Case of the Day – Monday, May 2, 2022

MEASURING HARM

oopsMr. Harper accidentally cut down 70 trees on Ms. Dumas’ property, thus markedly improving his view. Oops! 

The more skeptical among us think that cutting one Dumas tree would have been an accident, and cutting down a few would be a tragedy. But cutting down 70 of ‘em, and coincidentally achieving the better view Mr. Harper coveted… well, that sounds like enemy action.

The Connecticut court is considerably more credulous than are we. The judge bought the notion that Mr. Harper and his woodsmen goofed, but pondered long and hard about how to figure the damages. In a weird inversion of schadenfreude, Ms. Dumas argued her damages should be measured by the value that Mr. Harper derived from his better view. The Court rejected that.

Instead, it held, the measure of damages is either the value of the timber or the diminution in value of Ms. Dumas’ place. Harper said that the trees he accidentally lopped weren’t ornamental, so the only damage is about $1,000 worth of debris (thus proving that while he couldn’t identify a property line, old Mr. Harper didn’t lack for chutzpah).

schaden141031The Court disagreed. The trees weren’t strictly ornamental, but that was their purpose, regardless of Mr. Harper’s sad attempt at botanical speciesism. The damages should be measured by the cost of repair, the Court said, and the repair will cost $16,000.

Careful testimony by Ms. Dumas’ expert was crucial to establishing her damages, and arborists and landscape professionals should consider how plenty of detail can persuade a court to side with an expert’s report. For the same reason that play-by-play people keep a color commentator near at hand, an expert should tell a story that’s not only accurate and complete, but interesting as well.

Dumas v. Harper, 2008 Conn. Super. LEXIS 264, 2008 WL 496558 (Conn. Super.Ct., Feb. 6, 2008). Yvon Dumas claims that Emery Harper and his agents entered her land without permission and cut down about 70 trees. Dumas claimed trespass and sought compensatory and treble damages under Connecticut law, and other equitable relief. The matter was tried to the judge instead of a jury.

Based on the evidence, including a site inspection, the court found that Harper and his minions had indeed cut down about 70 trees, resulting in the area looking unsightly, with tree stumps and branches and debris strewn about. The Court found that Harper’s trespass was the result of a mistake.

Nothing left but a stump field ...

Nothing left but a stump field …

Dumas introduced evidence of the value of the “view” to Harper with the trees on her property cut down. But the Court ruled that the value of any view to Harper was not the measure of damages, but rather the damages were either the market value of the tree once cut down, or the diminution in the market value of Dumas’ property caused by the cutting. Harper argued that the only measure of damages the court can award pursuant to Connecticut General Statute § 52-560 was the market value of the 70 trees as severed from the soil, because the trees in question were neither ornamental nor shade trees. The Court disagreed, holding that while the trees were not ornamental trees as such, the evidence was that they had ornamental value insofar as their removal rendered that portion of Dumas’ property unsightly. It would make no sense, the Court said, for the damages to be limited to the value of the trees as severed from the real estate. The damages to be awarded to Dumas should be based on the reduction in the pecuniary value of the land because of the cutting.

The Court found that the decrease in value of the Dumas property should be measured by the cost of cleanup and screening the area with new trees. The Court accepted the expert opinion of Dumas’ landscape consultant, who testified that the work would take a week or more and would cost $9,180 for labor and $6,000 for new trees.

– Tom Root

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Case of the Day – Friday, April 29, 2022

TRADITION!

Teyve the milkman has nothing on the law when it comes to the reverence afforded tradition. That’s chiefly because development of the common law is based on the doctrine of stare decisis, shorthand for stare decisis et non quieta movere, meaning “to stand by decisions and not disturb the undisturbed.”

In common law legal systems, precedent – prior authority – is a principle established in one or more prior cases that is either binding on or persuasive authority for a court when deciding subsequent cases with similar issues or facts. Common law legal systems value deciding cases according to consistent rules, so that similar facts will yield similar and predictable outcomes, and people can fairly be said to understand what the law requires of them. Observance of precedent is the mechanism by which those goals are attained.

As Justice Brandeis famously wrote, however, “The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible… Stare decisis is usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than that it be settled right.”

When courts are seen to be messing with stare decisis, a lot of people can get their knickers in a bunch. Look at the kerfuffle in the last few months over the anticipated (or feared) Supreme Court decision in Dobbs v. Jackson Women’s Health Organization that may say a lot about the viability of Roe v. Wade and the constitutional protection for abortion. 

As a concept, stare decisis is hardly shocking. But sometimes being right becomes more important than being consistent. Were that not so, Plessy v. Ferguson and “separate but equal” would still be the law of the land, and laws limiting the number of hours in a work week would still be unconstitutional. Sometimes, rules with roots that are ancient and run deep get overturned. Times change, and with them, rules change, too.

Such was the case in California, which was among the first to completely and soundly reject the quaint common law notion that a landowner was responsible for artificial conditions of his property, but not the natural conditions. As the country became more settled, early tree liability cases began to nibble at the doctrine, perhaps because courts were offended that a property owner could let a tree rot and decay until it fell on a neighbor’s house (or worse yet, the neighbor), and yet not be liable because the tree was a “natural condition.” As the nation became less rural, the rule made less and less sense, until a California landslide swept it away.

Sprecher v. Adamson Companies, 30 Cal. 3d 358, 636 P.2d 1121 (1981). South Winter Mesa Associates, a joint venture between Adamson Companies and Century-Malibu, owns a 90-acre parcel of land in Malibu, California. The parcel is bounded on the north by the Pacific Coast Highway and on the south by Malibu Road.  Across Malibu Road and opposite the parcel are a number of beach front homes, including one owned by Peter Sprecher.

South Winter’s land contained part of an active landslide which extends seaward from the parcel for 1,700 feet along Malibu Road and beyond the boundaries of the property. Pete’s house sat within the toe of this slide. The landslide, which has been evident since the area was first developed in the early 1900’s, was a natural condition of the land which has not been affected by any of South Winter’s activities on the 90-acre parcel.

In March 1978, heavy spring rains triggered a major movement of the slide which caused Pete’s home to spin up against the home of his neighbor, Gwendolyn Sexton.  As a result, Gwen sued Pete, seeking to enjoin the encroachment of his home upon hers. Pete then sued Gwen, the County of Los Angeles and South Winter, seeking damages for the harm done to his house by the landslide. He complained that South Winter had not done anything to correct or to control the landslide condition.

South Winter moved for summary judgment, arguing primarily that a possessor of land has no duty to remedy a natural condition in order to prevent harm to property outside his premises. Pete countered that the common law rule of nonliability for a natural condition should be jettisoned, because the rule is neither premised upon sound public policy nor in accord with modern principles of tort liability.

The trial court held that South Winter was not liable, and Pete appealed. Eventually, the issue made it to the California Supreme Court.

Held: Rejecting the distinction between artificial and natural conditions, the California Supreme Court held that a possessor of land is liable to others when he is negligent in preventing a natural condition of his land from causing harm.

Under the common law, the major important limitation upon the responsibility of a possessor of land to those outside his premises concerned the natural condition of the land.  While the possessor’s liability for harm caused by artificial conditions was determined in accord with ordinary principles of negligence, the common law gave the landowner an absolute immunity from liability for harm caused by conditions considered natural in origin. No matter how great the harm threatened to his neighbor, or to one passing by, and no matter how small the effort needed to eliminate it, a possessor of land had no duty to remedy conditions that were natural in origin.

The Court observed that over the 20th century, a progression of the law mirrored a general trend toward rejecting the common law distinction between natural and artificial conditions.  Instead, the courts increasingly used ordinary negligence principles to determine a possessor’s liability for harm caused by a condition of the land.  The earliest case to do so was a tree case in 1896, in which a New York court held a possessor of land was liable for damage caused when a decayed tree on her premises fell on her neighbor’s house during a storm.  After observing that the defendant clearly would be liable for the fall of a dilapidated building, the court observed that it could “see no good reason why she should not be responsible for the fall of a decayed tree, which she allowed to remain on her premises… The tree was on her lot, and was her property. It was as much under her control as a pole or building in the same position would have been… A defendant had no more right to keep, maintain, or suffer to remain on her premises an unsound tree… than she would have had to keep a dilapidated and unsafe building in the same position.”

In more recent years, the California Supreme Court noted, thirteen states and the District of Columbia have begun applying ordinary negligence principles in determining a possessor’s liability for harm caused by a natural condition. All of the cases involved injury caused by fallen trees. However, the California Supreme Court said, the principle is not limited to trees: a possessor of land has a “duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor’s property.”

The California Supreme Court concluded that the national trend was moving toward jettisoning the common law rule in its entirety and replacing it with a single duty of reasonable care in the maintenance of property.  Even the Restatement Second of Torts recognizes that a possessor of land may be subject to liability for harm caused not just by trees but by any natural condition of the land, drawing no distinction between landowners located in urban areas and the rural countryside. While some cases have held rural landowners have a lesser duty of inspection than do urban dwellers, others do not, while a compromise position taken by a few states holds that the rural or urban nature of the land is only one of several factors to be considered.

Historically, the consideration most frequently invoked to support the rule of nonliability for natural conditions simply embodied the principle that one should not be obligated to undertake affirmative conduct to aid or protect others. A natural condition of the land was by definition, some argued, one which no human being had played a part in creating. Therefore, no basis for liability existed because a duty to exercise reasonable care could not arise out of possession alone.

Whatever the rule may once have been, the California Supremes said, it is now clear that a duty to exercise due care can arise out of possession alone.  The duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage the premises.

The historical justification for the rule of nonliability for natural conditions, the Court concluded,

has lost whatever validity it may once have had. In addition, adherence to the rule in California would produce an anomalous result. A possessor of land would owe a duty of care to protect trespassers, invitees and licensees, but not his neighbor, from harms threatened by a natural condition of the land… It is difficult to see why this court should support a rule which would allow a trespasser to bring an action in negligence that would be denied a neighbor, where both were standing on either side of the possessor’s boundary line and were both struck by a dead limb from his tree.

The distinction between artificial and natural conditions and the immunity from liability predicated on that distinction, the Court concluded, bore scant relationship to the factors that should determine whether immunity should be given a landowner for harm done by a natural condition of the land. “The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant and the consequence to the community of imposing a duty to exercise care have little, if any, relationship to the natural, as opposed to artificial, origin of the condition causing harm.”

– Tom Root

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Case of the Day – Thursday, April 28, 2022

IF I OWE HIM, YOU OWE ME, AND SOMEONE ELSE PROBABLY OWES YOU…

One of the beauties of American tort law (if we’re even allowed to use that phrase, which is doubtful) is that if you’re a defendant, you often can daisy-chain as many other people or entities to share your pain as your creative lawyer can find.

The tragic death of young but substantial teenager Tyre Sampson at a cut-rate Florida amusement park provides a case in point. Tyre, only 14 years old but already a sought-after football lineman (at 6’2″ and 300 lbs) fell to his death from a “Free Fall” ride, billed as the world’s tallest free-standing drop tower. When the tower braked, Tyre – who exceeded the maximum size for the ride – slipped out of his seat  and fell 100 feet.

Tyre’s parents sued the park, who in turn will no doubt sue the owners of the ride (who lease the contraption to the park).  They will sue the ride’s installers who will sue the ride’s builders who will sue the designers.  At some point, Sir Isaac Newton may become a third-party defendant: if not for him, there’s be no gravity. It’s a tort lawyer’s dream: a daisy-chain of defendants, all with deep pockets.

Another example arose several years ago when a mid-air explosion of a Southwest Airlines 737 engine killed one passenger and – but for some serious flying by an unflappable Navy fighter pilot turned airline captainLet’s say Joe Doaks, a passenger on board who had the scare of his life, sues Southwest for negligence in maintaining the airplane. Southwest could be both the defendant and a third-party plaintiff, in turn suing the maintenance company that inspected the engine last without finding a crack in a turbine blade. The maintenance company could then bring in the engine maker for selling a defective engine, and the engine maker could sue the company that made the blade for defective manufacture, and the blade maker could sue the metal supply company for selling a nickel-based high-performance alloy that did not meet specifications, and the metal supply company can, in turn, sue the company making the test equipment that gave faulty readings that the metal was within limits… Before you know, Joe Doaks has a chain of six defendants, each one pointing the finger at the next guy, and claiming that any liability it may have is shared among all of them.

This is generally a good thing for the plaintiff, because the more defendants, the deeper the collective pocket from which to collect. But the daisy-chained defendant has to have a duty to the injured party before it is liable, and the lure of finding someone else with a checkbook to stand in the defendant’s dock with you can lead to some fairly strained interpretations of “duty.”.

In today’s case, a landlord’s tree dropped a limb onto the heads of two of his tenants. They sued, complaining the landlord company failed in its duty to them to maintain the tree. No argument there – of course it did. But the landlord, looking for someone to share its pain, went after the electric company. Dominion Virginia Power had an easement across the property, the landlord argued, and the defective tree stood in its easement. The power people, the landlord claimed,  had a duty to keep the trees in the easement trimmed, and thus shared any liability the landlord had to the injured tenants.

Well, yes, the court said, there is a duty there, but there is also some fine print as to the extent of the duty. And, as the lawyers like to say, the details are where the devil resides

Vaughan v. S.L. Nusbaum Realty Co., Case No. CL15-5895-00/012016 (Virginia Circuit Ct., Nov. 30, 2016), Va. Cir. LEXIS 183. Travis Vaughan and Alexander Goldenberg were injured when the “wind picked up” and they were struck by a falling limb from a tree located at an apartment complex owned and managed by S.L. Nusbaum Realty Co. Travis and Alex sued Nusbaum, who in turn sued Dominion Virginia Power, the electric company. It seems the tree that dropped the limb was located on a utility easement held by Dominion, and Nusbaum argued Dominion had a duty to maintain the tree.

The easement granted Dominion “the right, privilege and easement of right of way, to construct, operate and maintain a pole line for the transmission and distribution of electricity,” and, with respect to the issue before the Court, “the right to trim, cut and keep clear all trees, limbs and undergrowth and other obstructions along the lines or adjacent thereto that may in any way endanger or interfere with the proper and efficient operation of the same.” Nusbaum argued that as holder of the easement, Dominion had the same rights and responsibilities that Nusbaum did, and had “the duty to maintain the easement, including by maintaining any trees growing on the easement.”

Dominion argued it owed no contractual duty to Travis and Alexander to maintain trees located within the easement.

Held: The Court held that Dominion had no duty toward Travis and Alex.

The trial court said the relevant question was whether the duty to maintain the easement right of way imposes a concomitant duty upon Dominion — as the owner of the dominant estate—to maintain all aspects of the tree.

The right to use an easement comes a duty to maintain the easement in a manner consistent with the use allowed. Although Virginia courts apparently have not articulated the extent of a power company’s duty pursuant to an easement, at least one other jurisdiction has. In a case stemming from a property owner’s personal injury when his heel struck a metal shield on a guy wire supporting a pole bearing equipment of defendants, a New Jersey court held that, as owners of the dominant estate, “defendants were under an affirmative duty to make reasonable inspections of their easement upon plaintiff’s property and to use due care to keep the guy wires and metal shield in good repair.”

Here, the trial court said, the easement does not impose an affirmative duty on Dominion, as owner of the dominant estate, to tend to the tree beyond those actions necessary to maintain the easement in a manner consistent with the use allowed. Dominion has the duty to inspect the easement and make repairs as necessary, including trimming, cutting, and clearing trees, but only to the extent that such trees, or parts thereof, “endanger or interfere with the proper and efficient operation” of the “wires, poles, attachments, equipment and accessories.”

The court said Dominion nevertheless could be liable if Travis’s and Alex’s injuries were caused by its improper maintenance of the easement consistent with its use by, for example, failing to clear portions of the tree from the vicinity of power lines when necessary, trimming the tree in a way that the public was placed in danger, or compromising the health of the tree through improper trimming. Stated differently, the court said, Dominion “must take necessary actions to properly maintain the pole line and its accessories and, if Dominion exercises its right to ‘trim, cut and keep clear all trees, limbs and undergrowth and other obstructions along said lines or adjacent thereto that may in any way endanger or interfere with the proper and efficient operation of the same’ [which is what the easement specified], it must exercise reasonable care in doing so.”

The duty arises from the easement, so facts must be alleged in the complaint to support a breach of such duty. It was not enough for the landlord to say the tree was on the easement and a limb fell, to justify bringing the electric company into the lawsuit.

– Tom Root

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Case of the Day – Wednesday, April 27, 2022

THE LOG WAS TOO BIG

The first rule of plaintiffs advocacy ... look for the deep pockets.

The first rule of plaintiff advocacy … look for the deep pockets.

Pete Spano was a municipal employee, detailed to haul away debris left by a tree trimming company that had been hired by the village government to trim trees along a street. A fellow municipal employee – using a village front-end loader – dropped a log on Spano, injuring him.

Quick, legal scholars – whose fault was it Spano was hurt? Could it be the village worker whose ham-handed running of the loader had caused the log to fall on Spano? Could it be the village manager, who had let an unqualified worker operate some dangerous heavy equipment? Perhaps the Village itself, for not budgeting enough to buy a decent front-end loader or staff up the Street Department so that Spano had more help?

C’mon, you would-be lawyers! We need to be creative here. The real culpable party, according to Spano’s lawyers, was none of these. Instead, it was the tree-trimming company. Of course! It had cut the logs too large, so large that the front-end loader could not handle them easily.

This notion may seem puzzling to many… but not to a good plaintiff’s attorney. The back story here, of course, is that a patchwork of well-intended New York laws (and may God save us from well-intended laws) made it impossible for Spano to successfully sue his employer or, for that matter, his fellow workers. It wasn’t so much that anyone entertained the notion that the private tree-trimmer, Northwood Tree Service, was negligent. No one really thought that. However, Northwood was the sole party at the scene that wasn’t immune to a lawsuit. Thus, it wasn’t just the deepest pocket, it was the only pocket.

Of course, Spano also could have sued the front-end loader manufacturer for making a machine that couldn’t safely pick up a big log or the chainsaw manufacturer for negligently making chainsaws that cut big pieces instead of small pieces, or even Starbucks for putting too much caffeine in the front-end loader operator’s latte. With lawyers this creative, the list could be endless.

lawyer-cartoon140402The court thought so, too. It held that Northwood owed no duty to Mr. Spano simply because it had a contract with the Town. Even if it did, it was hired to cut down a tree, and that’s what it did. Spano’s attorney could see where the case was heading and tried to amend his way out of it, but the Court said where the complaint was palpably meritless and the amendment insufficient to fix the problem, pulling the plug on the whole case was the only humane thing to do.

Spano v. Northwood Tree Care, Inc., 852 N.Y.S.2d 289, 48 A.D.3d 667 (N.Y.A.D. 2 Dept., 2008). Spano was injured while performing tree debris removal for his employer, the Town of Mount Pleasant, which contracted with Northwood Tree Care to cut down a tree. The Town provided its own employees to haul the logs away. When one of Spano’s coworkers attempted to pick up a particular log with a front-end loader, the log — which was too big for the bucket — fell on Spano’s ankle.

And how big was the log?

And how big was the log?

Spano said Northwood Tree Care’s employees negligently created unreasonably large and unmanageable logs for Town employees to haul away. He sued Northwood Tree Care, seeking to recover damages for injuries suffered as a result of the accident. The trial court granted summary judgment for Northwood Tree Care, and Spano appealed.

Held: The suit was properly dismissed. Northwood Tree Care established that it did not owe a duty of care to Spano by virtue of its contract with the Town, and in any event, the Town properly performed its obligations. The trial court also correctly denied Spano’s cross-motion for leave to amend the complaint. While leave to amend a complaint shall be freely given under the rules, the Court said leave may be denied where, as here, the proposed amendment was palpably insufficient or patently devoid of merit.

– Tom Root

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Case of the Day – Tuesday, April 26, 2022

THE WORTH OF A HUMAN LIFE

Tip O’Neill famously said that “all politics is local.” And he was right. We spent 15 years in the Washington, D.C., metro area, where what happens on Capitol Hill makes the local news. But the Nation’s Capital and all of its intrigue doesn’t begin to match the politics in a small town smack in the center of a small county in the Corn Belt.

When we would no longer

When we would no longer “pay any price,” we beat feet out of town.

We had a municipal election here not too long ago. The incumbent mayor and his challenger debated during the campaign, and the wannabe, a fresh face in politics, embarked on his usual riff about crime (which is not an especially serious problem around here). The local paper reported that the challenger asserted that

“there should be no limits when it comes to achieving a safe city. ‘I’m not worried about budgets,’ he said with regarding the way he would address the drug epidemic.”

Our hometown’s mayoral challenger is way too young to remember John Kennedy’s inaugural address in January 1961. JFK intoned that “we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.”

JFK wasn’t around to see the end game in Saigon, when the North Vietnamese tanks rolled into town. Come to think of it, no Americans were around for it either, as they all had hightailed it out of town on the last chopper. Uncle Ho drove a stake into the Kennedy Doctrine’s heart that day. It turned out that no matter what the late President had said, we wouldn’t pay any price, wouldn’t meet any hardship, and so on. Guess what? There are limits to how much we’re willing to pay for anything.

Certainly not our hometown’s young mayoral hopeful. He doesn’t know that everything has a price point. He’ll give $10,000 extra to the police if that gets ten more drug dealers arrested. In fact, that sounds like a bargain. So how about $100,000 for 15 more? Or $1 million for 20 more? Or $10 million for 30 more? You get the idea – there comes a point when the price you’re paying for an incremental increase in city safety is just too much to justify for the benefit your extra money buys you. The neophyte’s inexperience shows: there are limits to what us town dwellers will pay for a safe city. There are always limits.

Is your PBJ sandwich worth the risk to some peanut-adverse kid somewhere? C'mon ... let's be socially responsible.

Is your PBJ sandwich worth the risk to some peanut-adverse kid somewhere? C’mon … let’s be socially responsible. Eat Vegemite instead.

All of which leads us to today’s case. A tree-related case may seem rather a prosaic illustration of this limiting principle, but the hard fact is that a dollar value on safety is set every day. People are always making demands on government or industry that are objectively unreasonable, but that they believe with all their hearts are absolutely necessary because of our own experiences.

It’s the old “cost of a human life” argument, as in “how can you place a price tag on a human life?” We do, of course, all the time. If we didn’t balance lives against costs to society, we’d have no cars, airplanes, or even peanut butter. Think of the lives that would be saved! Without cars, over 34,000 lives would be saved annually in the U.S. alone. Hundreds of people a year die in aviation-related mishaps. And how about peanut butter? Is your guilty pleasure of peanut butter-banana sandwiches before bedtime worth the horrendous risk to countless children with peanut allergies? Tough policy questions, to be sure…

We have no better illustration of this than the  COVID-19 lockdown. Some predicted 2.2 million people would die unless we “flattened the curve.” If we take that figure, then subtract the one million who actually died, we may have saved 1.2 million people (more or less). The total cost of the coronavirus shutdown alone – not including healthcare – was $7.6 trillion. Also a “more or less” figure. And just like that, we have paid $6.33 million (more or less) for every obese diabetic couch-potato life saved. But who can put a price on human life?

In today’s case, Mrs. Lacasto didn’t lose her life, but she was a mite inconvenienced (and a bit injured) in her run-in with gravity in beautiful Santa Barbara, California. A piece of city-owned sidewalk had been pushed up by the roots of a city-owned ficus tree. Mrs. Lacasto tripped on the 1-inch rise and injured herself.

In the inevitable lawsuit — this was California, after all — she argued that the City’s tree maintenance program was deficient, and if it hadn’t been so defective she wouldn’t have fallen. The deficient maintenance program meant that the City had “constructive notice” of the damaged sidewalk, and it thus owed her a lot of money for her fall. The defect? Why, she argued, Santa Barbara only inspected trees once every five years! Horrors! If it had inspected more often, she complained, the defective sidewalk caused by the ficus tree would have been discovered.

The numbers tell the story: the City employed four tree trimmers, who had responsibility for maintaining some 32,000 city trees along some 500 miles of sidewalks. The trimmers trimmed 5,500 trees a year, and tried to get to each tree in town once every five years. The Court didn’t use a calculator, but it reckoned that the cost of inspecting sidewalks and trees every two years, as Mrs. Lacasto thought would be prudent, would have been “an onerous burden” on the City.

What’s more, the Court wisely observed, even if the ficus tree had been inspected every two years, it was sheer speculation that sidewalk rise would have been found to be a dangerous condition two years before Mrs. Lacasto’s fall.

Of course, the City could just replace the 500 miles of concrete sidewalk with rubber. The taxpayers clearly wouldn’t mind shouldering the cost: after all, who can put a price on Mrs. Lacasto’s shins?

cracked_sidewalk140401Lacasto v. City of Santa Barbara, Case No. 1188148, 2007 Cal. App. Unpub. LEXIS 8909, 2007 WL 3203036 (Cal.App., Nov. 1, 2007). On a sunny morning in September 2005, appellant tripped on a rise in a sidewalk maintained by City. The one-and-a-quarter-inch rise occurred at the expansion joint between two adjoining concrete panels. One foot to the south of the maximum rise, the elevation diminished to one inch. Appellant tripped at a point between the one and a quarter-inch rise and the one-inch rise. Her toe caught on the sidewalk rise and she fell, breaking her left hip.

A search of the records of the City Division of Public Works showed that, before Lacasto’s trip and fall, the division had never received any complaints or information regarding the condition of the area of sidewalk in question. A search of the records of the City Risk Management Division also failed to disclose any reports, but the City’s Street Maintenance Manager said the sidewalk defect was a hazard and should have been repaired. Near the rise in the sidewalk, a ficus tree had been planted, and a city expert opined that the rise was caused by the tree root lifting the sidewalk. The lifting had also caused a crack in the sidewalk that ran perpendicular to the rise. Mrs. Lacasto’s expert said that ‘[r]aising of hardscape does not happen overnight but over a period of time …” The City admitted it “would have taken several years” for the tree root to grow to the point where it would cause a one and a quarter-inch rise in the sidewalk.

The only sidewalk inspection the City had was to charge all City employees to be on the lookout for hazards. No City employees were responsible for inspecting sidewalks for defects. The only way the City would know about a sidewalk hazard would for a citizen or City employee reporting it to the City. The City has over 500 miles of sidewalk area. About five years before Mrs. Lacasto’s fall, City tree trimmers performed maintenance on the ficus tree in question. The City employed four tree trimmers to maintain over 5,500 of the 32,000 City trees. The City’s current system for pruning trees was based on elapsed time, with every City street and park tree receiving some type of maintenance over five years. Mrs. Lacasto’s expert said the City’s trees should have been inspected at least every two years. The trial court found for the City on summary judgment. Mrs. Lacasto appealed.

Held: Mrs. Lacasto’s case was thrown out. She had based her complaint on the California Tort Claims Act, that provided that a public entity is liable for injury caused by a dangerous condition on its property if the 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 public entity had constructive notice of a dangerous condition only if the plaintiff established that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

scalelife140401Mrs. Lacasto conceded that there was no evidence that the City had actual notice of the defective condition. Therefore, the City’s liability had to be predicated on constructive notice, which would be found to exist only that have existed for such a length of time and are of such a conspicuous character that a reasonable inspection would have disclosed them. In order to charge the city with constructive notice, Mrs. Lacasto had to show some element of notoriety to put the city authorities on notice as to the existence of the defect or condition and its dangerous character. An inch and a half-inch rise in the sidewalk, the Court said, simply wasn’t sufficiently conspicuous to put the city on constructive notice of the defect.

In view of the City’s more than five hundred miles of sidewalks and approximately 32,000 street and park trees, the Court said it would not have been reasonably practicable to impose such an onerous burden upon the City. Even if the ficus tree had been inspected every two years, as recommended by Mrs. Lacasto’s expert, the Court said it would be speculative whether the sidewalk rise constituted a dangerous condition two years before appellant’s fall.

– Tom Root

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Case of the Day – Monday, April 25, 2022

DIVING INTO THE SHALLOW END

diving140330The last snows of winter should have melted by now, which does not explain the two inches of snowflakes that drifted past my kitchen window and filled my driveway last week. Still, the first mowing of the grass (and the second and the third) are under my belt. Can Memorial Day and the official start of the summer swim season be far behind?

The advent of the swim season got me thinking about – what else? – liability. Nationally, there are about 800 spinal cord injuries a year from swimmers — mostly young people — diving into shallow water. The idea that you ought to check the depth of the water before diving in is a pellucid as Bahamian waters. Yet diving accident victims and their families often litigate the issue anyway. Today’s case is an interesting application of the “open and obvious” doctrine.

The Koops, who were lakeside property owners, weren’t recreational users, because their property was open only to invited guests, not the public. So they had no immunity under Ohio’s recreational user statute. As invitees, their guests were owed ordinary care by the Koops – which included a warning of any dangers that weren’t open and obvious. When one guest ran across the dock and dove into 18-inch water — rendering himself a quadriplegic — he sued the Koops for negligence. The Court ruled that the danger was open and obvious.

Not to be deterred, Galinari argued on appeal that he had been distracted by “attendant circumstances.” Not a bad argument: “attendant circumstances” can defeat the “open and obvious” doctrine. But such circumstances must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of injured party. Attendant circumstances in the past have included such circumstances as time of day, lack of familiarity with the route taken, lighting conditions, and accumulation of ice. But here, the best the plaintiff could muster was that the water was inviting, other people were swimming in the lake, and there were no posted warnings. Not enough, the Court ruled, to excuse the young man from the simple precaution of checking water depth first.

Not all shallow water is so well labeled ...

Not all shallow water is so well labeled …

Galinari v. Koop, 2007-Ohio-4540, 2007 Ohio App. LEXIS 4509, 2007 WL 2482673 (Ct.App. Clermont Co., Ohio, Sept. 4, 2007). In a tragic July 4th accident, 21-year old Nick Galinari dove off a dock into a shallow lake owned by Koop, severely injuring his spinal cord and rendering him a quadriplegic. Galinari was invited by his girlfriend, Kristin Bounds, to attend a family party hosted by Koops on their property.

The property included a small, man-made lake on which guests are permitted to swim, canoe, fish, and generally use for recreational purposes. On the shore of the lake, there was a ramp connected to a floating dock, all of which extends about 28 feet into the water. The water near the shoreline is quite shallow, fluctuating between approximately ankle-deep and knee-deep. Galinari and his girlfriend pitched a tent and then mingled with guests at the party for about 45 minutes. Galinari, Kristin, and Kristin’s sister then decided to go swimming. Kristin went into the lake while Galinari changed clothes. He then headed down the stairs to the ramp and floating dock to enter the water. He saw Kristin in the water near the end of the dock, but could not recall later if she was standing or swimming. Without stopping to check the depth of the water at the end of the dock, Galinari jogged to the end of the dock and attempted a “shallow dive” to the right of Kristin. The water where he dove was about 18 inches deep. He struck the bottom of the lake, severely injuring his spinal cord. There was no sign on the property, nor did anyone give any verbal warnings, about diving off of the dock due to the depth of the water.

Galinari sued the property owners for negligence for failure to warn him about a dangerous condition on their property. The owners moved for summary judgment, arguing that they were under no duty to warn Galinari of something as open and obvious as the shallow lake. The trial court granted the Koops summary judgment, agreeing that the shallow water was an open and obvious condition and that they therefore had no duty to warn Galinari about a danger which he could have discovered through ordinary inspection. Galinari appealed.

Held: Galinari lost. He contended that despite the known dangers involved in diving, the question of the Koops’ negligence in failing to warn him of the shallow water required jury evaluation. He argued that he was a social guest on Koops’ property and that they breached a duty of care in failing to warn him of the dangers of diving off of the dock into their lake.

No-DivingThe Court disagreed, holding that in order to establish a cause of action for negligence, Galinari had to first show the existence of a duty. A social host owes his invited guest the duty to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises. This includes warning the guest of any condition of the premises known to the host and which a person of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover the dangerous condition.

However, a property owner owes no duty to warn invitees of dangers which are open and obvious. The rationale for this “open and obvious” doctrine is that the nature of the hazard serves as its own warning, and invitees then have a corresponding duty to take reasonable precautions to avoid dangers that are patent or obvious. In determining whether a condition is open and obvious, the determinative question is whether the condition is discoverable or discernible by one who is acting with ordinary care under the circumstances. This determination is an objective one: a dangerous condition does not actually have to be observed by the claimant to be an open-and-obvious condition under the law.

Here, the Court held, it is clear that the depth of water at the end of the Koops’ dock was a discoverable condition. Kristin was standing in the water near the end of the dock when Galinari dove in. The water on that day was at or below her knees. The lake bottom was clearly visible from the floating dock where Galinari dove. Galinari presented no evidence justifying any reason to believe that the water may have been deeper where he dove. He hadn’t been told he could dive from the dock and that he hadn’t seen anyone dive from that dock before him. Kristin was the only person he recalled seeing in the water as he jogged forward along the ramp and dove off of the dock. Based on this evidence, the Court said, the water was a discoverable condition by someone exercising reasonable care under the circumstances. Sadly, the Court said, if Galinari had merely looked at the water at the end of the dock, or stepped into the water to determine its depth, he would have easily determined that the lake was too shallow for diving. However, he took no precautionary measures prior to diving into the lake.

fall161214But Galinari argued that despite the open and obvious danger created by the shallow water, the doctrine of attendant circumstances precluded summary judgment. Attendant circumstances are an exception to the open and obvious doctrine and refer to distractions that contribute to an injury by diverting the attention of the injured party and reduce the degree of care an ordinary person would exercise at the time. An attendant circumstance must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of injured party. The phrase refers to all facts relating to the event, including such circumstances as time of day, lack of familiarity with the route taken, lighting conditions, and accumulation of ice. Galinari argued the “inviting nature of the water,” “other water activity” and the “lack of warnings” were circumstances contributing to his belief that the water was safe for diving.

The Court noted that while the nature of the cool water may have been inviting on a hot Fourth of July, it could not consider that to be an attendant circumstance distracting appellant from the ordinary use of care. Certainly, the Court said, inviting water did not prevent appellant from being able to discover its depth. Nor did the existence of other docks and slides, the length of the dock from which he dove, and the presence of people and canoes in the water create a visual appearance that diving from the end of the dock was safe. It was clear from this testimony that the “attendant circumstances” which Galinari asserted were not distracting him from exercising due care because he did not even notice them. These circumstances in no way prevented him from exercising the ordinary amount of care or led him to believe that the water was safe for diving.

– Tom Root

TNLBGray140407

Case of the Day – Friday, April 22, 2022

DOG BITES MAN

A little neighbor law today: Dog bites are big business in the United States. They happen all the time, which is why “Dog Bites Man” and its obverse are the archetypical predictable or unpredictable newspaper headlines. Man’s best friend sinks canine fretwork into a human over 3.5 million times a year. Insurance payouts for dog bites exceed $1 billion a year (or, by comparison, 10 million barrels of oil at $100 a barrel).  Some dog attacks can be fatal. Many more are just plain ugly.

Today’s case is one of those ugly ones, a sweet little 3-year old girl attacked without provocation by her cousin’s pit bull.   Our focus today is on the denouement, as the Delaware court apportions the financial blame for the accident.  Not that it much matters – the defendants didn’t bother to put on a case, which suggests that neither little Destiny nor her mother will ever collect a dime. 

Still, it’s a reminder that (1) just about every state regulates the liability a dog owner has for the bites inflicted by Fido, and most of those statutes impose liability without any proof of negligence; (2) permitting a default judgment to be entered against you is a very bad idea; and (3) the concept of “joint and several” liability means that a plaintiff can collect it equally from several defendants, or all from one and none from the other. 

Campbell v. Robinson, 2007 Del. Super. LEXIS 563, 2007 WL 1765558 (Del.Super.Ct., June 19, 2007). Young Destiny Campbell was attacked by a dog kept by Frances and Turquoise Robinson. The attack caused severe injuries, including the removal of Destiny’s right ear and a significant portion of her scalp, and created long-term physical and mental health consequences. Her mother, Alicia Campbell experienced emotional distress after witnessing the attack. 

Alicia sued on behalf of her daughter, complaining that as the owner of the dog, Turquoise was liable under Del. Code Ann. Title 16, § 3053F, which imposes liability upon owners for injuries caused by their dogs. Additionally, she claimed that Turquoise was negligent in maintaining a dog she knew to be vicious and in failing to warn those on the premises of the dog’s vicious nature and that Frances Robinson was liable for housing and maintaining a dog known to be vicious and dangerous, for failure to warn, and for failure to protect those who entered the premises.

The Robinsons apparently decided to let sleeping dogs lie, and failed to answer the complaint.  The trial court granted default judgment against both defendants and set a hearing to consider damages.  The Robinsons showed up for that one but did not testify.  That probably wasn’t such a good idea, because the trial court entered a judgment of $750,000 for compensatory damages against Turquoise Robinson, an award that no doubt left Turquoise feeling blue.

Based on the fact that the plaintiff alleged violation of the dog bite statute, the trial court reasoned that Frances Robinson could not be liable to Destiny Campbell because she didn’t own the dog.  The trial court apportioned $20,000 damages apiece against Turquoise and Frances for emotional distress caused to Alicia Campbell. 

Alicia appealed, complaining that the trial court should have made Frances liable for the $750,000 as well.

Held:   The Court agreed that the $750,000 must be apportioned equally between the Robinsons.  Delaware has long recognized that “when the negligent acts of two or more persons concur in producing a single indivisible injury, such persons are jointly and severally liable, though there was no common duty, common design, or concerted action.”  The joint and several liability of two codefendants, the Court said, entitled a plaintiff to seek recovery from either or both of the defendants, provided that total recovery does not exceed the full amount of damages. At the election of the plaintiff, either defendant may be held individually liable for the entire judgment. 

A default judgment constitutes a final judgment that provides a determination of the merits of a case, and — the Court noted — a defaulting party admits all of the allegations contained in a complaint.  Here, the Court said, its entry of default judgment established that both Robinsons were joint tortfeasors and were jointly and severally liable for all damages arising from both of the claims contained in the Plaintiffs’ complaint.  The allegations in the complaint supported joint and several liability, charging wanton and negligent acts by the Robinsons, which combined to proximately cause harm to Destiny and her mother in a manner not “divisible” or separately attributable to either defendant. 

The Court held that the fact that Count I of the complaint was labeled “Count I-Violation of 16 Del.C. §3053F” does not permit Frances to evade joint and several liability to Destiny Campbell.  While she was not the dog’s owner and was not liable under the dog bite statute, Count I nevertheless established negligent and wanton conduct unrelated to the dog bite statute, and made Frances equally liable.

– Tom Root

TNLBGray140407