Case of the Day – Thursday, July 11, 2024

Posted on July 11, 2024 by TLRoot tagged.

STRICTLY SPEAKING

Strict liability statutes, also known as “liability without fault,” occupy the blameless end of the “mens rea” spectrum. Our traditional notions of fair play lead us to believe that people should not be held to blame for injury unless they are somehow at fault, either being negligent, grossly negligent, reckless, or just plain acting with intent to bring about the harm they cause.

But at common law, some acts were considered to be so inherently dangerous – the classic case was a lion that escaped from a keeper of exotic animals – that courts let the res ipse loquitur, the “thing speak for itself,” and found the owner liable for whatever mayhem ensued from a force that had once been under the owner’s control. Negligence need not be shown.

Remember the radioactive spider that bit Peter Parker and made him super-powered Spiderman? Peter (or maybe Spidey) could have sued the lab that let the spider escape. Everyone knows that a radioactive spider is an inherently dangerous instrumentality, and whoever the last guy was to have the arachnid in captivity had better be prepared to pay big, regardless of whether he was at fault or not.

But should strict liability extend to dogs? Speaking as the owner of a 40-lb. canine who is a terror to woodchucks but a marshmallow around humans, we don’t really see why they should. Nevertheless, many states have dog bite statutes that make owners strictly liable for their canines’ misdeeds, regardless of fault. To be sure, some of the statutes are hybrids, making the owner absolutely liable except for all the cases in which he or she is not. In today’s case, the statute at issue made an owner strictly liable for his or her dog’s bite, unless the person so bitten was engaged in criminal trespass or other criminal conduct, or was tormenting or teasing or harassing the dog. So the owner is absolutely liable… sort of.

Today’s case is the kind of tree law/neighbor law mashup that you have come to rely on us to deliver. The trial court here made the tree trimmer into a trespasser, despite the obvious fact that the power company had every right to enter its easement to prune back trees. The Court of Appeals could not swallow that but instead suggested that while not a trespasser, the employee owed the dog’s owner notice that he was entering the premises, so the owner had the chance to control his dog.

With certain Supreme Court justices disappointing activists everywhere by deciding cases according to their perception of the law rather than the politics (you can tell I’m a fan of the rule of law, whether I agree with the political effects or not), there will be a lot of talk over the next few months about “judge-made law.” Do you want to see judge-made law? Just look at the gyrations of the trial and appellate court in the case below.

The judges here clearly could not accept that the dog’s owner should have to pay when the dog had been contained in a yard behind a fence and a “no trespassing” sign. A stranger—regardless of intention and right—barged in anyway and complained because the dog chased him. And they found a way to bend the law to suit their sense of propriety.

Collins v. Bergman, 2010-Ohio-6213 (Ct.App. Montgomery Co., Dec. 17, 2010), 2010 Ohio App. LEXIS 5233, 2010 WL 5274. Jason Collins worked for Nelson Tree Service, which was under contract with the power company to remove trees that were too close to utility poles and lines. Jason’s job was go from house to house inspecting all trees encroaching Dayton Power & Light utility lines and poles so any trees too close could be trimmed back at a later time.

When Jason reached Jeff Bergman’s house, there was no answer when he knocked on the door. Jason left a courtesy card on the door, notifying Jeff that a tree trimming would occur in the future. Jason then went around the back of the house to count the trees. He could hear a dog barking. The dog was a Labrador-Rottweiler mix named Taz. Jason didn’t know Taz had a dog door giving him unfettered access to the back yard.

Jason could see that Jeff and his neighbor had built 6-foot privacy fences, which made it impossible for the power company to check its easement. Thinking that Taz was inside the house, Jason entered the fenced-in backyard through a gate marked “no trespassing.”

Taz was not inside. As Jason fled the barking dog, the cantankerous canine planted his fretwork in Jason’s pant leg. Jason tried to climb the privacy fence, but fell back, injuring his shoulder.

Jason sued Jeff under Ohio’s dog bite statute, O.R.C. § 955.28. Jeff filed for summary judgment. At the time, that statute provided that “the owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property… or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog …”

The issues in this case were whether Jason entered Jeff’s property pursuant to the utility easement and whether he was a trespasser within the meaning of the dog bite statute.

The trial court determined that Jason was injured within the easement, where he had a right to be. However, the court said, the easement did not provide a specific place for the utility to enter the property, and therefore, Jason was required to make use of the easement in a reasonable manner. The court found that Jason did not act reasonably in deciding to enter Jeff’s property without notice and through a latched gate and a fence with a posted “no trespassing” sign. The court also noted that Jason failed to follow his own company’s policy in entering a property when there is a dog barking in an enclosed area. Because Jason did not make reasonable use of the express easement granted to the utility company, he was a trespasser within the terms of O.R.C. § 955.28(B). The trial court granted Jeff’s summary judgment motion.

Jason appealed.

Held: Jason was a trespasser and not entitled to damages.

The Court of Appeals agreed with Jason that he had a right to enter the easement, and because entry to the easement was blocked, he took the only reasonable avenue open to him through the backyard fence.

However, in determining whether a person is a “harborer” under the statute, the Court said, “the focus shifts from possession or control over the dog to possession and control of the premises where the dog lives.” The hallmark of control is the ability to both prevent and exclude others from coming onto the property. Because Jason entered the property without permission, Jeff lost the ability to control his property at the time of the incident. Thus the trial court properly denied Jason’s motion for partial summary judgment and properly granted summary judgment to Jeff on the O.R.C. § 955.28 claim.

– Tom Root

Case of the Day – Wednesday, July 10, 2024

Posted on July 10, 2024 by TLRoot tagged.

WERE WE ALARMISTS?

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

Which one is Tilford E. Dudley?

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

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

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

A concrete patch in a tree.

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

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

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

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

Dudley appealed.

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

The tree, which had been growing since before 1942, fell at a time when no strong wind was blowing. When an apartment house was built there, the soil had been banked 2 or 3 feet deep on two sides of the tree, and a concrete well was built around the tree trunk. The apartment building was about 4 feet from the tree well and a paved parking area was about a foot away. Dudley testified that the tree was about 75 feet tall and 2.5 feet wide at the base. Where it broke off at ground level there were indentations extending about 6 inches below the ground and into the base of the tree trunk, and an area of about 2 feet inside the trunk appeared to be “spongy, decayed and soft,” although no decay showed on the outside of the trunk. Dudley said the tree was in full foliage with no dead branches but that on one side of the trunk, there was a strip of concrete extending from near the base to a height of about 5 feet. The cement had been there for at least 12 years before the tree fell.

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

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

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

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

– Tom Root

Case of the Day – Tuesday, July 9, 2024

Posted on July 9, 2024 by TLRoot tagged.

YEAH, LITERALLY

One of the many badges that marks me as a curmudgeon, according to a recent book, is my preoccupation with proper language. OMG! Am I ever! I suppose people use slang because YOLO. But because this blog aspires to be the GOAT of tree and neighbor law sites, I’m going to stay frosty and keep it real.

I trust you recognize irony when it smacks you in the face.

I am not ashamed to admit that my gorge rises when people say “irregardless” when they mean “regardless,” say “affect” when they mean “effect,” or use “like” every third word or so. And don’t get me started about made-up nonsense like “ze” or “Mx” or “Latinx.” As far as we’re concerned, “ze” should always precede the word “plane” and be shouted by Tattoo. “MX” will always be a missile program. As for “Latinx,” it’s just wrong. Ask 97% of Latinos what they think.

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

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

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

How many bees? Literally thousands …

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

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

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

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

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

Turner appealed.

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

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

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

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

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

– Tom Root

Case of the Day – Monday, July 8, 2024

Posted on July 8, 2024 by TLRoot tagged.

IT DOESN’T TAKE THAT MUCH TO BE RECKLESS

Today, my bride of 45 years and I are climbing up an ash-covered glacier (in Iceland, where else?), doing things with an ice axe and crampons that seem kind of reckless for grandparents of 4.66 grandchildren to be doing. It’s a great segue into today’s topic.

We all have some sense of what kind of conduct is reckless. At least, to channel the late Justice Potter Stewart, we’re pretty good at knowing it when we see it. Riding a motorcycle into a wall at 100 mph while drunk? Yeah, probably reckless. Standing on a ledge at the top of a skyscraper for a selfie? You bet. Lying between railroad tracks while a train passes? We’ll give you that one, too.

But when the law uses the term “reckless,” in fact when the law adopts any standard, the term has to have a specific definition. If not, laws punishing conduct that did not meet the standard would be arbitrary (as well as falling short of their goal of causing people not to be reckless in the conduct of their affairs).

I’m sorry, Justice Stewart. ” Knowing it when [you] see it” is trenchant, but it’s not a good way to regulate conduct.

In today’s case, a Buckeye State classic, a car repair business trespassed on a neighboring business’s land to hack away at some spruce trees. The car repair manager thought the trees belonged to his company, but his belief – which flew in the face of the facts – was so heedless of the consequences that the court found him reckless.

We have seen worse cases that were considered to be mere negligence, and we cannot discount that the trial court in this case was influenced by the extent of the damage to the “visual barrier” between the professional building (populated with the offices of lawyers, doctors and engineers) and the seamy oil-change-and-lube joint next door.

“Recklessness” let the trial court grant treble damages under Ohio law to the office building owner. Unsurprisingly, recklessness is what the trial court found. Maybe cynicism is creeping into our analyses as we age (we prefer the expression “as we get wiser”), but if the real estate owner had made the same unsupported surmise about the grease monkey’s trees, we suspect his misfeasance would be found to fall somewhere short of “reckless.” Just sayin’.

ALH Properties, P.L.L. v. Procare Automotive Service Solutions, LLC, Case No. 20991, 2002-Ohio-4246 (Ct.App. Summit Co., Aug. 21, 2002) 2002 Ohio App. LEXIS 4412. ProCare and ALH were adjoining landowners. ALH had an office building on its property, and ProCare operated an auto repair facility. Between the two properties stood a row of large Norway spruce trees, providing a visual buffer between the two businesses. The trees are on ALH’s property, although some of the branches extend over ProCare’s property. ProCare cut branches off of the lower ten feet of the spruce trees, destroying the visual buffer. The branches will not grow back.

ALH sued, alleging reckless injuring of the trees under Ohio Revised Code 901.51. The trial court entered judgment against ProCare for $34,200.

ProCare appealed.

Held: ProCare was liable to ALH.

Do you see any recklessness here?

Section 901.51 of the Ohio Revised Code provides that “[n]o person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another… “In addition to a criminal, the statutes subject a violator to treble damages for the injury caused.”

The Court held that as used in the statute, the term “recklessly” has the same meaning in a civil claim for treble damages as it does in a criminal proceeding for violation of the statute. A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

The Court acknowledged that a privilege exists at common law for a landowner to cut off branches of an adjoining landowner’s tree that encroached on his land. But here, ProCare trimmed not just branches of the trees that faced its property, but also branches facing ALH’s property as well. ALH’s president testified he had not given anyone permission to trim the trees, and that he had previously trimmed branches that hung over his parking area and had removed one of the trees entirely because it died.

ALH offered a videotape its president had made on the day ProCare trimmed the trees, which included his running commentary on the damage done to the Norways. All the while, the property line marker – a large post – was clearly visible. Pictures taken both before and after ProCare trimmed the branches were admitted into evidence. ProCare stores old tires, oil cans, and a dumpster in the area near the trees, and the photos showed how the trees had created a visual buffer from ProCare’s property and alleviated some traffic noise.

Martin Long, a ProCare manager, testified he thought the spruce trees were on ProCare’s property and that he assumed the trees were ProCare’s because “nobody ever took care of them.” He said he trimmed other branches hanging over ProCare’s property on two previous occasions with no negative consequences. He admitted that on one occasion, one of the Norways — which was dying — had been removed by someone other than a ProCare worker. However, he pointed out, in the spring ProCare would mulch the trees, and no one ever told him that the trees were not on ProCare’s property.

Long believed that only limbs that faced a direction other than toward ALH’s property were cut off. He said that when Myers approached him about ProCare trimming the trees, it was the first indication he had that the trees were not on ProCare’s property. Long admitted that when the spruce that was dying was removed, he did not know who removed it, but he did know that he, personally, had not directed anyone to remove it, nor did he have to pay for its removal. He stated that he thought ALH had removed it because of the risk it posed to ALH’s buildings.

The trial court found that the removal of the tree branches was reckless because Long had reason to know facts that would lead a reasonable person to question whether the trees belonged to ProCare. The trial court held that the complete removal of a large spruce tree in this row of trees at no expense or trouble to ProCare was an indication that ProCare did not own the trees nor was it responsible for maintaining them. The trial court also noted that Long’s testimony that the only branches cut were those that overhung ProCare’s property was disputed by the videotape and photographs, which clearly showed other branches were cut that did not overhang ProCare’s property.

The Court of Appeals found that the trial court’s conclusion that ProCare was reckless was not against the weight of the evidence. The Court held adequate evidence showed ProCare disregarded a known risk with heedless indifference to the consequences when it trimmed branches of trees that were clearly on ALH’s property.

ProCare also argued the trial court’s calculation of damages is against the manifest weight of the evidence.

ALH’s president testified that soon after ProCare trimmed the trees, he contacted two landscaping companies to install arborvitae to replace the barrier. A landscaper submitted a quote for $3,850 to plant 35 arborvitae, although he said planting arborvitae was inadvisable. He also said it was impractical to replace the spruce trees with ones of a similar size, given their 60-foot height. The landscaper provided a separate quote of $18,923 to remove the spruce trees, grind the remaining stumps, and plant a row of Colorado spruce.

A different landscape contractor testified for ProCare and said $3,750 to plant a row of arborvitae was appropriate, and that the shrubs would provide an adequate screening between the properties. He quoted $12,200 to remove the Norway spruce, grind the stumps, and plant Colorado spruce. He thought, however, that Colorado spruce would not provide an adequate barrier because they cannot be pruned properly. He recommended planting White Pine instead because White Pine can be pruned and trimmed more easily than spruce. His estimate to plant a row of White Pine was $11,400.

The trial court found that the best solution to replace the visual screening between the two properties was to replant trees, but that planting Colorado spruce was a disproportionate expense. It ruled that White Pine was a reasonable tree type for restoration, and awarded damages of $11,400. The amount was trebled pursuant to O.R.C. 901.51, for a total award of $ 34,200.

The court of appeals held that the trial court’s decision was reasonable.

– Tom Root

Case of the Day – Friday, June 28, 2024

Posted on June 28, 2024 by TLRoot tagged.

LET’S BE CAREFUL OUT THERE

Summer has just begun, astronomically speaking, although it seems like it’s been here since the first 90-degree day in early May. Not that I’m complaining. Swimming, biking, hiking… summer can hang around as long as it likes.

Yesterday, my bride and I wandered through Vermilion, Ohio, for some ice cream at Dairy Dock (premium-quality soft-serve, with prices to match). Vermilion seems like summer the way summer used to be and always should be. Tourists everywhere, the cottages along the Lake Erie shore full of vacationers, boats cruising in and out of the marinas… Hot fun in the summertime, as Sly puts it.

Just for a moment, I felt that summertime twinge that the days are already running through my fingers like the sands of an hourglass. Oh for the mythical endless summers we almost believed were possible when we were kids!

To all those folks who complained in April about the cold weather… I hope you’re happy now. It’s hot and muggy and bright… perfect for stopping by the old swimming hole, a place where my friends and I have had a lot of fun. And, sadly, a place where tragic things can happen.

We must make an extra effort to be caerfull careful. With July 4th upon in less than a week, this might be a good time to consider due care, that is, our duty of care to others.

In a negligence action, a plaintiff generally has to show that (1) the defendant had a duty of care in relation to the plaintiff, (2) the defendant failed to conform its conduct to the requisite standard of care; and (3) an injury to the plaintiff was proximately caused by the failure.

That’s what “fisheye” is all about: Do you really want to be eating food that’s staring back at you?

The duty of care is a moving target, depending to a large extent on the relationship of a defendant to the plaintiff. If someone delivering your double-anchovy pizza and atomic wings falls into an open hole in your front yard, the law treats your liability a whole lot differently than if, say, a thief sneaking around at night trying to steal your garden troll statue falls into the same hole. (But even if the law doesn’t wonder, we’re puzzled that you’d order a double-anchovy pizza).

In today’s case, a young man was paralyzed for life when he dove into the lake at his parents’ house. He had made the same dive countless times before, but the defendant in the case — the non-profit corporation that owned the lake — had recently installed a dredge pipe underwater near the shore. The pipe apparently was just below the surface of the lake.

The lake’s owner argued that the young man was merely a licensee, not an invitee. The difference was crucial, because a licensee pretty much takes the property in the condition he or she finds it. The trial court agreed that the plaintiff was much more than that, and after a jury trial, the young man was awarded $1 million.

The appellate court looked at the corporate purpose of the non-profit lake owner, as well as the terms under which it acquired the lake from the public utility that had owned it previously. Both required that the lake be maintained for public purposes, despite being ringed with private homes, and that evidence convinced the Court of Appeals that the young man wasn’t just someone who was using the lake with the permission of the defendant non-profit corporation. Instead, he was an invitee, someone to whom an invitation had been extended to enter or remain on land for a purpose for which the land was being held open to the public. As such, the landowner had a much higher duty of care to the young swimmer, a duty it violated by not being more careful in installing and marking the dredge pipe.

Not all shallow water is so well labeled.

Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475 (Ct.App. Indiana, 2007). Twenty-six-year-old Justin Stichnoth was visiting his parents at their house located on Lake Shafer. During a conversation that day, Justin’s father, Kerry, told Justin about a dredge pipe that Shafer & Freeman had installed in the channel near their dock. Kerry explained that recently he had gotten his boat “hung up” on the dredge pipe. Shortly thereafter, Justin took a running dive off of his parents’ dock into the channel, something he had done often over the years. Justin struck his head on the dredge pipe, which was located on the channel floor about 17 feet from the dock. Justin was left a paraplegic. He sued Shafer & Freeman, alleging that the firm’s negligence caused his injuries because it didn’t warn that there was a pipe underwater, it didn’t mark the pipe so that it would be visible to users of the lake, and it didn’t use reasonable care in dredging the lake.

Shafer & Freeman denied the allegations of negligence. Later, it filed a motion for summary judgment on the issue of whether Justin was a licensee of Shafer & Freeman. The trial court denied it, and a jury found it liable to Justin, awarding $1 million to the injured plaintiff. Shafer & Freeman appealed.

Be careful when diving into unfamiliar water.

Held: Justin was an invitee. Indiana law holds that a person entering upon the land of another comes upon the land either as an invitee, licensee or trespasser. The person’s status on the land defines the nature of the duty owed by the landowner to the visitor. Licensees have a license to use the land and are privileged to enter or remain on the land by virtue of the permission of the owner or occupier, but they take the premises as they find them. Invitees, on the other hand, are owed a much higher duty of care. The decisive factor with regard to whether a landowner has extended an “invitation” or “permission” is the interpretation that a reasonable man would put upon the owner’s words and actions, given all of the surrounding circumstances. Here, the Court found, the lake was held open to the public, even though it was surrounded by private property, and thus Justin — who dove off a dock and struck his head on a dredge pipe located on the channel floor — was an invitee rather than a licensee for purposes of personal injury action. The Court held that the articles of incorporation of Shafer & Freeman, the non-profit corporation that owned the lake, provided that the corporation would protect and enhance the water quality of the lake in order to facilitate public recreational use and ensure continued public access.

What’s more, the Court said, the agreement by which Shafer & Freeman acquired the title from the electrical utility, provided that Shafer & Freeman would hold the lake for public, charitable, recreational, conservation and environmental purposes. It is not enough, to hold land open to the public, that the public at large is permitted to enter at will upon the land for their own purposes. As in other instances of invitation, the Court said, there must be (1) some inducement or encouragement to enter, (2) some conduct indicating that the premises are provided and intended for public entry and use, and (3) some expectation that the public will not merely be tolerated, but is invited and desired to come.

When a landowner lets local boys play basketball on his vacant lot they are licensees only. If he installs playground equipment and posts a sign saying that the lot is open free to all children, there is then a public invitation, and those who enter in response to it are invitees. So it was with the lake.

– Tom Root

Case of the Day – Thursday, June 27, 2024

Posted on June 27, 2024 by TLRoot tagged.

HOW MUCH IS ENOUGH?

A eucalyptus tree, similar to the one that offended Ms. Cannon.

There was a time, back when people of grit populated the land, that a landowner only had one choice when his neighbor’s trees encroached – to cut ‘em back. The Massachusetts Rule was the coin of the realm: if you didn’t like your neighbor’s tree overhanging your eaves, or its roots wrapping around your sewer line, you only had one option. The courts didn’t want to hear about it. Self-reliance was what it was all about.

Then along came the Hawaii Rule, which suggested that a naturally growing tree could be or could become a nuisance and that an aggrieved landowner could sue for an order requiring its removal. One rule does not necessarily negate the other. So when does one oil up the chainsaw, and when does one fire up the word processor?

The Massachusetts Rule is, generally speaking, a blunt instrument. It’s one thing to cut away branches that pose a threat (or even an inconvenience) to your property. But what if cutting a limb back to the property line leaves a 15-foot leafless stub extending from the branch to the boundary. That’s not necessarily according to ANSI Standard A300, but on the other hand, you don’t have the right to trim it properly unless your neighbor consents to you coming onto his or her land to do so.

Or, more dangerously, what if you cut back roots to the extent that the tree loses too much subsurface support, and falls on your neighbor’s new last-of-its-kind Bugatti Chiron? Are you liable? After all, you did no more than what the Massachusetts Rule permitted you to do.

The Hawaii Rule, on the other hand, is Doug Lewellyn’s dream. What an All-American solution – let’s sue! When is harm sensible? When your foundation walls collapse? When a dead branch falls on your Tourbillon? When leaves clog the filter on your swimming pool? How much harm is enough?

Joan Cannon lived next to Lamar Dunn. Joan was unhappy with the roots from the Dunns’ eucalyptus tree, which were encroaching underground onto her land, as roots are wont to do. After all, a tree will quite often send roots out 35 feet or more from the base of the trunk, and the root system has little regard for some lines drawn on a recorder’s map.

We’re not sure why Joan was so exercised. Maybe she was naturally crotchety. Perhaps she was unusually territorial. Maybe her neighbor had a nice Bugatti, while Joan drove a Yugo. What we can be sure of is that the eucalyptus roots weren’t really causing any harm.

Sometimes encroaching roots can be an inconvenience.

That didn’t stop Joan from suing the Dunns. The trial court denied an award of any damages and refused to order Lamar the appellee to remove the offending roots and tree. Joan appealed.

The Court of Appeals considered the classic Restatement of the Law trespass approach, which held simply that if a neighbor owns something that trespasses, he or she has to remove it if there is a duty to remove it, regardless of whether it causes harm or not. That’s the rub, the court said. When does such a duty arise?

The court found guidance in the Restatement on nuisance and held that a duty to remove offending branches or roots arose when some actual and sensible or substantial damage had been sustained. Joan’s general objection to the unseen eucalyptus roots did not equate to harm. Thus, the roots could remain.

Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (Ariz.App. Div. 2 1985). This case involves the liability of Lamar Dunn, an adjoining landowner, for roots from a eucalyptus tree that invaded the subsurface of land belonging to his neighbor, Joan Cannon. The trial court found that the roots had caused no actual damage, and denied an award ordering the Dunns to remove the offending roots and tree.

Joan appealed.

Held: Dunn did not have to remove the roots. The Court of Appeals rejected Cannon’s argument that it should apply the Restatement (Second) of Torts § 158 (1965), which stated that “one is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally… fails to remove from the land a thing which he is under a duty to remove.”

The Court said that it was “obvious that one must first determine whether there is a duty to remove the object and that in this case § 158(c) really begs the question.” More to the point, the Court observed, was the Restatement (Second) of Torts § 840 (on nuisances), which held that a possessor of land is not liable to his adjoining landowner for a nuisance resulting solely from a natural condition of the land.

Ms. Cannon could not prove any damages flowing from the alleged encroachment … unlike this guy.

The Court paid lip service to the Massachusetts Rule, noting that Arizona law permitted a “landowner who sustains injury by the branches or roots of a tree or plant on adjoining land intruding into his domain, regardless of their non-poisonous character may, without notice, cut off the offending branches or roots at the property line.” At the injured landowner’s expense, of course.

But when some actual and sensible or substantial damage has been sustained, the Court said, the injured landowner may maintain a nuisance action for abatement of the nuisance, and compel the removal of the branches or roots at the tree owner’s expense. However, where no injury has been sustained, no lawsuit be brought for either an injunction or damages.

– Tom Root

Case of the Day – Wednesday, June 26, 2024

Posted on June 26, 2024 by TLRoot tagged.

DRAFT ME A VERBAL CONTRACT

Ah, l’esprit d’escalier! Those biting, snappy comebacks we wish we had said at the time. You know, those retorts that sound like Donald Trump’s tweets.

Today’s case is about something akin to that—not rapier ripostes, but one of those rather important contract terms—how long the multi-year agreement would last—that both parties kind of wished they had discussed when they first made their deal.

And maybe one of them did. To be sure, each probably had what is today called an “exit strategy” in mind. But neither brought it up. And what’s worse, nothing was in writing on the parties’ joint venture to raise and harvest peaches. Samuel Goldwyn was right when he observed that “a verbal contract isn’t worth the paper it’s printed on.”

What’s surprising is that their verbal deal lasted as long as it did. Invariably, however, problems ensued. When Miami Valley Fruit Farm wanted to terminate the deal after about 20 years, Southern Orchards protested that the length of the venture was for the useful life of the trees, meaning that the deal would go on until the trees were worn out. It sort of turns the old Stripes line on its head: you can’t go … until all the plants die.

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

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

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

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

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

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

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

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

– Tom Root