Case of the Day – Tuesday, May 2, 2017

IT’S GOOD TO BE KING

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

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

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

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

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

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

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

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

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

Ramp-jumping: not for amateurs…

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

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

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

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

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

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

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

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

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

– Tom Root

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Case of the Day – Monday, May 1, 2017

FORCE MAJEURE

Does anyone remember Hurricane Katrina? Who could forget the immensity of the storm, the devastation, the lives lost, the agony?

Ms. Title spent a lot of money in court defending herself against the Hoerners ... but she won this chic tote bag. She should read its message ... every day.

Ms. Title spent a lot of money in court defending herself against the Hoerners … but she won this chic tote bag. She should read its message … every day.

Doctor and Mrs. Hoerner, that’s who. These folks, Big Easy residents for 25 years, sued their neighbor, Beulah Title, under the Louisiana Civil Code article that governed negligence. It seems Ms. Title’s trees were kind of bushy, and the neighbors were always cutting them back. Ms. Title, a better neighbor to the Hoerners than they were to her, always let them trim the trees and even cut down an oak once when the Hoerners asked her to. She was a very a nice neighbor … a kindly lady who learned the hard way that Oscar Wilde was right: no good deed goes unpunished.

When the big blow came, it took down a couple of Ms. Title’s pine trees, damaging the Hoerners’ brick wall, patio and pool. And probably spilled their pitcher of martinis. Imagine the horror! We bet those poor folks in the Lower Ninth Ward didn’t have it any worse than the Hoerners. But the Hoerners had something those victims in the Crescent City’s worst neighborhood didn’t have: a lawyer. He sued Ms. Title, arguing that because she knew the trees were overgrowing the Hoerners and needed trimming, that she was liable for the damage caused when they toppled.

The courts made pretty short work of this. Rather patiently, we think, the Court of Appeals explained to the clueless (or avaricious, take your pick) Hoerners that the trees didn’t fall because of the overhanging branches. They fell because of this Cat 5 hurricane that hit the city, the one the Hoerners must have overlooked.

The Court held that even the branches had been the cause, Ms. Title could avail herself of the force majeure defense, specifically that even if she had exercised reasonable care, the injury couldn’t have been avoided because of the intervention of a greater force unforeseen by the parties.

Hoerner v. Title, 968 So.2d 217 (La.App. 4 Cir., Sept. 26, 2007). Be warned: Beulah Title is a person, not a title insurance company. Beulah Title the person had property right behind the home of Linda and Harry Hoerner. The Hoerners complained that that they had had problems with Ms. Title’s pine trees and other foliage along their brick wall since 1991. Yet, every time Dr. Hoerner sought permission to trim the trees and shrubs back to the property line, Ms. Title allowed him to do so. On many occasions, the Hoerners removed branches from Ms. Title’s trees that were hanging over the brick wall. On one occasion, Ms. Title removed an oak tree from her backyard at the Hoerners’ request. The Hoerners did not allege that the trees in question were defective, just that they were bushy.

Katrina During Hurricane Katrina, the trunks of Ms. Title’s trees were blown, damaging the Hoerner’s brick wall, patio, pool and landscaping. The damage was not caused by branches hanging over the wall, and the trees did not fall due to lack of maintenance or improper trimming. Nevertheless, the Hoerners sued Ms. Title for repairs to their property, alleging that she was strictly liable under Article 2317.1 of the Louisiana Civil Code. That provision directed that the owner of a thing (like a tree) was liable for damage occasioned by its defect upon a showing that she knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that she failed to exercise such reasonable care. Ms. Title argued that the trees were not defective and she is entitled to the defense of force majeure. The trial court agreed with Ms. Title, and the Hoerners appealed.

Force majuere - not a French superhero group - rather, a rational legal concept.

Force majeure – not a French superhero group – rather, a rational legal concept.

Held: Ms. Title was not liable. Under Article 2317.1, in order to establish liability a plaintiff must demonstrate that the owner of the thing knew, or should have known, in the exercise of reasonable care of the defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that the owner failed to exercise such reasonable care. Here, the Hoerners admitted that the trees were healthy, but they complained they were defective because they were neglected and overgrown and placed too close to the brick wall. The Hoerners cited a case where lack of tree maintenance was considered in finding that the owner had knowledge, but the Court observed that case involved a diseased tree. Ms. Title’s trees, on the other hand, were healthy.

Based on the evidence, the Court said, it did not find that Ms. Title’s trees were defective for lack of maintenance or location. While the Hoerners had shown Ms. Title’s trees had plenty of overgrowth into their yard, the evidence showed that the trees themselves were blown over and into the brick wall, causing all of the damage to the Hoerners’ property. It was not the overgrowth that did the damage. Additionally, Ms. Title was entitled to the defense of force majeure. The Court observed that the winds of Hurricane Katrina caused trees to fall and damage property regardless of maintenance or location all over the Greater New Orleans area. Thus, she could not be liable for the fallen trees under any circumstances.

– Tom Root

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Case of the Day – Friday, April 28, 2017

ENCROACHMENT, NUISANCE … AND THE MARCH OF TIME

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

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Case of the Day – Thursday, April 27, 2017

THE CONTRACT SAYS WHAT?

springsnow160321The days are warmer, but our early morning dog walks can still be nippy. Before the warm days of May are upon us next week, we should talk about what happened during a dog walk on a different cold spring day a few years ago in Utah.

Landscaper Superior Property Management Services, Inc., had been hired by the Waterbury Homeowners Association to landscape and maintain the grounds at beautiful Shanty Acres. The parties had a standard contract, one that – among other things – called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season.” Elsewhere, the contract directs the landscapers to “trim . . . small and lower branches” on trees.

The contract was just a formality. Superior has been in business since the sequoias were seedlings, and its crews knew what needed to be done. They often went beyond the literal terms of the contract, which – as was typical for landscaping contracts – were not especially detailed. Over the seasons, Superior maintained Shanty Acres very well, and the contract was repeatedly renewed. The Happy Homeowners Association was indeed happy.

Then one cold, spring day, condominium resident Colleen Hill ventured outside to walk her dog. When she followed the cavorting canine onto the lawn, she tripped over a basal shoot growing from a tree root, fell, and hurt herself. She sued both Superior and the Association, claiming that Superior owed her a duty of care because of what it agreed to do in the contract. Superior, she alleged, was negligent in not trimming the basal shoots.

But how could Superior owe Colleen Hill a duty? Its contract was with the Association, and the Association thought Superior had done a fine job. True, Superior prided itself on doing more than the contract called for, but that was what a good landscaper did. Thus, Superior’s crews normally trimmed basal roots … but if Colleen’s complaint was to be believed, it appears Superior’s workers may have overlooked the shoots that proved a snare to her feet.

Superior should have trimmed the exposed roots, Colleen said, whether the contract said it should or not ...

Superior should have trimmed the exposed roots, Colleen said, whether the contract said it should or not …

The courts finally concluded that Superior owed Colleen no duty. Its obligations were to the Association, and those obligations were those spelled out in the contract, not what additional services Superior might gratuitously provide. The landscaper won in the end, but only after four years of expensive litigation.

So what does the professional arborist or landscaper learn from Superior’s legal travails? The first lesson is to read the contract form he or she is using. Does it adequately define the services being provided? If the arborist will be performing more services than those described in the contract, those probably should be described in the contract.

At minimum, the contract should clearly provide that any services provided beyond those required by the contract are being provided as a courtesy only, and that the contract does not establish a duty between the arborist and anyone other than the client.

Will this be enough to save the arborist from frivolous lawsuits? Probably not in this society. But an ounce of careful contract drafting now may be worth a pound of lawyers later.

Hill v. Superior Property Management, Inc., Case No. 20120428 (Utah Supreme Ct., 2013). Superior Property Management had held the contract to maintain premises for the Waterbury Homeowners Association for years. The form contract called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season” and to “trim . . . small and lower branches” on trees. After resident Colleen Hill, while walking her dog one early spring day, tripped on a growth from a tree root, she sued Superior for negligence because it had not trimmed the root.

Held: The landscaper didn’t owe Colleen a duty of care. As the Supreme Court of Utah observed, the “law draws a critical distinction between affirmative acts and omissions. As a general rule, we all have a duty to act reasonably in our affirmative acts; but no such duty attaches with regard to omissions except in cases of a special relationship.”

The Court agreed that sometimes, such a special relationship might be rooted in a contract. But it held that neither specific obligation in the contract – the obligation to mow the grass weekly and edge bi-weekly “throughout the normal growing season,” or the obligation to “trim . . . small and lower branches” on trees – created a duty flowing from the landscaping company and the injured property owner.

Lesson: No contract is the ultimate contract, but that doesn't mean you shouldn't try for comprehensiveness in drafting ...

Lesson: No contract can plan for every contingency, but that doesn’t mean you shouldn’t try for comprehensiveness in drafting whenever possible …

The Court noted that “in the first place, it is not at all clear that mere failure to perform would sustain liability in tort. A breach of contract, after all, typically gives rise to liability in contract … Even assuming that Superior’s maintenance contract could sustain a tort duty, moreover, there is still no basis for liability here, as neither of the provisions required Superior to perform the acts it is now charged with omitting.” The Justices analyzed the contract provisions, pointing out that the accident happened in early spring, outside of the “normal growing season.” What’s more, the dictionary definition of “branch” is “a stem growing from the trunk or from a limb of a tree” or a “shoot or secondary stem growing from the main stem.” Therefore, the Court reasoned, “the ‘branches’ to be trimmed under Superior’s maintenance contract are protrusions from the main trunk only, not separate shoots stemming from the tree’s roots. Superior could not be in breach for failing to trim back those shoots.”

Maybe so, argued the homeowner, but regardless of what the contract may have said, the landscaper’s obligations “were not comprehensively detailed in its maintenance contract, but encompassed acts that it habitually engaged in over time.” The Court rejected this dangerous notion, declaring that there “is no room in our law for a tort duty arising from course-of-performance acts that are nowhere provided by contract.” The Justices reasoned that “where a duty is rooted in the express language of a written contract, the parties are on notice of their obligations, and are in a good position to plan their activities around them. That is not at all true for … extracontractual, course-of-performance acts relied on” by Ms. Hill. “If we were to impose a duty in connection with those acts,” the Court said, “we would establish a troubling perverse incentive. A party facing a tort duty in connection with any undertaking not required by contract would be discouraged from such undertaking. And a disincentive for gratuitous service benefiting another is not the sort of conduct that our tort law ought to countenance. In any event, to the extent injuries ensue from negligence in the performance of such activities, liability would properly be governed by a different branch of our tort law – by the standards governing liability for a voluntary undertaking, a theory we … find unavailing.”

– Tom Root

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