicate the spiders.

Edison argued it owed no duty of care to prevent the spider bite. Barnett argued Edison exerted exclusive control over the area and, therefore, had a duty to maintain the premises in a safe condition. The trial court agreed that Barnett could not establish the duty element of his cause of action for negligence. Instead, there was merely a nonexclusive easement for the maintenance of electric facilities that burdened Barnett’s property. Barnett’s alleged injury from a spider bite was unconnected to Edison’s use of the property pursuant to its easement. Therefore, as a matter of law, Edison did not owe Barnett a duty of care to prevent spiders from nesting behind his fence. Barnett appealed.

socallines150520Held: The easement did not create a duty for Edison toward Barnett. An easement such as this one – called an easement in gross – is not attached to any particular land as a dominant tenement but rather belongs to a person individually. Here, it is undisputed there was just a parcel of property owned exclusively by Barnett. Edison held an easement in gross, limited to the purpose of conveying electricity to its customers. Edison owed no general duty of care for all purposes on its easement in gross, or more specifically, any duty to rid the area of spiders, rats, and other vermin.

The easement owner’s possessory right is limited to the use of the land granted by the easement. Accordingly, an easement holder has a duty to act reasonably under the circumstances in its use of the servient estate, but the duty does not extend beyond the scope of that use. Barnett didn’t cite a single case where an easement holder was held to have a duty to guard against a risk of harm unrelated to the scope of the interest represented by the easement. The Court said that to impose such an unlimited duty “would impose a tremendous burden on Edison, its customers, and all other utilities in California.

Barnett argued he presented evidence Edison exerted exclusive control over the easement property and therefore assumed the duty of care typically held by a landowner. The Court held he had failed to provide relevant admissible evidence to support his claims. Although Barnett claimed Edison had once removed a rat-infested palm tree, he admitted he had told Edison the palm tree was growing up into Edison’s lines, and Edison had an obligation to maintain a certain clearance between its trees and electric lines. Trimming trees and removing trees were part of the express terms of its easement right. The eradication of the rats was merely incidental.

– Tom Root
TNLBGray140407

Case of the Day – Friday, May 19, 2023

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SHOW ME WHERE IT HURTS

king160615At common law, it was always good to be king. Because of a cool crown and a nice castle to live in, the king could not be sued by his subjects without his permission. This concept is known as “sovereign immunity.” Sadly, the concept never extended to a private citizen. This is hardly surprising. A sovereign usually takes care of itself, not its subjects. However, where social utility calls for it, states have extended immunity to the common man and woman.

The most obvious of these kinds of statutes are “Good Samaritan” laws in the United States and Canada, legislation that shields from liability those who choose to aid the injured or ill. The laws are intended to reduce bystanders’ hesitation to assist out of fear of being sued for unintentional injury or wrongful death.

Of particular interest to us is the class of immunity laws known as recreational user statutes. Recreational user statutes, although they vary from state to state, generally create tort immunity for landowners who open their land to the public free of charge for recreational use. If you let people wander your woods, you weren’t liable if they step in a woodchuck hole. The statutes serve a public purpose. If you had to shell out every time Bertha Birdwatcher tripped over an exposed root, then you would respond by posting your land to prohibit hikers, campers and boaters.

The public benefits from getting back to nature are obvious. In fact, in many cases, the recreational use statutes apply to governments as well, such as the nice little park a small town maintains around the municipal reservoir. Recreational use acts are intended to encourage landowners to offer free use of their land to the public for recreational purposes in order to preserve and utilize the state’s natural resources.

The foregoing has not rid us of creative lawyers. We all dislike crafty litigators (at least, until we need one ourselves). Today’s case – which is, unfortunately, very timely – concerns a little girl who was camping with her family in a California state park. During the night, a tree 60 feet from her campsite fell, hitting the family’s tent and leaving the 3-year-old with severe brain damage. A sad state of affairs to be sure, one that makes the plaintiff a very sympathetic party.

The family’s crafty litigator figured out that the California recreational use statute only applied to unimproved land. The tree was on unimproved land, but the campsite it fell on was improved. The plaintiff’s attorney argued that because the injury occurred on improved land, California was liable for little Alana’s serious injuries.

angels160615Much of the decision turned on whether one measures “unimproved area” from where the defect is located, or where the injury occurs. Remember President Clinton? It depends on what the meaning of “is” is. Often on the heads of such semantic pins an entire case can turn. Here, it did not matter whether Alana was on improved property when she was hurt. It mattered whether the tree that fell was standing on improved property because it toppled.

Alana M. v. State of California, 245 Cal. App. 4th 1482 (Ct.App. Calif. 1st Div., 2016).  Three-year-old Alana M. was camping with her family in Portola Redwoods State Park, which is owned by the State and is located in an existing forest in the Santa Cruz Mountains.

As Alana’s family slept in their tent, a tanoak tree fell directly on the campsite and struck Alana on her head, resulting in brain damage. The tree was growing on a hillside about 60 feet away from the Campsite. Tanoak trees are indigenous to the area. The nearest man-made object to the tree, before it fell, was a picnic table at Campsite 42, which was about 30 feet away. The tree broke about three feet from the ground.

The State had built improvements and amenities in the Park, including roads, campsites, hiking trails, a visitor center, and various other buildings. The amenities are scattered throughout the park, occupying about 5 percent of the parkland.

Tanoak tree

Tanoak tree

Alana sued the State, asserting claims of premise liability under Government Code § 815.2, and dangerous condition of public property under Government Code § 835.2. She said the tree that fell had rot, a cavity, and a hatchet wound and it “was overextended with poor taper.” Alana alleged the State negligently failed to properly maintain Campsite 41 “and its environs” and negligently failed to warn of the danger of falling trees and, further, the State knew or should have known of the structural defects of the tree that fell and injured her.

The State argued it was immune from liability under Government Code § 831.2 because Alana was injured by a natural condition of unimproved public property. The State pointed to Alana’s concession that the fallen tree “was an object of nature.” Alana maintained there was a dispute of fact as to whether the tree that injured her was on improved or unimproved public property. She relied on the Department’s Tree Hazard Program, which established a process for identifying and removing dangerous trees from developed areas. In Portola Redwood State Park, the Tree Hazard Program applied to all the trees in the campgrounds, including the tree that fell. Under the program, the campground was subject to biannual tree inspections, and periodically hazardous trees were removed. Alana cited language from a Department operations manual that said the Tree Hazard Program applied “solely within the developed areas of all parks operated by the Department.” The publication thus raised a question of whether the entire area of the campground, including the tree that injured her, was “improved public property” outside the ambit of § 831.2.

The trial court granted summary judgment to the State, and Alana appealed.

Held: Alana failed to raise an issue of fact as to whether the tree was on “unimproved public property” for purposes of Government Code § 831.2, and the State’s “natural condition immunity” applied.

Government Code § 831.2, commonly referred to as the “natural condition immunity,” provides that “[n]either a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.” The statute provides for absolute immunity, intending “to encourage public entities to open their property for public recreational use” by providing immunity “because the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.” The natural condition immunity applies even “where the public entity had knowledge of a dangerous condition which amounted to a hidden trap,” and even “where a governmental entity voluntarily assumes a protective service” – such as the Department’s Tree Hazard Program – that induces “public reliance, and through the negligent performance of that protective service concurrently causes a member of the public to be victimized by a dangerous, latent, and natural condition.”

It is also the rule that “improvement of a portion of a park area does not remove the immunity from the unimproved areas.” Otherwise, the Court said, the immunity of an entire park area would be wiped out even if only a small portion was improved.

Finally, because the phrase “of unimproved public property” in § 831.2 modifies the “natural condition” that caused the injury, the relevant issue for determining whether the immunity applies is the character (improved or unimproved) of the property at the location of the natural condition, not at the location of the injury.

tent160615Alana did not dispute the tree that injured her was a natural condition under § 831.2. Portola Redwoods State Park is an existing natural forest and tanoaks are indigenous. There is no evidence of any artificial change in the tree’s condition nor any evidence of artificial improvements to the tree. Alana argued there was a causal link between the improvements to the campsites and the dangerousness of the tree because “the campsites increased the likelihood that humans would be present when a tree fell in the area and hence increased the likelihood that one of them might be injured.” But, the Court said, the public is always more likely to visit public lands with amenities such as parking, informational signs and maps, toilets, lifeguards, fire rings, hiking trails, picnic tables, campsites, and the like, than similar public lands with no amenities. Such amenities do not abrogate the natural condition immunity for areas that are not improved. If Alana’s argument were to prevail, this would seriously thwart accessibility and enjoyment of public lands by discouraging the construction of such improvements as restrooms, fire rings, campsites, entrance gates, parking areas, and maintenance buildings.

California’s natural forests provide great natural beauty and recreational opportunities along with natural hazards. Alana points to “evidence that all trees eventually fail” and “the simple fact that the tree that fell was 86 feet tall and only 60 feet from Campsite 41” as evidence the tree that injured her was on improved property. This evidence, however, only shows there is risk associated with spending time among the trees of Portola Redwoods State Park; it does not show the tree that fell was on improved property. The Court said, “We do not believe the State became a guarantor of public safety by providing campsites.”

Alana argued the fact the tree was subject to the Tree Hazard Program “leads ineluctably to the inference that the [Department] considered that tree to be standing on improved property within the meaning of § 831.2.” Even if this were so, the Court said, Alana offered no authority for the proposition a defendant’s belief regarding a legal conclusion creates a triable issue on the matter in the absence of any evidence supporting that legal conclusion. Here, there is no evidence raising a triable issue of fact as to whether (1) there was a physical change in the condition of the property where the tree grew or (2) an improvement or human conduct contributed to the danger of the tree. The Department’s belief that the tree was on improved property is not competent evidence on either of these issues.

Essentially, the Court concluded, Alana’s position is she was entitled to a campsite in the forest safe from falling trees, but this “is exactly the type of complaint § 831.2 was designed to protect public entities against.”

– Tom Root

TNLBGray