Case of the Day – Thursday, August 15, 2019

THANK YOU, CAPT. OBVIOUS

I’m in the middle of a mountain vacation this week. Today, I fell in a hole between two rocks while negotiating a trail that followed a mountain stream. I was carrying my granddaughter at the time, but I set her down safely as I fell. Besides a barked shin, I was unhurt (just embarrassed).

We got to the trail by boat, and on the way back, I hit a submerged rock with the outboard motor. Afterwards, I bumped my head on a floating swimming dock as I swam toward it doing a backstroke.

Yeah, I’m having a good time. But today’s mishaps reminded me of a “well, duh” doctrine in tort law known as the “open and obvious danger” rule. That hole between the rocks? It was rather open and obvious. The swimming dock? Since I was deliberately swimming to it, it was pretty clearly open and obvious. The submerged rock? Not so much.

The “open and obvious danger” rule provides that a possessor of land is not liable to invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. If the open and obvious danger rule applies, then the land possessor owes no duty to invitees with respect to the open and obvious danger, and he or she therefore cannot be held liable for any injury caused thereby.

The hole between the rocks was so open and obvious that the Dept. of Environmental Conservation could not reasonably anticipate that anyone would step into it while carrying a 3-year old granddaughter. The submerged rock was out near the middle of the lake, and was unmarked and in what appeared to be deep water. The swim raft? Well, you couldn’t miss it.

Let’s say I had followed the trail but, just before the rock, come to two construction barrels with that bright-orange plastic netting construction crews us stretched between them. And, being kind of obtuse, I stepped over the netting (still carrying my granddaughter) and tripped on it, falling. It is fairly open and obvious that the netting was open and obvious, and I had gotten my just desserts trying to cross it.

Ah, but that did not deter Julie Coburn. When she and her husband set off along a trail in the Kays Creek Parkway that was festooned with signs warning that the trail was closed, they thought, “Nah, it can’t mean it’s closed to us.” Later, when they happened upon two orange construction barrels with netting stretched between them, they remained clueless. Julie stepped over the netting, snagged her foot in the plastic, and fell.

Normally, someone pulling such a boneheaded stunt would slink away to the urgent-care facility, chastened and injured and (I hope) a little bit wiser. But this is America, people! We don’t do that here. And Julie didn’t, either. Instead, she sued the construction company for placing the netting across the closed trail.

Happily, common sense prevailed.

Coburn v. Whitaker Construction Co., 2019 UT 24, 2019 Utah LEXIS 83, 2019 WL 2520287 (Supreme Ct. Utah, June 18, 2019): Whitaker was hired to install a water pipeline in the Kays Creek Parkway, a recreational area in Layton, Utah. The Kays Creek Parkway contains a number of walking trails that are designated for public use, one of which led to the pipeline construction site. Whitaker placed a “Trail Closed Ahead” sign at the trailhead indicating that portions of the trail were closed for construction and strung orange netting across the trail to deter people from walking to the construction site. Despite the warning sign and the orange netting, people consistently ignored the sign and would take down the orange netting.

In the summer of 2018, Julie Coburn and her husband went for a hike at Kays Creek Despite seeing the “Trail Closed Ahead” sign at the trailhead, the Coburns assumed the trail was open and continued on. A short distance into the trail, they encountered two barrels on either side of the trail with orange netting strung between them, with the netting fallen down and lying across the trail. Julie admitted the orange netting was a hazard but stepped over it anyway. She tripped and fell, hurting her arm and shoulder.

Julie sued Whitaker seeking damages for her injuries. Whitaker argued it did not owe Julie a duty of care under the “open and obvious danger rule” found in the Restatement (Second) of Torts — which Utah has adopted.

The district court and court of appeals agreed with the construction company.

Julie appealed.

Held: The Supreme Court held that the “open and obvious danger” rule kept Julie from recovering a dime.

The open and obvious danger rule provides that a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to use public land indicates that the harm should be anticipated. There is special reason for the possessor to anticipate harm when the possessor maintains land upon which the public are invited and entitled to enter as a matter of public right.

This is so because defendants may reasonably expect the public, in the course of the entry and use to which they are entitled, to proceed to encounter some known or obvious dangers which are not unduly extreme, rather than to forego the right. However, even these defendants may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid. And this is true particularly when a reasonable alternative way is open to the visitor, known or obvious to him, and safe.

Still, public landowners and possessors may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid, especially when a reasonable alternative way is open to the visitor, known or obvious to him or her, and safe.

Here, Julie chose to ignore a “trail closed” sign and the orange construction netting barrier. What’s more, she recognized that one could easily fall crossing the netting, but did so anyway. The “open and obvious danger” rule easily applied, and saved Whitaker from any liability.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, August 14, 2019

DANGER TREES, WILL ROBINSON!

No danger trees in the middle of the woods...

No danger trees in the middle of the woods…

In the tree world, a danger tree is generally defined as a tree that (1) is diseased, decayed or injured; and (2) is located in a place where it can hurt people or property if it falls. A dead tree standing in the middle of Winnie the Pooh’s Hundred-Acre Wood is not a danger tree, because if it falls, it won’t hit Pooh’s house or Christopher Robin.

If you’re a public utility, however, you don’t take such a Pollyannish view of danger trees. Instead, a utility tends to define a danger tree the real estate agents define houses: it’s location, location, location. To the power company, a tree is a danger tree if it is too close to power lines, no matter what its condition.

Naturally, this leads to plenty of tension. It’s simple math for the utility: if the tree is within x feet of a conductor, it comes down. To the landowner who waxes rhapsodic about his or her silver maple, there’s no justification for removing a healthy, beautiful hardwood just because of where it is standing.

Our sorry plaintiffs today, the Raglands, found out the power company was clearing its right-of-way, and demanded that that the utility negotiate with them about leaving some beloved pines. The power company didn’t bother, but instead came through with chainsaws a–buzzing, and removed every tree within 5 feet of a conductor. That was the company’s standard. When the Raglands sued, they hired an expert who testified that the trees removed were young, healthy, and posed no risk to the power lines.

Especially in the Internet age (which started after this case was decided), there’s no excuse for failing to check out your expert. The unsuspecting Raglands had hired a guy who used to work for Alabama Power Company. When he did, he based his opinion solely on height, the standard the power company used.

After the expert’s past conspired to kneecap his testimony, the Supreme Court of Alabama held that the beauty of Alabama Power’s standard was that it was so easy to use. If you use the Raglands’ proposal to measure age, health, size and some mushy opinion testimony on how likely the tree was to fall on power lines, there would be no end to litigation. No one wanted that (except for the lawyers, of course, who slobber at the thought like Pavlov’s dogs at the sound of the bell). The power company’s simple distance-to-conductor standard was easy for homeowners and utilities to understand and apply.

The power company’s trimming of Raglands’ trees based on distance-to-conductor was held to be proper.

Alabama Power Co. v. Ragland, 406 So.2d 363 (Sup.Ct. Ala. 1981). The Raglands had a two-acre plot near Bessemer next to land on which Alabama Power had a right-of-way and on which it ran three high-voltage transmission lines, the closest of which was only a few feet from the Raglands’ property. When building his house, Mr. Ragland left standing some pine trees that blocked the view of the power lines from his house. Alabama Power gave him notice that the company would be cutting trees along its right-of-way.

Mr. Ragland called an attorney, who told him to have the Alabama Power call him before cutting the trees. Alabama Power did not, but instead proceeded to cut down 15 trees and top two others. Ragland sued Alabama Power for trespass.

After the trees were cut, Mr. Ragland hired a forester who inspected the stumps and other conditions about the Raglands’ property. He testified that these trees did not pose a concrete threat of injury to the transmission lines. But the forester also had worked for Alabama Power, and when he did, he considered height almost exclusively. When working for the Raglands, he also considered health of the trees, neighboring trees, and weather conditions.

treelines160824

Danger tree? This one qualifies by anyone’s standard.

Alabama Power’s standards for clearing trees along transmission lines were to cut any tree that would fall within five feet of the nearest conductor. Alabama Power’s 1975 records showed 1,807 tree-caused outages on 5,000 miles of distribution lines and five tree-caused outages on 500 miles of transmission lines. Nevertheless, the trial court found for Ragland, holding that Alabama Power had not shown the trees it removed were “danger trees.”

Alabama Power appealed.

Held: The Supreme Court reversed. It found that if Alabama Power had to make a tree-by-tree determination of “concrete threat of injury” based on the health of the tree and other arguable factors, the efficiency of tree-clearing operations would be substantially reduced and outages would probably increase. Alabama Power would also be subject to suit from any disgruntled property owner who does not agree that his trees pose a threat to neighboring lines.

On the other hand, if Alabama Power continued using its 5-foot rule, property owners would have a definite standard by which to trim their trees. Thus, the trial court’s jury instruction defining “danger trees” as trees which by reason of size or condition and contiguity to power company right-of-way involved a concrete threat of injury to power company transmission lines placed too great a burden of proof on the power company, which had a right and authority to remove trees outside of its right-of-way as might injure or endanger by shading, falling or otherwise any of its works.

Alabama Power thus could properly rely on its 5-foot rule, which allowed it to cut any tree that would fall within five feet of the nearest conductor.

– Tom Root
TNLBGray140407

Case of the Day – Tuesday, August 13, 2019

PEOPLE BEHAVING VERY BADLY

Harvey Weinstein, the late Jeffrey Epstein, White Nationalists, Antifa, Kim Jong Eun … we’ve had a belly full of people behaving badly in the past few years. Like we need this, here are a few more:

Welcome to the neighborhood ...

Welcome to the neighborhood …

Meet the Cooleys, neighbors who were so bad as to drive the Court to write a plaintive plea that everyone try to get along. How bad, you ask? Well, Mrs. Cooley tried to run down her neighbor with her car. She built a chicken-wire spite fence. Her son threatened to beat up his elderly neighbor (who had just had a heart transplant). Yes, that bad …

This case is one of those rare fact-driven trial court decisions worth reading just to get the flavor of the Court’s incredulity that people could carry on like this. At one point, the judge observes that “[o]ne could almost use that well worn lawyer’s expression ‘I rest my case’ after merely viewing Mrs. Cooley’s Exhibit 12, which in gruesome detail sets out the ‘this is my property’ syndrome.” The court finally issues a 15-point injunction ordering the Cooleys to stop doing 12 acts of malice, and the Quarantas to refrain from three others. It found application for a seldom-used Connecticut statute prohibiting structures built out of malice, banning a chicken-wire monstrosity erected by the Cooleys as a “spite fence.” Finally, it found the often-alleged but seldom-proven “intentional infliction of emotional distress” tort to have been shown here, and ordered the Cooleys pay the Quarantas legal fees.

At the end of its opinion, the Court ordered each party to read his final words out loud. Those were a plea by the Court for these people to rewind the clock to the beginning and try to get along. The Court’s frustration and sense that no matter what the law said, nothing would stop the bickering, comes through. Not great moments in the development of the law … just a neighbor law tale worth reading.

There was even a

There was even a “spite fence” in the story …

Quaranta v. Cooley, 2007 Conn. Super. LEXIS 3199, 2007 WL 4577942 (Conn.Super. 2007). People behaving very badly. You know how the opinion’s going to go when the Court begins by quoting an old Supreme Court opinion that “… it is the bickerings, spite, and hatred arising from neighborhood quarrels; it is difficult for any legislation to remedy such evil.”

The Quarantas were senior citizens who had lived in the same home for 26 years. Mr. Quaranta was on life support system and eventually had a heart transplant. The Cooleys were younger than the Quarantas, but had a 25-year-old son and health considerations of their own. When the original landowner subdivided his property into the lots which became the homes of the Cooleys and Quarantas, there was an existing paved driveway to the Quarantas’ home from the street, bordered with a split rail fence and a grassy area on each side. The landowner created by deed two 25’ easement roads (for a total width of 50 feet) over the same area on which his driveway existed. Each lot owned 25’ of the road, and each owner had the right to pass over the 25 feet owned by the other. The practical effect of these easements is to allow all three parcels of land to share access to the public street with one common driveway. Although the neighbors couldn’t see each others’ homes, they ended up in a continuing vitriolic spat in which each side accused the other of using the “F” word, raising the middle finger on numerous occasions, and other immature and harassing behavior, such as the noisy racing of vehicles, the blowing of car horns and trash placement fights.

ass150721The Court held that the Cooleys, who were New York City dwellers unused to the suburban life, utterly lacked credibility on the stand. It found that the battle began with Mrs. Cooley delivering a letter to the Quarantas within 30 days of her having moved in, in which she told them their lampposts and driveway sat on the Cooley property. Then, the Cooley son began throwing keg parties at the Cooley home, with noisy partygoers parking all along the right-of-way. The parties were noisy and annoying, and afterwards, the Quarantas found themselves cleaning up empty bottles and cigarette butts. The parties were held about four times a month. The Quarantas complained without effect. The grand finale was the Cooley Halloween Party in 2005. When Mrs. Quaranta went out in her nightgown to ask for peace and quiet, the partygoers cursed her – one exposing himself to her – and urinated toward her. After this, Mrs. Cooley and her daughter, took to riding at high speed over the grassy area, even leaving deep tire tracks. Although the Cooley’s trash pickup was on Friday, they would put their trash out all week long, at a spot where it was viewable only from the Quarantas property. Animals got to the trash during the week and the plaintiffs did the clean up. Mrs. Cooley would to drive fast down the mutual passage raising dust and her middle finger while blowing her horn the entire distance. She overdosed her own lawn with weedkiller, killing all of the grass ostensibly so she wouldn’t have to mow. Her lawn, of course, fronted on the Quarantas’ lush and meticulous.

badneighbora140204There were countless verbal confrontations as well. The Cooley son yelled at Mr. Quaranta, a man past 65 with a heart transplant, “Hit me! I’ll wipe the ground up with you.” Previously, another judge had ordered the parties to refrain from intimidating, threatening, harassing, stalking, assaulting, or attacking each other, and to refrain from entering the property of the other, until the dispute was tried and resolved on the merits. After that, the Cooleys built an ugly chicken wire fence on the side of the passage that fronts the Quarantas’ house only. The trial court was called upon to mediate the dispute.

Held: The Court found for the plaintiffs, the Quarantas. It held that Mrs. Cooley’s testimony was so bad that it noted that “[o]ne could almost use that well worn lawyer’s expression ‘I rest my case’ after merely viewing Mrs. Cooley’s Exhibit 12, which in gruesome detail sets out the “this is my property” syndrome. The court found it unsurprising that she took an axe to, and threatened to destroy, anything – even things of beauty – found on her property. These items included a lamppost, (that provided her light with the Quarantas paying for the electricity), fences (that enhanced the entrance to both their properties), a beautiful birch tree (with no professional evidence that it had to be cut down), a ceramic nameplate, (which her son admitted smashing) and even shrubbery. “Such warmth!” the Court said. “And it shows in the fifty plus exhibits.”

The Court held that the chicken wire fence was maliciously erected, based on its character, its location, and the obvious state of mind and motive of the defendant. It ordered the fence removal pursuant to §52-480 of the Connecticut Statutes. It found that the Cooleys had exceeded the use of the right of way in a vindictive and malicious manner so as to harm the Quarantas, rather than just for ingress and egress. It held that number of the Cooleys’ activities on this simple right-of-way were, “in layman’s terms, ludicrous, and in legal terms harmful, unnecessary, illegal and unreasonable.” It issued a detailed injunction spelling out 12 acts in which the Cooleys were not to engage, and 3 acts in which the Quarantas were not to engage.

A happy ending? Not with these folks ...

A happy ending? Not with these folks …

Based upon the totality of the evidence, the Court held that the Cooleys directly and indirectly negligently and intentionally caused severe emotional distress to the Quarantas, and knew or should have known that their acts would result in severe emotional distress to the plaintiffs. In the case of Mr. Quaranta, the distress was found to be life threatening. The Cooleys evidenced a reckless indifference to the Quarantas’ rights and showed an intentional and wanton violation of these rights. The injury was inflicted maliciously, with evil motive and violence. The Court awarded the Quarantas their legal fees as damages.

The Court took the unusual step of ordering a final statement to be personally read by the parties. It begged both parties to “go back to the day the Cooleys moved in and put everything back the way it was. Let us dig a hole and bury all of the ill feelings and hatreds that are all consuming.” The Court, writing this on Thanksgiving Eve, ended by noting that “[t]he person whom many people honor in this Holiday Season forgave everyone. Isn’t it time that the Quarantas and the Cooleys caught the spirit of the Season?”

Postscript: They did not. Rather, they were back in court repeatedly between 2007 and 2013, arguing over contempt motions filed against each other. Oh, the humanity …

– Tom Root

TNLBGray140407

Case of the Day – Monday, August 12, 2019

OUTTA SIGHT

You know the kind... never owned a saw, never used a set of hedgeclippers.

You know the kind… never owned a saw, never used a set of hedgeclippers. Woodstock happened 50 years ago, but this guy’s head is still on Yasgur’s farm.

It’s getting toward late summer now. The high school football season is about to start, Labor Day is approaching, Christmas ads will begin in a fortnight…  but the grass, trees, shrubs and weeds are still growing.

You, of course, being a conscientious type, have been taking care of your yard. Your grass is cut, your trees are trimmed, your sidewalk is neatly edged. But you’ve got a neighbor – we all have that kind of neighbor – who’s not as diligent.

His or her grass is high, green plants are growing in the house gutters, and bushy branches overhang sidewalks, streets and yards. We know – we’ve whacked our heads on more than one branch that should have been trimmed before it became a hazard on the sidewalk.

So what kind of duty does Joe Sixpack have to people passing on the sidewalks or streets?

Iowa says not much. Low-hanging limbs obscured sightlines on a curve, and motorist Marilyn Fritz claimed the obstructed line of sight caused her to run into another car. She sued the County for not maintaining clearance so drivers could see where they were going. The County in turn sued landowners Eugene and Doris Norton for having an inoperable chainsaw (that is, for not trimming their trees).

The Court grappled with the question of who had the duty to maintain the sightlines. It noted that Iowa had a policy of encouraging safe travel on the roads, but also had a policy of encouraging trees. So that analysis wasn’t very helpful. Although Dallas County urged the Court to stick the Nortons with the duty to trim, the Court was clearly troubled that if it obligated the owners to maintain the sight lines, those folks – having no expertise in determining what sight lines were appropriate – would have no idea what was right and what was wrong.

The County, on the other hand, did have the expertise, having as it did a highway department staffed with trained professionals. The Court ruled that that fact convinced it the County should be the party which is be most responsible for maintaining highway sightlines.

cynicism160822Plus, given its taxing authority, the County undoubtedly had the more money. Cynical of us, you say? Cynicism is not a synonym for the word “wrong.”

It was important to the Court that the Nortons had not planted the trees, but rather they were “natural.” Also, while the branches were obscuring sightlines, they were not actually blocking anyone’s way down the road.

Fritz v. Parkison, 397 N.W.2d 714 (1986). Trees growing on the property of Eugene and Doris Norton limited the sight distance of two drivers whose vehicles collided on the curve. Plaintiff Marilyn Fritz sued Dallas County for failing to trim vegetation on the inside of the curve that obstructed the vision of each driver of the colliding vehicles. Dallas County in turn sued Eugene and Doris Norton alleging that trees, bushes, and shrubs growing on Norton’s land blocked the view of each oncoming motorist and the Nortons were liable for failing to remove the sight obstruction caused by this vegetation. The question presented to the court is whether landowners whose property abuts a curve on a rural road are potentially liable in tort when trees growing on their property limit the sight distance of drivers whose vehicles collide on the curve.

Held: The Court agreed that, but for the trees growing on Nortons’ land, motorists approaching the curve from the north and from the east would be able to see each other for a longer period of time before meeting. The Court found that limbs on a few older trees growing on the Nortons’ land overhung the road’s right-of-way but not the traveled portion of the curve and that the Nortons had planted a few fruit trees along the roadway.

sightlines160822The Court identified two well-developed and clearly recognized public policies implicated in this case. First, in light of the increasingly mobile society, highways must be kept free from obstructions and hazards. Indeed, courts have at various times imposed liability against individuals for allowing a highway to become obstructed or hazardous. The second policy implicated by this action is the well-established state goal to encourage the growth and cultivation of trees and discourage their wanton destruction.

Here, the Court found that Nortons’ trees did not physically obstruct or intrude upon the traveled portion of the road and neither directly impeded nor constituted any kind of latent defect that without warning might fall across the road or onto a passing vehicle. In this case, the Court held, the owner of land abutting curved highways owed motorists no duty to remove trees located on the landowner’s property where the trees did not actually obstruct traveled way even if the trees were planted by the landowner.

The Court further held that naturally occurring or artificially created conditions on a landowner’s property should be taken into consideration in deciding the case and whether the property is located in an urban or rural area is an additional consideration to determine liability.

– Tom Root

TNLBGray140407

Case of the Day – Friday, August 9, 2019

FISTS, NOSES AND TREES

punch50720Everyone’s heard the old saw that “The right to swing my fist ends where your nose begins.” Imagine your nose is a 65-foot tall maple tree, and my fist is a backhoe. Good luck with that – most imaginations aren’t quite that agile.

Here’s the problem. We all know about “self help,” the venerable old Massachusetts Rule that limits a landowner to trimming away encroaching branches and roots from a neighbor’s tree up to the property line. Michaelson v. Nutting – and virtually every encroachment case decided in the eight decades since that decision – has given a property owner the right to trim back a neighbor’s tree to the boundary without any limitation.

At the same time, we all know about boundary trees, those trees whose trunks enter the earth smack on the property line, so that tree is attached to the ground in both properties. Boundary trees are special, and the general rule is that neither property owner may trim the tree without the consent of the other.

But what happens when a neighbor’s tree is not on the boundary, but so encroaches on a landowner’s property – both above ground and below ground – that the practical effect of the landowner’s Massachusetts Rule self-help will be to kill the tree?

solomon150720Remember King Solomon? When two women appeared in front of him arguing over who was the mother of a baby, he proposed to settle it by cutting the baby in half so that each woman would get 50 percent of the child. That threat was enough to smoke out the imposter. In today’s case, dividing the tree in half would have had the same effect as cutting up the infant (albeit it with less blood).

The Alvarezes own a nice place in Vermont, complete with a view of Lake Champlain. They have a 65-year old maple tree next to the property line of their neighbors, the Katzes. It was close, but the base of the tree was completely on Alvarez property, so this was no boundary tree the parties were dealing with.

The tree had been standing for almost seven decades. In fact, when the Alvarezes bought the property 20 years ago, the maple had already sent roots and branches across the boundary between the two parcels.

The Katzes, who also enjoy a view of Lake Champlain, have planned for a number of years to add on to their house, essentially doubling its size with a two-story addition. The only problem – or at least, the only problem we care about – was the maple tree. To add on, the Katzes would have to cut away about half of the maple tree’s branches and roots, in all likelihood killing the tree.

The Alvarezes and Katzes tried to resolve the problem amicably, but – just as happened with the women in front of King Solomon – there really wasn’t any middle ground. Either the Katzes would get their way, building onto their house and killing the tree, or the Alvarezes would have it their way. Like Dr. Seuss’s north-going and south-going Zax, neither neighbor would budge.

But then Katz somehow learned all about the Massachusetts Rule. It dawned on him that he could cut back the offending maple tree to the property line, both roots and branches. Sure, the tree might die, but the Massachusetts Rule said nothing about what happened to the tree after a neighbor used “self-cutting” trimming on it.

The Alvarezes ran to court, and obtaining an injunction against Katz. The trial court found that trimming the tree as Katz proposed doing would probably kill it. The injunction prohibited cutting away only about 25 percent of the tree, about half of what the Katzes needed for their ambitious plans.

The Katzes appealed, and the Vermont Supreme Court threw out the injunction. It held that the Massachusetts Rule was a blunt object, and had always been one. A landowner owns everything above and below ground level, and that owner can cut anything he or she wants to cut, without regard for the effect of the cutting. The Court said that was the law in Vermont and just about everywhere else.

The Zaxes wouldn't budge, either ...

The Zaxes wouldn’t budge, either …

The Supreme Court seemed a little uncomfortable with its decision, but it ruled in essence that the law is the law, and that’s the way Vermont had always done it.. It noted, in a hint that was as subtle as an anvil, that cases where Massachusetts-style self-help had been limited – such as in Booksa v. Patel – the theory that had been advanced was that of nuisance. In other words, the Alvarezes could have argued that Katz’s proposed trimming would so endanger the tree that it would interfere with their enjoyment of their property. Recall in Booksa, the court ordered the defendant to trim the encroaching tree reasonably. The Vermont Supreme Court telegraphed that it would probably have done the same, if the Alvarezes’ lawyer had only thought to make the argument. Oops.

Alvarez v. Katz, 199 Vt. 510, 124 A.3d 839 (Supreme Ct. Vermont, 2015). The Katzes own property at in South Burlington in the Shelburne Bay area. The Alvarezes own the adjoining lot just to the north of the Katzes. The Alvarezes have a 65-ft. tall maple tree, the trunk of which is located entirely on their property. About half of the branches and roots from the tree cross the property boundary and encroach onto the Katz lot. Some roots extend under the Katzes’ existing deck.

For several years the Katzes have sought to expand their home by adding a two-story addition on the rear. The plans for the construction of the addition would require cutting the roots and branches that are encroaching onto their property. This could encompass up to half of the tree’s roots and branches.

The Alvarezes and the Katzes have been unable to amicably resolve the problem of the maple tree. In 2013, when the Katzes considered taking unilateral action to trim the tree’s roots and branches, the Alvarezes filed for an injunction. The superior court found it more likely than not that removal of 50% of the tree’s roots and branches would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting. The court employed what it called the “urban-tree rule,” under which trimming the roots or branches of an encroaching tree may be proscribed if the trimming will destroy the tree. The injunction barred the trimming of more than 25% of the roots and branches of the tree.

The Katzes appealed.

Held: The injunction was vacated. The Supreme Court reaffirmed “Vermont’s long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree.”

Vermont has long recognized ownership of property to include the ownership of that which is below the ground and that which is attached overhead. The right has been clear for almost 100 years, since Cobb v. Western Union Telegraph Co., (a 1916 decision which stated the Massachusetts Rule before there ever was a Massachusetts Rule). Cobb held that “it is a sound principle that where a tree stands wholly on the ground of one and so is his tree, any part of it which overhangs the land of an adjoining owner may be cut off by the latter at the division line.” The Supreme Court criticized the trial court for conjuring up an “urban-tree rule” that would be an exception to Cobb. The trial court had considered this case to be one of first impression in Vermont because of the anticipated adverse – and likely fatal – effect the root-and-branch cutting would have had on the encroaching tree. The Supreme Court held that any attempt to “distinguish” Cobb, that is, to find that the Cobb case was somehow different just because the Cobb tree was located in a rural setting, was wrong.

Further, the Supreme Court said, the “urban-tree rule” does not enjoy the support attributed to it by the trial court. Outside of two cases, the California decision in Booksa and one obscure New York decision, the Massachusetts Rule (which maybe we should have called the “Vermont Rule”) enjoys extremely widespread support. What’s more, the Court reasoned, the Vermont legislature has had 99 years to modify the Cobb holding by statute, and it has not bothered to do so. The Supreme Court concluded that the “right to cut encroaching trees where they enter the land of another, without regard to the impact on the encroaching tree by such cutting, is well-established under Vermont law.”

The Supreme Court noted that at common law, the right to cut encroaching boughs and roots historically counterbalanced a landowner’s right to grow shade trees on his land, regardless of the impact those trees may have in casting shade or encroaching upon the neighboring property. Common law provided no claim for damages caused by encroaching roots or branches. Instead, the remedy was one of self-help, allowing the cutting of roots and branches to the extent of encroachment.

Where other jurisdictions have departed from the common-law rule and allowed actions for damages as a result of encroaching roots or branches, they have generally relied upon nuisance principles. Even where such actions have been permitted, those jurisdictions continue to recognize the right to self-help. In this case, the Alverezes did not raise a nuisance claim, so “the issue of whether a nuisance claim might exist for the encroachment of roots and branches from the Alvarezes’ tree is not presently before the Court.”

The Supreme Court subtly suggested that the proper way for the Alvarozes to address the problem would be through the law of nuisance ...

The Supreme Court subtly suggested that the proper way for the Alvarozes to address the problem would be through the law of nuisance …

The Supreme Court defined the conundrum as follows: “[T]his case presents the competing interests of neighboring property owners. On the one hand, [the Katzes] have an interest in using their land, which they have purchased and upon which they pay taxes, as they see fit, within permissible regulations, free from limitations imposed by encroaching roots and branches from the neighbors’ tree, which they did not invite and for which they receive no benefit. The Alvarezes seek to restrict the use of the Katz property by preventing the removal of branches and roots on land that is not theirs and for which they have given nothing of benefit to [the Katzes] for suffering the encroachment. On the other hand, the Alvarezes wish to continue to enjoy their tree, which has been there for many years, without placing its viability in peril due to the construction that [the Katzes] wish to undertake.”

The Court observed that if the Alvarezes had the right to have their tree encroach onto the neighboring property, the obvious next question would be to what extent the encroached-upon property owner must suffer such an encroachment. The Supreme Court admitted that on some occasions the “exercise of self-help may result in the immediate or eventual loss of an encroaching tree, given the long-recognized rule in Vermont and its widespread support elsewhere, we decline to depart from the common-law rule in favor of the approach adopted by the superior court.”

– Tom Root

TNLBGray140407

Case of the Day – Thursday, August 8, 2019

FUN DOWN AT THE OLD SWIMMING HOLE

After reading a report earlier this week about a Pennsylvania town cutting down its “rope-swing tree,” I reflected on the good old days (whenever they were). Back at the turn of the century – the last one, not this one – no old swimming hole at the sweeping turn of a country creek was complete without some old inch-thick length of hemp rope attached to a high cottonwood branch. When the country boys of yore would skinny dip, they would swing high out over the creek, release and plummet into the cool water.

That was then. This is now, as the Town of Chester, New Hampshire, found out. The town had a pretty nice park with a pond, open to the public without charge. Some time ago, persons unknown attached a rope to a tree overhanging the pond, and people use it to do exactly what country kids did a century ago. To make the game more interesting, sometimes a second person would stand near the rope to slap the feet of the person swinging on the rope before that person splashes into the water.

The Town Selectmen were concerned the rope was unsafe. At this point, the logical response would be to remove it. Instead, the Town talked about erecting a “no swimming” sign, but that never happened. The Selectmen asked the police what was being done to stop things. The Chief said the cops kept a list of people seen using the swing.

The rope appeared about seven years ago, which is when the complaints started. Town residents voiced their concerns again in 2013, 2014 and 2015. Nothing happened.

Except the inevitable, that is. On August 20, 2015, 12-year old Christopher Kurowski was at the pond, trying to touch the feet of a person swinging on the rope. The two collided, and Christopher was seriously injured.

Naturally, the town was sued. And just as naturally, it defended under the New Hampshire recreational use immunity statute – RSA 212:34. That statute provides that “a landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes, except… [t]his section does not limit the liability which otherwise exists: (a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity… (d) When the injury suffered was caused by the intentional act of the landowner.

The whole idea behind recreational use statutes like this one is to encourage private landowners to make their land available for public recreational uses by limiting their liability.

Chris’s lawyer gave the Town a run for its money, ending up in the New Hampshire Supreme Court. While the Town won, the frugal Selectmen probably wish they had just cut the swing down when it first appeared. Hardly an elegant solution, but a final one. And cheap.

Kurowski v. Town of Chester170 N.H. 307, 172 A.3d 522, (Sup.Ct.N.H., 2017). The Town owns and maintains the Wason Pond Conservation and Recreation Area, which includes walking paths and Wason Pond, open to the public free of charge. Since 2012, a rope swing has been attached to a tree overhanging the pond. No one knows who put it there.

A local resident told the Town Board of Selectman he was concerned about the safety of the rope swing. She asked the Board to install “no swimming” signs near the swing area. During the meeting, one Board member observed that the swing was a hazard. The police chief reported that police practice when trespassers were found using the swing was just to take their names and list them in a report.

The Board heard similar safety complaints in the following years, but it did not remove the swing or post any signs.

One hot day in August 2015, young Chris Kurowski was playing at the pond, standing in the path of a person using the swing. When Chris tried to touch the feet of his friend, who was swinging on the rope, the two collided, and Chris was badly hurt.

Chris’s father sued Town on Chris’s behalf, claiming the Town negligently or willfully or intentionally failed to remove the rope swing or post warning signs. The Town filed a motion to dismiss, arguing that the plaintiff’s suit was barred by one or both of New Hampshire’s recreational use immunity statutes – RSA 212:34 (the state tort claims statute) and RSA 508: 14 (the recreational use statute).

The trial court granted the Town’s motion to dismiss, holding that RSA 212:34 barred both of the plaintiff’s claims, and that additionally, RSA 508:14 barred the plaintiff’s negligence claim.

Chris’s father appealed.

Held: Assuming that both RSA 212:34 and RSA 508:14 apply to municipalities (an issue the court did not rule on), the New Hampshire Supreme Court ruled that under the state tort claims statute, RSA 212:34, the Town was immune from liability on all of the plaintiff’s claims. Therefore, the Court did not rule on whether RSA 508:14 applied as well.

RSA 212:34 provides that “[a] landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes,” except for liability which otherwise exists [f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; [or w]hen the injury suffered was caused by the intentional act of the landowner.”

The issue, the Court said, was whether young Chris was engaged in an “outdoor recreational activity,” as that term is used in the statute. The Court said he was. An “outdoor recreational activity” is defined in the statute as “outdoor recreational pursuits including, but not limited to, hunting, fishing, trapping, camping, horseback riding, bicycling, water sports, winter sports, snowmobiling… operating an OHRV… hiking, ice and rock climbing or bouldering, or sightseeing upon or removing fuel wood from the premises.” The list in the statute is not exhaustive, and activities not specifically enumerated – but similar in nature to the activities listed in the statute — may be an “outdoor recreational activity.”

The Court said that Chris’s activity was similar in nature to the enumerated activity of “water sports.” In fact, the Court had previously held that RSA 212:34 barred an action against a landowner for injuries sustained by a plaintiff who dove into a lake, striking his head on a submerged rock.

“Here,” the Court wrote, “the activity at issue involved a person launching herself over and into the water – using a rope swing. Christopher was attempting to slap the feet of the person using the swing before that person hit the water. We hold that Christopher was actively engaged in an outdoor recreational pursuit sufficiently similar in nature to the enumerated activity of “water sports” to constitute an “outdoor recreational activity” under RSA 212:34, I(c).”

Chris’s dad argued Chris was not engaged in “outdoor recreational activity” because the swing was man-made. The Court said that had no bearing on the issue. Likewise, the fact that the Town did not install or maintain the swing made no difference. “[T]he identity of the person or entity providing the equipment or structure used in an outdoor recreational activity is immaterial,” the Court ruled. “Indeed, many of the enumerated outdoor recreational activities, for example, hunting, camping, hiking, bicycling, and snowmobiling… involve the use of equipment or structures that could be owned or provided by anyone, including the landowner, a third party, or the injured party.”

In an argument that demonstrated some chutzpah, Chris’s dad argued his son’s conduct did not constitute an “outdoor recreational activity” because it was prohibited by the Town and was identified as hazardous. In other words, if someone ignores your rules, you may be liable, but if they follow the rules, you won’t be. Really? The Court sure didn’t buy it. “[T]he statute specifically contemplates that immunity will apply even if the activity at issue involves a known hazardous condition.”

Chris’s father also asserted that, because the Town knew of the hazard posed by the swing and took no action to remove it or post warning signs, the Town willfully failed to guard or warn against “a dangerous condition, use, structure or activity,” RSA 212:34, V(a). Chris’s dad said three elements had to be present for the landowner’s actions to constitute willful misconduct: “(1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril.”

The Court said it was not deciding whether Chris’s definition of “willful,” which he took from a decision interpreting California’s recreational user statute, was the right approach, because even under that definition, Chris would lose. The Court ruled he had not alleged that the Town had “actual or constructive knowledge that injury was a probable, as opposed to a possible, result of the danger.” While he complained the Town knew about the swing and did nothing, “an allegation that a landowner knew about a particular hazard and did nothing is insufficient to establish that the landowner knew or should have known that injury would probably result from that hazard… At most, such allegations sound in negligence.

Finally, Chris’s dad argued he had showed that his son suffered injury as a result of the Town’s intentional acts. He said the Town’s conduct constituted an intentional act for the same reasons he asserts the Town’s conduct was willful: because the Town acknowledged that the rope swing was a hazard, was warned about that hazard on three occasions between 2012 and 2015, did nothing to remove it, and did not post warning signs.

The Court disagreed, holding that the “mere knowledge and appreciation of a risk – something short of substantial certainty – is not intent.” At most, Chris’s complaint was that the Town was negligent, that the Town disregarded a substantial risk and failed to act. Negligence is not actionable under RSA 212:34.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, August 7, 2019

CHIA JERK

Should I be talking about Chia Pets? Sure. With Labor Day falling in fewer than four weeks, the Christmas shopping season is just around the corner. And what gift says “Happy Festivus” more than a Chia Pet? There are Chia pigs, Chia cats, Chia aliens, Chia emojis, Chia Care Bears®, even a Chia Donald J. Trump.

Alas, the CHIA we’re discussing here isn’t a ceramic figurine smeared with seeds. Instead, it’s the Connecticut Home Improvement Act. And the “jerk” is not our President, of course, but rather a slick lawyer who tried to use it to cheat a local tree trimmer. I’ve told you about this case before, but this sad little cautionary tale bears repeating. 

The takeaway here for the aspiring arborist should be entitled “make sure all your oral contracts are in writing.” That rule goes double when you’re messing with a homeowner who happens to be a slick lawyer. Don made a deal with Ronnie “The Mouthpiece” LoRicco to cut the lawyer’s grass. The contract was verbal. After all, it’s a lawn, for heaven’s sake. Who needs a lot of printed mumbo-jumbo for a lousy lawn?

I think you know the answer to that one. Don started with cutting the grass, but one thing leads to another. The mowing became some grass seeding became some stone moving became some grading and some tree trimming and retaining wall construction. When Don, tuckered out after all of that hard work, went to collect for his labors, slick Ronnie yelled “Gotcha!” Well, perhaps not literally, but he might as well have, because he refused to pay the $2,277 bill, claiming he didn’t owe the arborist a farthing.

nofarthing140508 Don sued. The lawyer-defendant argued that under the Connecticut Home Improvement Act, Don should have given Ronnie a written agreement. Because Don didn’t, Ronnie said, he didn’t owe anything for all the work. Shades of Henry B. Swap tricking the hapless but industrious Mike Mulligan! But like the classic story about the plucky steam shovel Mary Anne, today’s case has a happy ending.

Mulligan-swap When Ronnie moves for summary judgment on the grounds that Don violated the CHIA, the trial court showed the solicitor that it could get just as hyper-technical as he could. The work Don did, according to the court, seemed more like “maintenance services” than home improvements. That argument might be a hard sell where lawn planting and wall building are concerned, but what we have here is a court doing a little distributive justice. Plus, the court said, Don was asserting that Ronnie had raised the CHIA defense in bad faith, invoking the Act not because he was a sheep-like homeowner fleeced by an unscrupulous contractor, but instead because Ronnie had never intended to pay Don to begin with.

Don believed he was the one getting sheared, and the court — apparently thinking the same thing — intended to give Don a chance to prove it. But what a cautionary tale! Simple projects all too often become complex projects, and the fifty states have a patchwork of consumer protection laws that serve as a snare for the unwary arborist. Support your local lawyer! Spend a few bucks to be sure that the slick Ronnies of the world don’t try to shear you.

Don’s Landscaping and Tree Service v. LoRicco, 2007 Conn. Super. LEXIS 248, 2007 WL 2938602 (Conn.Super. Sept. 20, 2007). Don’s Landscaping entered into a verbal agreement with LoRicco for lawn cutting services, which over time mushroomed into installation of a lawn, grading, removal of stones, seeding, moving of trees, planting and building walls. When LoRicco decided not to pay, Don’s sued for the amount due, $2,277.00. LoRicco denied owing Don’s any money, and moved for summary judgment on the grounds that the landscaper’s suit was barred under the Connecticut Home Improvement Act because Don’s didn’t give LoRicco a written contract. Don’s complained that LoRicco was an experienced attorney familiar with Connecticut law looking to beat Don’s out of payment, using the CHIA in bad faith.

shyster150717Held: Summary judgment was denied to the lawyer-defendant. The trial court noted that for LoRicco to satisfy his burden he had to make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. That evidence had to be viewed in a light most favorable to the opponent. In this case, although the Home Improvement Act refers to landscaping, there was a real question of fact whether the services provided by Don’s were governed by the Act. They appeared to be maintenance services, and not “home improvements.” What’s more, the Court credited Don’s allegations, finding they raised questions of fact of whether LoRicco’s reliance on the Act was a bad-faith dodge (of course it was). For those reasons, the summary judgment was denied.

So Don got his day in court, but it was a day that shouldn’t have ever had to arrive. There is a thicket of local, state and (sometimes) Federal law out there – in addition to a substantial body of common law – just waiting to prove a snare to unwary but well-meaning people like Don. And you. A stitch in time saves nine. Here, a little piece of paper would have saved Don a lot of aggravation and legal costs.

– Tom Root
TNLBGray140407