Case of the Day – Friday, February 16, 2018


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

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

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

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

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

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

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

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

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

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

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

Jim Platt appealed.

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

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

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

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

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

– Tom Root


Case of the Day – Thursday, February 15, 2018


It started as a simple idea: establish a court without lawyers, a place where people with a beef could be heard, where small-scale justice can be dispensed, where people found common-sense answers to problems. And thus small claims court was born, having its origin – ironically enough – as the “court of conscience” in medieval England.

The rules are simple, the docket is swift: usually, from filing of the action to hearing not much more than a couple of weeks pass. There is no fancy-Dan pleading, no arcane procedures, no onerous discovery. Just two people with a problem and one judge to listen and decide.

Many years ago, long before law school interrupted my life, I sent roses by FTD to a girl in another state on Valentine’s Day. I thought it strange when she thanked me for the “flowers.” People would normally say “thanks for the roses.” After about the third time she said “flowers” instead of “roses,” I thought to ask her what she had received from me. It turned out that I paid for roses, and got a mixed-flower arrangement suitable for a funeral… but not a beloved.

When I complained to my local florist, he told me dismissively that if the receiving florist in the other state was out of roses, he or she could substitute “another arrangement of equal value.” Getting no satisfaction there, I filed a small claims complaint. On the day of the hearing, the flower shop owner stalked into the courtroom and gave me my money back.

Sweet justice!

So I love small claims court. But I recognize its principal drawback, which is that lawyers can still show up and make a mess of things. That’s what happened in today’s case.

Daphne Kohavy, a savvy resident of Gotham, rented a parking space in a lot next to her co-op apartment building in the Bronx. The co-op had a management company, Veritas, running the lot. Daphne’s car was parked under an oak tree, which rained acorns on her ride. This should not seem surprising to many of us who understand that those funny little acorns hanging on oak trees like to drop. But Daphne was a New Yorker, and had only the most fleeting acquaintance with green things that grow from the earth. The acorn rain surprised her, and – according to her complaint – caused over $1,500 in damage to her wheels.

She sued in small claims court. Veritas brought its lawyers (in its defense, the law required it appear through lawyers, because it was a limited liability company). Its lawyers started milking the case for fees, filing motions to dismiss for all sorts of reasons.

The court was not amused. Small claims court is supposed to be easy, where parties aired the claims instead of tying each other up in “gotcha” motions. The court scolded the defendants, holding that because Daphne said the tree was defective, she should have a chance at trial to prove it.

We don’t think much of Daphne’s lament. Oak trees drop acorns. That’s no surprise. But on the other hand, Veritas tried to muck up the small claims process (forcing poor Daph to go out and hire her own lawyer). Perhaps distributive justice – where the right thing gets done for what nominally is the wrong reason – triumphed.

Kohavy v. Veritas Management, LLC, 2017 N.Y. Misc. LEXIS 1380 (Civil Ct. Bronx County, 2017): Daphne Kohavy leased a parking space next to her apartment building on a lot owned by defendant 511 W. 232nd Owners Corp. was the owner of the parking lot. Veritas Management, LLC was the lot’s managing agent. While parked there, Daphne’s car was damaged from acorns falling from a tree overhanging her parking space. It sounds like classic encroachment and sensible harm. She sued in small claims court for $1,500.

Veritas, through its lawyers, moved to have Daphne’s claim dismissed because it was just the manager, not a party to the contract for her space between Daphne and the Co-op, and not the owner of the lot or the oak tree. What’s more, Veritas claimed, it did not maintain exclusive control of the premises, and even if it did, the law does not recognize a cause of action in negligence for damage due to falling acorns.

The motion to dismiss also claimed that the Co-op could not be held liable as the damage to Daphne’s car was caused by a healthy tree, and even it was not, the Co-op lacked notice of any such defect.

Held: The court began by scolding Veritas for gumming up the court’s processes with dispositive pretrial motions, noting that the “informality and convenience of small claims practice is necessarily frustrated by requiring pro se litigants to respond to formal motion practice…” But in the interest of moving things along, the Court addressed Veritas’ motion.

The Court found that there was a question of fact (because Daphne had said so) regarding the condition of the overhanging oak tree that had damaged her car. While the Court said there was no privity of contract between Daphne and Veritas, “questions of fact with regards to defendant Veritas’ control over the parking lot, as per the terms of the management agreement between defendant Veritas and defendant Cooperative, exist.” If Daphne could show that Veritas maintained exclusive control over the parking lot under the management agreement between it and the Co-op, and that Daphne’s damages were the result of Veritas’ negligence, she might be able to recover in negligence from Veritas.

The Court noted that Daphne “commenced this Small Claims action as a pro se litigant. It was not until the plaintiff was served with this instant motion that plaintiff retained counsel to represent her. Accordingly, in this case, the filing of this instant motion prior to a hearing has indeed frustrated the purpose of New York City Civil Court Act § 1804 and its concern for protecting inexperienced pro se litigants and providing them with an expeditious and inexpensive forum to resolve small claims.”

– Tom Root


Case of the Day – Wednesday, February 14, 2018


The old ‘60s cartoon George of the Jungle featured an earworm theme song that always warned George to “watch out for that tree!” just before he collided with an unforgiving trunk. Tom Kranz discovered that life imitates art.

Grandpa Tom should have watched out for that tree, too. As he pushed his granddaughter’s stroller past the Perkins’ house, he noticed a limb from one of their trees was overhanging the sidewalk. He moved onto the tree lawn to sidestep the branch, but somehow managed to skewer his eardrum with a twig.

Ouch. But in a case with parallels to yesterday’s coffee-shop debacle, Tom sued the Perkins, claiming they owed him a duty to be sure he did not run into a branch he could clearly see and avoid. And just like yesterday, the court said (albeit it with some legalese), “C’mon, man!”

Even when someone is just walking past your house, they are a licensee, entitled to use the public sidewalk, and you have a duty not to engage in willful or wanton conduct that cause them harm. But an untrimmed branch does not rise to such willful or wanton conduct, and that’s especially so where the pedestrian is perfectly able to see the danger. Tom admitted to an accident investigator that the tree was “easy to go around.” Where a licensee has equal knowledge of the dangerous condition or the risks involved, the court told Tom, “there is no willful or wanton action on the part of the owner and there is no liability to the licensee.”

Common sense… parents, mind your kids. And Tom, for heaven’s sake, watch your head.

Perkins v. Kranz, 316 Ga.App. 171 (Ct.App. Georgia, 2012). While walking in a Gwinnett County subdivision, Thomas Kranz’s eardrum was punctured by a branch from a tree overhanging the sidewalk. Kranz sued Jerry and Nyda Perkins, on whose property the tree was located, claiming negligence. The Perkins asked the trial court to throw out Tom’s complaint, but it refused.

The Perkins appealed.

Held: Tom’s case was thrown out. After all, saw the tree, with its limbs extending over the sidewalk, obstructing his path. To avoid them, Tom moved off of the sidewalk onto the strip of grass between the sidewalk and street. But as he passed the tree, he felt a sharp pain, and eventually realized that a twig had entered his ear and pierced his eardrum.

The essential elements of a negligence claim are the existence of a legal duty, breach of that duty, a causal connection between the breach and the plaintiff’s injury, and damages. The threshold issue is whether the Perkins owed a legal duty to Tom Kranz. The Perkinses argued that Tom was, at best, a licensee, but Tom said he was an anticipated licensee, and argued the Perkinses had to exercise ordinary care to prevent injuring him.

But the Court said it did not matter what Tom was. Pretermitting any decision on Kranz’s potential status as a licensee, anticipated licensee, or invitee, he may not recover as a matter of law because the evidence establishes that he had equal knowledge with the Perkinses of the potential danger posed by the tree.” In other words, the Court said, Tom could see the branch. If he was negligent enough to walk into a tree branch he could easily observe and avoid the branch, he had no one to blame but himself.

An owner, the Court held, “has no duty to a licensee to keep the premises up to any standard of safety, except that [the property] must not contain pitfalls, mantraps, and things of that type.” Here, the tree and its overhanging branches were “in no way a pitfall, mantrap, or hidden peril.” Tom should have avoided the danger. He did not. Tough luck.

– Tom Root


Case of the Day – Tuesday, February 13, 2018


This is hardly a law school final exam question: Two parents and a couple of hellion spawn walk into a Starbucks. The kids promptly begin running amok, using the furniture and fixtures like a jungle gym. Specifically, the whelps begin swinging from ropes and climbing stanchions used to mark off the line for coffee. After taking plenty of abuse from the ankle-biters, one of the stanchions falls, injuring one of the kids.

Quick: Who’s liable?

If you said Starbucks, we congratulate you, because you have a wonderful future ahead of you as a plaintiff’s attorney. If you said the parents should be responsible for their offspring’s monkeyshines, you have a future, too… as a judge.

The Roh family, a father and mother, and 3- and 5-year old boys, visited a newly-opened Chicago Starbucks. This one had some fancy line dividers (as the line-divider industry likes to call them), created from some recycled 19th-century ironwork. The dividers were mounted on concrete plugs to prevent tipping.

You’ve probably seen parents like these two, maybe focused on their smartphones, maybe lost in conversation, maybe just tuned out… the kids run wild, and their folks remain oblivious. But when the inevitable disaster befalls, it becomes anyone’s fault except the kid’s. Or the parents’…

But contrary to breathless Internet stories and hand-wringing commentators, America remains a land of individual responsibility. To be sure, a landowner who invites kids onto the premises is liable for dangerous conditions where the risk to the child is reasonably foreseeable. But while this rule applies where a kid is on his or her own. But where the child is with a parent, the landowner may be relieved of his or her duty to the child because parents are primarily responsible for their child’s safety, because it is their “duty… to see that his behavior does not involve danger to himself.”

What a refreshing concept! Parents are responsible for their kids…

Roh v. Starbucks Corporation, Case No. 16-4033 (7th Cir., February 2, 2018): The Roh family was visiting a recently-opened Starbucks store in downtown Chicago, two parents with sons Marcus, age three, and Alexander, age five. The store had custom metal stanchions for placement within the store to direct the flow of customer traffic, salvaged posts made of 1800’s-era iron fences or stair posts. The stanchions were freestanding, but mounted on heavy concrete bases and connected with ropes to control shopper traffic.

As the family was leaving, the parents heard their son Marcus begin crying. The father, who had heard a loud noise immediately preceding Marcus’s cries, saw that one of the stanchions had been knocked to the ground, striking the boy and pinning his hand. Marcus lost his left middle finger and seriously injured his index finger.

Neither parent witnessed what had happened, but the boys admitted to swinging on the ropes, running around the dividers, and climbing the stanchions.

Naturally, the Rohs sued Starbucks, claiming it was negligent by failing to safely maintain the premises, to adequately secure the stanchion, to properly inspect it to ensure its stability, to warn patrons of the potential danger posed by the stanchion, or to realize that minor patrons would not appreciate the risk posed by the unsecured stanchion. The district court granted summary judgment for Starbucks, holding that the boy’s parents, not Starbucks, bore the responsibility to protect Marcus from the obvious danger posed by playing on the unsecured stanchions.

The Rohs appealed.

Held: The Rohs collect nothing, because any duty owed Marcus by Starbucks was abrogated by his parents’ presence with him in the store that day.

Whether a duty exists in a given case turns on the foreseeability and likelihood of the injury, the difficulty of guarding against it, and the consequences of laying the burden to guard against the danger on the defendant.

Generally, landowners or occupiers in Illinois owe no greater duty to small children than the duty owed to adults. In premises-liability cases involving injury to a child, “the true basis of liability [is] the foreseeability of harm to the child.” The Court said that a child’s injury will be deemed foreseeable to the landowner if (1) the owner or occupier knows or should know that children habitually frequent the property; (2) a defective structure or dangerous condition is present on the property; (3) the defective structure or dangerous condition is likely to injure children because they are incapable, due to their age and immaturity, of appreciating the risk involved; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition is slight when compared to the risk to children.

Things change, however, when the child is accompanied by his or her parents. This is because “the responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself.” A landowner’s duty to a child is abrogated if “the child was injured due to an obvious danger while under the supervision of his or her parent, ‘or when the parents knew of the existence of the dangerous condition that caused the child’s injury’.”

Both parents admitted they saw the heavy stanchions. The Court stated the obvious, that “it is a matter of common sense that serious injury could result from climbing on the stanchions and swinging from the ropes connecting them together.” Maybe the parents did not foresee that Marcus would get his finger crushed, but they don’t have to foresee the particular injury. It is enough that the Rohs saw the stanchions, which were plainly very heavy. Any parent could foresee that a child hanging from the rope connecting the stanchions or otherwise playing on and around them could be injured, the Court said, and that is “sufficient to support the conclusion that Starbucks did not breach any duty to Marcus, who was engaged in an activity while under his parents’ supervision that could obviously lead to injury of some kind.”

What the Court was saying was they should have known better. “It was plainly evident to the Rohs that the heavy stanchions were intended to control traffic flow in the store; their failure to prevent their sons from climbing and playing on them led to Marcus’s injury, not the breach of any duty on Starbucks’ part.”

– Tom Root


Case of the Day – Monday, February 12, 2018


Everything's big in Texas ... don't get stung.

Everything’s big in Texas … don’t get stung.

Texas is a pretty big place. So when Scott, who was selling a little 175-acre spread to Bill and Julie Coales, reserved to himself the right of ingress and egress — basically, a license to used a road through the land — we’re not talking a jungle trail. We’re talkin’ big. And we’re talking about moving a lot of mobile homes.

At least, that’s what the defendants said in today’s case. After they bought the place, the Coales decided move in Julie’s parents, and to do it in style. So they hauled in some house trailers, no doubt in order to let the old folks live in luxury. But by doing that, they constricted the 100-foot wide path, making it harder for the Scotts to haul through … well, whatever big stuff the Scotts had to haul through.

The Scotts sued, claiming that they couldn’t get their own trailers in, drive through with their 18-wheelers, and turn off the road wherever they wanted to with their 4 x 4s. The Coales disagreed, contending that no one needed more than the small path down the center to get to their properties. Even in Texas.

The trial court disagreed with the Coales, and the Court of Appeals explained with some care why the unambiguous grant of the right of ingress and egress — coupled with the evidence that the Scotts needed the whole width of the former airstrip for moving in their own 18-wheelers, garbage trucks, and, yes, even their own mobile homes — meant that the neighbors’ use of the 100-foot wide, 31⁄2-acre right was “reasonably necessary and convenient.”

The Coales didn't leave the Scotts much space to haul in their mobile home.

The Coales didn’t leave the Scotts much space to haul in their mobile home.

Everything’s big in Texas. Even 100-foot wide driveways.

Coale v. Scott, Not Reported in S.W.3d, 2007 WL 2428631 (Tex.App. Aug. 28, 2007). A 175-acre tract of Texas land was conveyed to Bill and Julie Coale in 2004, reserving to some other landowners “the right of ingress and egress on the part of all landowners” a roadway, which happened to be a 100-foot wide abandoned airstrip. After the Coales bought the property, they started placing two mobile homes on the north side of a trail that runs down the middle of the airstrip. They also installed a storage unit on the south side of the trail, as well as fencing, a ranch gate, and a septic system.

The Coales planned to move their parents into the trailer homes. They contended that “neither of these structures prevented the [other owners] from using the old trail that they and others before them had always used to get to their properties.” The property owners who had the right of ingress sued the Coales. The case went to the trial court jury on the issue as to the width and location of the “passageway” across the land. The jury found in favor of the plaintiffs, deciding they had the right to use the entire 100 foot-wide tract for ingress and egress to their adjoining properties.

The Coales filed a rambling appeal, arguing that the plaintiffs were only entitled to a way across the Coales’ property that was reasonable and necessary for them to have passage to and from their property and imposes the least burden on the Coales’ property.

The Scotts thought their right of egress was fairly wide.

The Scotts thought their right of egress was fairly wide.

The jury’s finding was upheld. The Court noted that under Texas law, the terms ingress and egress indicate rights inherent in the owners of the dominant estate to pass through the servient estate. They do not imply the right to linger for recreational purposes. The owners of the dominant estate are entitled to the rights granted by the instrument, and no more.

A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner. As for the extent of the right, the case of an unambiguous writing, courts will give effect to the intention of the parties as expressed by or as apparent from the writing.

Here, the Court said, the grant expressly provided “[t]his roadway is subject to the right of ingress and egress on the part of all landowners in the above described 173.45 acres tract.” No mention was made of any other rights of use, and none may be implied. The Court saw no reason to go outside of the clear language of the express grant. There was no dispute that the 3.629 acre tract was 100 feet wide. Instead, the dispute centered around what the Coales believed the plaintiffs actually needed to use for their rights of ingress and egress. The Coales argued the plaintiffs were only entitled to a way across the Coales’ property that was reasonable and necessary for them to have passage to and from their property, and that the dirt or gravel road that ran down the middle of the airstrip.

The Coates planned to install their parents in a nice, carefree mobile home.

The Coates planned to install their parents in a nice, carefree mobile home.

The Court, however, held that the plaintiffs entitled to the rights granted by the instrument, and no more or less. A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as minimally burdensome as possible to the servient owner.

Here, the jury considered the language in the deed, a survey depicting the properties, the legal description of the properties in the tax records, photographs, and testimony. One witness testified that for the past 20 years, he had turned into his property from any point on the airstrip. There were no gates or fences. He said the trailers the Coales placed on the airstrip impeded his access to his land, and if he were still driving his 18-wheeler, he would possibly drive over the Coales’ plumbing lines. Another witness testified she had used the whole width of the airstrip to bring her trailer into her land. Another witness testified that because of the Coales’ trailers, “you can only go one way. And if you want to pass two ways, you can forget it.”

Previously, cars going in the opposite direction could travel simultaneously by using the entire width of the airstrip. Now, one has to pull over to let the other one pass. Based on the evidence, the Court said, there was legally sufficient evidence to support the jury’s finding that use of the entire 100 feet of the airstrip was reasonably necessary for the plaintiffs’ right of ingress and egress.

– Tom Root


Case of the Day – Friday, February 9, 2018


We have written from time to time about recreational user statutes, state laws that grant immunity to landowners who make their lands available without charge to the public for recreational purposes. To encourage landowners to do this, the laws exempt such landowners from liability for unsafe conditions on the land.

The statutes vary from state to state, but the principle is generally the same: to help forestall “the continual shrinkage of the public’s access to recreational land in the ever more populated modern world.”

Sometimes the best intended laws have strange consequences. Today’s case is a perfect example. Conference Point Center is a venue on Lake Geneva, Wisconsin, available for religious retreats, camps and conferences. The public can wander the wooded paths and enjoy the lake view without charge.

Conference Point had some trees badly in need of trimming or removal, and hired Creekside Tree Service to do the work. When Jane Westmas and her son, Jason, came walking along a path and rounded a blind corner, a badly decayed limb being removed by Creekside fell, killing Jane and seriously injuring Jason.

Conference Point was immune from liability, because it was shielded by the Wisconsin recreational immunity statute, Wis. Stat. § 895.52. Creekside argued that it was really acting as Conference Point’s agent in removing the trees, so it was immune as well.

A “secret agent?” It returned us to the thrilling days of Patrick McGoohan and the Robert Vaughn/David McCallum team from U.N.C.L.E.

We have gone on at length before about the difference between an independent contractor and an employee, and how owners want to be sure that tree contractors fall on the independent contractor side of the line. Among other things, an owner is not liable for the negligence of an independent contractor in most cases, so Harry and Harriet Homeowner are better off if Tommy Treetopper drops a tree on the neighbor’s car.

But being an independent contractor can be a double-edged sword. Under Wisconsin law, if a landowner is immune, so is the landowner’s employees, officers, directors and agents. Clearly, an independent contractor is the obverse of an employee. But is it an agent?

On that question – whether Creekside was Conference Point’s agent or not – depended whether Jane’s estate could even sue for negligence. Whether there was negligence or not… that was an issue for another day.

Westmas v. Creekside Tree Service, Inc., 2018 WI 12 (Supreme Ct. Wisconsin, February 7, 2018). Jane Westmas was killed when a tree branch cut by Creekside Tree Service, Inc. fell on her while she and her adult son were walking on a public path through the property of Conference Point Center. Conference Point had contracted with Creekside to trim and remove trees from its property. Jane’s husband, John Westmas, and her son, Jason Westmas, sued Creekside and its insurer, Selective Insurance Company of South Carolina.

Creekside moved for summary judgment on the ground that the recreational immunity statute, Wis. Stat. § 895.52 (2013-14), barred claims against it. Creekside argued it was an agent of Conference Point, or in the alternative, an occupier that qualified as a statutory owner for immunity purposes.

The circuit court agreed, and threw out the case. The court of appeals reversed.

Creekside appealed to the Wisconsin Supreme Court.

Held: Creekside was not Conference Point’s agent, and thus was not immune from suit. Generally, owners of property, under Wis. Stat. § 895.52, do not owe a duty of care to keep their properties safe for entry or recreational use. In fact, not only are owners immune, but their employees, directors, officer, agents and “occupiers” of the land are protected as well.

Creekside claimed that it was Conference Point’s agent. To determine whether this was so for the tree-cutting that caused the injury, the Court said, the focus had to be on the level of control that Conference Point had the right to exert over the tree-cutting task that caused the injury. Neither the contract between Conference Point nor any evidence in the record suggested that Creekside had any special, fiduciary duty toward Conference Point.

An agent has a fiduciary relationship with his principal, a consensual relationship where the agent voluntarily places the interests of his principal before his own interests. Likewise, where a principal (like Conference Point) has the right to control the acts of a contractor (like Creekside) that are done within the scope of the agency, an agency relationship is more likely to occur. When an independent contractor has no fiduciary obligations to and is not subject to control by the principal, the court ruled, no agency relationship has been formed. The Court concluded that “an agent is one who acts on behalf of and is subject to reasonably precise control by the principal for the tasks the person performs within the scope of the agency.”

Here, Conference Point did not control or attempt to control the conduct of Creekside’s employees. Control over how trees would be trimmed or removed was retained by Creekside, especially (and crucially) the tree removal occurring at the time of the accident. Therefore, Creekside was an independent contractor rather than an agent, and was not covered by the recreational immunity statute.

Creekside still had time for one more play, a “Hail Mary.” It claimed that it was an “occupier” of the Conference Point property, and thus entitled to immunity. The Court said the definition of “occupy” in the context of recreational immunity is “to take and hold possession.” The purpose of the recreational immunity statute is to encourage landowners to open land for public use, and thus, defining a party as an occupier subject to the statute’s protection should advance “the policy which underlies the statute.”

Here, the property was already open for public use, and defining Creekside as an “occupier” would do nothing to advance that. Rather, Creekside’s presence on the property was “mere use” and did not approach “a degree of permanence,” nor did it have any effect on whether Conference Point’s property would be open to the public for recreational purposes. In the few days it was on the property, Creekside moved “from temporary location to temporary location for the limited purpose of trimming trees as needed to satisfy its contract with Conference Point. Creekside was “not responsible for opening up the land to the public,” and indeed had no authority to do so.

– Tom Root


Case of the Day – Thursday, February 8, 2018


One of the most popular parables that the New Testament reports Jesus told was in answer to a disciple’s question, “But who is my brother?” The tale of the Good Samaritan (and mind you, the Samaritans and Jews mixed like Patriots fans and Eagles boosters at last weekend’s featured event), who found a Jewish man beaten by robbers and left for dead is taught to countless Sunday School students, and has even entered the lexicon. Many states have what are known as “Good Samaritan” statutes, laws that prevent a rescuer who has voluntarily helped a victim in distress from being successfully sued for wrongdoing.

Some states have gone further, passing “duty to assist” laws that require people to assist crime victims or those in distress where special circumstances are present.

In today’s case, a woman checked into a hotel. Her husband spoke to her by phone several times during the early evening, but then was unable to reach her by cellphone or room phone. He finally called the hotel, and the front desk agreed to send a maintenance worker to check on her. Alas, the maintenance man was unskilled at this kind of welfare check. He opened the room door, saw the room was dark, called out, got no answer, and concluded no one was there. When husband drove some distance to the hotel and entered the room hours later, he found his wife on the floor, having suffered a brain aneurysm. Quicker treatment would have led to a much easier and better recovery.

What happens when a person has no legal duty to come to the aid of another, but does so anyway? Does the existence of a duty matter? The trial court thought it did, and threw out Mrs. O’Malley’s claim. The appellate court, however, found that duty did not matter as much as voluntariness.

O’Malley v. Hospitality Staffing Solutions, Case No. G054724 (Ct.App. California, Jan. 31, 2018) 2018 Cal. App. LEXIS 83. A woman checked into a hotel room in the early evening. She did not answer her husband’s calls for several hours. He suspected that she may have been injured. The husband called the hotel, and the front desk sent maintenance worker Ramos to check the room. Ramos reported that no one was there. Hours later, the husband went to the hotel room and found his wife lying on the floor. She had suffered a brain aneurism. 

The couple sued the hotel and Ramos’ employer (a staffing agency) for negligence. The agency filed a motion for summary judgment, arguing that it owed no legal duty to the married couple. The trial court granted the motion and the couple appealed (the hotel itself was not a party to the appeal).

Held: The case could proceed to trial. The Court of Appeals held that maintenance worker Ramos’argument that he had no duty to Mrs. O’Malley that would require him to check the room was correct but irrelevant. The general rule is that a person who has not created a peril is not liable for failing to take action to protect another unless the person has some relationship that gives rise to a duty to act. However, one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking.

For Mrs. O’Malley to make a claim of “negligent undertaking,” she had to show that: (1) the maintenance man agreed to render services to her; (2) the services rendered were of a kind he should have recognized as necessary for her protection; (3) he failed to exercise reasonable care in the performance of his undertaking; (4) his failure to exercise reasonable care resulted in harm to Mrs. O’Malley; and (5) his carelessness increased the risk of harm.

While under negligence, a legal duty of care gives rise to an obligation to act, under the negligent undertaking theory, acting where not obligated to act gives rise to a legal duty. Here, the court said, there were disputed facts regarding precisely what maintenance worker Ramos may have undertaken to do. The clerk at the front desksaid that she told Ramos “to knock on Mrs. O’Malley’s room . . . and if she did not answer the door, to open the door and look in and see if she was in there.” Ramos said the clerk had told him simply to “to go check on her, to go to her room and see if she’s there.”

Those conversations, and Ramos’ knowledge that Mrs. O’s husband was worried she might be injured or sick, were enough to permit the inference that Ramos may have been understood the apparent urgency of the situation. The risk that Mrs. O’Malley may have been lying incapacitated somewhere in the hotel room (beyond the threshold of the front door) may have been reasonably foreseeable. “Therefore,” the appellate court said, “the scope of Ramos’ duty may have been more than simply opening the door and peering inside what Ramos claimed was a dark room.”

The appellate court said that “a reasonable trier of fact might infer that Ramos assumed a duty to check on whether Mrs. O’Malley was in her hotel room, and if she was there, why she was not answering the phone. If Ramos had such a duty, the scope of his duty would depend on the nature of the harm that was foreseeable. That question must be resolved at trial.

– Tom Root