Case of the Day – Wednesday, February 26, 2020

SMILE WHEN YOU SAY THAT

ralphie150930“I get slandered, libeled, I’ve heard words I never heard in the Bible …”

Oh, thank heaven for nosy and nasty neighbors. Because of them, we have a case today that started out as a tree problem, and ended up as a neighbor law problem.  And a dignatory tort, to boot. Forgive me, but I love this stuff.

Matters began between neighbors Joe Bouler and Linda McKeever Bullard when she claimed that he has trespassed on her land and cut down some trees. Things devolved from there. At one point, Joe was sure Linda was taking pictures of his wife – oh, the horror of it all! – and he complained to the cops. For good measure, he told the officer that Linda also had an anti-9/11 sign in the window.

The sign allegedly said, “9/11 F*** You.” Without the asterisks, of course. Pretty caustic stuff, huh?

If the report was something Joe made up in order to inflame the passions of the police officer, it fell short. It was hard for a police officer to be too fired up when he couldn’t really tell what the sign meant.

Not literally. The literal meaning of the Queen Mother word was clear enough. But not the context, a distinction that Ms. Bullard belatedly appreciated when she sued her big-mouthed neighbor for slandering her to the police by accusing her of posting such a scurrilous sign.

The court was puzzled, too. Did the sign indicate that Ms. Bullard was one of those conspiracy types? Maybe she figured America deserved to suffer 9/11. But maybe she meant to flip the bird (figuratively speaking) to Osama bin Laden. If so, she would hardly be the first person to use both the term “9/11” and the f-bomb together.

Now if Joe had said he'd seen any of these signs in Linda's window, the slander per se would probably have been complete.

Now if Joe had said he’d seen any of these signs in Linda’s window, the slander per se would probably have been complete.

That was a problem, the Court said. You can’t be slandered unless you’ve been damaged. Some slander is so bad that damages are presumed. That is called “slander per se” under Georgia law (a term fairly common among the states). But slander per se must meet a strict definition, and one element is that it must be clear without resorting to extrinsic facts.

The problem, the Court said, is that the “9/11 F*** you” sign wasn’t clearly pro-American, pro-Al Qaeda, pro-religious right, pro-wacko conspiracy, or pro-anything. Without more information, the sign didn’t suggest what — if anything — Ms. Bullard believed or was trying to convey. And because that information wasn’t a part of the sign she had allegedly put up, she had no case against her neighbor.

Bullard v. Bouler, 286 Ga.App. 218, 649 S.E.2d 311 (Ga.App. 2007). Linda McKeever Bullard and her neighbor, Joe Bouler, had quarreled previously in a trespass action in which she claimed Joe had caused trees to be cut down on her land. Bullard took pictures of the trees that had been cut down as evidence for the trespass suit.

SlanderShortly thereafter, a Fulton County Police officer came to her door and asked to speak to her. The officer said Bouler had complained that she was taking pictures of Bouler’s wife in the Bouler’s backyard, and that he also had said Bullard had been posting signs in her window that said, “9/11, F- – – You.” Bullard testified that the police officer reported these allegations “with a look of utter contempt.” Bullard vehemently denied she had posted such signs.

The police officer confirmed that Bouler had made the allegation about the signs, and that she had denied it. Bullard sued, alleging that Bouler’s statement damaged her by accusing her “of a debasing act that may exclude her from all of American society,” an allegation which tracked OCGA §51-5-4(a)(2).

Following discovery, the trial court granted Bouler’s motion for summary judgment. It held that the words spoken were not slanderous because they were “an expression of pure opinion, which is neither provable as true nor as false.”

Bullard appealed.

Held: The allegation Bouler made to the policeman was not slander. Bullard alleged a claim of slander or oral defamation under OCGA §51-5-4(a)(2), which defines one form of defamation as “charging a person … with being guilty of some debasing act which may exclude him from society.” For this form of defamation, damage is inferred, making this type of slander “slander per se.” In other words, malice is inferred from the character of the charge. In order to constitute slander per se, the words must be injurious on their face, extrinsic facts may not be considered, and the court may not rely on innuendo.

innuendo150930When words are defamatory per se, innuendo — which merely explains ambiguity where the precise meaning of terms used in the allegedly slanderous statement may require elucidation — is not needed. Here, the Court said, any slanderous meaning applicable to Bullard from a statement that she had posted a sign with the words “9-11 F— You” is not apparent in the plain meaning of Bouler’s statement. At most, the Court said, Bouler’s words mean that Linda Bullard was the type of person who would say to the public, “Nine-eleven, F— You.” But what the sign meant was ambiguous.

Bullard thought it meant Bouler was saying that she was the type of person who would disparage America’s loss on September 11, 2001 and that Bouler intended to inflame the police officer, a “first responder,” who might have taken offense at that thought. If that was what the words meant, Bouler’s words might very well constitute slander. But, the Court said, the words do not constitute slander per se here because what they really mean is not apparent from the plain meaning of the words.

In order to find the meaning, the viewer would have to rely on some extrinsic fact, and that takes the words out of the “slander per se” category.

– Tom Root
TNLBGray140407

Case of the Day – Tuesday, February 25, 2020

THINGS ARE SELDOM WHAT THEY SEEM

Buttercup:        Things are seldom what they seem,
                                Skim milk masquerades as cream;
                           Highlows pass as patent leathers;
                                Jackdaws strut in peacock’s feathers.

Captain:           Very true,
                                So they do.

Things are Seldom What They Seem
(duet with Buttercup and Capt. Corcoran)
Gilbert & Sullivan, H.M.S. Pinafore

Pinafore140317So property rights are as dry as toast? Well, maybe, depending on whether it’s your ox that’s getting gored. Consider Marvin Brandt. This hard-working son of a hard-working lumberman is a Wyoming rancher. His father, who started in the 1930s as a lowly sawmill worker, ended up owning the place. Marvin worked at his Dad’s mill as a youth, and he ended up running the mill himself.

The year of our Lord 1976 was an important year. It was the America’s Bicentennial. Marvin bought the sawmill from his father. Congress repealed the General Railroad Right-of-Way Act of 1875. And Marvin bought a nice chunk of land for his sawmill – not to mention plenty of standing timber – from the U.S. Forest Service. He obtained it through a procedure known as a land patent, in which the Government deeds its rights in land to private property holders.

It was a pretty good deal, sold to Marvin without many restrictions. There was an easement for the Laramie, Hahn’s Peak and Pacific Railroad, but that wasn’t much of a problem for him. Easements weren’t such an impediment, he thought. But then, things are seldom what they seem…

Buttercup:    Black sheep dwell in every fold;
                        All that glitters is not gold;
                     Storks turn out to be but logs;
                        Bulls are but inflated frogs.

Captain:     So they be,
                        Frequentlee.

The Union Pacific had tracks running through the property that Marvin bought. He wasn’t alone in this: some 30 other people bought Government land subject to the UP’s railroad right-of-way. The right of way originally was obtained by LHP&P in 1908, pursuant to the 1875 Act. The 200-foot wide right of way meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border.

After the railroad line was abandoned, the Government claimed that the land underlying the old track bed had reverted to Uncle Sam. The Washington bureaucrats had plans to turn the route into a hiking trail. When the Government sued to quiet title on the right-of-way, it named all 31 landowners as defendants. None of them owned more than 3 acres affected by the right-of-way, and none of them mounted a defense. They all threw up their hands, folded quietly, and let the U.S. of A. have its way.

Except Marvin.

Marvin may be one of your rugged Wyoming individualists. He may be ornery. But one thing was for sure – unlike the others, Marvin had over 85 acres affected by the old roadbed. Nearly a half-mile stretch of the right of way crossed Marvin’s land, covering ten acres of his parcel and affected 75 more. In other words, this wasn’t chump change.

The Government, as administrations of either political party are wont to do, tried to steamroll Marvin. The Feds claimed that the LHP&P had owned the land under its rails, subject only to a reversionary interest in the Government if it ever abandoned the line. Therefore, Uncle Sam claimed, when the tracks came out, ownership of the property reverted to the U.S. Forest Service.

The District Court agreed that the 1875 Act and the land patent were not models of clarity, but the Government won anyway. The Court of Appeals reversed. The Government, seeing its Golden Goose about to be slaughtered, appealed to the Supreme Court.

The Supremes, by a resounding 8-1 decision, held that “things are seldom what they seem.” The right-of-way granted to the railroad might seem like a transfer of the land in fee simple, subject only to being returned to the Government if the rail line was abandoned. But it really was only an easement, meaning that the land patent to Marvin had transferred all of the ownership to him, subject only to the easement. When the easement vanished, the land was all his.

Marvin stood to lose a big chunk of land to the Government.

Marvin stood to lose a big chunk of land – a 200′ wide strip along the north-south road on the west side of his property – to the Government.

The Government’s insurmountable hurdle was its own cuteness. Back in the 1920s, the railroad had planned to drill for oil along the right-of-way (remember Teapot Dome?). The Government had opposed it, claiming that it owned the oil. The railroad, Uncle Sam claimed, only owned an easement. The land (and the wealth under it) belonged to the Feds. The case ended up in the Supreme Court, where the Government won.

But now, the Government argued that things aren’t what they seem to be, and – for that matter – what they seemed to be back in 1942. The Forest Service never owned the land under the railroad when it gave Marvin the land patent. Instead, the railroad did, and the Government didn’t get it back until well after it had sold the rest to Marvin. The 1942 decision must be wrong, to the extent it applied to anything other than oil rights. Thus, the railroad right-of-way reverted to the U.S. Forest Service in 1988, 12 years after the rest of the land was sold to Marvin.

The Supreme Court was not amused. Applying the ancient legal principle that “you dance with the one that brung ya,” the Justices ruled that the Government persuaded the Court in 1942 that the railroad right-of-way was just an easement, and it wasn’t going let the Government change its position now just because it suited it to do so. Alas, the Justice Department (and this is a fault that has belonged to predecessor administrations, Republican or Democrat) all too often has no compunction about changing its arguments for convenience when it should adhere to them for principle. This time, it didn’t work.

Only Justice Sonia Sotomayor dissented, in an opinion that seemed peculiarly strained. Anxious to serve the back-to-nature folks who enjoyed Federally-funded hiking and biking trails, she argued that the 1942 case was only about subsurface rights – which seems to us to be a distinction without a difference – and, anyway, the Brandt decision would hurt the rails-to-trails movement and result in a lot of litigation as private landholders sought to get what was rightfully theirs. This may be so, but cost and inconvenience shouldn’t drive Supreme Court opinions. The law should.

So the right-of-way that the Government once said was an easement but now seemed be something else, really was just an easement … as it had been all along.

Buttercup:    Drops the wind and stops the mill;
                        Turbot is ambitious brill;
                    Gild the farthing if you will,
                        Yet it is a farthing still.

Captain:     Yes, I know.
                        That is so.


Marvin M. Brandt Revocable Trust v. United States
, ___ U.S. ___, 134 S.Ct. 48, 186 L.Ed.2d 962 (2014): The General Railroad Right-of-Way Act of 1875 provides railroad companies “right[s] of way through the public lands of the United States,” 43 U.S.C. § 934. One such right of way, created in 1908, crosses land that the Government conveyed to the Brandt family in a 1976 land patent. That patent stated that the land was granted subject to the right of way, but it did not specify what would occur if the railroad relinquished those rights.

Little Buttercup was right - things are seldom what they seem ...

Little Buttercup was right – things are seldom what they seem …

A successor railroad abandoned the right of way with federal approval. The Government sought a declaration of abandonment and an order quieting its title to the abandoned right of way, including the stretch across the Brandt patent. Brandt argued that the right of way was a mere easement that was extinguished upon abandonment.

The district court quieted title in the government. The Tenth Circuit affirmed.

The Supreme Court reversed.

It held that right of way was an easement that was terminated by abandonment, leaving Brandt’s land unburdened. The Court noted that in the 1942 Supreme Court decision in Great Northern R. Co. v. United States,  the Government had argued a position – that the right-of-way was an easement, not a grant of ownership in fee simple subject to a reversionary interest – which was exactly opposite to its position in this case. In Great Northern R. Co. v. United States, the Court found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest.

Thingsareseldom140317Now, the Government was asking the Court to limit Great Northern’s characterization of 1875 Act rights-of-way as easements to the question of who owns the oil and minerals beneath a right of way. But nothing in the 1875 Act’s text supports that reading, and the Government’s argument directly contravenes the very premise of Great Northern: that the 1875 Act granted a fundamentally different interest than did its predecessor statutes. Nor do the Court’s decisions in other cases support the Government’s position, and – to the extent that they could be read that way – the Court said clearly that any such implication did not survive its unequivocal statement to the contrary in Great Northern. Later enacted statutes, such 43 U.S.C. §§ 912 and 940, and 16 U.S.C. § 1248(c), do not define or shed light on the nature of the interest Congress granted to railroads in their rights-of-way in 1875. Instead, those statutes purport only to dispose of interests the United States already possesses.

The land patent Marvin Brandt obtained in 1976 included ownership of the land under the railroad company easement. When that easement was abandoned, Mr. Brandt obtained the exclusive right of possession to the land he already owned.

– Tom Root
TNLBGray140407

Case of the Day – Monday, February 24, 2020

THE GRASSHOPPER AND THE ANT

grasshopper140314Perhaps the problem with America these days is that too many people want something for nothing. President Trump still wants a wall. Bernie Sanders wants to give all Americans free medical care for $30 trillion. And we all want the people we disagree with – and face it, they’re all wrong – to shut the hell up.

Here’s a Vermont case about someone else who wanted something for nothing, a modern take on the grasshopper and the ant. About 50 years ago, the brothers Stanley partnered up to buy some woodland. But only industrious brother George, a busy little worker ant, ponied up the cash for the place, paid the taxes, paid the rent, and managed the affairs of the woodland. Grasshopper John was too busy doing whatever grasshoppers do.

After about 45 years of this, ant George started getting tired of grasshopper John never paying his fair share. Ant George was out a lot of investment, and he decided it was time to pay it back. So he sold the timber on the land for about $46,000.

Suddenly, grasshopper John was very interested in the goings-on, and he sued ant George. But he didn’t just want half of the proceeds. Surely that would be unfair. Instead grasshopper John hires three wise old owls as expert witnesses, and they opine that the timber was really worth anywhere from $60,000 to $80,000. Plus, he retained the services of a foxy old lawyer, who told him he could get treble damages for ant George’s wrongful cutting of the timber (plus a legal fee for the fox).

foxylawyer140314The trial court suspected that John was more snake than grasshopper, but it nevertheless didn’t have much choice but award him half the value of the timber. The court selected the lowest of the various estimates given by the several owls who testified as experts, still awarding the grasshopper one half of the $61,785 value of the timber. The court refused treble damages.

The grasshopper was furious! He had been denied what was fair, namely all of it! He wanted the timber valued at $80,000, with his one-half share trebled to $120,000. Fortunately, the wise Supreme Court upheld the trial court, finding that treble damages for wrongful cutting don’t apply where one owner of the land — even if he’s an industrious ant — gives permission. Still, the ant lost $31,000 of his $46,000 to his brother, the grasshopper, whose investment had never amounted to a farthing.

grasshopperb140314The moral, boys and girls, is that a slothful existence and a good lawyer beats hard work and careful investment any day.

Stanley v. Stanley, 928 A.2d 1194 (Sup.Ct. Vt., 2007). Some 50 years ago, brothers John and George Stanley bought a perpetual lease of a 100 acre wooded lot in Victory, Vermont. Defendant George paid the entire purchase price, but the brothers owned the lot as tenants-in-common. From the beginning of their ownership, George paid the annual rent as well as property taxes when they were assessed.

In 1965, he received money from Portland Pipe Company for the right to lay pipe across the property. In the spring of 2002, he hired a logging contractor to harvest and sell the trees from the lot. The logging operations were completed that summer. George didn’t discuss the logging operation with plaintiff John until after it was completed. George figured that “since he had been paying all the expenses relating to the property, he should be able to make the decisions relating to the land.” George got $45,803.32 for the timber removed from the lot. When John learned that timber was being cut, he took pictures of the operation and tried to reach George — who had neither an iPhone nor broadband — without success.

John didn’t try to stop the logging, but after it was over, he sued his brother, seeking an accounting, partition, treble damages under 13 V.S.A. §3606, costs of the action and attorney’s fees. While he couldn’t afford to share the expense of the land with his brother, John apparently found his checkbook when it came time to hire expert witnesses. He presented testimony from three experts on the value of the timber cut. Thomas Hahn, a private consulting forester, presented two different methods of determining the value of the timber cut from the property, the prevailing market price of a unit of wood in the summer of 2002 based on trade publications (using which he concluded that the value of the timber was $61,785.79), and the “timber cruising” or “sampling” method that would support a finding that the fair market value of the timber was $82,000. Stanley Robinson reviewed the logging contractor’s summary of mill slips and trip tickets, and Alan Bouthelier on his observations from visiting the property prior to the logging. The testimony of these two experts supported a finding that the fair market value of the timber cut was approximately $80,000.

woodpile140314The trial court refused to rely on Hahn’s “sampling” method, dismissing it as too speculative. Instead, it found that the fair market value of the timber cut was $61,785.79, and that plaintiff was entitled to half of this amount. It also ruled that the treble damage statute does not apply to actions between tenants-in-common for the sale of common property, and granted a request for partition. Following the hearing, George gave John $22,901.66, half of what he had been paid for the timber.

None of this was good enough for the rapacious John. So he appealed.

Held: The trial court was affirmed. The Supreme Court held that Vermont’s timber trespass statute — which reads in part that if a person cuts down trees belonging to another person “without leave from the owner,” the injured party can recover treble damages — is plain and unambiguous. The Court said that the statute’s language presupposed that the injured party had ownership rights to the exclusion of the party from whom treble damages are being sought.

The statute is a punitive one, intending to deter intentional trespass and wrongful taking of another’s timber. Because George had an undivided ownership interest in the trees at the time of the logging, the treble damages statute simply does not apply. He simply was not among the intended targets of the statute, those “‘tree pirates’ and ‘arboreal rustlers’ who trespass on another’s property and remove timber to which they have no right.”

John also argued that the trial court erred when it held that the “timber cruising” or “sampling” method of determining the quality and quantity was too speculative. The Supreme Court held that because the trial court, after evaluating several different methods, relied on testimony of the expert as to one of the methods to determine the fair market value of the timber cut and sold, the Supreme Court would not second-guess it on whether it could have used an alternative method.

– Tom Root
TNLBGray140407

Case of the Day – Friday, February 21, 2020

NO GOOD DEED…

Regular readers of treeandneighborlawblog.com know that many benefits usually flow to Harry and Harriet Homeowner from hiring an independent contractor to remove a tree. Primary among those advantages is that if (or maybe “when”) things go south on you – such as the tree falls on somebody’s house or a tree service employee takes a header from 100 feet up – you, the homeowner, aren’t liable.

Alas, this isn’t always true. If Harry and Harriet have superior knowledge of the particular latent danger which causes an injury to the contractor, they may be liable. Likewise, if Harry can’t keep his nose out of things, and starts participating in the tree removal, he may be liable for injuries resulting from injecting himself into the contractor’s work. Generally (and reasonably), however, the law protects people who hire the experts and then leave them alone to do their jobs.

So what was Tony Cox’s problem? First, he was a tightwad, not wanting to drop a grand on removing a hazardous tree. So instead hiring the experts, he decided to cut it down himself. After all, he had a saw and gravity to assist him. What could go wrong?

Then, there was Tony’s acrophobia. To solve this problem, he recruited his neighbor Dick Strayer. Dick wasn’t afraid of heights. He climbed radio towers for a living (usually using a safety rig that attached to the towers). Plus, he cut down trees on the side.

Hey, Dick, Oscar Wilde (or maybe Clare Booth Luce, who knows for sure?) said no good deed goes unpunished. What do you suppose he meant by that?

Dick and Tony began cutting. Dick was in the tree, because Tony, as we mentioned, was afraid of heights. Dick was sawing away on a limb when something happened. No one really saw the accident, but everyone saw Dick, as well as the decayed limb he had been sawing, on the ground.

Of course, a lawsuit ensued, because otherwise we would not be writing about this tragedy-in-a-teapot to begin with. Dick claimed Tony was liable for his injuries because Tony did not tell him the limb was rotten, and Tony was actively participating in the tree-removal job. Lucky for Tony, the court was convinced that Dick’s tree experience and his position astraddle the rotten branch made the hazard open and obvious to Dick. What’s more, the court held, Tony did not owe Dick any duty under the participation exception to a property owner’s general lack of duty to an independent contractor, because while Tony was on the crew, he did not “actively participate” by directing the activity that resulted in Dick’s injury.

Strayer v. Cox, 38 N.E.3d 1162 (Ohio Ct.App. Miami Co., 2015). Richard Strayer was injured while attempting to cut down a tree located on the property owned by his neighbor, Anthony Cox. Dick Strayer had some qualifications for the job: he been involved in various types of residential and commercial construction, and had been employed climbing cell phone towers. Prior to the accident, he had climbed trees 20 to 25 times to cut them down.

At some point, Tony decided that he wanted to remove a 25’ tall tree in his front yard. Tony presumed it was dead, and he balked at the $1,000 estimate from tree services to remove the tree. So he told Dick he wanted to take the tree down, and asked Dick to help because he was afraid of heights.

Dick first inspected the tree, and thought it looked “okay,” although he later admitted no one short of a tree expert could have told that any of the branches were rotting, and Tony would have had no way to determine if there was rotting or damage to any of the limbs.

At one point, Dick’s feet were on the base of the tree (where a branch met the trunk), and he was standing in the middle of a series of big limbs about 12 feet up. Dick began cutting a branch with his chainsaw. The next thing he knew, he had fallen to the ground, riding the rotted-out branch all the way down. As a result of the fall, Dick hurt his left ankle, which required surgery.

Dick sued, but the trial court granted summary judgment for Tony and his insurance carrier. Dick appealed.

Held: Dick’s lawsuit was thrown out. The appellate court ruled that  the trial court did not err in rendering summary judgment in Tony’s favor. The court held that the undisputed facts showed Tony had no duty to protect Dick from an open and obvious hazard on Tony’s property. Furthermore, Tony did not owe Dick any duty under an exception to a property owner’s general lack of duty to an employee of an independent contractor. Tony did not “actively participate” as required for application of this exception by directing the activity that resulted in Dick’s injury, by giving or denying permission for the critical acts that led to Dick’s injury, or by exercising sole exclusive control over a critical variable in the working environment.

The Court said, “It is fundamental that in order to establish a cause of action for negligence the plaintiff must show the existence of a duty, a breach of that duty, and an injury proximately resulting therefrom. The status of the person who enters upon the land of another ( i.e., trespasser, licensee, or invitee) defines the scope of the legal duty that the landowner owes the entrant.” Here, Dick was an invitee, someone who rightfully came onto Tony’s property by invitation, express or implied, for a purpose beneficial to Tony, to wit, the removal of the tree.

An owner owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that invitees are not unnecessarily and unreasonably exposed to danger. However, the Court observed, the owner does not act as an insurer of an invitee’s safety and owes no duty to protect invitees from open and obvious dangers on the property. Open and obvious hazards are those hazards that are neither hidden nor concealed from view and are discoverable by ordinary inspection. The question is always whether an invitee exercising ordinary care under the circumstances would have seen and been able to guard himself against the condition.

“Liability only attaches when an owner has ‘superior knowledge of the particular danger which caused the injury’,” the Court wrote, “as an ‘invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate’. The open and obvious doctrine is determinative of the threshold issue, the landowner’s duty. In the absence of duty, there is no negligence to compare.”

Dick was barred from recovery because the deteriorating tree was an open and obvious hazard that he freely ascended. He was in a better position to assess the safety of standing on the branch. Naturally, the Court held, Tony had no duty to warn Dick about dangers of which Tony was unaware, such as that the limb Dick was cutting was deteriorating from the inside, decay that was not observable from the outside. In addition, the court observed that Dick had significant experience with cutting trees and that the risk of encountering deteriorating branches was open and obvious.

Dick also argued that Tony should have contacted a certified arborist prior to removal to conduct a risk assessment of the tree. He claimed Tony’s failure to have a risk assessment conducted violated American National Standards Institute (ANSI) sections Z133 and A300, part 1 and 9, which require that any tree being worked on “undergo a tree risk assessment for tree worker safety.” But the court ruled that homeowners like Tony are not subject to the requirements of ANSI, even if the standards were not voluntary to begin with (which they are).

Even if the ANSI standards were somehow to apply to a Harry-Homeowner-tree-removal job, the court ruled, “Ohio courts have held that summary judgment may be granted in cases where building code violations are open and obvious ‘because the open-and-obvious nature of the defect obviates the premises owner’s duty to warn.” The hazard of climbing on the tree limb in a tree with dead branches was open and obvious.

Finally, Tony’s participation on the job did not make him liable to Dick. One who engages the services of an independent contractor, and who actually participates in the job operation performed by such contractor and thereby fails to eliminate a hazard which he, in the exercise of ordinary care, could have eliminated, can be held responsible for the injury or death of an employee of the independent contractor. Here, testimony of the parties indicated that if anyone directed the activities that day, it would have been Dick, who was the individual experienced in cutting down trees and using chain saws. The record was devoid of any indication that Tony directed Dick to do anything on the day of the accident, or even that Tony had any prior experience with chain saws or with cutting down trees.

Dick “directed the activity which resulted in the injury or gave or denied permission for the critical acts that led to the… injury.” The cause of Dick’s injury, in his own words, was that the limb on which he stood fell, taking him down with it, because the limb “was rotted.” Tony had no role in the injury, and thus no liability.

– Tom Root

TNLBGray

Case of the Day – Thursday, February 20, 2020

THE ODD COUPLE

odd150925What is it with some neighbors? These folks — an “odd couple” of neighbors if ever there were such — lived next to each other in a pretty good Iowa City neighborhood for over 20 years. And they were always at each other’s throats.

Ironically, it was the Felix Ungar neighbors who were the victims. Apparently the Oscar Madisons were unhappy with two trees that stood entirely in the Felix property, but had branches overhanging the Oscars. So what, you wonder, and for good reason. The Oscar property was such a mess that a couple leaves and twigs hardly mattered. However, all of you loyal readers know the answer: under the Massachusetts rule, the Oscars can trim the trees’ branches back to their property line. In fact, borrowing from Virginia and Hawaii, maybe the Oscars could sue the Felixes, alleging that the trees were a nuisance.

Nothing that subtle for our heroes. Instead, the Oscars came onto the Felix property and simply cut the trees down. There. That settled that!

Well, not really.

The Felixes sued. The trial court was clearly appalled at the brazenness of the Oscars. It observed with some amazement that in order to cut down the trees, the Oscars “had to intentionally trespass on [Felixes’] property to cut down the trees and that is exactly what they did.”

The Court rendered its opinion accordingly. What the Oscars did was a trespass, pure and simple, and the damages in a trespass are the costs to restore the property. Those costs were the cost to replant trees about as mature as the two 50-foot tall trees that were removed. On top of that, the Court imposed treble damages under Iowa Statute 658.4 for “willfully injuring any timber, tree, or shrub on the land of another.” The Court held it applied because the Oscars “willfully trespassed” in order to cut down the trees.

They're after your trees ...

They’re after your trees …

We don’t want to be critical, because the Oscars clearly were bad actors here and deserved what befell them. However, courts need to be careful not to get out in front of their statutes. The trial court, in its ire, focused on the wrong “willfully.” Treble damages applied when the Oscars “willfully injured” the trees, not when they “willfully” trespassed. Under the court’s mangled standard, the treble damage statute would have applied if the Oscars willfully sneaked onto the Felixes’ property to smash a jack-o-lantern, but accidentally trampled on Mrs. Felix’s prize rose bushes in their haste to run home. It’s not the willful trespass, it’s the willful chainsaw that matters.

Luckily for the Felixes, the error made no difference. Any way you apply the “willfully” here, the Oscars are liable. They willfully trespassed, willfully fired up their chainsaws, and willfully undertook arboreal mayhem. Game, set, match.

Wunder v. Jorgensen, Not Reported in N.W.2d, 2004 WL 3569694 (Iowa Dist., 2004) (unpublished). The Wunders and the Jorgensens lived next to each other in a wooded neighborhood on Iowa City’s west side for over 20 years. During this period, their relationship was acrimonious, with the Wunders continually upset about the debris, both natural and manufactured, which the Jorgensens allowed to build up on or over their common boundary. Among other complaints, the Wunders complained that the Jorgensens erected a lean-to next to an outbuilding, essentially on the property line, which the Jorgensens used to keep garden tools.

pos150925Two trees stood on the Wunders’ property, scotch pines or Canadian hemlocks, with branches that extended over the Jorgensen property. The Jorgensens knew the trees were on Wunders’ lot because they had built the lean-to roof around one of the trees. The trees disappeared one day, setting the Wunders to wondering. Suspecting the Jorgensens, the Wunders sued. And small wonder.

Held: The Jorgensens were liable. The Court found that the Jorgensens had knowingly and willfully cut down two mature trees which they knew to be on Wunders’ property. The Court found the conduct to be inexcusable, noting that the “Jorgensens had to intentionally trespass on Wunders’ property to cut down the trees and that is exactly what they did.”

The Court found that the replacement cost for the trees was $4,061.40. The measure of damages for trespass is replacement cost, and treble damages — awarded if trees are willfully cut down on another’s property — apply in this case, the Court said, because, Jorgensen willfully trespassed on Wunders’ property to cut down the Wunders’ trees.

The Court threw in an observation for the Jorgensens: if trees are replanted, the Jorgensens ought to be informed that the general rule is that an adjoining landowner may cut off growth which intrudes on his or her property … but not more.

– Tom RootTNLBGray

Case of the Day – Wednesday, February 19, 2020

A DEFENDANT MUST BE FOUND

Almost 15 years ago, my daughter Leslie – fresh out of college – was spending a year in Vladivostok, Russia, on a Fulbright Fellowship. Along with learning to play the balalaika and sampling dozens of varieties of vodka, she learned that your average Russian is a lot like your average American.

One evening, she and a friend were crossing the street at an intersection when a young Russian couple, in a hurry to pick up their son from daycare, were in a car waiting impatiently behind a driver turning left. The light changed, the left-turner turned, and – just like just about every driver in the world – the young Russian husband burst through the light, now red. Unfortunately, he collided with my daughter, who went up on the hood of the car, and then slid to the ground. At some point in Leslie’s unplanned flight, her leg was broken.

The driver and his wife were distraught at what their negligence had caused, and they bundled my daughter into the back seat of the car and drove her to an emergency unit. The next day, Leslie’s Russian friends visited her in the hospital, and during all of the talk about the accident, someone asked Leslie whether she had filed a police report. My daughter already knew from the State Department that she would have come back to the United States for treatment, American confidence in Russian medicine not being that high. So Leslie told her Russian friends it was just an accident, and thus there would be no point filing a report with the Primorsky Krai Directorate for Internal Affairs (you may know them as Управления МВД России по Приморскому краю). After all, a Russian hospital stay cost about $40.00 a night. Leslie reasonably figured that no Russian auto insurance company would have the stomach for what turned out to be a measly $20,000 in American medical bills.

So what was the point in filing a police report, Leslie wondered. But her Russian friends were appalled. She did not intend to demand prosecution of the driver? “But, but… ” one of them sputtered, “he must be punished!”

So, you see, those Far Eastern Russians are just like we are – when there is a terrible accident, any good plaintiff’s lawyer knows that you tell the jury the story with just the right amount of drama and pathos, and pretty soon, the jurors start looking around the courtroom for someone to blame. After all, there was injury and suffering and pain. Someone must pay! Someone must be punished!

But’s not the way real life is. You can ask Cassandre and Rachele, who are the young daughters of Joel Baudouin. Joel was driving his mother and the girls down New Jersey’s Garden State Parkway late one dark and stormy night, when an 80-foot tall hickory tree fell on his car. Joel and his mother perished. The girls were injured.

The girl’s mother sued on their behalf, naming a thundering herd of defendants, including the New Jersey Turnpike Authority (a public entity established in 2003 to operate the Garden State Parkway). Mom alleged the Turnpike Authority negligently failed to “properly maintain, remove, inspect, secure or otherwise properly care for the rotting, falling, dead and decaying trees adjacent to the roadway in the area of the accident.”

Everyone agreed the Turnpike Authority lacked actual notice the hickory tree was rotten (as it surely was). The only issue was whether the Authority had constructive notice of the tree’s deteriorated condition, and that turned on whether the Authority’s “drive by” inspection program was reasonable. And this is where governmental units, vulnerable to lawsuits only to the extent permitted by state tort claims act, need only show they have used their discretion in a reasonable way. Here, no matter how much Mom’s tree experts argued that a 360-degree walk-around was the only acceptable was to inspect a tree (and such an inspection would have discovered the dangerous hickory tree), the court agreed that the extent of the inspection task and the resources available to the Authority required that the Turnpike Authority be held to a lesser standard.

We are often adjured not to let the perfect become the enemy of the good. Under state tort claim statutes, that rarely happens.

Baudouin v. New Jersey Turnpike Authority, Case No. A-3903-13T2 (Super.Ct. N.J., Mar 1, 2017) 2017 N.J. Super. Unpub. LEXIS 1085, 2017 WL 1548708. Just after midnight on Christmas, 2008, Joel Baudouin was driving southbound on the Garden State Parkway. His mother sat next to him, while his two daughters sat in the backseat. A hickory tree, measuring eighty feet high and twenty-one inches wide, fell across the three southbound lanes of the Parkway and crushed the front passenger compartment of the car. Joel and his mother were killed. The children, who were initially trapped inside the backseat, were injured.

The kids’ mother filed a civil suit against a number of public entities and one private contractor. Finally, only the Turnpike Authority remained. The plaintiffs argued the Turnpike Authority negligently failed to “properly maintain, remove, inspect, secure or otherwise properly care for the rotting, falling, dead and decaying trees adjacent to the roadway in the area of the accident.”

The trial court granted summary judgment to the Turnpike Authority, holding the plaintiffs failed to produce evidence showing the Turnpike Authority had “actual or constructive notice” of the tree’s deteriorated condition.

Mom and the girls appealed.

Held: The Turnpike Authority was not liable. At the time of the accident, the Authority was responsible for inspecting the 172-mile long Parkway, which was tree-lined over much of its length both northbound and southbound and in the median and had more than 300 tree-lined shoulder miles to inspect. In order to accomplish this, the Authority employed what it called the Hazard Tree Inspection Program, which “consists of making periodic ‘windshield inspections’ of the trees that can impact the roadway,” according to the Authority’s witness. The Authority’s inspectors inspected Parkway trees while seated in the front passenger-seat of a car that drove at approximately ten to fifteen miles per hour along the shoulder of the Parkway. If something was spotted that indicated a potential serious problem with a tree, the driver was would stop the vehicle so that the tree could be inspected further. At that point, a determination would be made as to what, if anything, had to be done with the tree and at what priority based on the seriousness of the problem.

Of the 554 trees listed in the January 2007 Hazard Tree Inventory, only five trees were identified in the vicinity of where the accident occurred. Three trees were identified as high priority and two were marked as immediate priority.

Mom’s experts examined the fallen tree, and concluded it was rotten to the core. Both said the decay was only visible from the side of the tree away from the road, and they said a walk-around with a 360-degree close visual inspection of individual trees was the only method sanctioned by the industry. They did not address the Authority’s contention an individualized walk-around inspection was not applicable to a six-lane 172-mile long road with 300 miles of shoulder space.

The Superior Court noted that the Legislature intended the New Jersey Tort Claims Act “to serve as ‘a comprehensive scheme that seeks to provide compensation to tort victims without unduly interfering with governmental functions and without imposing an excessive burden on taxpayers.'” The purpose of the TCA is to shield public entities from liability, subject only to the TCA’s specific liability provisions. Thus, the Superior Court ruled, when a court is required to balance the liability and immunity provisions of the TCA, “immunity is the rule and liability the exception.”

The TCA defines a dangerous condition as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” The Superior Court said, “80-foot tall trees are not inherently dangerous. The Garden State Parkway is a three-lane wide highway, running 172 miles north and south, with 300 miles of shoulder. The eighty-foot tall hickory tree that fell at milepost 151.5 on December 25, 2008, is one of thousands, if not millions, of similar trees abutting or near both sides of the Parkway. Neither this record nor the Parkway’s history suggests that this tragedy occurs frequently.”

Given the length of the Parkway and the number of trees involved, the Court held, “it is patently unreasonable to expect the Turnpike Authority to conduct [walk-around] inspections. Therefore, as a matter of law, we conclude that, at the time of the accident, neither the Parkway nor the trees situated nearby constituted a dangerous condition under N.J.S.A. 59:4-1(a) because they were used with due care in a manner in which it is reasonably foreseeable that they would be used.”

Under the New Jersey TCA, a public entity has constructive notice of a dangerous condition “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” N.J.S.A 59:4-3(b).  The mere existence of an alleged dangerous condition is not constructive notice of it.

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, February 18, 2020

THE DOMINATRIX

Hardly anything can sow discord among neighbors like an easement. Rarely described with much specificity or limited as to use by a detailed statement of purpose, easements cause problems for the holder. Or the grantor. Or often, both.

Where the easement is for the benefit of an adjacent property owner, we talk about the dominant estate – the property being benefitted – and the subservient estate, which is the property (or property owner) burdened by the easement.

In today’s case, the Dzingles bought a landlocked parcel of land about 60 years ago, and – in order to get back and forth from the road – bought an ingress easement from their neighbor. As the name implies, the easement, 25 feet wide and containing a “trail,” was intended to let the Dzingles get to and from their property. The property was held by the Marilyn Dzingle Trust, making her sort of the Dominatrix.

The mind is fallible, especially where the owner of the subservient estate (cool term, right?) sells the property to someone else, someone like Jim Platt. Jim knew what he was buying, and he wasn’t the kind of guy to spend a lot of time poring over deeds and those appurtenances, principal places of beginning, heirs and assigns, and all of the legal mumbo jumbo. He knew the Dzingles had a driveway going over his land, and who needs to know any more than that?

Jimbo, that’s who. When Dzingle cleared vegetation from either side of his drive (but within the 25’ limit of the easement), Platt objected that the Dzingles had diminished the value of his property. When Platt dropped a dumpster next to the driveway, crowding the use of the road, the Dzingles objected right back. Platt said, “Sure, I’m encroaching on the easement, but you still have enough room to get by.”

Well, enough was finally enough. When the Dzingles wanted to build a modular house, they needed 22 feet of clearance to haul the pieces in. Those of us who are good at math can figure that this should be fine, with 1½ feet of clearance on each side. Well, yeah, except for Jimmy’s dumpster, and he would not move it.

So the Dzingles took Jimmy Platt to school, this class being held in a courtroom, where Jimmy Platt finally figured out what all that fine print on the deed really meant.

Dzingle Trust v. Platt, Case No. 330614 (Ct.App. Mich., Feb. 14, 2017) 2017 Mich.App. LEXIS 227. The Dzingles had contentedly enjoyed their landlocked 59 acres for nigh on 50 years, partly because they had had the foresight to buy a 25-foot ingress easement from their neighbor. But time passed, and after Jim Platt bought the subservient estate, the parties began feuding about what rights the dominant estate had over the easement.

The deed granting the easement stated that it was “an easement for ingress and egress over a parcel of land 25 feet wide…” and referred to an attached survey for the exact location of the easement. The survey clearly identified the location of the easement and indicated that the “existing trail lies entirely within easement.”

The Dzingles placed gravel in the easement and cleared vegetation to use it for ingress and egress, and to improve his attached residential property with a water well and pond, which required large trucks to use the easement. They planned to build a modular home on the property, but delivering the modules would require 22 feet of clearance, just within the easement’s 25-foot width. Jim complained that the Dzingle’s vegetation cutting within the easement “unreasonably burdened my property and eliminated my use of the property.” For their part, the Dzingles complained that Jim Platt’s placement of a dumpster in the easement did not let them use the full 25 feet for ingress and egress. That may be so, Jim said, but it did not keep the Dzingles from ingress or egress.

The Dzingles sued for a declaratory judgment regarding their rights to remove obstructions to bring the modular home onto thep roperty and asking the trial court to order Platt to remove his dumpster and any other obstacles from the easement. The trial court granted summary judgment to the Dzingle, holding they were entitled to the full 25-foot easement, and clearing brush from the easement was not an addition or improvement to the easement. The trial court rejected Jim Platt’s argument that the Dzingles’ proposed use of the easement would materially increase the burden on his estate, because their rights as the dominant estate to ingress and egress on the easement were paramount to Platt’s rights to wildlife and natural beauty. Finally, the trial court ruled that Platt must remove his dumpster from the easement because it was inconsistent with the Dzingles’ rights to ingress and egress.

Jim Platt appealed.

Held: The Dzingles’ rights extended to the whole 25 feet of the easement, and those rights included trimming vegetation so that the easement was usable for its intended purpose. It’s a rough lesson for a subservient estate holder to learn, but the dominant estate holder’s “rights are paramount to the rights of the soil owner to the extent stated in the easement grant.” The language of the instrument that granted the easement determines the scope of the easement holder’s rights.

In this case, the deed grants the Dzingles an easement for “ingress and egress.” The deed does not define ingress and egress, so the Court referred to a dictionary to determine the common meaning of the terms. “Ingress” is the “right or ability to enter; access,” and “egress” is defined as the “right or ability to leave; a way of exit.” Thus, an “ingress-and-egress easement” is an easement that grants the right to “use land to enter and leave another’s property.” Thus, the Court concluded, the deed expressly granted the Dzingles the rights to enter and leave their property, and the right to do so is paramount to Jim Platt’s rights in the same property.

What’s more, the easement gives the dominant estate “all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement.” While the dominant estate’s exercise of the easement must place as little burden as possible on the subservient estate, still “the making of repairs and improvements necessary to the effective enjoyment of an easement… is incidental to and part of the easement.”

A repair maintains an easement in the condition and uses it was in when the easement was made. Improvements, on the other hand, are alterations to an easement, and alterations are not permitted unless necessary for the effective use of the easement, unless they unreasonably burden the servient tenement.” Here, the Dzingles offered evidence that clearing vegetation, placing gravel in the easement, and using the easement to allow large trucks to improve the Dzingle acreage, and were consistent with use of the easement since the easement was granted. Thus, thr Court said, the Dzingles “presented evidence that removing vegetation and leveling would maintain the easement in the condition and uses it was in when the easement was granted. Platt presented no contrary evidence that clearing or leveling were outside the easement’s scope or changed the easement’s character.”

Finally, the Court said, any rights in the grant of an easement must be reasonably construed. The Dzingles have a right to reasonable ingress and egress, but they are not entitled to an unobstructed right-of-way. However, the Court said, the evidence showed that Jim’s dumpster intruded into the easement, and the Dzingles showed they needed at least 22 feet of the 25-foot easement for clearance to move the modular home pieces onto the property. Jim Platt may use the easement as long as his use does not interfere with the Dzingles’ right of ingress and egress. However, the Court said, because the Dzingles need the vast majority of the easement for ingress clearance and the dumpster intrudes into the easement, Jim Platt must move the dumpster.

– Tom Root

TNLBGray140407