Case of the Day – Wednesday, July 8, 2020

WERE WE ALARMISTS?

Yesterday, we 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?

Which one is Tilford E. Dudley?

Were we 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. The 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 in 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 case 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.

A concrete patch in a tree.

The Court of Appeals was apparently rather impressed that the tree had been patched with enough concrete to build rebuild the 14th Street Bridge. Concrete plugs in trees was 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? There’s no telling, 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 his 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 cement 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 ...

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
TNLBGray140407

Case of the Day – Tuesday, July 7, 2020

YEAH, LITERALLY

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One of the many badges that marks us as curmudgeons, according to a recent book, is our preoccupation with proper language. Sure, we used the current slang, “just sayin’, yesterday, but we trust you recognize irony when it smacks you in the face.

We are not ashamed to admit that our 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 us started about made-up nonsense like “ze” or “Mx.” 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.

But what metaphorically drives us batty is the casual and improper use of the word “literally.” The word means “actually” or “without exaggeration.” Believing as we 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, we were 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.

We were fascinating 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 our disquiet over the witness’s imprecise and flawed language, we were 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 we’ve discussed recently here and here – related 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 ...

How many bees? Literally thousands …

The court said that a few weeks was not so legally insufficient a period 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. And 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 some day.’ 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 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

TNLBGray140407

Case of the Day – Monday, July 6, 2020

IT DOESN’T TAKE THAT MUCH TO BE RECKLESS

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).

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 called 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 subjects 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, and 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. While 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 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 were they responsible for maintaining them. The trial court also noted that Long’s testimony that the only branches cut were those which 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 a 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 the 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

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Case of the Day – Thursday, July 2, 2020

A CAUTIONARY TALE FOR JULY 4TH

As millions of dollars worth of largely illegal fireworks are deflagrated in honor of America’s birthday, it’s a pretty good idea to consider the precautions people need to take in order to remain safe. Especially now, as the pandemic has led to more fireworks mischief here and here and everywhere

There's a reason this was the adult refrain in "A Christmas Story ..."

There’s a reason this was the adult refrain in “A Christmas Story …”

Today’s case reminds us of potential legal ramifications. The incident happened on New Year’s Day, not July 4th, but the risks are similar. A young kid in the neighbors’ yard with their permission … a bottle rocket set off by an adult guest of the neighbor … an eye lost.

The adult who lit the bottle rocket was liable, but inasmuch as she let a default judgment be entered against her, she probably had nothing. So the injured boy’s mother began prowling for a deep pocket. She claimed the homeowner was liable for several reasons, the most interesting of which was the doctrine of attractive nuisance.

Attractive nuisance balances two competing societal interests, that of protecting children (recognizing that most children will trespass on occasion and sometimes are injured when they do so) and landowners’ interest in not being unreasonably burdened to ensure that their property is safe for those children who trespass. Under the doctrine, a landowner who maintains dangerous instrumentalities on the premises easily accessible to children and likely to attract them in play, or permits dangerous conditions knowing that children are in the habit of using such things for play and who fails to exercise ordinary care to prevent children from playing with them, is liable for injuries to the children.

What is a “dangerous instrumentality?” Check out the top ten …

Brandon Keith fell into the 17% of kids with eye injuries ...

Brandon Keith fell into the 17% of kids who suffer  eye injuries …

In today’s case, the landowner escaped liability because he had exercised ordinary care. But amidst the picnic food and beer and adults playing with fireworks, some kids are going to get hurt on July 4th, and some landowners who let it go on knowing that kids might be attracted — even without permission — may be liable.

Have a safe Fourth of July.

Keith v. Peterson, 922 So.2d 4 (Ct.App. Miss. 2005). Young Brandon Keith was struck in the eye by a bottle rocket while playing with friends in the Petersons’ back yard.

The Petersons had held a New Years Eve party the night before, and some of the Petersons’ friends were picking up unused fireworks — which a few of previous night’s partygoers had brought with them the night before — which were strewn around the yard. Brandon, who had attended the party because he was visiting his grandmother across the street, got permission to play in the Petersons’ yard by his grandmother as well as by Mrs. Peterson. While the children were playing hide and seek (and Brandon was hidden in the bushes), one of the people cleaning up the yard lit a bottle rocket and threw it into the air. The rocket ignited, flew across the yard and put Brandon’s eye out.

Mr. Peterson was on his way home from an errand at the time, and didn’t know Brandon was in the yard. The woman who had lit the rocket had no idea Brandon was hidden in the bushes. Brandon’s mother sued Mae Langston, who had lit the rocket, and the Petersons. Mrs. Keith obtained a default judgment against Mae for $350,000, but the trial court granted summary judgment for the Petersons and dismissed the case against them.

Held: The trial court’s dismissal was upheld.

The Court of Appeals first considered whether Brandon was an “invitee” — one who enters the property of another in response to an express or implied invitation of the owner or occupant for their mutual benefit — or a “licensee” — who enters another’s property for his own benefit or pleasure — or a mere trespasser. A landowner owes the highest duty to an invitee, the duty to maintain his property in a reasonably safe condition, and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view. For a licensee or trespasser, on the other hand, a landowner owes only the duty to have refrain from willfully or wantonly injuring him or her. Normally, the status of the plaintiff is a jury question, the Court said, but where the facts aren’t in dispute, the court can make the determination as a matter of law. In this case, young Brandon was on the Peterson property as a “licensee,” because he had the Petersons’ permission to be there and he was there for his own pleasure — to play with other children — rather than for the Petersons’ benefit. Because Brandon was a licensee, the Petersons only owed him a duty to refrain from willfully or wantonly injuring him.

Want the kids to enjoy some fireworks? Take them to a display put on by trained and licensed professionals. And have a great July 4th ...

Want the kids to enjoy some fireworks? Take them to a display put on by trained and licensed professionals. And have a great July 4th …

To breach that duty, the Court said, requires more than mere inadvertence or lack of attention. Instead, the landowner’s conduct must show conscious disregard of a known serious danger. Here, the Court ruled, the undisputed evidence showed the Petersons didn’t engage in wanton or willful conduct. The property owner was riding his bicycle towards his property when he saw children playing in his yard and two adults cleaning up fireworks, and it was at this time that Mr. Peterson saw one of the adults ignite the bottle rocket. He didn’t know that Brandon was one of the children playing on his property until he heard his scream, and Brandon testified that Mae Langston didn’t know that he was hiding behind hedges. And because the guests cleaning the yard weren’t paid employees, the doctrine of respondeat superior did not apply to make the Petersons liable.

Brandon’s mother argued that the doctrine of attractive nuisance applied to this action. The Court noted that the theory of attractive nuisance was that a landowner was subject to liability for physical harm to children trespassing thereon if the property owner failed to exercise ordinary care in maintaining the dangerous instrumentality which attracted the children. That didn’t apply here, the Court said, because the record showed that Mr. Peterson exercised ordinary care, he was not liable. There was no testimony that he had allowed children to ignite the remaining fireworks without supervision. In fact, he had two adults removing fireworks from his yard, and he was not on his property at time of incident and was unaware of licensee Brandon’s presence on his property.

– Tom Root

TNLBGray140407