Case of the Day – Tuesday, December 6, 2016


poster151022A long time in a war far away, everybody was doing all he or she could for the war effort. Buying bonds, working on the home front, soldiers marching, airmen flying, sailors sailing, marines landing… we were all in it together. The Heaths, who owned property in New Jersey, were in it, too, and were only too happy to give an easement to a defense plant for a natural gas pipeline over their land.

The War ended but the easement lived on. It passed from owner to owner (as did the unimproved land to which the easement applied) until the easement for the gas lines was owned by Duke Energy and the unimproved land had become University Heights. By then, the easement for the gas lines was lined up with a beautiful boulevard that had been built over it. That boulevard, Fountain Avenue, in turn, but was lined with 75’ tall trees.

Fast forward to 2001, a new century, a time when World War II vets were octogenarians. Duke Enrgy announced that it was going to cut down the trees to better service the gas lines. All that collective “we’re in it together” twaddle had long since gone the way of Howdy Doody and the jitterbug. By the new millennium, it was every dog for himself. Thus, as they say in legal circles, litigation ensued.

The trees belonged to the Township, although as the Court of Appeals observed, the homeowners thought of them as their own. The Township rolled over and agreed that Duke could take down 55 of the 80 it had planned to cut, but the residents kept up the fight. The trial court sided with them, and prohibited Duke from cutting the trees.

Duke appealed, arguing the homeowners had no standing to stop it. After all, the trees didn’t belong to them. Standing is a powerful concept in the law. The Constitution empowers courts to hear “cases and controversies,” and those words have meaning. If a party lacks standing, that is, skin in the game, there’s no real case or controversy, because the parties aren’t really at loggerheads.

Here, the Court disagreed with Duke. A 75’ shade tree in your front yard is, the Court said, powerful incentive to litigate vigorously. However, the Court said, the trial court’s siding with the homeowners on summary judgment was too hasty. Real questions existed whether aerial surveillance was necessary, whether the tree roots were really invading the gas line, and whether the trees would keep crews from an emergency break.

Gas line explosions are usually big enough to get ...your attention ... hence, Duke Energy's concerns were entirely fanciful

Gas line explosions are usually big enough to get your attention. Hence, Duke Energy’s concerns were not entirely fanciful …

Township of Piscataway v. Duke Energy, 488 F.3d 203 (3rd Cir., June 6, 2007). In the early 1940s, Flora and H. Morgan Heath took title to a large tract of undeveloped land in the Township of Piscataway. The Heaths granted Defense Plant Corporation “the right to lay, operate, renew, alter, inspect and maintain” two pipelines for the transportation of natural gas across the land. The 1944 grant required Defense Plant “to bury such pipelines so that they will not interfere with the cultivation or drainage of the land, and also to pay any and all damages to stock, crops, fences, timber and land which may be suffered from the construction, operation, renewal, alteration, inspection or maintenance of such pipelines.” Defense Plant subsequently installed two 20-inch diameter natural gas pipelines.

In January 1960, the Richters and Gerbers (who now owned the property) granted TETCO — which was Defense Plant’s successor — the right to construct a third pipeline across the property. The 1960 grant allowed the owners “to fully use and enjoy the said premises, except for the purposes granted to [TETCO] and provided the [owners] shall not construct nor permit to be constructed any house, structures or obstructions on or over, or that will interfere with the construction, maintenance or operation of, any pipe line or appurtenances constructed hereunder, and will not change the grade over such pipe line.” TETCO agreed to bury all pipes to a sufficient depth so as not to interfere with cultivation, and agreed to pay such damages which may arise to growing crops, timber, or fences from the construction, maintenance and operation of said lines. TETCO then constructed a third 36-inch diameter pipeline.

Three years later, three real estate development companies that then owned the property entered into an agreement with TETCO in which TETCO agreed to reduce the size of the easement by releasing all portions of the land in the prior grants not needed for the pipelines. Attached to the 1963 agreement was a drawing prepared by TETCO, which showed a proposed residential neighborhood through which TETCO’s 60-foot wide easement ran at a slight diagonal. The 1963 agreement preserved all of the rights and restrictions set forth in the prior grants. Later, Duke Energy succeeded TETCO.

Meanwhile, as a result of residential development of the property, the land on which the easement is located became a one-block long public street named Fountain Avenue. The street became flanked by a large number of trees, many of which were planted in the early 1960s as part of the original residential development of the neighborhood and have grown to about 75 feet tall.

The homeowners who became part of this lawsuit lived in single-family homes built by the developers on lots lining Fountain Avenue. Although all of the trees at issue in the case were located on Township property, the homeowners viewed the trees, from a practical and aesthetic perspective, as extensions of their front yards. In April 2000, Duke announced that it would be removing approximately 80 trees from Fountain Avenue in order to better maintain the pipelines. Township residents vehemently opposed the proposed action, and sued Duke for an order prohibiting the Township and the homeowners from interfering with Duke’s rights under the easement.

The Township settled with Duke and consented to the immediate removal of fifty-five trees from Fountain Avenue, as well as to the future removal of any trees that exceed eight inches in diameter. The homeowners disagreed, and proceeded with the case. Following a hearing, a federal district court granted the homeowners’ motion for summary judgment, concluding that Duke failed to offer any evidence that removal of the trees was “reasonably necessary” to the maintenance of the pipelines and that Duke was barred by the doctrine of laches from asserting a right to remove the trees pursuant to the terms of the easement grant.

Duke appealed.

street151022Held: The case was sent back to the trial court. Duke argued that because the homeowners didn’t own the trees, they lacked the legal standing to stop Duke from cutting them down. But the Court disagreed, finding that removal of the trees from in front of homeowners’ property would have caused actual injury to the homeowners’ servient estates. The trees added to the value of the owners’ property, and they helped reduce air pollution, improved air quality, and provided cooling shade which reduced energy costs in summer months.

Under New Jersey law, the Court said, there is an implied right arising out of every easement to do what is reasonably necessary for its complete enjoyment. However, that right is to be exercised in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner. Therefore, summary judgment for the homeowners wasn’t proper here, because a genuine issue of material fact existed as to whether aerial surveillance was reasonably necessary to the maintenance of natural gas pipelines and, if so, whether the trees along Fountain Avenue prevented such surveillance. Likewise, a question existed as to whether the trees prevented operators from gaining quick access to pipelines in event of an emergency, as well as to whether the root growth of the trees posed a significant threat to the integrity of the pipelines.

The trial court also found that Duke was barred by laches from seeking to remove the trees now, after having had the right to do so for many years without exercising it. Under New Jersey law, laches may be enforced only when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned. The key factors to be considered when deciding under New Jersey law whether to apply the laches doctrine, according to the Court, were the length of the delay, the reasons for the delay, and the changing conditions of either or both parties during the delay. In this case, the Court said, there was evidence of newly promulgated natural gas transmission standards, as well as greater attention paid to natural gas pipeline safety, as a result of recent catastrophes. Those new developments, the Court said, were sufficiently compelling to create a genuine issue for trial.


Case of the Day – Monday, December 5, 2016


cash151021Whenever an accident results in permanent disability, it is understandable that the injured party and his family looks for as many deep pockets as they can find.

A million bucks sounds like a lot of money. At least until you deduct a third for the lawyers, and spend the rest on a lifetime of care and support for a paraplegic. The facts of today’s case are rather prosaic: workers from a landscaping service were trimming a tree. Something may have slipped — or maybe it was just one of those things — but a tree limb fell and struck José Garza, who was on the ladder, knocking him off and causing spinal cord injury.

Missouri workers’ comp awarded José $1 million. But he nevertheless sued his employer and the other workers who present that day, alleging negligence. The Missouri trial court quickly threw out the claim against the employer — after all, this kind of litigation was just what workers’ comp was supposed to avoid. But the Court struggled with the claims against his jobsite supervisor and two fellow landscapers.

noway161205The move was creative.  After all, José argued, the statute just protected the employer from liability, not anyone else who happened to be there (like co-workers, who – face it – can sometimes be dim bulbs). Why shouldn’t other employees, especially supervisors, be liable for negligence?

The Court of Appeals  said, “No way, José.” In order to take the co-workers outside the protection of the statute, José would have to show some they had engaged in some sort of purposeful, affirmatively dangerous conduct, much more than the garden-variety negligence he alleged had occurred that day. To rule otherwise would completely undermine the policies underlying workers’ comp, and at the same time make it just about impossible to recruit and afford to keep employees (who would demand insurance coverage as a condition of employment).

Thus, the courts never reached the question of whether anyone had been negligent that day, because even if everything José alleged were true, it would just not be enough.

falloff151021Garza v. Valley Crest Landscape Maintenance, Inc., 224 S.W.3d 61 (Ct.App.Mo. 2007). José Garza worked for Valley Crest Landscape Maintenance, Inc., as a landscaper. One day, he was told to report to a home to provide landscaping services. Brad Mason, a supervisor, directed which trees to trim. Garza’s crew leader, Rafael Moya, instructed Garza to climb a ladder and cut a specified limb. Moya placed the ladder against the tree, held the ladder, and rigged ropes to the limb to be cut. Javier González held the rope which Moya had rigged, while Garza climbed the ladder. While Garza was on the ladder, the limb knocked him to the ground, causing a permanent spinal cord injury.

Garza filed a worker’s compensation claim and collected over $1 million on the claim. He then filed a complaint in state court against Valley Crest, Mason, Moya and González, alleging negligence. The Defendants moved to dismiss on lack of subject matter jurisdiction, claiming that worker’s compensation was the sole remedy available to Garza.

The trial court agreed. Garza appealed.

negligence151021Held: The dismissals were affirmed. Normally, workers compensation is intended to be a worker’s only remedy for injuries on the job, even where those injuries are the result of the negligence of the employer. Generally, co-employees enjoy the same protection under the exclusive remedy provision of the workers compensation statute as the employer, absent a showing of something more. That “something more” is a determined on a case-by-case basis and includes any affirmative act, taken while the supervisor is acting outside the scope of the employer’s duty to provide a reasonably safe environment, that breaches a personal duty of care the supervisor owes to a fellow employee.

Allegations by Garza against his co-workers that they failed to securely hold a ladder, failed to properly rig ropes to the branch being cut, failed to create a proper support with the rope, and failed to use reasonable care in holding the rope did not amount to the purposeful, affirmatively dangerous conduct that was required to move the co-workers outside the protection of the statute’s exclusive remedy provisions.

The Court held that mere allegations of negligence are “not the kind of purposeful, affirmatively dangerous conduct that Missouri courts have recognized as moving a fellow employee outside the protection of the Workers’ Compensation Law’s exclusive remedy provisions.


Case of the Day – Friday, December 2, 2016


Angelspathsite140325Rare is the opportunity to glean two instructive cases from one malefacting (if that’s a word) defendant. However, such is our good fortune with Ohio developer Angel’s Path, LLC (and yes, the apostrophe suggests there was only one angel on the path). Yesterday, disgruntled Angel’s Path neighbor Clarence Peters narrowly escaped being thrown out of court because he defended against summary judgment on the cheap. Today, we find out how his neighbors, the Kramers, fared when they went after the same developer because their home was disrupted by noise, dirt and even light from the new home development.

The Kramers claimed the dust and dirt was a public nuisance, and that Angel’s Path was causing the light to trespass on their homestead. These were both creative arguments, but the Kramers were doing their best to find a legal theory that would address the injustice they were experiencing. The developer leveled its legal guns, taking a very legalistic approach: the nuisance couldn’t be a public nuisance, it said: a public nuisance has to be affecting the plaintiff differently from the general public, and the general public was eating Angel Path’s dust just as badly as were the Kramers. As for the annoying light, Angel’s Point contended, there just weren’t any cases that said light could be a trespasser.

Chief Justice Oliver Wendell Holmes once famously chided a lawyer arguing before him that “this is a court of law, young man, not a court of justice.” Fortunately for the Kramers, the Ohio Sixth District Court of Appeals wasn’t having any of that. Often one can tell when a court is stretching to find some way to do justice. Clearly, the appellate judges were disenchanted with the developer, the lawyers for which were essentially telling them that while Angels’ Path had done everything the Kramers accused it of, there wasn’t anything the law could do about it. Nyah-nyah.

But it turned out that there was something the Court could do about it. It reinstated the suit, warning the Kramers that they might find it tough to win a trial, but the facts they had alleged suggested several theories they could pursue.

With the case once again headed for a jury of just plain folks who would be unimpressed with Angel Path’s legal hair-splitting and probably sympathetic to the sleep-deprived, dust-covered Kramers, one imagines that Angel’s Path very quickly recalled another pithy legal aphorism: “A bad settlement is better than a good lawsuit.”

Our takeaway from this case is that nuisance actions can be both flexible and powerful means of redressing neighbors’ activities that interfere with the legitimate enjoyment of home and hearth.

Kramer v. Angel’s Path, LLC, 174 Ohio App.3d 359, 882 N.E.2d 46 (Ohio App. 6 Dist. 2007). William and Patricia Kramer, sued Angel’s Path, L.L.C., , alleging that construction in a housing development resulted in blowing dust and dirt tracked onto their street and trespass from a lighted “promotional” sign that lighted the front of the Kramers’ residence 24 hours a day. They alleged that Angel’s Path’s development was a public nuisance because of the dirt and Angel’s Path was actually trespassing on their land with the 24-hour lighted sign.

The trial court threw the suit out altogether. The Kramers appealed.

Held: The Kramers could proceed to trial against Angel’s Path.

The Court of Appeals held that the Kramers were clearly wrong that the development was a public nuisance, but the facts they had alleged in their complaint, if true, did make out a claim for a private nuisance. The rule is that courts should interpret complaints to do “substantial justice,” and it would be unfair to make hyper-technical demands for precision in complaints. The rules only require that a complaint “contain a short and plain statement of the circumstances entitling the party to relief and the relief sought.” The factual allegations in the complaint should control whether some legal cause of action has been properly pleaded and supported on summary judgment.

The opinion contains a welcome primer on nuisance law. The Court noted that the law of nuisance “has been described as the most ‘impenetrable jungle in the entire law’.” Generally, though, nuisance” is defined as “the wrongful invasion of a legal right or interest.” It may be designated as “public” or “private.” A public nuisance is “an unreasonable interference with a right common to the general public,” and arises only where a public right has been affected. To recover damages under a claim of public nuisance, the plaintiff must establish (1) an interference with a public right and (2) that the plaintiff has suffered an injury distinct from that suffered by the public at large.

To the Kramers, “Blinded by the Light” was more than a Springsteen ditty once covered by Manfred Mann … it was an every-night occurrence.

By contrast, a “private nuisance” is a non-trespass “invasion of another’s interest in the private use and enjoyment of land.” Unlike a public nuisance, a private nuisance threatens only one or few persons. In order for someone to be entitled to damages for a private nuisance, invasion has to be either (a) intentional and unreasonable or (b) unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

A nuisance may be “continuing or permanent.” A continuing nuisance arises when the wrongdoer’s tortious conduct is ongoing, perpetually generating new violations. A permanent nuisance, on the other hand, occurs when the wrongdoer’s tortious act has been completed, but the plaintiff continues to experience injury in the absence of any further activity by the defendant.

For a nuisance to be an absolute nuisance, it must be based on intentional conduct or an abnormally dangerous condition that cannot be maintained without injury to property, no matter what precautions are taken. Strict liability is imposed upon an absolute-nuisance finding. When a defendant commits an unlawful act deemed to be an absolute nuisance, he or she becomes an insurer, and will be liable for “loss resulting from harm which may happen in consequence of it to persons exercising ordinary care, irrespective of the degree of skill and diligence exercised by himself * * * to prevent such injury.”

Every day seemed like the Dust Bowl to the Kramers ...

Every day seemed like the Dust Bowl to the Kramers …

On the other hand, if the conduct is a “qualified” nuisance, it is premised upon negligence. A qualified nuisance is defined as essentially a lawful act “so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.” Under such circumstances, the nuisance arises from a failure to exercise due care. To recover damages for a qualified nuisance, negligence must be alleged and proven. Whether a party’s actions were reasonable is generally a matter for the trier of fact.

Trespass on real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another. The elements of a trespass claim are “(1) an unauthorized intentional act and (2) entry upon land in the possession of another.” A trespass claim exists even though damages may be insignificant. A person can be a trespasser without actually stepping onto another’s property. A trespass may be committed by invading the airspace of the property. This principle is based upon the concept that an owner of land owns as much of the space above the ground as he or she can use.

Here, Angel’s Path argued that the Kramer’s “public nuisance” was undercut by their admission that several neighbors suffered from the same excessive dirt and dust that bothered the Kramers. Therefore, it claimed, the Kramers failed to establish a claim for nuisance, because their injuries were no different that those suffered by the public in general. Angel’s Path also argued that the light shining into the Kramer home was not a trespass.

The Kramers countered with an affidavit and photos of the property across from their home and of their home, showing that the dirt and dust blew straight from the Angel’s Path property across their land. They even produced Weather Service wind records supporting the claim. As for the light, they contended that the entrance-sign light ­– directly across from their house – continuously lit up their home “in an annoying and harassing manner,” including the three front bedrooms. They had asked Angel’s Path turn off the light, nothing changed until after they sued, and took the deposition of an Angel’s Path executive.

The Kramers showed proof of the dirt in their home, and documented the costs of cleaning it up. They also described the Angel’s Path sign – “like a headlight shining into [the] bedroom windows” – and the problems this caused.

The Court of Appeals disagreed with Angel’s Path that a claim for “public” nuisance could not be sustained, because too many people apparently suffered the same deprivations. Under this line of reasoning, the Court observed, a person creating a public nuisance could escape liability simply by harming more than one party. Plus, the Court held, even if the Kramers had no public nuisance claim, they may still have a claim for private nuisance. Although Angel’s Path construction may be lawful, questions of fact remained as to whether the developer failed to exercise due care and was so negligent “as to create a potential and unreasonable risk of harm” resulting in the Kramers’ injuries. Thus, the Court wouldn’t through out the suit.

The Court was concerned that light invasion claim was “an unusual and perhaps creative application of trespass law.” The Court conceded that arguably, the Kramers could assert that the light physically invaded the airspace over their property. But even if this argument doesn’t carry the day, the Court said, genuine issues of material fact remained as to whether the lighted sign may be a public or private nuisance.


Case of the Day – Thursday, December 1, 2016


Filthy_animal140324Any fan of the Christmas comedy hit of the 1990s, Home Alone, remembers Angels with Dirty Wings. It was the film noir movie that the kid protagonist played repeatedly, the mobster’s taunt – “Keep the change, ya filthy animal” – punctuated with a spray of .45 cal. bullets from a Model 1928 Thompson submachine gun, being used as part of the boy’s plot to keep the bad guys at bay.

In today’s case, the angel is Angel’s Path, a developer, and the dirt on its wings slid off a big mound the company put right on its property line as it built houses. The neighbors didn’t much like the dirt sliding into their back yard, and weren’t big fans of the stagnant water that collected after every rainstorm. But when Angel’s Path asked for summary judgment on the trespass and nuisance claims the Peters brought, for some reason they opposed it on the cheap, with an affidavit from Mr. Peters and a bare letter from their engineer.

It’s seldom a good idea, saving money at the most crucial moment in the litigation. Better to adhere to the old law school maxim, “too much is not enough.” You have affidavits from five experts? Use ’em all. You have five boxes of documents? Attach ’em. Opposing a motion for summary judgment is no time to spare the horses. Here, Mr. Peters should have had an affidavit from his engineer, his own survey done by a registered surveyor and recorded down at the county building, and enough pictures of shifting dirt piles and standing water to start his own Instagram site.

angelsfight140324But he didn’t. The trial court granted summary judgment to Angel’s Path, finding the survey of property lines — showing the dirt piles on its own land — more persuasive than Mr. Peters’ affidavit claim that the dirt had sloughed over the line. Peters’ affidavit was “self-serving,” the trial judge complained.

The Court of Appeals reversed. Sure the affidavit may be a little self-serving, the Court said, but for purposes of summary judgment — a fairly high bar for a defendant to leap — the Court had little problem believing that a property owner knew where his own boundary lay. The summary judgment test, after all, is whether the evidence, taken in the light most favorable to the party against whom summary judgment is sought, shows there’s no material question of fact.

This standard required that the trial court assume that any reasonably detailed facts Mr. Peters raised in his affidavit were true. If after doing this, the court still believes that Peters was not entitled to a judgment, then summary judgment could go for Angel’s Path. It was pretty clear that Mr. Peters was going to need a whole lot more persuasion at trial to pull the halo off Angel’s Path, but for now – at the summary judgment stage– his showing was enough to stay in the hunt. Just barely.

Incidentally, this case was brought with a companion case from the Kramers, who sued Angel’s Path, too. That decision is an interesting study in nuisance and trespass. We’ll consider that decision tomorrow.

angelspath140324Peters v. Angel’s Path, L.L.C., Slip Copy, 2007 WL 4563472 (Ohio App. 6 Dist., 2007). Clarence and Nanette Peters said that Angel’s Path, LLC, a developer, damaged their two residential properties. As a result of residential property development by Angel’s Path, dirt mounds at the edge of the development property caused water run-off and flooding on their adjacent land. They sought restraining orders to prevent Angel’s Path from trespassing on their properties or continuing to alter the natural flow of water, as well as damages.

Angel Path filed a motion for summary judgment, arguing that the earth mounds did not cause run-off to appellants’ property or any sinkhole conditions, and therefore, were not a nuisance; and that their surveyor said that the mounds did not encroach upon appellants’ property, so no trespass had occurred. The trial court also granted summary judgment against the Peters on both their nuisance and trespass claims. The Peters appealed.

Held: Summary judgment was reversed. A “nuisance” is the wrongful invasion of a legal right or interest. A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. In order for a private nuisance to be actionable, the invasion must be either intentional and unreasonable, or unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

If the private nuisance is absolute, strict liability will be applied. By contrast, a qualified nuisance is premised upon negligence, essentially a negligent maintenance of a condition that creates an unreasonable risk of harm. To recover damages for a qualified nuisance, negligence must be averred and proven. A qualified nuisance is a lawful act so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.

Where damage to one property by water run-off from an adjacent property is alleged, Ohio has adopted a reasonable-use rule. A landowner isn’t allowed to deal with surface water as he or she pleases, nor is the owner absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Instead, each landowner over whose property water flows is allowed to make a reasonable use of the land, even though the flow of surface waters is altered thereby and causes some harm to others. He or she incurs liability only when the harmful interference with the flow of surface water is unreasonable.

nuisance151019In answer to Angel’s Path’s motion for summary judgment, Mr. Peters provided an affidavit along with referenced photos that claimed the mounds created by Angel’s Path had slid across the common property onto his property. Peters’ affidavit also said that Angel’s Path workers entered onto his property to cut the weeds because the slope of the mounds didn’t allow appropriate maintenance without entering onto his land. Finally, the Peters affidavit stated that the back portion of his property now flooded and would not dry out, preventing his use of the land for a rental or for farming. Peters also included as a letter from his expert stating the mounds blocked the natural flow of the water, creating a “permanent pond,” and suggesting possible ways to eliminate the problem.

The Court said that Mr. Peters’ testimony about the location of his property lines, although perhaps not the best evidence to rebut a commercially prepared survey, was something presumably within the property owner’s personal knowledge. Therefore, despite the fact that he had not yet had a separate survey done, the Court would not disregard the affidavit. At the same time, the Court criticized the trial judge for placing too much weight on the fact that Angel’s Path plans had been approved by the local county engineers. The Court of Appeals said that while the county engineer and other agencies approved the Angel’s Path development plans, including the projected effects that it might have on surrounding properties, “such facts are of little consequence and comfort when examining the real-world results of the construction…”

Here, for the purposes of summary judgment, the Court concluded that the Peters had presented prima facie evidence to establish causes of action for private nuisance and trespass. Whether Angel Path’s actions were reasonable, intentional, or negligent, the Court said, are decisions to be made in a trial, not on summary judgment.


Case of the Day – November 30, 2016


leakybucket151016Law students learn in first-year civil procedure that it’s entirely proper to file utterly inconsistent pleadings. For example, if a complaint is that the defendant borrowed plaintiff’s bucket and broke it, the defendant can answer that (1) he never borrowed it; (2) when he returned it, it wasn’t broken; and (3) it was broken when he borrowed it. And lawyers wonder why there are so many attorney jokes …

But there are limits, and complaints in civil actions should not be completely mindless in their allegations. In today’s case, landowner Fischer changed the slope of his land, rebuilt a driveway and installed a retaining wall. His neighbor Christiana complained that the effect of his neighbor’s construction project was to send unwanted drainage onto his property. Fischer was unimpressed. “Cry me a river,” you can imagine him saying. Christiana’s lawyer – who perhaps was charging his client by the word – obliged, tearfully filing a four-count complaint claiming negligence, recklessness, nuisance and trespass.

crymeariver140326Fischer filed a motion to strike the recklessness and trespass counts. He argued that the complaint — even assuming everything Christiana has alleged was true — simply didn’t state a claim. Christiana depended on pretty much the same facts for recklessness as he did for negligence, except in the recklessness count, he charged that on top of everything else, Fischer hadn’t gotten permits from the town for the project. Well, maybe that was a little sloppy, at least as far as paperwork goes, but the Court held that Fischer’s lack of a few permits didn’t constitute recklessness towards Christiana. The recklessness count was bounced.

Fischer argued that the trespass count should be dismissed, because there was no allegation that he intended for the water to flow onto Christiana’s land. The Court disagreed with Fisher’s novel interpretation of trespass, holding that Fischer didn’t have to intend that the water trespass on Fischer’s land, just intend the act – that is, the diversion of the water – that resulted in the trespass. The distinction is subtle but crucial.

Thus, the trespass count remained, an important holding: the Court said in essence that without ever stepping foot on Christiana’s property, Fischer could have trespassed, just by being negligent in the way he altered water flow.

Christiana was upset because Fischer's retaining wall left his place a little soggier than it had been before ,,,

Christiana was upset because Fischer’s retaining wall left his place a little soggier than it had been before …

Christiana v. Fischer, Not Reported in A.2d, 2007 WL 3173949 (Conn. Super.Ct., Oct. 17, 2007). Christiana sued Fischer after Fischer altered the slope of his land and built a retaining wall. Christiana sued for negligence, recklessness, nuisance, and trespass. Fischer moved to strike the recklessness and trespass counts as insufficient to state a cause of action.

Held: The court split its holding, striking the count for recklessness but not the trespass count. Recklessness is a state of consciousness with reference to the consequences of someone’s acts, more than negligence, more than gross negligence. While the actor’s state of mind amounting to recklessness may be inferred from conduct, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

In Count 2, Christiana repeated his allegations of negligence and additionally alleged that Fischer rebuilt a driveway without a building permit and in violation of the town’s zoning regulations. Christiana, however, made no allegation that Fischer was made aware prior to completion of the alteration and construction work of any problems that he was causing that would drain water onto Christiana’s property. The Court found that the allegations failed to support a cause of action for recklessness.

As for the trespass count, Fischer argued that Christiana failed to allege any intentional conduct essential to state a cause of action for trespass, pointing out that there was no allegation that the defendants intended to direct water or other debris onto the plaintiffs’ property or that they acted with knowledge to a substantial certainty that the water or other debris would enter the plaintiffs’ property. But the Court held that to make out a trespass, a plaintiff had to have ownership or possessory interest in the land; there had to be an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; the act had to be done intentionally; and the act had to cause direct injury.

trespass140326However, a trespass need not be inflicted directly on another’s land, but may be committed by discharging water at a point beyond the boundary of such land. In determining “intent” for trespass purposes, the issue was not whether Fischer had intended the water to enter the Christiana’s land, but whether he had intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect that subterranean and other conditions would cause the flow.

Christiana alleged in his complaint that he had notified Fischer that he was having severe drainage problems as a result of the land alteration and construction on several occasions, and that Fischer failed to take corrective action. The Court found that Christiana’s allegations were sufficient to establish a cause of action for trespass.


Case of the Day – Tuesday, November 29, 2016


We were recently returning home from another part of the state when my wife, who loves exploring country byways, encouraged me to take a narrow township road. It was well worth it, with pastoral autumn views that put a state route – let alone an interstate highway – to shame.

Corn to the corners - and no clear sightline.

                           Corn to the corners – and no clear sightline.

At one corner on a township road, we happened on an excellent example of what we Ohioans call “corn to the corners,” the practice of planting right up to the edge of a field. We can hardly blame the farmer, who has to maximize the land’s yield in order to stay in business (and to cover the payments on a $200,000 tractor). But corn to the corners – like planting trees and shrubs near the road – can play havoc with sightlines and can pose a real hazard to motorists.

When an accident does happen, lawyers scramble to find as many defendants as possible, because usually, each defendant comes with his or her own insurance policy. As one old lawyer we practiced across from years ago, you have to “get the money flowing.” Nothing makes it flow like a whole passel of deep-pocket insurance companies lined up on the defendants’ side of the room.

But what duty does a landowner have to people traveling by? After Margaret Sheley was killed when her automobile collided with Kimberly Cross’ vehicle at an intersection, her family decided to test those limits. They sued Cross, the County and Buryl and Hazel Grossman, who owned the land by the intersection. The Sheley family argued the Grossmans negligently planted crops on their land such that a motorist’s view of oncoming traffic at this intersection was impaired. The trial court held for the Grossmans, finding they owed no duty to Margaret Sheley.

The Court of Appeals agreed, drawing a distinction between a landowner who creates hazardous conditions on the roadway, as opposed to conditions – hazardous or not – . wholly contained on the landowners’ property. Like corn to the corners, or perhaps big, bushy trees.

sightline140613Sheley v. Cross, 680 N.E.2d 10 (Indiana Ct. of Appeals, 1997). On October 15, 1992, Margaret Sheley was killed when her car ran into Kimberly Cross’ vehicle at an intersection. Margaret’s survivors sued Kimberly Cross, the County, and Buryl and Hazel Grossman, the farmer who owned the land next to the intersection. The Sheley family argued that Grossmans, as owners of the land next to the intersection, negligently planted crops on their land such that a motorist’s view of oncoming traffic was impaired. The trial court granted summary judgment in favor of the Grossmans, finding that they owed no duty to Margaret. The family appealed.

Held: The Grossmans owed no duty to Margaret Sheley. Admittedly, the planting of vegetation is considered to create an artificial condition, not a natural one. A “natural” condition is limited to land unchanged by humans. The difference is significant since there are differing duties for natural versus artificial conditions.

Nevertheless, to recover under a theory of negligence, a plaintiff must first establish that the defendant had a duty to conform his or her conduct to a standard of care arising from a relationship with the plaintiff. Absent a duty, there can be no breach and, therefore, no recovery in negligence

care161129The Court said that an occupier of land abutting on or adjacent to a public highway owes a duty to the traveling public to exercise reasonable care to prevent injury to travelers from any unreasonable risks created by such occupier. The landowner has no right to use the property to interrupt or interfere with the exercise of the traveling public’s right by creating or maintaining a condition that is unnecessarily dangerous.

The issue, the Court said, is whether the scope of this duty extends to refraining from creating conditions wholly on a landowner’s property which may impair a traveler’s vision of oncoming traffic at an intersection. The Court ruled that the landowner does, but “that duty is limited to refraining from creating hazardous conditions that visit themselves upon the roadway. Where an activity is wholly contained on a landowner’s property, there is no duty to the traveling public.

The corn may have extended to the corners, but those corners remained on the Grossmans’ property. Thus, the Sheley family got nothing from the Grossmans.


Case of the Day – Monday, November 28, 2016


Greed may be good ... but it doesn't get a lot of love from the court.

Greed may be good … but it doesn’t get a lot of love from the court.

Gloria Lane was a down-on-her-luck middle-aged woman who lived with her disabled brother in an old house. Their place was next to a rental property, a house equally as old, owned by a corporate landlord, W.J. Curry & Sons. You see where this one is going? Hard cases can make bad law. And even where the result isn’t necessarily wrong – and we’re not hard-hearted enough to criticize people who were too poor to afford to fix the bathroom – cases are fact-driven.

We can imagine the scenario: a slumlord rolling in dough, too chary to keep the place up and too avaricious to pay damages inflicted on the impoverished neighbors. That, at least, is the innuendo. The Curry property included three large, healthy oak trees near the boundary with the Lane homestead. The trees are much taller than the either of the houses, and featured limbs that protruded over Gloria Lane’s house and caused manifold problems. First, the court said, she had to replace her roof 15 years before the lawsuit “because the overhanging branches did not allow the roof to ever dry, causing it to rot.” She complained that prior to replacing the roof, “[e]very roof and wall in [her] house had turned brown and the ceiling was just falling down. We would be in bed at nighttime and the ceiling would just fall down and hit the floor.”

In 1997, one of the oaks shed a large limb, which fell through the Lanes’ roof, attic, and kitchen ceiling. Rain then ruined her ceilings, floor, and the stove in her kitchen. The Lanes were physically unable to cut the limbs back that were hanging over the house, and they couldn’t afford to hire it done. For that matter, Gloria couldn’t even afford to fix the hole in her roof.

flush151015If that weren’t enough, the oaks’ roots clogged the Lane’s sewer line, causing severe plumbing problems. Gloria tried to chop the encroaching roots away from the sewer over the years, but they kept growing back and causing more plumbing problems. At the time of the lawsuit, she hadn’t been able to use her toilet, bathtub, or sink in two years because of the clogs. Instead, she went to the neighbors’ house (presumably not the Curry rental) to use the toilet. Meanwhile, raw sewage was bubbling into her bathtub, and the bathroom floor has had to be replaced because of toilet back-ups and water spills onto the floor.

Gloria told the trial court that “everything is all messed up. I can’t bathe. I can’t cook. I don’t want people coming to my house because it has odors in it, fleas, flies, bugs. It’s just been awful for me.” Ms. Lane, already under a psychiatrist’s care, said she “just can’t take too much more.”

After the branch punched a hole in her roof, Gloria asked the owner of W.J. Curry – one Judith Harris, who was neither W.J. nor any of his sons – to do something. She had a tree service trim the lower branches, but not the ones that would have been more expensive to reach. This didn’t solve the problems. When Gloria complained again, Ms. Harris told Gloria that she was on her own.

Now, boys and girls, these are hard facts. We aren’t dealing with the Schwalbachs, who were perfectly fit and reasonably flush, complaining about a few twigs and leaves to an underfunded cemetery association (read last Friday’s post). Here, we have a dramatis personae that includes, as protagonist, a pathos-inducing poor woman caring for an invalid, and as antagonist, a soulless corporation destroying her happy home, dropped limb by dropped limb by rotten roof by clogged sewer. And we’ve got some real damages, too. You try knocking on the neighbor’s door eight times a day and night to use the ‘loo, and see how you feel. Did the Massachusetts Rule have any chance of survival in the face of this heart-wrenching tale?

punch151015Of course not. The evil slumlord defendant (and we don’t know that to be true, but the story has a life of its own) argued that Tennessee followed the Massachusetts Rule. After all, it pointed out, Gloria was free to fire up her Husqvarna and clamber out onto her roof herself to cut down the offending limbs. Tennessee law firmly established that her remedies were limited to Massachusetts-style “self help.” That means Gloria should get nothing for the hole in her roof, nothing for her falling plaster, nothing for her waterlogged stove, and nothing for the sewage bubbling in her bathtub.

The trial court agreed with W.J. Curry. It held that while it was “certainly a serious situation that the plaintiff has not been able to use her bathroom for two years … these three trees are alive and living and they do what trees normally do. They produce branches and grow and they produce a root system. And even though you trim the branches back or you trim the roots back, they are going to produce more branches and more roots.” Spoken like a judge whose own toilet flushes just fine. The appellate court agreed, noting that the trees were not “noxious,” a quaint notion championed by Smith v. Holt (and since abandoned in Fancher v. Fagella).

The Tennessee Supreme Court reversed, adopting the Hawaii Rule, holding that living trees and plants are ordinarily not nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. When that happens, the Court said, the owner of the tree had some responsibility to clean up the mess. No doubt swayed by the extensive record of travail propounded by Ms. Lane, the Court held that W.J. Curry’s trees clearly satisfied the definition of a “private nuisance.” It sent the case back to the trial court for a remedy to be crafted, one that no doubt included money damages and probably an order that the landlord cut down the oversized trees.

Sure, Gloria ... get up there and trim those branches yourself.

Sure, Gloria … get up there and trim those branches yourself.

Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002). The long-suffering Gloria Lane sued W.J. Curry and Sons, Inc. a landlord owning a rental property next to her house. Over the years, her roof was damaged by branches overhanging from oaks growing on the Curry property, a branch fell, smashing into the home and causing extensive damage, and the root system substantially damaged her sewer system, rendering her home almost uninhabitable.

Gloria sued, asserting that encroaching branches and roots from the Curry trees constituted a nuisance for which she was entitled to seek damages. W.J. Curry responded that Ms. Lane’s sole remedy was Massachusetts Rule-style self-help, and she could not recover for any harm caused by the trees.

The trial court and Court of Appeals agreed with W.J. Curry and Sons, holding that an adjoining landowner’s only remedy in a case like this one was self-help, and that a nuisance action could not be brought to recover for harm caused by encroaching tree branches and roots.

Ms. Lane appealed top the Tennessee Supreme Court.

Held: Self-help is not an adjoining landowner’s sole remedy when tree branches and roots encroach. A nuisance action may be brought when the encroaching branches and roots damage the neighboring landowner’s property.

The Supreme Court held that although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.

Thumb's down to the Massachusetts Rule.

Thumb’s down to the Massachusetts Rule.

The Court engaged in a lengthy discussion of the various theories of liability adopted in various states, including the Massachusetts Rule, the Hawaii Rule, and the old, pre-Fancher Virginia Rule. The Court decided that the Hawaii Rule should be followed, because it “voices a rational and fair solution, permitting a landowner to grow and nurture trees and other plants on his land, balanced against the correlative duty of a landowner to ensure that the use of his property does not materially harm his neighbor,” while being “stringent enough to discourage trivial suits, but not so restrictive that it precludes a recovery where one is warranted.” The Court criticized the Massachusetts Rule, agreeing with the notion that limiting a plaintiff’s remedy to self-help encourages a “law of the jungle” mentality by replacing the law of orderly judicial process with the doctrine of “self-help.” Yet, the Court said, the Hawaii Rule was consistent with the principle of self-help Tennessee courts had previously enunciated.

The Court was careful to note that it was not altering existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property.