Case of the Day – Wednesday, August 3, 2022


The old (and not necessarily flawed) legal aphorism goes something like “possession is nine-tenths of the law.” In the world of Federal Tort Claims Act litigation, the expressions would just as accurately read “discretion is nine-tenths of the law.”

Yesterday, we discussed the Federal Tort Claims Act, and its function as a waiver of sovereign immunity to permit suit against the United States for some kinds of claims.

What we did not tell you yesterday is that there are some exceptions you should know about. If a federal law enforcement agent seizes all of your stuff and then destroys it? Tough luck, fella. If the Postal Service loses your mail? You can guess. A surly Social Security Administration clerk punches you when you complain that you got shorted on your check? Pound sand. Don’t believe it? Read Title 28, U.S. Code, Section 2680(a).

Of all the exceptions, the one hardest to fathom (and easiest for the government to game us with) is the first exception. A district court has no jurisdiction (which means it cannot hear your lawsuit) over claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a).

Some of this makes sense. The government decided not to build a dam on a river above your town. That does not mean the government is liable for the next flood. The government-run control tower at an airport closes at 10 p.m. The government is not liable for a collision on the runway at midnight.

But some of it may not. In today’s case, the U.S. Geological Survey constructed a “cableway” – a cable strung over a wild and scenic river in Arizona for the purpose of accessing a “streamgage” station, a series of devices used to measure river flow, temperature, turbidity and water level. When a helicopter struck the naked and unmarked cable, killing everyone on board, the survivors sued the USGS under the FTCA for negligence in failing to mark an obvious danger. After all, the USGS had had aircraft strike its cableways before. You’d think the agency would know better.

The Court of Appeals, however, affirmed that the USGS’s failure to mark the cable fell “squarely in this discretionary function exception.” With no evident sense of irony, the Court warned that the “invocation of the discretionary function doctrine in cases involving public safety should not be read as giving the government a pass every time it raises the exception.” Judging from this case, it is difficult to accept the Court’s admonition at face value.

Perry v. United States (In re Morales), 895 F.3d 708, 710 (9th Cir. 2018). The U.S. Geological Survey is a federal agency responsible for collecting scientific information about the “geological structure, mineral resources, and products of the national domain.” As part of its duties, USGS collects streamflow data and water quality samples to predict floods, manage drinking water, evaluate water quality standards, aid in the preservation of aquatic habitats, and investigate streamflow history and climate change. This information is collected through “streamgage” sites that include a continuously functioning measuring device that collects the mean daily streamflow in a particular watercourse. When a streamgage site is installed in a location without a bridge, USGS generally builds a cableway — a cable car suspended from a wire rope—to provide USGS personnel with safe access to the site.

In 1934, USGS installed a streamgage site and cableway over the Verde River Canyon in Prescott National Forest, Arizona. USGS has operated the streamgage site since 1932. The cable stretched 286 feet across the canyon at a height of 40 feet above the river. Despite the cable being virtually invisible from 100 feet or more away, or to aircraft flying at the same height, USGS did not mark the cableway or add warning signs because the cable did not meet the criteria for marking under USGS policy.

Since 1980, USGS has modified its policy on marking several times, often in response to accidents involving cableways. In each case, however, it adopted Federal Aviation Administration standards for marking obstructions to airspace. The FAA regs required marking of objects more than 200 feet above the ground (“AGL”), and suggested that marking of cableways should be considered if they are hazardous to low-flying aircraft. USGS District offices were directed “to review all… cableway installations and decide which may be hazardous to low-flying aircraft,” and to develop “[a] plan… to install markers on those cableways designated as potentially hazardous.”

After an aircraft struck an unmarked cableway in 1995, USGS considered “a broad policy to require the marking of all cableways,” but ultimately decided against it after consulting with an FAA Air Specialist, who reviewed photographs and aeronautical charts for a subset of cableways and recommended against marking them because none met the FAA criteria for marking obstructions. The expert recommended against marking any USGS cableways that did not meet the FAA criteria.

USGS later issued Memorandum No. 2000.13, which recognized that “Congress has charged the FAA with the responsibility to promote the safety of aircraft and the efficient use of navigable airspace,” and repeated USGS’s policy that structures over 200 feet AGL “should normally be marked,” but specified nothing for cableways under 200 feet AGL. In 2008, USGS issued a policy manual — Survey Manual, No. SM 445-2-H (the “2008 Survey Manual’’) — that was functionally the same as the 2000 Memorandum. The 2008 Survey Manual repeated that it was USGS policy to comply with the FAA’s obstruction marking regulations.

Even though the default policy was not to mark cableways under 200 feet, USGS also considered site-specific and other factors to determine whether to mark cableways that did not meet FAA criteria. The specific considerations relevant to the Verde River cableway included the absence of any prior accidents; the cost of installation; the physical risk to employees installing markers; the risk of confusion to pilots who expect to see markings at higher heights; the likelihood of vandalism by marksmen and accompanying economic and safety concerns; and the United States Forest Service’s scenic integrity objectives to “minimize or eliminate visual distractions” in the area given the Verde River’s designation as a “Wild and Scenic River.”

In June 2012, a helicopter flown by Raymond Perry crashed in the Prescott National Forest, killing Perry and his three passengers. The chopper struck the unmarked cableway suspended forty feet above the Verde River by USGS as part of its cableway. Although the cable was virtually invisible to aircraft pilots, USGS placed no markers or warning signs out because the unmarked cableway complied with the FAA obstruction regulations.

Following the accident, Perry’s estate sued, claiming that USGS was negligent for failing to mark the cable. The district court held that the decision not to mark the cable was a discretionary function of USGS, and thus exempt from the Federal tort Claim Act. It thus held it lacked subject matter jurisdiction and dismissed the lawsuit.

Perry’s estate appealed.

Held: USGS was exempt from liability because its decision not to mark the cableway was a discretionary function of the agency.

The FTCA waives the government’s sovereign immunity for tort claims arising out of negligent conduct of government employees and agencies acting within the scope of their duties, allowing a plaintiff to sue the government “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” If there is no waiver of sovereign immunity through the FTCA, the district court lacks subject matter jurisdiction and the case must be dismissed.

One exception to the broad waiver of sovereign immunity under the FTCA is called the discretionary function exception. That exception provides immunity from suit for any claim “…based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” The purpose of the exception is to prevent “judicial ‘second guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”

There is a two-step process to determine applicability of the exception. First, a court must decide whether the act is “discretionary in nature,” which necessarily involves an element of judgment or choice. The “judgment or choice” requirement is not met where a “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” If a statute or policy directs mandatory and specific action, the inquiry comes to an end: there can be no element of discretion when an employee has no rightful option but to adhere to the directive.

If discretion is involved, then a court must consider whether the discretion “is of the kind that the discretionary function exception was designed to shield” — that is, governmental actions and decisions grounded in social, economic, and political policy. The focus is on whether the actions are “susceptible to a policy analysis,” not whether the government actually took such public policy judgments into consideration when making the decision.

No federal statute, regulation, or policy specifically prescribed the marking of the Verde River cableway. Instead, the decision whether to mark the cableway was a result of considered judgment and choice. The Verde River cableway fell within USGS’s default policy not to mark cableways that did not meet the FAA’s 200-feet AGL criteria. Nor did the cableway trigger any of the verification requirements set forth in the 2008 Survey Manual and 2000 Memorandum, which only applied to cableways exceeding 200 feet AGL that were not marked.

Thus, there was no mandatory directive within USGS’s policies to mark the cable. That USGS policy let its personnel consider s specific factors which necessarily varied by site “highlights that judgment was involved in the decision.” This is not an instance, the Court said, “in which USGS’s policy identified site-specific considerations that mandated marking. No such guidance was provided in any USGS policy, so USGS employees were left to exercise their judgment when deciding whether to mark a particular site.”

Although its policy directed personnel “to review” all cableways, “decide which may be hazardous,” and develop a plan to install markers at those sites, USGS’s language cannot be construed as a “mandatory and specific” directive to mark the Verde River cableway. Rather, the policy left employees with a discretionary choice about which cableways were hazardous and which should be marked.

What’s more, the Court held, USGS’s decision is susceptible to policy analysis grounded in social, economic, and political concerns. USGS’s decision to defer to the FAA as the agency charged with “the responsibility to promote the safety of aircraft and the efficient use of navigable airspace”’ is grounded in social, economic, and political policy. USGS recognized the FAA’s role and expertise in regulating navigable airspace and affirmatively decided to defer to the agency’s standards with respect to marking.

Verde River

As well, USGS’s decision was susceptible to a number of additional social, economic, and political considerations. There were competing safety concerns, such as the risk of confusing pilots “who expect to see obstruction markers only at higher levels,” and the risk to USGS personnel tasked with installation or maintenance of the markers. Economic factors were also considered, such as the cost of installation and maintenance of the markers, particularly given the likelihood of vandalism. USGS also knew of USFS’s objective to minimize visual distractions to meet “scenic integrity objectives” given the Verde River’s designation as a “Wild and Scenic River’ and bald eagle nesting area.

“All of these considerations,” the Court ruled, “embody the type of policy concerns that the discretionary function exception is designed to protect, reflecting that USGS’s decision was based on competing policy considerations related to safety to aircraft, safety to USGS personnel, financial burden, protection of scenic integrity, and respect to the objectives of land-management agencies.”

The Court refused Perry’s argument that the government ought not to be allowed to invoke the discretionary function exception whenever a decision involves considerations of public safety. Such a “sweeping exemption would severely undermine the discretionary function exception and is unsupported by our precedent,” the Court held. “In case after case, we have considered the government’s balancing of public safety with a multitude of other factors.” Here, USGS’s decision not to mark the cableway was “actually susceptible to policy analysis, including deference to another agency’s expertise, competing safety interests, financial burden, and the effect on scenic integrity.”

The Court warned that its “invocation of the discretionary function doctrine in cases involving public safety should not be read as giving the government a pass every time it raises the exception. We emphasize that the government bears the burden of sustaining the discretionary function exception and that the record must bear the weight of that burden.”

– Tom Root


Case of the Day – Tuesday, August 2, 2022


It’s good to be the king

Suing the government is a daunting task. Besides the fact that the government has more lawyers than you do (about 32,000, plus or minus), the government makes the rules about when you can sue and when you’re out of luck. Never bet against the house.

The doctrine that lets Uncle Sugar rig the game is called “sovereign immunity,” and holds, simply enough, that you can’t sue the king. Dating from medieval times, when there actually was a king not to sue, that particular kind of immunity has spilled over to present-day America. You cannot sue the government – federal, state or local – without the government’s permission to do so.

Who’s crazy enough to give you permission to sue them? The government, of course. In federal law, permission to sue for a tort (such as negligence) is enshrined in the Federal Tort Claims Act. The FTCA grants the district courts jurisdiction to hear negligence and some other tort cases against government agencies and officials.

Some but not all. What we are particularly interested in today is the intersection between the FTCA and state recreational use statutes. Recreational use statutes, of course, are laws passed in virtually every state that afford landowners protection from liability when they make their property available without charge to the general public for recreational activity.

Even if you successfully bring an FTCA action, you still have to hold the government to the negligence law of the state in which the act occurred. Today’s case, just handed down by the U.S. Court of Appeals for the 8th Circuit, is in all likelihood the final act of a tragedy that began with a slow-moving summer storm in 2010 that cause unprecedented flooding at a U.S. Forest Service campground in the Ouachita National Forest of Arkansas. Twenty campers were killed, and in subsequent litigation, it developed that the forest ranger in charge had exerted his influence to ram through construction of an improved campground in a floodplain, contrary to the advice of one expert.

Even that was not enough to hold the government liable, because the Arkansas Recreational Use Statute contained enough of a loophole to get Uncle Sam off the hook. The question was whether the activity – which initially seems like simple camping – was common or uncommon. The Court narrowed the definition of the activity, but still found that it was common enough that the Forest Service’s failings were merely negligent (against which it was immune) rather than ultra-hazardous.

That did not save the campgrounds, however. The aftermath of the tragedy (and the lawsuits it spawned) left the campground closed and in ruins. While the Albert Pike Recreation Area itself remains open, the campgrounds are still abandoned. Ironically, flood warnings – which the experts had recommended but the Forest Service failed to post before the flood – are prominent now.

Moss v. United States, 895 F.3d 1091 (8th Circuit U.S. Ct.App., July 20, 2018): Albert Pike Recreation Area is a large outdoor camping and recreation site. Winding through the site is the Little Missouri River, which gives visitors the opportunity to engage in popular recreational activities including fishing, canoeing, and swimming. The site also contains 54 campsites placed over four loops, Loops A, B, C, and D. In 2010, campers paid $10.00 for an overnight campsite in Loops A, B, or C, and $16.00 for a site in Loop D. Loop D’s higher cost was due to its campsites including electrical and water hookups for RVs.

The Loop D campsites were constructed as part of a renovation and expansion project for Albert Pike launched in 2001, which spent over $600,000 to renovate sites in Loop C and to build Loop D campsites. The redevelopment project was headed by District Ranger James Watson.

As part of the environmental assessment, Ranger Watson hired two “watershed specialists,” soil scientist Ken Luckow and hydrologist Alan Clingenpeel.

Luckow prepared an initial report that concluded that “most of the area where the new campsites are proposed… should be considered as being within the 100-year floodplain.” He recommended that any campsite in Loop D should not include electrical or water hookups and that signs warning of a flooding hazard be posted.

But Ranger Watson wanted to build developed campsites within Loop D, because that was what had been promised to get the funding, and thus was expected by the public due to the marketing campaign that had gone on. The Ranger, therefore, took hydrologist Clingenpeel to the planned site for Loop D and asked him whether he believed the proposed campsite would fall within the 100-year floodplain. Clingenpeel visually estimated the floodplain using the “double bankfull” method (which he himself described as only a “quick estimate” of the floodplain), and told Ranger Watson it was unlikely there would be flooding issues if all renovations took place above the sighted floodplain.

The environmental assessment partially included Luckow’s floodplain analysis, but ultimately contradicted Luckow with Clingenpeel’s conclusion that the proposed Loop D campsites would not fall within the 100-year floodplain. Despite the conclusion, the environmental assessment still recommended posting signs to warn of flash floods. The Forest Service approved the project, including building developed campsites within Loop D. The decision notice made no reference to the floodplain or the need to place signs.

Loop D opened for campers in 2004, experiencing occasional minor flooding concerns for different campsites. Of ten flooding events in Albert Pike between 1940 and 2010, none inflicted any reported injuries and only one occurred near Loop D.

That changed on June 11, 2010. A strong storm system moved slowly toward Albert Pike Recreation Area, resulting in flash flood conditions on the Little Missouri River. By the time flooding was apparent, many campers were asleep at their campsites. Many of those who were awake decided to wait out the storm out in their vehicles. As the water continued to rise, some campers realized that their vehicles might be at risk from the flood and attempted to move to higher ground. Several families sought refuge in nearby trees.

Over the course of the next several hours, catastrophic flooding claimed the lives of 20 campers. Seventeen of the campers who died were camping in Loop D, with the other three just upstream. A U.S. Geological Survey expert described the flood’s intensity as exceeding a “500-year flood event.”

The plaintiffs in this case filed claims under the Federal Tort Claims Act, claiming negligence in the development and maintenance of the Loop D campsites. The government moved to dismiss, claiming the Forest Service was entitled to immunity under the Arkansas Recreational Use Statute, thus depriving the district court of jurisdiction under the terms of the FTCA.

The plaintiffs appealed.

Held: Because the Forest Service was not liable under ARUS, the district court had no jurisdiction to hear the case.

The FTCA prohibits suing the government except in limited circumstances. Unless the suit falls within one of the exceptions, the Federal district court lacks the jurisdiction to even hear the case. Among other provisions, the FTCA provides that the government is entitled to the benefit of the state recreational use statute in the state where the lawsuit arose, if there is such a statute on the books.

The FTCA confers subject matter jurisdiction on federal courts for suits against the government in “circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Because the FTCA removes immunity from the United States only in such circumstances, the Court said, the issue became whether a private landowner who had designed and built Loop D would be immune from suit under the ARUS.

The purpose of the ARUS is “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Ark. Code. Ann. § 18-11-301 (2016). Generally, the ARUS provides immunity from liability to landowners who make their property available for the recreational use of others, with two exceptions: (1) when the landowner charges the person entering the land for recreational use; and (2) “when the landowner maliciously fails to guard or warn against an ultra-hazardous condition, structure, use, or activity actually known to the landowner to be dangerous.”

The ARUS generally does not provide immunity for injury suffered in any case in which the landowner charges admission to people who go on the land for recreational use. The statute defines a “charge” as an “admission fee for permission to go upon or use the land.” Ark. Code Ann. § 18-11-302(2) (2016). The parties disputed whether the $16.00 fee to secure a campsite in Loop D is an “admission fee” that “charged” the plaintiffs for their recreational use of Loop D, with the government arguing that other states usually interpreted their recreational use statutes to exclude campsite rental fees from qualifying as “admission” fees.

The Court cautioned that “the interpretation of the various recreational use statutes is controlled by the precise language of each statute,” and observed that the Arkansas Supreme Court has suggested that the ARUS should be construed strictly to avoid an overbroad grant of immunity. Nevertheless, the Court of Appeals said, “even construing the ARUS strictly, however, the Loop D campsite fee does not qualify as an ‘admission fee’ under the statute. The plaintiffs argued they were injured while camping — the exact activity for which they paid the use fee. But the ARUS, by its plain terms, removes immunity only when a fee 1s charged to enter a particular area.” The $16.00 overnight campsite fee was charged solely for access to particular campsite services. Campers who didn’t pay the fee could still access Loop D. Thus, the Court held, “under the plain language of the statute, the charge exception does not apply to the Loop D fees.”

The ARUS’s other exception denies immunity “for malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use, or activity actually known to the owner to be dangerous.” Ark. Code Ann. § 18-11-307(1). An activity is ultra-hazardous if it “necessarily involves a risk of serious harm to the person or [property] of others that cannot be eliminated by the exercise of the utmost care” and “is not a matter of common usage.”

The trick, the Court said, was to properly define the activity. On the one hand, describing the activity as merely “camping” would make it a “matter of common usage” but would not take into account relevant distinguishing characteristics. On the other hand, describing an activity as “camping on June 11, 2010, at a particular time and location in Ouachita National Forest,” would make the activity “uncommon” simply because it “is not precisely the same as its close relatives.” The Court observed that Arkansas law indicated the appropriate level of generality should take into account “some particularizing factors, such as distinct and appreciable risks that might arise from engaging in an activity in a specific area.” Thus, the Court concluded the activity at issue here was “camping in a 100-year floodplain.” This description appropriately pegs the definition to the knowledge that plaintiffs suggest the government should have had regarding “the danger posed by a 100-year floodplain without including non-salient attributes of the tragedy.”

Camping within a 100-year floodplain is not an uncommon recreational activity in Arkansas. Camping near water poses some risks, but campers, fishermen, and other outdoorsmen frequently do so, even when it places them within 100-year floodplains. Because the activity is a “matter of common usage,” the Court said, “ARUS’s immunity would extend to a private landowner facing this claim.” And because a private landowner would be immune under the ARUS, there is no jurisdiction under the FTCA for plaintiffs’ claims against the United States.”

– Tom Root


Case of the Day – Monday, August 1, 2022


treefall140516When a late summer storm blew up in Minneapolis, Chauncey Moua and his wife decided to retreat to the safety of their home to await its passing. They pulled up at home to take shelter. That’s when Mr. Moua decided to park in front of the neighbors’ house, because the neighbors’ tree, the branches of which were overhanging the Moua homestead, was swaying dangerously in the high winds. As he parked the car, a branch fell, killing him.

What do you do after the funeral? After a suitable period of mourning – maybe a few hours or so – you could hire a really dedicated lawyer. Like maybe Doug Crawford. According to the California Court of Appeals, Mr. Crawford appeared at a deposition with pepper spray and a stun gun. Before the questioning began, Crawford held the can of pepper spray about 3 feet from the face of the opposing lawyer, Walter Traver, and warned him: “I will pepper-spray you if you get out of hand.”

Way to be an advocate, Doug! We’ve sat through countless droning hours of depositions ourselves, and we can fairly predict that we’d have paid cash money to see Doug yell, “Objection!” and fry his learned opponent’s butt. Any plaintiff wants a lawyer who won’t mess around.

Objection! Counsel is tasing the witness.

Objection! Counsel is tasing the witness.

Mrs. Moua couldn’t line up barrister Crawford, but she found herself a shark nonetheless. Her attorney sued her neighbors, the Hastings, for negligence. That was hardly a surprise, but the count for trespass he added on Mrs. Moua’s behalf made the case somewhat unusual. The claim was novel: the complaint alleged that branches from the Hastings’ tree fell on the Moua property, creating a trespass. The damage from the trespass, Mrs. Moua claimed, was the death of Mr. Moua.

Credit her lawyer with a creative argument, but the Court of Appeals said “no cigar.” Mr. Moua had pulled up in front of the neighbors’ house and was standing in the street next to his car when he was struck. In other words, the tree branch that caused the damage – that is, struck Mr. Moua – was not trespassing on Moua property. As for the claim that the trespassing branches on Moua’s property forced Mr. Moua to move his car elsewhere, and while doing so he was killed, the Court found the injury to Mr. Moua was too remote to the trespass for a causal link to have been shown. Shades of Mrs. Palsgraf!

The original "reasonable foreseeability" negligence action ... a Rube Goldberg tort.

The original “reasonable foreseeability” negligence action … a Rube Goldberg tort if ever there was one.

What, you might wonder, was to be gained from adding a trespass count to the lawsuit? Mrs. Moua had already claimed the neighbors were negligent in not taking care of their tree. The answer lies in fault finding. To win a negligence count, Mrs. Moua had to show the neighbors had actual or constructive notice that the tree was dangerous. Trespass is much simpler. All Mrs. Moua had to show there was that the branches fell onto the Moua property. A trespass cause of action would make collecting big bucks from the Hastings much easier.

The Court left for another day the interesting question of whether a falling branch belonging to another that strikes a landowner on his land might be a trespass.

Moua v. Hastings, 2008 Minn. App. Unpub. LEXIS 465, 2008 WL 933422 (Minn.App., April 8, 2008). Blia Moua and her husband, Chauncey Moua, left their home in Minneapolis to pick up their daughter from work. After driving a few blocks, they noticed that the weather suddenly worsened. Moua and her husband became fearful and decided to return home after they saw tree branches falling due to the heavy rain and wind. When they got there, they stopped their vehicle in front of their own home, but Chauncey decided to move the car because he was worried that the storm would blow branches of trees belonging to their neighbors, the Hastings, onto the car. The Hastings lived next door to the Mouas, and some branches of a tree in their front yard hung over the Mouas’ yard. Mr. Moua parked the vehicle in front of the Hastings’ home — where he parked often — and got out of the car when a branch fell from a tree, killing him.

Mrs. Moua admitted that she saw the Hastings’ trees on a daily basis and had never noticed any dead branches. Neither she nor her husband had ever asked the Hastings to trim the trees.

After the Mouas sued for trespass and negligence, the Hastings moved for summary judgment. As for Mrs. Moua’s claim that the branches that had fallen were a trespass on her land by the Hastings, the trial court held that Mrs. Moua had not established how the branches interfered with her use and enjoyment of her property, and the only danger caused by the tree’s branches was due to a severe storm that was noted as one of the worst in several years. Mrs. Moua appealed.

Mrs. Moua's lawyer was pretty sharp - just a little ahead of his or her time.

Mrs. Moua’s lawyer was pretty sharp – just a little ahead of his or her time.

Held: Summary judgment was affirmed. The Court of Appeals held that in Minnesota, a cause of action for wrongful death is purely a legislative remedy. A cause of action for wrongful death exists when death is caused by the wrongful act or omission of any person. Although causation is generally a question of fact for the jury, where reasonable minds can arrive at only one conclusion, causation becomes a question of law, and it may be disposed of by summary judgment. Trespass encompasses any unlawful interference with one’s person, property, or rights, and requires only two essential elements: a right of possession in the plaintiff and unlawful entry upon such possession by the defendant.

Here, the Court said, the trial judge correctly concluded that even if there had been a trespass, there was no causal link between that trespass and the injury that occurred. The undisputed facts showed that the injury to Mr. Moua occurred on the public street in front of Hastings’ house. Even looking at the evidence in the light most favorable to Mrs. Moua, the Court said, as a matter of law she failed to present a causal link between the alleged trespass by the Hastings’ tree branches and Mr. Moua’s death in the street.

The Court thus concluded that summary judgment in favor of the Hastings on the wrongful death claim was proper.

– Tom Root


Case of the Day – Friday, July 29, 2022


When I was a kid, we had a cottonwood in the far backyard that my father christened “The Mess Tree.” It was not a sobriquet of affection.

The Mess Tree seemed to shed leaves and twigs all 12 months of the year. It was stubbornly marcescent, slow rolling its autumnal leaf drop from late August through February. Its twig production was prodigious: we all knew never to walk barefooted anywhere near the drip line. And when it released its seeds in June, the backyard looked as though it had been dusted with an early November snow.

Until I became responsible for my own yard, I could not understand my father’s disgust at The Mess Tree. But I am now responsible for a pair of cottonwoods in my own side yard, and I have empathy – a little late in coming, I admit – for Dad’s frustration.

For that matter, like many people, I understand Helena and Joe Ponte’s vexation at Silverio DaSilva’s weeping willow. As unhappy as Dad was at his cottonwood, it was his cottonwood: he could remedy the problem with a single call to our neighborhood tree service. But when Silverio’s tree rained its ration of sap, twigs and other debris onto the Ponte’s lawn and driveway, all they could do is demand that Silverio cut it down.

He would not.

Finally, when Helena slipped on some wet leaves and twigs, breaking her ankle, the Pontes brought in their lawyer.

Satisfaction did not follow. Silverio’s weeping willow was a fine, healthy tree. It was just doing what trees do. And that, the Court said, was fine. A tree gonna do what a tree gonna do, and the law won’t get in its way.

Ponte v. DaSilva, 1982 Mass.App.Div. 6 (1982). Helena Ponte lived next to Silverio DaSilva and his magnificent weeping willow tree. The tree, standing about four feet from Silverio’s boundary with Helena, overhung the picket fence and Helena’s driveway.

Helena began noticing all of the leaves, sap and branches that fell from the tree onto her driveway about two years before the accident. She complained to Silverio, demanding he cut down the tree. Leaves and debris were clogging Helena’s gutters and swimming pool filter. Sap and tree debris (leaves and twigs, no doubt, inasmuch as willows don’t have much fruit) fell on Helena’s Studebaker. And of course, Helena darkly foretold, there was the ever-present slip-and-fall risk.

Helena’s attorney then wrote to Silverio, complaining that Helen’s husband had already fallen on the leaves and debris. The letter portended similar incidents unless the tree were removed.

Sure enough, Helena went down due to the leaves and sap about 10 days later, breaking her ankle. She sued.

The trial court found that the tree was not diseased and that the leaves, sap and debris which fell were due to the natural characteristics of weeping willow trees. They do, after all, “weep.” Nevertheless, the trial court awarded Helena $15,000 and her husband another $3,000 for loss of consortium (which we will not endeavor to describe here).

Silverio appealed.

Held: Helena and Joseph got nothing, and the tree kept on being a tree.

The crucial issue, the Court of Appeals said, was whether under the circumstances Silverio owed a legal duty to Helena and Joseph to remove the tree. If so, then he would be liable for the damages caused by a breach of that duty.

The Pontes claimed essentially that the weeping willow was a nuisance because it bothered them. But the test for nuisance, the Court held, was not whether the conduct or activity would be objectionable to a hypersensitive person, but rather whether a normal person in the community would find the conduct at issue clearly offensive and annoying.

The Court observed that the tree had been there for some time, and it was obviously quite alive. No evidence in the record showed the tree to be a hazard (beyond Helena’s ankle, of course) to life or property. Trees “whose roots or branches extend beyond the boundary line,” the Court said, “have been held not to constitute a nuisance in themselves.” In fact, the Court noted, “the Restatement of Torts suggests that where the tree is a part of the natural condition of the land, there is no liability for private nuisance.”

The Court characterized Michalson v. Nutting (the case that was the origin of the Massachusetts Rule) as addressing the notion, albeit obliquely, of a tree as a nuisance. There, the Court said, “the Supreme Judicial Court held that the natural and reasonable extension of the roots and boughs of trees into adjoining property was damnum absque injuria.” The rationale given for this approach “is that to allow recovery in such situations would inundate the courts with frivolous and vexatious suits.”

But Helena argued that the underpinnings of the Michalson case had eroded to the point that a new theory of liability would and should make the defendant legally responsible in a case such as this. The Court dismissed her argument for a change in the law, noting that the line of cases she relied on to make her point all involved trees that were diseased, decayed or dead. Silverio’s weeping willow, on the other hand, was very healthy.

The right of a landowner to use and enjoy it for lawful purposes, the Court said, must be weighed against the likelihood of substantial harm to a neighboring landowner in cases of private nuisance. A dead, diseased or decayed tree has little or no utility to its owner and poses a foreseeable threat to adjoining landowners from falling limbs. A live tree, on the other hand, provides shade and will generally enhance the landowners’ property. The facts that leaves or other debris will naturally fall from live and healthy trees that are harmless in and of themselves, and that such falling leaves and twigs might cause some inconvenience or annoyance to neighbors does not render the tree’s owner liable for damages.

– Tom Root


Case of the Day – Thursday, July 28, 2022


goodintent151216My late and sainted mother had several favorite expressions. One of them was “he meant well.”

According to Mom, everyone meant well. The Khmer Rouge? Maybe just a little too zealous, but real back-to-nature folks. Mao? Well, there were too many people to feed, anyway. But he did get everyone to read more… even if it was The Little Red Book.

Sure, Mom. Everyone means well.

If you want a real-life example of someone who meant well, look no further than our hero in today’s saga, timberer Brad Fournia. Brad was hired to harvest some hardwood up in Clinton County, New York. And we mean “up.” Not all of New York is urban, you know. Clinton County is hard against the Canadian border, home to 78,000 people, a few thousand hardened criminals, and a lot of forest.

Well, maybe not quite as much forest as before.

It seems that landowner John Jamison hired Brad to harvest some trees. Brad, being a careful sort, asked John to mark the property line, so he didn’t stray into anyone else’s timber. Jamison showed Brad an old line of surveying ribbons that purportedly marked the property line.

Regular readers of this blog know where we’re going. It wouldn’t be much of a story if the ribbons were really marking the boundary, and Brad and his crew carefully cut on the Jamisons’ side of the line. Of course not.

Remember these guys? We doubt they meant well, no matter what Mom says.

Escapees: Remember these guys? They used to live in Clinton County, too. We doubt they meant well, no matter what Mom says. 

Surprisingly, the ribbons did not mark the actual property boundary, which resulted in Brad cutting down 488 trees belonging to Mr. Halstead. Of course, Mr. H. sued.

There wasn’t any question that Brad had trespassed. After all, a trespasser does not have to intend to trespass. He just has to intend to be where he ends up, which is on someone else’s land. The issue was how much Brad owed Mr. Halstead for the blunder. (And, yes, John Jamison got sued, too, so you can be sure he’ll be sharing in paying the damages).

Both Brad and Mr. Halstead submitted proof of the stumpage value of the 488 trees, and it came to about $5,000. Unfortunately for Brad, about 12 years ago, the New York legislature – apparently between scandals and pandemic bans – decided that timber theft was rampant in the Empire State. It passed RPAPL 861, which confusingly directed that the penalty for defendants cutting trees that didn’t belong to them “shall be … the stumpage value or [$250] per tree, or both.”

You can do the math. At $250 per tree times 488 trees, Brad and his codefendants were looking at about $122,000 in damages for timber that was worth about $5,000.

Clinton County - pretty far from the Big Apple.

Clinton County – pretty far from the Big Apple.

The trial court had trouble with such a princely figure, the result of the state lawmakers not really thinking through how their “get tough on timber thieves” measure might get applied in the real world. The court said there was a question of fact to be decided, whether the defendants “had good cause to believe that [they] had a legal right to cut plaintiffs’ trees.” Even Mr. Halstead had to concede that Brad and John Jamison believed in good faith that they were entitled to remove the trees.

In New York, good-faith belief and $4.00 is enough for a small Starbucks. The appellate court noted that Mr. Halstead was electing to seek statutory damages of $250 per tree, and that’s what the minimum he’s entitled to under the law.

Brad argued that damages of $250 per tree were not mandatory, and RPAPL 861 affords discretion to the trial court to award a lesser amount of statutory damages. The Appellate Division rejected that novel reading of the statute. Statutory damages of $250 per tree cannot be reduced, and the damages in this case amount to $122,000 “given the undisputed fact that 488 trees were removed.”

However, the Court said, because the parties put in evidence of actual loss, the trial judge could decide that the lesser amount was enough to compensate Mr. Halstead. It sent the case back for trial.

Timber trespass in New York State just got very costly.

mybad151216Halstead v. Fournia, 22 N.Y.S.3d 606, 134 A.D.3d 1269 (Supreme Court, Appellate Division, 3rd Dept., 2015). Defendant John Jamison hired defendant Brad Fournia to cut timber on Jamison’s land.. Jamison showed Fournia an old line of surveying ribbons that purportedly marked the property boundary. It turned out they did not, which resulted in Fournia cutting and removing 488 trees on plaintiffs’ property.

Plaintiffs sued. The trial court granted summary judgment on the issue of liability, but found that questions of fact required a trial on the issue of damages. Plaintiffs appealed.

Held: If statutory damages are imposed, Plaintiffs must be awarded $250 per tree. Defendants conceded that they removed timber without permission to do so, rendering them liable under RPAPL 861. However, the trial court found questions of fact with regard to whether defendants “had good cause to believe that [they] had a legal right to cut plaintiffs’ trees.” Even plaintiffs concurred that they did.

However, plaintiffs’ good faith but mistaken belief does not matter. RPAPL 861 provides that a successful timber trespass plaintiff may elect to get actual value of the trees, a statutory sum of $250 per tree, or both. Here, Halstead elected to collect $250 per tree – which was far more that the $5,000 the 488 trees were worth – and he was entitled to do so.

Mr. Halstead had to be singing this song ... after the law let him "sell" his $5,000 worth of trees for $122k.

Mr. Halstead had to be singing this song … after the law let him “sell” his $5,000 worth of trees for $122k.

Defendants argued that damages of $250 per tree are not mandatory, and that RPAPL 861 affords discretion to a trial court to award a lesser amount of statutory damages. But the language in the statute is clear, and the court must follow it. The statute unambiguously directs that defendants “shall be liable for the stumpage value or [$250] per tree, or both,” and gives no indication that a lesser amount of statutory damages per tree may be awarded. And the legislative history of RPAPL 861 – enacted in 2003 to deter the illegal taking of timber by increasing the potential damages for that activity – supports the interpretation of the statute. It was meant to “provid[e] for more suitable fines of at least $250 per tree.

The statutory damages of $250 per tree cannot be reduced. Defendants are liable for $122,000, given the undisputed fact that 488 trees were removed.

However, the trial court is not obliged to award statutory damages. It is instead entrusted with the discretion to award “the stumpage value or [$250] per tree, or both” for an unlawful taking. RPAPL 861[2]. Both plaintiffs and defendants submitted proof as to the other measure, with plaintiffs providing the affidavit and report of a forester who opined that the stumpage value of the trees was under $5,000. Inasmuch as plaintiffs’ own motion papers left unresolved the issue of whether “a lesser amount than that claimed . . . will sufficiently compensate for the loss,” the trial court correctly directed an immediate trial on the issue of damages.

– Tom Root

Case of the Day – Wednesday, July 27, 2022


keystone140514This Louisiana case is another in our continuing series of “someone got badly hurt, so obviously, someone else has gotta pay.”

Today, a couple lived in a house leased from their physician daughter (so we already know who in this saga has money). The couple wanted to have a dangerously leaning tree taken down. They hired a landscaper, who in turn hired someone who represented himself as a guy who could take down a tree.

Gunnery Sergeant Daniel Daly, one of only two men to ever win two Medals of Honor, exhorted his fellow Marines to charge the Germans at the Battle of Belleau Wood, shouting, "C'mon! Do you want to live forever?" A brave sentiment in battle; a pretty foolhardy sentiment when removing trees.

Gunnery Sergeant Daniel Daly, one of only two men to ever win two Medals of Honor, exhorted his fellow Marines to charge the Germans at the World War I Battle of Belleau Wood, shouting, “C’mon! Do you want to live forever?” A brave sentiment during battle, but a pretty foolhardy one when removing trees.

The tree cutter had all the safety equipment, but he didn’t use it. After all, it was just a tree. Safety is for wimps! After all, do you want to live forever?

The tree cutter obviously didn’t care to do so. He directed the landscaper, who was helping him, to harness the tree to his pickup truck. During their Keystone Cops antics, the landscaper’s truck pulled down part of the tree. Sadly, the tree cutter was attached to it at the time.

The tree cutter sued the landowner and the tenants. But of course! He argued that the doctor-daughter and her parents (and, of course, their insurance company) should pay because they didn’t warn him. Warn him to do what? To use his safety equipment? That the law of gravity was in force? That God may protect fools, but not for very long?

Fortunately, common sense prevailed …

Frazier v. Bryant, 954 So.2d 349 (La.App. 2 Cir. Apr. 4, 2007). The Bryants lived on a property owned by their daughter, Dr. Garrett, based on a verbal lease between them. Mr. Bryant wanted to have a large tree removed because it was leaning toward the house and several of the limbs of the tree were near the roof. He contacted Ron’s Lawn Care to take down the tree.

Mr. Hughes, the owner of Ron’s, hired Mr. Frazier, who had previously approached Mr. Hughes offering his services in tree removal. Mr. Frazier climbed up to the top of the tree and started to cut away the top limbs. He wore a climbing harness and was attached to a climbing rope that was strung over the top of the tree, but he hadn’t connected a lanyard rope that would have secured him to the tree. Mr. Hughes was using his pickup truck to direct portions of the tree away from the house. At some point, Mr. Hughes pulled with his pickup truck and the entire top of the tree came down. Mr. Frazier, still attached to the climbing rope, came down with the tree. He was badly injured.

Mr. Frazier sued Ron’s Lawn Care, the Bryants and Dr. Garrett for negligence. All three filed for summary judgment, and the trial court granted it. Plaintiff Frazier appealed.

Tree vs. truck - who wins? Certainly not the people taking down the tree ...

Tree vs. truck – who wins? Certainly not the people taking down the tree …

Held: The tree cutter falls again. Under Louisiana law, most negligence cases are resolved by employing a duty/risk analysis with elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injures (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Here, the Court said, Mr. Hughes was pulling on the tree because he was told to do so by plaintiff Frazier. No other defendant exercised such control over the operation as to be liable for the accident.

Mr. Frazier argued that the Bryants were liable for failing to warn him of the defective condition of the tree. The Court said that the owner or custodian of a thing is liable for damage only upon a showing that (1) he or she knew or should have known of the defect which caused the damage, (2) that he or she knew or should have known that the damage could have been prevented by the exercise of reasonable care, and (3) that he or she failed to exercise such reasonable care. Here, the Court said, no evidence showed that any defect in the tree existed. At most, the evidence suggested that the tree was leaning due to erosion at the base of the tree, the Court held, and nothing indicates that this condition caused Mr. Frazier’s fall.

– Tom Root


Case of the Day – Tuesday, July 26, 2022


Today, we consider what liability you might have when the people doing work for you cross the line. Literally. You know, as in trespass on the neighbors’ estate.

fence2-140506The little Schievink homestead (300 acres, but that’s little in Texas, where everything’s bigger) was surrounded by the mega-hunt reserve Wendylou Ranch. Wendylou was having some fence put in, and hired Rudy’s Fencing to do the work. Eventually, Rudy’s Fencing accidentally colored outside of the lines with its bulldozer – a fairly minor mistake, which was promptly corrected and seemed to cause little damage – and the Schievinks raced to their lawyer’s office.

Something seems rather peculiar about this case, and we wish we knew the backstory. Maybe it was the Hatfields and McCoys. Or David and Goliath. Whatever the history between them, the Schievinks were bound and determined that they were going to hang the trespass on Wendylou (despite the fact that Rudy’s, a company with 25 employees and 20 years in business, probably could have easily paid for the actual damage caused to the 15-foot wide, 1,600-foot long strip that had been bulldozed accidentally). The cost and aggravation of litigation hardly seems worth it for them, although their lawyer must have been pleased.

We suspect the neighbors' animosity toward Wendylou went back a long time.

We suspect the neighbors’ animosity toward Wendylou went back a long time.

To be sure, he fired both barrels at the mega-hunters. But he missed. The Court found that Wendylou hadn’t been an aider or abettor of the trespass, because its people had been careful to identify the property lines, instruct Rudy’s to install the fence 15 feet inside the boundaries, and insisted on walking the boundary with Rudy’s staff before each segment of fence was installed to be sure everyone knew where the frontier on the frontier really was. It was mere happenstance that Rudy’s crew got ahead of schedule, and pressed on one day into new territory without alerting Wendylou’s manager that more boundary needed to be identified.

More important for our purposes today, the Court agreed with Wendylou that Rudy’s was an independent contractor. This was important, because while Wendylou would be responsible for the negligent acts of its employees, it was not responsible for its independent contractor’s accidental trespass.

So what is the difference between this case and those situations where the owner has to pay when the hired bulldozer over-dozes? Chiefly, it would seem to be the extra care Wendylou took to ensure that its contractor remained independent yet adequately directed. “Misteaks” do occur, but a careful property owner can minimize their effect. Usually, when an owner hires a guy with a ‘dozer, the transaction is much more casual.

Schievink v. Wendylou Ranch, Inc., 227 S.W.3d 862 (Tex.App., 2007). The Schievinks own 300 acres of land, surrounded on all sides by land owned Wendylou, which does business as Wendy Lou Classic Game Ranch, a “true Tex African game experience” on 4,500 acres of land.

... but people do. That's why homeowners should be as careful as Wendylou ... and they may still end up as defendants.

… but people do. That’s why homeowners should be as careful as Wendylou … and they may still end up as defendants.

Wendylou hired Rudy’s Fencing to build a game fence around parts of its ranch. The manager of Wendylou, Mike Odell, gave verbal instructions to Rudy’s Fencing personnel about where the fence should be, and Rudy’s Fencing used its own equipment and — other than being told where to start, stop, or put a gate —was not instructed as to the details of building the fence or clearing the fence line.

Odell walked the boundary line with Rudy’s Fencing’s on-site during each stage of the construction, only going as far as the fence builders were expected to go in that stage. Odell checked the progress occasionally but did not supervise the day-to-day activities. Odell told Rudy’s to build the new fence two to three feet inside the old fence (which followed the boundary line) to keep from encroaching on the Schievinks’ land. Odell had not yet walked the fence line with Rudy’s at the point where the fence veered onto the Schievinks’ place, because Odell had thought the previous phase through a creek would take longer than it did.

Rudy’s used a bulldozer to clear the fence line. Rudy’s supervisor was confused about his location, and he directed the bulldozer operator to cut the boundary fence and follow another fence row onto the Schievinks’ property. The operator bulldozed a strip of land approximately 15 feet wide by 1,600 feet long before Mr. Schievink arrived to tell Rudy’s supervisor that they were on Schievink’s land.

The Schievinks sued Wendylou for trespass and for breaching a duty as an adjoining landowner. Wendylou moved for summary judgment because the evidence showed that Wendylou did not trespass on the Schievinks’ land or instruct Rudy’s Fencing to trespass, and because Wendylou is not liable for the trespass of an independent contractor. The trial court granted Wendylou’s motion for summary judgment. The Schievinks appealed.

A long fenceline, not a lot of landmarks denoting the property line ... a 15-foot error was foreseeable, which is why Wendylou was so careful.

A long fenceline, not a lot of landmarks denoting the property line … a 15-foot error was foreseeable, which is why Wendylou was so careful to instruct its contractor.

Held: Wendylou is not a trespasser. The Schievinks argued Wendylou breached a duty as an adjoining landowner by failing to instruct Rudy’s Fencing as to the property line, that Rudy’s Fencing wasn’t really an independent contractor, and — even if it were an independent contractor —Wendylou was negligent for failing to give adequate instructions to Rudy’s Fencing.

The Court agreed that a person may be liable for trespass if he aids, assists, advises, or causes another to enter the property, even if the person entering the adjoining land is an independent contractor. But here, the Court said, there was no evidence that the Ranch manager had any role in the trespass. Instead, he had guided the contractor to avoid trespass, but through confusion on the part of the independent contractor, the trespass had occurred anyway. The Court found no genuine issue of fact concerning Wendylou’s breach of any duty that it owed to the Schievinks to instruct Rudy’s Fencing as to the correct property line.

The Schievinks also argued that an issue existed whether Rudy’s Fencing was an independent contractor. If Rudy’s Fencing or its personnel were employees of Wendylou, rather than independent contractors, then Wendylou could be liable for their negligent acts under the doctrine of respondeat superior. But a person who hires an independent contractor is generally not liable for the acts of an independent contractor unless the employer exercises sufficient control over the details of the independent contractor’s work.

The Court considered seven factors in deciding that Rudy’s was an independent contractor: (1) the independent nature of the business; (2) the obligation to furnish necessary tools, supplies, and material to perform the job; (3) the right to control the progress of the work, except as to final results; (4) the length of time for which Rudy’s was employed; and (5) the method of payment, whether by time or by the job. The uncontested evidence showed that Rudy’s Fencing had been in the business for over 20 years, had 25 employees, had bid the job competitively by the foot, had furnished its own people and tools, and had supervised the day-to-day work.

The Court thus held that the evidence established as a matter of law that Rudy’s Fencing was an independent contractor.

– Tom Root