Case of the Day – Tuesday, March 14, 2017



Mark Twain once said, “An expert is just somebody from out of town.” In the eyes of the law, it’s a little more than that. Certified arborists, operators of tree trimming services, even just guys from out of town – just about anyone can be qualified by courts as expert witnesses.

And what good is an expert witness? Primarily, experts testify not to facts, but rather to opinions. Juries like opinions. Opinions sway juries.

In a tree case like today’s from Arkansas, a frolicking bulldozer operator wiped out a bunch of a neighbor’s trees. Clearly, she was entitled to damages. But how much would the damages be? She hired the county extension agent to testify as to the value of the trees that had been cut down. The defendant complained that the expert relied on timber sales reports written by others, but the Court of Appeals accepted his opinion, and in the process explained what type of research process it wanted to see as a basis for an expert opinion.

Of course, the state’s treble damages statute, which multiplied the value of the lost timber by threefold, made the expert’s opinion all that more important to both sides. Incidentally, the defendant tried to argue that there was no proof that the bulldozer operator was his agent, but that was a mere sideshow: the evidence was overwhelming on that point.

Expert150116Jackson v. Pitts, 93 Ark.App. 466, 220 S.W.3d 265 (Ct.App. Ark. 2005). Richard Jackson owns land just north of land owned by Nora Pitts. Pitts claimed that Jackson or people acting for him bulldozed trees on her land where it borders that of the Jackson. Lloyd Pitts,

Nora’s son, saw John Moore operating a bulldozer in the area of the destroyed timber, which was located on Pitts’s property line with Jackson’s land. Lloyd said he walked along his mother’s land shortly afterward and saw holes where trees had been removed from the bulldozed ground. Another witness saw the bulldozer activity on Pitts’ property, and said that the bulldozer operator told him that he had been directed by Jackson to perform the work. The trial court found that the Jackson and Moore trespassed Pitts’ land and destroyed marketable timber, setting the value of the destroyed timber at $1,157.20. Treble damages allowed under §18-60-102 of the Arkansas Code increased the judgment of $3,471.60. Jackson appealed.

Held: The trial court judgment was upheld. Jackson claimed that treble damages were unjustified, but the Court disagreed. The imposition of treble damages in a trespass action for trees damaged, broken, destroyed, or carried away requires a showing of intentional wrongdoing, although intent may be inferred from the carelessness, recklessness, or negligence of the offending party.

Here, the Court said, the evidence was sufficient to support a finding that an agency relationship existed between Jackson and the bulldozer operator such that Jackson was liable for the operator’s damage to Pitts’ timber. Lloyd Pitts saw the bulldozer on his mother’s property operating in the area of the damaged timber, and saw Moore operating it. Another witness said Moore said he was working for Jackson. Jackson admitted he had hired Moore to work on his property with a bulldozer, and that if any trees had been removed from Pitts’ property, it would have been done by Moore.

Mark Twain says there are none of these ...

Mark Twain says there are none of these …

As for the amount of damages, the Court said, the evidence in each trespass case determines what measure of damages should to be used to value trees damaged, broken, destroyed, or carried away. Timber is generally valued according to its “stumpage value,” which is the value of the timber standing in the tree. Here, Pitts’ expert witness gave testimony of the estimated number of trees destroyed by Moore, and their market value at the time. The evidence was admissible, the Court said, even though the opinion relied in part on hearsay. The expert described the methodology he used to compute timber value within a specified area, which included diameter measurements of randomly-selected trees, an estimate of the timber volume multiplied by the number of trees within a specified area, and the use of a university timber market report to obtain an estimated market value.

What’s more, the Court observed, the expert testified he personally walked the area to conduct his measurements and testified he walked off the area that was bulldozed, and then went into the woods next to that area to measure a similar amount of land and counted the trees within it. The Court said an expert witness may base an opinion on facts or data otherwise inadmissible, as long as the facts or data are of the type reasonably relied on by experts in that particular field.

– Tom Root


Case of the Day – Monday, March 13, 2017


Not showing up may not make you all that interesting ... but it could lighten your wallet.

Not showing up may not make you all that interesting … but it could lighten your wallet.

The Pitts had a nice piece of undeveloped land in the outback of Utah, next to the Pine Meadows Ranch. Mr. and Mrs. Pitts weren’t exactly obsessive about checking on their land. After all, what could possibly go wrong with a chunk of meadow and pine trees?

Well, some lousy neighbors, for one thing. While the Pitts lived in the city, the people at Pine Meadows Ranch turned the Pitts’ rural paradise into … well, the pits. Pine Meadows Ranch dumped its trash on the land, drilled a well — for what, the decision doesn’t mention — and cut down a number of trees. When the Pitts finally discovered the perfidy of their adjoining landowner, they sued.

Pine Meadows Ranch never answered the suit, and the trial court — after waiting a suitable period of time — granted default judgment. The court then took the testimony of Howard Pitts — who said the land was worth $16,000 before the trespass but was “totally ruined” afterwards, the trees constituting $5,000 of the total — and granted judgment for $36,000. The 36 large ordered in the judgment finally got the Ranch’s attention.

On appeal, the Ranch complained that the dog ate its summons or some such nonsense. The Court of Appeals didn’t forgive the Ranch’s non-appearance, but it did reverse the damages. The Court thought Pitts’ conclusory testimony about the value of the trees and land was a little too light on fact to support the award. Additionally, the trial court had observed during the damages hearing that the $36,000 was probably too much, but maybe it would get the non-appearing Defendant’s attention. From that aside the Court of Appeals suspected that maybe the trial judge had assessed $36,000 to punish a no-show.

The case went back down for a new hearing, but there’s an important lesson her anyway: not showing up does not endear a defendant to a court.

Mr. Pitts wasn't sure how many trees had been cut, but he said the property was ruined.

Mr. Pitts wasn’t sure how many trees had been cut, but he said the property was ruined.

Pitts v. Pine Meadow Ranch, Inc., 589 P.2d 767 (1978).  The Pitts alleged that Pine Meadows Ranch or its agents intentionally and willfully trespassed on their unimproved real property, used it as a junkyard and a garbage dump, drilled a well in the middle of it, and destroyed a number of beautiful trees. The Pitts claimed damages in the amount of the full market value of the real property, being $16,000, of which $5,000 was the value of the trees, for which they claimed treble damages under Utah Statute § 78-38-3, together with punitive damages of $10,000.

The Ranch didn’t answer the complaint, and the trial court granted default judgment. After that, the court took Howard Pitts’ testimony under oath, and granted judgment in the amount prayed for, $36,000. The Ranch moved to vacate the judgment, which was denied, and it appealed.

After the Pitts started trying to collect on their judgment, the Ranch appealed.

Held: The default judgment could not be attacked, but the damage award had to be set aside. There was no evidence of market value of the plaintiffs’ property after trespass on which to base a finding of malice or wanton destruction of property.

showup160126The Court observed that the measure of damages for trespass on real property and destruction of the property is generally the difference between the value of the property before and after the trespass. Where there was no evidence of market value of plaintiffs’ property after trespass except a statement that the property was “totally ruined,” nor where any evidence had been provided upon which to base finding of malice or wanton destruction of property, the defendants were entitled to new hearing on damages issue.

The Supreme Court said that Mr. Pitts’ bare statement that the destroyed trees constituted $5,000 of the value of the property was the only evidence to support the treble damage award. Under these circumstances, the Court said, it did not find sufficient credible evidence to support the judgment of $36,000.

The record showed that the trial court thought the $36,000 to be too much, but said, “Well, if they respond to a judgment of this size, if they are faced with a collection problem maybe they will respond.” The Supreme Court found that the trial court entered judgment in that amount because the defendants had been dilatory, and he thought a large judgment would bring them into court. When the defendants did respond to the big judgment, the trial court refused to overturn it because at that time to do so would be an injustice to the plaintiff.

Damages have to be based on stronger evidence than that.

– Tom Root


Case of the Day – Friday, March 10, 2017


bell160125A young girl and her friend sneaked onto church property to play. While they were doing whatever young kids do when they’re where they shouldn’t be, the girl pushed on a bell. The bell fell, injuring her foot. When kids trespass and do stupid things, how do the parents respond? Why, they sue the landowner, of course.

In this case it was a local Catholic Church, getting sued – unusually enough – for something that had nothing to do with sex abuse. Despite the Diocese’s obvious relief at being sued on behalf of a child plaintiff who wasn’t complaining about a priest, the Church nonetheless argued that under Wisconsin’s recreational use law, it enjoyed immunity.

In a strange analysis, the Court of Appeals disagreed. Reba was hurt when she pushed on the bell, and the Court held that her pushing the bell wasn’t related to the game she and her friend had been playing. This, the Court said, was mischief. Plus, the Court said, the Church wasn’t really a recreational property, and the Church didn’t invite people to use it as such. In fact, it took steps to keep kids from playing there. So because Reba was engaging in mischief as a trespasser, and because the Church was arguably acting responsibly in trying to keep this kind of conduct from occurring, it owed Reba a greater duty than had it left the place wide open. This is probably a correct application of the recreational use statute, but it certainly seems — as a matter of public policy — not to make a lot of sense.

"Trespasser William" the kid was not ...

         Remember Winnie the Pooh?  “Trespasser William” young Reba was not …

Fortunately, under Wisconsin law, the Church only would have owed a duty to a trespasser to refrain from willful, wanton, or reckless conduct, about the same result the Church would have gotten from application of the recreational use statute. Unfortunately, a jury found the Church had engaged in such conduct, and it awarded the plaintiff money damages.

You might think that you have no duty to a trespasser wandering onto your property. Guess again.

Fargo ex rel. MacArthur v. United Nat. Ins. Co., 739 N.W.2d 490 (Wis.App., 2007). A child playing house on church property was injured when she tried to push on a bell, which fell and injured her. Through her parents, the girl sued the St. Ignatius Catholic Church for negligence, and a jury awarded her damages. St. Ignatius appealed, arguing that it was entitled to immunity under the Recreational Use law, Wis. Stat. §892.52.

Daffy160125Held:  The award of damages to young Miss Fargo was affirmed. The recreational immunity statute limits the liability of property owners toward others who use their property for recreational activities. The statute defines recreational activity to include “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure…” The statute lists 29 specific activities that constitute recreational activities, but instructs that “recreational activity” should be liberally construed in favor of property owners to protect them from liability.

To determine whether a person was engaged in a recreational activity under the statute, the Court said, a fact-finder should consider the totality of circumstances surrounding the activity, examining the intrinsic nature of the activity, the purpose of the activity — including the injured person’s subjective assessment of the activity — and consequences of the activity. A court should also consider the nature of the property, including whether the owner intended the property to be used for recreational activities, and the reason the injured person is on the property.

The Church should have posted this sign. Er ... on second thought, maybe not .

     The Church should have posted this sign.  Um … on second thought, maybe not .

Here, St. Ignatius argued it was entitled to immunity because young Reba Fargo was injured while playing house with a friend on church property, and this was a recreational activity. The Court disagreed. Instead, it ruled, Reba was injured when she pushed the bell, which then fell on her foot. The Court held that her act of pushing the bell wasn’t related to the game she had been playing. Rather, viewing the activity objectively, she was attempting to move a large, stationary object by pushing very hard.

The Court concluded that this independent act was mischievous, because Fargo was trying to move an object that was not designed to move. Wisconsin law holds that mischievous conduct is not a recreational activity. What’s more, considering the nature of the property, St. Ignatius was a church, not a playground or other place where recreational activity would usually occur. The church made attempts to limit children playing on its property. While not determinative, that fact was an appropriate factor bearing on the recreational use analysis.

Considering all of the factors, the Court concluded that Reba Fargo was not engaged in a “recreational activity” within the meaning of the Recreational Use statute. Thus, St. Ignatius was not entitled to immunity.

– Tom Root

Case of the Day – Thursday, March 9, 2017


the-muffin-man-07So who was it who lived on Byrum Lane-O?

No, it wasn’t the Muffin Man, but the Clarks. They had assembled several parcels of land into a pretty nice cattle spread and homestead along the Jefferson River. And they had always used Byrum Lane. The road passed across their land, across the Dwyer Place and ultimately back to some more of their land and up to their house.

Back in the 1960s, the land around the Byrums’ cow palace had been subdivided in smaller lots for homes, almost none of which (other than the Clarks’ place) had been built. Meanwhile, all the landowners and their guests used Byrum Lane, and had for a long while. The County had even maintained the road sporadically.

But then came the legal drama. When the Clarks completed their new home, the Dwyers (or maybe the Dwyers’ descendants, who were the parties to the case), told the Clarks they couldn’t use the road anymore. The Clarks sued, arguing they had a prescriptive easement. A prescriptive easement is much like adverse possession (the doctrine that lets an especially brazen and long-term trespasser gain title to your land). However, unlike adverse possession, the prescriptive easement isn’t about ownership: rather, it’s about the right to use someone else’s property. If you have used someone else’s driveway openly, notoriously, adversely, continuously and without interruption for the period of time required by statute, an easement in your favor has been created just by force of your chutzpah.

In this case, the Clarks had used Byrum Lane without permission for years, as had their predecessors, and as had just about everyone else. The County had even maintained it for awhile, seemingly uncertain whether it was a public right-of-way or not. The specific issue before the Supreme Court was whether the prescriptive easement extended to the Clarks’ use of Byrum Lane to reach a house on a parcel that didn’t exist when the prescriptive easement came into being. The Court said they could. The land had been subdivided before the prescriptive easement came into being, so the Dwyers had reason to think that if an easement had come into being prescriptively, it could be used to reach one of the homes which were contemplated on the vacant lots.

private160122 Clark v. Heirs and Devisees of Dwyer, 339 Mont. 197, 170 P.3d 927 (Mont. Supteme Court, 2007). The Clarks owned real estate, which they had acquired as several tracts over a seven-year period beginning in 1979. The Dwyers owned real property that bordered a piece of the Clark land with railroad tracks acting as a visible property line. The Dwyer property was bordered on the east by a county road named “Waterloo Road” and on the north by a roadway known as “Byrum Lane.”

Byrum Lane extended from Waterloo Road, across the Dwyer property, and across the northern border of the Clarks’ property – which lay between the Dwyer land and property owned by George and Virginia Byrum – before continuing onto the Byrums’ property lying to the southwest of the Clarks’ land. In essence, Byrum Lane dissects the Clarks’ land.

The Byrums used Byrum Lane by virtue of two recorded easements in their favor. The portion of Byrum Lane crossing the Clarks’ land is a recorded 60-foot wide roadway and utility easement. The portion of Byrum Lane traveling from Waterloo Road over the Dwyer property is a road and utility easement for a 30-foot wide roadway. This portion of Byrum Lane crosses the Dwyer property from Waterloo Road for a distance of about 834 feet before reaching the Clarks’ property.

Historically, Byrum Lane was used by the Clarks and their predecessors to access the tracts the Clarks had purchased. During the period of 1979 to 1986, Byrum Lane served as the Clarks’ sole access to their house. From the period of 1986 to 1991 the Clarks used Byrum Lane to feed livestock, load hay, and move equipment. Later, after they built a new house in 1988 on one of their tracts that previously had no residence, the Clarks continuously used Byrum Lane (although they also had access to their house by way of a roadway from Waterloo Road.)

The Clarks claimed a prescriptive easement along Byrum Lane, allowing them access over the Dwyer property to their land. Following trial, the court found that Byrum Lane had been used by the public and Clarks’ predecessors since the early 1900s, had been maintained by the county road department on occasion, was generally known as a public road which the public had a right to use long before the Dwyers purchased their property, and had been used without permission by the Clarks and Byrums (as well as others) since the time the Dwyers bought their land. The Dwyers and Byrums argued that the Clarks didn’t have the right to use the road to reach a residence on a tract that hadn’t had one when the prescriptive easement came into existence.

The trial court disagreed, saying that all owners of the road were put on notice in the 1960s that the road was intended to service residences when the subdivision of the property into various tracts took place. The court concluded that the Clarks established the elements of a prescriptive easement, an open, notorious, exclusive, adverse, continuous, and uninterrupted use of the roadway for at least five years. The Dwyers appealed.

barricade160122Held: The Supreme Court upheld the trial judge. The Dwyers complained that the trial court had no business making findings about the public-use nature of the road. The Supreme Court disagreed, holding that although the action involved an alleged private easement, the public-use findings served only to give credibility to the private-easement claim and had no other legal effect.

To establish a private prescriptive easement, the Court said, a party must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the full statutory period of five years required by Montana Code § 70-19-404. An open and notorious use is a distinct and positive assertion of a right that is hostile to the rights of the owner and brought to the attention of the owner. Once a prescriptive easement is established, the owners of the easement are limited to the use and frequency of use that was established during the prescriptive period. If an easement is not specifically defined, it is considered to be of a size that is reasonably necessary and convenient for the purpose for which it was created, and not more. And once established, a prescriptive easement “runs with the land,” which means that the benefit or burden passes automatically to successors.

Applying these principles, the Supreme Court found that the Clarks had a prescriptive easement to use Byrum Lane. The right to use the private prescriptive roadway easement provided subdivision access extended to the Clarks’ and other tracts, lands that never had residences. The tracts were subdivided before the prescriptive easement came into being, the Court said, and the act of subdividing the tracts of land put all landowners on notice that the disputed roadway was intended to service all residences. Furthermore, the disputed roadway had been used to service parcels for several decades.

– Tom Root


Case of the Day – Wednesday, March 8, 2017



Unlike the kid above, our Ralph wasn't quick like a bunny when the branch fell.

Unlike the kid above, our Ralphie wasn’t quick like a bunny when the branch fell.

When the elder Mr. Eagle volunteered to help trim a tree at his church, his son tagged along. It seems that Ralphie was anxious to help Daddy.

Ah, the brashness of youth. The lad (he was 50 years old, but he still lived with mom and dad, so he was unquestionably a kid, albeit a big one), shouldered the three septuagenarians out of the way and climbed the ladder himself. Well, one thing led to another, and the group of tree-trimming amateurs lost control of a limb. The limb fell, the 70-year old man holding the ladder jumped out of the way to avoid being hit, and the falling limb knocked the ladder out of the way. Ralphie fell off the ladder and he landed — hard.

Having his eye on the collection plate, the litigious Eaglet sued the Church, the other retirees and, of course, his own father (with whom he resided) for negligence. He claimed that the volunteers were acting as agents of the church, making the church liable.

The trial court would have none of this, and threw the case out. The Court of Appeals agreed, finding that as volunteers, the tree trimming crewmembers owed each other reasonable care at most. And it wasn’t reasonable to believe the man holding the ladder would stand and take a hit when the limb fell. There wasn’t evidence that any of the trimmers were negligent, so the Church couldn’t be liable.

As for premises liability, the Court said, the evidence showed Eagle had volunteered to help three old men do something dangerous: he should have seen it coming. In reading the decision, one gets the impression that neither the trial court nor the appellate panel thought much of the young Eagle, who horned in on the volunteer effort, ignored his father’s request that he not participate, and then — after getting hurt — suing everyone involved.

FallingMan15101Eagle v. Owens, Case No. C-060446 (Ct.App. Hamilton Co., 2007). A small church needed some tree trimming performed. During a Sunday service, the pastor had asked for volunteers to perform the tree-trimming task. The church typically relied on volunteers for landscaping work, including potentially dangerous work such as trimming trees. Merida and Owens volunteered for the task. Both had performed similar tasks for the church on several occasions in the past without incident.

Before leaving the church that day, the two volunteers stood by the tree to examine what had to be done. When Eagle’s father walked by, they recruited him to help them. Eagle’s father was a deacon of the church, an unpaid, rotating position that required him to make decisions for the church’s benefit with the four other deacons. Ultimately, the three men, all over the age of 70, agreed to meet the next morning to perform the task.

When the elder Eagle arrived the next day, he brought his 50-year old son with him. The son thought the other volunteers were too old, so he took over trimming from a ladder perch. Before the younger Eagle began sawing, his father insisted on changing the position of the rope around the limb. Merida remembered telling Eagle’s father that he did not like the change, but he claimed that he deferred to him because he was a deacon. The limb did not fall cleanly, and its branches knocked over the ladder the younger Eagle was standing on. One of the men who had been holding the ladder ran to avoid being struck by the limb. Eagle fell and was injured.

He sued everyone who was there, as well as the church, alleging that they had “carelessly and negligently caused a tree limb to fall and strike” him. He also alleged that his father, Owens, and Merida were acting as agents or employees of the church when the accident occurred, and that the church was responsible for the acts of its agents. The individual defendants moved for summary judgment on the basis that Eagle had assumed the risk of any injury by participating in such an inherently dangerous activity. The church moved for summary judgment on the respondeat superior claim, arguing that it could not be liable where the individual defendants were not negligent and were not agents of the church, and where Eagle had assumed the risk.

The trial court granted summary judgment for the defendants without giving any reasons or issuing a decision. The younger Eagle appealed.

Held: The young Eagle’s wings were clipped. The Court agreed with the trial court’s dismissal, holding that as nonprofessional volunteers, the defendants at most owed Eagle a duty of reasonable care under the circumstances. Eagle did not present any testimony, expert or otherwise, to demonstrate how his father’s, Merida’s, or Owens’ conduct fell below a standard of reasonable care. No one foresaw that the branches on the limb would strike Eagle after breaking off from the trunk, and no one expected Owens to hold the ladder if it swayed while Eagle was on it, because it was obvious that he was physically unable to do so. And if he had stayed to steady the ladder, he likely would have been struck and injured by a large limb.

fallsign150114The Court held that the duty of reasonable care did not require such a foolish act of bravery, despite Eagle’s assertion that he would have steadied the ladder and suffered the blow of the limb if the roles had been reversed. To establish a claim against the church under the doctrine of respondeat superior, the record must demonstrate that a principal-agent relationship existed, and that the tortious conduct was committed by the agent while in the scope of his agency.

Here, the Court said, it did not need to determine whether reasonable minds could have concluded that any of the three men were agents of the church and whether Eagle was injured by acts taken within the scope of that agency, because the individual defendants did not act tortiously towards Eagle in carrying out the task. Where there is no actionable conduct by an agent, there can be no vicarious liability for the principal. Finally, on the claim of premises liability, the Court held that in determining the duty the church owed to Eagle, it had to focus on Eagle’s status as a participant in the tree-trimming task, because his injury resulted from his participation in this task and not from his status as a person present on the church’s property in general.

It was undisputed that Eagle was warned of the danger; that the church had always used volunteers, including Merida and Owens, to perform similar tree-trimming tasks in the past; and that these volunteers had performed in the past without incident. Eagle did not present any testimony from a tree-trimming professional to attack the church’s decision to use these same volunteers to remove this limb. The Court concluded that reasonable minds could come to but one conclusion, and that conclusion was that the church did not breach a duty of care owed to Eagle.

– Tom Root


Case of the Day – Tuesday, March 7, 2017


fence150113Nothing can come between brothers … except maybe an angry ex.

As brothers, Jerry and Kenneth were tight, just good ‘ol boys down on the farm. Their folks had given them 20 acres each, two small farms next to each other.

Ken got his farm first, and he put up a rickety, crooked fence, one good enough to keep cows penned up but not much as a boundary marker. A few years later, he gave brother Jerry permission to put up his own cattle pen, which attached to Ken’s own wandering fence. The upshot of all this sloppy fence building was that a 2.6-acre parcel belonging to Ken was on Jerry’s side of the fence. So what? They were brothers, after all. Ken didn’t mind, and he and Jerry both used the little piece of land. Jerry built a pond on part of it. Ken harvested some of the timber standing on it, and sold the lumber for profit.

So the boys lived side by side, happily ever after. Well, not quite. Seems after about 20 happy years, Jerry’s wife had had enough of the cows, enough and the ponds, and mostly, enough of Jerry. So it was the big “D” for Jerry, and when the smoke cleared, his ex owned a good chunk of his place.

She didn’t much like the ambiguous status of the 2.6 acres, so she sued Ken. Why not? She had just sued his brother, and look how well it turned out for her! The ex claimed the 2.6 acres by adverse possession. However, it turned out that her ex brother-in-law wasn’t the pushover Jerry had been. The trial court agreed that it couldn’t be adverse possession unless Jerry had held the 2.6 acres in a manner hostile to his brother’s rights. And, after all, they were family.

Divorce150113Simply put, there was no evidence that Jerry had fenced in his brother’s land except with his brother’s permission. Permissive possession, simply put, is not adverse.

Cleveland v. Killen, 966 So.2d 848 (Miss.App., 2007). Ken and Jerry each owned a 20-acre tract of land located next to each other in Neshoba County. Ken’s tract was directly north of Jerry’s, and there was a straight property line dividing the two parcels.

Ken received his land from his folks in the 1960s. When Jerry got his in 1970, he wanted to build a fence for some cows. Jerry got Ken’s OK to “tie on” additional fencing to a fence that Ken had built on his own property, a crooked thing that was sort of parallel to the boundary line, but not intended to represent the boundary line. In fact, it seemed none of the parties knew where the exact boundary line was when Jerry built the fence. Since Ken’s fence spanned the middle of the property, Jerry began at the corners and added fencing eastward and westward to the edges of the property. Combined with Kenneth’s portion, this let Jerry fence his cattle without building a fence across the entire property. But because Ken’s original fence was north of the actual property line, the completed fence separated the 2.6 acres in dispute from the remainder of Ken’s property.

split150113For a long time, there was no conflict about who owned the 2.6 acres now in dispute. Jerry used the land for gardening and for animals, and Ken cut timber on the land and built a gate in the fence so he could run his cattle over to Jerry’s pond. But some 20 years after Jerry built the original fence, he put in a pond, about a third of which was on Ken’s land but on Jerry’s side of the fence. There was no conflict over the pond until Jerry’s wife divorced him and got a remainder interest in his 20 acres. Ex-wife Tommie sued Ken when he hired a surveyor to mark the property and then built a fence that represented the true property line. By then, Jerry was suffering from dementia and didn’t testify. The trial court found for Ken, and Tommie appealed.

Held: The land was not lost to Tommie by adverse possession, the Court of Appeals held, affirming the trial court. The Court found that the evidence was sufficient to show that Jerry had had Ken’s permission to use the 2.6-acre parcel in question. The landowners were brothers who had lived side by side with their families for 35 years with no disputes, there was evidence that Jerry had asked for Ken’s OK to build a fence (which Ken had given), the brothers thereafter used each other’s property, Ken brought his cattle across the land to use the pond, and that Ken even cut down some trees located in the disputed area and kept the profit he received from selling the timber.

As a rule, permissive possession of lands — even if continued for a long time — doesn’t confer title on the person who possesses them until a positive assertion of a right hostile to the owner has been made. If there never had been a request or a grant of permission to use land, the use would not have been permissive, but rather would have been adverse. When a close family relationship is involved, proof of adverse possession is not ordinarily as easily established as it is when the parties are strangers.

– Tom Root


Case of the Day – Monday, March 6, 2017


Cute ... but varmints

Cute … but varmints

It seems that the furry little critters called marmots dig holes and generally make pests of themselves. At least, that what Pam Tessman would tell you.

She spent July 4th one year at a Wyoming RV park with her son, where at one point in the day she walked through a field and saw a marmot hole, the very one she later tripped on in the dark.

Of course, the fact she knew the hole was there and that the marmot probably wasn’t in the employ of the park owner, didn’t matter to the limping and litigious Pam — she sued park owner Mary Berry anyway. The alliteratively named Ms. Berry might tell you that Pam was something of a varmint herself. Nevertheless, the jury awarded Pam a cool quarter million dollars at trial (reduced by 25% because the jury figured that she should have remembered the hole in the grassy field from earlier that day).

But the Supreme Court of Wyoming had other ideas. Before there can be liability, the Court said, there has to be a duty. And in Wyoming, a landowner isn’t responsible to protect guests from dangers that were known and obvious. Little furry burrowing animals tend to leave holes that are completely natural, the Court said, as well as open and obvious. There was no reason to hold the RV park owner liable for Pam’s clumsy misfortune, or to sting Mary Berry to line Pam’s pocket.

trip150112Berry v. Tessman, 170 P.3d 1243, 2007 WY 175 (Sup. Ct. Wyo., 2007). Pam Tessman was staying at Mary Berry’s RV park. At check-in, Pam asked Mary Berry where she could take her son fishing. Mary Berry pointed Pam to a river just off the property, and Pam followed the directions. She and her son cut behind a bathhouse across several fields, over a broken-down fence and over a set of railroad tracks, to the fishing hole.

Pam saw a lot of adults and kids using the “grassy area” behind the bathhouse to get to and from the river. In fact, on the way back, Pam saw several boys playing by a marmot hole in the field behind the bathhouse. That evening, Pam was watching fireworks when she saw her son was up by the railroad tracks with some children who appeared to be setting off fireworks. Concerned for his safety, Pam left the lit pool area and went out into the grassy area behind the bathhouse to call him back. She stepped in the marmot hole she had seen earlier that day, twisting her ankle.

Pam sued to recover for her injuries. The trial court found in Pam’s favor and awarded her $259,000, which it reduced by 25% for her own negligence.

Pam appealed.

Held: The Wyoming Supreme Court reversed the trial court, and Pam got nothing.

The elements of a negligence action are a duty owed the plaintiff by defendant to conform to a specified standard of care, a breach of the duty by defendant, and that the breach of the duty of care proximately caused injury to the plaintiff. A landowner in Wyoming owes a general duty to act reasonably in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Landowners have no duty to protect from known and obvious dangers, even those resulting from natural causes.

However, a plaintiff may show that an otherwise naturally occurring condition does not fall within this rule by showing that the defendant created or aggravated the hazard, that the defendant knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Even a naturally occurring, known and obvious hazard that the landowner has not aggravated could result in liability if the landowner were to create an expectation of heightened safety for people on the premises. The Court saw no reason the known and obvious danger rule should not apply to the ubiquitous hazard posed by the holes of burrowing animals.

slip_and_fall150112However, Pam Tessman hadn’t shown that her circumstances warranted a finding that the marmot hole she stepped in was anything other than a naturally occurring, known and obvious danger, from which Mary Berry had no duty to protect her. She made no showing that Mary Berry owed her any other duty that would support a finding of negligence here. The marmot hole was not a hazard she had created. The marmots weren’t domestic animals or pets but wild animals present in the surrounding area, as well as on the property itself.

Simply enough, the record evidence didn’t suggest that Mary aggravated the danger posed by the marmot hole. To the contrary, the trial court found that Mary tried to minimize the danger from such holes on her property by filling them regularly and by having the animals trapped whenever they became a nuisance. A landowner does not have a duty to protect a guest on her property from a naturally occurring, known and obvious hazard she has not aggravated if she has not, through her own undertaking, created an expectation in her guests that they will be protected from such a hazard.

Mary didn’t create or aggravate the marmot hole that caused Pam Tessman’s injuries, nor did Mary undertake any act that could have caused Pam to rely reasonably on a heightened expectation of safety or special protection from marmot holes on her property. Thus, Pam gets nothing.

– Tom Root