Case of the Day – Thursday, June 15, 2017


bearontom141013We saw a notice at church yesterday reminding the kids that it was time to start signing up for summer camp, now only a scant month away. We remember camp fondly – dirt, mosquitoes, busy days leaving us hungry enough to eat a bear. If we could find a bear.

Of course, finding a bear might have been a tall order in the wilds of eastern Ohio several decades ago. There are a lot more roaming the woods these days. But even if we had found an ursus americanus, locating our prey would have only been half the task. It is a profound truth of life that sometimes you eat the bear, and sometimes the bear eats you. You might ask poor Tim Hilston (although your question will have to wait until the next life) …

Mr. Hilston understood the bipolar nature of life, or maybe just the literal truth of the expression. Back about the turn of the century (this century), Mr. Hilston was field-dressing an elk carcass when he became a carcass himself at the hands — the paws, maybe — of a couple of grizzly bears.

Kind of a gory way to go … but the story doesn’t end there. After all, this is America. Nothing happens anymore, even in the wild, without someone being blamed for it, and this was no exception. The late Mr. Hilston’s estate promptly sued the State of Montana for letting the bears kill poor Mr. Hilston. The State defended under the Montana Recreational Use Act, saying that wild and hungry bears were a “condition of the land” for which it was not responsible. Mr. Hilston’s survivors argued that the State’s allegedly lousy bear management was a problem having nothing to do with the land.

Popular media attribute the "sometimes you eat the bear ..." line to the 1998 movie, "The Big Lebowski ..."

Popular media attribute the “sometimes you eat the bear …” line to the 1998 movie, “The Big Lebowski …”

The Court said ferae naturae — judges love to use Latin words, these meaning “wild animals” — were as much a condition of the land as a tree or a rock or a stump. Mr. Hilston’s tragic demise was not the State’s fault.

Estate of Hilston ex rel. Hilston v. State, 337 Mont. 302, 160 P.3d 507 (S.Ct. Mont., 2007). Mr. Hilston was hunting elk in the Blackfoot-Clearwater Wildlife Management Area “BCW”). Mr. Hilston shot an elk, and while he was field dressing the carcass, he was attacked and killed by grizzly bears. State and federal wildlife investigators captured the two grizzly bears responsible for the attack, a 12-year-old female and one cub, and killed them.

The BCW is located in the Blackfoot Valley about 45 miles east of Missoula on state and private land, and is open to public access free of charge. Mr. Hilston’s estate sued the State of Montana for negligent grizzly management. The State filed a motion for summary judgment, and the trial court held it was entitled to judgment as a matter of law under the Recreational Use Immunity Act. Hilston appealed.

... but "Preacher Roe," who pitched for 16 years in the major leagues until 1954, said it first.

… but “Preacher Roe,” who pitched for 16 years in the major leagues in the 40s and 50s, said it first.

Held: Grizzly bears are a “condition of the property” under the Recreational Use Immunity Act (§70-16-302, MCA). Hilston contended that the Act applied only to defects in property, and that that grizzly bear management in the BCW is not a “condition of the property” for which the Act grants immunity. The Court disagreed.

The Act provides that a landowner otherwise qualified under the terms of the Recreational Use Immunity Act owes no duty of care to a user “with respect to the condition of the property, except that the landowner is liable to the person for any injury to person or property for an act or omission that constitutes willful or wanton misconduct …” In this case, there was no dispute that the late Mr. Hilston was using state-owned land for recreational purposes, that his use of the property was gratuitous, and the alleged mismanagement by the State was not willful or wanton. The only question was whether the statute provides immunity for an attack by an indigenous wild animal on the property, and, derivatively, whether wild animals are a “condition of the property” for which a landowner owes no duty of care.

The rule of law is a landowner cannot be held liable for the acts of indigenous wild animals occurring on his or her property unless the landowner has actually reduced the wild animals to possession or control, or introduced a non-indigenous animal into the area. Grizzly bears are wild animals existing upon the property, and, as such, are a “condition of the property” for purposes of Montana’s Recreational Use Immunity Act.

Thus, the State of Montana owed no duty to protect Mr. Hilston from the grizzly bear attack that led to his unfortunate death, and the District Court correctly granted summary judgment for the State.

– Tom Root


Case of the Day – Wednesday, June 14, 2017


bush141014 When the phone company built a substation on Mr. Doelle’s land, he didn’t beat around the bush. He sued for trespass.

The phone company replied that it intended to take a corner of his place under the doctrine of eminent domain. The trial court agreed the phone company could do so, upheld Mr. Doelle’s claim of trespass and awarded $300 for the value of the land taken under eminent domain. In addition, the trial court granted Mr. Doelle an extra $400 for “shrubbery support.”

Sounds more like a divorce, doesn’t it? The idea was that Doelle could screen the substation from his view with a few strategically-placed bushes, and the money was to enable him to plant whatever he wanted.

Despite the trial court’s crafty decision, no one was happy. Doelle appealed the eminent domain, and the phone company appealed the “shrubbery support” award.

support141014The Court of Appeals cleaned things up. It upheld the trespass and the phone company’s right to take the property for the public good. It approved the $300 value for the land, but it reversed the “shrubbery support.” You see, Doelle had never asked for trees or shrubs to screen his view of the substation. The trial court has certain inherent powers to fashion an appropriate set of damages for the wrongs brought before it, but the “shrubbery support” award appeared to be based more on the trial court’s sympathy for Mr. Doelle’s visual plight than on any evidence.

Doelle v. Mountain States Tel. & Tel., 872 F.2d 942 (10th Cir. 1989). In this case (which primarily involved questions of easement and eminent domain), Doelle sued Mountain Bell for trespass, alleging it had put a substation on his property without his permission. Mountain Bell laid claim to a small portion of Doelle’s property in order to build and maintain a substation. Mountain Bell sued to have Doelle evicted from his property.

The trial court upheld the trespass but found  Doelle hadn’t been damaged. It also awarded Mountain Bell the claim the property for the common good, awarding Doelle $300 for the value of the land that was taken. The Court then awarded Doelle an additional $400 to install shrubbery to screen his view of the substation, thereby making the intrusion less onerous. Doelle appealed the eminent domain ruling, and Mountain Bell appealed the $400 in “shrubbery support.”

These are not the Bushes we are talking about.

The Bush family – remember them?  They are not related to the bushes involved in today’s case.

Held: The Court of Appeals upheld the trespass and Mountain Bell’s right to claim the property by eminent domain. However, it reversed the $400 shrubbery award to Doelle.

The Court observed that Utah’s law of eminent domain does not provide for equitable damages. Rather, the trial court found authority to make the award entirely from its inherent power. Even assuming that the trial court had the equitable power to fashion an appropriate remedy, the Court of Appeals said, Doelle never sought equitable relief in the form of trees to screen his view of the substation nor presented evidence concerning the cost of planting trees.

While a trial court’s award of damages will not be set aside unless it is clearly erroneous, an award must be based on reasonable inferences rather than on mere sympathy. When damages cannot be fixed with desired certainty, the proof must be reasonable under the circumstances.

This damage award was not reasonable.

– Tom Root


Case of the Day – Tuesday, June 13, 2017


After the Virginia Supreme Court decided in Fancher v. Fagella that Linda Landowner has a duty to ensure her trees don’t become a nuisance to her neighbor Arnie Adjacency, you could be forgiven for reasoning that she also has a duty to be sure that her trees don’t fall on Mortimer and Mildred Motorist. After all, a duty to protect others from physical harm ought to rank higher on the hierarchy of social good than keeping Arnie’s retaining wall from collapsing.

One of the beauties of the law, however, is that it often does not make sense. The Virginia Supreme Court had an opportunity to underscore that unsurprising phenomenon last year, when it ruled that Fancher’s departure from the old Virginia Rule of Smith v. Holt didn’t extend to a landowner’s duty to the passing public. When a tree on the front yard dies, decays and falls in the road, let the driver beware …

Cline v. Dunlora South, LLC, 726 S.E.2d 14 (Sup.Ct. Virginia, 2012). Cline was driving on a public road when a tree fell and crushed the roof of his car. Cline suffered severe and permanent injuries, including fractures of his cervical spine.

The tree was located about 16 feet from the edge of the road, on land owned by Dunlora South. At the time of the mishap, the road was traveled by about 25,000 vehicles per day. The tree, approximately 25 inches wide was “dying, dead, and/or rotten” at the time it fell, and had been in this condition for a period of “many years and exhibited visible signs of decay, which were open, visible and/or obvious.” According to Cline, the tree’s condition was or should have been known by Dunlora, just as it should have been aware of the hazards presented by trees being next to the public highway. Cline sued, but the trial court held that Virginia law did not provide for recovery of personal injury damages caused by a private tree falling on a public highway. Cline appealed, and the case reached the Virginia Supreme Court.

Another Latin phrase ... this one more familiar ...

Another Latin phrase … this one more familiar ...

Held: The Court held that, even after Fancher v. Fagella, a private landowner was not responsible for damages to a person using a public highway, when that damage was caused by a tree located on the landowner’s property. At common lawthat is, law imposed and changed incrementally by decisions handed down judicial decision – a landowner owed no duty to those outside the land with respect to natural conditions existing on the land, regardless of the danger posed by such dangerous conditions. Although Virginia courts had never recognized that principles of ordinary negligence apply to natural conditions on land, in Smith v. Holt, an adjoining landowner was held to have a nuisance cause of action if injury was inflicted by the protrusion of roots from a noxious tree or plant on the property of such adjoining landowner. The Court observed that the duty it recognized in Smith v. Holt was “in accord with the broad common law maxim: “sic utere tuo ut alienum non laedas” – one must so use his own rights as not to infringe upon the rights of another … The principle of sic utere precludes use of land so as to injure the property of another.” It was this principle that gave birth to the “Virginia Rule,” a splitting of the difference between the Massachusetts Rule and the Hawaii Rule.

Fancher changed a lot, the Court admitted. It modified Smith’sVirginia rule” by discarding the subjective requirement of “noxious” nature, and imposing a limited duty on owners of adjoining residential lots to protect against actual or imminent injury to property caused by intruding branches and roots. Fancher articulated a rule allowing relief where trees encroaching onto the land of another begin to constitute a nuisance, that is, when they encroach upon the property of another such that they cause actual harm or the imminent danger of actual harm. Fancher thus recognized that a trial court must determine whether circumstances are sufficient to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots.

We bet the driver heard this one ...

We bet the driver heard this one …

The Court held here that the Fancher rule imposing a duty on a tree owner to protect a neighbor’s land from damage caused by the tree, only “addresses a narrow category of actions arising from nuisance caused by the encroachment of vegetation onto adjoining improved lands.” The Fancher and Smith duties are dramatically different than imposing a duty on a landowner to monitor the natural decline of his or her trees adjacent to a roadway. Fancher does not impose a duty on a landowner to inspect and cut down sickly trees that have the possibility of falling on a public roadway and inflicting injury.

Instead, the duty owed by adjoining property owners is to not do anything to make the highway more dangerous than it would be in its natural state. In this case, no one suggested that Dunlora engaged in any affirmative act that made its property adjoining the highway different than it had been in its natural state. Cline’s complaint was that Dunlora failed to act, and Virginia common law tort principles do not hold that a landowner owes a duty to take affirmative acts to protect travelers on an adjoining public roadway from natural conditions on his or her land.

– Tom Root


Case of the Day – Monday, June 12, 2017


Crunch. And after the tree falls, the insurance company adds insult to injury.

Crunch. After the tree falls, the insurance company adds insult to injury.

An unhappy homeowner from urban Cincinnati, Ohio – we’ll call her Sylvia Glade – wrote to us about her neighbor’s oak tree. It seems that the tree had a branch overhanging Sylvia’s home. The branch constantly dropped sticks, and the tree itself has been shedding branches regularly. As far back as the late 1990s, Sylvia thought the tree was dangerous and began asking her neighbor, whom we’ll call Elouise, to do something about it. A tree expert Sylvia hired to look at her trees  five years ago agreed, saying the big oak should go.

The elderly Elouise was unmoved. She gave Sylvia permission to cut down the tree (as long as Sylvia paid to do so), but then denied her the right to enter the property to do so. With the property line hard up against Sylvia’s house, without Elouise’s cooperation Sylvia couldn’t even get a ladder under the branch to cut it away.

But there’s good news: Sylvia doesn’t have to worry about that branch any more. Sadly, there’s bad news, too: the branch is no longer a hazard because it fell on a windy day, crushing two floors of Sylvia’s house. Her neighbor’s insurance carrier said, “Oops, looks like an act of God! Not our responsibility.” Sylvia thinks God should be left out of things, because the branch — which broke right at the trunk — looked very decayed.

Elouise’s insurance company says Elouise had no idea the tree wasn’t healthy. “She didn’t know, so we don’t owe,” the company’s mantra seems to be. Sylvia complains she told the neighbor on many occasions, and even the neighbor admits she saw decayed branches that had fallen from the tree. Once, Elouise even hired Sylvia’s son to haul away some large branches that the old oak shed in a windstorm. But Sylvia asked us what duty of care Elouise owed her under Ohio law.

We start with the evolution of the Massachusetts Rule. Originally, the Rule held that a homeowner usually had no remedy against overhanging branches, other than his or her right to trim the branch back to the boundary line. That Rule has been limited recently, notably in the Virginia Supreme Court case of Fancher v. Faglia (2007) and the North Dakota Supreme Court holding in Herring v. Lisbon Partners Credit Fund, Ltd. (2012). Both of those courts said that while a property owner might be limited to self-help where an encroaching tree was only doing what trees do, that is, dropping leaves, nuts, berries, seedpods and twigs, where a tree becomes a nuisance, the owner of the tree is liable for removing it.

The relevant Ohio case is Nationwide Insurance Co. v. Jordan. Mrs. Jordan’s big maple tree fell, damaging the neighbors’ place. They sued Mrs. Jordan, claiming the tree trespassed.

No dice, the Court said. The trespass claim would only work if the tree were an absolute nuisance, and that isn’t the case. Mrs. Jordan would be liable, the Court held, if she actually knew the tree was dangerous or if she reasonably should have known the tree was dangerous. The Court decided Mrs. Jordan has neither kind of knowledge. The neighbor, although vociferous in her condemnation of the tree to anyone else in earshot, admitted that she never complained to Mrs. Jordan about it.

In Sylvia’s case, the insurance company is wrong. It’s not enough that the neighbor says she didn’t know the branch was dangerous. The other half of the question is this “should have known” business. Was Elouise on constructive notice that the tree was dangerous, that is, should she reasonably have known the decay was making the tree unsafe? If Sylvia is right, the evidence will show the neighbor was told many times the tree was a hazard. Elouise had witnessed the tree drop a number of large branches of the previous years. She had to hire Sylvia’s strong son to clean up the mess. And Sylvia told her about the danger, even agreeing to pay for the removal the tree herself.

Several Ohio cases (such as Wertz v. Cooper) suggest that neighbor Elouise – being an urban dweller – has a greater duty to inspect her trees than would a country squire. The evidence suggests Elouise had every reason to be concerned about the tree, and thus had a duty to inspect it to be sure it wasn’t about to collapse Sylvia’s house.

claim140414Elouise’s insurance company may want to rethink its position… and start looking for its checkbook.

Nationwide Insurance Company, et al. v. Jordan, 639 N.E.2d 536 (1994).This action arose between adjoining landowners as a result of the falling of a mammoth maple tree. The insurance company, which had paid the damages to its insured’s place, sued for trespass and negligence. The defendant tree owner testified that she had no notice the tree was susceptible to falling. Her tenant likewise testified that she had no notice of the tree’s danger. The defendant’s tree service manager testified that he worked on the property’s trees every two years, and that the tree in question was not unsafe less than two years before it fell. The only person to testify to notice that the tree was rotten and likely to fall was the plaintiff’s insured.

The trespass claim arose because the plaintiff maintained that the falling tree trespassed on the insured’s property. The trial court made short work of this, holding that the only way liability could be imposed on Mrs. Jordan without proof of fault would be if the tree were an absolute nuisance. Healthy trees growing on property, even urban property, are not absolute nuisances, the trial judge said. Thus, the insurance company had to prove that Mrs. Jordan either knew or had constructive knowledge that the tree was likely to fall. The insurance company couldn’t prove that, so the trial court found for Mrs. Jordan. The insurance company appealed.

A diagram of one modern method of measuring a tree's decay. Elouise had any number of options - some cheap, some costly, some old school, some high-tech - for verifying the health of her big old oak.

A diagram of one modern method of measuring a tree’s decay. Elouise had any number of options – some cheap, some costly, some old school, some high-tech – for verifying the health of her big old oak.

Held: Mrs. Jordan was not liable. The Court said that there was no evidence that Mrs. Jordan actually knew or had any reason to know that the maple tree was in danger of falling. The neighbor complained that the tree’s propensity to fall was obvious to her, but she admitted he never told Mrs. Jordan. The Court observed that “[h]ad the plaintiff conveyed this knowledge to her neighboring landowner, the danger might well have been obviated, or, alternatively, the plaintiff’s hands would be clean and the defendant would have been on notice and resultantly liable for the fall.”

The Court further held that a tree on an owner’s property was not an “absolute nuisance,” and thus the adjoining landowner could not proceed merely upon strict liability against owner. Instead, the neighbor was required to prove negligence. To recover on a theory of negligence arising out of falling tree, a plaintiff’s evidence must establish that defendant had actual or constructive notice of patent danger that tree would fall. Here, Mrs. Jordan had neither actual notice nor constructive notice of tree’s dangerous condition. Both Mrs. Jordan and her tenant testified that they had no notice of tree’s danger, Mrs. Jordan’s regular tree trimming contractor worked on property’s trees every two years and found that tree in question was not unsafe not more than 24 months before it fell.

The Court ruled in favor of Mrs. Jordan.

– Tom Root


Case of the Day – Friday, June 9, 2017


rube150402Earlier this week, we looked at negligence claims that ran from the ridiculous to the absurd: from the corrections officer who sued cellphone carriers because inmates conspired to shoot him, to the victim of a falling limb who sued an electric utility because its tree trimmer should have noticed that a tree that it had no right to trim was dangerous.

Today’s case features a tortuous and complex argument that would make Rube Goldberg envious. A tree branch fell in a storm and knocked out power to a subdivision. Matthew Phillips and his father decided to fire up their standby generator and plug it into the house system, a few hours of darkness being too big an inconvenience for them to bear.

Something happened. No one’s sure what. But, if you believe the Phillips’ lawsuit, the downed branch crossed some wires, which fed power past and around a transformer, bypassing several shorts to ground, into the house, into the power lines, bypassing other ground circuits, into and through meter boxes, into the ground line of the home but not safely to ground, but rather into the power line leading to the generator, where the electricity finally leapt into Matthew, seriously injuring him.

ball150402Of course it’s unlikely that Matt or his Dad did anything stupid, like failing to disconnect the master switch connecting the house to the power grid. Much more likely that electricity defied several laws of physics, and that the blame rested with the tree trimming company for not having pruned back the branches that fell in the storm. Or maybe it was ball lightning. Or Zeus throwing lightning bolts.

The problem was a practical one: Matt’s family didn’t have the wherewithal to pay the medical expenses. Neither did Zeus. But the electrical utility and its vegetation management contractor did. Thus, the inevitable lawsuit followed.

Fortunately for all of us, common sense prevailed. The courts pointed out that Asplundh, the tree trimming company, had a contract with AEP, and that the contract did not create a duty between Asplundh and Matt. The contract only let Asplundh cut where the utility told it to cut. The Court very reasonably pointed out that if Asplundh had what Matt said it should have done – that is, to trim trees on the Phillips property – it would have been a trespasser and subject to treble damages.

Where the claim is nonfeasance – that is, where the defendant is alleged to have wronged the plaintiff by not doing something it should have done – the law demands that the duty the defendant owes the plaintiff must be very clear. Where the contract does not permit the tree trimmer to do anything other than what the utility tells it to, the trimmer lacks the ability to exercise any independent authority. In that case, the fact that it did not do that which it was not allowed to do doesn’t make the trimmer wrong. Instead, it makes it prudent.

zeus150402Sadly, in this litigious society, it doesn’t make it lawsuit proof.

Phillips v. American Electrical Power, 2011 Ohio 6731 (Court of Appeals, Jefferson County, 2011). An early March thunderstorm rolled through Wintersville, Ohio. During the storm, the power went out when a tree branch fell across an Ohio Power electrical distribution line. Matt and his father tried to power their house with a portable electric generator. In the process of trying to operate the portable generator, Matthew received an electrical shock and suffered very severe injuries, including permanent brain damage.

Matt sued American Electric Power Company, Inc. and a laundry list of affiliates and subsidiaries, as well as Asplundh (which had a tree maintenance contract with AEP) for negligence. His reasoning, as far as the courts were able to surmise, was that one or more rotten trees were blown down in the storm, which caused the power to go out, which caused the Phillips men to try to connect their portable generator to power the house wiring. Matt claimed that the power line wires had became coupled due to the fallen branches, creating a completed electrical circuit, which sent electricity around the electrical transformer on the pole outside the Phillips residence – bypassing the grounding wires located at the pole – and down the service line to the house, through the meter box into their breaker box (somehow bypassing the grounding line at the breaker box), into the ground circuit wiring of the house, then around an electrical generator transfer switch the Phillips had installed, then through the grounding line to a secondary electrical outlet box, where it connected to the box’s metal chassis. Matt posited a variety of theories as to how the electricity passed through him via the outlet box, the portable generator, or from the ground.

At some point, the Phillips settled with everyone except Asplundh. The tree service then filed a motion for summary judgment, arguing it owed no duty of care to Matthew because AEP determined the locations where Asplundh was assigned to work, and because AEP never assigned Asplundh to inspect or service the area at issue in this case. The trial court granted summary judgment, finding no evidence that AEP assigned “Asplundh to work on the portion of the electrical circuit in the area of the tree which allegedly caused the injuries to the Plaintiff. Nor have the Plaintiffs produced evidence that it was the responsibility, or duty, of … Asplundh to determine which parts of the AEP distribution circuit were to be trimmed. Rather the evidence establishes that … AEP … determined what trimming was to be done and then would assign that work to … Asplundh.” Finally, the trial court said, no evidence showed that Asplundh created a condition which caused the tree to fall or failed to trim the tree after being put on notice of the need to do so.

No one knows exactly what happened, but it was a cinch that Asplundh wasn't to blame.

No one knows exactly what happened, but it was a cinch that Asplundh tree service wasn’t to blame.

Matthew appealed.

Held: Asplundh was not liable for Matt’s injuries.

Matt’s lawyers fired a blunderbuss of claims against Asplundh: ordinary negligence, failure to maintain AEP’s easement, failure to remove foreseeable safety hazards, and failure to fulfill its contractual duties to inspect and manage vegetation for AEP. Matt claimed he subjected to an ultra-hazardous danger by Asplundh’s recklessness, and that Asplundh breached a duty imposed by safety statutes and regulations regarding electrical and hazardous substances and vegetation management. He also claimed Asplundh failed to warn, prevent or remedy unnamed defects, and that Asplundh caused them to be exposed to hazardous or toxic substances.

The Court of Appeals noted that Matt’s allegations against Asplundh “are intrinsically connected to the contract to perform right of way maintenance. Thus, the overall claim is for negligent or reckless performance of a contract,” and every issue on appeal boiled down to one question: did Asplundh owe a duty of care to Matthew in light of the contract that Asplundh entered into with AEP.

The Court noted that the existence of a duty of care is fundamental to a negligence claim: “It is rudimentary that in order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom. The existence of a duty depends on the foreseeability of the injury.” Matthew contended that Asplundh owed him a duty of care, despite the absence of anything specific in the Asplundh contract that would have required the removal of the tree that apparently fell in the Phillips’ yard. Matt argued that Asplundh should have inspected the area near the Phillips home because there had been many prior electrical outages in that general area. He maintained that Asplundh was involved in the decision-making process to select which of AEP’s circuit areas were to be trimmed each year, despite the evidence showing that only AEP made the final decisions about where Asplundh would do its vegetation maintenance and trimming. Essentially, Matt contended that Asplundh’s authority to make suggestions at its annual meeting with AEP to determine vegetation maintenance was enough to give rise to a duty to protect Matt from the Rube Goldberg chain of events that began with a dangerous tree. In other words, Matt said that Asplundh’s failure to convince AEP to conduct tree maintenance on or near the Phillips place was itself a form of negligence.

The Court of Appeals disagreed, holding that none of Matt’s claims were supported by the record. In a case of nonfeasance, it said, the existence of a legal duty is critical and, unless a duty is established, Asplundh’s failure to act cannot create liability. In this case, AEP personnel testified that Asplundh had never been directed to trim trees in the area where the Phillips lived. Asplundh was permitted by its contract to patrol for danger trees only where AEP told it to do so. AEP picked those areas according to its own internal data, devoting attention to the 8% of circuits with the worst performance in the previous year. There simply was no independent decision-making or freelancing involved on Asplundh’s part. While some of Asplundh’s employees may have made suggestions at the annual planning meetings, the record reflected that the final decision was made by AEP, and there is no evidence to contradict this conclusion.

The Court of Appeals agreed with Asplundh that it could not have a duty to trim a tree in the Phillips yard unless it first had a right to do so, and there are very specific statutes which prohibit a person from cutting, removing or injuring trees on private property. If Asplundh had no contractual authority to act as AEP’s agent and enter the area where the tree was located, the Court said, it would have been trespassing had its personnel entered the property, and would have been committing a fourth degree misdemeanor crime and setting itself up for treble damages under O.R.C. § 901.51.

Matt argued that his injury was so foreseeable that the foreseeability of the injury alone created a duty for Asplundh to remove the dangerous trees. The Court rejected this argument, holding that foreseeability alone is not always sufficient to establish the existence of a duty, especially in nonfeasance situations in which the injured party is alleging that the defendant failed to affirmatively act to come to aid of a person in danger or failed to prevent a third party from harming another. In such situations, a duty arises only if the defendant shares a “special relation” with the injured party that justifies the imposition of the duty. Here, the Court said, the alleged relationship between Asplundh and Matt “only exists by virtue of the tree-trimming contract between Asplundh and AEP. No amount of foreseeability can create a contractual duty where none otherwise exists.”

The appellate court concluded trial that Asplundh was under no contractual obligation to investigate or perform tree maintenance services in the area of the Phillips residence where the accident occurred: “Because there is no proof in this record that a duty existed,” the Court of Appeals held, “the trial court was correct in its judgment.

– Tom Root


Case of the Day – Thursday, June 8, 2017


Donald Westlake could have used Lisa Huff for the dust cover model ...

Donald Westlake could have used Lisa Huff for the dust cover model …

Recall last Tuesday’s creative lawsuit, Corrections Officer Johnson going after area cellphone carriers for having recklessly built towers close to a prison. Some of the inmates obtained contraband cellphones. The towers ensured they had excellent 4G service. Of course, the towers also ensured excellent coverage to the motorists on I-20, only a half mile from the prison. The Court’s tallest order was addressing all the ways that Mr. Johnson’s lame attempt to find someone with a deep pocket was simply vibrating nonsense.

“OK,” you say, “but that was just some ambulance chaser’s attempt to shake down a phone company (an attempt most of us applaud once a month when the cell bill arrives). “But that cannot happen in the staid world of arboriculture law.”

In response to that sentiment, we give you the Huffs. After a tree broke off in a storm and hit Lisa Huff on the noggin, she had little to go on other than the abiding sense that someone owned her money. But who? Sure she could sue the property owner. Any regular reader of this blog knows that. But the Huffs needed a deep pocket. After all, Lisa had been injured. Someone had to pay.

That was when some canny lawyer noticed that the tree was located near power lines. Sweet! Power lines suggested the electric company, and everyone knows that the electric company has lots of money. Just look at how much we send them every month.

Problem: the tree wasn’t exactly inside the Ohio Edison easement. But that was a mere technicality to the Huffs, who argued that Ohio Edison hired Asplundh Tree Service to keep the trees trimmed away from the power lines, and that both the power company and the tree service must have known the tree that fell on Lisa was dangerous. This was the tort claim, and it might have merit if Lisa could prove they had actual or constructive notice of the tree.

But never stop with just alleging a tort, where you can pile on other legal theories as well. The Huffs’ attorney suggested a contract count, too. The Huffs, so the legal theory went, were the intended third-party beneficiaries of the contract between Ohio Ed and Asplundh. A third-party beneficiary can sue for a contract breach just as if she had signed the document herself. Asplundh had a contractual obligation to inspect and trim the trees to as to keep the public safe, the Huffs argued, and that included the passing public, which included the walking public, which included Lisa. Anything to get Ohio Edison and Asplundh to open their checkbooks!

deeppocket140507It was a novel theory, but the Ohio Supreme Court shot it down. The Ohio Edison – Asplundh agreement was intended to secure services that would keep the power lines clear. While the agreement did require that Asplundh perform the trimming in a safe manner so as not to hurt anyone while it was doing it, that requirement only lasted as long as Asplundh was trimming. The Court wasn’t about to interpret the contract so broadly as to grant contract causes of action to millions of people who were never intended by the signatories to gain party status to a contract. You think the courts are busy now (and insurance premiums are high)? Just wait …

The takeaway here is a passing observation by the Court that parties to a contract can avoid the litigation spawned here by the Huffs simply by stating clearly that their contract is intended to benefit no one but each other. Including such a provision is a cheap preventative to the kind of nonsense lawsuit decided here.

If you think this case is on the outer fringes of causation – like the suit against the cellphone towers – just wait until tomorrow …

Huff v. FirstEnergy Corp. (2011), 130 Ohio St.3d 196 (Supreme Court of Ohio). During a heavy thunderstorm, a large sugar maple tree split about 25 feet above the ground. A large limb from the tree hit Lisa Huff, who was walking along a country road, causing serious and permanent injuries. Lisa G. Huff was injured during a walk along a country road.

Ohio Edison maintained an easement near the tree, but the tree was outside the easement. The tree did not present a hazard or threat to the power lines owned by the utility. Ohio Edison had hired Asplundh Tree Expert Company to inspect trees and vegetation along its power lines in this area and to remedy any situation in which trees or vegetation might affect the lines. Ohio Edison and its contractors carry out this work to ensure that adequate clearance is maintained around electric lines. Generally, Ohio Edison deferred to Asplundh’s decisions regarding tree and vegetation maintenance and would perform an overview inspection only to determine whether any vegetation was growing into the electrical wires or equipment. Asplundh had last been in the area where Huff’s injury occurred three years before.

Huff sued Ohio Edison and Asplundh, as well as Ohio Edison’s parent company, FirstEnergy, and the people who owned the land on which the tree was located. She alleged that Ohio Edison and Asplundh were liable for her injuries based upon their failure to inspect, maintain, and remove the tree or to warn the landowner and the public of the danger raised by the tree.

Ohio Edison and Asplundh filed motions for summary judgment. Ohio Edison argued that it didn’t know that the tree was dangerous, that it owed and assumed no duty to Huff regarding the tree, and that it was not negligent and did not proximately cause or contribute to Huff’s injuries. Asplundh argued that it owed no duty to Huff and that its activities did not proximately cause the injury to Huff.

The Huffs argued that Ohio Edison had contracted with Asplundh to inspect and maintain trees within the easement and that Asplundh failed to recognize that the tree in question was diseased and a hazard, and failed to remove the tree when it was on site in May 2001. The Huffs also argued that Ohio Edison was responsible for maintaining trees within and around its easement, that Ohio Edison was aware of the tree based upon its location within an inspection zone, and that Ohio Edison had a duty to remove the diseased tree.

The trial court found that while the tree leaned about ten degrees away from the power lines, “there is absolutely no credible evidence about when the tree began to lean or if it was leaning because of the way it grew.” It also noted that the Huffs admitted that no one knew when the tree became a hazard. With no proof that Ohio Edison or Asplundh actually inspected the tree or removed any branches, the court held that the Huffs failed to show that either company ever had actual or constructive notice of any decay of the tree. Due to the tree’s location – leaning away from the power lines with no limbs near the power lines – Ohio Edison and Asplundh owed no duty to the Huffs.

After examining the contract between Ohio Edison and Asplundh, it concluded that the Huffs were not third-party beneficiaries under the contract. It accordingly granted summary judgment to Ohio Edison and Asplundh.

The Court of Appeals cited the portion of the contract providing that “[Asplundh] shall plan and conduct the work to adequately safeguard all persons and property from injury” could be read in two ways: (1) a narrow reading that provides Asplundh must protect all persons from injury while Asplundh works on the site or (2) a broad reading that requires Asplundh to protect all persons from injury at all times, regardless of when the work is done. The court found the contract to be ambiguous, and reversed the trial grant of summary judgment to Ohio Edison and Asplundh.

The companies appealed to the Ohio Supreme Court.

Held: Summary judgment was granted.

The Court found that the contract between Ohio Edison and Asplundh did not create any duty to the Huffs as third-party beneficiaries. The Court employed an “intent to benefit” test. Under this analysis, if the promisee intends that a third party should benefit from the contract, then that third party is an “intended beneficiary” who has enforceable rights under the contract. If the promisee has no intent to benefit a third party, then any third-party beneficiary to the contract is merely an “incidental beneficiary,” who has no enforceable rights under the contract.

The law generally presumes that a contract’s intent resides in the language the parties chose to use in the agreement. Only when the language of a contract is unclear or ambiguous, or when the circumstances surrounding the agreement invest the language of the contract with a special meaning will extrinsic evidence be considered in an effort to give effect to the parties’ intentions. For a third party to be an intended beneficiary under a contract, there must be evidence that the contract was intended to directly benefit that third party. Generally, the parties’ intention to benefit a third party will be found in the language of the agreement.

dwntree140507In this case, the Court ruled, nothing in the agreement between Ohio Edison and Asplundh showed any intent to benefit the Huffs. The Huffs pointed to a part of the contract that they argue shows such an intent: an attachment to the agreement entitled “FirstEnergy Vegetation Management Specifications” that provided  the “Contractor shall plan and conduct the work to adequately safeguard all persons and property from injury.” The Huffs contended that this statement assigns to both Ohio Edison and Asplundh clearly defined duties – to safeguard the public – for the Huffs’ benefit.

The Court held however, that the contract wasn’t entered into for the general benefit of the public walking on public roads, but instead was designed to support Ohio Edison’s electrical service. The purpose of the contract is to ensure that Ohio Edison’s equipment and lines are kept free of interference from trees and vegetation. The remainder of the contract sets forth how this work is to be carried out, including the standards by which Asplundh is to perform its work, the limits on liability for the performance of the work, and the necessary qualifications for the Asplundh employees who were to perform the work. The contract contains no language establishing an ongoing duty to the general public on behalf of either Ohio Edison or Asplundh.

The vegetation management provision incorporated into the contract provides that “[t]he objective of all work covered by these documents is to maintain reliable and economical electric service, through effective line clearance and satisfactory public relations.” The Court observed that working near electrical lines has its inherent hazards, and it was thus “clear that this portion of the agreement establishes safety guidelines designed to protect persons and property from injury while the contractor performs its work. This period is finite: until the work has been completed … [T]he agreement cannot be plausibly read to require Ohio Edison or Asplundh to safeguard all persons from injury at all times, regardless of when the work is completed.”

The Supreme Court concluded that the Huffs thus failed to qualify as intended third-party beneficiaries of the Ohio Edison ­– Asplundh agreement.

– Tom Root


Case of the Day – Wednesday, June 7, 2017



The Mexican Spotted Owl is easily identified by its distinctive headgear.

Now a paean to the Mexican Spotted Owl, that cute, furry little critter. Well, maybe it’s not furry – more like feathery – but the bird is an endangered species just the same.

When Precision Pine & Timber landed 14 contracts to destroy wildlife habitats — uh, make that harvest timber — its performance of the agreements got derailed by a U.S. District Court, which stopped the Forest Service because it had been sloppy in figuring out how save the owls. The contracts covered the eventuality, but Precision Pines was entitled to ask for its “out of pocket” expenses incurred if the performance of the contracts was delayed. And performance was indeed delayed for up to 15 months as the Forest Service was sent back to school by the district court until it got its analysis of the spotted owl problem done to the court’s satisfaction.

The Forest Service extended the termination date of the contracts, but Precision Pines nevertheless counted up its expenses, and turned in a bill for a breath-taking $13 million. The Forest Service took a sharp pencil to the invoice, and offered about $18 grand. So Precision Pines sued, arguing it was entitled to a “lost volume” theory. Follow this: if Precision Pines hadn’t been delayed, it would have made a ton of money during that 15 months that, because of the interruption, it didn’t make until much later. If it had made the money when it originally contracted to make it, it would have used the profits to invest in other contracts, where it would have made profits to invest in other contracts, and so on.

Like a snowball rolling down a slope, the few bucks from the interrupted contract would have yielded an avalanche of green someday. But the Court said while that might be so, it didn’t make the deals that never were legitimate damages from the interrupted timber deals. The damages were simple: the profits that weren’t made during the period of delay, minus the profits made after the contracts resumed.

The wise old Mexican Spotted Owls couldn’t have reached a better decision.

Precision Pine & Timber, Inc. v. United States, Case No. 98-720 C, 2007 WL 2753329 (Fed.Cl., Sept. 14, 2007). Precision Pine & Timber held 14 timber contracts with the U.S. Forest Service. In August 1995, the Forest Service suspended the contracts after a U.S. District Court required the Forest Service to submit its Land and Resource Management Plans for consultation with the Fish and Wildlife Service in light of the listing of the Mexican Spotted Owl as a threatened species.

About eight weeks after the Mexican Spotted Owl suspensions were imposed, the Forest Service released three of the 14 timber sale contracts from the suspension. The balance did not get released for more than year afterward. Each of the suspended contracts contained a provision on interruption or delay that provided in the event of interruption or delay of operations, Precision Pine’s exclusive remedy was adjustment of the contract term and out-of-pocket expenses incurred as a direct result of the interruption or delay. Out-of-pocket expenses did not include lost profits, replacement cost of timber, or any anticipatory losses.

Profits begat profits, Precision Pine argued ... and the pile grows ever larger.

Profits begat profits, Precision Pine argued … and the pile grows ever larger.

Throughout the suspensions, Precision Pine considered the Forest Service to have breached the timber sale contracts, but Precision Pines treated the breaches as partial and resumed harvesting timber after the suspensions were lifted. Precision Pines requested contract term adjustments for each contract affected by the suspensions, which were granted, and it submitted claims for $13,097,209.62 in damages resulting from the suspension of the 14 contracts under the “lost-volume” seller theory. The Forest Service decided Precision Pines was entitled to only $18,242.78 in damages. Precision Pines sued.

Held: The Forest Service breached the contracts, but the damages were severely curtailed.

The Court held that the lost volume seller theory, as formulated by Precision Pines, depended on showing that its failure to make profits on the 14 timber contracts in a timely manner rendered it unable to participate in other future contracts, thus missing out on profits from those deals. The Court held that such future damages for independent and collateral timber contracts not related to the subject matter of the breached contracts were unrecoverable.


A wise owl, indeed …

The Court further held that permitting Precision Pines to use these unrecoverable damages to reduce the amount of the deduction required to be made in the lost profits calculus — to account for the profits earned on the breached contracts — would be the functional equivalent of actually awarding damages for the lost profits on the future additional contracts. What’s more, the Court said, that even if Precision Pine’s theory of recovery did not require it to show unrecoverable damages, Precision Pines had failed to that it met the criteria for application of a modified lost volume theory.

The Court found that the plaintiff was entitled to recover lost profits on the breached contracts as measured by the expected profits it would have earned on the breached contracts during the suspension period, minus profits it actually earned on the breached contracts in the post-suspension period. And that was it.

– Tom RootTNLBGray