Case of the Day – Tuesday, November 26, 2019

LET’S LEAVE GOD OUT OF THIS

AOGcartoon150828There’s plenty of talk about old-time religion around these days.  The Supreme Court just heard a case about crosses in public places. The Virgin Mary and a sheep get into a tussle over Baby Jesus at a nativity scene. The Colorado bake shop case, temporarily resolved by the Supreme Court, is far from over. If there’s a lesson for us here, it’s that we shouldn’t try to enlist the Almighty too easily as justification for falling trees.

But the folks at the Ohio Department of Natural Resources are all too willing to overlook the separation of church and state when it’s especially convenient to do so. When one of ODNR’s decrepit cottonwoods fell on Mr. Vondrell’s seawall (or perhaps “lakewall,” because there’re only freshwater lakes in Ohio), the State said, “oops, an act of God.” The winds were blowing pretty fiercely that day, but the DNR figured that was enough to claim that the tree fell in a storm. Just a capricious Almighty, don’t you know? Which of course meant that the DNR wasn’t liable.

It may have been breezy, Mr. Vondrell countered, but the cottonwood that crushed his concrete wall fell because it was good and dead, and had been for a long time. Perhaps so, DNR responded, but we didn’t know it was dead.

The Court of Claims sided with Mr. Vondrell. An act of God has to be all God, the Court said. If the cause of the falling tree is aided at all by the agency of man, even the fact that the deadfall resulted primarily from an act of God won’t relieve a defendant from liability.

Still, for a defendant to be negligent, he, she or it had to be on actual or constructive notice of the hazard posed by the tree. Here, the fact that tree had been dead for over five years and DNR employees had been seen in the area of the tree was enough for the Court to conclude that DNR reasonably should have known about the defective tree.

So when there’s an act of God, it better be all God… and no man (or woman). 

cottonwood150828Vondrell v. Ohio Dept. Natural Resources, 2007 Ohio 7232, (Ohio Ct. Claims, Dec. 4, 2007), 2007 Ohio Misc. LEXIS 503. Mr. Vondrell had a seawall on his lakefront property. A cottonwood tree next door in a state park fell during a windstorm and damaged the concrete. The agency managing the park, the Ohio Department of Natural Resources, argued that the damage was due solely to an “act of God,” the high winds that caused the tree to fall. Mr. Vondrell argued the damage-causing tree was dead, that DNR personnel had years of prior knowledge the tree was dead, and that DNR knew or should have known the dead tree presented a falling hazard. Photographic evidence showed the tree was clearly dead.

Mr. Vondrell argued the tree that fell was very tall and was dead when he had bought his adjacent property in 1999, five years before the collapse. Additionally, he said, DNR personnel were seen in the area around the dead cottonwood trees many times between 1999 and 2005. He contended his property damage was proximately caused by negligence on the part of DNR in maintaining a known hazard on park premises and not merely by high winds falling a healthy tree.

Mr. Vondrell sued in the Ohio Court of Claims, which has jurisdiction over claims against the State.

Held: DNR was negligent, and had to pay. The agency adduced all sorts of evidence as to high wind speeds on the day in question, but high winds alone do not an act of God make.

AOG150828It’s true, the Court said, that no liability can attach to an act of God. However, an act of God must proceed from the violence of nature or the force of the elements alone: the agency of man must have nothing to do with it.

The Court held that Mr. Vondrell proved that DNR had constructive notice of the condition of the tree. The tree stood dead for over five years, and DNR employees were seen around it often. Under Ohio law, the Court said, it wasn’t enough that DNR argued it didn’t know about the condition of the tree. It was on constructive notice of the condition of the tree.

In a situation such as this one, where two causes contributed to an injury, one cause which is a defendant’s negligence and the other cause an act of God, defendant may be held liable if a plaintiff’s damage would not have happened but for defendant’s negligence. If proper care and diligence on the part of DNR had avoided the act, it is not excusable as an act of God. Essentially, if DNR’s negligent act concurs with an act of God to cause damage, defendant cannot escape liability.

– Tom Root

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Case of the Day – Monday, November 25, 2019

WRITE ME UP A VERBAL CONTRACT

putt150827OK, what’s a little New York case about a miniature golf course construction contract doing on a tree law blog? It’s here as a cautionary tale …

A miniature golf operation called Oasis Park hired Bill Oberholtzer – who was both a miniature golf course owner and a mini golf course builder – to jazz up Oasis Park before the mini golf season started up in the Troy, New York, area. Disregarding the universally-accepted good practice in construction of starting with a nice, neat signed agreement setting out the scope of the work, payment terms, time to completion and other such details, the Oasis Park people and Bill pretty much sketched out their agreement on the back of a cocktail napkin. And that was a mistake.

Later, Oasis Park needed a more formal document in order to get its bank to release financing. Bill, of course, accommodated Oasis Park by signing one. You can guess what happened. When the parties’ working relationship soured, Oasis claimed that the accommodation document – and not the “cocktail napkin” – was the real deal between the parties covering the scope of the work. Bill countered that he had already been working for weeks, and the plans had changed.

You probably need a little more contract detail than you can fit on a napkin.

You probably need a little more contract detail than you can fit on a napkin.

Nevertheless, within six weeks after some fateful April 29 “thing” occurred — and even the Court couldn’t tell what the “thing” was — Oasis fired Bill amid claims that he hadn’t adhered to some nonexistent schedule, hadn’t provided workers, and hadn’t provided materials. For good measure, Oasis claimed that Bill’s work was substandard.

Bill naturally argued just the opposite, asserting that he couldn’t buy supplies because Oasis Park wouldn’t pay him. The whole mess ended up in federal court, where the Judge threw up his hands and said no one was getting summary judgment. The entire kerfluffle was going have to be sorted out at trial.

So now, let’s all grab our calculators and figure out how Bill saved by not wasting money on a lawyer preparing a contract with Oasis Park up front. Not much, we guess. And you arborists, tree trimmers, loggers and owners – let’s remember this: No contract, no winners.

sign150827Paone, Inc. v. Oberholtzer, 2007 U.S. Dist. LEXIS 75092, 2007 WL 2455074 (N.D.N.Y., Aug. 23, 2007). Oberholtzer agreed to provide all labor and materials necessary to remodel Paone’s miniature golf course. Beyond that fact, the parties could agree on nothing.

Paone said that under a contract dated April 29, 2004, Oberholtzer to build a bumper boat pond, including walls, docks, light fixtures, a cave, a filter system, a perimeter walkway, and a staging-area deck. As well, Paone said, the contract required Oberholtzer to renovate the course’s clubhouse entrance, the third hole, and the practice green. Paone said that under to the contract, Oberholtzer began working in May 2004, but its laborers did not show up for work, causing the project to fall behind schedule. To rectify the situation, Paone claims that it hired temporary workers.

Even with these outside laborers, the project did not move forward because Oberholtzer failed to provide supervision and direction. Paone said it had to supply all materials to the site and hire various construction professionals to inspect the work. Paone contended that these professionals found that Oberholtzer’s work violated building-code requirements and was below the industry standard. After the project had gone on about a month, Paone notified Oberholtzer that it was in default of the contract.

Oberholtzer, on the other hand, claimed that he reached an agreement to perform work for Paone well prior to April 29, 2004. Oberholtzer said he began preparatory work in March. The April 29th document, Oberholtzer contended, was merely an estimate prepared at Paone’s request,intended by both parties to help Paone get a bank loan released. The April 29, 2004, agreement was conformed to an earlier budget from the winter of 2003-2004, which Paone had submitted to the bank to support its initial loan application.

golf150827Consequently, Oberholtzer argued, the estimate did not reflect intervening changes of which both parties were aware, including a different location for the bumper boat pond, changes in site elevations for the clubhouse and parking lot which required alteration of a ramp and deck, and additional concrete walkways on the course.

Oberholtzer said, he had already made significant progress before April 29, 2004, including filling in traps, reconfiguring the practice green, removing an existing sidewalk near the old practice green, building a deck between the seventh and eighth holes, and removing fixtures and equipment from the old clubhouse. What’s more, Oberholtzer asserted, he had also cleared and trimmed trees for a new picnic area, built retaining walls for a walkout basement, constructed a deck attached to the clubhouse, erected bumper boat pond walls and skimmer baskets, and backfilled the pond.

As far as the schedule went, Oberholtzer argued that the April 29, 2004, document did not contain a schedule or other time-related requirements. Oberholtzer said that Paone knew Oberholtzer would be opening and operating his own miniature golf course in Georgia at the end of May. Therefore, Oberholtzer claimed, Paone knew that Oberholtzer would not be available to work on the project on a regular basis. Furthermore, Oberholtzer argued that several weeks of delay resulted from the actions of an unrelated contractor, who placed heavy equipment in the area of the future bumper boat pond. Also, he said, Paone failed to make timely payments to enable Oberholtzer to buy materials and to progress with the project. Finally, Oberholtzer complained that Paone approved all building plans, and that town building inspectors routinely inspected the progress and noted no building code violations.

Paone sued for breach of the contract and for negligence, and then moved for summary judgment.

obfus150827Held: Summary judgment was denied in this fact-laden morass. The Court observed that Paone’s causes of action for breach of contract and breach of the implied covenants of good faith and fair dealing both required first that there be an enforceable contract with sufficiently definite terms. Here, the parties could not even agree on whether the document was a contract, let alone what its terms might be. Paone contended the document represents the parties’ complete agreement, but Oberholtzer asserted that the document was an estimate used solely for the purpose of obtaining funding. While Paone said that the time for performance commenced in May 2004, Oberholtzer alleged that it had already completed substantial portions of the project prior to that time.

What’s more, the Court found, reference to the April 29, 2004, document wasn’t helpful because it contained no details about the parties’ responsibilities or the construction schedule. The document was labeled “Spring 2004 Construction” and merely set forth the various projects and the price for each. In light of these disputes, the Court held, it could not determine whether an enforceable contract existed between the parties without evaluating the parties’ conflicting factual accounts. Moreover, on the basis of the April 29, 2004 document alone, the Court could not determine the construction schedule or the parties’ respective contractual responsibilities.

A trial would be necessary to straighten the whole mess out.

– Tom Root

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Case of the Day – Friday, November 22, 2019

ME AND MY SHADOW

Removing covenants can be like herding cats ... which explains why Robby Ricciardello looked for a shortcut.

Removing covenants can be like herding cats … which explains why Robby Ricciardello looked for a shortcut.

I had occasion a couple years ago to round up a majority of 55 subdivision owners in order to revoke some 25-year old restrictive covenants. The rules were pretty harsh – no work vehicles with signage in front of the house, no sheds, no yard signs …

It helped that almost everyone in the subdivision was already violating one or more of the covenants. I explained – over a several-month education program – that all it would take is one jerk moving into the neighborhood who wanted to stick it to his neighbor, and we’d all face trial court Armageddon.

I got a majority to sign on, but it was like herding cats, an exhausting effort. I made our filing deadline by a nose. The whole experience gave me a heightened appreciation for the long suffering neighbor in today’s case.

The case concerns poor Robby Ricciardello. Well, maybe not poor in the fixed asset sense. Robby owned five lots in a subdivision, and he had big plans — plans like build a barn, store bulldozers, hunt, grow mangoes — you know, the kinds of things we all like to do with our lots in the middle of subdivisions.

A man oughta be able to do what he wants with his own property ... right?

A man oughta be able to do what he wants with his own property … right?

But he had a problem. His deed contained one of those pesky restrictive covenants that restricted the use of the lots to the construction of one-family homes only. Fortunately for Rob, the restrictive covenants provided that they could be amended or terminated by a vote of the owners of six of the subdivision lots.

Robbie decided to build a barn anyway, and he hatched a plan to pull it off. He told his neighbor Jim Carroll what he was going to do. Jim panicked, because he knew Rob had five lots and only needed the concurrence of one more owner. So Jim hatched a plan of his own, starting a drive to amend the covenants in order to make them harder to circumvent. Finally, Rob announced he wouldn’t build a barn after all, so Jim abandoned his efforts.

Any sense of relief Jim felt was short-lived, because Rob did an end run on the subdivision owners. He formed his own limited liability company, which he then used to buy an additional lot. Rob essentially had a meeting with himself as an owner of five lots and Connecticut Outfielder LLC – of which he himself was the president – being the sixth lot owner. Rob took a nose count, and — mirable dictu — the owners of the minimum six lots were present! The vote was unanimous, unsurprisingly, as Rob agreed with himself to terminate the covenants.

My shadow is duly incorporated ...

My shadow is duly incorporated …

Pretty slick, Rob. But Jim didn’t think so, and he sued. Connecticut Outfielder protested that it had done nothing wrong. It just agreed to terminate the covenants, something it as an owner had a right to do. Rob and his alter ego LLC moved for summary judgment, pointing out that the restrictive covenants had been terminated. The court disagreed, finding that issues of fact existed, not the least of which being whether Rob had misled James to induce him to abandon trying to amend the covenants, and whether one guy – by controlling six lots himself or through corporate devices – could validly terminate the covenants.

James B. Carroll 2003 Revocable Trustee v. Ricciardello, 2007 Conn. Super. LEXIS 1681, 2007 WL 2080583 (Conn.Super.Ct., Apr. 4, 2007). It seems that Robert Ricciardello and James Carroll were adjacent landowners in the Ferrando Subdivision of Glastonbury Connecticut. The Subdivision lots were subject to a “Declaration of Covenant and Restrictions” that provided, in part, that “[e]ach lot shall be used and maintained solely and exclusively for one-family residential purposes … No trailer, tent, shack, garage, barn or other outbuilding erected on any Lot shall at any time be used as a residence temporarily or permanently … [The] covenants and restrictions are to run with the land and shall be binding on the Declarant, purchasers or owners of any Lot … for a period of twenty (20) years from the date of recording … During the twenty-year period that this Declaration is in effect, any or all of the covenants, conditions and restrictions contained herein may be amended or terminated by an instrument signed by the then owners of at least six (6) of the Lots described on Schedule A hereto, which instrument shall be recorded on the Glastonbury land records.”

In June 2004, Ricciardello told Carroll he intended to build a barn on one of the six lots he owned. Carroll started talking to the other owners about amending the covenants to, among other things, raise the number of lot owners needed to amend or terminate the covenants. Then Ricciardello told Carroll he had decided not to build the barn, and Carroll abandoned his efforts to get the covenants stiffened.

But Ricciardello, ever the crafty one, formed a Connecticut limited liability company named “Connecticut Outfielder LLC.” The same day it was formed, it bought lot two of the subdivision. Three weeks later, Ricciardello and Connecticut Outfielder — who together owned six lots in the subdivision — executed a “Release of Declaration of Covenants and Restrictions,” that was recorded in the Glastonbury town clerk’s office, which wiped out all of the covenants and restrictions on the books.

covenant150826Ricciardello proceeded to do as he liked with his lots, planting an orchard, hunting for small game and storing construction equipment. Carroll sued, claiming that the release of the covenants was improper, and asked for an injunction. Ricciardello and Connecticut Outfielder answered, counter-claimed and filed for summary judgment. Connecticut Outfielder contended there are no genuine issues of material fact and that Connecticut Outfielder is entitled to judgment as a matter of law for the breach of restrictive covenants count and the counterclaim seeking a declaratory judgment that the release of covenants is valid. Connecticut Outfielder’s grounds for the motion were that Carroll testified that Connecticut Outfielder did not breach the covenants, and, the plaintiff did not allege any wrongdoing by Connecticut Outfielder in the operative complaint. Carroll objected that there were genuine material issues of fact.

Held: Summary judgment was denied. Summary judgment, of course, is appropriate where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Here, the Court said, genuine issues of material fact exist concerning whether Ricciardello and Connecticut Outfielder breached the covenants and whether the covenants were properly released. Also, an issue existed whether Carroll relied on Ricciardello’s false assurances that he wouldn’t build a barn in deciding to abandon his quest to amend the covenants to block Ricciardello’s plans.

As long as those issues remain, the case must go to trial.

– Tom Root

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Case of the Day – Thursday, November 21, 2019

LOOKING FOR SOMEONE TO BLAME

No matter how rational and discerning television juries might be, in real life, the decisions that the finders-of-fact make can be a crap shoot, especially with a roomful of parties.

I recall an old, wise lawyer telling me years ago that cases with multiple defendants were a headache for defense counsel, because jurors naturally assumed with so many people accused of damaging the poor plaintiff, some must be at fault. “So they listen to the poor plaintiff’s sob story,” the wizened old barrister said, “and they start looking around the courtroom for someone to blame.”

A cautionary note to plaintiffs: Sometimes that backfires, because when so many parties with differing, interlocking relationships cram the defendant’s dock, convincing the jury that one or more of the defendants owes a duty to your poor injured plaintiff can be like trying to catch a greased pig. Such as in today’s case.

The tree was rotten. It had been rotten for a long time. It collapsed onto a passing cyclist, out enjoying a country ride on a dedicated bike path. An electric utility owned by a mega-power holding company (imagine a corporation with buckets full of cash) held an easement over the bike path and adjacent land to trim the trees away from its lines, and that utility had a thundering herd of contractors signed up to do the hazard tree analysis and trimming for it.

Shouldn’t be too hard to get the money flowing to the plaintiff, right? Well, let’s see…

Rossetti v. American Electric Power Co., 2004-Ohio-118, 2004 Ohio App. LEXIS 109 (Ct.App. Licking County, Ohio, Jan. 12, 2004). Rosemarie Rossetti and her husband, Michael Leder, were riding bicycles on the T.J. Evans Bike Trail in Licking County when a linden tree collapsed and fell into an Ohio Power line and across the bike path. The tree then hit Rosemarie, seriously injuring her.

The linden tree that fell was located about 51 feet off of the bike trail on land adjacent to the bike trail owned by Karen Matz and John Skowronski. The tree, which was about 80 years old and 101 feet tall, leaned over the power lines. According to the Rossetti’s expert, Dr. Sydnor, there was a huge cavity in the base of the tree and the “tree was hollow for… three, four feet up.” The tree had been hollowed out at the base for over 20 years, and there was decay around the base that had existed for almost the entire life of the tree. Both the decay and the hollowed out part of the base faced away from the bike path. According to Dr. Sydnor, the tree was rooted in the stump and the “root had actually grown through the stump and was growing up the hill. The root is – the failure of that root was what caused the failure of the tree. That was the only thing that was actually holding the tree up.”

Ohio Power had an easement over Karen & John’s property and the bike trail for trimming or removing trees along the trail that interfered with its power lines. The linden tree was not located within Ohio Power’s easement, but instead was about 51 feet from the trail and 25 feet from a wire fence marking the edge of the trail property.

Ohio Power trims and removes the trees in and around its easement on a three to five year trimming cycle. Under this cycle, the trees next the bike trail were inspected and maintained in 1988-1989, between 1990 and 1992 and in 1995. As part of its tree trimming program, Ohio Power contracted with both ACRT and Nelson Tree. ACRT, under its contract with Ohio Power, hired work planners who, as part of the trimming/removing cycle patrolled the electric lines and identified easement trees needing trimming or removal. Nelson Tree Service would then perform the actual trimming or removal for the 1995 cycle.

Sticking a defendant with a duty to the plaintiff was a greased pig of a task…

Rosemarie and Michael sued everybody, Ohio Power, ACRT, Nelson Tree and Karen & John. Everyone responded with motions for summary judgment.

The trial court granted the defendants’ motions for Summary Judgment, holding that “it was not foreseeable that the Linden tree would fall onto the bicycle path and cause a person physical harm” and that “given the lack of evidence beyond mere inference indicating the Linden tree was trimmed by the utility Defendants under the tree-trimming program, Plaintiffs cannot establish proximate cause.”

Rosemarie and John appealed.

Held:  The defendants’ motions for summary judgment were properly granted.

In a negligence case, the Court said, a plaintiff must prove that: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) the plaintiff suffered harm; and (4) the harm was proximately caused by defendant’s breach of duty. The existence of a duty depends on the foreseeability of the injury. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act.

Here, the Court said, it was not reasonably foreseeable that the tree would fall onto the bicycle path and cause a person physical harm. John, who owned the private property on which the tree was located, testified there was no reason to notice the tree before it fell because “it looked healthy. I mean, there was no reason to notice it. It wasn’t as if the crown was brown or the bark was peeling.” Dr. Sydnor, Rosemarie’s and Michael’s ‘ own expert, agreed that “earlier on in the growth of this tree it would have been more readily identified as a hazard tree than later on.” While he testified that the tree would have been identified as a hazard in the 1980’s, Dr. Sydnor admitted that it was not reasonably foreseeable in 1980 that the linden tree was going to fall within the next 18 years.

“Looks fine to me…”

What’s more, Dr. Sydnor testified that the linden tree was leaning for its entire life and that the tree had been hollowed out at its base for over 20 years, and that the decay around the tree’s base had been there “well in excess of 20 years, probably 40… maybe 80” years. Using the formula generally accepted in his field, Dr. Sydnor said the linden tree had a live crown-ratio of 66%, which was “good.” According to Dr. Sydnor, the tree was either the dominant or co-dominant tree in the canopy, which indicates that the tree has to, at some point, be fairly healthy. Thus, Dr. Sydnor said, even if Ohio Power ACRT, and Nelson Tree Service actually examined and trimmed this specific linden tree in 1995, and observed the decay, hollowed cavity, and poor root structure, it was still not reasonably foreseeable the tree would fall in the next four years, which would brought Ohio Power and its contractors to the next trimming cycle. Dr. Sydnor did testify that the tree would fall some day, but, the Court of Appeals said, “such testimony does not create a genuine issue of material fact since most trees will eventually fall.”

Others, including a Right-of-Way Program Developer with Davey Resource Group formerly employed by ACRT as a supervisor to the Utility Forestry Pre-Planner, and a Licking County Park District Ranger who saw the tree shortly after it fell, both agreed that the “crown, the top of the tree, was full of leaves…it looked like a healthy tree.”

Furthermore, the Court said, Nelson Tree, as part of its contract with Ohio Power, had no duty to inspect the trees on and adjacent to Ohio Power’s easement. Instead, its job was merely to trim or remove trees that were marked by ACRT. Nelson had no discretion with respect to which trees were to be trimmed or removed.

Based on all of that, the Court held, it was not reasonably foreseeable that the tree would fall, according to Rosemarie’s and Michael’s own expert evidence, and thus, “no duty arose on behalf of Defendants to take any action with regard to the Linden tree.”

– Tom Root

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Case of the Day – Wednesday, November 20, 2019

T.H.E. CAT

Robert Loggia as Thomas Hewitt Edward Cat, accomplished second-story man turned bodyguard in this 1960s action series ...

Robert Loggia as Thomas Hewitt Edward Cat, accomplished second-story man turned bodyguard in this 1960s action series …

Remember T. Hewitt Edward Cat? His hangout at the jazz joint Casa del Gato? Lalo Schrifin’s cool theme music?

That’s OK if you don’t, because the cat we’re talking about today is anything but the black-clad suave Robert Loggia. More Garfield than cool cat, the Dinuccis’ tabby kept wandering into Mr. Lis’s yard. The Dinuccis — who, face it, didn’t have a great rapport with their neighbor to begin with — didn’t give a hairball about Lis’s complaints.

Finally tired of it all, Mr. Lis trapped the feckless feline and turned it over to the City. The City charged with Dinuccis with an “animal at large” minor misdemeanor. About this time, old softie Mr. Lis contracted a case of the “guilts.” He could hardly live with himself if the Dinuccis found themselves doing 30-to-life in some hard-labor gulag. So he relented, and asked the city law director to dismiss the charges.

Big mistake. Proving someone’s old adage that no good deed goes unpunished, the Dinuccis promptly sued Lis for malicious prosecution.

deed150825After the long-suffering neighbor paid a metric ton of legal fees, the trial court threw the case out, and the Court of Appeals agreed. The Dinuccis’ case suffered from a simple problem: they never denied their cat was free range (how could they?), and that was all the ordinance required. Because there was probable cause to believe that the peripatetic pussycat had gone feral, there was probable cause to believe ordinance had been violated. That being the case, there could not be malicious prosecution.

Nevertheless, if it happens again, we’d bet Mr. Lis’ll demand the City Prosecutor throw the book at ‘em — and probably overdose their sweet little kitty with industrial strength catnip. Ingratitude isn’t only unbecoming… often, it’s self-defeating, too.

stray150825Dinucci v. Lis, 2007 Ohio App. LEXIS 3702, 2007 WL 2269740 (Ct.App. Ohio, Aug. 9, 2007). This dispute between neighbors started over involving the capture and eventual safe release of a house cat. The parties were before this court in an earlier dispute, which involved trespass, property damage, and continuing nuisance claims by the Dinuccis against their next-door neighbor Matthew Lis. Then the Dinuccis had claimed Lis was liable for 1) delays in the construction of their house due to his objections, 2) damage to their lawn caused by trespassing, 3) willow tree branches hanging over their property, and 4) creating a nuisance by having the Lis yard look like a construction site for over two years. Out of all of that the Dinuccis won a princely $150 for damage to their lawn, the rest of their claims having been thrown out. The Dinuccis appealed to no avail.

At the same time, it appears that Lis had been complaining since 2004 about Dinuccis’ cat wandering around the Lis homestead. Lis contacted the North Royalton, Ohio, animal control department. The City’s animal control officer told the Dinuccis that the city had received complaints from neighbors concerning their cat, and warned them that they would be cited if the problem wasn’t resolved.

It wasn’t, and a few months later, Lis captured the feline on his property and turned it over to the City. The Dinuccis were charged with a violation of North Royalton Ordinance 618.01, the “Animal At Large” provision. The North Royalton prosecutor met with the parties, at which time Lis agreed with the recommendation that the criminal charge against the Dinuccis be dismissed. But after the charges were dismissed, the Dinuccis filed a civil lawsuit against Los, alleging malicious prosecution and intentional infliction of emotional distress. The trial court granted Lis’s motion for summary judgment and dismissed the case. Dinuccis appealed.

garfield150825Held:  The case was correctly thrown out. The Court observed that, after all, North Royalton Ordinance 618.01 clearly stated that ‘[n]o person who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, dogs, cats, geese or other fowl or animals shall permit them to run at large upon any public way or upon unenclosed land” and that “[t]he running at large of any such animal in or upon any of the places mentioned in this section is prima facie evidence that it is running at large in violation of this section.” In order to establish the tort of malicious prosecution, the Dinuccis had to prove malice in instituting or continuing the prosecution, a lack of probable cause, and termination of the prosecution in favor of the accused. And here, the Dinuccis couldn’t show a lack of probable cause.

Probable cause does not depend on whether the claimant was guilty of the crime charged, but instead, only on whether Lis had probable cause to believe that the Dinuccis were guilty. Lis wasn’t bound to have evidence sufficient to insure a conviction, but instead was required only to have evidence sufficient to justify an honest belief of the guilt of the accused. Here, the Court said, the evidence show that both the city and Lis had a reasonable belief that Dinuccis violated North Royalton Ordinance 618.01.

Indeed, the Dinuccis didn’t deny violating the ordinance either at the trial court level or in their brief. Their cat was captured on Lis’s property. As a result of a reasonable belief that the violation occurred, probable cause to investigate existed. The evidence was sufficient to justify an honest belief of the guilt of the accused.

– Tom Root

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Case of the Day – Tuesday, November 19, 2019

YOU HAVE ONLY YOURSELF TO BLAME

I just got back from a week in London. It may sound like I’m bragging, so I won’t mention the day I spent advising Boris Johnson on Brexit, my marriage counseling of Prince Andrew and Meghan, or my reviewing the rehab plans for Big Ben.

The primary reason I mention none of those things is that the reason for the trip was so we could see our two granddaughters, Mabel and Helen. They live in London these day (with our son and daughter-in-law, but once the grandkids arrive, your children become an afterthought).

While there, I rented a car and tried English driving for the first time. That is my segue into today’s topic, the very English common-law tort of negligence.

Negligence is a tort law concept borrowed from the English and a living, breathing description of my adventures in a four-door, manual-shift Skoda. To prove negligence, one either needs a photo of me in the driver’s seat navigating a roundabout, or must prove three essential elements The negligent party must owe a duty to the injured party, the negligent party must have breached its duty, and as a direct result of that breach, the injured party must have been actually damaged. Surprisingly, most of the litigation on tree-related negligence results from questions of the extent of the duty owed to the injured party.

The bulk of the negligence actions related to trees result from trees or branches falling on people and property. The states are nearly uniform in holding that a property owner who has actual or constructive notice of a defect in his or her trees has a duty to owners of adjoining property and the public who may be passing by to ensure that the tree does not injure persons or property.

Actual notice is fairly self-explanatory. A landowner who has been told that a tree is defective has actual notice. However, constructive notice is much more nuanced. Visual evidence of decay, a history of falling branches, advice of an arborist or tree professional that a tree poses a hazard – all of these may be enough for a court to find that a property owner was on constructive notice of a defect. Some cases have suggested that if a tree professional installs cabling or bracing to support a tree, that fact alone is constructive notice to the landowner of a serious defect in a tree.

Even if evidence of decay or distress is not clear from the ground, some courts have held that landowners have a general duty to regularly inspect trees on their property that may cause damage or injury if they fall. Most states recognize two levels of landowner duty. A rural property owner, because the size of the land holdings are generally larger than in urban areas and because there is a lesser concentration of people and property to be injured, has a duty to inspect that is significantly lesser in scope than the duty of a urban landowner. An urban landowner usually has fewer trees and those have a greater likelihood of causing injury or damage if they fall. Thus, what is an adequate inspection program for a rural landowner may not be enough for an urban property holder.

Generally, before negligence can be determined, the extent of the defendant’s duty to the injured has to be defined. The great illustration can be taken from today’s case:

Sellens v. Christman, 418 S.W.2d 6 (Sup. Ct. Missouri, 1967). Elvin Christman had invited Jim Sellens to go out with him to try out his new chainsaw. They tacked some trees in the woods, an promptly dropped the first one into a notch on a second one. Jim concluded the lodged tree was safe, and was cutting a second tree near it when the whole thing gave way. The lodged tree collapsed on Jim, causing loss of a leg. Elvin was nowhere nearby at the time.

Nevertheless, Jim sued Elvin.

The trial court held that Jim had not established that the accident was Elvin’s fault. In fact, there was no evidence that anyone was at fault for the accident other than Jim himself. But Jim tried to get a leg up by appealing. The case found its way to the Missouri Supreme Court.

Held: Jim didn’t have a leg to stand on.

The Supreme Court upheld the dismissal, but focused more on the duty that Elvin owed to Jim. It held that Jim was an invitee, meaning that Elvin had a duty to take ordinary care to prevent injury to Jim, more care than were Jim a mere trespasser.

Although Jim’s status was an invitee, the Court said there was no breach of any duty by Elvin to make the premises safe for Jim, or to warn him of the danger. “The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like,” the Court reasoned, “in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.”

You have only yourself to blame, Jim.

– Tom Root

TNLBGray140407

Case of the Day – Monday, November 18, 2019

SIR, YOU ARE NO GEORGE WASHINGTON

solong161006Today, we conclude our consideration of the trespass problems faced by our New Hampshire landowners Larry and Laura Littoral. If you have followed along to this point, and can remember after the weekend what transpired, you know that the Littorals’ pastoral cottage getaway, situated on a classic New England pond, has been disrupted by neighbor Wally Angler.

Compared to Wally, Myles Garrett is a fine neighbor to Mason Rudolph. Wally –  a NINO (neighbor-in-name-only) – is an angler, and asked the Littorals to chop down some dead trees on their property to create a trout habitat in the pond for the primary (and sole) purpose of adding to Wally’s piscatorial pleasure.  You can hear him now: “Thanks for all the fish!”

The Littorals preferred that their dead timber remain standing. When Wally asked them to cut down the trees, they said, “so long,” refusing to dump their tree into the pond. Apparently reasoning that it’s easier to ask forgiveness than permission – especially where permission has already been denied – Wally then took advantage of the Littorals’ weekend absence by bringing in a tree service to cut the trees down for him. According to the Littorals, Wally affirmatively misled the tree cutters that the dead trees were on his property, and the tree service cut down the timber with alacrity.

gw161006For the record, Wally denies having anything to do with the felling of the dead trees. He seemingly maintains that he turned around one day, and mirabile dictu, the trees were on the ground. If George Washington had tried a similar woof story on his father about a downed cherry tree, we’d probably all be speaking English and enduring a lousy healthcare system right now with a national leader who is a blond-headed buffoon. As every schoolchild knows, however, Little George ‘fessed up, telling his father, “I cannot tell a lie.” Channeling Lloyd Bentsen, our observation is this: Wally, we served with George Washington, George Washington was a friend of ours. Wally, you’re no George Washington.

Our analysis this week has assumed that unless Wally can produce the elves responsible for the tree cutting (and their saws), the Littorals will easily meet their burden of proof.

So far this week, we have concluded that the Littorals may bring a double-barreled complaint, alleging a statutory violation of New Hampshire’s trespass-to-tree statute, R.S.A. § 227-J:8, and a common-law trespass count. The § 227-J:8 count carries some pretty serious penalties, from three to 10 times the market value of the trees. The catch is that the penalties must be based on a multiple of market value. Market value may be the stumpage value of the wood – what it is worth on location to a lumber buyer – or on the cost to replace the tree, minus transportation and planting costs.

We’re assuming for the sake of this column that a few dead trees probably are not going to have much stumpage value. The Littorals could find an expert to establish how much replacement of the trees would cost, but replacement value has traditionally been used because everyone assumes that the destroyed trees would have continued to flourish but for the actions of the defendant. Here, the defendant’s expert would have a good argument that those trees were going to fall in the next strong wind anyway, and awarding the Littorals new live trees to replace their old dead ones would give the plaintiffs a “windfall” for what was only windfall to begin with.

Wally suspects elves.

Wally suspects elves.

Given Wally’s underhanded approach to getting what he wanted (and what the Littorals did not want), we don’t have much trouble with the Littorals receiving a windfall. The law in New Hampshire and elsewhere does, however, holding instead that damages should be limited to compensating for the actual injuries suffered. For that reason, the Littorals can take the confluent approach that under the common law of trespass, their real property has suffered a decrease in value because of Wally’s conduct, both because of where the dead trees are no longer standing and because of where they are currently laying.

Even then, the Littorals might have a problem because the usual assumption underlying damages for loss of trees is that standing timber will continue to stand for the indeterminate future. That assumption may be challenged where the standing timber is already dead. Nevertheless, there is ample evidence that dead trees standing have value. As we noted the other day, dead trees provide shelter or sustenance to over 40 percent of all birds, to amphibians, and to lichens and moss. Dead trees create “snow fences” that slows wind-driven snow. The snow that is trapped melts in place and saturates the ground, providing additional moisture to live trees. Dead trees create hiding cover and thermal cover for big game as well.

Even more counter-intuitive, dead trees – after dropping their needles and bark – may reduce fire hazard. Their flammability is greatly reduced compared to green trees containing flammable resins.

stumps161006In the Connecticut decision we’re examining today, the plaintiff relied on standing dead timber to help maintain privacy from his neighbor. The court appeared to recognize that the elimination of the standing dead trees contributed to a substantial diminution of her property value, even while acknowledging that the trees themselves had no value. It’s not a New Hampshire case, but then there is a dearth of cases nationwide where the wrongfully cut trees were ornamental in nature and yet very dead even before tasting the ax. We were glad enough to find this one. The decision suggests that an action alleging loss of privacy may be the strongest case of all.

Caciopoli v. Lebowitz131 Conn.App. 306 (Court of Appeals, Connecticut, 2011). Dominic Caciopoli was a man who liked his privacy. He bought his place because it was isolated and private, surrounded by forest on all sides except for one area of the lot though which his driveway passed. A short while later, Jeffrey Lebowitz bought the place next door. His house was about 100 yards from Dom’s, and the area between the residences was wooded, affording each privacy from the other.

A few months after moving in, Jeff hired a tree service to clear standing dead trees from the wooded area between the two homes. Jeff believed the dead trees were on his land, but he didn’t check that carefully. The tree service removed all the dead timber, both standing and on the ground, some small saplings, and a few larger trees to provide more sunlight and enlarge the areas surrounding his house. Of course, it turns out that virtually all of what was cut really belonged to Dom.

When Dom came home to find that his natural privacy barrier had been clear-cut, he was not happy. He went to Jeff’s front door and expressed his displeasure, pointing out the actual property line in the process. Nevertheless, the next day, the tree service returned and finished the job. The removal of the trees and brush left Jeff with an unobstructed view of Dom’s house.

Jeff tried to make amends. He sent Dom a letter admitting his error and planted some trees on Dom’s property to replace what had been taken. Dom was not happy with the results, and undertook his own extensive landscaping project in a failed attempt to restore his lost privacy.

Give a man a fish, and feed him for a day. Give a man a chainsaw, and watch trouble ensue.

Give a man a fish, and feed him for a day. Give a man a chainsaw, and watch trouble ensue.

Dom sued Jeff for common-law trespass and for treble damages pursuant to Connecticut General Statutes § 52-560 (the Connecticut adjunct to R.S.A. § 227-J:8). The trial court found that Dom had proven the elements of an intentional trespass action, and awarded him $150,000. for the diminution in the value of his property caused by the trespass. Notably, the trial court declined to award any damages for the value of timber removed.

Jeffrey Lebowitz appealed, alleging a lot of infirmities with the trial judgment. Of interest to the Littorals is Jeff’s appeal of the damage award.

Held: The trial court’s award of $150,000 was proper. The trial court found that after the cutting Dom’s place was worth $675,000, according to an appraisal performed by a certified general real estate appraiser. The appraiser opined that prior to the cutting, Dom’s market value was $825,000. The Court of Appeals noted that Jeff could have presented his own expert testimony on the diminution of value, but he did not. Applying the ancient legal doctrine, et dormiat, ne perdatis (“you snooze, you lose”), the court said Dom’s expert was found to be credible and competent, and absent Jeff making an expert showing at all, that was good enough.

But, Jeff complained, Dom’s expert was not qualified to give an opinion as to the effect of the removal of certain trees from Dom’s property on its market value. He argued the expert had no relevant experience, and was considered an expert only because she had a real estate appraiser’s license. However, the Court of Appeals said, the trial court relied on the fact she had conducted 1,500 appraisals before, and when the trial judge asked her whether she was able to testify as to the value of the property before and after the removal of the trees, she said she could. (This is rather like finding that she was an expert because she asserted she was, a rather bizarre ipse dixitbut the Court of Appeals was loathe to disturb a verdict, and thus to give Jeff a second bite of the apple on remand).

Jeff also argued that the court made no finding whether there was an adequate factual foundation for a “retrospective appraisal” – an appraisal after the fact of the value of the property before the cutting – and that Dom did not ask the court to find  there was an adequate foundation for allowing the opinion evidence. The Court of Appeals pointed out that it was Jeff’s burden to object to the testimony on those grounds at the time of trial. Again, et dormiat, ne perdatisThe expert testified she visited the property in January and February 2009, and had determined the lot enjoyed a high degree of privacy prior to the incident. She also studied photographs of the lot prior to the trespass and after the trespass, and noted that the pictures depicted more clearing of trees than she had imagined and thus, strengthened her opinion as to diminution in value.

No one contests that trees in the water are a good habitat for fish... but Wally should have used his own trees.

No one contests that trees in the water are a good habitat for fish… but Wally should have used his own trees.

The Court observed that Jeff pointed to no authority to suggest that the expert’s personal observation of the property, her reliance on the plaintiff’s descriptions of the prior conditions of the property, and her review of photographs of the property in its prior conditions, was insufficient to form an inadequate factual foundation. The Court said the expert’s personal observation of the property “complemented by the plaintiff’s descriptions of the property in its prior conditions, is not impermissibly speculative…” After all, the Court said, Dom – as the owner – was undoubtedly familiar with his property (if perhaps lacking disinterest in the outcome), and no one was more competent than he to describe to the expert what it had looked like before the cutting.

The Court held the fact that the expert “could not give a logical explanation for how she arrived at her opinion and did not articulate or apply methodology suitable to determining any diminution in value caused by the clearing of trees” was not fatal to her testimony. She testified that she examined real estate in the area, found comparable properties, estimated degrees of privacy and made adjustments, positive or negative, for the differences in the properties in order to “equal everything out.” She also noted that an appraisal is not based on science, but it is just an opinion as to value, and the Court accepted that.

Jeff had to pay the $150,000. That’s a lot of money for some dead trees that had no stumpage value.

– Tom RootTNLBGray140407