Case of the Day – Thursday, December 7, 2017

DOING IT ON THE CHEAP

Fred Flintstone's boss dictated the hours, methods and conditions of work. Hence, Fred was an employee.

Fred Flintstone’s boss dictated the hours, methods and conditions of work. Hence, Fred was pretty clearly an employee.

Over the next few days, we’re going to talk about independent contractors in the legal sense. With Uber, Lyft and a host of other “gig” companies emerging, all of which save money by calling their workers “independent contactors,” the topic is timely. The tree business worries (or should worry) a lot about the status of a worker. A lot of bad things can happen when a worker is misclassified as an independent contractor when he or she is an employee. In the next five days, we’ll try to look at a lot of the pitfalls.

You’d think that determining whether a worker is an employee or independent contractor ought to be pretty cut-and-dried. Fred Flintstone at the Bedrock quarry? Well, he used his employer’s equipment, he did what he was told, he punched a timeclock… clearly an employee. On the other extreme we have the A-Team. They came to you, brought their own weapons (and usually a homemade armored vehicle or two) and a helicopter. They came to do a job, and then left (usually just a step ahead of the Army authorities). No question, they were independent contractors. Very independent contractors.

They brought their own guns - clearly independent contractors.

They brought their own gun, transportation, and – in the case of B.A. Baracas – high-class bling. Clearly, the A-Teamers were independent contractors.

The difference between B.A. Baracas and Fred Flintstone is significant and obvious. But that hardly prevents people from calling one the other when the mood strikes them. Some employers think it’s crafty to label their employees as “independent contractors.” It’s irresistible: no tax withholding, no pesky employer matching of social security payments, no unemployment insurance, and no time-and-a-half for overtime. The IRS fights a never-ending battle against this dodge, and even mandates a test to determine whether your worker is a Fred or a B.A.

There are reasons besides taxation for a principal to try to pound a square employee into a round independent contractor hole. Liability and worker’s compensation are two of those. Over the next few days, we’re going to examine the problem of worker classification as it relates to the arboriculture industry. Today, we’re looking in on a real cheapskate, and how his tightfistedness nearly killed a teenage girl.

Penny-pincher Sulcer had a tenant named Quimby. No, not the Mayor of Springfield, but instead a long-haul trucker. The landlord ignored his tenant’s pleas to trim a dangerous tree, until the tree got in the way of the landlord’s plans. Then he told his tenant — a tree-trimming tyro — to trim it for him, for free, of course.

For some unfathomable reason, Quimby did so. Unfortunately, in so doing, Quimby dropped a limb in a freak accident that struck his high school senior daughter Leslie’s chest, requiring emergency open heart surgery to fix. She survived (even marrying lucky young Mr. Allen during the pendency of the litigation). Sulcer argued that he wasn’t at fault, because Quimby was really just an independent contractor, and it was Leslie’s and Quimby’s fault that she stood too close to the tree while Quimby was cutting limbs.

The trial court bought it, but the Court of Appeals — offended, we hope, that the landlord was getting off scot-free — looked at the issue differently. The question, it properly held, was what Sulcer owed Leslie as a tenant, not as a volunteer worker for her volunteer worker tenant Dad. And clearly, he had breached his duty to keep young Leslie safe from the perils of an unskilled tree-cutter. Of course, the Court couldn’t help but notice the report of Leslie’s arborist: he said a professional trimming job would have cost ol’ tightwad Sulcer $300 to $500. The Court didn’t say it, but we think it was a bit disgusted that the landlord was willing to jeopardize the life and health of his tenants for $500.00.

No, not this Quimby – Leslie Quimby ...

No, not this Quimby – Leslie Quimby …

Allen v. Sulcer, 255 S.W.3d 51 (Tenn.Ct.App., 2007). A landlord told his tenant, Mr. Quimby, to prune large limbs from a tree on the rental property with a chainsaw. The tenant’s 18-year old daughter, Leslie Quimby (now Leslie Allen), was assisting by clearing the limb debris, and suffered an aortic valve rupture and other internal injuries that required emergency open-heart surgery, resulting from the impact of a tree limb that had fallen and ricocheted off the ground, striking her in the chest and chin. At the time of the incident, her father was in an ash tree (about 15 to 20 feet off the ground) in front of his rental house, pruning overgrown limbs with a chainsaw. Ms. Allen was standing in front of the house and assisting her father by clearing the limb debris.

The tenant had previously requested more than once that William E. Sulcer, his landlord who lived 100 yards from the rental house, have the tree pruned. Quimby had voiced his concern that the overgrown limbs, hanging over the house and driveway, would hurt someone. Even though Sulcer had used professional tree services on his farm in the past, he asked Quimby agreed to perform the work because he was tired of the limbs hanging over the house and driveway. Sulcer did not offer to compensate Quimby for his services. Quimby had no training or expertise in pruning or felling trees, or with operating chainsaws, even though he owned one and used it on the limb in question. Sulcer knew Quimby didn’t have experience pruning trees but relied on the fact that Quimby had cut limbs on the property before with no problems. Even so, Quimby had never before trimmed large limbs or climbed into a tree to do so. Other than selecting the limbs, Sulcer provided no other instruction, provided no equipment, and was not present at the time of the injury.

Ms. Allen sued Sulcer, alleging he was negligent as landlord and as the principal of the negligent agent Quimby. She asserted that Sulcer was negligent in instructing her father to undertake such a task, in failing to supervise his activities, and in failing to maintain the leased premises in a safe condition. She argued the negligence of her father should be imputed to Mr. Sulcer under the principles of vicarious liability. Sulcer responded that if there were any relationship between Quimby and himself, it was that of employer and independent contractor. He contended he did not create the alleged dangerous condition and that, if it existed, he had no duty to Ms. Allen because the dangerous condition was known (or should have been known) to her. He argued that, as an employer of an independent contractor, he was not liable for the negligent acts of the contractor, or for injury to the contractor’s helpers.

The trial court found Quimby to be an independent contractor, and it was a well settled principle of law that employers of an independent contractor owe no duty to the employees or “helper” of the independent contractor engaged in an inherently dangerous activity. The trial court granted judgment for the defendant, and Ms. Allen appealed.

tightwad-1-140213Held: The summary judgment for Sulcer was reversed. The Court observed that a successful negligence claim requires the plaintiff to establish a duty of care owed by the defendant to the plaintiff; conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty; an injury or loss; causation in fact; and proximate cause. The Court said that although the parties agreed that Quimby acted as an independent contractor on behalf of Sulcer, the facts of the case more directly implicated landlord/tenant law. The trial court had overlooked the fact that Ms. Allen was a tenant of Sulcer and failed to account for the possibility of Sulcer’s negligence as a landlord. Thus, the Court held, the dispositive question was whether Ms. Allen encountered a harm whose foreseeability gave rise to a duty of reasonable care on the part of Mr. Sulcer, the landlord, to protect her from the danger of falling limbs.

This is not amateur hour ... as the penny-pinching landlord found out.

This should not be amateur hour … as the penny-pinching landlord found out.

In general, landlords owe a duty of reasonable care to their tenants. When a landlord undertakes to repair or maintain some part of the premises, he owes his tenants a duty to exercise ordinary and reasonable care in seeing the repairs are properly made. In other cases, landlords were held liable for injuries to tenants where they sent unskilled employees to repair units. Here, Sulcer knew that Quimby was unskilled in tree trimming, that he did not want to perform this work, and was afraid of heights. Sulcer didn’t even offer to pay Quimby. He didn’t inquire into safety precautions or any other methods Quimby might use. Sulcer argued he had no duty to Ms. Allen because the danger of falling limbs was open and obvious, and, because the danger was so open and obvious, it was not foreseeable that Quimby would allow her to collect the limbs or be anywhere near the work site. But Tennessee courts have concluded that an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability. As in any negligence action, a risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by a defendant’s conduct outweigh the burden upon the defendant to engage in alternative conduct that would prevent the harm.

Here, limbs falling from a tree are not so obvious a adnger as to relieve Sulcer of his duty to hire a competent tree trimmer. Sulcer created an unreasonable risk of harm when he asked an unskilled tenant to conduct work that is dangerous. While the force of a falling limb is predictable, its trajectory while falling and after striking the ground is not. This unpredictability makes the risk of injury from a falling limb more salient when unskilled hands attempt the task. The alternatives available to Sulcer, the Court said, ranged from discussing pruning methods to offering assistance to hiring a professional tree trimmer, all of which, to varying degrees, would have materially lowered or eliminated the probability of such harm with very little burden to the defendant. The Court found that Sulcer had a duty to select someone who would know how to minimize the risk of trimming such large branches.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, December 6, 2017

HURTS SO BAD

In case you missed it the past two days, this is a trackhoe removing a tree.

In case you missed it the past two days, this is a trackhoe removing a tree.

Today is our last day down on Dick Lavy’s Darke County farm. As you recall, we helped Dick’s faithful employee Sylvester trim the trees along a fencerow that separated one of the Lavy from land belonging to his neighbor, Jim Brewer.

We were quite impressed to watch Sylvester run a trackhoe down the Lavy side of the fencerow, smacking down branches with the machine’s bucket. It was not pretty, but it got the job done effectively and cheaply.

Jim Brewer, however, wasn’t very happy with the result, and sued Dick Lavy Farms. Farmer Lavy argued the Massachusetts Rule let him trim overhanging trees any way he liked, that Sylvester wasn’t negligent or reckless, and that the damage – if there even was damage – didn’t amount to much. The jury thought it was arboricide and socked Farmer Lavy for $148,350.

Tuesday, we watched the Court of Appeals for Darke County, Ohio, fillet Dick Lavy’s argument that the Massachusetts Rule was a license to butcher. The Court affirmed a landowner’s right to trim encroaching trees and roots to the property line, but held that such trimming had to be done in a reasonable manner so as not to injure the adjoining owner’s trees.

Yesterday, we saw the Court compare the various means of trimming a fencerow, comparing for ease of use, custom in the area, and cost. It concluded that the trial court was right to find DLF negligent in trimming part of the fencerow and reckless in continuing after a sheriff’s deputy advised Dick Lavy to get legal advice before continuing (advice the farmer ignored).

Today, the Court delves into the $148,350 damage award. Clearly, the Court is troubled that Jim only paid $170,000 for the whole 70 acres, and provided no evidence that the value of the land fell a farthing because of Sylvester’s trimming activities. The Court felt hard pressed to see Jim get almost $150,000 when no trees other than some saplings were destroyed.

Jim didn’t help his cause by admitting (as he had to) that he only visited the land about eight times a year to hunt and picnic, and the trimming didn’t interfere with those activities. He argued that he planned to build a house there in another 14 years or so, but the Court couldn’t see that the damaged fencerow trees had any impact on those plans.

Usually, the measure of damages for a trespass where trees are cut is the difference in the land’s value after the cutting versus before the cutting. There are times where this measure does not capture the real loss: a family loses a cherished ornamental tree, for example, or the landowner nurtures trees for their ecological value.

hurtsobad160929

That’s what Jim Brewer claimed, too…

In this case, however, it’s hard to see how Jim was hurt at all, not to mention hurt as badly as he claimed to be. Indeed, that’s how the Court of Appeals seems to read it, too. Come with us now on a detailed and thoughtful journey through all of the matters a court (and aggrieved party) should consider in setting the amount of loss. Although the Court sends the damage award back for the trial judge to deal with, it’s quite clear that the appellate panel is disinclined to turn the case into a winning lottery ticket for Jim Brewer.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016)

(These facts are repeated from the previous two days: If you don’t need the refresher, skip to the holding)

In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.

The former owner had allowed his neighbor Dick Lavy Farms to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees were ornamental or unique.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line, and that such clearing was important for crop production, yield and safety for farm equipment. Using a track hoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the track hoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch Sylvester stated that he never consciously reached over with the bucket to try and break a branch at the tree trunk that was on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation, and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County sheriff’s deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

Or, if you're Sylvester, don't use a chainsaw at all...

Or, if you’re Sylvester, don’t use a chainsaw at all…

The deputy told Brewer that Lavy said that he was allowed to take tree branches from his side, and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.

Although the deputy suggested that Lavy obtain legal advice before continuing, Lavy continued clearing the fencerow. Knowing that Brewer was upset, Lavy told his employee not to clean up branches that fell on Brewer’s side.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging a violation of O.R.C. § 901.51, reckless trespass, and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

DLF argued that it had a common law privilege to cut off, destroy, mutilate or otherwise eliminate branches from Brewer’s trees that were overhanging DLF land. The Farm also argued that if it was liable, the proper measure of damages should be the diminution of Brewer’s property value; in the alternative, the court’s holding on the issue of damages was against the manifest weight of the evidence. Finally, DLF claimed it had not negligently or recklessly trespassed on Brewer’s property.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515.

Dick Lavy Farms appealed.

(If you remember the facts from the previous two days, start here)

Held: The $148,350 in damages was set aside, because Jim Brewer’s property really didn’t diminish in value.

The Court observed that in a previous case, it had held that where the trespasser could not reasonably foresee that trees had a special purpose or value to the landowner, and where the trespasser “cuts trees that are part of a woodland mix and not unique, the ordinary measure of the harm is the difference in the fair market value before and after the cutting.” The trial court, however, had relied on a different standard:

treeworth160929

The question facing the court…

In an action for compensatory damages for cutting, destroying and damaging trees and other growth, and for related damage to the land, when the owner intends to use the property for a residence or for recreation or for both, according to his personal tastes and wishes, the owner is not limited to the diminution in value (difference in value of the whole property before and after the damage) or to the stumpage or other commercial value of the timber. He may recover as damages the costs of reasonable restoration of his property to its preexisting condition or to a condition as close as reasonably feasible, without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

At trial, Jim’s expert arborist testified that the cost of removing the trees Sylveste3r had damaged would cost $55,000, and the cost of replacing them would be $138,000, plus tax. Jim did not offer any evidence that his 70-acre property’s fair market value had fallen by so much as a penny. DLF’s arboriculture expert testified the life expectancy and service life functionality of the fencerow was not affected by the manner in which the trees were pruned. He valued the fencerow as a woodland edge fence and argued that real estate or fair market value would be the proper way to assess damages. Another DLF expert also testified that the fair market value of Brewer’s property was the same before and after the incident.

The trial court found that removal of the damaged trees was unnecessary, and thus discounted that $55,000 cost. In addition, the court concluded that the $138,000 estimate for tree replacement was excessive, and reduced that amount by 50%. The court also deducted 14% for ash tree disease, which had already caused the death of a number of trees on both sides of the lane. The trial court thus arrived at $59,340 in compensatory damages.

Next, the trial judge decided that DLF had negligently trimmed one-fourth of the property (or about 1,000 feet), and recklessly trimmed remaining three-fourths of the fencerow. The trial court awarded $14,835 for negligence, and $44,505 for DLF’s recklessness. Pursuant to O.R.C. § 901.51, the court trebled the recklessness amount to $133,515. This brought the total damages to $148,350.

The Court of Appeals noted Ohio’s general rule that “recoverable restoration costs are limited to the difference between the pre-injury and post-injury fair market value of the real property,” The courts have carved out an exception, however, that permits restoration costs to be recovered in excess of the decrease in fair market value when real estate is held for noncommercial use, when the owner has personal reasons for seeking restoration, and when the decrease in fair market value does not adequately compensate the owner for the harm done. This restoration cost exception has been applied, for example, where the damaged trees have been maintained for a specific, identifiable purpose (like recreation, or a sight, sound, or light barrier), when damaged trees are essential to the planned use of the property, or when the damaged trees had a value that can be calculated separate from ornamental trees have been destroyed, or where the trees form part of an ecological system of personal value to the owner.

Even where the restoration exception is applied, the Court said, “the proposed cost [cannot be] grossly disproportionate to the entire value of the injured property.”

The Court said that the damage to Jim Brewer’s trees was “temporary” (meaning, apparently, that the damaged limbs would grow back), and that the Ohio rule is that “damages for temporary injury to property cannot exceed the difference between market value immediately before and after the injury, is limited. In an action based on temporary injury to noncommercial real estate, a plaintiff need not prove diminution in the market value of the property in order to recover the reasonable costs of restoration, but either party may offer evidence of diminution of the market value of the property as a factor bearing on the reasonableness of the cost of restoration.”

The trial court seemed certain that Dick Laye was a deep pocket, and that may have driven its damage award.

The trial court seemed certain that Dick Lavy was a deep pocket, and that may have driven its damage award.

“Viewing the trial court’s award of damages from the perspective of reasonableness,” the Court of Appeals said, “we must conclude that the award for restoration was objectively unreasonable.” First, the application of O.R.C. § 901.51 “almost exclusively involves situations where trees have been completely cut down, making it considerably easier to determine the full extent of the damage to the plaintiffs’ property.” Here, Jim Brewer admitted that other than a few small saplings, he was not claiming that any large trees had been removed from his land. Instead, he contended only “that 326 trees had been damaged in some manner and would ultimately die, even though pictures of the area taken in June 2014 depict a substantial canopy of foliage… Brewer also testified that a number of trees had died, but he did not give any specific number.”

The Court found that Jim Brewer’s trees were not ornamental and were not located at his residence. Instead, they were native trees that were just part of a fencerow. Jim testified he used the property for hunting only about six times a year, and for family get-togethers maybe twice a year. He also admitted the removal of branches had not had any effect on these activities or his ability to rent tillable land to farmers. Jim intended to put a house on the property after his 4-year old child graduates from high school, but he didn’t claim that DLF’s tree trimming affected his plans to do so.

The Court found it noteworthy that Jim Brewer paid $180,000 for all 70 acres, yet claimed the restoration cost (including removal and replanting of trees) for a very small part of that property was more than $200,000.

Jim did not present any proof that the fair market value of the land had fallen because of the tree trimming. The Court agreed that he was not required to present such evidence, bur said “it would have been helpful, particularly since two defense witnesses indicated that removing vegetation from the fence row did not impact the fair market value of the land.” Additionally, the Court found that much of the trial judge’s calculations “were based on speculation or were incorrect. For example, the court concluded that one-fourth of the fence row was trimmed negligently, but the plaintiff’s own evidence showed that more like 1,800 feet had been trimmed when Jim Brewer first complained. “The trial court could have chosen to disregard [the DLF employee’s] testimony,” the Court said, “but there is no logical reason to disregard the plaintiffs own admission about how far the fence row had been cleared.”

The Court of Appeals was not inclined to see Jim Brewer get a winning lottery ticket...

The Court of Appeals was not inclined to see Jim Brewer get a winning lottery ticket…

The trial court also gave no particular reason for its 50% discount on damages. What’s more, the Court of Appeals complained, “the trees on the fence row were a woodland mix of native trees, not ornamental trees. A number of the trees were undesirable, and there was no evidence of special value. In addition, the fence row had been unmaintained for ten or twenty years. Even though these facts no longer require damages to be limited to diminution in value, they are still points that should be considered in deciding whether an award is reasonable.”

The Court of Appeals vacated the damages, and directed the trial court on remand to consider the reasonable restoration costs, taking into consideration the decrease in the fair market value of the land; the fact that the trees were a common woodland mix, not ornamental trees or trees that Jim had planted for a particular purpose; the fact that the fence row was not maintained for many years, and had undesirable and dead trees on each side of the row; the extent to which the trees have regenerated since the date of the 2013 trimming; the lack of impact on Jim’s intended home site; and the fact that Jim’s use of his property is “sporadic and is not impacted by any injury to the trees.”

The detailed list of evidence the trial court is to consider pretty much tells the trial judge how the Court of Appeals expects this to turn out.

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, December 5, 2017

RUNNING AMOK WITH A TRACKHOE

amok160928Yesterday, we began three days down on the farm with Dick Lavy, and his faithful employee, whom we will simply refer to as Sylvester. As you recall, Farmer Lavy told Sylvester to trim the trees along a fencerow that separated one of the Lavy farms (and the opinion suggests Dick Lavy had a lot of farms) from his neighbor, Jim Brewer.

Sylvester did as he was told, but with a trackhoe instead of a chainsaw. He crawled down the Lavy side of the fencerow, smacking down branches with the trackhoe’s bucket. It was not a pretty job, but it was effective and cheap.

When Jim Brewer sued, Farmer Lavy argued the Massachusetts Rule let him trim overhanging trees any way he liked, Sylvester wasn’t negligent or reckless, and the damage – if there even was damage – didn’t amount to much. The jury mauled Farmer Lavy as badly as his man Sylvester mauled Jim Brewer’s trees, returning a verdict for Jim Brewer in the amount of $148,350.

Yesterday, we watched the Court of Appeals for Darke County, Ohio, fillet Dick Lavy’s argument that the Massachusetts Rule was a license to butcher. The Court affirmed a landowner’s right to trim encroaching trees and roots to the property line, but held that such trimming had to be done in a reasonable manner so as not to injure the adjoining owner’s trees. Today, the Court looks at whether Sylvester acted reasonably in chewing up the fencerow.

What’s interesting about the Court’s analysis is its reliance on expert testimony as to the prevailing custom for fencerow trimming in Darke County, the higher cost of using a chainsaw and bucket truck relative to trackhoes, and the dangers of alternative methods of trimming. As for recklessness, the Court was satisfied to learn that a sheriff’s deputy told Farmer Lavy that his neighbor was unhappy, but Lavy bullheadedly went forward without talking to the neighbor or at least checking with his lawyer to be sure what he was doing was legal. The lesson there is that when you’re on notice but choose to ignore it, you may be judged harshly.

After today’s installment, you’d be reasonable to think that Jim Brewer will probably collect that $148,350 in damages. Tomorrow we’ll finish Brewer v. Dick Lavy Farms, and you may be surprised.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016)

(These facts are repeated from yesterday: If you don’t need the refresher, skip to the holding)

In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.

The former owner had allowed his neighbor Dick Lavy Farms to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees was ornamental or unique.

trackhoeb160927

A trackhoe –  a blunt instrument for tree trimming.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line, and that such clearing was important for crop production, yield and safety for farm equipment. Using a trackhoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the track hoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch. Sylvester stated that he never consciously reached over with the bucket to try and break a branch at the tree trunk that was on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation, and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County Sheriffs Deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

The deputy told Brewer that Lavy said that he was allowed to take tree branches from his side, and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.

Although the deputy suggested that Lavy obtain legal advice before continuing, Lavy continued clearing the fencerow. Knowing that Brewer was upset, Lavy told his employee not to clean up branches that fell on Brewer’s side.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging a violation of R.C. 901.51, reckless trespass, and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

DLF argued that it had a common law privilege to cut off, destroy, mutilate or otherwise eliminate branches from Brewer’s trees that were overhanging DLF land. The Farm also argued that if it was liable, the proper measure of damages should be the diminution of Brewer’s property value; in the alternative, the court’s holding on the issue of damages was against the manifest weight of the evidence. Finally, DLF claimed it had not negligently or recklessly trespassed on Brewer’s property.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515. Dick Lavy Farms appealed.

(If you remember the facts from yesterday, start here)

Held: Yesterday, we studied the Court’s holding that exercise of the Massachusetts Rule right to trim vegetation that encroaches on an owner’s property is constrained by the requirement that the trimming be done with reasonable care so as not to damage the neighbor’s property.

Today, the Court considered whether DLF had exercised such care, and unsurprisingly found that it did not.

hierarchy160928

 The hierarchy of mens rea.

In his complaint. Brewer claimed a violation of O.R.C. § 901.51, negligent trespass, and reckless trespass. A common-law trespass to real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another, causing damage, even insignificant damage. The act of nonconsensual entry may be intentional or negligent.

The Court admitted the case was unusual, because the DLF worker did not actually trespass on Brewer’s land other than when clearing off brush that had fallen or on one occasion when he was lost control the bucket of the trackhoe. In fact, the worker said he never consciously reached over to snap off a branch at the tree trunk that was on Brewer’s property. The action of clearing debris, the Court said, would not have harmed Brewer, but would actually have benefitted him.

The Court said most instances of trespass occur when people enter onto the land of another, cut down, and remove trees. Still, trespasses can result from people setting in motion actions that intrude on another’s land and cause damage. Thus, the liability could still exist even if DLF workers never actually stepped onto Brewer’s property.

The trial court had previously concluded that DLF was negligent by failing to cut or break the trees above its own land, and that DLF breached a duty to ensure that no damage occurred on Brewer’s side of the property line. The trial court discussed two methods of trimming trees, using a track hoe to tear limbs along fences and using a bucket and chain saw, noting that “the more common but dangerous method of lifting a person” with the scoop bucket on a tractor more clearly respects the property line and causes less damage.

reckless160928To establish actionable negligence, the party seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting from the breach. To get at the duty, the trial court heard from expert witnesses about common practices in Darke County, Ohio, for cutting limbs. Brewer’s expert naturally said that the common practice is to use a chainsaw, hand saw, or pole pruner, but never a trackhoe (which would cause more damage to a tree). The expert estimated the cost of his recommended type of pruning to be about $16,000 for the length of the fence row.

The Court of Appeals concluded that few farmers could afford such an expense for pruning, a finding echoed by a number of farmers DLF called to testify. DLF’s witnesses said the custom in Darke County was to clear fences using a trackhoe or backhoe. DLF’s expert stated that he had farmed in the county for 45 years, and that the common practice for clearing fencerows for the last 15 years had been to use backhoes or trackhoes to tear limbs off overhanging trees. He also named commercial services who used this method. He said that using a bucket truck and chain saw is not common because of cost, as well as the danger it presented.

Another Darke County farmer in Darke County testified that the farmers he knows stand in a loader bucket and trim trees using a chain saw, but he admitted the method was dangerous. He admitted he knew no one who used a trackhoe for trimming.

Arcanum, a small town in Darke County, is home of the annual Tour De Donut, in which people race their bicycles from stop to stop, where they see who can eat the most donuts the quickest. You know, Darke County may have its own standard for "recklessness."

     Arcanum, a small town in Darke County, Ohio, is the original home of the annual Tour De Donut, in which people race their bicycles from stop to stop, where they see who can eat the most donuts the quickest. Although the 2017 race moved to Troy in neighboring Miami County (to accommodate the thousands of racers), the Tour helped Darke County establish its own standard for “recklessness.” (Full disclosure: We have raced this event for the past four years… maybe we’re crazy, too).

The Court of Appeals said that in light of the record, the trial court’s conclusion DLF was negligent was not erroneous. “Farmers may face difficult choices if the available methods are either too expensive, or risk damage to surrounding property, or risk the farmer’s safety. However, the issue in this case is simply whether the method in question caused unnecessary harm to the adjoining property. In view of the evidence, we cannot conclude that the trial court erred in the standard it applied, nor can we conclude that the court’s finding of negligence was against the manifest weight of the evidence. “

Likewise, the Court denied DLF’s that the trial judge’s finding that it was reckless was against the weight of the evidence. Dick Lavy admitted that sheriff deputies told him that Brewer was unhappy with the trimming, and asked him to stop clearing the neither told tell his employee to stop clearing the line in order to give Brewer a chance to do so, nor did he contact Brewer to discuss the matter. There was no need for speed: Lavy told Deputy Nichols that he wanted to clear the fence row before spring planting, but that was two or three months away.

A person acts recklessly, the appellate court said, when with heedless indifference to the consequences, he or she disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he or she disregards a substantial and unjustifiable risk that such circumstances are likely to exist.

The Court of Appeals noted that other defendants had been found reckless where their actions, like Dick Lavy’s, continued after they learned of a dispute about the activity. The same, the Court said, was true here.

– Tom Root

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Case of the Day – Monday, December 4, 2017

DOWN ON THE FARM

Donald Trump carried Ohio in the 2016 presidential election by 8 percentage points. Some critics have argued it’s because he’s favored by an “uneducated and testosterone fueled bunch” of white men.

dunce160927We’ll leave politics to the trained professionals, but we think it’s high time Ohio takes you all to school, even if it’s only about tree law. We have some thinking people here (we think). Just to prove our arboreal mettle, we’re going to spend the next three days talking about a single Ohio case, a lengthy decision that’s a veritable final exam in tree law.

The Ohio appellate court decision answers some tough questions. Such as, if the Massachusetts Rule lets me trim encroaching tree branches and roots up to my property line, what duty do I have to the trimmee? Or, how do I maximize my damages (if I’m the plaintiff) or minimize them (if I’m the defendant)? Or, what method do I have to use to trim back to the property line?

Serious questions, indeed. So we’ll leave the walls and Russia investigations and tax reform and tweets to others, and travel to sunny Darke County, where megafarmer Dick Levy has just had one of his farmhands trim a property-line fencerow by ripping down offending branches with a trackhoe. He claims the Massachusetts Rule lets him use anything short of tactical nuclear weapons to vindicate his tree-trimming rights. The Court is more cautious…

chainsawb160927Tomorrow, we’ll look at whether farmer Lavy’s trespass onto his neighbor’s land was negligent or reckless. Thursday, we get to the question of damages.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016).  In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.

The former owner had allowed his neighbor Dick Lavy Farms to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees were ornamental or unique.

A trackhoe removing a tree... rather a blunt instrument.

A trackhoe removing a tree… rather a blunt instrument.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line, and that such clearing was important for crop production, yield and safety for farm equipment. Using a trackhoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the track hoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch, but he never consciously reached over with the bucket to try and break a branch at the tree trunk on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation, and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County Sheriffs Deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

The deputy told Brewer that Lavy claimed the right to take tree branches from his side, and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.

Although the deputy suggested that Lavy obtain legal advice before continuing, Lavy continued clearing the fencerow. Knowing that Brewer was upset, Lavy told his employee not to clean up branches that fell on Brewer’s side.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging (1) a violation of O.R.C. § 901.51; (2) reckless trespass; and (3) and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

A chainsaw would have given a cleaner cut, but they are dangerous.

A chainsaw would have given a cleaner cut, but they are dangerous.

DLF argued that it had a common law privilege to cut off, destroy, mutilate or otherwise eliminate branches from Brewer’s trees that were overhanging DLF land. The Farm also argued that if it was liable, the proper measure of damages should be the diminution of Brewer’s property value; in the alternative, the court’s holding on the issue of damages was against the manifest weight of the evidence. Finally, DLF claimed it had not negligently or recklessly trespassed on Brewer’s property.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515.

Dick Lavy Farms appealed.

Held: The Massachusetts Rule is not a license to maim and maul.

DLF argued it had a common law privilege to sever or eliminate Brewer’s overhanging branches in any manner that it desired, and that the trial court nullified the privilege by holding that DLF could not cause breakage that impacts the tree on the other side of the property line. DLF argued this holding “emasculates the common law privilege and creates a conflict between R.C. 901.51 and a property owner’s constitutional rights.”

Section 901.51 of the Ohio Revised Code provides that:

No person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another or upon public land. In addition to the penalty provided in section 901.99 of the Revised Code, whoever violates this section is liable in treble damages for the injury caused.

The Court agreed that “a privilege existed at common law, such that a landowner could cut off, sever, destroy, mutilate, or otherwise eliminate branches of an adjoining landowner’s tree that encroached on his land.” However, the Court said, “even in situations involving common law privilege, a landowner should not act in a manner as to cause damage to the property of an adjoining landowner. Thus, while a privilege exists, it is not absolute.”

The appellate panel said “it is a well-recognized principle of common law that a landowner has the right to protect his own land from threatened injury, even though, in doing so, he produces a condition that injures adjoining land, provided he acts with reasonable care. Ohio has recognized the right of a property owner to use self-help in removing encroachments on his property. Other jurisdictions also recognize the right of an owner to remove any encroachment on his property which deprives him of the complete enjoyment of his land.”

The critical phrase, the Court held, is “reasonable care.” DLF’s privilege to remove encroachments was limited by the requirement that it use reasonable care not to injure neighboring property. By imposing a standard of recklessness, which requires a higher degree of fault, the Court said, O.R.C. § 901.51 does not interfere with the common law privilege. Owners have an absolute right to destroy any vegetation on their own side of the property. Liability attaches only where the owners’ actions create harm on the other side of the property line.

Farmer Lavy argued that the Massachusetts Rule meant he didn't have to think.

Farmer Lavy argued that the Massachusetts Rule meant he didn’t have to think.

Thus, an owner must use reasonable care when exercising his or her rights under the Massachusetts Rule.

We should note that two judges concurred in the judgment, arguing that there is no duty of reasonable care required by a property owner when protecting his or her own property from encroaching vegetation. The dissenters said the owner “may cut, mutilate, decimate, pulverize or obliterate branches or roots which infringe upon her property from a neighbor’s trees or plants. Self-help is permitted to remove trees or plants. What she cannot do is intrude into the neighbor’s property in doing so. That is why liability is imposed here. Tearing off branches on the DLF property which extended into the Brewer property and which severed the branches at the trunk, or some other point on the Brewer property, constituted an intrusion and the trespass across the property line into the Brewer property, regardless of any degree of care or lack thereof.”

The dissenters drew “a distinction between removal of encroaching vegetation, where self-help is universally accepted, and removal of structures, building or fences, where self-help is often unacceptable.” Curiously, they noted that it “seems likely that a landowner could not chemically treat or poison the roots or limbs that encroach upon her property if that method of destruction will migrate to that portion of the vegetation on the neighbor’s yard and destroy the tree or shrub altogether, but that is an issue for another day.”

– Tom Root

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Case of the Day – Friday, December 1, 2017

THAT EQUITY MAY PREVAIL

A barricuda in one of its habitats - the other is a courtroom.

A barracuda in one of its habitats – the other is a courtroom.

Sometimes you really wish you knew the back story on a lawsuit. To merely read the recitation of facts and the application of the law in some cases leaves you wondering – why is this case even in the courtroom?

Today’s case is a perfect example. The Mannings lived in a housing development. Behind their well-manicured lawn lay some scrubby, undeveloped woods. Their neighbors had a back lawn that was about 30 feet deeper, and the Manning family mistakenly thought that their own lawn must be that long, too. So they cleaned and chopped weeds and took down some saplings, and installed a park bench and baseball batting cage.

But it turned out that the land wasn’t theirs. Presently, they got a letter from some limited liability company’s lawyer, telling them to cease and desist forthwith, govern their actions accordingly, and all of that legal mumbo-jumbo. Chastened, the Mannings withdrew to their own boundary.

End of story? Nope. The owner of the land, CUDA Associates, LLC — “CUDA” undoubtedly being short for “barracuda” — sued the Mannings for the grievous harm they obviously had done to its rather decrepit piece of real estate. The ‘Cuda sued for trespass, for intentional and wrongful cutting of timber in violation of Connecticut law, and for “unjust enrichment.”

OK, fo technically, the Mannings did commit a trespass ... but they left the land in better shape than they found it.

OK, so technically, the Mannings did commit a trespass … but they left the land in better shape than they found it.

And exactly who was unjustly enriched? You have to wonder why CUDA would have sued at all. After all, there was no damage to the CUDA land. In fact, the Court suggested the Mannings had improved it. What’s more, the trespass was an honest mistake, and the trespassers withdrew as soon as their attention was called to the error. We’ll never know the whys. But the trial court pretty clearly agreed with us that the whole thing was a tempest in a teapot: the judge dryly observed that “[t]he equities in this claim clearly rest with the defendants, and as such must be balanced with the nominal losses that the plaintiff has suffered.” In other words, the Mannings’ trespass was pretty minor and done honestly enough, and CUDA didn’t really suffer for it. In fact, it was better off for the trespass, because its property was left in better shape than it would have been in had the Mannings stayed home. The whole case seems like a monumental waste of the court’s time.

However – and we should all know this by now – litigants are allowed to waste the court’s time, and they do so daily. As maligned as lawyers are, sometimes the fees they charge are the only brakes ever applied to the wacky legal claims their clients want to press in the courtroom. Unfortunately for the Mannings, no cooler heads prevailed in the offices of CUDA’s counsel, so the suit was litigated to judgment.

The court recognized that Connecticut law dictated that damages had to be awarded, even where the trespass was trifling. So it awarded CUDA $1,500, an amount which (we hope) was probably much less than its attorney’s fee. So some justice prevailed in the end, even if it was only found in a lawyer’s pocket.

CUDA Associates, LLC v. Manning, Not Reported in A.2d, 2008 WL 249974 (Conn.Super., Jan. 8, 2008). CUDA Associates owned 3,000 square feet from which the Mannings cleared trees, removed underbrush and in effect extended the back boundary of their property line by approximately 30 feet along the entire easterly line of their backyard. All of the surrounding land owned by CUDA or its successor was undeveloped. The Mannings’ house was located in a developed residential area with housing on both sides of White Avenue, and abutting the plaintiff’s property to the east and south. The Mannings installed a park bench, a baseball practice apparatus and the cutting of certain trees and undergrowth, an intrusion into the CUDA’s property that ended when CUDA wrote to them. The Mannings were operating under a mistaken belief that the property that they had encroached upon was theirs and roughly matched the back property line of their neighbor. This mistaken belief led them to do certain clearing and cutting of trees and underbrush and to use the property for their own benefit. CUDA sued for trespass, removal of timber in violation of statute and unjust enrichment.

CUDA could have erected a sign that warned against trespassing and spouted a lot of legal nonsense, like this one ...

CUDA could have erected a sign that warned against trespassing and spouted a lot of legal nonsense, like this one …

Held: The Court found that the Mannings commited a trespass upon a portion of CUDA’s property for their own use and benefit, but any loss of use for CUDA was not measurable. The trespass was negligent and not intentional and, therefore, only minimal damages were awarded. As for the cutting of trees, timber or shrubbery in violation of Connecticut General Statute §52-560, while the Mannings did cut trees, CUDA failed to establish the quantity or the value of any of the trees that had been removed. In fact, the Court said, the cutting may have actually improved the overall site appearance for CUDA’s benefit. Nothing more than reasonable and ascertainable value under the statute can be awarded.

As for unjust enrichment, the Court held that the non-permanent intrusion by the Mannings was unintentional. What’s more, any benefit derived by them from the CUDA land was coincidental to the use of their own backyard property, and was of a de minimis nature. The Court said that equities in this claim clearly rested with the Mannings, and had to be balanced with the nominal losses that the CUDA suffered. The Court awarded CUDA $400 for the common-law trespass, $600 for the timber statute violation, and $500 for unjust enrichment.

– Tom Root
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Case of the Day – Thursday, November 30, 2017

ACQUIESCENCE

One big happy family ... until part of the homestead gets sold.

One big happy family … until part of the homestead gets sold.

Lawyers and surveyors are the first to tell you that you should always carefully survey and protect the boundaries of your property. Daily. It’s as important as flossing. And the advice is ignored just as often.

This is especially so when the adjoining property owners are family. If you can’t get along with your kin …

In today’s case, a family farm — handed down from father to son to son — had adjacent farmland parcels. The brothers owning them agreed that a barbed-wire fence they laid — measured off the centerline of a county road — was the boundary between their lands. They measured carefully and marked the fence with fed flags and pennies crimped around the barbed wire, but they didn’t use a surveyor. After all, we’re all family, so who needs to waste money on a third-party?

The problem was that the county road centerline wasn’t accurate. As a result the 60-acre parcel and the 18-acre parcel were off by about a quarter-acre in favor of the bigger piece of land. But no one knew it, and the agreed-upon boundary survived the decay of the fence, the installation of a mobile home and the digging of a well to replace one end of the fence.

It wasn’t until the 18-acre parcel passed out of the family that the buyer discovered — four years after he took possession — that the presumed boundary was off a bit. What’s a quarter acre out in Nebraska farm country? For the buyer, Aaron Sila, it was a lawsuit.

A long-standing rule provides that mutual acquiescence between owners can establish a boundary line where the actual location of the line is unknown. The Nebraska trial court held, however, that the doctrine wouldn’t work in this case, because the line could easily have been calculated by a surveyor using the legal descriptions in the deed. The ruling, of course, begged the question: when exactly would a boundary be unknown if the owners hired a surveyor? Shades of Rumsfeld’s “known unknowns” and the “unknown unknowns,” back in the golden days of the Iraq invasion!

Our orange cake - which is really good - took second place at the County Fair this week. We mutually acquiesced to the red ribbon, because the first-place coconut-and-strawberry dump cake had us outclassed. (We thus have managed to mention our 2nd place baking finish in a tree-and-neighbor law column, a feat some of our critics doubted we could do).

Our Heavenly Cake and Aunt Josie’s Sour Cream Cookies both took home blue ribbons at the County Fair last summer. We mutually acquiesced to the blue ribbons, because this year, we managed to outclass the second place walnut brownies and angel food cake. (We have thus have managed to mention our two 1st place baking finishers in a tree-and-neighbor law column, a feat one of our critics doubted we could do).

The Nebraska Supreme Court recognized that the trial court’s impossible standard effectively gutted the mutual acquiescence doctrine, and it reversed the decision. It didn’t matter, the Court said, that owners might be able to fix the actual boundary by hiring lawyers and surveyors. They in fact didn’t know where the line was for sure, and they agreed to what each knew was an approximation. It worked for longer than the 10-year statutory period, the Court found, and that was good enough to establish a new boundary by acquiescence.

Sila v. Saunders, 743 N.W.2d 641, 274 Neb. 809 (2008). This case arose as a boundary dispute between two adjoining farm property owners, Kirk and Aaron. The properties were once part of a single farm owned by Kirk’s grandfather, but the land was divided into three parcels and given to his three sons: Vern, George, and Kirk’s father, Eugene. George got an 18 acre parcel east of a county road. Vern and Eugene were each given adjacent 30-acre parcels to the east of George’s 18 acres.

A year later, Vern died, and his 30 acres were acquired by Eugene. Kirk eventually inherited a 20-acre segment of Eugene’s 60 acres. That segment abutted the disputed 18-acre parcel originally given to George. In the early 60s, George and Eugene established the shared boundary of their properties, “[t]o split the farm up to get a boundary line so [George] knew what he owned and what my dad owned,” according to Kirk’s brother, Elloite. George and Eugene decided not to hire a professional surveyor to mark the boundary, and they mistakenly believed that the middle of the county road represented a section line marking the west boundary of George’s 18 acres. George and Eugene took a 100-foot tape measure and some flags and measured 594 feet east from the middle of the county road. They crimped a penny over the barbed wire and tied red flags on the fence at the 594-foot line of both the north and the south ends of the properties. After this, George’s crops were farmed on the west side of the boundary, and Eugene planted his crops on the east side of the boundary. An aerial photograph from the time showed a clear demarcation between the two parcels that appeared to be parallel to the county road from which the boundary had been measured.

In 1965, Kirk removed the barbed wire fence on the south end of the property, but placed a water well next to the property line designated by the crimped penny. After the removal of the fence in 1965, the well was understood by George and Eugene to be the south visual marker for the boundary between their properties. George and Eugene farmed their respective lands with the well on the south end and the crimped penny on the north end of the boundary for 21 years. When George died in 1986, Eugene and Elliotte continued to farm Eugene’s 60-acre parcel, and they also farmed George’s land for his widow, but they maintained the crop boundary line according to the well/stump boundary. When Eugene died three years later, Elliotte continued to farm George’s land and the 20 abutting acres inherited by Kirk, and he still considered the well and the tree stump as boundary markers.

Aaron Sila bought the 18 acres from George’s widow in 2001. Four years later, he hired a surveyor, who found that the centerline of the county road along the west side of Aaron’s property did not — as George and Eugene had believed — correspond to the section line. Aaron’s surveyor didn’t notice either a stump or a well as visual markers of a boundary line.

Remember Donald Rumsfeld's "unknown unknows?" The Court said that doctrine didn't limit mutual acquiescence


Remember Donald Rumsfeld’s “unknown unknowns?” The Court said that doctrine didn’t limit mutual acquiescence.

Elliotte hired a surveyor, whose survey showed the disputed area as a trapezoid of about .264 of an acre in issue. The trial court found that Aaron owned the disputed parcel, because mutual acquiescence can only fix a boundary that is otherwise unknown. Since the true location of the boundary was set forth in the legal description and was readily ascertainable through conventional surveying techniques, the court concluded it was “known.” The court also rejected Kirk’s adverse possession claim. Kirk appealed.

Held: The trial court’s decision was reversed. The Nebraska Supreme Court held that under the doctrine of mutual recognition and acquiescence, while a boundary may be fixed in accordance with a survey, when a different boundary is shown to have existed between the parties for the 10-year statutory period, it is that boundary line which is determinative and not that of the original survey. The fact that the true boundary might be “knowable” because the deed contains a metes and bounds description that a registered surveyor could have properly marked on the land — but did not — does not preclude the property owners from acquiescing in a boundary that they believe corresponds with the deed’s description.

Here, the two owners knew that the boundary line was merely an approximation of the real boundary. Nevertheless, that fact did not preclude a finding of mutual recognition and acquiescence, so long as the acquiescing parties recognized this approximation as their actual boundary. In order for mutual recognition and acquiescence to operate, there had to be an assent, by words, conduct, or silence, in a line as the boundary.

– Tom Root
TNLBGray140407

Case of the Day – Wednesday, November 29, 2017

THE RISK WAS OBVIOUS TO A CHILD

The McDonald's coffee lawsuit - easy to deride, but conventional wisdom is probably wrong.

     The McDonald’s coffee lawsuit – easy to deride, but conventional wisdom is probably wrong.

At least until Donald Trump started tweeting, tort law was cited as the best evidence for the demise of the Republic. You know the folklore about the McDonald’s coffee case (which in reality, wasn’t so outrageous after all) and the phony “view with alarm” e-mails that circulate about absolutely fictitious decisions.

But truth be told, most tort law decisions aren’t nearly as outrageous as its would-be reformers would have us believe. Take today’s case. Some boys were playing at a school playground, and decided to raid oranges from a neighbor’s tree. After they had gotten all the low-hanging fruit, one of them stuck his bicycle handlebars in the chain link fence, climbed up his makeshift ladder, and reached across the fence. Naturally, the bike came loose from the fence and he fell, cutting himself on the sharp tines on top of the fence.

The boy sued the school district for maintaining a dangerous fence. The only outrage was that his lawyer decided to sue at all. The fact that no one had ever been hurt on the fence in 16 years didn’t matter. The boy’s attorney argued that it was reasonably foreseeable that young boys would be attracted to oranges adjacent to the fence and would use the fence (whether by climbing or using a bicycle or other means to fashion a ladder) to enable them to reach the fruit. The Court said ‘nonsense’.

Kids really do some pretty foolhardy things.

Kids really do some pretty dumb things.

Chain link fences are ubiquitous, the Court said, but not even kids — who are held to lower standards than adults — would think that it was a reasonable use of the property to thread bicycle handlebars through the links to make an impromptu ladder. The dangerous condition of property should be defined in terms of the manner in which it is foreseeable that the property will be used by persons exercising due care. After all, the Court said, any property can be dangerous if used in a sufficiently abnormal manner.

This decision would be refreshing were it not so commonplace. Less than 5 percent of all civil cases are torts, and only about 4 percent of those go to trial. Recent statistics show that plaintiffs only win about half of the trials, and only half of those winners get more than $24,000 in damages. Most tort lawsuits are losers. Contrary to conventional wisdom, tort law does not always come with a leprechaun and a pot of gold.

A Justin Bieber tattoo at age 13 would qualify as one ...

             A Justin Bieber tattoo at age 13 would qualify as one …

Biscotti v. Yuba City Unified School Dist., 158 Cal.App.4th 554 ( 2007). Nine-year-old Christian Biscotti and his friends were riding bicycles on the grounds of a public school. The boys decided to pick oranges from a tree located in a neighbor’s yard, which was separated from the school’s grounds by a metal chain link fence. The fence, installed when the school was built in 1959, had metal prongs across its top edge. After the boys had picked all the oranges they could reach from the ground, Christian placed a bicycle next to the chain link fence, poking one handlebar through an opening in the fence to help stabilize the bicycle. He then climbed up and stood on the bicycle, balancing himself with one foot on its seat and his other foot on the bar. While Christian reached over the fence and yanked on an orange, the bicycle slipped and he fell onto the fence. His left arm struck the metal tines and was cut.

For at least 16 years prior to the accident, there had been no reported complaints about the safety of the fence and no reported accidents or injuries related to it. That didn’t keep Christian from suing Yuba City Unified School District, which promptly won on summary judgment. Christian appealed.

Standing on the seat and handlebars of a bike leaning against a chain-link fence ... who could imagine that could go so wrong?

Standing on the seat and handlebars of a bike leaning against a chain-link fence. in order to pick an orange … who could imagine that such a reasonable activity could go so wrong?

Held: The school district was not liable. In California, public entity liability for personal injury — governed by statute — is imposed for injuries caused by a dangerous condition of public property where a plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. A “dangerous condition” of public property is a condition of property that creates a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable that it will be used. The intent of these statutes, the Court said, is to impose liability only when there is a substantial danger which is not apparent to those using the property in a reasonably foreseeable manner with due care.

The Court held that Christian failed to raise an issue of material fact as to whether the school district maintained a dangerous condition on its property. The Court said that the risk of falling and being seriously injured would be obvious even to a nine-year-old boy at the time Christian poked the handlebar of his bicycle into an opening in the chain link fence, climbed onto the bicycle, balanced himself with one foot on the seat and his other foot on the bar, and reached over the fence to pick an orange from a tree on the adjacent property. While unfortunate, the injury that resulted when the readily apparent risk of falling became a reality is not compensable. The undisputed facts established that Christian was not using the fence with due care in a manner in which it is reasonably foreseeable that it will be used.

The lesson the boy learned, the Court observed, is that tort law did not protect him from the consequence of his careless decision.

– Tom Root

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