Case of the Day – Friday, April 15, 2022


Anyone who follows the law (or, for that matter, reads this blog) must from time to time read about a case that seems… well, just so trivial.

What can we say? Lawyers have to eat, too, and some of our brethren and sistren in the bar will take some ridiculous cases, just because the monied defendant will pay nuisance value to make the case go away.

Sometimes, hard to believe, a case is too trivial even for the court. In today’s case, we review one of three fact patterns from three separate apparently trivial cases that were wrapped into a single New York Court of Appeals decision (the Court of Appeals being New York’s highest court). If you’re a glutton for punishment, you can go right to the decision and read about the other two cases included in the decision, both of which involved falling on staircases. The fact pattern we’re focusing on is sufficient to provide an excellent illustration of  the trivial defect doctrine.

As the Court puts it in the decision’s preface, “it is usually more difficult to define what is trivial than what is significant.” The trivial defect doctrine differs from the ancient legal maxim “de minimis non curat lex,” which – as my beloved high school Latin teacher, Emily Bernges, would have explained – translates as “the law does not concern itself with trifling matters.” Usually, “de minimis non curat lex” applies when the injury is insignificant, i.e., a hotel guest asked for a king-size bed and got a queen-size bed instead. The trivial defect doctrine, on the other hand, applies where the injury is quite real, as in victim-plaintiff Lennie Hutchinson’s trip and painful fall over a small protrusion in the sidewalk. No one doubted that Lennie was good and truly hurt. Instead, the question was whether the defect he tripped over was trivial. Thus, the “de minimis non curat lex” situation attends where the defect is real but the injury is trifling. The trivial defect doctrine applies when the obverse is the case.

Certainly, at first blush it seems easy enough to dismiss Lennie Hutchinson’s complaint that he tripped over something a fraction of an inch wide and another fraction high. But as we’ll see, invoking the Trivial Defect Doctrine is not always easily done.

Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 19 N.Y.S.3d 802 (Ct.App. N.Y. 2015). Leonard Hutchinson was walking on a concrete sidewalk in the Bronx when his right foot “caught” on a metal object protruding from the sidewalk and he fell, sustaining injuries. Hutchinson sued Sheridan Hill House Corp., the owner of a building abutting the site of Leonard’s fall. Under New York City Administrative Code Sheridan was responsible for maintaining the sidewalk in a reasonably safe condition.

Leonard described the metal object as being “screwed on in the concrete” and gave rough estimates of its dimensions. Sheridan’s attorney had the sidewalk inspected, and found the object, cylindrical in shape, projected “between one eighth of an inch… and one quarter of an inch” above the sidewalk and was about five-eighths of an inch wide.

The trial court granted Sheridan summary judgment on the ground that it lacked notice of the defect. The appellate court affirmed, holding additionally that the metal object’s “minor height differential alone is insufficient to establish the existence of a dangerous or defective condition.”

Leonard took the case to New York State’s highest court, the Court of Appeals.

Held: The defect Leonard complained of was trivial as a matter of law, and thus not actionable.

The Court said a defect alleged to have caused injury to a pedestrian may be trivial as a matter of law, but such a finding must be based on all the specific facts and circumstances of the case, not size alone. Indeed, a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it “unreasonably imperils the safety of” a pedestrian.

Liability does not turn on whether the hole or depression that causes a pedestrian to fall constitutes a trap. Many factors may render a physically small defect actionable, including a jagged edge, a rough, irregular surface, the presence of other defects in the vicinity, poor lighting or a location – such as a parking lot, premises entrance/exit, or heavily traveled walkway – where pedestrians are naturally distracted from looking down at their feet.

Liability from physically small defects are “actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot,” the Court said. “Attention to the specific circumstances is always required.”

Finally, the Court said, under the trivial defect doctrine, a defendant seeking dismissal on the basis that the alleged defect is trivial must first show that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact.

Sheridan met its burden by producing measurements indicating the metal protrusion was only about a quarter inch high and 5/8ths inch wide, together with evidence of the surrounding circumstances. Hutchinson tried to show features of the defect that would magnify the hazard it presented, arguing it had a sharp edge, was irregular in shape, and was firmly embedded in the sidewalk, so that “it could snag a passerby’s shoe.” Hutchinson argued he should not be required to look at his feet while walking on the sidewalk.

The Court was unimpressed. It said the characteristics Hutchinson identified were common to sidewalks. Instead, the Court said, the “relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.”

Here, the metal object protruding only slightly from the sidewalk, was in a well-lit location in the middle in the middle of the walk in a place where a pedestrian “would not be obliged by crowds or physical surroundings to look only ahead.” The object stood was not hidden or covered in any way so as to make it difficult to see. Its edge was not jagged and the surrounding surface was not uneven. Taking into account all the facts and circumstances presented, “including but not limited to the dimensions of the metal object,” the Court said, “we conclude that the defect was trivial as a matter of law.”

– Tom Root


Case of the Day – Thursday, April 14, 2022


furball151002I was talking to my son in Texas (OK, texting, because he’s a 30-something, and texting instead of talking – sort of using the telegraph instead of the telephone – is what people under 40 do) about the standing water in the flat land that constitutes his extended back yard. It reminded me of Texas’s flat land that seems to this Midwesterner to go on forever – and that Texas is a place where a husband can shoot his wife’s lover, and the wife’s the one who gets charged.

That makes me a little gratified when what could have devolved into a gunfight ends up with the misbehaving defendants coming up on the short end of a jury verdict instead, and at the same time a little pleased to bring you a Texas case.

This case — a perfect illustration of the problem we we’ve talked about before with verbal contracts — shows the horrors that result when complex deals aren’t written down. Bachmeyer and the Stukeses made an oral deal: Bachmeyer could graze his herd on their land if he would expend his time and money fixing their place up. He did, to the tune of about $8,186.00, but clearly some event must have intervened to sour the deal, because the Stukeses refused to let Bachmeyer’s longhorns graze. “Be that way,” Bachmeyer may have replied, “but give me back the $8,186.00 I spent.” Strangely, they refused to even do that.

The other side in today’s hearing reminds us of the Stukeses, but that’s another story.

Bachmeyer sued, and the Stukeses obligingly counterclaimed, raising a host of complaints against him about trespass, shoddy fence-building, cutting down too many trees … the works. The trial thus turned into a regular furball, made more complicated by the lack of a written agreement that would have settled a number of issues.

Things got even messier, because it turned out the Stukeses didn’t do much better choosing lawyers than they did writing contracts. Their attorney let the trial court give a whacked-out jury instruction on the meaning of “trespass,” one which essentially required the jury to find that Bachmeyer intended or negligently trespassed, instead of merely intending the act that led to the trespass.

lightning151002Mark Twain once observed that “[t]he difference between the almost right word and the right word is really a large matter — it’s the difference between lightning and a lightning bug.” And was he ever right! At law, one has trespassed if he or she intends or negligently enters onto the real property of another. That is, if you step off a public sidewalk onto my lawn in order to let a group of nuns pass, you have trespassed. You intended to take the step that you took, and intended to end up on my grass. It matters not that you were being polite, or that it was for a good reason, or that the Pope would have wanted you to do so. It’s trespass.

If however, you remained on the sidewalk, but the nuns grabbed you and threw you bodily onto my lawn, you did not trespass – not that nuns would ever do such a thing.

The instruction the court gave let the jury think that Bachmeyer had to intend that his incursion on the property was a trespass. If turned trespass into a “state of mind” offense that it has never been. The upshot of the wrong instruction — just the almost right words in almost right places — as well as the Stukeses’ lawyer being asleep at the switch, was a judgment against the defendants. The Stukeses were told to cover Bachmeyer’s $8,186.00, and for good measure to pay Bachmeyer’s legal fees in the amount of $17,500.00.

The Court of Appeals wasn’t terribly sympathetic… except on the fee award, which it sent back for reduction and recalculation. Speaking of fees, we bet that the Stukeses’ lawyer’s had some trouble collecting his.

Stukes v. Bachmeyer, 249 S.W.3d 461 (Tex.App., 2007). Bachmeyer and the Stukeses owned neighboring properties. They entered into an oral agreement to allow Bachmeyer to use the Stukeses’ property to graze cattle in exchange for Bachmeyer‘s agreement to replace the fence separating the two properties, to remove brush, and to otherwise improve the Stukeses’ property. The total value of Bachmeyer’s material and labor was $8,186.00.

When the Stukeses didn’t pay him, he sued. The Stukeses counterclaimed breach of contract, negligence, trespass, promissory estoppel, and a declaratory judgment. They claimed Bachmeyer failed to perform his services in a workmanlike manner because portions of the property had been flooded unnecessarily, requiring repairs to roadways and replanting of pasture; Bachmeyer removed trees that he wasn’t authorized to remove; Bachmeyer removed vegetation in a manner that left the property uneven and unsuitable for pasture; Bachmeyer failed to fertilize and to control weeds, or he did so in an improper manner; Bachmeyer installed fencing unevenly, so that it encroached on the boundaries of the property; Bachmeyer damaged the Stukeses’ tractor; and Bachmeyer altered the natural terrain of the property in a manner that directed excess water runoff onto the Stukeses’ property.

The case was tried to a jury that found in Bachmeyer’s favor on all claims. The trial court entered a judgment ordering that the Stukeses take nothing by their counterclaims, that Bachmeyer recover actual damages from the Stukeses in the amount of $8,186.00 plus interest, and that Bachmeyer recover attorney’s fees in the amount of $17,500.00 for trial and $4,000.00 more if the Stukeses appealed.

trespass151002The Stukeses promptly did appeal, claiming that the evidence was legally and factually insufficient to support the jury’s negative findings on trespass and negligence claims, and that the evidence was legally insufficient to support the jury’s finding on Bachmeyer’s attorney’s fees.

Held: The verdict on trespass and negligence was upheld. It turned out that the trial court gave the jury a bad instruction on trespass. Trespass to real property occurs when a person enters another’s land without consent. To recover trespass damages, a plaintiff must prove that (1) it owns or has a lawful right to possess real property, (2) the defendant physically, intentionally and voluntarily entered the land, and (3) the defendant’s trespass caused damage.

But the trial court gave the jury a bum instruction. It told the jury that “[o]ne who intentionally trespasses upon land in possession of another is subject to liability whether or not the actor causes harm to the other. A trespass may also be committed through negligence.” The jury paid attention, and found that Bachmeyer did not intentionally commit a trespass, and that he did not negligently commit a trespass.

The problem was that negligence is not a required element of a trespass cause of action. What’s more, while a plaintiff has to prove that the defendant intentionally committed the act that constituted a trespass, the plaintiff doesn’t have to show that the defendant intended a trespass. If Bachmeyer had tripped on a tree root and fallen over the boundary, the act would not have been a trespass. But if he walked over the boundary — even if he didn’t know the boundary was there — he would be trespassing, because he intended the action, walking, that resulted in the invasion of the property. The jury charge, however, required the jury to find that Bachmeyer either intentionally or negligently committed a trespass.

The Stukeses did not object to these instructions. They were, therefore, required to show more than simple trespass, and the Court of Appeals was duty bound to assume that the charge correctly stated the law. As for alleged overflow of water onto their land from Bachmeyer’s land, the Court ruled, the Stukeses were heist by their own petard: they were unable to prove that Bachmeyer had negligently or intentionally trespassed with the water onto their land. As for the wandering fence, the Stukeses argued it encroached on their property in places. Bachmeyer testified he and the Stukeses had agreed on the encroachments. The Court held that the mere fact that the fence encroached on the Stukeses’ property was insufficient to establish that Bachmeyer intentionally or negligently trespassed. The jury was free to believe or disbelieve Bachmeyer’s testimony that the parties agreed to place the new fence as closely as possible to the old fence and that he did so. The Court deferred to the jury’s resolution of this credibility issue.

The Stukeses also argue that Bachmeyer trespassed because he unnecessarily cut down trees on their property. A landowner that intends to have timber cut on his property owes a duty to adjoining landowners to ascertain the property line of adjoining land with diligence and care. Here, the Court said, the Stukeses and Bachmeyer agreed that to replace the old fence, some of the trees would have to be removed. Bachmeyer testified that he told the Stukeses that he would have to remove some of the trees to put up a straight-line fence and that the Stukeses agreed to the removal of the trees. It is undisputed that Bachmeyer had the right to remove trees on the Stukeses’ property to construct the new fence. Whether he negligently or intentionally exceeded that right, the Court said, was inherently a fact question. The jury had factually and legally sufficient evidence to conclude that he did not.

– Tom Root

Case of the Day – Wednesday, April 13, 2022


nimby151023The Croneys of Bigelow, Arkansas, bought a place on Taylor Loop Road, and — apparently being NIMBY enthusiasts — immediately sued the city to keep it from making their residential road any bigger or better. The court told them they had to name all the other landowners as parties to the suit. They did not, and the court threw the case out.

That was back in 1998, and the Croneys thereafter probably got busy with Y2K or the dot-com bubble or maybe just going to see There’s Something About Mary. Whatever the reason, they didn’t pursue it. But when the City started to bury new utilities on the road in 2005, the Croneys sued again.

This time, the City complained that the suit was barred by res judicita, a doctrine that prevents parties from litigating the same issues over and over, sort of a “one bite of apple” doctrine. After all, the City complained, the Croneys tried this lawsuit once before and got thrown out. What’s more, when the Croneys added some neighbors to the suit, the neighbors were dismissed as defendants and the Croneys were told to pay their legal fees. The trial court agreed.

The Court of Appeals reversed and remanded the case. It concluded that when your case gets thrown out for failure to join necessary parties, you’ve not had a fair chance to litigate the issue. The heart of res judicata is that the plaintiff gets one bite of the apple before the apple’s taken away. Here, the apple was snatched away before the Croneys got their first chomp.

apple151023Also, the Court of Appeals was a bit miffed that the trial court said the Croneys’s claims against the few neighbors they did include as defendants to the suit were meritless. The trial court could hardly complain on one hand that the Croneys had no claims against the neighbors and complain on the other that the neighbors were necessary to be included as defendants in the case.

This may seem to be a dry-as-toast civil procedure issue, but on such technicalities serious neighbor law issues may founder.

Croney v. Lane, 99 Ark.App. 346, 260 S.W.3d 316 (Ark.App., 2007). In 1998, the Croneys bought property on Taylor Loop Road. They sued to enjoin the City of Bigelow and Perry County from improving Taylor Loop Road. The trial court ordered them to clearly specify the relief sought and to join in the lawsuit “all landowners that may use the subject road to access their property.” They didn’t do, so the trial court dismissed their complaint.

In July 28, 2004, the Croneys again sued to quiet title to their property, subject to a public easement by prescription across Taylor Loop Road, and to enjoin the City from installing utility lines under the roadway. In response, the City argued the Croney’s lawsuit was barred by the doctrine of res judicata.

toast151023The Croneys amended their petition to allege that neighbor Buddy Lane destroyed their trees and was continuing to trespass on their property, and to allege that other neighbors, the Hootens, owned the land. The trial focused primarily on the width of Taylor Loop Road and the uses to which the City has made of it, but there was also testimony regarding the lack of records in the clerk’s office indicating how the road has been used, about the ever-increasing width of the road, and about the City’s placement of culverts and water lines under the road. At the close of the testimony, both defendant Lane and the Hootens moved for directed verdicts. The motions were granted.

The court entered an order dismissing Croneys’ complaint for failing to join all of the landowners on Taylor Loop Road, and because the action was barred by res judicata because appellants had previously filed suit against the City on the same issues and that the previous suit had been dismissed with prejudice. Finally, the court declared Taylor Loop Road a public road.

Croneys appealed, arguing the trial court erred in summarily dismissing their complaint on the basis of res judicata, that the City had no right to bury utilities under, or to widen, Taylor Loop Road, that the Croneys were entitled to a decree describing the City’s easement with specificity, and that the trial court erred in dismissing Croneys’ petition to quiet title.

Held: The trial court’s decision was reversed, and the case was remanded. The Court said that the purpose of the res judicata doctrine is to put an end to litigation by preventing the re-litigation of a matter when a party has had one fair trial on the matter. The test to determine whether res judicata applies is whether matters raised in a subsequent action were necessarily within the issues of the former suit and might have been litigated there.

The key question is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Here, the Court said, the Croneys did not have a full and fair opportunity to litigate their case, because it was involuntarily dismissed pursuant to the rules of civil procedure for failure to add necessary parties and to clearly specify the relief sought. The fact that the trial court specified that the dismissal was “with prejudice” didn’t matter, because the trial court had had the option to make it without prejudice, and the rules prevent declaring a case as dismissed with prejudice the doctrine of res judicata should not apply.

The Croneys liked their street the way it was ...

The Croneys liked their street the way it was …

The Court of Appeals said that dismissal of the case for failure to join indispensable parties was improper, because nothing in the record showed that the nonjoined property owners could not be joined to the lawsuit. As a predicate to dismissing a case pursuant for nonjoinder, a trial court must determine that the indispensable, nonjoined parties cannot be made parties to the litigation. Consequently, before dismissing appellants’ case, the trial court was required to determine that the nonjoined parties who relied on Taylor Loop Road to access their properties were not amenable to process. Here, the Court said, nothing in the record indicated that these other parties could not be joined.

The trial court had dismissed Lane and the Hootens as defendants because the Croneys presented no evidence establishing that Lane had destroyed their trees or was continuing to trespass on their property. The trial court awarded Lane and the Hootens fees after concluding that the actions against them were “totally lacking a justiciable issue of law or fact, as permitted by Ark.Code.Ann. §16-22-309(a)(1). This offended the Court of Appeals, which complained that the trial court erred, on one hand, in finding that Croneys were required to join all of the adjacent property owners in the suit while, on the other hand, finding that their claim against the only adjacent property owners who had been added was lacking merit.

Although the arguments made against the Hootens were weak, the Court said, the Hootens were nonetheless indispensable parties whom appellants were required to join for a complete adjudication of the road issues. Consequently, the trial court erred in awarding attorney’s fees to the Hootens. As for Lane, he was not an indispensable party, and Croneys presented no evidence establishing the merit of their claims against him. The trial court was permitted to assess fees against the Croneys for Mr. Lane. 

– Tom Root


Case of the Day – Tuesday, April 12, 2022


Among our favorite meaningless aphorisms is the admonition that “doing nothing is not an option.”

Who are these guys kidding? Doing nothing is always an option, which helps explain why so many people do it so often and so well. We admit that sometimes doing nothing brings on unpleasant results. But a lousy outcome does not mean that doing nothing is not an option. It only means that it may not be a wise option.

In a lot of legal decisions, you can sense some of the undercurrents at work behind the law that’s being applied, like you’re getting a glimpse of the litigants’ B-roll. In today’s case, you have the good guy defendants – Ev and Marie Walsh, who happily occupy their snug little home – and then there’s the ogre plaintiff, the absentee owner of the rental house next door.

How do we know this? First, when landlord Ed Scannavino noticed his retaining wall starting to tilt and break apart, he didn’t stop by at the Walshes for a pleasant chat. Instead, he sent the neighbors a letter complaining that their trees were knocking down his wall. The nice-guy neighbors ignore the impersonal slight that the letter represents, and hire contractors to professionally trim their trees along the wall.

The trimming did not help, because the problem was encroaching roots. So a few months later, Ed ramps it up with a certified letter, so the Walshes would have to sign for it. How often have you ever gotten a certified letter containing good news? In the letter, Ed complains again, but this time he adds that if the Walshes try to fix the problem he had demanded they fix – like the dutiful neighbors they are – they had better not let their contractors step on his land unless they first prove they have insurance and permits.

This time, the Walshes detected Ed’s condescension, or at least sensed the futility of trying to make this guy happy. In response to the certified letter, they did nothing. Which, it turns out, was as good an option as anything.

Face it – absentee landlord Ed was spoiling for a fight right from his first letter. How did that work out for Ed? Well, as the Good Book says, sow the wind, reap the whirlwind. Ed got a fight all right, and when the smoke cleared, Ed’s retaining wall lay in small chunks in his yard.

Ed had to rebuild the wall, and he had to pay for it. President Trump could be inspired by such an outcome.

Scannavino v. Walsh, 445 N.J.Super. 162, 136 A.3d 948 (N.J.Super.A.D. 2016). Ev and Marie Walsh had a house next to each one owned by Ed Scannavino. Ed was a landlord, with a tenant occupying his parcel. The Walsh family moved into their home in 2004.

The properties were separated by a cinder block retaining wall, about four feet high and 100 feet long. Sometime after the Walshes moved in, a mulberry tree and some shrubs began growing on their property near the retaining wall. No one knew how the tree got there, and the trial court held it was a natural occurrence.

Once the tree and shrubs began growing, Marie or her son trimmed the trees every year, but never trimmed any of the roots below ground level. No evidence was presented that trimming trees above the ground had any effect on the growth of the roots.

Ed said he first noticed damage to the retaining wall in January 2012, and he asserted roots from the mulberry tree and shrubs caused the retaining wall to tilt. He sent a letter to Marie expressing concern about the damage. She hired some guys to trim the trees and bushes near the retaining wall. But 10 months later, Ed sent Marie a second letter, this one by certified mail, complaining again that “the trees on your property have caused excessive damage to my retaining wall.” In the spirit of accommodation, Ed warned Marie not to have any workers she hired enter his property to remove the trees without first supplying him with proof of insurance and permits. Marie did not respond.

Nine months later, Ed sued the Walshes, alleging that their careless, negligent, and grossly negligent maintenance of their property caused the damage to the retaining wall. He demanded $12,750 in damages.

At trial, the Walshes argued that improper installation, or “simple wear, tear, and deterioration,” could have caused the damage to the retaining wall. Marie also asserted that when she and her husband moved onto the property, the retaining wall was already tilting and had some cinder blocks missing.

The trial court found that the trees near the wall were a “naturally occurring condition and therefore defendants cannot be held liable for the condition of the wall.”

Ed appealed.

Held: The mulberry and shrubs were not a nuisance, and the Walshes were thus not liable. The Court noted that the Restatement (Second) of Torts held that “neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.” A natural condition of the land includes the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them.

Thus, the Court said, “we have recognized that the Restatement (Second) of Torts ‘draws a distinction between nuisances resulting from artificial and natural conditions of land. The former are actionable; the latter are not’.” But here, Ed was claiming that Marie and Ev were liable “not because of the natural process of the growth of the tree roots. Instead it is the positive act — the affirmative act — of the property owner in the actual planting of the tree which instigated the process.”

The Court disagreed. “The fact that the affirmative act is helped along by a natural process does not thereby make the condition a natural one within the meaning of the traditional rule.” Here, the trial court found the tree roots that grew and allegedly damaged the retaining wall were a natural condition. It is true, the Court said, that the Restatement (Second) of Torts may permit liability for damage caused by a tree not planted by the possessor of land where the possessor has “preserved” the tree. However, the preservation envisioned by the comment “means some sort of affirmative action on the part of the defendant and not its failure to act.” There was no evidence Marie took affirmative action to preserve the trees or engaged in any “nurturing” like fertilizing, or in any other maintenance “designed to keep the trees alive or growing.” Rather, she and her son simply trimmed the trees.

The Court rejected the notion that it needed to explore whether evidence of trimming or pruning that improves the health or growth of a tree would be sufficient to convert a “natural” tree into an “artificial condition.” Ed had not introduced any evidence that Marie’s trimming had improved the trees health or accelerated root growth, and the trial court had found nothing else in the record that suggested “Marie or her agent caused the damage to the wall.” Even Ed admitted on appeal that he was not suggesting that Marie’s trimming back the trees had increased root growth.

Instead, Ed argued that the mere fact she had trimmed the trees made her responsible for whatever damage the tree caused. The Court rejected this, pointing out that “the rule of non-liability for natural conditions of land is premised on the fact that it is unfair to impose liability upon a property owner for hazardous conditions of his land which he did nothing to bring about just because he happens to live there.” Because Marie’s trimming did not bring about root growth, she could not be blamed for the damage to the retaining wall. Besides, the Court said, Ed’s proposed rule of liability would “lead to the anomaly of imposing liability upon one who cuts back wild growth ‘while precluding liability of an adjacent landowner who allows the natural condition of his property to run wild’.”

The Court wanted to be sure it did not send the signal that doing nothing was an option.

– Tom Root


Case of the Day – Monday, April 11, 2022


poster151022The fight against the late (or maybe not so late) COVID-19 pandemic has been compared to a war effort. That is in part to remind us that we all have to contribute to the common struggle. A long time ago in a war far away, everybody was doing all he or she could for the war effort. Buying bonds, working on the home front, soldiers marching, airmen flying, sailors sailing, marines landing… we were all in it together.

The Heaths, who owned property in New Jersey, were in it, too, and were only too happy to provide an easement to a defense plant for a natural gas pipeline to be laid under their land.

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

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

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

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

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

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

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

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

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

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

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

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

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

Duke appealed.

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

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

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

– Tom Root


Case of the Day – Friday, April 8, 2022


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

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

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

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

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

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

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

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

The trial court agreed. Garza appealed.

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

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

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

– Tom Root


Case of the Day – Thursday, April 7, 2022


Angelspathsite140325Rare is the opportunity to glean two instructive cases from one malefacting (if that’s a word) defendant. However, such is our good fortune with Ohio developer Angel’s Path, LLC (and yes, the apostrophe suggests there was only one angel on the path). Last month, we reported on disgruntled Angel’s Path neighbor Clarence Peters, who narrowly escaped being thrown out of court because he defended against summary judgment on the cheap. At the time, we promised the tale of the Kramers the next day. Sorry about that – who knew how much interesting stuff would happen in the meanwhile?

But at long last, we find out how his neighbors, the Kramers, fared when they went after the same developer because their home was disrupted by noise, dirt and even light from the new home development.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Every day seemed like the Dust Bowl to the Kramers …

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

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

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

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

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

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

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

– Tom Root