Case of the Day – Monday, February 10, 2020


I have written from time to time about recreational user statutes, state laws that grant immunity to landowners who make their lands available without charge to the public for recreational purposes. To encourage landowners to do this, the laws exempt such landowners from liability for unsafe conditions on the land.

The statutes vary from state to state, but the principle is generally the same: to help forestall “the continual shrinkage of the public’s access to recreational land in the ever more populated modern world.”

Sometimes the best intended laws have strange consequences. Today’s case is a perfect example. Conference Point Center is a venue on Lake Geneva, Wisconsin, available for religious retreats, camps and conferences. The public can wander the wooded paths and enjoy the lake view without charge.

Conference Point had some trees badly in need of trimming or removal, and hired Creekside Tree Service to do the work. When Jane Westmas and her son, Jason, came walking along a path and rounded a blind corner, a badly decayed limb being removed by Creekside fell, killing Jane and seriously injuring Jason.

Conference Point was immune from liability, because it was shielded by the Wisconsin recreational immunity statute, Wis. Stat. § 895.52. Creekside argued that although no one knew it, it was really acting as Conference Point’s agent in removing the trees, so it was immune as well. Sort of a secret agent…

A secret agent? The idea returned me to the thrilling days of my boyhood, when I longed to live the mystery-, intrigue- and action-packed lives of Patrick McGoohan and the Robert Vaughn/David McCallum team from U.N.C.L.E.

I have gone on at length before about the difference between an independent contractor and an employee, and how owners want to be sure that tree contractors fall on the independent contractor side of the line. Among other things, an owner is not liable for the negligence of an independent contractor in most cases, so Harry and Harriet Homeowner are better off if Tommy Treetopper drops a tree on the neighbor’s car. But being an independent contractor can be a double-edged sword. Under Wisconsin law, if a landowner is immune, so is the landowner’s employees, officers, directors and agents. Clearly, an independent contractor is the obverse of an employee. But is it an agent?

On that question – whether Creekside was Conference Point’s agent or not – depended whether Jane’s estate could even sue for negligence. Whether there was actually negligence or not… that was an issue for another day.

Westmas v. Creekside Tree Service, Inc., 2018 WI 12 (Supreme Ct. Wisconsin, February 7, 2018). Jane Westmas was killed when a tree branch cut by Creekside Tree Service, Inc. fell on her while she and her adult son were walking on a public path through the property of Conference Point Center. Conference Point had contracted with Creekside to trim and remove trees from its property. Jane’s husband, John Westmas, and her son, Jason Westmas, sued Creekside and its insurer, Selective Insurance Company of South Carolina.

Creekside moved for summary judgment on the ground that the recreational immunity statute, Wis. Stat. § 895.52 (2013-14), barred claims against it. Creekside argued it was an agent of Conference Point, or in the alternative, an occupier that qualified as a statutory owner for immunity purposes.

The circuit court agreed, and threw out the case. The court of appeals reversed.

Creekside appealed to the Wisconsin Supreme Court.

Held: Creekside was not Conference Point’s agent, and thus was not immune from suit. Generally, owners of property, under Wis. Stat. § 895.52, do not owe a duty of care to keep their properties safe for entry or recreational use. In fact, not only are owners immune, but their employees, directors, officer, agents and “occupiers” of the land are protected as well.

Creekside claimed that it was Conference Point’s agent. To determine whether this was so for the tree-cutting that caused the injury, the Court said, the focus had to be on the level of control that Conference Point had the right to exert over the tree-cutting task that caused the injury. Neither the contract between Conference Point nor any evidence in the record suggested that Creekside had any special, fiduciary duty toward Conference Point.

An agent has a fiduciary relationship with his principal, a consensual relationship where the agent voluntarily places the interests of his principal before his own interests. Likewise, where a principal (like Conference Point) has the right to control the acts of a contractor (like Creekside) that are done within the scope of the agency, an agency relationship is more likely to occur. When an independent contractor has no fiduciary obligations to and is not subject to control by the principal, the court ruled, no agency relationship has been formed. The Court concluded that “an agent is one who acts on behalf of and is subject to reasonably precise control by the principal for the tasks the person performs within the scope of the agency.”

Here, Conference Point did not control or attempt to control the conduct of Creekside’s employees. Control over how trees would be trimmed or removed was retained by Creekside, especially (and crucially) the tree removal occurring at the time of the accident. Therefore, Creekside was an independent contractor rather than an agent, and was not covered by the recreational immunity statute.

Creekside still had time for one more play, a “Hail Mary.” It claimed that it was an “occupier” of the Conference Point property, and thus entitled to immunity. The Court said the definition of “occupy” in the context of recreational immunity is “to take and hold possession.” The purpose of the recreational immunity statute is to encourage landowners to open land for public use, and thus, defining a party as an occupier subject to the statute’s protection should advance “the policy which underlies the statute.”

Here, the property was already open for public use, and defining Creekside as an “occupier” would do nothing to advance that. Rather, Creekside’s presence on the property was “mere use” and did not approach “a degree of permanence,” nor did it have any effect on whether Conference Point’s property would be open to the public for recreational purposes. In the few days it was on the property, Creekside moved “from temporary location to temporary location for the limited purpose of trimming trees as needed to satisfy its contract with Conference Point. Creekside was “not responsible for opening up the land to the public,” and indeed had no authority to do so.

– Tom Root


Case of the Day – Friday, February 7, 2020


One of the most popular parables in the New Testament was one that Jesus told in answer to a disciple’s question, “Who is my brother?” The tale of the Good Samaritan (and mind you, the Samaritans and Jews mixed like Chiefs fans and 49ers boosters at last weekend’s featured event), who found a Jewish man beaten by robbers and left for dead, is taught to countless Sunday School students. The term has even entered the lexicon. Many states have what are known as “Good Samaritan” statutes, laws that prevent a rescuer who has voluntarily helped a victim in distress from being successfully sued for wrongdoing.

Some states have gone further, passing “duty to assist” laws that require people to assist crime victims or those in distress where special circumstances are present.

In today’s case, a woman checked into a hotel. Her husband spoke to her by phone several times during the early evening, but then was unable to reach her by cellphone or room phone. He finally called the hotel, and the front desk agreed to send a maintenance worker to check on her. Alas, the maintenance man was unskilled at this kind of welfare check. He opened the room door, saw the room was dark, called out, got no answer, and concluded no one was there.

When husband drove some distance to the hotel and entered the room hours later, he found his wife on the floor, having suffered a brain aneurysm. Quicker treatment would have led to a much easier and better recovery.

What happens when a person has no legal duty to come to the aid of another, but does so anyway? Does the existence of a duty matter? The trial court thought it did, and threw out Mrs. O’Malley’s claim. The appellate court, however, found that duty did not matter as much as voluntariness.

O’Malley v. Hospitality Staffing Solutions, Case No. G054724 (Ct.App. California, Jan. 31, 2018) 2018 Cal. App. LEXIS 83. A woman checked into a hotel room in the early evening. She did not answer her husband’s calls for several hours. He suspected that she may have been injured. The husband called the hotel, and the front desk sent maintenance worker Ramos to check the room. Ramos reported that no one was there. Hours later, the husband went to the hotel room and found his wife lying on the floor. She had suffered a brain aneurism. 

The couple sued the hotel and Ramos’ employer (a staffing agency) for negligence. The agency filed a motion for summary judgment, arguing that it owed no legal duty to the married couple. The trial court granted the motion and the couple appealed (the hotel itself was not a party to the appeal).

Held: The case could proceed to trial. The Court of Appeals held that maintenance worker Ramos’argument that he had no duty to Mrs. O’Malley that would require him to check the room was correct but irrelevant. The general rule is that a person who has not created a peril is not liable for failing to take action to protect another unless the person has some relationship that gives rise to a duty to act. However, one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking.

For Mrs. O’Malley to make a claim of “negligent undertaking,” she had to show that: (1) the maintenance man agreed to render services to her; (2) the services rendered were of a kind he should have recognized as necessary for her protection; (3) he failed to exercise reasonable care in the performance of his undertaking; (4) his failure to exercise reasonable care resulted in harm to Mrs. O’Malley; and (5) his carelessness increased the risk of harm.

While under negligence, a legal duty of care gives rise to an obligation to act, under the negligent undertaking theory, acting where not obligated to act gives rise to a legal duty. Here, the court said, there were disputed facts regarding precisely what maintenance worker Ramos may have undertaken to do. The clerk at the front desksaid that she told Ramos “to knock on Mrs. O’Malley’s room . . . and if she did not answer the door, to open the door and look in and see if she was in there.” Ramos said the clerk had told him simply to “to go check on her, to go to her room and see if she’s there.”

Those conversations, and Ramos’ knowledge that Mrs. O’s husband was worried she might be injured or sick, were enough to permit the inference that Ramos may have been understood the apparent urgency of the situation. The risk that Mrs. O’Malley may have been lying incapacitated somewhere in the hotel room (beyond the threshold of the front door) may have been reasonably foreseeable. “Therefore,” the appellate court said, “the scope of Ramos’ duty may have been more than simply opening the door and peering inside what Ramos claimed was a dark room.”

The appellate court said that “a reasonable trier of fact might infer that Ramos assumed a duty to check on whether Mrs. O’Malley was in her hotel room, and if she was there, why she was not answering the phone. If Ramos had such a duty, the scope of his duty would depend on the nature of the harm that was foreseeable. That question must be resolved at trial.

– Tom Root


Case of the Day – Thursday, February 6, 2020


HP150921When we were kids, we watched Broderick Crawford in that black-and-white police classic “Highway Patrol.” Every week, the full-figured, squinty-eyed Crawford — as highway patrol chief Dan Matthews — would pursue the bad guys in his finned Plymouth police coupe interceptor, usually catching the malefactors after setting up roadblocks all over California and barking “10-4” into his mic several times.

We loved that show. But Dan Matthews and his troopers had nothing on the political subdivisions in today’s case. When Mr. Bright’s car was crushed by a tree limb while he was driving down a road in the Village of Great Neck Estates, he got himself a lawyer and sued the town and the county. They immediately starting setting up roadblocks worthy the best 50s-era cop show.

The case seemed fairly straightforward. The plaintiffs argued that the county and village had had notice that the tree was defective. That hardly matters, the defendants retorted, because you, Mr. Bright, never gave us written notice that the tree was defective. And the Administrative Code of Nassau County required that you do so. As for your passenger, who also sued, she had not shown that she had suffered serious injury, as required by the state’s insurance law. Not very bright, Mr. Bright, the defendants argued smarmily.

Fortunately, the plaintiff was Bright enough. The appellate court made short work of the county’s motion. The county’s prior-notice requirement, it ruled, related to physical deficiencies in roads and bridges, obvious problems that nonetheless might not be known to county officials. If such a requirement were applied to the trees alongside the road, there may as well be no duty imposed on an owner to inspect trees to begin with. Motorists would have had to pick the tree likely to fall on them, and write to the county about it before it fell. Lots of luck with that.

Besides that, while a gaping pothole in the road is obvious to passing motorists, the same can’t be said for a diseased tree, which is not especially susceptible to drive-by inspections.

As for the state insurance law, the requirement that a passenger prove serious injuries is intended to cut down on suits against other drivers. This case wasn’t about a county employee being reckless behind the wheel, but instead the case was a simple one of premises liability. The County owned the highway and the tree next to it, the tree was defective. Voila, a lawsuit.

The county's lawyers set up roadblocks that would put the cops to shame ...

The county’s lawyers set up roadblocks that would put the cops to shame …

So the Court cleared the first set of roadblocks for Plaintiff Bright. So, this is Broderick Crawford, saying “See you in court.”

Bright v. Village of Great Neck Estates, 863 N.Y.S.2d 752, 54 A.D.3d 704 (N.Y.A.D. 2 Dept., 2008). Mr. Bright suffered personal injuries when a tree limb fell on the car in which he was traveling in the Village of Great Neck Estates. Bright and his passenger sued, alleging that the accident was proximately caused by Nassau County’s negligence in failing to remove a dead or diseased tree.

The County moved for summary judgment dismissing the complaint on the grounds that Bright had not complied with the prior written notice requirement set forth in § 12-4.0(e) of the Administrative Code of Nassau County, and that the County lacked both actual and constructive notice of the purported hazard. The County also sought to dismiss the complaint by Bright’s passenger on the ground that she did not sustain a serious injury within the meaning of Insurance Law §5102(d). The trial court denied the County’s motion for summary judgment.

After Mr. Bright's car got crushed, the county tried to do the same to his lawsuit ...

After Mr. Bright’s car got crushed, the county tried to do the same to his lawsuit …

Held: Denial of the summary judgment motion was proper. The Court observed that prior written notice statutes are intended to apply to actual physical defects in the surface of a street, highway or bridge of a kind that do not immediately come to the attention of the municipal officials unless they are given actual notice. Here, the Court held, the defect was no more obvious to the motorist than it was to the county, and probably much less so. The prior written notice statute was held not to apply to trees.

Furthermore, the Court said, the County failed to establish that it lacked actual and constructive notice of the hazard tree alleged to exist in this case.

Finally, the Court said, Mr. Bright’s passenger was not required to establish that she suffered a serious injury, because she did not allege the County was negligent in the use or operation of the car (which is what the statute addresses). Instead, the allegations against the County related to premises liability. The County doesn’t qualify as a covered person within the meaning of the Insurance Law, which was written to stop the flood of staged car accident lawsuits clogging New York courts.

– Tom Root


Case of the Day – Wednesday, February 5, 2020


Squirrel - before ...

Squirrel – before …

Last summer, we looked at a case in which a squirrel frightened a Massachusetts resident who was taking out her garbage. Today, it’s deep fried southern squirrel… or at least that’s what the plaintiff had on her hands.

Mrs. Pardue was talking on her cordless phone when a squirrel jumped onto a power company transformer and closed the circuit. The squirrel got zapped (it happens, you know) when it jumped from an untrimmed tree to the transformer. The power went out, and an “acoustical shock” — which the plaintiff called an explosion — came from the cordless phone and injured Ms. Pardue.

She of course sued the power company for not trimming the trees. That was a little too much for the trial court, which threw out the case. The Court of Appeals agreed. Remember that Louisiana civil law is a little different: down in bayou country, the standard is “ease of association,” the likelihood that the complained-of conduct could have been foreseen to cause the damage. It bears a resemblance to Palsgrafian causation.

A reasonable person can imagine lot of bad things happening as a result of power companies not trimming trees, but the Court held that loud noises coming out of cordless phones wasn’t one of them. Rube Goldberg would have been proud.

Squirrel - after ...

Squirrel – after …

Pardue v. AT&T Telephone Co., 799 So.2d 710, 2001-0762 (La.App., 2001). Louise Pardue was at her cordless phone at home when there was a sudden explosion in the handset and, simultaneously, the electricity went out at her home. After Central Louisiana Electric Company (CLECO) was notified of the outage, its personnel fixed the problem, later reporting Ms. Pardue that a dead squirrel was found on the line.

According to Ms. Pardue’s expert, the squirrel’s presence on the lines caused an electrical surge into the ground system that was shared by the telephone line. Although the expert admitted it would have been “a very difficult thing” to get an electrical shock from a cordless telephone, he opined that the electrical surge created an acoustical shock, that is, a loud noise. As a result of the incident, Ms. Pardue immediately developed a headache and experienced ringing in her ear, followed by problems in her neck, shoulder, arm, and foot.

She sued the phone manufacturer (who was dismissed) and CLECO, seeking damages related to the alleged injuries, claiming that the power company was negligent in failing to adequately trim the trees around the line so as to prevent the squirrel’s interference with the transformer. CLECO filed a motion for summary judgment, which the trial court granted.

The court held that “we don’t know that the squirrel came from the tree, or whether it climbed the pole that the transformer was on, or it climbed another tree, or another pole. I think that when you do the first analysis, the ‘but for’, you can’t answer that; and when you can’t answer it, under the jurisprudence, then the plaintiff’s action fails and a motion for summary judgment in this instance is warranted.”

cia150924Disagreeing with this sage analysis, Ms. Pardue appealed.

Held: Ms. Pardue’s suit was dismissed. The Court of Appeals observed that negligence cases require consideration of the duty/risk analysis. A plaintiff must prove the defendant had a duty to conform his conduct to a specific standard, the defendant failed to conform to the appropriate standard, the substandard conduct was a cause-in-fact of the plaintiff’s injuries, the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries, and plaintiff’s actual damages. For the purposes of negligence analysis, the risk cannot be held to be within the scope of a duty where the circumstances of that particular injury or of the plaintiff could not reasonably be foreseen or anticipated, because there was no “ease of association” between that risk and the legal duty.

Cause-in-fact determinations are factual in nature, while the legal cause or scope of the duty determination is a legal one. Here, the Court ruled, CLECO — the electric utility — did not owe a duty to protect Ms. Pardue a duty. Even assuming CLECO had a duty to maintain the trees surrounding its lines, the Court said, the scope of that duty did not extend to protect Ms. Pardue under the particular facts of this situation.

Ms. Pardue was at home talking on a cordless telephone (and the Court emphasized the word “cordless”). Not only did an animal gain access to the transformer, but the resulting outage caused an “acoustic” shock — not an electric shock — sufficient to result in serious injury. In the least, the Court held, under the particular facts and circumstances of this case, there is no “ease of association” between that risk and the legal duty.

– Tom Root –

Case of the Day – Tuesday, February 4, 2020


Referees make mistakes. Look at last Sunday night. Was that offensive pass interference call on George Kittle at the end of the first half righteous?  And did the Chiefs encroach during a crucial and failed 49ers’ third down late in the fourth quarter, without a flag? Did Damien Williams really break the plane of the goal line before going out of bounds? And that hit in the head Garoppolo took that never got called ? Don’t get me started…

Judges make mistake, too. If that weren’t so, there’d hardly be a need for courts of appeal or even the Supreme Court.

In today’s case, an electric utility sued back in the 1960s to force a landowner to give it an easement for building and maintaining power lines. The court granted the easement — which consisted of four separate rights — but somehow left out the part where it got an easement of 25 feet on either side of a right-of-way to keep trees trimmed. Some 45 years later, the utility wanted to assign its right to the City of Jackson, Missouri, so the City could build its own power line.

The case ended up in court, where the utility argued that just because the 1969 court forgot to mention the 25-foot easement, that didn’t mean it wasn’t there. After all, the utility asked for it and the court never said it couldn’t have it. And when the damages were assessed so the landowner could get fair compensation for the condemnation, the commissioner charged with assessing the cost included the 25-foot easement. Just an oversight, the utility argued.

There’s an old adage in the law that a court speaks through its record. And in this case, while the 1969 Order probably did omit the 25-foot easement through oversight, that didn’t matter. The Order was clear and unambiguous in how it described the easement. Where the language is clear, a reviewing court won’t second-guess.

The 25-foot wide strips were not covered by the prior easement, no matter what the parties may have meant at the time. Like the Dramatics’ old song went, “Whatcha see is whatcha get.”

dramatics150923City of Jackson v. Bettilee Emmendorfer Revocable Trust, 260 S.W.3d 913 (Mo.App., 2008). The Bettilee Emmendorfer Revocable Trust owned land in Jackson, Missouri, which had been subject of a condemnation action 40 years before when the property was owned by others. Back then, Union Electric petitioned for rights over four portions of the land: a 100-foot easement, for the purpose of installing electric transmission lines, 25-foot sections on either side of the 100-foot easement for maintaining trees, overhanging branches and obstructions, two smaller for use in connection with the transmission lines, and an easement for ingress and egress.

The court’s order in that prior case granted Union Electric the 100-foot easement, easements to the two separate parcels, and an easement for ingress and egress. However, the court failed to mention Union Electric’s request for an easement on the 25-foot strips on either side of the 100-foot easement. A report of commissioners filed in the case indicated the commissioners viewed the 25-foot sections on either side of the 100-foot easement as well as the 100-foot portion itself to be within the easement, and it set damages at $22,224.

In October 2006, Union Electric entered into an agreement with the City of Jackson to allow Jackson to build a new electric line on the eastern edge of the 100-foot easement. Jackson and Union Electric entered into a partial assignment of the easement in accordance with that agreement. But noticing the old trial court order had a hole in it, the City sought a declaration of rights as to whether the 1969 condemnation action awarded Union Electric the 25-foot sections on either side of the 100-foot easement, whether Union Electric has the right to assign to Respondent the right to construct an electric transmission line on the 100-foot easement, and whether the construction of an additional electric transmission line amounts to an additional taking of property from the Trust. The Trust asserted the 1969 Order made no mention of an easement or other rights condemned or established on either side of the 100-foot easement. The Trust also argued that construction of an additional electric transmission line would increase the burden on the property “beyond the scope of the intended and authorized use of the easement,” the grant of the easement would be “inconsistent with the original use of the easement,” and the additional utility poles and electric transmission lines would interfere with reasonable use and enjoyment of the property.

The trial court held that Union Electric’s easement included the right, permission and authority to trim, cut and remove trees, overhanging branches and obstructions on 25 feet on each side of the 100 feet right of way which may endanger the safety of or interfere with the transmission lines, and it had the power to assign the right to the City. The Trust appealed.

What the court's actual order says is what goes ...

What the court’s actual order says is what goes …

Held: The 25-foot strips are not covered by the easement. The 1969 order establishing the easements made no mention of and contained no reference to the 25-foot sections on either side of the 100-foot easement, and thus, those portions are not part of the easement. When interpreting easements, courts ascertain the intention of the grantor from the instrument itself. Only when the language of the deed is “unclear and ambiguous” should a court resort to the rules of construction and consider extrinsic evidence. A contract is not ambiguous simply because parties disagree about its meaning. Rather, an ambiguity arises only “when the terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms.

Here, the Court said, nothing in the lower court language was unclear or ambiguous in the documents creating the easement, thus leaving a court to judge the easement only by the plain language of those documents without the need to refer to extrinsic evidence. The report of the commissioners, while it apparently valued the 25-foot sections in determining damages, does not supersede the court’s unambiguous order.

As for the right to assign, the Court held, it was equally clear and unambiguous that the order granted the easement holder the ability to construct a “line or lines,” permitted the holder to “add to and relocate” the electric transmission lines, and referenced “successors and assigns,” thus indicating that assignments are permitted.

– Tom Root


Case of the Day – Monday, February 3, 2020


The solid rock on which the many decisions on landowner liability for trees that fall on neighbors’ land, houses, cars and sundry possessions is the unremarkable notion that a landowner is not responsible for damage caused by the natural condition of the land. In other words, if it’s just a tree growing naturally on the property – and not some exotic species you saw on your last safari, and just had to plant in your backyard in scenic Bugscuffle, Tennessee – any damage it might cause by shedding its limbs or invading with its roots is pretty much an Act of God.

A monkey on Gibraltar ... but no monkeyshines at Gibralter Fire & Marine Insurance - the company wanted Mr. Griefield to pay.

A monkey on Gibraltar … but no monkeyshines at Gibralter Fire & Marine Insurance. The company wanted Mr. Griefield to pay for the damage that his fallen limb had caused.

Or such was the case in 1946, when the Gibraltar Fire & Marine Insurance Co., tried to collect money from Mr. Griefield for damage his tree had done to its insured. Mr. Griefield told Gibraltar that it had rocks in its head if it thought he was liable for damage caused by a falling limb. But Gibraltar wasn’t monkeying around. It sued, claiming in essence that a landowner was liable whenever one of his or her trees caused harm to a neighbor.

The case didn’t involve questions of whether the tree was diseased, whether Mr. Griefield had a duty to inspect his trees, or whether any defects in the tree were readily apparent. Decisions refining a landowner’s duty – even where the tree is a natural condition of the land – were years in the future. Rather, today’s case established as rock-solid the principle that a landowner has no obligation to trim or take other steps to limit the damages that a tree growing as a natural condition of the land might otherwise cause to a neighbor.”

The Mississippi Supreme Court pondered the issue in 1946. Because the decision – although written with some of the ruffles and flourishes typical of decisions of that era – is fairly short, we set it out in full:

Mr. Griefield's tree was a sturdy, natural, plain vanilla oak.

Mr. Griefield’s tree was a sturdy, natural, plain-vanilla variety oak.

Griefield v. Gibraltar Fire & Marine Ins. Co., 199 Miss. 175, 24 So.2d 356 (Sup.Ct. Miss. 1946).” This action was begun by the appellee in a County Court and was there tried by agreement by the Judge without a jury, resulting in a judgment for the appellant, but which was reversed by the Circuit Court and a judgment was there rendered for the appellee. The case was tried in the County Court on an agreed statement of facts, which the Reporter will set out in full.

The test of the appellant’s liability vel non is whether the tree from which this limb overhung the land of the appellee’s assignors was of natural growth or had been planted by the appellant or a former possessor of her land. If the latter is the case, liability appears, 4 Restatement, Torts, § 839; Buckingham v. Elliott, 62 Miss. 296, 52 Am.Rep. 188; but if the former is the case the appellant is not liable, 4 Restatement, Torts, § 840, Comment (a). The former is the case here, for there is nothing in the agreed statement of facts to indicate that the oak tree was not of natural growth.

Perhaps an exotic balloon tree in your backyard? Sure ... just remember, it's probably not a "natural growth" on the land.

        An exotic balloon tree in your backyard is probably not a “natural growth” on the land.

“The broad language of the opinion in Buckingham v. Elliott, supra, if given effect, would sustain the judgment of the Circuit Court, but when the authority of that opinion is limited, as it should be, to the issue then before the court, it will be seen that the judgment there rendered is not in conflict with the rule announced in 4 Restatement (Torts), § 840, for the trees there, the roots of which caused the plaintiff’s damage, were not of natural growth but had been planted of the defendant’s land. The appellant was under no obligation to the appellee’s assignors to remove the limb of the tree which overhung their land, and her gratuitous promise so to do was not binding on her, but the appellee’s assignors had the right at all times to themselves remove so much of the limb as overhung their land. 1 American Jurisprudence, Adjoining Landowners, § 56.”

The judgment of the Circuit Court was reversed and the judgment of the County Court was affirmed.


– Tom Root

Case of the Day – Friday, January 31, 2020


intent160205Intentional grounding? You can bet that was the call after Mr. and Mrs. Peters bought a lot next to the Kriegs.

The Peters didn’t know where the lot lines were. Their real estate agent didn’t, either. Ah, details, details … That didn’t stop them from hacking down trees on the property as soon as the ink was dry on the deed, in order to build their dream house. You probably know where this is going. Harry Peters, acting as his own tree service, goofed, and cut down 29 trees on the Kriegs’ land.

The Peters admitted their honest error. OK, they intended to ground the trees. They just didn’t know that the trees they grounded were the Kriegs’. They were willing to pay for the mistake. But what they were not willing to do was pay the treble damages authorized in the law for wrongful timber cutting.

It was sort of like the intentional grounding foul in football. It’s one thing to get assessed a 10-yard penalty. But on top of that, the team loses the down. Sort of like the double whammy (or triple, if you like) of the statutory multiplier for wrongfully cutting trees.

BMarker140130 C’mon, the Peterses said, there wasn’t any evidence they knew they were cutting Kriegs’ trees. The Court pointed out that the state of the evidence was precisely the problem. It was up to the Peterses to prove that they thought the land was theirs. The wife’s testimony was all they had offered, and it didn’t help: she explained they didn’t really know where the boundaries were, and never bothered to find out. But the biggest problem was what Mr. Peters testified to: nothing. He was the one who cut the trees down, and the Court seemed to expect that he would have material testimony to offer. But he didn’t testify.

Ch 1 Art.xlsThere’s a well-known principle in evidence known generally as the “missing witness instruction.” It holds, as the legendary Professor Wigmore put it, that “the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” In other words, if you have particular control of evidence, and you do not bring it forward, a court is allowed to assume it would have been harmful to your cause if you had done so.

The Court didn’t say it here, but it strongly implied that the absence of testimony from Harry Peters led it to conclude that if he had taken the stand, he wouldn’t have helped his cause any.

Krieg v. Peters, 46 A.D.3d 1190, 850 N.Y.S.2d 211 (N.Y.A.D. 3 Dept., 2007). In May 2004, the parties became adjoining property owners when the Peters family purchased the vacant lot next to the Kriegs. The Peterses intended to construct a house on their property, so Mr. Peters began clearing land without consulting the map referenced in their deed or having a survey conducted. He removed 29 trees from Krieg’s property. Following a jury trial, the Kriegs were awarded damages, including treble damages under New York statute for the removal of this timber. On appeal, the Peterses only contest the treble damages award.

Held: The treble damages were upheld. Under RPAPL §861[2], the New York treble damage statute, in order to avoid treble damages, the Peterses had the burden of proving by clear and convincing evidence that when they removed the trees from the Kriegs’ property, they “had cause to believe the land was [their] own.” Their proof in this regard was woefully inadequate. Mrs. Peters was the only defense witness to testify on this critical issue, and the appellate court found that her testimony had been more damning than helpful in sustaining their burden. She said that, before she and her husband purchased the property, she walked it on one occasion with their realtor. At that time, she specifically asked about the boundary lines but the realtor couldn’t answer her question with any certainty. She said she told her husband of the realtor’s uncertainty when they later walked the property together. She also candidly admitted that no steps were taken to obtain a survey or consult the map referenced in their deed before clearing the land. The Court found it significant that, although he had logged the property, Mr. Peters never testified. It found plenty of evidence that the defendants had no cause to know whether the land Mr. Peters was logging belonged to them or not.

The Peterses also argued that the legislature never intended for RPAPL §861 to apply to individuals such as themselves who make “honest” mistakes about boundary lines. The Court disagreed, holding that on its face, the statutory scheme clearly applied to the facts and circumstances of the case and, in the absence of sufficient proof on defendants’ part to avoid treble damages, it didn’t find the treble damage award to be inconsistent with the law’s purpose or intent.

– Tom Root