Case of the Day – Monday, May 12, 2025

Posted on May 12, 2025 by TLRoot tagged.

SMOKE GETS IN YOUR EYES

Anyone who’s ever sat next to a screaming baby on a red-eye flight knows “nuisance.” But what “nuisance” means in law may not be quite as readily identifiable as the wailing infant in seat 7B.

So just what constitutes a nuisance causing enough interference with an owner’s enjoyment of property to justify court action? The Haffners found out that wherever the line may fall, it was beyond the suffering they endured. And, in the process, they may have learned that the law is a poor bludgeon.

The Haffners had lived in the same house since 1977. The Clarks – who happen to run a tree service (but that’s not central to the case) – lived about 50 yards east of them, and the Nelsons live about 40 yards to the west. That wasn’t a problem until the Clarks and Nelsons became smokers.

They weren’t using tobacco, or even pot (this not being Colorado). Instead, they both installed rather old-fashioned but new-fangled outdoor wood furnaces. The Clarks were true early adopters, having used a wood-burning furnace since 1984. (Being tree trimmers, they had an abundant supply of fuel). The Nelsons installed their high-tech outdoor wood-burner in 2008.

Choking on the enveloping smoke, the Haffners sued, alleging that the Nelsons’ and Clarks’ furnaces “generated smoke, soot, noxious fumes, and fly ash, which damaged their property, caused them physical injury, and reduced the value of their property, as well as infringed on their use and enjoyment of the land.” The Haffners asked for an injunction from the court ordering the neighbors to quench their fires, along with some money to ease their suffering.

The case should have been a dead bang winner for the Haffners. Iowa law requires that people use their own property in a manner that will not unreasonably interfere with or disturb their neighbors’ reasonable use and enjoyment of their property.” In fact, Iowa Code § 657.2 specifically defines “[t]he emission of dense smoke, noxious fumes, or fly ash in cities [as] a nuisance …”

But their victory went up in smoke. It turned out that the Haffners were living in a glass house, having operated their own wood furnace for 20 years. They couldn’t very well prove any damage to their property or health arising from the Nelsons’ and Clarks’ wood furnaces when they were generating smoke with their own furnace like a politician on the hustings. The medical maladies the Haffners said were caused by the smoke existed year around, even when the furnaces were stone-cold during the summer. Other neighbors who lived nearby testified that they had not been bothered by the Clarks’ and Nelsons’ furnaces.

We know what you’re thinking: there must be a backstory here. Indeed. There was some evidence of animosity between the Haffners and their neighbors that had nothing to do with smoke.

Haffner v. Clark, 795 N.W.2d 99 (Court of Appeals, Iowa, 2010). The Haffners lived between the Clarks and the Nelsons. In about 1984, the Clarks installed a wood-burning furnace to help heat their home. The Nelsons installed an outdoor wood-burner in 2008.

The Haffners sued, alleging that smoke, soot, fumes, and fly ash infringed on their use and enjoyment of their land. The Haffners asserted claims of nuisance, negligence, assault, and trespass, and sought a court order that the Clarks and Nelsons stop using their furnaces, and for damages.

The trial court found that the furnaces were not a nuisance and that the Haffners delayed unreasonably in suing (which is to say it accepted the defense of laches and estoppel).

The Haffners appealed.

Held: The appellate court held that the Haffners had failed to prove the neighbors’ smoke was a nuisance.

The law of nuisance directs that “parties to use their own property in a manner that will not unreasonably interfere with or disturb their neighbors’ reasonable use and enjoyment of the neighbors’ property. A private nuisance is an actionable interference with a person’s interest in the private use and enjoyment of the person’s land.” The definition of a nuisance is “[w]hatever is injurious to health, indecent or unreasonable offensive to the senses, or an obstruction to the free use of property, so as essentially to unreasonably interfere with the comfortable enjoyment of life or property…”

The Court of Appeals observed that in determining whether an activity is a nuisance, the standard is whether normal people in the community would regard the conduct as “definitely offensive, seriously annoying or intolerable.” Under this standard, the Court agreed that smoke, odor, and other attacks to the senses could constitute serious harm. The Court admitted that saving on fossil fuels might be a societal benefit, but it was of minimal utility compared to generating foul smoke.

Nevertheless, the Haffners’ complaints did not a nuisance establish. The Haffners – who themselves had owned their own wood furnace for 20 years – were unable to present evidence proving any damage to their property or health arising from the Nelsons’ and Clarks’ wood furnaces. The medical conditions that the Haffners alleged were caused by the smoke existed year-round, even during the summer. Other witnesses living nearby testified that they had not experienced any smoke infiltration, odors, fumes, or fly ash from the Clarks’ and Nelsons’ furnaces.

The Court found it was material to its decision that the Haffners had waited 20 years before lodging any complaint with authorities, and noted in passing that there was evidence that the Haffners and their neighbors did not get along for reasons that had nothing to do with furnaces.

– Tom Root

Case of the Day – Friday, May 9, 2025

Posted on May 9, 2025 by TLRoot tagged.

PYRRHIC VICTORIES, THE SEQUEL

A few weeks ago, we talked about the Murrells of Rancho Palos Verde, California, a sordid tale of wealth, arrogance, clever lawyers, and Pyrrhic victories. Today’s case may lack money, power, hubris, and clever attorneys, but – like the Murrells – Leslie MacCardell won a hollow victory.

This case starts as a tale of lawyers screwing up. Yes, the very idea that a trained legal professional who exercises the utmost care could err taxes one’s credulity. But just for the sake of argument, let’s imagine for a moment that such a thing is possible…

The mistake was made by the professionals in the Massachusetts Land Court way back in the 1940s. Visualize the plot… two lots located next to each other, a power line easement granted way back in antiquity that didn’t describe the corridor of the easement at all, and… well, like a sophomoric sitcom, you can see where this is heading. When the Land Court issued certificates of title (a Massachusetts thing) it recorded the easement on Lot 2. The problem is that the power lines went across Lot 1. Hilarity ensued.

No one really notices power line poles – they’re just there. So it’s no surprise that nobody noticed the blunder until the neighbor on Lot 2 wanted to increase the size of his electrical service. The power company needed to install a transformer, and as a matter of course, it checked land records to verify its easement. Lo and behold, it found that the easement had been recorded on the wrong land. “No probalo,” the power company said, and it sued Leslie MacCardell — on whose land the power lines were located — to have the easement sort of eased on over to Leslie’s lot.

Not so fast, Leslie exclaimed. She fought back, arguing that she was a purchaser in good faith, and nothing in the records she had searched when she bought the place revealed a power company easement. “Good faith, indeed!” hooted the power company. She had actual knowledge of the easement when she bought the place. After all, the poles were there and her lights turned on (yeah, the utility actually said this) and she got a bill. How’d she think all of that happened if not for an easement?

Well, said Massachusetts’s highest court, in any of several ways. Despite the power company’s rather arrogant suggestion that it was just inconceivable that it would not have a proper easement, the Court said the poles could have been there permissively, or maybe — as it turned out — it was nothing but a trespass. Whatever it was, the Court held, it wouldn’t just assume that a landowner had actual knowledge. Rather, it was up to the power company to prove she did. And it didn’t.

We’re guessing that, just like the Murrells in yesterday’s case, this turned out to be kind of a Pyrrhic victory for our plucky heroine. Clearly, the power company’s poles had been on her property, openly and notoriously and continuously and adversely for many years. The utility probably had an open and shut case for a prescriptive easement, and it seems curious that it didn’t plead that as an alternate cause of action.

Commonwealth Elec. Co. v. MacCardell, 450 Mass. 48, 876 N.E.2d 405 (Sup.Jud.Ct. Mass. 2007). Thomas Murray owned two parcels of land. He granted an easement to the electric company for the installation of transmission lines. The easement didn’t provide compass directions, but instead mentioned that the land was located in Duxbury and that the pole lines could “enter from land now or formerly of Plum Hill Avenue and cross to land now or formerly of Chester L. Churchill.” In 1944, the Murray estate filed an action in the Land Court to register and confirm the title to the two parcels. Both the certificate of title and the Land Court decree of registration mistakenly said that Lot 2 was subject to the pole easements when in fact it was Lot 1. MacCardell owns Lot 1, the lot that contains the actual poles (which supply electricity to both her place and the adjacent property). Neither MacCardell’s title nor the next-door neighbor’s title mentions the utility easement. When her neighbor asked for increased electrical service, the power company decided it had to install a transformer.

During its routine check on its easement, the utility found that there was an easement on Lot 2 but no easement on Lot 1. The utility petitioned the Land Court to amend MacCardell’s title for Lot 1 to include the easement. MacCardell argued that in 1944, the Court’s decree imposed the easement on Lot 2, not Lot 1. She claimed she purchased a title with no encumbrances, and allowing the electric company to amend her title would impair her property. The Land Court entered judgment in favor of MacCardell. The utility appealed, but the Appeals Court affirmed the Land Court’s judgment. Thereafter, the electric company appealed to Massachusetts’ highest court.

Held: MacCardell owned her land free of the easement. Massachusetts law is settled that titleholders and subsequent purchasers of registered land for value and in good faith take “free from all encumbrances except those noted on the certificate.” With respect to easements, the general rule is that in order to affect registered land as the servient estate, an easement must appear on the certificate of title. There are two exceptions to the general rule: (1) if there were facts described on the certificate of title that would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser had actual knowledge of a prior unregistered interest. In this case, no one disputed that the easement was not recorded anywhere in MacCardell’s chain of title. However, the utility argued that she had actual knowledge of the easement.

Who even notices utility poles?

The “actual knowledge” exception means that for a titleholder to benefit from the protections afforded by the land registration system, the titleholder must not possess actual knowledge of unregistered easements. The burden of proof lies with the party seeking to encumber an owner’s registered land, in this case, the electric company. Unfortunately for the utility, the Court said, it had presented no proof that MacCardell had actual knowledge of the easement.

All the utility was able to argue was that Leslie had utility poles on her property, she could turn her lights on every morning, and she received a monthly utility bill. What that proved was that she had knowledge, the utility claimed, because it was “inconceivable that a utility company’s installation and use of poles” would ever be permissive rather than a claim of right.

The Court rejected this argument, suggesting that the poles, the power, and the bill equally suggested that the use may be adverse (which does not create an easement under the law), or a registered owner might have granted permissive use. What’s more, the Court said, the mere presence of a utility pole didn’t automatically place a registered landowner on notice that her property might be encumbered, because the actual owner of a utility pole isn’t readily ascertainable, and the average person may be unaware of the exact boundaries of the land. To meet the actual knowledge exception, the Court held, there must be some intelligible oral or written information that indicates the existence of an encumbrance or prior unregistered interest.

– Tom Root

Case of the Day – Thursday, May 8, 2025

Posted on May 8, 2025 by TLRoot tagged.

BROTHERS, CAN YOU COLLECT A DIME?

One of the first rules that personal injury lawyers learn in law school is “find the deep pocket.” After all, what good’s a million-dollar judgment against some guy whose earthly assets consist of a 1998 pickup truck and a rusty chainsaw?

Today’s victim, one of the Brothers brothers, was hurt while he performed tree trimming. An employee of Tamarack Forestry Services, Bro was struck by an aerial lift truck operated by another Tamarack employee. Of course, workers’ comp would have covered the accident, and at the same time would prohibit him from suing his employer (one of the tradeoffs demanded by the workers’ comp system, which is intended to stand in place of the old “sue and score” personal injury lawsuit). That just wouldn’t do, because without a good negligence lawsuit, how could Brothers’ personal injury lawyer find a pocket to pick?

Lucky for Brothers his employer, Tamarack, had been hired by New York State Electric and Gas Corp., a public utility that had plenty of money: just look at your light and gas bills if you doubt that. NYSEG was no patsy, pointing out that Tamarack was merely an independent contractor, a fact which normally would make NSYEG not responsible for the accident.

It seems, however, New York law has an exception where the employer of an independent contractor had a contractual duty that it couldn’t delegate, such as where it had agreed to be liable for a contractor’s negligence. It turned out NYSEG was working on a DOT right-of-way, and it annually got a blanket license from the State allowing it to do so. The license had some boilerplate in it that NYSEG would comply with federal and state worker safety regulations.

“Ah-ha!” cried Brothers’ lawyer, “a nondelegable duty!”

“Ah-ha, nothing!” cried the New York Court of Appeals (the state’s highest court), holding that the non-exclusive license to trim trees created no duty that NYSEG owed DOT. Besides, the court said, public policy (which is what the court cites when it knows where it wants to go but doesn’t know exactly how to get there) argues against such an unreasonable expansion of the “nondelegable duty” doctrine.

Which is not to say that the Court was wrong. It concluded that making NYSEG liable simply because the State of New York required it to buy boilerplate permits around the station would completely disrupt the company’s use of contractors to perform work, would bring utility maintenance to a screeching halt, at least until rate increases were approved to cover all of the

Brothers v. New York State Elec. and Gas Corp., 11 N.Y.3d 251 (N.Y. Court of Appeals, 2008). Mr. Brothers sued New York State Electric & Gas to recover damages for injuries he sustained as an employee when he was struck by an aerial lift truck operated by a coworker. The public utility had contracted with Brothers’ employer, Tamarack Forestry Service, Inc., to furnish all necessary labor, supervision, and equipment to clear trees and brush along electric lines. NYSEG routinely obtained annual blanket highway work permits from the New York State Department of Transportation for work to be performed along state highways. Under the permit, NYSEG was required to comply with various federal and state worker safety regulations. The trial court refused to grant NYSEG summary judgment dismissing Brothers’ action. Brothers appealed, and the intermediate appellate court affirmed the trial court. Brothers then appealed to the state’s highest court.

Held: NYSEG could not be sued by Brothers. It’s true that in the work permit, NYSEG “assumed a specific duty by contract” to comply with federal and state worker safety regulations, but such a permit is not a typical “bargained-for exchange.” Although the State charges a fee for the permit, the fee is nominal. A permit holder’s “breach” of the permit’s conditions does not give rise to the usual contract remedies. In fact, DOT may revoke the permit at any time, whether or not there is a breach.

Nevertheless, the permit imposed certain obligations on the permit holder. Its terms and conditions are not meaningless or optional; instead, the permit holder agrees to abide by them in order to obtain DOT’s permission to work in the highway right-of-way. The Court said that the key issue was whether NYSEG has undertaken a nondelegable duty to comply with the safety regulations enumerated in the permit for Brothers’ benefit.

Gen. Robert E. Lee knew something about duty … and even he couldn’t have found that NYSEG owed one to Mr. Brothers.

Whether a particular duty is properly categorized as ‘nondelegable’ necessarily entails a sui generis inquiry where “the conclusion ultimately rests on policy considerations.” And here, several policy considerations argued against sticking NYSEG for Tamarack’s negligence. First, the Court said, “Expanding vicarious liability to cover these work permits would make NYSEG potentially liable to a large class of plaintiffs, thus extending its duty beyond any reasonable limit.” Every year, public utilities pull highway work permits covering extensive areas and, for practical reasons, routinely hire hundreds of independent contractors to perform the construction or maintenance needed. The Court said that while an injured employee’s recovery from an independent contractor is limited by workers’ compensation, “this is not sufficient justification to impose vicarious liability on a utility that does not supervise or control the injury-causing work.”

After all, New York law requires utilities to obtain permits, and they do not have the power to bargain for terms and conditions of those permits. Brothers complained that NYSEG should be liable because it voluntarily assumed a duty to comply with the safety regulations recited in the permit. The Court disagreed: “NYSEG does not really have a choice in the matter; it cannot shirk maintenance work in state highway rights-of-way.”

– Tom Root

Case of the Day – Wednesday, May 7, 2025

Posted on May 7, 2025 by TLRoot tagged.

HERE, LET ME FIX THAT

Residential developments often have deed restrictions, or just merely homeowners’ association rules, prohibiting different colors of house paint, refusing clotheslines and outbuildings, and even banning trees that block the neighbors’ view. And yet people buy houses in the developments, too excited at closing to pay a lot of attention to yet another page of legalese buried in a mountain of legalese. When, several years later, those restrictions get in the way of their whims, the unhappy parties blame everyone but themselves.

That happened to Gail Andrews, who bought a place at beautiful Sandpiper Village in Waldport, Oregon. These places aren’t cheap, but the ocean view makes them quite desirable.

Ms. Andrews lived harmoniously with her neighbors for several years, until a nearby homeowner asked her to trim her trees because they were blocking his view of the ocean. Ms. Andrews ignored his request. Not to be denied, the neighbor had the local homeowners association ask her to trim them. She didn’t ignore the homeowners’ association. Instead, she sued them, and her lawyer found a hook.

The current restriction on trees had been adopted in 1993, a few years before Gail moved in. It provided that no trees, hedges, shrubbery, plantings, or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. But a year after the restriction was adopted, the association’s lawyer decided to rewrite it just a little. He added the phrase “designated ocean view lot” to the restriction, so it read “no trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.”

You know, counsel was just trying to be helpful, to make it a little clearer. The only problem was that there was no such thing as a “designated ocean view lot.” Ms. Andrews glommed onto the new language, claiming she didn’t have to trim her trees because her neighbor’s lot wasn’t a “designated ocean view lot.” In the alternative, she said the whole restriction was void because the homeowners had never passed on the “designated ocean view lot” language.

The Court concluded that the evidence showed that the association’s lawyer never intended that his rewrite change the restriction that the homeowners had approved. Besides, Ms. Andrews had a chance to read all of the rules before she moved in. Her excuse was that some unnamed person who had been attached to the homeowners association had once told her that her neighbor’s place was not a “designated ocean view lot.” Kind of short on corroborative facts, Ms. Andrews, aren’t we? The Court thought so. Without revealing who and when the conversation occurred, Ms. Andrews was unconvincing.

There’s a lesson here for the helpful lawyer. If the restriction was too confusing as it was passed — and there’s no evidence it was — he should have asked the homeowners to vote on the new one. Being a lawyer, he should have foreseen that problems with the restriction wouldn’t arise from good-faith confusion as much as bad-faith avoidance. And he should have imagined that the non-trimmer would hire a mouthpiece who would run a chainsaw through his “helpful” rewrite.

More to the point, why would anyone use gobbledygook like “designated ocean view lot” when there was no procedure for designating lots in the first place? The lawyer’s helpful “fix” just created a mess and cost his client a lot of money. The unanswered question is whether his client punched him in the kisser and fired him, or just fired him without fisticuffs.

It would be a close call.

Andrews v. Sandpiper Villagers, Inc., 170 P.3d 1098 (Ore. App., 2007). Sandpiper Villagers, Inc., was the local association of homeowners in Sandpiper Village, a coastal subdivision. When the subdivision was built in 1968, the developer recorded a declaration of covenants and restrictions prohibiting trees, hedges, shrubbery, plantings, or fencing over six feet tall. The restrictions were to remain in effect for 25 years, during which they could be amended by a vote of the lot owners. In 1993, the association adopted an amended declaration providing that no trees, hedges, shrubbery, plantings, or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. The next year, the association’s legal counsel drafted what he termed to be a “stylistic” change to the restriction, one that was not voted on by the homeowners. Following his change, the provision held that no “trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” Another provision stated “[i]f a provision is subject to more than one reasonable interpretation, any reasonable interpretation adopted by [the board] shall control.”

Andrews bought a lot in Sandpiper Village in 1997, after reviewing the 1994 restrictions as part of her title report. Six years later, another member of the association sent a written notice to Andrews asking her to trim trees on her property in order to preserve his view. She did not. When the ARC asked in writing that she do so, she sued, asking a ruling from the court that the association had no authority to require her to trim the trees because there was no documentation or other evidence showing that her neighbor’s property was a “designated [ocean] view lot.” She also asked that the restrictions be declared void as contrary to state statutes.

The Association moved for summary judgment, arguing that because the phrase “designated ocean view lots” was drafted as a stylistic change and never voted on by the homeowners, it should be disregarded. Without that phrase, the Association argued, the 1994 restrictions had the same effect as the 1993 restrictions. Alternatively, the Association said that even assuming that phrase is a valid part of the 1994 restrictions, the phrase was ambiguous and the court either should defer to the ARC’s interpretation or determine – based on extrinsic evidence – that it was not intended to effect a substantive change to the 1993 restrictions under which all lots were entitled to view protection. The trial court awarded summary judgment in favor of the Association. Andrews appealed.

Held: The Court of Appeals upheld the judgment for the Association. If a text’s meaning is unambiguous, the Court said, courts decide the meaning of contractual provisions as a matter of law. If disputed contractual provisions are ambiguous, however, courts proceed to examine extrinsic evidence of the contracting parties’ intent, including, if helpful, evidence regarding the parties’ practical construction of an agreement.

Here, the phrase “designated ocean view lots” in the restrictions was unambiguous, referring to those lots that, as a matter of observable fact, had a view of the ocean. Plus, extrinsic evidence supported the Association’s claim that the regulations were unchanged from those approved by the homeowners. The Association’s lawyer’s contemporaneous communications indicated that his revised section of the regulations was intended to have the same substantive effect as section of regulations which, by its terms, did not restrict the protection of ocean views to any particular ocean view lots, such as those that someone had previously “designated” as having an ocean view.

Andrews argued that a prior chairman of the ARC assured her that her neighbor’s lot was not a “designated ocean view lot,” but the Court said that wasn’t a sufficient claim to create a factual dispute about the meaning of the restrictions. Andrews’ affidavit did not state whether the prior chairman was the chairman of the committee at the time she made the statement or, alternatively, at the time that the regulations were adopted.

– Tom Root

Case of the Day – Tuesday, May 6, 2025

Posted on May 6, 2025 by TLRoot tagged.

YOU SHOULDA WORN A HAT

Everyone has probably experienced it. Something goes terribly wrong, and the numbskull responsible for the mishap refuses to step up. Instead, he or she points at you and finds a reason it’s all your fault.

It’s a Lucy Van Pelt moment. In one memorable Peanuts strip, Lucy was reprimanded for fighting with her little brother, the blanket-toting philosopher-kindergartner Linus. In response, she pointed at him and argued, “It’s his fault. He hit me back first.”

Juries can be swayed by convincing variations of this theme, where the plaintiff is denigrated as somehow as liable or more liable for the accident than is the defendant. Sometimes it is true. But often it is not. It falls to the trial judge to regulate the flow of evidence to let the relevant stuff in while prohibiting material that might “inflame the passions” of the jury into reaching a verdict that is stupid.

Indiana’s approach is common. There, for example, the law prohibits a defendant from introducing evidence that an injured plaintiff was not using safety equipment, unless the failure to use the equipment somehow contributed to causing the injury.

Today’s case is from the U.S. Court of Appeals for the 7th Circuit, because the negligence action was brought in federal district court. It was what is called a diversity case, allowed in federal court because the plaintiff was a resident of one state while the defendant was a Hoosier. In diversity cases, the federal courts are bound to apply state law, which is how three judges in Chicago can be so focused on Indiana law.

Webber v. Butner, 923 F.3d 479 (7th Cir. 2019): Johnny Webber was helping his friend Roger Butner cut down trees on Butner’s property. Johnny was not a professional logger, and he was not wearing a hard hat while cutting down the trees. The duo agreed that Johnny would operate the chainsaw while Roger would assist by watching out for hazards. While Johnny was cutting into one of the trees, a dead branch fell on his head, causing severe injuries.

Johnny sued Roger, arguing that he had a duty to take reasonable steps to protect Johnny’s noggin, both because he was the landowner and because, while he had agreed to look out for hazards, he failed to warn Johnny of the falling branch. Johnny said his injuries were a proximate result of Roger’s breaches of duty.

The case was tried to a jury. Before opening arguments, Johnny moved to exclude evidence that he had not been wearing a hard hat while he was cutting down the trees. The district court turned him down, ruling that the evidence could be introduced “to show assumption of risk, comparative fault, and whether Johnny Webber acted as a reasonably careful person.” In his closing argument, Roger’s counsel employed the Lucy defense, reminding the jury that Johnny was to blame because he cut the trees “without wearing any safety helmets, any safety equipment,” and that “you can consider that testimony that he didn’t wear a hardhat, so he basically — he assumed the risk of that danger.”

The court instructed the jury: “Evidence relating to the use of a hard hat is offered to show assumption of risk, comparative fault, and whether Johnny Webber acted as a reasonably careful person. You may not consider it to show whether it would have prevented or altered the extent of Johnny Webber’s injuries.”

The jury did not bother to parse things that finely, apportioning 51% of the fault to Johnny and 49% of the fault to Roger. Under Indiana law, this meant Johnny got nothing.

Johnny appealed, challenging the trial court’s admission of evidence that he was not wearing a hard hat and the jury instruction on what it could use that evidence for.

Held: Johnny was entitled to a new trial, because the evidence he was not wearing a hard hat should never have come in and the results were so close that the erroneous admission of the hard hat evidence probably affected the outcome.

The Indiana comparative fault statute, Ind. Code §§ 34-51-2-7(b)(2) and 34-51-2-6, is a type of modified 50% comparative fault law. The Act replaced the common law rule of contributory negligence, under which a plaintiff who was even slightly negligent was barred from any recovery. Instead, the Act allocates fault proportionally, ensuring that each person whose fault contributed to causing injury bears his or her proportionate share of the total fault contributing to the injury.

However, the “modified” part of the Comparative Fault Act is this: If a claimant is deemed to be more than 50% at fault, he or she is barred from recovery. In determining fault, Indiana law also prohibits admission of evidence that an injured plaintiff was not using safety equipment unless the failure to use the equipment contributed to causing the injury. Ind. Code §§ 34-51-2-7(b)(1) and 34-51-2-3.

To prove that Roger was at fault for his injury, Johnny would have to show (1) Roger owed him a duty; (2) Roger breached his duty by allowing his conduct to fall below the applicable standard of care; and (3) Johnny was injured by Roger’s breach of duty.

In the Act, “fault” is defined to include any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages. The phrase “unreasonable failure to avoid an injury or to mitigate damages” applies only to a plaintiff’s conduct before an accident or initial injury. A plaintiff’s post-accident conduct, even if it constitutes an unreasonable failure to mitigate damages, is not to be considered in the assessment of fault.

A broad range of conduct initially may be considered by the jury, but it may allocate comparative fault only to those people whose fault was a proximate cause of the claimed injury.

Johnny probably should have worn a hard hat, although it is unlikely that the hard hat would have lessened his injuries much, if at all. But it is clear that Johnny’s failure to wear his hat did not cause the branch to fall, or cause Roger not to be vigilant in seeing the danger. That being the case, the court should not have let in the evidence that Johnny was bare-headed.

Roger’s margin of victory was razor-thin. Two percent the other way, and Roger would have been liable for 51¢ of every dollar of damage to Johnny. As the Court of Appeals put it, “Admitting this evidence and submitting an instruction to the jury that allowed them to consider it in apportioning fault were legal errors. The jury’s apportionment of fault between the parties was so close that we cannot treat the errors as harmless.”

– Tom Root

Case of the Day – Monday, May 5, 2025

Posted on May 5, 2025 by TLRoot tagged.

¡CINCO DE MAYO!

Either the aftermath of battle … or the morning after celebration of Cinco de Mayo. The Mexicans, having more sense than we do, make little fuss over May 5th.

Today we celebrate Cinco de Mayo, the most cherished of Mexican patriotic holidays, a day when all true patriots of the Escudo Nacional de México honor the great…

Pendejadas! All right, Cinco de Mayo is essentially unobserved in Mexico, but it is commemorated in all but two bars in the U.S. to celebrate a surprising but utterly insignificant victory of Mexican forces over the French Army. So today we hoist a cerveza to Kelly Rush. Mr. Rush, like the Mexican military, won a meaningless trial court victory on the way to getting routed.

The French invaded Mexico because our neighbor to the south owed reparations to the Second Empire, but decided that a siesta was more salubrious than settling up. By contrast, Mr. Rush was looking to be paid for the work he had done for JoAnn Goodwin. Kelly is undoubtedly an arborist and landscaping specialist of the first water, but as a businessman … well, that’s another story.

Mr. Rush bid a job for JoAnn Goodwin. And like all of Gaul, it was divided into three parts. One part was tree removal, one was landscaping, and one was the installation of a drain system. Of course, as soon as the job began, there was mission creep. More trees were to be cut down, and then more, and extra branches were to be hauled away. Rush diligently completed the extra work, but he wasn’t nearly so diligent in getting change orders signed by his customer, leading to inevitable confusion.

Alas, hilarity did not ensue. Instead, JoAnn denied asking for any more trees to be cut down, and alleged Rush was overcharging her. Rush said more money was owed. At that point, Kelly “Who Needs a Lawyer?” Rush sued Ms. Goodwin in Justice of the Peace Court, a very informal court in Texas for small issues. He won $4,500. It was his moment, his own victory at Puebla. But recall that after getting his Gallic butt kicked on May 5, 1862, French General Charles de Lorencez responded a year later with a second Battle of Puebla. No one talks much about that one, because the cheese eaters routed the Mexican forces and headed for Mexico City. Like Monsieur General, Ms. Goodwin regrouped, reprovisioned, and came after Mr. Rush again.

In her own second battle, Goodwin appealed to the regular trial court, which was obliged under Texas law to hold a whole new trial. At that trial, Rush’s damages fell from $4,500 to $200, despite the fact he showed the court the contract, two change orders Ms. Goodwin had initialed but not signed and one which he had prepared but she hadn’t even initialed.

The stubborn Mr. Rush appealed the $200 verdict. At the Court of Appeals, Kelly Rush found himself really swimming upstream. His only argument was that the trial court’s decision was contrary to the weight of the evidence, and those cases are hard to win on appeal. To make matters worse, in his zeal to save money, Mr. Rush forgot that sometimes lawyers are good for something. That “something” here would have been to get the documents on which he was relying actually admitted into the trial record so the court of appeals had something to look at. Without the missing documents – which Kelly Rush hadn’t introduced into the record – the Court of Appeals said it really had nothing to look at, and the $200 award stood.

Pozole – the national dish of Mexico.

Parenthetically, one would think that the trial court would have helped out layman Kelly Rush on coaching him to introduce the documents into evidence. But it wasn’t required to. We bet Kelly Rush was glad he saved so much money by not hiring one of those worthless lawyers to help him out! Lesson: Document your work. Get signatures from the customer. Hire a lawyer when you need one. After all, lawyers hire arborists when they need them. OK, end of lesson … and the pozole’s on!

Rush v. Goodwin, 2007 Tex. App. LEXIS 9035, 2007 WL 3380025 (Tex.App.-Waco 2007). JoAnn Goodwin requested a landscaping bid from Kelly Rush involving three parts: tree removal, landscaping, and construction of a French drain system. After completing the work, Rush complained that he was not paid in full.

Rush complained that he ended up cutting down many more trees than originally agreed to. Both Rush and Goodwin walked the property, and they agreed to have 26 trees cut down. But Rush said that after the initial agreement, the number of trees to be cut down kept changing. He claimed that the final agreement called for the removal of 36 large trees, 14 small trees, and 1 large limb from Goodwin’s property, at an agreed-upon price of $200 for each large tree, $100 for each small tree, and $100 for removal of the large limb. The total was $8,700.

At trial, Rush presented an original contract which he had signed and Goodwin had initialed stating that 26 trees were to be cut down at $200 each and a large limb removed for $100, for a total of $5,300. As well, he presented a document only he had signed – a request for the removal of 36 large trees at $200 each, 14 small trees at $100 each, and removal of a large oak branch at $100 – and another he had signed and Goodwin had initialed in part by Goodwin, reflecting an agreement to cut and remove 33 trees at $6,600.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Conco de Mayo celebrant in a period costume. Think of him as a Mexican version of a Civil War re-enactor.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Cinco de Mayo celebrant in a period costume, a Mexican version of a U.S. Civil War re-enactor.

Goodwin contended she only agreed to have 26 large trees removed from her property at $200 per tree. She said that after counting the stumps, only 26 trees had been removed and that even if more than 26 trees had been removed, she never agreed to their removal. She maintained that Rush overcharged her $1,400 to remove trees that were not cut down. In addition to tree removal, the agreement called for the removal of vegetation and growth, the spreading of dirt, and the removal of fences. Rush and Goodwin agreed that the cost of that project would be $3,600. Goodwin paid Rush $1,000 on the landscape agreement and still owed $1,600. She argued that because she overpaid $1,400 on the tree removal and other projects, she did not owe the $1,600 balance.

Rush also argued that after starting the project, Ms. Goodwin asked that extra side projects be performed, and the cost of these projects came to a total of $749.94, none of which Goodwin paid. He filed suit without an attorney against Goodwin, seeking relief of only $1,600 but being awarded $4,500 plus court costs. A glorious and unexpected windfall! But Ms. Goodwin appealed to county court, where in a bench trial the court returned Rush to reality, awarding Rush a symbolic $200 with interest.

Rush appealed.

Held: Rush got only his $200 award.

In his appeal, Rush claimed he was underpaid for his work and essentially argued that the $200 damage award was against the great weight and preponderance of the evidence. When seeking review of the factual sufficiency of the evidence supporting an adverse finding on which the appealing party had the burden of proof, the appellant must show that the adverse finding is against the great weight of the evidence. The appellate court must weigh all the evidence and may set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. The appellate court isn’t permitted to pass on the credibility of witnesses or substitute its judgment for that of the trial court.

The Court found that Rush had completely bollixed up the trial. During that proceeding, Rush referred to the various documents he said established the terms of the tree removal and landscape agreement, but he failed to ask the court to admit any of them into evidence. The Court of Appeals said that in order for it to consider the documents, those papers had to have been introduced and admitted at trial. Without them, the Court could only examine the parties’ testimony. That testimony was largely in conflict, and it was the role of the trial court, not the Court of Appeals, to determine which party’s testimony was more believable.

The trial court’s award of only $200 in damages, the Court of Appeal said, was not overwhelmingly against the great weight of the evidence, especially when the alleged contracts were not in evidence.

Oops. Or as the Mexicans say, “¡Ay!”

– Tom Root

Case of the Day – Friday, May 2, 2025

Posted on May 2, 2025 by TLRoot tagged.

WHEN LILACS LAST ON THE FENCELINE BLOOM’D

rhodeisland210430 The lilac bush over at the neighborhood church has started to bloom. It’s quite tranquil. Rather unlike the situation that attended the blooming lilac bush along the fence separating two tiny plots in the tiny State of Rhode Island and the Providence Plantations.

The case that arose over the lilacs was as big as the residential lots were small, encompassing the Massachusetts Rule, the doctrine of acquiescence, the excitement of dueling experts, a paper blizzard of multiple police reports, and – before it was over – legal fees sufficient to bloat the bank accounts of several lawyers. Truly an epic American legal drama.

Walt Whitman was lamenting the death of Abraham Lincoln in writing

When lilacs last in the dooryard bloom’d,
And the great star early droop’d in the western sky in the night,
I mourn’d, and yet shall mourn with ever-returning spring…

He could have been mourning the loss of neighborly civility over what even the judge called a “tempest in a teapot.”

Rosa v. Oliveira, 115 R.I. 277, 342 A.2d 601 (1975). The Rosas moved into their little house on a 43’ x 71’ lot in October 1970, next to the little house on the next-door 43’ x 71’ lot belonging to the Oliveiras. The adjoining lots were separated by a picket and wire fence installed by the prior owners of the Rosa lot some 70 years before. A line of 15’ tall lilac trees planted many years before ran along the Oliveira side of the fence.

Shortly after moving in, the Rosas got permission from the Oliveiras to cut the lilac branches that were growing over the fence and resting on the roof of the Rosa house. On Armistice Day, November 11, 1970, Mrs. Rosa cut down those parts of the trees that were on the roof. When Mr. Oliveira returned home, he was upset by what he saw. According to him, the lilacs “had been cut bad [sic] beyond the boundary line.” He said that when he asked Mr. Rosa about the pruning, Rosa replied, ‘Oh, that. It bothered us… You don’t know what you own.”

As the judge wryly put it, “While November 11, 1970, commemorated the cessation of World War I, it marked the beginning of hostilities which were to take place in the subsequent months on the ‘no man’s land’ that ran between the Oliveiras’ and Rosas’ residences.”

neighbor210430 Sometime after the lilac trimming, Mr. Rosa told Mr. Oliveira he wanted to replace the old fence with a new one that would afford greater protection to children. Oliveira replied, “You can’t put the fence because this fence is mine and you can’t touch it.” Later, Mr. Oliveira replaced the wooden section of the fence with another wooden fence. It came down. In November 1971, the Rosas hired a fence builder who came out to the property, cut some lilacs, poured some concrete, and set up some steel poles. Mr. Oliveira ripped out the poles. The Bristol police made several visits to both properties. Each side hired surveyors to lay out and determine the location of the dividing line between the two parcels of real estate.

Finally, in January 1972, the Rosas sued to quiet title to the fence – which they said belonged to them. Oliveira said the fence was his, and the Rosas had trespassed, and – for good measure – had damaged the lilac trees on his side of the line.

At trial, three experts testified as to the proper boundary line, but none could agree precisely where it fell. It appeared that at most, the fence wandered onto the Oliveira property about 1½ feet.

The Rosas brought in someone from the family that has sold them the property, and her testimony established that the fence had been there for years, her family had put it in and used all of the property up to the fence, and that neither the Oliveiras nor the people who had owned it before had ever complained. Oliveira admitted as much by arguing that the case had “started over the cutting of the lilacs.”

Mrs. Rosa testified that she had not cut down the lilac bushes that grew on the Oliveira’s side of the line.

The trial court found that the fence marked the property line by acquiescence, and that Mrs. Rosa had properly exercised her rights to trim the lilac on her side of the fence line.

The Oliveiras appealed.

Held: The trial court ruling was affirmed.

The principle is well settled, the Court of Appeals said, that acquiescence in a boundary line assumed or established for a period of time equal to the statute of limitations will prevent the losing landowner from trying to move the line back to where it actually belongs. The acquiescence is “conclusive evidence of an agreement to establish such a line and the parties will be precluded from claiming that the line so acquiesced in is not the true boundary.”

Here, the appellate court ruled, any difference between the experts as to the location of the division line “is completely immaterial in the light of the trial justice’s finding as to the fence line, since he found that “the fence, which was built long before Mrs. Rosa took her saw to the lilacs, served as the dividing line between the two properties.”

lilacs180919 As for Mr. Oliveira’s counterclaim, based on his allegation that the Rosas had damaged his lilac trees, Mrs. Rosa testified that she cut only those branches that protruded over or through the wire fence. “In taking such action,” the Court of Appeals said, “she was exercising her common-law right as a landowner to cut off the limbs which were overhanging or encroaching on her property from trees located on the adjoining property… Even though there is evidence that the fence builder hired by the Rosas had cut some of the lilac trees, Mrs. Rosa testified that the fence was being built on their property one foot away from the original fence line. Having brought the counterclaim, Mr. Oliveira incurred the burden of persuading the trial justice that the Rosas or their agents had damaged that portion of the trees that were on his side of the line. This he failed to do.”

– Tom Root