Case of the Day – Thursday, May 19, 2022

MOVING THE CHEESE

There’s a great old adage in the law that goes something like “When your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on the law and the facts, pound on the table.” Today’s case is one in which an inventive lawyer tried just that, albeit without much result.

We’ve worked a lot with the old Restatement rule, now on its way out, that a landowner is not liable for physical harm caused to others outside of the land by a natural condition of the land. That rule, when it was a rule, came with a proviso. If the person possessing the land was in an urban area, he or she was liable for physical harm resulting from failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

In today’s case, a tree in the lush tropical paradise fell onto a road and crushed a ’77 Mercedes – a pretty nice ride – leaving the plaintiff’s lawyer with a problem. The evidence showed the collapsed tree was rotten, all right, but that none of the decay was visible from the exterior. So arguing that the tree’s owner should have inspected the tree was a loser, because even if he had done so, the owner would not have seen the decay and recognized the danger.

The plaintiff’s lawyer recognized that to win this one, he’d have to move the cheese on the defendant. So he quickly rolled out a second argument: Even if the common law (and more specifically here, the Restatement on Torts) did not impose liability without fault (that is, strict liability), the court should impose it here simply as a matter of public policy. “Public policy” is a fancy way of saying something should or should not be done because… well, because it is just common sense. So, the argument went, it did not matter if tree owner Al Gerard followed the rules as they existed now, because the rules needed to be changed retroactively, all the way back to the day the tree fell.

It’s sound public policy, the plaintiff’s lawyer argued, that is, good common sense.

“Common sense?” the Court asked incredulously. If urban owners are strictly liable for any tree that falls, it responded, then their reaction to the rule will simply be to cut down all of their trees. And where would be then? Sorry about the Mercedes, the Court said, but we’d be even sorrier about the trees.

Marrero v. Gerard, Civil No. 249/1989 (Terr.Ct. V.I., Dec. 12, 1989) 24 V.I. 275. Vic Marrero was driving his Mercedes along the East End Road in Estate St. Peters, Virgin Islands. Suddenly a tree stood on property owned by Al Gerard fell on Vic’s car. Vic claimed the car was damaged (not hard to believe) as was his psyche (harder to believe).

Norm Nielsen, who was Al’s neighbor and worked with Vic, was first on the scene. The base of the tree was inside Al’s fence, but the rest was on the road. Norm said the tree was “dry” where it broke off, “kind of rotten but green on top.” The evidence, which included photos taken by the traumatized Vic, failed to establish that a visual inspection of the tree would have disclosed that it was rotten at its base and in danger of toppling.

Held: The Court held that the facts did not show Al to be negligent, because he appeared to have no reason to know that the tree was unstable and would fall.

Vic, however, argued that even if Al was not negligent, he should be held strictly liable for any damage the caused. Vic cited the Restatement of Torts (Second), which provided at section 363 that:

(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons 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.

Vic relied on subsection 2, arguing that Al – owning trees in an urban setting – had a duty to Vic to inspect the trees. The Court ruled that whether the property on which the tree was located was urban or rural might be debatable but ultimately was irrelevant. Even if the urban standard applied, the Court said, and even if Al had adhered to the standard, “the weakened condition of the tree was not apparent upon a visual inspection, so that it matters [not whether the area was urban or rural. Perhaps a core sampling of the tree would have disclosed the problem, but such an effort, particularly when weighed against the likely risk, is far too onerous a burden to place upon a landowner.”

The Court held that the Restatement did not impose strict liability, that is, liability without fault, in circumstances like these. All Sec. 362(2) does it to apply a more specific standard of care to an urban landowner, but still within a negligence realm.

Unfazed, Vic argued that the Court should apply its own strict liability standard to this case, as a matter of public policy. The Court demurred, saying that in its view sound public policy was reflected the Restatement’s standard. The Court said that a landowner should have the duty to inspect for, discover and remedy patently hazardous natural conditions on his or her property that may cause harm to others outside the land. But where the decay is internal, and therefore not discoverable upon reasonable inspection, to “impose a rule of strict liability would be to declare, in effect, that any tree which is large enough to fall over the boundary of one’s land will subject its owner to liability in the event that a hidden weakness causes it to topple and cause damages off the land.” That would just lead prudent landowners to cut down their trees, the Court concluded, “thereby accelerating the already lamentable deforestation of the territory.”

The Court agreed that the community should be protected from reasonably foreseeable dangers, but the community – both local and worldwide – “also has a compelling interest in the protection and preservation of the environment. The same concern and sensitivity that we are just beginning to bring to the massive problem of the destruction of the Amazon rainforest, for example, should also apply to the relatively minute and particular circumstances of this case. No reasonable gain would be derived from adopting a rule of strict liability here, particularly when weighed against the potential ecological and aesthetic implications of such a decision.”

– Tom Root

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And Now The News …


Portland, Oregon, The Oregonian, May 18, 2022: Mother of man crushed to death by tree limb in 2020 sues Portland for $2 million

A wrongful death lawsuit claims Portland failed to properly prune a towering oak tree that fatally crushed a man near the border of Powell Park in 2020. Jonathan D. Nichols, 45, was inside a van parked on Southeast 22nd Avenue when a thick tree branch suddenly cracked and fell onto the van, killing Nichols and injuring another person just before 9 a.m. June 25, 2020, according to the suit and first responders. Nichols’ mother, Pamela S. Nichols of Boise, seeks $2 million from the city of Portland for failing to trim the 93-foot-tall red oak, which was part of the city’s heritage tree program. The “unbalanced” tree branch extended beyond the natural shape of the canopy, causing it to splinter due to “excessive end weight,” according to the lawsuit, filed in late March in Multnomah County Circuit Court. “The city knew or should have known that trees at Powell Park, including the red oak, constituted a hazardous condition,” the suit says, noting that a limb on another heritage oak in the park fell on an unspecified date before Jonathan Nichols’ death…

Minneapolis, Minnesota, WCCO-TV, May 16, 2022: Good Question: How Do Trees Know When To Bloom?

In a matter of days, we’ve gone from a cold spring to one that’s bursting with warmth and color. That had us wondering: How do trees know when to bloom? And did it take longer than usual this year? Good Question. Jeff Wagner explains why nature follows its own schedule and not ours. From the edge of the Mississippi River to parks and yards, another sign that spring has sprung hangs from above like a colorful canopy. “It’s so much more green and everything’s blooming,” said Anna Doolittle, a student at St. Thomas University as she walked with a friend along a trail near the river. “It’s crazy the difference.” “When they get what they need, they’ll leaf out and they’ll bloom,” said Val Cervenka, forest health program coordinator at the Minnesota Department of Natural Resources. How do trees know when to bloom? “It depends on the tree…

Syracuse, New York, WSYR-TV, May 18, 2022: Gas prices impacting tree service and lawn care businesses

Joshua Lashomb owns Josh’s Tree and Landscaping out of Liverpool, and he says he’s shelling out more money because of gas prices. As of Wednesday May 18, the average price for a gallon of gas in Onondaga County was $4.79 according to AAA. Lashomb said he’s paying over $2,500.00 per week to fill up all of his equipment, when in 2021 he was paying around $1,500.00 per week. “Interesting for sure, adapting, adjusting to either you know a shortage, gas/diesel being crazy expensive,” said Lashomb. He said he’s had to make some changes. “So instead of leaving that chipper on for instance, we’ll leave it on idle and we’ll shut it off a lot.” He says it help saves them on gas. Lashomb told NewsChannel 9 he’s charging, on average, around $100.00 more per job to help cover the costs. “Most customers this year when they got their renewal letters for lawn mowing they completely understood. We sent a fuel letter out saying if fuel reached over $4.00 a gallon you know prices will be x-amount…”

Martha Stewart Living, May 18, 2022: How to Grow and Care for Flowering Cherry Trees—Plus, the Prettiest Varieties to Plant in Your Yard

Flowering cherry trees are some of the common tree species you’ll find in the United States. The ones that put on a show everywhere from Seattle to Boston, are cultivars of popular Southeast Asian natives, which were crossed together hundreds of years ago. “Japan famously gifted [some] to Washington, D.C., in the early 1900s,” says Blake Watkins, the Operations Partner at Monster Tree Service. Since these show-stopping beauties, which break into blossom at the start of spring, are such a joy to behold, you’re likely wondering how to introduce them to your own yard. Here, Watkins explains how to grow and care for this tree type, which blooms all across the United States. Flowering cultivars are grafted, says Watkins, and their root stocks can be large and aggressive despite the tree’s small stature. This is why it is important to “use caution when planting near hardscapes,” like a driveway or sidewalk, he explains; cherry trees’ root systems can compromise their integrity. He suggests triple-checking the planting directions for your specific tree, since each variety has its own special needs—but as a general rule of thumb, they should be planted 20 to 40 feet apart in a hole that is as deep as the root ball and twice as wide…

USA Today, May 16, 2022: ‘This is our forest’: Climate change means uncertain future for maple trees, syrup season

For centuries, the Abenaki people of the northeastern U.S. and Canada looked at maple sap as a gift from their creator, arriving at a time just before spring when their ancestors’ food reserves were low. But the sweet, amber syrup and the people who produce it today face an uncertain future. The continent’s iconic sugar maple trees — revered for their sap and fall colors — can’t escape the changing climate. Rising temperatures affect the maple trees, with the warmer climate bringing more weather extremes, an earlier sap flow, shorter sugaring seasons and invasive insects. And some believe it may get too hot in parts of the northeastern U.S. for the sugar bushes, as the Abenaki call them, to remain where they’ve stood for centuries. When you add drought and disease, “you’re throwing multiple threats at these tree species, and they’re dropping out of the forest and weakening entire ecosystems,” said Andy Finton, landscape conservation director for The Nature Conservancy in Massachusetts…

Phys.org., May 12, 2022: What we’re still learning about how trees grow

What will happen to the world’s forests in a warming world? Will increased atmospheric carbon dioxide help trees grow? Or will extremes in temperature and precipitation hold growth back? That all depends on whether tree growth is more limited by the amount of photosynthesis or by the environmental conditions that affect tree cell growth—a fundamental question in tree biology, and one for which the answer wasn’t well understood, until now. A study led by University of Utah researchers, with an international team of collaborators, finds that tree growth does not seem to be generally limited by photosynthesis but rather by cell growth. This suggests that we need to rethink the way we forecast forest growth in a changing climate, and that forests in the future may not be able to absorb as much carbon from the atmosphere as we thought…

Phoenix, Arizona, Republic, May 13, 2022: How does Arizona stop a catastrophic wildfire? The answer lies in low-value trees

Arizona’s early start to the wildfire season is just the latest example of suffering the consequences of the 20th century strategy that suppressed blazes and let forests grow abnormally dense. Add historic drought, extreme heat and the results are predictable. Yet it’s not too late to make northern Arizona’s forests more resilient and resistant to fire. Doing so also brings the added benefit of increasing water supplies and battling climate change. Efforts are under way. A public-private partnership launched the Four Forest Restoration Initiative, or 4FRI, with a goal of restoring 2.4 million acres of national forest land. The program, for a variety of reasons, has never come close to reaching its annual goals. Work by The Nature Conservancy in partnership with industry and the U.S. Forest Service has identified a suite of business practices and innovative efficiencies that may allow the initiative to achieve its potential and make efficient use of new federal funding…

New Haven, Connecticut, Register, May 15, 2022: Opinion: State government must protect our trees

Gov. Ned Lamont is taking many good steps to lower Connecticut’s greenhouse gas emissions, making the state more environmentally resilient to climate change. Now it’s time for the governor to take action to protect our trees, our strongest natural allies in our efforts to maintain biodiversity and slow climate change. Perhaps you’ve noticed all the work removing trees along parts of the Wilbur Cross Parkway? We have, and we don’t understand it. Both the Wilbur Cross and the Merritt parkways were conceived as linear parks, beautiful places for drivers. In addition to beauty, the trees and shrubs along those roads — and many others in our state — provide essential benefits. Trees and shrubs help calm drivers, reducing road rage. Properly planted, they can provide protection for vehicles that leave the road. They can help with sun glare, reduce the road noise in nearby neighborhoods, and dramatically lower the air and surface temperature on the road…

Fremont, Ohio, News-Messenger, May 16, 2022: Today is: Love a Tree Day

Trees are important to the existence and diversity of life on Earth, and to maintaining the Earth’s ecology. Their root systems store carbon dioxide, move water, and produce oxygen. Trees hold stream and river banks, help with erosion control, conserve water, and prevent floods. The organic matter of soil is made from remnants of trees, which recycle nutrients such as nitrogen, carbon, and oxygen. On top of this, trees give us shade. With all these benefits, what’s not to love about them? Trees may be pteridophytes such as tree ferns, gymnosperms such as conifers, and angiosperms, which are flowering plants…

Los Angeles, California, Times, May 13, 2022: Heed the warnings of this palm tree, a 200-year-old drought survivor

About 200 years ago, a palm tree was planted in downtown Los Angeles. The fan palm was originally from the Southern California desert, a newcomer to the city like so many who would arrive later. And like so many who settled here, this young migrant prospered while adapting to the changing times. It grew up as humble landscaping for a home on San Pedro Street in what’s now Little Tokyo, while Los Angeles transitioned from Spanish to Mexican to American rule. Its quick growth and ample top earned it fame as the dusty pueblo turned into a boomtown…

Minneapolis, Minnesota, WCCO-TV, May 13, 2022: Maple Grove Launches 20-Year Plan To Save Ash Trees

A Minnesota city is getting aggressive in saving its trees. In Maple Grove, a 20-year plan is now in place to fight a deadly invasive species. What once was a great ash tree is now a stump in front of Jim Erdmann’s home. “I was ecstatic because I get my yard back,” he said. Erdmann wanting it gone wasn’t why the city of Maple Grove cut it down last fall. “They confirmed that it was infested,” he said. Infested with emerald ash borer, a beetle species that kills ash trees. “The trees here don’t have any sort of natural resistance so it quickly builds up in numbers and frankly devastates trees in metro areas,” municipal consulting arborist Ryan Spencer. Spencer says almost one in five trees in the Twin Cities metro are ash trees, and thus susceptible to the deadly EAB…

Chicago, Illinois, Tribune, May 14, 2022: Use trunk flare to determine how deep to plant a new tree

Q: My neighbor told me my tree was planted too deeply. How do I determine the proper planting depth?
A: Trees are often planted too deep by homeowners and professionals, so it is a good idea to understand how to position a new tree at the proper depth. Recently planted trees that resemble telephone poles coming out of the ground are probably planted too deep. Generally, this will not cause problems in the early years, but it can be a major factor in the decline or even death of the tree in the future. Look at the base of the tree where it meets the ground to determine if your tree is at the proper depth. Mulch should be pulled a couple inches away from the base of the tree. The majority of the roots will develop in the top 12 to 18 inches of soil, though this varies depending on the type of tree and garden soil. The tree’s root system will develop at a shallower depth in heavy clay soils versus better-drained loamy or sandy soils…

Eurekalert, May 12, 2022: Climate change increases risks of tree death

Planting a tree seems like a generally good thing to do for the environment. Trees, after all, take in carbon dioxide, offsetting some of the emissions that contribute to climate change. But all of that carbon in trees and forests worldwide could be thrown back into the atmosphere again if the trees burn up in a forest fire. Trees also stop scrubbing carbon dioxide from the air if they die due to drought or insect damage. The likelihood of those threats impacting forests is increasing nationwide, according to new research in Ecology Letters, making relying on forests to soak up carbon emissions a much riskier prospect. “U.S. forests could look dramatically different by the end of the century,” says William Anderegg, study lead author and associate professor in the University of Utah School of Biological Sciences. “More severe and frequent fires and disturbances have huge impacts on our landscapes. We are likely to lose forests from some areas in the Western U.S. due to these disturbances, but much of this depends on how quickly we tackle climate change…”

Allentown, Pennsylvania, WFMZ-TV, May 12, 2022: ‘X’ marks the spot: Township ordinance requires residents cut down trees

If you’ve taken a drive through Hereford Township, Berks County recently, you may have noticed that “X” marks a lot of spots. “I had no idea what it was,” said resident John Yanan. “I had to find out. It looked like graffiti all over the roads.” The township marked trees that residents are to have taken down, on their dime. It’s part of township ordinance number 2021-01, on the county website, which states residents must “….cut and remove trees if the condition of trees unreasonably interferes with the health safety and welfare of the public…” “My neighbor’s driveway had three trees marked 80 feet up his driveway,” said Matt Ferdock. “I have trees sixty feet off the road that have been marked.” Residents aren’t pleased…

Bangor, Maine, Daily News, May 12, 2022: Browntail moths are expected to terrorize Maine again if we don’t get more rain

Bad news for Mainers: It’s likely to be another bad season for browntail moths. While Mainers have been enjoying picturesque, sunny spring weather in recent weeks, it’s not the type of weather that will help reduce browntail moth caterpillar populations ― and the tree defoliation and rashes they cause ― in coming months. Forest insect experts predict that this year’s browntail moth conditions will be as bad as last year ― the worst Maine has ever experienced ― unless more rain falls in the next month and a half to help bolster the spread of diseases that kill the caterpillars. Without wet weather, folks in areas that have had high populations of browntail moths in recent years ― especially along the coast and adjacent inland counties ― will likely not get a reprieve from these irritating caterpillars…

Fast Company, May 12, 2022: Lawns are terrible for the environment. California’s water restrictions may finally kill them

After years of on-again-off-again drought conditions and decades of precarity relying on imported water, Southern California has instituted major limitations on how residents can use water. Within weeks, residents will only be allowed to irrigate their yards once a week. Lush lawns and abundant flower gardens, your days may be numbered. This is likely just the start. Climate change is wreaking havoc on water systems around the world, and drought conditions are projected for the Western United States through 2030 at least. What’s happening now in Southern California could soon be seen in broader swathes of the West. Watering limitations could dramatically reshape the look of the outdoors. The new rules were put in place by the Metropolitan Water District of Southern California, which delivers water to 19 million people in Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura counties. In late April it declared a Water Shortage Emergency, barring residents from watering more than once per week starting June 1. Individual water agencies within the district that are found to be exceeding limits will face fines, which will likely trickle down to individual water users. If conditions get worse, the district could enforce even stricter limitations, including an all-out ban on any non-essential outdoor irrigation. With an estimated 30% of a family’s daily water use going to outdoor irrigation, cutting down watering can be an impactful way to save water…

Case of the Day – Wednesday, May 18, 2022

RECREATIONAL USE STATUTE AND NATURAL DEFECTS

It's hard to enjoy an idyllic sunset when you can't get to the lakeshore.

It’s hard to enjoy an idyllic sunset when you can’t get to the lakeshore. Recreational use statutes make it easier.

A landowner really has no natural incentive to let people freely enjoy his or her land. You have a nice pond and woods, and, being as you’re a nice person, you let the birdwatchers’ society wander around looking for the white-throated needletail. Next thing you know, one of them steps into a prairie dog hole, and you’re being sued.

But public policy is strongly in favor of getting people out to enjoy nature’s bounty. For that reason, virtually all states have passed some version of a recreational use statute. These statutes hold generally that a landowner only has a duty not to be grossly negligent to people using his or her unimproved land without charge for recreational activities. They are intended to encourage the opening of private land – unspoiled natural areas – for free recreational use by shielding landowners from liability for the most common forms of negligence.

Today’s case raises an interesting question under the Texas recreational use statute. In this case, the City of Waco had a park that included limestone cliffs. A boy was sitting on the cliffs when a portion collapsed, causing him to fall to his death.

A user might anticipate he could fall off a cliff – but not that it would give way.

A user might anticipate he could fall off a cliff – but not that it would give way.

The City argued it couldn’t be held liable under the statute, because it did nothing to cause the defect in the cliffs. The Court of Appeals agreed with the boy’s mother, however, that it wasn’t necessary for the landowner to cause the defect, if the defect was so latent, that is, hidden, that the recreational user would not reasonably be aware of it. That one might accidentally fall off a cliff was foreseeable, the court admitted. But it wasn’t open and obvious that the cliff one was sitting on would suddenly give way.

Because the defect wasn’t obvious, all the boy’s mother had to do was advance in her pleading some allegation of gross negligence. In her complaint, she argued that the City was aware others had been hurt by falling rocks, and it had reports warning of the danger of collapsing cliffs. Those reports recommended the City post warning signs, but it didn’t do so. The court said that those allegations were good enough to make out a claim under the recreational use statute.

Kirwan v. City of Waco, 249 S.W.3d 544 (Tex.App 2008). Debra Kirwan’s son, Brad McGehee, was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the City of Waco, when the ground beneath him gave way and he fell about 60 feet to his death. Kirwan brought a wrongful death suit against the City, alleging a premises defect.

A firefighter who responded to the scene of Brad’s fall testified that an average person would “probably not understand that the ground could give way underneath them.” The trial court threw out the suit, holding that Kirwan had not: (1) “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or (2) “raised a genuine issue of material fact.” Kirwan appealed.

Held: The suit was reinstated and sent back for trial. Kirwan challenged whether Texas Civil Practice & Remedies Code § 75.002(c)the state recreational use statute – requires that all premises defect claims be based on a condition created by the defendant, thus barring any claim based on the existence of a natural condition that the defendant happened to know about. Under the recreational use statute – intended to encourage landowners to open their property to the public for recreational purposes – a landowner’s duty to a user is no greater than that owed to a trespasser, the very limited duty to not injure anyone willfully, wantonly, or through gross negligence.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy's life.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy’s life.

The law is clear that a landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, an owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But the appeals court held that the recreational use statute permits claims based on natural conditions as long as the condition is not open and obvious, and the plaintiff furnishes evidence of the defendant’s alleged gross negligence. Here, the court said, the crumbling rocks and cracks on the cliff that gave way did not conclusively prove that the danger of the unstable cliff rock was open and obvious. Crumbling rock may alert the average person to the risk of slipping and falling, but certainly not that the ground will simply fall apart beneath him. The court ruled that unstable cliff rock is not necessarily an open and obvious condition that a person might reasonably expect to encounter.

To state a claim under the Texas recreational use statute, Kirwan had to allege sufficient facts to show that the City of Waco was grossly negligent. The pleadings need only provide a plain and concise statement of the cause of action sufficient to give the defendant fair notice of the claim involved. In her pleading, Kirwan alleged that the City was actually aware of the dangerous condition on the cliff, that other park patrons had died or been seriously injured by the condition of the cliffs, that the City received a report from its own expert warning of dangerous rock falls and advising the City to post signs warning of potentially fatal rock falls, and the City’s failure to do so, in fact, to warn or guard against this danger at all amounted to gross negligence.

The court agreed that Kirwan plainly alleged the City’s conduct amounted to gross negligence. The City’s complaint that the pleading didn’t allege that the City had created the condition was meritless: where a claim is based on hidden natural conditions, such as the structurally unstable cliff rock in this case, a plaintiff need not plead that the City was grossly negligent in creating a condition.

– Tom Root

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Case of the Day – Tuesday, May 17, 2022

THE RV LIFE

Fun ... but not that sturdy ...

Fun … but not that sturdy …

Carefree RV living. Groovin’ on the high life in your boyfriend’s parents’ backyard, roughing it in a Coleman camper… what fun!

At least it was fun until an unexpected storm blows through, and a devastating derecho lays waste to your suburban Buffalo neighborhood (I’m guessing this was the well-documented Labor Day 1998 Derecho event). A branch broke off a tree in during the blow, and it fell on the camper, injuring Mary Simet and apparently writing the final chapter of her relationship with beau Randy Newman (no, not that Randy Newman).

Derechos are very much in the news. One just marched through Iowa last week, kicking up a massive dust storm some likened to the Middle Eastern “haboob.” But our focus here is not on the dust or the tornadoes it spawned, or even on the derechos that have hit metro areas like Philadelphia or Nashville. Instead, our focus is not even on the breeze itself, but rather on the legal winds that followed the storm.

Mary sued Coleman. Its flimsy camper couldn’t absorb the impact of a massive tree branch in a windstorm, imagine that! And for good measure, Mary named her soon-to-be ex-boyfriend and his parents, claiming that the branch was rotten and they should have cut it off, or not put the camper there, or warned her, or prevented the storm, or… or something. You know the drill. I’ve been injured. Therefore, someone’s gotta pay! And that’s when your lawyers start looking around for defendants who have insurance.

dumped140404

It’s worse than that, Bucko – she sued you, too. Relationships often end badly, but seldom this badly.

After the storm, of course, the Lehmans and their neighbors cleaned up. Mary’s alert and well-read lawyer complained that the cleanup wasn’t done because waste had been laid to the neighborhood or any reason so pedestrian as that. Instead, he bloviated, the cleanup was a grand conspiracy to destroy evidence his client needed for her lawsuit, a disreputable legal maneuver known as “spoliation of evidence.” The trial court, amazingly enough, agreed, but nevertheless concluded that because the evidence that had not been spoliated showed that any rot on the limb was not clearly observable, the Lehmans (and the broken-hearted Randy) were off the hook. And the whole derecho event was an act of God for which the Lehmans ­– including the Facebook-relationship-status “single” Randy – could not be blamed.

Wow. Sued by your own girlfriend. Now that’s what I call getting dumped.

Simet v. Coleman Co., Inc., 839 N.Y.S.2d 667 (N.Y.A.D. 4 Dept. 2007). Mary Simet suffered catastrophic injuries during a severe storm, when a tree limb blew onto the camper in which she was sleeping with her boyfriend at that time, Randy Newman.

The camper was owned by Linda (Randy’s mother) and her husband, David, and was located in their backyard. The limb, located approximately 30 feet from the camper, broke during an unusually intense storm with high winds, known as a “derecho.” Mary and Randy were unaware of the approaching severe storms when they retired to the camper and, indeed, the first severe storm warning wasn’t issued until after the storms had passed through the area.

The Lehmans had no notice that the tree from which the limb broke was decayed or defective. Mary’s expert opined that, regardless of whether the tree appeared to be healthy, the Lehmans would have been advised by an arborist to secure the limb if they had retained an arborist to inspect their trees.

On the advice of their insurance carrier and as part of a neighborhood clean up after the storm, the Lehmans removed the branch and the camper remains after photographic evidence was collected.

Mary sued Randy and his parents, and then she moved to strike their answer based on their alleged spoliation of that evidence. The trial court struck the Lehmans’ answer because of the spoliation, but then granted summary judgment for them anyway, and threw out Mary’s case.

Mary appealed, and so did the Lehmans.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998. “Derecho” is a term derived from Spanish for “straight,” and is characterized by intense straight-line winds.

Held: The Court of Appeals held that striking the Lehmans’ answer based on spoliation was not warranted, that the Lehmans were entitled to summary judgment, and the falling limb was an act of God that precluded Randy’s liability.

The Court found that the Lehmans removed the limb and camper not to frustrate the plaintiffs but only after their insurer gave permission and as part of a neighborhood effort. They had carefully photographed it before disposing of it. At most, the spoliation of the evidence was negligent, and the remedy striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence deprives the moving party of the ability to establish his or her case. That wasn’t the situation here.

Furthermore, the Lehmans weren’t liable to Mary Simet. The Court held that they did not create the dangerous condition with respect to her presence in the camper, and did not have constructive notice that the tree from which the limb broke was decayed or defective. No one was on notice a storm was coming. The fact that an arborist, if one had been hired, might have advised the Lehmans to secure the limb is irrelevant. New York law requires that the manifestation of tree decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.

Finally, the falling of the tree limb during the storm was an act of God that precluded Randy’s liability, with whom Mary was staying in the camper at the time.

– Tom Root

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Case of the Day – Monday, May 16, 2022

MR. NATURAL

Do you remember the 60s? If so, you weren’t really there. Still, you may know someone whose brain was not so addled by the Summer of Love that he or she has forgotten Robert Crumb’s famous counter-culture cartoon character, Mr. Natural. Mr. N. was a bearded mystic guru who spouted aphorisms on the evils of the modern world, his most famously puzzling one probably being “Keep on Truckin’.”

Contrary to the cachet that Mr. Natural gave the notion, there was never that much virtue in being natural. That certainly has been true in the development of modern arboriculture law. There was a time when the common law made a substantial distinction between the natural and the, dare we say, artificial. If you had a tree on your land that had sprouted and was nurtured without your help, like the dozens of volunteer maple tree sprouts we yank out of our daylilies every year, the tree could do as it wished – grow, shed branches, attack the neighbor’s sewer lines with its roots, even decay and fall on the neighbor’s car – while you were exonerated of any responsibility. On the other hand, if your great-grandpa had planted the elm tree out back a century ago on returning home from the Great War, and it has become diseased and rotted (as trees are wont to do), the common law made you responsible for whatever damage its decay may cause.

You can imagine the furball this rule has caused. Who could tell whether your great grandfather planted that tree before catching influenza and cashing in? And for that matter, what possible should the agency by which the seed got into the ground have on whether a property owner ought to shoulder some duty to third parties for the condition of his or her property?

As society changed and population shifted to urban and suburban living, more often than ever courts have had the opportunity to question the rationale for the natural/artificial dichotomy. Today’s case is an excellent example of how appellate courts found themselves grappling with the issue.

One note: Despite the fact that the overwhelming reason for the damage to the Rowes’ house was that the McGees shirked their responsibility for the diseased tree, the Court found that the victims themselves had a very small role in the overall negligence. Under the old tort law doctrine of contributory negligence, if a defendant were 99% negligent, a plaintiff was only 1% negligent – contributorily negligent, we used to say – the plaintiff collected nothing. Zero. Nada. Zip. Bupkis.

The pernicious “contributory negligence” doctrine gave way in the late 20th century to “comparative negligence,” a much more sensible approach in which the percentage of negligence is weighed by the jury. If a defendant is 70% negligent and the plaintiff 30% negligent for the plaintiff’s injuries, the damage award is cut by 30%. Much more rational.

Rowe v. McGee, 5 N.C.App. 60, 168 S.E.2d 77 (N.C.App. 1969). Noah and Jeanette McGee sold a tract of land to Chuck, who built a house on it and promptly sold it to Ed and Josie Rowe. The McGees held on to a second tract of land which adjoined the Rowes’ new premises.

An oak tree stood on the McGees’ land, a towering old thing that was hollow and partially rotten, and leaning in a manner that suggested sooner or later it would fall. The tree was completely natural: no evidence suggested any landowner had planted or nurtured it. The oak was in this decrepit condition when Chuck bought the neighboring plot. Part of the McGees’ deal with Chuck was that he would remove the tree, but he did not. Instead, he completed the house and sold it to the Rowes, with the tree still leaning toward the new house.

The Rowes found it hard to enjoy their spanking-new thoroughly-modern luxury home with this next-door Sword of Damocles looming outside their living room window, so they demanded that the McGees eliminate the hazard. The McGees told the Rowes they wanted the great oak reduced to sawdust, they would have to do it themselves. The Rowes agreed to take it down.

Sadly, as of the night of April 22, 1967, they had not yet done so. That night, Mother Nature resolved the problem, blowing the decayed oak right onto the Rowes’ living room davenport and new RCA color TV.

The Rowes sued the McGees for damages. The trial court agreed the McGees had a duty to remove the tree and were responsible to the Rowes for damages. However, because the Rowes told the McGees they would remove the tree and did not, they were found to be contributorily negligent, so they were awarded nothing. The Rowes appealed.

Held: Because the McGees knew that their oak tree was decayed and liable to fall and damage Ed and Josie’s house, the McGees had a duty to eliminate the danger, and could not with impunity place the burden to remove the tree on the Rowes.

The Court of Appeals admitted that there were no North Carolina cases on the precise issue, and the state of the law – as reflected in The Restatement of the Law of Torts – was that “where a natural condition of land causes an invasion of another’s interest in the use and enjoyment of other land, the possessor of the land containing the natural condition is not liable for such invasion.” Thus, the Court said, at least historically, the law relieved the McGees of any obligation for mischief caused by the old oak.

The term “’natural condition’ comprehends trees which are the result of a natural condition,” the Court said, “not trees which have been planted by man.” But, as the Court conceded, it often was difficult to determine whether the tree’s origin was natural or artificial.

Ironically, in concluding that the natural-artificial distinction no longer mattered, the Court found direction in a case from Massachusetts, that flinty home of the self-reliant Massachusetts Rule. It cited a Bay State case in which a defendant owned a vacant lot with a large, dead elm tree. When a branch from the tree fell across the property line and hit a neighbor, the Massachusetts Court held that keeping such a tree near a property line constituted a private nuisance, observing that

public policy in a civilized community requires that there be someone to be held responsible for a private nuisance on each piece of real estate, and, particularly in an urban area, that there be no oases of nonliability where a private nuisance may be maintained with impunity.

In the Rowes’ row with the McGees, our North Carolina Court concluded that the greater probability of injury to other people or their property imposes a higher degree of care upon the owner of the tree or structure. In this case, the Court said, “where the defendants knew that the tree on their property was decayed and liable to fall and to damage the property of Edward and Josephine, we think and hold that the defendants were under a duty to eliminate the danger and could not with impunity place such burden to remove the tree on Edward and Josephine.”

But, the Court said, the trial judge was right to give the contributory negligence instruction due to the Rowes’ telling the McGees that they would remove the tree but did not, so the Rowes still took nothing.

– Tom Root

TNLBGray

Case of the Day – Friday, May 13, 2022

A PRESCRIPTION FOR TROUBLE

We all know about adverse possession, that peculiar legal doctrine that holds in essence that if you’re brazen enough to trespass on someone else’s land continuously for a period prescribed by statute, the property becomes yours. In most places, such as Pennsylvania, the period is 21 years long. So for 20 years, 11 months and 31 days, you’re a squatter. The next day, you’re landed gentry.

It seemed to me like judicially-sanctioned theft when I learned about adverse possession in law school (so long ago that over twice the statutory period has passed since I walked those hallowed halls). The theory, my property professor droned, was that public policy favored productive use of the land, and taking over a piece of land from an owner careless enough to let you take it over put it to more productive use,\ and thus should reward the taker. So if I like my piece of country property as a preserve for the birdies and little critters, and you want to bulldoze it for a new Starbucks, you win. The whole notion seems as cockeyed to me now as it did when I was a well-scrubbed and wide-eyed first-year law student back in the halcyon days of the 1970s.

To claim adverse possession, you have to show that your occupation of the land was open, notorious, hostile and adverse to the interest of the owner a continuous period of whatever the statute prescribes, say 21 years as an example. Some might say that if you built your Starbucks on my forest plot, and I did nothing about it for that long, I deserve to lose my land. To which I might reply that the law does not seem to offer much protection to someone when his or her property can be lost to another person simply because the thief gets away with it for long enough.

But if I thought adverse possession was screwy, I was hardly prepared for its little brother, a  prescriptive easement. Adverse possession is occupation of the land. A prescriptive easement is a mere use of someone else’s land without exclusive occupation. My kids cut through the neighbor’s side yard for years as a shortcut to the church. I still do it when I’m running late. If now, 28 years after the neighbor’s house was built, he put up a fence to stop us, should we be able to claim a right to have the fence removed so that we can continue to save five minutes getting to worship? What we would have, we could argue, was a prescriptive easement.

I once had a client who was about to build a garage on a piece of his land. The power company sued, because lines that went behind his property for years had been slightly rerouted so that they crossed a corner of his place. The electric company said it had moved the lines a convenient 23 years before, and now it had a prescriptive easement, which limited my client’s use of a quarter of his property to a vegetable garden.

We stared down Reddy Kilowatt in that case, because we located an aerial photo of the town from 20 years before that showed the electric company was bluffing, and the lines had not been moved as of that date. My client sold the electric company an easement over 50 feet of backyard for about $30,000. Happy ending.

As much as I dislike the whole notion of prescriptive easements, I admire creativity. I always thought of such easements as being created by the deliberate actions of humans. My kids cut across the neighbor’s lawn. The power company restrung its lines. But the plaintiffs in today’s case showed creativity I lack. Here, they claim a prescriptive easement not because of what they did, but because of what their tree did. Because the limbs and roots of a tree they owned grew into a neighboring property and remained there for more than 21 years, they argued, they had thus obtained a prescriptive easement that would prevent the neighbor from doing anything to the tree.

It’s as if the Massachusetts Rule had an expiration date.

At first blush, it seems to ring all the prescriptive easement bells, and seemed pretty doggone clever. But after thinking about the whole notion for long enough, the appeals court wisely said it simply did not make sense.

Koresko v. Farley, 844 A.2d 607 (Pa.Cmwlth. 2004). The Koreskos bought property with a line of trees on one boundary, all of which had been there more than 21 years, which hang over the boundary with the neighboring property containing a house, owned by M.J. Farley Development Co. Inc. Farley had submitted a subdivision plan seeking to divide the property into two plots, and to build a second residence on the newly-formed plot. 

The subdivision plan proposed to place a water line and driveway near the boundary trees. Upon learning of the proposal, the Koreskos sued in equity seeking injunctive relief and, of course, money damages. In their complaint, the Koreskos claimed the driveway and trench would damage the root systems of the boundary trees. Among their claims, the Koreskos alleged unreasonable interference with their prescriptive easement. They claimed that because their trees’ roots and branches encroached on the subdivided property for over 21 years, a prescriptive easement existed for the tree roots and branches, and that development of the property would unreasonably interfere with that easement; and

After the trial court held that “Pennsylvania does not and will not recognize an easement for tree roots or overhanging branches,” the Koreskos appealed.

Held: Pennsylvania will not recognize a prescriptive easement created by the growth of a tree.

A prescriptive easement is a right to use another’s property that is not inconsistent with the owner’s rights and which is acquired by a use that is open, notorious, and uninterrupted for a period of 21 years. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

The law holds that overhanging tree branches are a trespass. In Pennsylvania, a landowner has the right either to compel the removal of overhanging branches or to engage in self-help. However, the Restatement notes that a continuing trespass is not a trespass at all if the actor causing the trespass has obtained an easement by adverse possession, and ponders openly whether the continued presence of encroaching tree branches, held openly, notoriously, hostilely, and continually for 21 years would create a prescriptive easement in the airspace which they hang.

If this were the case, the Court said – noting it could find no Pennsylvania law which would indicate that a prescriptive easement was not available in this situation – a landowner who suffers actual harm for the first time during the tree owner’s 22nd year of hostile ownership would be precluded from seeking any remedy whatsoever, even self-help. However, the Court said, if an action is available without a showing of damage – and a trespass action assumes damages, so it can be brought whether the trespasser has actually injured the victim’s property or not – the landowner has no reason to complain if a neighbor’s tree causes damage after the prescriptive period has run because he or she could have sued at any time during the 21-year period.

The Court held the Koreskos failed to state a claim for prescriptive easement as a matter of law. No Pennsylvania case has held such easements are cognizable, the Court said, and other jurisdictions have reasoned that such should not be recognized. Finally, the potential of widespread uncertainty occasioned by such easements convinced the Court that they should not be recognized as a matter of public policy.

The Restatement holds that to be adverse, a use must be open and notorious, for the protection of those against whom it is claimed to be adverse. It enables them to protect themselves against the effect of the use by preventing its continuance. This requirement may be satisfied by a showing that either the landowner against whom the use is claimed has actual knowledge of the use or has had a reasonable opportunity to learn of its existence.

Encroaching tree parts, the Court held, by themselves do not establish “open and notorious” use of the land. Neither roots below the ground nor branches above the ground fairly notify an owner of a neighbor’s claim for use at the surface. In the absence of additional circumstances, roots and branches alone do not alert an owner that his or her exclusive dominion of the ground is challenged. This is no different from prior legal decisions that already held that the known presence of windows near a lot line does not create a prescriptive easement for light and air.

In a Kansas decision, an appeals court in the Sunflower State held that an easement by prescription cannot be acquired by overhanging tree branches, said:

The result reached here will be distasteful to all who treasure trees. The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each owner’s rights insofar as that is possible. Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.

The Koresko Court said, “We agree with this reasoning and holding… and we expressly adopt it in Pennsylvania.”

Finally, the Court considered the consequences of the holding urged by Koreskos. Trees growing over property boundaries and streets, around utility lines, and under sidewalks are common in Pennsylvania. “A decision suggesting that the prolonged presence of these tree parts assures their unreduced continuation could cause uncertainty,” the Court held. “Both the extent of the prescriptive easement and its effect on public and private use are problematic. As a matter of sound public policy, we decline to recognize a new estate which offers uncertainty and invites clarification through litigation.”

– Tom Root

TNLBGray

Case of the Day – Thursday, May 12, 2022

MILLION-DOLLAR BABY

I’ll tell you where the real money is in litigation. It’s not the guy who walks into the lawyer’s office with a tale of woe at the hands of some big, faceless, loaded corporation. It’s not the guy who was busted for pot, and he bonded out on Friday but they didn’t release him until Monday.

It’s right here: I should have a nickel for every would-be client who ever asked me to take a case on contingent fee, because they were sure to get beaucoup bucks in the end with an outraged jury handed them millions in punitive damages for a fender-bender, or a sharp-tongued government clerk, or a badly-written newspaper story, or whatever the injury du jour might be. Total up my nickels, and I ought to be sitting on the veranda of my Caribbean beachfront mansion writing this right now.

Alas, I am at my kitchen table in Ohio. It’s not quite the same…

Few would-be litigants really appreciate that punitive damages, also called exemplary damages, are damages awarded by a jury to punish a defendant for some terrible conduct, because, after all, it’s a civil action, and you can’t throw the malefactors in jail. But contrary to legend, punitive damages have to be tied to some actual harm.

In today’s case, some junior leasing agent for a billboard company (sorry, that’s not the proper term – these days, it’s ‘OOH’ or ‘out-of-home’ advertising) got a little too enthusiastic in clearing the view for the billboard, and when the dust settled, some of the trees that had been felled belonged to the neighbor of the guy who had leased space for the billboard (now there’s someone who should be locked up, the guy who let that eyesore get erected). The leasing agent was sloppy, careless even, perhaps – dare we say? – reckless.

The jury found that the neighbors were harmed in an amount of about $32,000. But it added to that figure an eye-popping $2 million in punitive damages. That was too much for the trial judge, who tried to get the farmer to accept a remittitur, that is, settle for a paltry $550,000. The farmer wouldn’t do it, so the court ordered a new trial. The farmer appealed.

All of $32,000 in damage, and a cool half mil on top of it? Farmer Blust was the living embodiment of the aphorism, “Pigs get fat, but hogs get slaughtered.”

Blust v. Lamar Advertising Company, 157 Ohio App.3d 787 (Ct.App. Montgomery Co., 2004). A Lamar leasing agent signed up Jim Weber in September 1998, leasing a small piece of Jim’s farmland near the property line between his farm and the Blust farm for a billboard. The two farms were separated by an old wire fence that was largely concealed amid dense brush, vines, and trees. Because Lamar planned to erect its billboard near the tree line and  undergrowth separating the two farms, it hired Woody’s Tree Medics to remove some of the trees and vegetation from Jim’s property.

A Woody’s work crew entered the Blust property and cut down 34 trees, 17 of which were more than three inches in diameter. At trial, a jury found Lamar liable in tort for trespassing and removing the trees without permission, and awarded the Blusts compensatory damages of $32,000 and punitive damages of $2.2 million. The trial court denied Lamar’s motion for judgment notwithstanding the verdict on the punitive damages award but indicated that it would grant a new trial on all issues, including liability, unless the Blusts accepted remittitur, that is, a reduction, of the punitive damages award to $550,000.00, with half of that amount going to a nonprofit nature conservancy. The Blusts rejected remittitur, and the trial court ordered a new trial.

The Blusts appealed, challenging the trial court’s holding that the punitive damages verdict was excessive and its decision to grant a new trial on all issues. 

Held: The Court held that the Blusts were entitled to punitive damages, but the award was excessive. Thus, the trial court did not err in ordering a new trial, limited how much should be awarded in punitives.

In order to recover punitive damages, the Blusts had to show that Lamar acted with “actual malice.” Actual malice, the Court said, is a state of mind under which a person’s conduct is characterized either by ill will or by such a conscious disregard for the rights and safety of other persons that its conduct is very likely to cause substantial harm.

The Blusts argued that Lamar’s act of directing their trees to be cut constituted a conscious disregard for their rights that had a great probability of causing them substantial harm. The Court agreed, finding substantial evidence in the record that Lamar’s agent consciously disregarded the Blusts’ property rights by ordering the cutting of trees on their property. Jim Weber told Lamar’s agent about where the property line fell, and told her to follow the farm fence as a guide. After the cutting began, a friend of the Blusts appeared at the site to tell the Woody’s crew that it was cutting trees on the wrong property. The Blusts’ tenant farmer, Ted Eby, saw workers clearing trees from the Blusts’ property, and he  spoke to Woody’s crew and the agent, and told them they were cutting the Blusts’ trees.

Despite all of these warnings, the agent told Woody’s workers to keep the saws humming. A reasonable juror, the appeals court said, could find that Lamar consciously disregarded the Blusts’ property rights.

A closer question, the Court observed, is whether Lamar’s agent was aware that having the Blusts’ trees cut carried with it a great probability of causing substantial harm. “We harbor no doubt,” the Court said, “that clearing the trees had a great probability of causing some harm. Indeed, removing the trees was absolutely certain to cause harm to the extent that the Blusts lost their trees. The crucial issue on appeal is whether the agent knew that this loss of the trees had a great probability of resulting in substantial harm to the Blusts, or more specifically, whether reasonable minds could differ on this issue.”

The Court said “substantial” means “major, or real importance, of great significance, not trifling or small.” Here, the “harm” was obvious: it was the loss of the Blusts’ trees. But in order to determine whether this harm was “substantial,” it was necessary to assign some measure of value to the trees. The Blusts said that someday, they might divide a portion of the farmland into residential plots, and the absence of trees would harm the value of the plots. The Blusts’ expert testified that the trees’ loss would diminish the fair market value of the subdivided property by $51,600.

The Blusts also argued that they hoped to sell the wood from three wild walnut trees someday for veneer. What’s more, the Blusts presented testimony that it would cost $40,566 to purchase and replant all of the trees or $24,335 to replant 11 of the larger trees. Lamar argued, on the other hand, that the stumpage or firewood value of the timber was only $105. Lamar also presented expert testimony that removal of the trees may have caused the Blusts’ property value to decline by at most one percent, or $3,870.

The Court held that most of the measures of damage could be characterized as “substantial.” But the record contained no evidence that Lamar’s agent knew the Blusts might subdivide their farm for residential purposes. The record also contained nothing to indicate that the agent knew of any plans to sell the walnut trees for veneer. Likewise, the agent did not know that the Blusts – who did not live on the parcel – would ever want to replace some or all of the trees. Thus, the agent could not have known that cutting the trees would harm the future value of the land as subdivided plots, frustrate the prospects of marketing veneer, or even just lead to $25,000 – $40,000 replacement costs.

However, fair market value is a different story. Even Lamar admitted that the cutting may have reduced the Blusts’ property value $3,870. “A reasonable juror,” the Court said, “could find that a loss of this size qualifies as substantial harm and not a trivial loss.” A decline in property value because of losing trees is a “typical measure of the harm, and it is entirely predictable.”

When a verdict is influenced by passion or prejudice, the Court held, a trial court must order a new trial. However, when a verdict is merely excessive, but not influenced by passion or prejudice, a trial court must offer the plaintiff a choice between remittitur or a new trial. If the plaintiff rejects remittitur, a new trial must be ordered.

The Court agreed that the Blusts’ punitive damages award was grossly excessive under constitutional standards, and had to be set aside. Therefore, the judge properly directed the Blusts to choose remittitur or a new trial. However, the only issue tainted by error was the jury’s punitive damages award. The Blusts should not have been required to place in jeopardy their compensatory damages award or the jury’s determination that some punitive damages are warranted by undergoing a new trial on those issues.

The case was sent back to the trial court for a new calculation of punitive damages.

– Tom Root

TNLBGray