Case of the Day – Friday, March 6, 2020


The sun setting in the east?

The sun setting in the east?

Will Mark and Elizabeth Heil be having their neighbors Stewart and Christina Hines over to enjoy margaritas and the sun set over the ocean? Don’t bet on it for two reasons, neither of which is more likely than the other: First, the Heils and Hines are neighbors on beautiful Hilton Head Island, South Carolina, and thus, it’s physically impossible for them to watch the sun set in the east over the Atlantic. The second reason is that they’re pretty clearly NILOs (neighbors in location only). They may have homes next to each other, but there’s no love lost between them.

The Heils had a vacation home on the Island, next to a house owned by the Hines (who, being more frugal, perhaps, rented it out to tourists). One November, the Heils visited their Shangri-La, only to notice branches from one of the Hines’ healthy oak trees overhanging the house’s roof. They observed no roof damage, and saw nothing to suggest the tree was diseased or failing. Nevertheless, the Heils asked the Hines to do something about it.

The Hines were good neighbors, albeit thrifty ones. They asked the Heils to get some bids from tree services, and the Heils complied with bids in the thousands. The Hines found Sam’s Tree Service, a guy with no insurance, an undocumented worker (attention, President Trump!), and probably a beat-up truck, too, for all we know. But he was properly licensed, and had no record of complaints. More important for the Hines, Sam did the job for a mere $500.00.


Just a little hole…

Many months later, when the Heils next visited their house, they found a hole in the roof and water damage everywhere. Their insurance carrier denied coverage because inspectors determined that the Hines’ tree had rubbing against the roof, causing the hole. (That alone is worth a whole blog, but we’ll pass on that issue). The Heils demanded that the Hines and Sam pay for the damage, but both declined.

Sam said his climber performed the limb removal while he supervised from the ground, and never stood on the roof. Instead, he was suspended above the roof on a safety harness. The encroaching limbs were tied off, cut and lowered down to the ground. While performing the trimming, Sam’s man noticed only a dented shingle, nothing that would affect the roof’s integrity, so he did not pass on the information about the shingle.

The Heils, of course, sued. They fired a negligence blunderbuss at the Hines, saying they were negligent for not inspecting the tree, for hiring Sam, for paying so little to have the work done, and even for letting an undocumented worker do the trimming. The trial court found no evidence that the Hines had breached any duty to the Heils by failing to inspect and maintain their tree, and by negligently hired Sam’s Tree Service.

The court gave them short shrift, upholding the standard that homeowners have no duty to repair damage caused by their healthy trees of which they are not aware. The Hines hired a tree service within a month of being asked to do so, and no evidence explained why – let alone showed that – Sam’s low price, lack of insurance, or undocumented worker status led to the hole that the Heils found in their roof.

The real problem here was that the Heils, apparently unaware of the Massachusetts Rule or too chary to care, left it to well-meaning neighbors to remedy a problem that belonged to them. The Hines’ principal mistake was in not telling the Heils to pound sand to begin with, and to trim the branch themselves.

Sure, you say, but how about the Hawaii Rule? Fancher v. Fagella? To that we say, even if the Heils could have shown that the tree was a nuisance – which on verdant Hilton Head Island, where the vegetation grows prodigiously, might be a real stretch – the costs borne by both parties probably would have been less. The branch was healthy, the cost of remediation was slight, and the Heils are consenting adults who should look after the integrity of their own house.

broketable161117There’s an old legal aphorism that when your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on both the law and the facts, pound on the table.

The Heils broke the table.

Heil v. Hines, Case No. 2015-001988 (Court of Appeals of South Carolina, Nov. 9, 2016).  Mark and Elizabeth Heil had a vacation home on Hilton Head Island, next to a rental house owned by the Stewart and Christina Hines. One fall, the Heils observed branches from a healthy oak tree owned by the Hines overhanging their house roof. They saw no roof damage, and no disease or decay on the tree. The Heils asked the Hines to trim the tree.

At the Hines’ request, the Heils provided bids from tree services, but the Heils hired a local company, Sam’s Tree Service. Sam’s was licensed but not insured, and used a worker who was an illegal alien. Sam’s charged $500.00 to trim the tree.

The following spring, the Heils found substantial water damage in their home from a hole in the roof. Their insurance company denied them coverage, because inspectors found the damage was from a roof hole caused by the Hines’ tree.


   The blunderbuss – a crude but destructive weapon. Likewise, the blunderbuss complaint… Sam’s was negligent because its trimmer lacked a green card? Really?

The Heils sued, contending that the Hines were negligent for not inspecting the tree, for hiring Sam’s, who must have caused the damage and was too cheap, uninsured and an employer of illegals. The trial court granted summary judgment to the Hines, finding that the Heils had no evidence that the Hines had neglected their healthy tree, or that Sam’s removed the branch in a negligent manner.

The Heils, of course, appealed.

Held: The Court of Appeals ruled that the Heils “produced no evidence from which an inference could be made that [the Hines] breached their duty of care.” The Court held that to make out a claim for negligence, the Heils had to allege facts showed (1) a duty of care owed by the defendant; (2) a breach of the duty by a negligent act or omission; and (3) damage proximately caused by the breach.

Here, the Court said, the oak tree was a live, healthy tree, and the Heils – who didn’t see any roof damage themselves ¬– presented no evidence that the Hines “could have observed, by reasonable inspection, the damage possibly caused by the tree limb.” Note the word “possibly” – the plain fact was that the Heils had no evidence that the tree limb caused the hole, or even when the hole was formed.

What’s more, the Court said, when the Hines were notified the tree needed to be trimmed because it was encroaching on the Heils’ roof, the Hines hired Sam’s Tree Service and the work was completed within a month of notice. The Heils had no explanation – let alone evidence – for their claim that Sam’s Tree Service use of an undocumented worker and its low fee somehow constituted a breach of the Hines’ duty to the Heils.

The Heils had no proof that Sam’s Tree Service performed its work in a negligent way or that “another tree service company would have known or communicated that a single dented shingle was cause for structural concern – if the dented shingle was the cause of the damage.”

– Tom Root


Case of the Day – Thursday, March 5, 2020


Dogs have been man’s best friend for something over 10,000 years, but that doesn’t mean the law does not have a healthy respect for the mischief our canine brothers and sisters can cause. Usually the mischief results from a dog just being a dog. Occasionally, it’s tragic, like yesterday’s headline about a man shooting his neighbor over dog droppings. Common law was rather comme ci, comme ça about the hounds. The “one bite” rule ruled the day throughout the 19th century, holding that an owner or keeper of a dog would be held legally liable for damages caused by the animal only if it could be shown that the animal had a propensity to do something harmful which was unusual for the animal’s class (such as biting people, scratching them or knocking them down) and the owner or keeper knew about the dangerous propensity prior to the incident in question.

As society became more urban and orderly, a number of states imposed strict liability on dog owners. If Fido bit, you were hit. In so doing, states treated domestic animals the same as inherently dangerous situations for which res ipse loquitur applied.

Res ipse loquitur is a great doctrine. Meaning literally “the thing speaks for itself,” res ipse loquitur acknowledged that some conditions – like keeping a wild animal, storing explosives in a residence in town, or cutting down a tall tree in the middle of a neighborhood – were so inherently  dangerous (or “fraught,” in today’s overused vernacular) that any damage that resulted from the act was assumed to be the fault of the  person engaged in the act no matter how careful he or she was. Typically, res ipse loquitur requires a showing that the accident is of a kind that doesn’t normally occur unless someone has acted negligently; the evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and the type of negligence in question falls within the scope of the defendant’s duty to the plaintiff.

Dog bite laws are actually even worse for the owner than the classic res ipse loquitur situation. After all, you might get bitten only because you pulled a gun on the dog, or kicked the mutt, or something like that. No matter: strict liability says that the dog and his or her owner are at fault.

Today’s case is an excellent example of what usually happens. Latasha Maupin was squirrel hunting with her boyfriend out in the woods when she cut across Roland Tankersley’s land, on a path she had long used with the Tankersley clan’s permission.

The Tankersleys were cool with it, but their dogs were not. Latisha was badly mauled by a pack of Tankersley mutts.

A Samaritan motorcyclist riding on a nearby road saw the attack and dragged Latisha to safety. She recovered enough to sue Roland Tankersley, relying on state law. Roland said she had to prove he either knew Latisha would be cutting across his land or be aware that the mutts were dangerous. Latisha, taking the modern view, argued that Roland owned the dogs, and that was enough.

The jury found that Roland was the owner of the dogs, but he had had no idea Latisha would be near his dogs that day or that he had failed to exercise ordinary care to control his dogs for the safety of others. The core legal issue – whether strict liability was the state of the modern law – ended up in the Kentucky Supreme Court.

Maupin v. Tankersley, Case No. 2016-SC-000572-DG (Sup.Ct. Kentucky, Feb. 18, 2018). Latasha Maupin was squirrel hunting with her boyfriend on heavily wooded property owned by his family. She decided to go home early, and cut across Roland Tankersley’s 42-acre tract, using a path she and her family had used with permission for years. Near where the path met the road, a pack of Roland’s dogs attacked her, causing substantial injury. Latisha sued Roland for her injuries, relying on KRS 258.235(4).

The trial court, however, instructed the jury that Latisha had to show that Roland knew that Latisha was likely to be crossing his land and to come into contact with his dogs, or failed to exercise ordinary care to control his dogs for the safety of others. Latisha howled that this was wrong, and the mere fact that the dogs belong to Roland was enough to make him pay.

Latisha lost the appeal as well, but she was dogged in her determination. The case ended up at the Kentucky Supreme Court.

Held: The General Assembly’s intent in passing the dog bite statute was clear: to mandate that dog owners are strictly responsible for injuries caused by their dogs.

The statute simply held that “any owner whose dog is found to have caused damage to a person, livestock, or other property shall be responsible for that damage.” The Court interpreted the statute by giving its words “common and ordinary meaning, unless they are technical terms,” and it “liberally construe[s] our reading of a statute with the goal of achieving the legislative intent of the General Assembly regarding the statute’s purpose.” Here, the Court said, under the rules of statutory construction, “shall” is mandatory language and there is “no legal distinction between the words “liable” and “responsible.”

The Court observed that a major concern driving the General Assembly to adopt the dog bite law was the protection of livestock as well as people. The historical emphasis has been on the agrarian interest in the protection of farm animals.

But Latisha was not the only lucky dog in the case. While Roland was liable to her simply by dint of ownership, the Court said that Latisha’s comparative negligence “may be considered in measuring the damages awarded to her.” Kentucky’s comparative fault statute requires the trier of fact in “all tort actions” to “consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed” when determining the percentage of the total fault properly attributed to the parties.

Thus, the Court said, “it is appropriate for the jury, during the calculation of damages phase, to lessen the liable owner’s monetary responsibility for the victim’s injuries if the facts demonstrate that the victim’s own negligent or intentional acts contributed to the dog attack’s occurrence.” Citing the agrarian concerns that underlay the adoption of the law, the Court observed that “it would be incredulous to believe that the General Assembly intended for the owner of trespassing cattle, who break out of a neighboring pasture and enter the dog owner’s land, to be fully compensated for damages inflicted by the homestanding dog upon the intruding livestock.”

– Tom Root


Case of the Day – Wednesday, March 4, 2020


We’re not really sure what happened here, only what one neighbor said happened, and what the other denied. But that’s all right, because today’s case is not about who cut down whose trees, but instead whether an insurance company had to step into the dispute to defend Shelly Albert when neighbor Henri Baccouche said she done him wrong.

Henri said Shelly trespassed on his property, built a fence across some of his land, and severely damaged nine olive trees in the process. So his complaint was what we call trespass to trees. Shelly argued that she was obligated to trim the trees because of fire regulations, she had been trimming them for years without Henri complaining, and the trees were boundary trees anyway, so she had a right to trim them.

We all know what can happen when we lose a lawsuit. But the pain in the wallet begins way before that, with the cost of attorneys, experts, filing fees and litigation expenses. That’s a good reason for insurance. Shelley had some, a homeowner’s policy bought from Mid-Century Insurance Company (so named, perhaps, because the middle of the last century was the last time the company every paid a claim).

We’re just kidding, of course. Mid-Century couldn’t wait to start paying for lawyers and depositions and settlements and the like, all on Shelley’s behalf.

Wait. We’re kidding about that, too. Shelley notified Mid-Century as soon as she was sued. She demanded Mid-Century mount a defense for her, but Mid-C said, “no dice.” The insurance policy covered accidental occurrences, the Company said, and Shelley, by her own admission, had deliberately hacked up the olive trees.

Shelley was outraged. She fumed that Henri’s “entire complaint is false [and] outrageous… the trespass claim is ridiculous… in those boundary trees were enclosed by me, prior to any survey being done, based on a good faith belief that property encompassing the trees was mine… no intentional tort will lie” She contended Mid-Century’s decision to deny her claim was “clearly error.”

Shelley’s insurance policy covered her from injury due to accidents. Shelley’s problem, of course, was that she said the accident was that the trees might really by Henri’s and not shared, and that she and her guys might trimmed more than they were entitled to. But they did not mean to. Fact is, however, the “accident” had to be conduct, not its unintended result. If Shelley had run over the trees with a bulldozer while she was digging a hole for a pool, that would be an accident. But “accident” is like “intent” in trespass. You don’t have to intend to walk onto some else’s land. You just have to intend to step where you step. If that land belongs to someone else – whether you knew it or not – you’ve trespassed.

Shelley intended to prune the trees. It was no accident, whether she was right in her belief that she could do so or not. Thus, the insurance company could not possibly be liable, and it did not have to defend her.

So Shelley lost big (and spent a lot on legal fees) before ever squaring off against Henri. Lesson? It might make good reading some evening (when nothing good is streaming on Netflix) to read your homeowner’s insurance policy. Sometimes, it can be scarier than a slasher movie.

Albert v. Mid-Century Insurance Co., 236 Cal.App.4th 1281 (Ct.App. 2nd Dist., 2015). Shelley Albert had a homeowners insurance policy with Mid-Century Insurance Co., which covered “property damage resulting from an occurrence,” including paying the costs of defense “against any suit seeking damages covered under this section…” The policy defined an “occurrence” as “an accident, including exposure to conditions, which occurs during the policy period, and which results in… property damage… during the policy period,” but specifically excluded damages resulting from “an intentional act by or at the direction of the insured.”

Oh, what peace of mind Shelley must have had! At least until she was sued by her neighbor, Henri Baccouche, for damage Shelley was alleged to have caused to his property when she erected an encroaching fence, and pruned nine mature olive trees on his property. Shelley called on Mid-Century to provide a defense, but the insurance carrier refused, saying it was not liable under any stretch of the policy. Mid-Century said Henri’s “do not meet the definition of occurrence resulting in bodily injury or property damage as defined by your policy,” because protection against Henri’s claim was barred by the policy’s exemption for intentional acts.

Shelley sued Mid-Century, claiming breach of contract, and breach of the implied covenant of good faith and fair dealing. Defendant filed a motion for summary judgment. The trial court granted judgment to Mid-Century, holding that Shelley’s conduct in cutting Henri’s olive trees was intentionally undertaken, and there was no evidence whatsoever that the trees were injured in some accident.

Shelley appealed.

Held: Mid-Century had no duty to defend Shelley. The policy was quite clear that it covered property damage resulting from an “occurrence,” and an “occurrence” was an accident. “Accident” in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured, the Court said. An intentional act is not an “accident” within the plain meaning of the word.

The Court said that an accident “is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.” For example, if a driver intentionally speeds and, as a result, negligently hits another car, the speeding would be an intentional act. However, the act directly responsible for the injury hitting the other car was not intended by the driver and was fortuitous. Accordingly, the occurrence resulting in injury would be deemed an accident.

Shelley deliberately hired a contractor to trim the trees, but argued that the excessive cutting was not an intended consequence, and should be deemed an accident. Specifically, she maintains that the excessive cutting could have resulted from “miscalculation by the independent contractors, or it could have been as a result of a mishap with a motor vehicle… or truck… used in the tree trimming process, or by falling ladders, malfunctioning chainsaws or any number of other instrumentalities. All of these were possible ‘accidents’ causing the alleged excessive cutting.”

Nonsense, the Court said. “It is completely irrelevant that plaintiff did not intend to damage the trees, because she intended for them to be pruned. Moreover, it is undisputed that the contractor intended to cut the trees, and absolutely no facts exist, in the complaint or otherwise, indicating that some unforeseen accident (such as a slip of the chainsaw) caused the damage to the trees.” It was always Shelley’s position that the trees had not been damaged or pruned excessively (and therefore were not subject to an accident), and that they had been cut in accordance to the City’s brush clearance ordinance. The Court ruled that “an insured may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in which the third party claimant might amend its complaint at some future date.”

Even with the most charitable view of the underlying events, the Court said, the trimming of the trees was no accident.

– Tom Root


Case of the Day – Tuesday, March 3, 2020


Sounds like a Craigslist come-on, doesn’t it? But morals weren’t loose here, just one of the fittings on a swingset.

A little boy and his father were at a Salt Lake City park, where the boy was swinging on a “toddler swing.” He fell and hit his head on a concrete lip surrounding the swing.

His father sued the City for negligence — after all, he couldn’t get jurisdiction over Sir Isaac Newton to sue for negligent gravity — and the City raised as a defense the Utah Limitation of Landowner Liability-Public Recreation Act. That mouthful of an act is Utah’s recreational user statute, and was intended to encourage public and private owners to open unimproved parklands to the public without charge by protecting them from liability for natural conditions.

The trial court made short work of Dad’s lawsuit, holding that he was a non-paying user of the facilities and that the City thus owed his son no duty of care. But on appeal, the Utah Supreme Court reversed. The Supreme Court held that the City hadn’t opened the park in response to the legislature’s encouragement. Rather, the park was opened long before the recreational user statute passed. The governmental immunity act already permitted suing for a city for negligence because of conditions in the park.

The Utah Limitation of Landowner Liability-Public Recreation Act was not intended to apply to an improved city park already covered by other laws. Plus, the Utah Supreme Court said, despite the patchwork of decisions across the country as to what was improved and what was not improved land, it appeared that an improved city park — one that included a swingset apparatus like the kind on which the boy was injured — took the city park outside of the protections of the Utah recreational user statute.

An inherently dangerous undertaking?

An inherently dangerous undertaking?

This may seem to be a great win for a poor little kid with a concussion, but not much attention is paid to the losers. Those would be the taxpayers who fund the settlement that’s sure to follow, as well as everyone who will have one less place to go when the City – flummoxed by the confusing state of the law – finds it easier and cheaper just to close the parks.

De Baritault v. Salt Lake City Corp., 913 P.2d 743 (1996). Young Marc De Baritault was on the toddler swing at Laird Park is a city-owned park located in Salt Lake City. He fell and injured his head on a concrete ridge surrounding the play area.

His father sued on his behalf, arguing that City had designed, constructed and maintained the playground negligently. The City argued that because the boy was a recreational user of public lands held open without charge to the general public, the City had no duty toward him under the Utah Limitation of Landowner Liability-Public Recreation Act.

De Baritault argued the Act didn’t apply because its purpose was to encourage private landowners to open up their lands for public use. Although the Act was amended in 1987 to apply to both public and private landowners, De Baritault maintained the Act didn’t apply to Laird Park because the City had not opened the park in reliance upon the Act.

The trial court granted summary judgment on the grounds that Marc was a nonpaying recreational user of Laird Park, and that under the Act, Salt Lake City owed no duty of care to the boy. The court also concluded that there was no evidence of deliberate, malicious, or willful conduct by the City, which would have resulted in liability under section 57-14-6 of the Act.

De Baritault appealed.

Held: The Act did not protect the City. The Utah Supreme Court held that the Utah Limitation of Landowner Liability-Public Recreation Act did not apply to a small, improved city park, and thus, did not preclude Marc’s recovery for his injuries. The Court held that extending the Act’s application to improved city parks which, unlike many private wilderness lands, were not opened to the public in response to the Act, and which were already covered by other laws – such as the Governmental Immunity Act – would serve neither the legislative intent nor the purpose of the statute.

In Utah, courts that have focused on the nature of the land itself have found some combination of following characteristics must be present before immunity under the recreational use statute applies: the land must be (1) rural, (2) undeveloped, (3) appropriate for the type of activities listed in the statute, (4) open to the general public without charge, and (5) the type of land that would have been opened in response to the statute.

– Tom Root


Case of the Day – Monday, March 2, 2020


You’d think that with all of the murder, mayhem, opioids, election-diddiling and computer fraud, we’d have enough crime out there to satisfy the most hidebound law-and-order type (we’re talkin’ to you, William Pelham Barr). But no, we need even more criminal statutes to serve as a trap for the unwary.

Unwary folks like Mohammed Azmat of Franklin Township, New Jersey. There has to be a backstory of ill will here, but in honor of Sgt. Joe Friday, we’ll stick to the facts. Mohammed’s neighbor Tony Gaylord filed a complaint in court against Mo, alleging violation of Ordinance § 222.17 for failure to maintain the trees along their shared property line.

Not that! Not Ordinance § 222.17! Old ladies swooned. Town elders gasped. It was the Queen Mother, the local ordinance that required homeowners to maintain their trees “in a safe manner” or face the full wrath of the criminal law.

This is ridiculous. Lock a homeowner up for not trimming trees? And not keeping them “in a safe manner so they shall not create a hazard to the general public,” whatever that meant? Mo argued that the criminal statute was so vague as to not fairly inform those subject to it what was required. That, for those of you who were on senior “skip day” when your high school government class covered the topic, violates a citizen’s right to “due process of law” under the 5th and 14th Amendments.

But the Court didn’t buy it. It held that anyone who read the ordinance could tell that “all trees… [shall be] maintained in a safe manner so they shall not create a hazard to the general public” would inform the reader that a dying tree or one likely to fall had to be removed. That’s so, but just about every vague statute or ordinance clearly covers hazards on the far shore of reasonableness. Imagine a state law that punished people who weren’t nice. Obviously, punching a Brownie in the gut because you were on a diet and couldn’t eat cookies would break the law. But how about roaring into a parking place ahead of a grandmother in a Buick? Or walking past a homeless person with a thousand-yard stare? Or even just ducking around an aisle at the grocery store to avoid a talkative neighbor because you’re in a hurry?

Generally, the “void-for-vagueness” doctrine requires that a criminal statute define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. The legislature – or, here, the township government – is required to establish minimal guidelines to govern law enforcement. Without some kind of guidance, a criminal statute may permit what the Supreme Court once called “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.”

Such as letting a neighbor who has a bone to pick turn his complaint into a criminal case. We would never suggest that a guy with the Italian name decided to lay the leather to the guy with the Middle Eastern name who just happens to worship on Fridays at a mosque. But we will suggest that slippery criminal ordinances like this one are perfect bludgeons if you want to oppress someone for reasons having nothing to do with the putative issue.

The thing about vagueness is that it doesn’t really inform one of what is permitted and what is proscribed on the margins, where the differences may be slight. Some places really love statutes like that. But this is America.

Beyond the vagueness issue, of what social utility is an ordinance that uses loss of liberty to punish someone for not maintaining property? Fines, liability for foreseeable effects of sloth, or even having the municipality perform the maintenance and then billing the owner at a punitive rate, all work as well, and do not soak up municipal resources need more for those whose conduct pose a more clear and present danger to the public than a dead tree, or – for that matter – encourage people other than the complainant in this case (of whom we suspect nothing but pure motives) to pursue statutory mischief.

State of New Jersey v. Azmat, Case No. A-0296-14T3 (Super. Ct. N.J., June 13, 2016) 2016 N.J. Super. Unpub. LEXIS 1348, 2016 WL 3221907: Anthony Gaylord filed a complaint in the Franklin Township Municipal Court against his neighbor Mohammed Azmat, alleging violation of Ordinance § 222.17 for failure to maintain the trees along their shared property line. The ordinance provides: “The owner or tenant of any lands lying within the Township shall keep all trees… maintained in a safe manner so they shall not create a hazard to the general public…” Tony said trees on Azmat’s property had fallen onto his property, causing damage to his property and to power lines. Tony said he was afraid other trees that he deemed dangerous could fall in a windstorm, hurricane, or snow storm.

Tony and Mo could not agree on which trees should be removed, and at trial, the State of New Jersey presented testimony from Tony and its expert, Robert Wells, an International Society of Arboriculture certified master arborist. Tony generally bellyached about the “hazardous conditions” he claimed existed on Mo’s property. The expert identified two white Ash trees near Tony’s power lines which he opined were hazard trees that posed a “non-imminent threat” of “tree failure” and could possibly fall on the power lines. He also cited two of Mo’s Locust trees, leaning over power lines connected to Tony’s property, which he said were hazardous and should be cut down. Finally, he pointed out some dead limbs on a Sweet Gum and Red Oak tree, which extended over Tony’s power lines. The expert did admit that the trees he identified as hazardous had already survived Hurricane Irene in August 2011 and Hurricane Sandy in October 2012.

The municipal court found that “[c]ertain trees of defendant’s property pose a clear and present danger to complainant… his house and to utility lines that transverse both parties[‘] property.” He ordered Mo to cut down and remove the trees identified in the expert’s report within sixty days, or be fined or jailed. Mo appealed to the Law Division of the Municipal Court, which upheld the judge.

After that, Mo appealed to Superior Court, claiming the ordinance was unconstitutionally vague, and that even if it was not, there was not enough evidence to convict.

Held: The criminal ordinance was not unconstitutionally vague, and ample evidence supported Mo’s guilt. The Court said that for an ordinance to be vague, there had to be so little guidance “that an enforcement officer would not be able to point to objective facts that would lead a reasonable person to realize his or her conduct was a violation.” But here, the ordinance is specific; Ordinance § 222-17 plainly states that “all trees… [shall be] maintained in a safe manner so they shall not create a hazard to the general public.” Thus, the ordinance is clear “that a tree that is dying or likely to fall must be removed by its owner if it can cause a hazard to others.”

Mo also complained that the State’s expert had only visually inspected the trees from 12-15 feet away, not an acceptable methodology within the arboriculture profession. Mo argued that the fact that the “hazardous” trees did not fall during Hurricane Sandy, which occurred after the complaint was filed, showed that the expert’s opinion was unreliable and speculative. Finally, he pointed to some inconsistencies between the expert’s written report and his testimony.

The appellate court found no merit to Mo’s contention that the expert testimony was inadmissible net opinion. “The net opinion rule… forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data,'” the Court said. “Here, the expert based his opinion on more than 40 years of experience as a certified master arborist that, based upon his personal observations, certain trees on defendant’s property were hazardous and should be removed.” Mo never rebutted the methodology of citing dead and detached limbs to conclude that the trees were a threat to Tony’s power lines. “Further,” the Court held, “the cited inconsistencies between the expert’s report and his testimony do not cause us to take issue with the trial court’s reliance on his opinion to find that defendant violated the ordinance.”

– Tom Root


Case of the Day – Friday, February 28, 2020


The valentines are in the trash. That can only mean one thing: St. Patrick’s Day is right around the corner. We wandered into a Family Dollar the other morning for some pork rinds and red pop, only to be assaulted by not just shamrocks, but Easter bunnies, IRS forms and even Mother’s Day cards. Halloween is just around the corner.

We’ll launch our First Meteorological Day of Spring festivities (which falls on Sunday, two days hence) with some late-season Snows, appropriate in this case (because winter snow has finally begun here, with 5 inches on snow on the ground as I write this). But the Snows we consider today were a couple, one party in a convoluted adverse possession case. The surveyor started the problems in 1969 by taking the landowner’s word for it that a rock marked the corner of the 40-acre tract. It was the wrong marker by about 40 feet, and so everything he did from there was wrong, too. Garbage in, garbage out.

But no one knew about the error. The landowners used the faulty centerline to give an easement to neighbors, and the neighbors put a driveway on it. That was off center as well. To compound problems, there was a decrepit barbed wire fence off center from the off-center centerline that Mr. and Mrs. Snow — who had bought land a year after the faulty survey — believed to be the real centerline.

When the owner next to the Snows sold in the mid 1990s, he knew they claimed the 1.5 acres between the easement and the old fence as theirs, so he sold 8.5 of his 10 acres by warranty deed but the disputed land by quit-claim deed (which meant that the seller wouldn’t help out the buyer in any legal battle arising with the Snows).

And the battle inevitably came. The Snows argued the old fence enclosed the land, and they had exercised control over the disputed acreage by cutting a firebreak and harvesting cedar. But landowner Camp said the land was so densely wooded, no one could see what – if anything – that the Snows had done. The trial court held that the Snows hadn’t exercised continuous control over the land, and that the old fallen-down fence didn’t demark or enclose anything. And there was no evidence that Camp or his predecessor had acquiesced in the old fence being the boundary. If he had, he wouldn’t have conveyed the disputed area, even by quit-claim deed.

By the way, contrary to popular belief, the deed is not called a “quick claim” deed.

Snow v. Camp, 2007 Ark. App. LEXIS 631, 2007 WL 2782825 (Ark.App., 2007). When the Snows purchased a 40-acre tract in Baxter County in 1967, an old barbed-wire fence crossed the property. It seems that at the time the surveyor, John Ed Isbell, set the boundary between the Snows’ lands and that now owned by the Camps in 1969, he used a stone shown to him by the property owners as the corner of the 40 acres, and then goofed, laying out lines that were about 80 feet short of a true forty acres. Then, in 1970, the Snows, the purchasers of another tract, and the grantor signed a right-of-way easement agreement. The legal description for the 50-foot easement agreement used the 1969 survey’s centerline as the midpoint of the easement. The Snows built a 15-foot gravel driveway that was mostly within, but was not in the center of, the fifty-foot easement.

Twenty-five years later, the Williams bought the tract now owned by the Camps. During his 18 months of ownership, Williams learned that the Snows claimed the 1.5-acre portion lying south of the old fence line and north of their actual boundary line. When he sold 10 acres in 1997 to Camp, Williams knew there was an issue about the area, so he conveyed 8.5 acres north of the old fence by warranty deed and the 1.5-acre area at issue by quitclaim deed.

In May 2000, the Snows sued the Camps for adverse possession of the 1.5-acre tract and for an injunction preventing the Camps from interfering with the easement. They argued that the boundary line between the parties’ property was established along the fence line by acquiescence. As a result of the error in the survey on which the easement’s legal description was based, the Snows asked for reformation of the easement as they had actually used it.

It’s “public” with an “l”. Likewise, it’ “quitclaim” and not “quickclaim.”

At trial, Isbell admitted that his survey was wrong. Ramona McDonald, who was a party to the easement agreement, said that they had intended for the road to be in the middle of the easement. The Snows had exercised control of the 1.5-acre tract by cutting cedar up to the fence line and mowing for a firebreak. When they bought the property, the land was so heavily wooded that the area in question could only be accessed on foot. Williams said he had understood that he owned property north and south of the fence; that he maintained his yard to the fence line; and that on the other side of the fence were dense woods, which he was unaware had been mowed. He said that, once, when he had discovered some men hired by the Snows cutting sprouts close to the easement, he told them that it was his land. He said the fence was completely down on the ground for about twenty feet in at least two places, that it did not surround the Snows’ property and that no one kept animals on either side of the fence. He knew that the Snows claimed the land. He said that neither he nor the Snows had used the area, which he called “just a vacant, barren strip of woods.” Michael Camp admitted that Williams had informed him, after giving him the two separate deeds, that the Snows claimed the 1.5-acre tract. He said he had never considered the old fence to represent the boundary line.

barbwire151005The trial court ruled that the Snows failed to establish adverse possession of the area in dispute, which it found to be unenclosed, because they did not continuously occupy or use the property for more than seven years and they never excluded any record owner from it. The Snows appealed.

Held: The Snows didn’t prove their adverse possession. The Snows argued the trial court should have considered the significance of the surveyor’s incorrect centerline in deciding the claim for adverse possession, although the old fence line to which they claim adverse possession is considerably north of that Line. They argued they had shown control of the 1.5-acre tract since 1969 by clearing a fire break around and making repairs to the fence, cutting trees and bushes, harvesting rocks, mowing, parking equipment, and feeding forest animals there. But the appeals court held that due deference had to be given to the trial court’s superior position to determine the credibility of the witnesses, and the trial court had found some testimony more compelling than other.

In order to prove the common-law elements of adverse possession, the Snows had to show that they has been in possession of the property continuously for more than seven years and that their possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. It is ordinarily enough proof of adverse possession that a claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. For possession to be adverse, it must be hostile only in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the holder of title to the land.

There is every presumption that possession of land is subordinate to the holder of the legal title. The intention to hold adversely must be clear, distinct, and unequivocal. What’s more, the General Assembly added a requirement for adverse possession in 1995, that the claimant prove color of title and payment of taxes on the disputed property or a contiguous piece of land for seven years. Fencing the disputed area is an act of ownership evidencing adverse possession, and the fact that the fence may have deteriorated does not necessarily mean that the property is not enclosed. Instead, the question is whether the enclosure is sufficient to put the record title owner on notice that his land is held under an adverse claim of ownership. In this case, the Court ruled, the evidence easily supported the trial court’s decision. The Snows’ use of the disputed land was sporadic and inconsequential, and in no way exclusive.

The Court rejected the Snows’ argument that the parties acquiesced to the fence line as the boundary. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. A boundary line by acquiescence may be inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. All the Snows had here was a dispute, and no evidence of a tacit recognition by the Camps or their predecessors in title that the old fence line was the boundary.

– Tom Root


Case of the Day – Thursday, February 27, 2020


Perhaps we should use Mr. Peabody's Wayback Machine ...

Perhaps we should use Mr. Peabody’s Wayback Machine …

Travel back into time with us… back, back, back to July 10, 2019 when we solved the poor Mazda owner’s problem by determining that maybe, just maybe, his landlord was liable for injuries to the unhappy sport car enthusiast’s set of wheels. As in all cases, liability depends on the specific facts. That’s why there’s no substitute for a good local attorney.

While considering the RX-8 owner’s dilemma, we came across today’s case. A hospital was built back in the early 1970s. A landscape architect suggested sweetgum trees on the grounds. When the trees were planted, they seemed like a nice touch, an architectural exclamation point to the building. The sweetgum is a good-looking tree, but rather prolific in its production of sweetgum balls.

Times changed, more people were getting sick (what with coronavirus and all), and the hospital grew. So did the trees. When a parking garage was added in the 1980s, the designer told the hospital the trees should be removed because they dropped sweet gum balls that got everywhere and were a nuisance. The hospital refused.

Ten years later, a hospital visitor slipped on a sweet gum ball in the parking lot and fell, breaking her wrist. Lucky for her there was a hospital nearby. She didn’t feel lucky, however … rather, she felt aggrieved. She therefore sued the hospital for negligence. What else does an aggrieved person do?

The Court applied the reasonable care standard to the case, and found the hospital was negligent. Crucial to the decision was the fact that the parking lot designer had told the hospital years before that the trees were a nuisance, for the precise reason that led to Ms. Henderson’s injury. The hospital didn’t necessarily have to cut down the trees, the Court said, but it could have at least instituted a regular clean-up program to stay on top of the sweet-gum ball problem

Sweetgum's aborted seeds are rich in shikimic acid.Henderson v. St. Francis Community Hospital, 303 S.C. 177, 399 S.E.2d 767 (Sup.Ct. S.C. 1990). Ms. Henderson visited a friend who was a patient at St. Francis Hospital. As she was walking in the hospital parking lot to her car, she stepped on an accumulation of sweet gum balls, turned her foot and fell, breaking her wrist. The balls had fallen from a sweet gum tree planted in the parking lot. She fractured her wrist and sustained various bruises and abrasions.

The original parking lot of St. Francis was designed by CRS Sirrine, Inc. in 1969. The sweet gum trees were planted soon after that. In about 1982, Snoddy & McCulloch Associates, Inc. designed an addition to the parking lot, which had several levels or tiers. Snoddy & McCulloch recommended that the sweet gum trees be removed because they produced debris that would accumulate and become a nuisance. St. Francis refused to remove the trees, instead building a stairway next to one of them.

Sweetgum tree ... star of Fancher v. Fagella, making an encore appearance here.

   The sweetgum tree … star of Fancher v. Fagellamakes an encore appearance in the St. Francis parking lot.

Henderson sued St. Francis, Sirrine and Snoddy & McCulloch, alleging negligent maintenance and negligent design of the parking lot. The jury returned a verdict against St. Francis and Sirrine, but the trial court reversed the jury, entering judgment n.o.v. in favor of the the defendants. The Court of Appeals affirmed, and Ms. Henderson took the matter to the South Carolina Supreme Court.

Held: The Court reversed the judgment. It held that the Hospital was negligent, but not the parking lot designer or the landscape architects. The Court held that the evidence supported finding that the Hospital had been advised to remove sweet gum trees because the trees produced debris which created nuisance and maintenance problem. It didn’t, and thus was negligent in failing to provide reasonably safe conditions for its visitors and patients by not removing the trees or employing an adequate maintenance program. The Court said that although the operator of a parking lot is not an insurer of the safety of those who use it, it must nevertheless use reasonable care to keep the premises used by invitees in reasonably safe condition.

The idea is hardly novel – the New York court said it over a century ago in Gibson v. Denton – if you’re aware of the risk, you had better do something about it. Here, the Hospital had been warned that the trees required removal or regular care. Neither happened.

The degree of care to be exercised by a property owner must be commensurate with particular circumstances involved, including considerations like the age and capacity of the invitees who will be using the premises. For purposes of the measuring whether the Hospital discharged its duty, the “invitees” are the people who visit patients in the hospital and use the parking lot.

– Tom Root