Case of the Day – Friday, February 8, 2019

ONE STATE’S TREE IS ANOTHER STATE’S PEST

Fast growing ... and messy as a 3-year old ...

Fast growing … and messy as a 3-year old child …

Long before the Virginia Supreme Court’s decision in Fancher v. Fagella, a little-noticed New Mexico decision grappled with the problems caused by cottonwood trees. Cottonwoods can be majestic, and they were welcome enough to the tired and thirsty pioneers that the cottonwood became the state tree of Kansas. But at the same time, there are some arborists (and more than a few homeowners) who label them as dangerous, messy and a tree that should “be removed from most residential property.

Mr. Fox had a cottonwood tree he loved dearly. His neighbors didn’t fall into the same category, however. They hated the constantly shedding tree with the invasive and prolific root system. Like the banyan tree in Whitesell v. Houlton, there was a lot about Mr. Fox’s cottonwood not to like.

I have often mentioned the time-honored legal maxim that “hard cases make bad law.” It bears repeating here. Like the Whitesell v. Houlton banyan tree, Mr. Fox’s cottonwood generated sufficient horror stories in the trial transcript to explain the trial court’s decision that Mr. Fox’s tree had to go. A more level-headed weighing of the competing property and societal interests was undertaken by the Court of Appeals.

It's beginning to look a lot like Christmas ...except it's June, and the cottonwood is shedding cotton like a plantation in a tornado.

It’s beginning to look a lot like Christmas … except it’s June, and the cottonwood is shedding cotton like a plantation in a tornado.

None of that changed the outcome for Mr. Fox. He had to pay damages, and Abbinetts were free to hack away at the tree’s root system to the full extent of the Massachusetts Rule. But for those of us who admire the process, the Court of Appeals’ thoughtful opinion was a breath of fresh air.

Abbinett v. Fox, 103 N.M. 80, 703 P.2d 177 (Ct.App. N.M. 1985). The Abbinetts and Fox formerly owned adjoining residences in Albuquerque. The Abbinetts sued, alleging that while Fox owned his place, roots from a large cottonwood tree on his property encroached onto their land and damaged a patio slab, cracked the sides of a swimming pool, broke a block wall and a portion of the foundation of their house, and clogged a sprinkler system.

The Abbinetts asked for an injunction against Fox. The trial court found against Fox for $2,500, but denied injunctive relief to force Fox to remove the tree roots. Instead, the Court entered an order authorizing the Abbinetts to utilize self-help to destroy or block the roots of the cottonwood trees from encroaching on their land. The Foxes appealed the decision.

Cottonwoods are known for their intricate and aggressive root systems

Cottonwoods have intricate and aggressive root systems …

Held: The New Mexico Court of Appeals grappled for the first time with the Massachusetts Rule, the Hawaii Rule and the Smith v. Holt-era Virginia Rule. Instead, it adopted a modification of all of these, finding that when overhanging branches or protruding roots of plants actually cause – or there is imminent danger of them causing – “sensible harm” to property other than plant life, the damaged or endangered neighbor may require owner of the tree to pay for damages and to cut back the endangering branches or roots. Such “sensible harm” has to be something more than merely casting shade or dropping leaves, flowers or fruit. In so doing, the New Mexico Court anticipated the Virginia Supreme Court’s Fancher v. Fagella holding by about 22 years.

The New Mexico Court also opined that it is duty of a landowner to use his property in a reasonable manner so as not to cause injury to adjoining property. This is the Hawaii Rule. And the landowner who suffers encroachment from the tree of another may — but is not required to — “abate it without resort to legal proceedings provided he can do so without causing breach of peace.” This, of course, is the heart of the Massachusetts Rule. The New Mexico Court called all of these holdings a “modified Virginia Rule,” as indeed it was.

The Court held that a trial court may grant both damages for already incurred injuries and injunctive relief to prevent future harm, where there is showing of irreparable injury for which there is no adequate remedy at law.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, February 7, 2019

ENCROACHMENT, NUISANCE … AND THE MARCH OF TIME

camelhorse140429Encroachment – not the football kind, the tree kind. Encroachment governs the rights of adjoining property owners when the trees on one of the properties encroaches on the property of the other. Overhanging branches, invasive root systems, falling debris … those kinds of problems.

Monday, we explored one of the two different approaches to encroachment under American law, the “Massachusetts Rule” that landowners are limited to self-help – but not lawsuits – to stop encroaching trees and roots. Yesterday, we looked at the other end of these 50 United States, and the “Hawaii Rule,” a holding that a landowner could sue for damages and injunctive relief when a neighbor’s tree was causing actual harm or was an imminent danger to his or her property.

Between the two competing rules, Virginia found herself firmly straddling the line. The fair Commonwealth may be for lovers, (or, in these days of blackface scandals and accusations of sexual impropriety, for losers) but it is also for equivocators. The landmark Old Dominion case on the issue, Smith v. Holt, hailed from the 1930s, holding that the Massachusetts Rule applied unless the tree in question was (1) causing actual harm or was an imminent danger; and (2) “noxious.” This holding brings to mind the maxima camel looks like a horse designed by a committee.” Frankly, Smith v. Holt had “committee’ written all over it. It seemed to hold that the Massachusetts Rule applied except where it didn’t. And what did “noxious” have to do with anything?

hoist140715The Virginia Supreme Court finally addressed the confusing situation in Fancher v. Fagella. There the Court found itself hoisted on its own “noxious” petard. Everyone could agree that poison ivy was noxious, and most people could agree kudzu was noxious. But how about a cute little shade tree? Shade trees are definitely not in the same league with poisonous or entangling pests, but yet, a cute little shade tree can come out of the ground harder and do more damage than poison ivy or kudzu ever could.

Take the tree in Fancher. It was a sweet gum, a favored landscaping tree as well as a valuable hardwood. But for poor Mr. Fancher, it was Hydra covered in bark. Only halfway grown, Fagella’s sweet gum’s roots were already knocking over a retaining wall, kicking up patio stones, breaking up a house foundation and growing into sewers and even the house electrical system. Fancher sued for an injunction, but the trial court felt obligated to follow Smith v. Holt. There was just no way that a sweet gum tree could be noxious, the local court held, and thus, it would not help the frustrated Mr. Fancher. But the Virginia Supreme Court, wisely seeing that the “noxious” standard was of no help in these cases, abandoned the hybrid rule of Smith v. Holt, an unwieldy compromise that had already become known as the “Virginia Rule.” The Court – noting that the “Massachusetts Rule” was a relic of a more rural, bucolic age – decided that the “Hawaii Rule” was the better fit for modern, crowded, helter-skelter suburban life. It sent the case back to the trial court, instructing the judge that the court should consider whether an injunction should issue.

This decision fits neatly into what we have been considering for the past week on negligence and nuisance. Here, the tree had become a nuisance, possibly because Fagella had not cared for the tree before it began damaging the neighbor’s property. All the tree had ever done is what trees do – it grew. And grew and grew. It was healthy, perhaps amazingly so, but Fagella was ordered to shoulder the cost of damages caused not because it was dangerous, or dead, or anything other than an inconvenience.

Like the decision or hate it, you could see this coming. From an age in which trees grew and lived and died, and effects of the life cycle were not chargeable against the landowner, we may be arriving at a point where trees aren’t much more than big, woody pets, with their owners responsible for whatever the tree may naturally do.

Fancher v. Fagella, 650 S.E.2d 519, 274 Va. 549 (2007). Fancher and Fagella were the owners of adjoining townhouses in Fairfax County, Virginia (a largely urban or suburban county west of Washington, D.C., and part of the Washington metropolitan area). Fagella’s property is higher in elevation than Fancher’s, and a masonry retaining wall runs along the property line to support the grade separation. Fancher has a sunken patio behind his home, covered by masonry pavers.

treeonhouse160322Fagella had a sweet gum tree located a few feet from the retaining wall, about 60 feet high with a 2-foot diameter trunk at its base. Sweet gums are native to the area, and grow to 120 to 140 feet in height at maturity, with a trunk diameter of 4 to 6 feet. The tree was deciduous, dropping spiky gumballs and having a heavy pollen load. It also has an invasive root system and a high demand for water.

In the case of Fagella’s tree, the root system had displaced the retaining wall between the properties, displaced the pavers on Fancher’s patio, caused blockage of his sewer and water pipes and had begun to buckle the foundation of his house. The tree’s overhanging branches grew onto his roof, depositing leaves and other debris in his rain gutters. Fancher attempted self-help, trying to repair the damage to the retaining wall and the rear foundation himself, and cutting back the overhanging branches, but he was ineffective in the face of continuing expansion of the root system and branches. Fancher’s arborist believed the sweet gum tree was only at mid-maturity, that it would continue to grow, and that “[n]o amount of concrete would hold the root system back.” The arborist labeled the tree “noxious” because of its location, and said that the only way to stop the continuing damage being done by the root system was to remove the tree entirely.

Fancher sued for an injunction compelling Fagella to remove the tree and its invading root system entirely, and asked for damages to cover the cost of restoring the property to its former condition. Fagella moved to strike the prayer for injunctive relief. The trial court, relying on Virginia law set down in Smith v. Holt, denied injunctive relief. Fancher appealed.

Held: The Supreme Court abandoned the “Virginia Rule,” adopting instead the “Hawaii Rule” that while trees and plants are ordinarily not nuisances, they can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. Then, injunctive relief and damages will lie. The Court traced the history of the encroachment rule from the “Massachussetts Rule” — which holds that a landowner’s right to protect his property from the encroaching boughs and roots of a neighbor’s tree is limited to self-help, i.e., cutting off the branches and roots at the point they invade his property — through the modern “Hawaii Rule.” The Court noted that Virginia had tried to strike a compromise between the two positions with the “Virginia Rule” set out in Smith v. Holt, which held that the intrusion of roots and branches from a neighbor’s plantings which were “not noxious in [their] nature” and had caused no “sensible injury” were not actionable at law, the plaintiff being limited to his right of self-help.

Invasive_rootsThe Court found the “Massachusetts Rule” rather unsuited to modern urban and suburban life, although it may still work well in many rural conditions. It admitted that the “Virginia Rule” was justly criticized because the classification of a plant as “noxious” depends upon the viewpoint of the beholder. Just about everyone would agree that poison ivy is noxious. Many would agree that kudzu is, too, because of its tendency toward rampant growth, smothering other vegetation. But few would declare healthy shade trees to be noxious, although they may cause more damage and be more expensive to remove, than the poison ivy or kudzu. The Court decided that continued reliance on the distinction between plants that are noxious, and those that are not, imposed an unworkable and futile standard for determining the rights of neighboring landowners.

Therefore, the Court overruled Smith v. Holt, insofar as it conditions a right of action upon the “noxious” nature of a plant that sends forth invading roots or branches into a neighbor’s property. Instead, it adopted the Hawaii Rule, finding that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to adjoining property, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. The Court was careful to note that it wasn’t altering existing law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.

The Court warned that not every case of nuisance or continuing trespass may be enjoined, but it could be considered here. The decision whether to grant an injunction, the Court held, always rests in the sound discretion of the chancellor and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. In weighing the equities in a case of this kind, the chancellor must necessarily first consider whether the conditions existing on the adjoining lands are such that it is reasonable to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots. In the absence of such a duty, the traditional right of self-help is an adequate remedy. It would be clearly unreasonable to impose such a duty upon the owner of historically forested or agricultural land, but entirely appropriate to do so in the case of parties, like those in the present case, who dwell on adjoining residential lots.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, February 6, 2019

YESTERDAY CHOCOLATE, TODAY VANILLA

chocolate160325The law of encroaching trees runs a continuum from total self-help to the exclusion of any judicial remedy (theMassachusetts Rule,” which we discussed yesterday) – to tree owner liability (the “Hawaii Rule”), with many variations in between. If the law of encroachment were administered by Baskin Robbins, the Massachusetts Rule would be chocolate ice cream, and the Hawaii Rule would be vanilla.

In Whitesell v. Houlton, a Hawaiian appellate court first adopted what is generally known as the “Hawaii Rule,” which held that when there is imminent danger of overhanging branches causing “sensible” harm to property other than plant life, the tree owner is liable for the cost of trimming the branches as well as for the damage caused.

Maybe the court’s holding that the Whitesell v. Houlton tree was a nuisance arose from the hard facts of that case: the tree was a massive banyan tree, with a 12-foot trunk and 90 foot height. There is an old legal maxim that “hard cases make bad law,” and the banyan tree in this case was pretty clearly monster flora, sort of the kudzu of trees. Perhaps it was that the laid-back political and cultural nature of the Sandwich Islands is far removed from the flintier New Englanders and the type of self-reliance embraced by the “Massachusetts Rule.

banyan160325For whatever reason, if a branch from a healthy tree in Massachusetts is in danger of falling into a neighbor’s yard, that neighbor may trim it at his or her own expense … but that’s it. In Hawaii, overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit. Then, the damaged or imminently endangered neighbor may either use self-help to cut back on the encroaching tree, or may require the owner of the offending tree to pay for damages and to cut back endangering branches or roots. If such is not done within a reasonable time, the neighbor may even have the trimming done at tree owner’s expense.

As we said, nothing in this ruling prevents a landowner — at his or her own expense — from cutting any part of an adjoining owner’s trees or other plant life up to his property. It’s just that the Massachusetts Rule says that’s all a landowner may do. Hawaii thinks differently. Tomorrow, we’ll see that Hawaii may be on the right side of history in this debate.

Whitesell v. Houlton, 632 P.2d 1077 (App. Ct. Hawaii, 1981). The Whitesells and Mr. Houlton lived next to each other. Mr. Houlton owned a 90-foot tall banyan tree with foliage extending 100 to 110 feet from the trunk. The tree overhung the Whitesells’ property. and the two-lane street fronting both properties. The Whitesells asked Mr. Houlton repeatedly over a two-year period to trim the tree, and they took it upon themselves to do so at various times. Their VW microbus – probably chartreuse – was damaged by low-hanging branches, their garage roof was damaged by some intruding branches from the tree, and they identified branches damaged in a storm that were in danger of falling.

Despite their entreaties, Mr. Houlton did nothing. Finally, the Whitesells hired a professional tree trimmer who cut the banyan’s branches back to Houlton’s property line, and then sued Mr. Houlton to get him to pay.

The trial court sided with the Whitesells, and ruled that Mr. Houlton had to pay. He appealed.

Held: Mr. Houlton had to pay. The court surveyed different approaches taken by other states, identifying the “Massachusetts Rule” holding that Mr. Houlton had no duty to the Whitesells, or the “Virginia Rule” that said Mr. Houlton had a duty to prevent his tree from causing sensible damage to his neighbor’s property.

nuisance160325The Court agreed with Mr. Houlton that “the Massachusetts Rule is ‘simple and certain’. However, we question whether it is realistic and fair. Because the owner of the tree’s trunk is the owner of the tree, we think he bears some responsibility for the rest of the tree. It has long been the rule in Hawaii that if the owner knows or should know that his tree constitutes a danger, he is liable if it causes personal injury or property damage on or off of his property . . . Such being the case, we think he is duty bound to take action to remove the danger before damage or further damage occurs.” This is especially so, the Court said, where the tree in question was a banyan tree in the tropics.

Thus, the Court adopted what it called “a modified Virginia rule.” It held that “overhanging branches which merely cast shade or drop leaves, flowers, or fruit are not nuisances; that roots which interfere only with other plant life are not nuisances; that overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit; that when overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

The Court pointed out that this rule did not strip a landowner of the right, at his or her expense, to trim a neighbor’s overhanging tree or subterranean tree roots up to the property line. It’s just where the Massachusetts Rule limits you to helping yourself, the Hawaii Rule lets you enlist the courts to do the heavy lifting.

– Tom Root

 TNLBGray140407

Case of the Day – Tuesday, February 5, 2019

ENCROACHMENT – MASSACHUSETTS STYLE

The tree crew we hired seemed sort of smallish, but they had really cool trucks ...

The tree crew our neighbor hired seemed sort of smallish, but they were always smiling and had these really cool trucks …

We’ve got some new neighbors, nice folks who bought a house that, while substantial, has been badly neglected. Since moving in a few months ago, they’ve been working like beavers to fix the place up.

During the warm snap that followed last week’s frigid temps, they had a tree service cut down a number of trees, large and small. We have a couple of big pine trees – which I love but my wife doesn’t – that have branches overhanging the new neighbors’ back yard.

Our neighbor came over to inquire whether we minded that he trim some of the long, spindly branches encroaching over the stockade fence into his yard. We were surprised to be asked.

“But surely you know the Massachusetts Rule,” we said. “You don’t need permission to trim the oak branch back to the property line. That’s well settled law!” Our neighbor was pleased if a little skeptical. He was sure he couldn’t touch the branch – even though it extended well into his property – without our OK.

To assuage our neighbors’ concern (and that of their tree service), we provided the foreman with the web address of the most comprehensive tree law site in the entire solar system – this one. We confidently predicted that the site just happened to plan to cover encroachment issues the very next day.

Are we ever prescient! As it happens, today we are going to talk about encroachment… not the neutral-zone penalty that cost the Rams five yards last Sunday night. That’s for football season, now an interminable six months away. The encroachment we care about is different.

Beginning140714Encroachment is what happens when your neighbor’s tree roots break into your sewer system, when leaves and nuts are dumped into your gutters, or when the branches rain down on your car or lawn. The law that governs rights and responsibilities when a neighbor’s tree encroaches on your property only developed in the last 80 years. Before that time, a simpler time perhaps, people didn’t resort to the courts quite so much.

In the beginning, there was the “Massachusetts Rule.” That Rule, something we talk about so much you’d think everyone would have heard of it by now, arose in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (Sup.Jud.Ct. Mass. 1931). This is the granddaddy of all encroachment cases, the Queen Mother. The Massachusetts Rule is the self-help mantra of neighbors everywhere.

In Michalson, roots from a poplar growing on the Nuttings’ land had penetrated and damaged sewer and drain pipes at Michalson’s place. As well, the roots had grown under Michalson’s concrete cellar, causing cracking and threatening serious injury to the foundation. Michalson wanted the Nuttings to cut down the tree and remove the roots. They said “Nutting doing.”

Encroaching tree roots can sometimes be unsightly

Encroaching tree roots can sometimes be unsightly…

Michalson sued, asking the court to permanently enjoin the Nuttings from allowing the roots to encroach on his land. Besides an order that the Nuttings essentially stop the tree from growing, Michalson wanted money, too, to ease the pain of leaf raking and root cutting. The trial judge found the Nuttings were not liable merely because their tree was growing. He threw Michalson’s lawsuit out, and Michalson appealed.

Held: In what has become known as the “Massachusetts Rule,” the Supreme Judicial Court of Massachusetts held that a property owner’s remedies are limited to “self help.” In other words, a suffering property owner may cut off boughs and roots of neighbor’s trees which intrude into another person’s land. But the law will not permit a plaintiff to recover damages for invasion of his property by roots of trees belonging to adjoining landowner. And a plaintiff cannot obtain equitable relief — that is, an injunction — to compel an adjoining landowner to remove roots of tree invading plaintiff’s property or to restrain such encroachment.

Our takeaway today, therefore, would be the two concepts embodied in the Massachusetts Rule. The first is that you, the neighbor, need no permission from the tree owner to trim away roots and branches that overhang your property. That rule survives to this day just about everywhere. The second – which has been questioned to a much greater extent – is that you can’t sue your neighbor for the effects of encroachment by one of his or her trees.

Hold those concepts close, because tomorrow, we’ll see how things work on the other end of the country – Hawaii – where the law developed somewhat differently. Some say that size matters. We’ll see how true that is when the tree is a little too much for the court to ignore.

– Tom Root

TNLBGray140407

Case of the Day – Monday, February 4, 2019

DRIVE-BY INSPECTIONS, FEDERAL STYLE

Delaware Water Gap National Park

Delaware Water Gap National Park

Friday, we looked at the Federal Tort Claims Act, the king’s way of saying, “Go ahead, sue me.”  Like it’s that easy…

In Friday’s case, the Forest Service evaded liability because how it followed the guidelines for maintaining a bike trial was considered to be a discretionary function. Today, we’re going to see how something so quotidian as tree inspection can be considered discretionary, too.

Ms. Merando and a friend had been enjoying the scenery of Delaware Water Gap National Park – a beautiful place – one summer day, when a tree (which had previously been topped) fell from an embankment and crushed the car, killing Ms. Merando and her young daughter, Kaylyn.

It was a tragedy, and sometimes tragedies drive the bereaved to push hard. That happened here, where Ms. Merando’s husband sued the National Park Service for not having removed this topped tree before it fell. The tree was a disaster waiting to happen, a dead, previously-butchered hulk leaning over the road like an ogre waiting to pounce.

Under the Federal Tort Claims Act, as alert readers may recall from yesterday, you can’t sue the government if it failed to perform a discretionary act. Whether hazard tree removal is a discretionary function is at the heart of this case.

The Court of Appeals upheld the lower court, dismissing Mr. Merando’s case. The National Park Service, it appears, had written guidelines that essentially directed every park to adopt a hazard tree removal policy that makes sense for the individual park. The result is a patchwork of unwritten policies. That sounds like a prescription for chaos.

Actually, it’s a prescription to avoid liability. If the Service had a written hazard tree removal policy and the local rangers hadn’t adhered to it with the tree in questions, then liability on the part of the government would be pretty clear. But, as some sharp National Park Service lawyer undoubtedly figured out — and yes, even Smokey the Bear has his own mouthpiece — if you don’t write it down, it’s that much harder for a plaintiff to prove that you failed to follow it.

The Delaware Water Gap National Park had a rather amorphous “drive-by” inspection policy, and Mr. Merando was unable to demonstrate that anyone had violated it. The lesson seems to be that “the less you do, the safer you are.”

Some hazard trees are easier to spot than others ...

Some hazard trees are easier to spot than others …

Merando v. U.S., 517 F.3d 160 (3rd Cir., 2008). Janine Noyes, Kathleen Merando and Kathleen’ daughter, Kaylyn, were sightseeing in Delaware Water Gap National Recreation Area. While traveling in Ms. Noyes’s car along the New Jersey side of the Park, a large dead oak tree fell from an embankment and crushed the vehicle. Mrs. Merando and her daughter were killed instantly. The tree was approximately 27 feet in length, and had been had “topped” and delimbed, leaving it standing in a “Y” shape with no bark or branches and with the dead tree pole leaning toward the roadway.

The 63,000-acre Park lies along four miles of the Delaware River in Pennsylvania and New Jersey. It is mainly forested land, and is accessed by approximately 169 miles of roadways, 68 miles of trails, and several streams. As with other national parks throughout the country, the National Park Service, an agency within the U.S. Department of the Interior, is responsible for maintaining the Park, including the area where the accident in question occurred. The Government took title to the land where the oak tree was situated in 1969 and to the roadway itself in 1996.

Plaintiff, as administrator of the estates of Ms. Merando and her daughter, sued the Government for negligence, alleging that the Government negligently pruned the tree causing it to die and eventually collapse, and that the tree constituted a hazardous and extremely dangerous condition of which the Government knew or should have known and that it negligently failed to act to remove the tree. The Government moved to dismiss the complaint on the basis of the discretionary function exception to the Federal Tort Claims Act. The Government also argued that the New Jersey Landowners Liability Act barred the action. The trial court dismissed on the basis that the FTCA stripped the court of jurisdiction to hear the case. Mr. Merando appealed.

Held: The district court’s dismissal was affirmed. The federal, as a sovereign, is immune from suit unless it consents to be sued. That consent, and the extent of the consent, is set out in the Federal Tort Claims Act, and it is a plaintiff’ burden to prove that the FTCA has waived the immunity. Generally, the government is immune from a suit claiming negligence in the discharge of a discretionary function.

The purpose of the discretionary function exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. In determining whether the discretionary function exception applies in any particular case, a court must first determine whether the act giving rise to the alleged injury involves an element of judgment or choice. The requirement of judgment or choice is not satisfied if the law, a regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive. – But even if the challenged government conduct involves an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The focus of the inquiry is on the nature of the actions taken and on whether they are susceptible to policy analysis.

In this case, determining whether the discretionary function exception applied to a tort action arising when the dead tree fell on the passing car, the relevant conduct was not the National Park Service’s alleged violation of its mandatory policy not to “top” trees, because there was no evidence that the Government was involved in or consent to the topping of the tree. Instead, the relevant conduct was the Service’s decisions that comprised its hazardous tree management plan and its execution of that plan. The issue was whether the controlling statutes, regulations, and administrative policies required the Park Service to locate and manage hazardous trees in any specific manner. The Court concluded that the Service’s unwritten tree management plan did not mandate any particular methods of hazardous tree management, and its choice to use “windshield inspections” in low usage areas of the park was a discretionary decision — driven by limited resources — not to individually inspect every potentially hazardous tree in the park.

– Tom Root

TNLBGray

Case of the Day – Friday, February 1, 2019

IT’S GOOD TO BE KING

One good thing about being king – you can’t be sued.

Anyone with kids of a certain age will remember the strutting, youthful Simba in The Lion King, singing about how he’d be “free to run around all day… free to do it all my way…

The stripling cub might have been singing about the wonder of sovereign immunity, that quaint concept that no one may sue the government. Of course, people do sue the government – this is the US of A, where people sue everyone, sometimes even suing themselves – but in order to do so, the government must grant permission first.

Such a notion may seem peculiar, that the government would give private citizens the right to sue. But the government has done so implicitly and explicitly. The explicit permission of interest to readers of this blog is the Federal Tort Claims Act.

The FTCA allows people to sue the officers and employees of the federal government for negligence. There are strings attached: generally, a rather inflexible administrative exhaustion procedure must be followed first, the statute of limitations is brutally short, and the types of conduct that may justify a suit are limited.

A federal employee runs into you with a dump truck? You may sue. But, as we’ll see today, if your injury results from something more esoteric, you may be foreclosed by the “discretionary function” doctrine.

Monday, we’ll look at how the FTCA applies to the duty to inspect trees (of which the US Forest Service owns a few).

Gonzalez v. United States, Case No. 16-60062 (5th Cir., Mar. 22, 2017). Teresa Gonzalez and her friend were riding mountain bikes on some trails in the De Soto National Forest of Mississippi. Teresa did not bother to check the bulletin board at the head of the trails. If she had, she would have seen the sign warning that the Couch Loop Trail was closed.

The U.S. Forest Service had some problems with the Couch Loop Trail. A local bicycle club liked to build dangerous structures on the trail to enhance their fun. Most recently, Park employees found an unauthorized bridge on the trail, and closed the route to remove the offending span.

Ramp-jumping: not for amateurs…

Teresa and her friend careered down the trail. At some point, they took an “alternate route” to the left of the main trail. On their ersatz path, they found a teeter-totter and a ramp. Wisely, they did not try to ride over the teeter-totter. Unwisely, they did decide to jump the ramp.

Neither had ever tried riding over a ramp before. You can see where this is going. Teresa experienced what the kids call an epic fail, and suffered serious injuries.

De Soto National Forest, about 600 square miles in size, had two technicians charged with maintaining the bike trails. Their work included identifying hazards, such as trees, and performing repair work. The worker would “bush hog the trail pretty much every year,” which includes clearing and cleaning the trail, but they were not sure it had been done in 2012.

Teresa filed an FTCA action, alleging that the United States failed to keep its premises safe, failed to perform inspections, and failed to warn of a dangerous condition. The District Court found that the discretionary function exception to the FTCA waiver of sovereign immunity applied., and threw out the lawsuit. She appealed.

Held: The “discretionary function exception,” prevented Theresa’s suit. That function “preserves the federal government’s immunity . . . when an employee’s acts involve the exercise of judgment or choice.” The exception covers only acts that “involve an element of judgment or choice.” It is the nature of the conduct, rather than the status of the actor, that governs whether the exception applies.

The Circuit Court said a two-prong test determines whether the exception applies: (1) “the conduct must be a matter of choice for the acting employee, and (2) the “judgment must be of the kind that the discretionary function exception was designed to shield.”

With respect to the first prong of the test, “if a statute, regulation, or policy leaves it to a federal agency to determine when and how to take action, the agency is not bound to act in a particular manner and the exercise of its authority is discretionary.” Regarding the second prong, a court considers “whether the actions taken are susceptible to policy analysis.” Whether the employee actually did any policy analysis when reaching his or her decision doesn’t matter: it’s whether he or she could have done so that matters. The question of whether the government was negligent or not is irrelevant.”

In this case, the USFS handbook contemplated an “element of choice as to how USFS employees inspect and maintain the trails.” The manual instructed employees to “manage each trail to meet the trail management objectives identified for that trail, based on applicable land management plan direction, travel management decisions, trail-specific decisions, and other related direction, as well as management priorities and available resources.” The Court said the language ordered employees to “meet” the identified objectives, but gave them room for choice based on the evaluation of various factors. Although the objectives listed specific goals, the Court held they did “not prescribe a certain course employees must take to reach those goals. In this way, the provisions… contain generalized, precatory, or aspirational language that is too general to prescribe a specific course of action for an agency or employee to follow.”

So whether the technicians were negligent by not doing a better job of marking the trail as closed, removing the ramp, or not putting training wheels on Theresa’s bike, she had nothing coming.

– Tom Root

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Case of the Day – Thursday, January 31, 2019

AN ADOPTION GONE BAD

You’ve seen the “adopt a highway” signs along local roads, where some company or organization undertakes to take care of a strip of the road. Governments have figured out that the adoption program was a sweet deal. The government gets free labor to maintain a public asset. A local group gets its name attached to a do-gooder project.

Some places have gone beyond the stretch-of-road adoption program in favor of entire enclaves. The City of Fort Worth, Texas, had such a program, one in which groups could adopt a whole park.

Last time we checked the geography, Fort Worth was pretty flat. That did not prevent the City from having a mountain bike park, or for that matter, a band of dedicated mountain bike riders ready to adopt it. What a perfect arrangement – synergy on knobby tires – at least until Norm DeLamar, a mountain biker, got clotheslined by a dead tree.

Adopted kids have parents who are obligated to take care of them. Norm figured that it worked for kids and parents, it must work for parks and adopt-a-park groups. Like most injured parties who know how to find the courthouse, Norm figured that because he was hurt, someone was obligated to pay him money. After all, this is America.

But the adoption turned out to be symbolic more than real. The mountain bike group was allowed to pick up litter, but the most it could do for dangers from hazard trees was to call the City Forester and cajole him or her to send a guy with a chainsaw. So the adopting parent really lacked any decision-making power when it came to park maintenance. But that hardly mattered to Norm and his lawyers.

Like the old poem so sagely observed:

It’s not my place to run the train, the whistle I can’t blow.
    It’s not my place to say how far the train’s allowed to go.
It’s not my place to shoot off steam or even clang the bell.
    But let the damn thing jump the track and see who catches hell.

DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466 (Ct.App. Texas Jan. 24, 2019). Norm was riding his mountain bike one summer day on a trail in Gateway, a park owned by the City of Fort Worth, when he came upon a downed tree blocking the trail at head level. Although Norm was reputed to be a “really good rider,” he apparently was not that good. Norm did not have time to stop or avoid the tree, and as a result, he was “clotheslined.” His head and neck stopped when they hit the tree; the rest of him did not. Norm was knocked from his bicycle and was injured.

Norm sued the City, claiming ordinary and gross negligence. The City answered that filed an answer and identified the Fort Worth Mountain Biker’s Association as a responsible third party because of an “Adopt-A-Park Agreement” between the City and the Association. Under the contract, the Ft. Worth Mountain Bikers were “responsible for constructing and maintaining the bike trail in question.” Norm added the Association as a defendant, arguing premises liability, claiming the Association owed “a duty to protect the general public from dangerous conditions such as falling trees.” Norm claimed the Association had breached this duty by failing to ensure the trees alongside of the bicycle trail were not a danger to cyclists, and consciously disregarding the heath of the trees and the danger that they pose.

The Adopt-A-Park Agreement provides the Association “shall perform all work and services hereunder as an independent contractor… [and] shall have exclusive control of, and the exclusive right to control the details of the work…” The Association is obligated to maintain the its sole cost and expense, and it defines “trail maintenance” as including but not being limited to, “pruning of trees; [and] removal of brush[.]”

The Contract prohibits the Association from “trimming and pruning, until written approval is obtained from the Director [of the Parks and Community Services Department],” and from “remov[ing] any tree without prior written permission from the City Forester.” Finally, the Contract expressly provides that the City “does not relinquish the right to control the management of the Parks, or the right to enforce all necessary and proper rules for the management and operation of the same.”

The Association answered that there was no evidence that it was negligent, as it owed neither Norman nor anyone else a duty with respect to the condition of the premises, or to keep the premises in reasonably safe condition, inspect the to discover any defects, or to repair any defect or give an adequate warning of any dangers.

Norm filed a response and attached a short affidavit and an expert report from an arborist, Matthew Clemons. In his response, Norman appeared to adopt the Association’s characterization of his claim as one for premises liability and in doing so focused on his status, arguing that he was an invitee. The Association filed a reply and objected to the expert report.

The trial court granted the Association’s motion, and threw out the suit.

Norm appealed.

Held: Norm failed to establish that the Association owed him a legal duty to protect him from the tree that the Association did not cause to fall, that may have fallen only hours, but no later than a day or two, before the biker struck, and that the Association was not authorized to unilaterally remove under its agreement with the City to maintain the trail.

To prevail on a premises-liability claim, Norm had to prove the Association had actual or constructive knowledge of some condition on the premises; that the condition posed an unreasonable risk of harm; that the owner did not exercise reasonable care to reduce or eliminate the risk; and that the owner’s failure to use such care proximately caused Norm’s injuries. For a general negligence claim, he had to prove the Association owed him a legal duty; that it breached the duty, and as a result of the breach, he was damaged.

While, theoretically, Norm could maintain causes of action for both general negligence and premises liability, the Court said, a general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the Association’s contemporaneous activity. If the injury is caused by a premises defect, rather than by the Association’s contemporaneous activity, Norm could not circumvent the true nature of the premises defect claim by pleading it as one for general negligence.

Because the lines between negligent activity and premises liability are “sometimes unclear,” the Court said, determining whether a claim is one for a premises defect or general negligence “can be tricky.” Negligence encompasses a malfeasance theory based on affirmative, contemporaneous misconduct that causes an injury. Premises liability, on the other hand, encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.

But regardless of which horse Norm chose to ride, premises liability or general negligence, the sine qua non of his claim was the existence of a legal duty. It is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case.

Three categories of factors have emerged, the Court held. First, a court must consider the relationship between the parties. Then, a court examines the reasonable foreseeability of harm to the person injured. Finally, a court considers any public policy considerations.

Here, Norm argued the Association contractually assumed “responsibility for maintenance, construction and safety of the trails,” and as such, owed a duty to “protect the general public from dangerous conditions[.]” The record showed the Association members regularly worked on the trials, but had to identify problem trees to City employees who “were the only ones that [could] operate the chainsaws.”

Norm admitted he had ridden the same trail “no more [than] two days” earlier and that he had not seen the downed tree, so it was possible that the tree had fallen only a day or two before his crash. Indeed, he conceded that it was possible that the tree could have actually fallen only a few hours before his crash. What is more, the Agreement expressly prohibited the Association from pruning trees without the Director’s prior written approval and expressly prohibited the Association from removing any tree without prior written permission from the Forester. Norm cited nothing in the Agreement showing that the Association had agreed to assume a legal duty to maintain the safety of the trails for the general public.

The Court was not persuaded to create a legal duty regarding the downed tree and trail safety based on public policy considerations. Indeed, it said, public policy considerations weigh heavily against imposing such a legal duty on what is essentially a group of volunteer mountain bike enthusiasts who have been granted such limited oversight over the safety of the bike trails, if any.

Thus, the Court said, Norm had failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours—but no later than a day or two—before Norm struck it, and that the Association was not even authorized to unilaterally remove.

– Tom Root

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