Case of the Day – Friday, September 22, 2017


Midsummer’s Night fell exactly one season ago, today being the autumnal equinox and all (at 4:02 p.m. EDT for you Type As), but we nevertheless still feel a little Puckish. So we thought we’d examine two neighbors, neither of whom reacted thoughtfully to a dangerous tree. “Oh, what fools these mortals be!” Midsummer Night’s Dream, Act III, Scene 2.

Traditionally, the Massachusetts Rule – which could be summarized as “I don’t owe you nuthin’ – held that a landowner had no liability to his neighbor for harm done by overhanging branches and encroaching root systems. If the neighbor didn’t like the mess, he or she could trim away the offending branches or roots up to the property line. The courts simply didn’t want to hear about it.

However, courts had traditionally held an urban landowner to a higher standard of care when the people being protected were passing motorists on a public highway. In those cases, an urban landowner was obligated to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

bellyachin140304In today’s case, Lois Lockhart had a decaying tree on her property. Neighbor Carl Mahurin complained about it, primarily because one of the branches was overhanging his property. But Lois did nothing. Neither did Carl – unless belly-aching counts as putting forth an effort.

Finally, the branch broke off and hit Carl, who was standing beneath it. You knew that had to happen, or else why would we be telling you this story? Being injured –and a little piqued that Lois had ignored his entreaties for so long – Carl sued. (You knew that would happen, too.)

Lois tried to get the case thrown out of trial court. She pointed out that Carl had nothin’ coming from her. The traditional rule – read “Massachusetts Rule” here ­– dictated that she had no duty to protect Carl from the natural condition of her tree.

But as the great bard once wrote, “I do perceive here a divided duty.” Othello, Act I, Scene 3. And so did the trial court. It was troubled that Lockhart’s duty to strangers passing by in their Hudsons and Desotos was greater than to her neighbor. That seem divided, and irrationally so.

Lois said, “Heaven is my judge, not I for love and duty, But seeming so, for my peculiar end.” Othello, Act I, Scene 1. The trial court said that might be so, but it nevertheless sent the case to the Court of Appeals for the appellate court’s opinion as to her duty.

William Shakespeare - he foresaw the problems with the traditional liability rule hundreds of years ago.

William Shakespeare foresaw the problems with the traditional liability rule urged by Ms. Lockhart hundreds of years ago. “Wondrous strange!” indeed.

The appellate panel said, “O day and night, but this is wondrous strange!” Hamlet, Act 1, Scene 5. It could see no reason for the disparate treatment, either. Certainly, just as Lockhart owed a duty to Mordred and Mildred Motorist, she must owe the same duty to her neighbor, Carl. However, the Court of Appeals did allow that Mr. Mahurin could have entered onto Ms. Lockhart’s place and cut the tree down itself. So he might be contributorily negligent. Likewise, could he have been a knucklehead for standing under a tree he had complained was dangerous?

To Lockhart, the Court said “There are more things in heaven and earth, Lois, than are dreamt of in your philosophy.” Hamlet, Act 1, Scene 5. Such as… a single duty owed by a landowner to both travelers passing on the road and her next-door neighbor. It sent the case back to trial.

Mahurin v. Lockhart, 71 Ill.App.3d 691, 390 N.E.2d 523 (Ill.App. 5 Dist. 1979). Plaintiff Carl Mahurin brought this action to recover damages for personal injuries he suffered when a dead branch extending over his property fell from a tree belonging to defendant Lois Lockhart, an adjoining landowner, and struck him. In his complaint, Mahurin alleged that Lockhart failed to prune the tree or take other necessary precautions after he warned her of the condition of the tree and the dangers it posed.

Lockhart moved to dismiss the complaint, arguing that a landowner is not liable for physical harm to others outside of her land caused by a natural condition. The trial court denied the motion to dismiss, certified that the question of law raised in Lockhart’s motion presented substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.

Held: The Court held that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.

The narrow issue before the court was to determine the extent, if any, of the duty that a landowner in a residential area owes to persons outside of his premises to remedy some defective or unsound condition of a tree upon his land when the tree and its condition were of a purely natural origin. Mahurin urged the Court to adopt the traditional rule set forth in section 363 of the Restatement (Second) of Torts. This section provided 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. However, if the landowner was in an urban area, he was subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The traditional rule applied even though the landowner is aware of the dangerous natural condition and the expense necessary to remedy the condition is slight.

The Court noted that the traditional rule of non-liability developed at a time when land was mostly unsettled and uncultivated. The landowner – unable to keep a daily account of and remedy all of the dangerous conditions arising out of purely natural causes – was therefore shielded from liability out of necessity.

But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it? Duh, Carl ...

But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it? Duh, Carl …

The Court disagreed that the duty an urban landowner owed to a neighbor should be less than owed to people passing in cars and trucks. It thus ruled that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.”

Therefore, Lockhart’s duty to Mahurin should “be defined using the ordinary rules of negligence. It is therefore appropriate for the trier of fact to consider … such factors as “the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented” in resolving the issue of liability.

The Court noted Lockhart’s argument that Mahurin was contributorily negligent because he stood under a tree that he, by his own admission, knew was dying and dangerous. The Court noted that the Restatement provided that a landowner is privileged to enter upon a neighbor’s land to abate a condition thereon which constitutes a private nuisance. “While this privilege alone does not establish the contributory negligence of plaintiff, it could be considered by the jury in resolving this issue.”

The Court remanded the case for trial, using the standards it had adopted.

Tom Root


Case of the Day – Thursday, September 21, 2017


They may just be the best doughnuts on earth ...

They may just be the best doughnuts on earth …

On Tuesday, we took up the case of a chagrinned Mazda RX-8 owner. Why was he unhappy? Was it the 18 mpg he got from the rotary engine? Was it the high-priced premium gas he had to burn? Was it the squirrely techniques he had to master for handing the temperamental little Regenesis engine? Of course not! RX-8 owners love their cars. Our guy was unhappy because a limb from his landlord’s tree had fallen on his pride and joy. He wondered whether he could sue.

The answer is, of course, sure he can sue. But, you ask, can he win? That’s a different question altogether. We tried to take up a collection to finance his lawsuit, but we got distracted once we had enough for a box of Lerch’s doughnuts. In the alternative, all we can do is consider his question. And we have an answer — a resounding, 9,500 r.p.m. “maybe!”

The car was damaged, the sandwich was a total loss. A tragedy of epic scale ...

The car was damaged, but Ms. Israel’s sandwich was a total loss. A tragedy that easily rivals the plagues visited on Pharaoh’s Egypt …

In Tuesday’s post, we looked at South Carolina’s duty of care for rural landowners. In today’s case, we see that the duty of care that urban or residential landowners owe to invitees and passersby is much stricter. Ms. Israel was sitting in her car one breezy spring day enjoying what was arguably the 21st best barbeque in the South when a large branch from a neighboring property fell on her car, destroying it and her sandwich. She was troubled about the damage to her car; she was devastated by loss of the uneaten sandwich. So, naturally, this being the United States of America, she sued everyone.

The trial court awarded her thousands of sandwiches worth of damages, but the Court of Appeals reversed. As the owner of property in a residential or an urban area, the neighbor had duty to others outside of his land to exercise reasonable care to prevent unreasonable risk of harm arising from defective or unsound trees on his premises, including trees of purely natural origin. The evidence showed that the decayed tree could be seen from the ground. So the tree’s owner was toast.

But the Court wasn’t willing to serve any barbeque up on the toast. The owner of the pulled pork stand had a duty to his customers to exercise reasonable or ordinary care, measured by his ability to anticipate danger. In the absence of evidence that the restaurant owner either saw or could have seen the decayed limb from his property, he wasn’t liable.

The scene of the mishap - Orangeburg - is n the center of South Carolina "mustard-based" country.

The scene of the mishap – Orangeburg – is in the center of South Carolina “mustard-based” barbeque sauce country, a fact probably having nothing to do with the falling tree branch or the subsequent lawsuit …

So away from the succulent pork (covered in a mustard-based sauce, no doubt) and back to the gutsy little RX-8. The landlord certainly has a duty to his tenants, who are, after all, invitees. And we suppose the house is in a residential area. But was it clear from the ground that the limb was about to let go? If so, the landlord had a duty to fix it. If it was just one of those things, well … that’s what they call an ‘act of God.’

Israel v. Carolina Bar-B-Que, Inc., 292 S.C. 282, 356 S.E.2d 123 (Ct.App. S.C., 1987). Charlotte Israel sued for injuries she received, when a large limb from a tree on property owned by Andrew Berry, Trustee, fell over and onto the car in which she was seated and which was parked in the parking area of the Carolina Bar-B-Que. She sued both the owner of the real estate on which the tree was located and the owner of the land onto which the tree fell.

The next-door lot (the “Berry lot”) was 173 by 135 feet, on which there were a number of trees. Some large water oaks, planted about 1911, were located about 25 to 30 feet from the BBQ property line. These trees had received a radical pruning in 1971. Pictures showed visible signs of decay and rot in one of these trees. Some smaller oaks, planted about 1955, were located some 4 to 10 feet from the property line, between the large water oaks and the BBQ parking lot. These trees were bushy with some limbs overhanging the barbeque operator’s property, and having trunks of no more than 12 inches in diameter. A picture showed these trees in their relation to the barbeque parking lot. The Carolina Bar-B-Que owner occasionally pruned branches off those trees to the extent they were overhanging his lot. The limb that hit the car came from one of the large water oaks, and had a diameter of between 12 and 25 inches. The limb was so large that the Israel car was, in effect, totally destroyed.

The Carolina Bar-B-Que’s manager said that no limbs from the large tree were overhanging his property. He noticed no decayed limbs on these trees. He surmised that the high winds that day “pushed [the limb] out” onto the Barbeque property. When he later removed the trees on this lot, he discovered only one tree in “bad shape” and it was not the tree from which the limb fell. A police officer who investigated the accident said that limb was about 25 feet long, and that he saw a tree from which the limb apparently came. He admitted that he couldn’t testify that there was a decayed portion of the limb visible from the Barbeque lot. However, the tree could have been inspected from the Berry property.

Ms. Israel sued the trust owning the Berry lot and Carolina Bar-B-Que. The jury awarded an $80,000 verdict (or about 27,119 really good BBQ sandwiches) against both the Barbeque and Mr. Berry. They both appealed.

crush160720Held: The Court reversed the judgment against the Barbeque, but affirmed it against the Berry trust. The Court admitted that at common law, Berry would not have been liable for falling tree or limb. However, the realities of modern life had modified the rule. A landowner in residential or urban area has duty to others outside of his land to exercise reasonable care to prevent unreasonable risk of harm arising from defective or unsound trees on his premises, including trees of purely natural origin.Here, the Court said, the evidence support ed finding that Berry, the owner of the land from which the tree limb fell, was negligent. The tree was partially decayed, the limb’s dangerous condition and the likelihood of its falling could have been observed by reasonable inspection, and a reasonable person should have been aware of the danger which the decayed limb posed to persons on the adjoining property.

The Barbeque owed to a duty of care to the invitees or business visitors, one of exercising reasonable or ordinary care for the invitee’s safety. Reasonable care required by a business with respect to its invitees is measured by ability of reasonably prudent man to anticipate danger under conditions known or reasonably anticipated to exist. In the absence of evidence that the BBQ owner either saw or could have seen a dangerous condition from the Barbeque property with regard to a tree limb on the adjacent property, Carolina Barbeque was not liable to Ms. Israel.

– Tom Root

Case of the Day – Wednesday, September 20, 2017


There’s an old saying that goes something like if you’re not the lead dog, the view never changes. Of course, the obverse of that aphorism is that if you are a lead dog, the view can be stunning indeed.

Appropriately enough, the plaintiffs in today’s case are the Boxers, a pair of top dogs if ever there were any. From their fancy home on South Spalding Drive, they “were accustomed to having an unobstructed view of the hills of Beverly Hills, the Hollywood Hills, and the Los Angeles basin, including the Hollywood sign, the Griffith Observatory, downtown Los Angeles, and-on a clear day-Mounty Baldy 50 miles away.”

But then, in 1989, the City of Beverly Hills had to spoil things by planting 30 trees in nearby Roxbury Park. And not just any trees: the City planted coastal redwoods, which only grow to be the tallest tree in the world. The Boxers doggedly complained to the City, and in 2005, Beverly Hills responded by trimming the trees (but not completely restoring the view the Boxers loved so much). In 2013, the Boxers whined again, “but this time, the City simply ignored Plaintiffs’ concerns.”

So the Boxers sued, claiming that by destroying the view they loved so much, the City had impaired their view and decreased the value of their property.

The 5th Amendment prohibits the government from taking your property “without just compensation.” There are regular plain-vanilla takings, such as when the government bulldozes your house in order to let developers build a fancy high-priced neighborhood with houses, a marina, shops and restaurants.

And then there are inverse condemnations, where the government does not take your land, but just does something else to make it uninhabitable, such as building a sewage treatment plant upwind to your house, planting a freeway embankment in front of your place, or extending a commercial airport runway to your front door stoop.

The Boxers blamed the City’s “plan, design, and maintenance of the redwood trees” for wrecking the view and increasing a risk of fire. The City demurred, which is the legal way of saying “even if everything they say in their complaint is true, they’ve got nothing coming.”

In California, property is taken or damaged, so as to give rise to a claim for inverse condemnation, when it has been physically invaded, or physically damaged, or an intangible intrusion onto the property has that places “a burden on the property that is direct, substantial, and peculiar to the property itself.” But no one has a basic right to an unobstructed view over adjoining property, unless they have contracted with the adjacent property owners for it or the legislature provides for it.

Here, despite the Boxers’ rebellion, there had been no physical intrusion onto their property, and the fact that absent the view of the Beverly hills the property wasn’t worth as much does not constitute a taking or damaging. Imagine the mess were the court to agree with the Boxers: your neighbors’ house is painted a garish color that is an eyesore, or a new hotel goes up a block away that spoils your view of the sunrise, or a new grade school is built in the next block, and playground noise upsets your cats. If changes in the use of surrounding property – or, as here, the incremental growth of trees – that affect the character of the neighborhood in a way you don’t like somehow gives you the right to collect money damages from another, progress would grind to a halt. What would be as bad, you would be as restricted in making use of your property as you could restrict others.

Boxer v. City of Beverly Hills, 246 Cal.App.4th 1212 (Ct.App. 2nd Dist., 2016): The Boxers owned a house on Spalding Drive in Beverly Hills. They filed an inverse condemnation action against the City of Beverly Hills, seeking damages and injunctive relief based upon impairment of the views from their backyards by coastal redwood trees the City planted in Roxbury Park. They complained that they were accustomed to having an unobstructed view of the hills of Beverly Hills, the Hollywood Hills, and the Los Angeles basin, including the Hollywood sign, the Griffith Observatory, downtown Los Angeles, and even Mounty Baldy. Since their planting in 1989, the redwood trees had grown to block the previously unobstructed view. Plaintiffs wanted money, and an order that the City had to trim or remove the trees.

The trial court agreed with the City that as a matter of law, inverse condemnation provides no remedy for impairment of view from private property.

The Boxers appealed.

Held: The Boxers went down for the count. The Court held that for inverse condemnation purposes, property is ‘taken or damaged’ within the meaning of the California Constitution when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself.”

Where there is no physical intrusion, such as in this case, the plaintiff must allege that the intrusion has resulted in a burden on the property that is direct, substantial, and peculiar to the property itself. The diminution in the value of the property alone does not establish a compensable taking or damaging of the property. Rather, diminution in value of the property is just an element of the measure of just compensation when such taking or damaging has otherwise been proven.

The Boxers did not allege any physical intrusion, occupation, or invasion of their property or any physical damage to their property. The trees about which they complained were not located on their land. The Boxers necessarily relied upon the intangible intrusion theory and argued that because a “property owner’s loss of view is an aspect of compensable damage” in eminent domain cases, the impairment of their views is a harm sufficient to support their inverse condemnation claims.

It is not. While “a compensable visibility interest” has been recognized when the government has physically taken part of someone’s property, that interest is not itself a taking or damaging of the property.

The Court held that the Boxers did not have a property right to an unobstructed view, and they did not allege that either the trees in question or anything associated with the trees physically invaded their property, either tangibly or intangibly. Thus, they could not maintain an inverse condemnation cause of action.

– Tom Root


Case of the Day – Tuesday, September 19, 2017


An alert reader sent us a link to a sports car forum recently in which the proud owner of a Mazda RX-8 bemoaned the fact that his car had been hit by a limb that fell from his landlord’s tree. The owner wondered whether his landlord was liable for the deductable on his insurance.

Collisions with trees can be harrowing, whether in a care or on a bicycle.

Collisions with trees can be harrowing, whether in a car or on even just riding a bicycle.

Good question! Because the RX-8 and the tree both are South Carolina, we looked first at Staples v. Duell. In that case, Ms. Staples was driving down a rural road when she came upon one of Mr. Duell’s trees, which had fallen across the road. She came upon it rather suddenly, because she collided with it. She sued Mr. Duell, who was a landowner of some magnitude (about two miles worth of real estate along each side of the road).

Mr. Duell had an employee who was assigned the task of checking the security of the estate, including looking for dead trees, on a daily basis. Somehow, he must have missed this 100-foot pine’s condition. Ms. Staples sued Mr. Duell for negligence.

The Court found for Mr. Duell. It held that in South Carolina, rural landowners have no duty to others to inspect and improve their land. The fact that Mr. Duell voluntarily did so by sending an employee around didn’t create a duty where none existed. And that makes sense: if voluntarily performing a good deed created a legal duty to perform such deeds, no one would ever perform a good deed, that is, to go beyond the minimum the law requires for fear they would become liable for a good deed.

This doesn’t exactly answer our driver’s lament. After all, the landlord may be an urban landowner, and the Court suggests that an urban owner’s duty is different. Also, as a landlord, the tree owner’s duty may be greater. We’ll consider that tomorrow.

Meanwhile, good news from the Mazda front… our hapless sports car owner reported that his landlord’s insurance will cover his deductable.

Mr. Duell owned a lot of trees ...

Mr. Duell owned a lot of trees …

Staples v. Duell, 329 S.C. 503, 494 S.E.2d 639 (S.Ct. S.C. 1997). Ms. Staples was driving from Charleston toward Summerville on Highway 61 when she encountered a dead pine tree in the road. She swerved but collided with the tree, a 100-foot long dead pine.

The tree fell about sixty feet from the roadway and was located on Mr. Duell’s land, a plantation that stretched for about two mile along both sides of the road. In this area, only one residence – a cabin – stood. About 13,500 vehicles a day passed by Duell’s two-mile stretch of land on Highway 61. Duell owned Middleton Place National Historic Landmark, a tourist attraction which received about 100,000 admission-paying visitors a year. The only public entrance or exit to Middleton Place is on Highway 61. Duell maintained a 250-foot buffer zone of trees on both sides of the highway to protect the scenic beauty of the road. Duell’s employee, James Woddle, took care of the woodlands at Middleton Place. Woddle’s job duties included twice a day driving around the perimeter of Middleton Place to inspect the premises. During his inspections, he looked for trespassers, abandoned vehicles, and dead trees.

Staples sued Duell for negligence in permitting the tree to become a hazard. The trial court directed a verdict for Duell, holding that because the land from which the tree fell was rural, he had no common-law duty to discover and prevent the dangerous condition caused by the dead pine tree. Even if Duell had a policy of searching for dead trees along the roadway, his voluntary practice did not create a duty. Duell could have abandoned it at any time and it did not increase the risk.

Staples appealed.

gooddeed140925Held: The Court found for Mr. Duell. To prevail on her theory of negligence, Ms. Staples had to establish that (1) Duell owed her a duty of care, (2) that by some act or omission, he had breached that duty, and (3) that as proximate result of his breach, she had been injured. The Court ruled that as an owner of rural property adjacent to a highway, Duell did not owe duty of care to motorists on highway to inspect and improve his land. Rural landowners have different duties and responsibilities from city dwellers, the Court said, based on the different level of risk posed by defects on rural land and the burden of maintaining larger tracts of real estate. Thus, unlike urban landowners, rural landowners do not have a duty to inspect and improve land.

Mr. Duell’s policy of searching for dead trees on his property was good stewardship, but it did not result in his assuming a duty to motorists for injuries resulting from trees falling onto the road. His policy of examining his trees didn’t increase risk of harm to motorists. The people driving by had no prior knowledge of the policy and thus did not detrimentally rely on it. This of course makes one wonder – if people did rely on Mr. Duell’s perspicacity and gumption, would the Court have turned his voluntary good deed into a duty? A scary thought…

– Tom Root


Case of the Day – Monday, September 18, 2017


crazy160718Summertime has run away from us like the sands of an hourglass. We are mere hours from the autumnal equinox (happens this Friday at 4:02 p.m. EDT, so be prepared to balance your egg and to be disappointed), but the hot weather is hanging on. 
We’re still stopping by the old swimming hole, and reflecting on the sad fact that summer is not so far gone that tragic things cannot happen.

We must make extra effort to be caerfull careful. This might be a good time to consider due care, that is, our duty of care to others.

In a negligence action, a plaintiff generally has to show that (1) the defendant had a duty of care in relation to the plaintiff, (2) the defendant failed to conform its conduct to the requisite standard of care; and (3) an injury to the plaintiff was proximately caused by the failure.

Do you really want to be eating food that's staring back at you?

That’s what “fisheye” is all about: Do you really want to be eating food that’s staring back at you?

The duty of care is a moving target, depending to a large extent on the relationship of a defendant to the plaintiff. If someone delivering your double-anchovy pizza and atomic wings falls into an open hole in your front yard, the law treats your liability a whole lot differently than if, say, a thief sneaking around at night trying to steal your garden troll statue falls into the same hole. (But even if the law doesn’t wonder, we’re puzzled that you’d order a double-anchovy pizza).

No-DivingIn today’s case, a young man was paralyzed for life when he dove into the lake at his parents’ house. He had made the same dive countless times before, but the defendant in the case — the non-profit corporation that owned the lake — had recently installed a dredge pipe underwater near the shore. The pipe apparently was just below the surface of the lake.

The lake’s owner argued that the young man was merely a licensee, not an invitee. The difference was crucial, because a licensee pretty much takes the property in the condition he or she finds it. The trial court agreed that the plaintiff was much more than that, and after a jury trial, the young man was awarded $1 million.

The appellate court looked at the corporate purpose of the non-profit lake owner, as well as the terms under which it acquired the lake from the public utility that had owned it previously. Both required that the lake be maintained for public purposes, despite being ringed with private homes, and that evidence convinced the Court of Appeals that the young man wasn’t just someone who was using the lake with the permission of the defendant non-profit corporation. Instead, he was an invitee, someone to whom an invitation had been extended to enter or remain on land for a purpose for which the land was being held open to the public. As such, the landowner had a much higher duty of care to the young swimmer, a duty it violated by not being more careful in installing and marking the dredge pipe.

Not all shallow water is so well labeled.

Not all shallow water is so well labeled.

Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475 (Ct.App.Ind., 2007). Twenty-six year old Justin Stichnoth was visiting his parents at their house located on Lake Shafer. During a conversation that day, Justin’s father, Kerry, told Justin about a dredge pipe that Shafer & Freeman had installed in the channel near their dock. Kerry explained that recently he had gotten his boat “hung up” on the dredge pipe. Shortly thereafter, Justin took a running dive off of his parents’ dock into the channel, something he had done often over the years. Justin struck his head on the dredge pipe, which was located on the channel floor about 17 feet from the dock. Justin was left a paraplegic. He sued Shafer & Freeman, alleging that the firm’s negligence caused his injuries because it didn’t warn that there was a pipe underwater, it didn’t mark the pipe so that it would be visible to users of the lake, and it didn’t use reasonable care in dredging the lake.

Shafer & Freeman denied the allegations of negligence. Later, it filed a motion for summary judgment on the issue of whether Justin was a licensee of Shafer & Freeman. The trial court denied it, and a jury found it liable to Justin, awarding $1 million to the injured plaintiff. Shafer & Freeman appealed.

Be careful when diving into unfamiliar water.

Be careful when diving into unfamiliar water.

Held: Justin was an invitee. Indiana law holds that a person entering upon the land of another comes upon the land either as an invitee, licensee or trespasser. The person’s status on the land defines the nature of the duty owed by the landowner to the visitor. Licensees have a license to use the land and are privileged to enter or remain on the land by virtue of the permission of the owner or occupier, but they take the premises as they find them. Invitees, on the other hand, are owed a much higher duty of care. The decisive factor with regard to whether a landowner has extended an “invitation” or “permission” is the interpretation that a reasonable man would put upon the owner’s words and actions, given all of the surrounding circumstances. Here, the Court found, the lake was held open to the public, even though it was surrounded by private property, and thus Justin — who dove off a dock and struck his head on a dredge pipe located on channel floor — was an invitee rather than a licensee for purposes of personal injury action. The Court held that the articles of incorporation of Shafer & Freeman, the non-profit corporation that owned the lake, provided that the corporation would protect and enhance the water quality of lake in order to facilitate public recreational use and ensure continued public access.

What’s more, the Court said, the agreement by which Shafer & Freeman acquired the title from the electrical utility, provided that Shafer & Freeman would hold the lake for public, charitable, recreational, conservation and environmental purposes. It is not enough, to hold land open to the public, that the public at large is permitted to enter at will upon the land for their own purposes. As in other instances of invitation, the Court said, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use, and that the public will not merely be tolerated, but is expected and desired to come. When a landowner lets local boys play basketball on his vacant lot they are licensees only. If he installs playground equipment and posts a sign saying that the lot is open free to all children, there is then a public invitation, and those who enter in response to it are invitees.

– Tom Root

Case of the Day – Friday, September 15, 2017


Doug Van Dyne had big plans for getting folks back to nature. He wanted to build a nature trail along a ravine that split his property and that of his waffling neighbor, Eunice North. People could enjoy the birds, the babbling brook, the scent of pine… that kind of thing.

If you ever wonder whether it’s a good idea to get agreements in writing, Doug’s $70,000 mistake will settle that question for you. Because Doug’s nature path would meander a bit onto Eunice’s side of the ravine, he told her about his plans for the trail. Eunice, who admitted that she really had no idea what Doug was talking about, said she just “shrugged my shoulders” and replied that “I guess it would be okay.”

To Doug, that was like the green flag at Indy.  But little did he know that Eunice promptly began to fret about her confused acquiescence. She had trouble sleeping for her worry, and finally asked a friend about the plan. Her friend told Eunice the trail idea was a mistake. Armed with this advice, Eunice said, she reneged. She claimed she told Doug that she didn’t want him around.

“No probalo,” Doug, who had no intention at all of honoring Eunice’s ukase, allegedly said. Regardless of his actual intentions, Doug promised Eunice that he “would go to a different plan.”

That different plan seems to have involved having his contractor run the bulldozers at full throttle instead of half throttle. By the time the diesel fumes cleared, 20 of Eunice’s trees had been ground under Caterpillar treads and the trail encroached on her land.

Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded Eunice $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. It mattered little that Doug and the contractor both told a different story, the bulldozer operator testifying that Eunice had agreed to Doug’s plan. The jury believed Eunice.

Juries do that, often buying one side of the story and not the other, many times against common sense. We don’t know that that happened here, but it sure did not help Doug that he had not bothered to have the property boundaries surveyed before the ‘dozers started dozing.

Much of Doug’s appeal focused on damages. The jury agreed that Doug’s dozing had made Eunice’s side of the ravine unstable. Eunice’s expert testified that there were three ways to repair the damage, but none of the tree would restore the ravine to its pristine state. Doug argued that said because the land could not be repaired to the way it was before the bulldozers rolled through, then the diminution of the fair market value of the ravine was all that matters.

Not so, the court said. The law does not require that the evidence show that the damage can be repaired so as to make the property as good as new. While it is a general rule of Iowa law that the cost to repair property is the fair and reasonable cost of repair not to exceed the value of the property immediately prior to the loss or damage, all Eunice was required to do was to establish a fair and reasonable cost to fix things up in order to arrest further deterioration and make the place as good as it can be made. In this case, Eunice showed that she had three means of stabilizing the steep bank after Doug’s earth-moving frolic, and only one of those made any sense. She established the cost of that repair, and the value of the property before the damage.

Because the damages did not exceed her expert’s $129,000 repair price tag, it was clear the jury fulfilled its function in weighing the evidence.

Next time, Doug, get the landowner’s OK in writing. Call a surveyor. Stake the property boundaries. Surely that’s cheaper than $71,000.

North v. Van Dyne, Case No. 16-0165 (Ct.App. Iowa, Sept. 13, 2017). Douglas Van Dyke hired Heck’s Dozer, Inc., to build a trail along a ravine between his property and adjacent land owned by Eunice North. Twenty of North’s trees were removed during the trail’s construction, and a portion of the completed trail encroached upon North’s property. Doug said Eunice gave him permission. Eunice said she initially sort of equivocated, but later told Doug in no uncertain terms that he was to stay off her land.

Doug said he would do so, but he never had the land surveyed or staked, and his guess as to the location of the property line was by guess and by gosh. Doug’s contractor said he met with Eunice, and she approved the plans. Eunice said she had never met the contractor.

Eunice testified that after she told Doug to steer clear of her property, she heard a “‘loud commotion.’ Standing on her deck, she saw ‘two pieces of heavy equipment’ below and ‘trees… flying.’ She decided not to go into the ravine to check on the commotion because she was ‘afraid’ she would get ‘hit with something,’ and she had physical difficulties getting ‘down there.’ Suspicious of an encroachment on her land, she commissioned a survey. The surveyor confirmed her fears.”

Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded her damages of $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim, Doug appealed.

Held: Eunice amply proved that Doug should pay treble damages under Iowa Code § 658.4 (2013). The statute requires the damage to trees be committed willfully or without reasonable excuse.” The term “willfully” has been characterized as an intentional and deliberate act without regard to the rights of others. Here, the Court of Appeals said, a reasonable juror could have believed that Eunice said “no” the jurors could have found Van Dyke “acted… without reasonable excuse.”

The jury additionally could have found that Doug’s failure to commission a survey before building the trail denied him any reasonable excuse for the trespass. The testimony established that Doug relied on an “old fence,” “old posts,” a “shed,” and a “roofline” to gauge the boundary.

The measure of damages is the cost of repair, as long as that cost does not exceed the value of the property prior to the damage. Doug complained that because Eunice’s expert testified only that the continued deterioration of the property could be stopped by stabilizing the steep bank, she was not able to show that the property could be repaired to its original state.

The Court of Appeals held that nothing requires that the repair estimate be enough to restore the land to its state before the damage. As long as Eunice provided evidence of the fair market value of the land before and after the damage, and a repair cost that is less than the value of the place before the damage – which she did – she met her obligation. Here, the damages awarded by the jury were higher than Doug’s estimate of $2,500.00 to fix it, but well below Eunice’s estimate of $127,000. Plus, the jury’s $50,000 award for trespass and lateral support was well below Eunice’s evidence that the land was worth $250,000.

The damage to the trees was assessed separately, with the value of the lost timber found to be $6,700, trebled to $20,100.

– Tom Root


Case of the Day – Thursday, September 14, 2017


A eucalyptus tree, similar to the one that offended Ms. Cannon

A eucalyptus tree, similar to the one that offended Ms. Cannon.

There was a time, back when people of grit populated the land, that a landowner only had one choice when his neighbor’s trees encroached – to cut ‘em back. The Massachusetts Rule was the coin of the realm: if you didn’t like your neighbor’s tree overhanging your eaves, or its roots wrapping around your sewer line, you only had one option. The courts didn’t want to hear about it. Self-reliance was what it was all about.

Then along came the Hawaii Rule, which suggested that a naturally growing tree could be or could become a nuisance, and that an aggrieved landowner could sue for an order requiring its removal. One rule does not necessarily negate the other. So when does one oil up the chainsaw, and when does one fire up the word processor?

The Massachusetts Rule is, generally speaking, a blunt instrument. It’s one thing to cut away branches that pose a threat (or even an inconvenience) to your property. But what if cutting a limb back to the property line leaves a 15-foot leafless stub extending from the branch to the boundary. That’s not necessarily according to ANSI Standard A-300, but on the other hand, you don’t have the right to trim it properly unless your neighbor consents to you coming onto his or her land to do so.

Or, more dangerously, what if you cut back roots to the extent that the tree loses too much subsurface support, and falls on your neighbor’s new Bugatti Chiron? Are you liable? After all, you did no more than what the Massachusetts Rule permitted you to do.

The Hawaii Rule, on the other hand, is Doug Lewellyn’s dream. What an All-American solution – let’s sue! When is harm sensible? When your foundation walls collapse? When a dead branch falls on your Bugatti? When leaves clog the filter on your swimming pool? How much harm is enough?

Joan Cannon lived next to Lamar Dunn. Joan was unhappy with the roots from the Dunns’ eucalyptus tree, which were encroaching underground onto her land, as roots are wont to do. After all, a tree will quite often send roots out 35 feet or more from the base of the trunk, and the root system has little regard for some lines drawn on a recorder’s map.

We’re not sure why Joan was so exercised. Maybe she was naturally crotchety. Perhaps she was unusually territorial. Maybe her neighbor had a nice Bugatti, while Joan drove a Yugo. What we can be sure of is that the eucalyptus roots weren’t really causing any harm.


Sometimes encroaching roots can be an inconvenience.

That didn’t stop Joan from suing the Dunns.  The trial court denied an award of any damages and refused to order Lamar the appellee to remove the offending roots and tree. Joan appealed.

The Court of Appeals considered the classic Restatement of the Law trespass approach, which held simply that if a neighbor owns something that trespasses, he or she has to remove it if there is a duty to remove it, regardless of whether it causes harm or not. That’s the rub, the court said. When does such a duty arise?

The court found guidance in the Restatement on nuisance, and held that a duty to remove offending branches or roots arose when some actual and sensible or substantial damage has been sustained. Joan’s general objection to the unseen eucalyptus roots did not equate to harm. Thus, the roots could remain.

Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (Ariz.App. Div. 2 1985). This case involves the liability of Lamar Dunn, an adjoining landowner, for roots from a eucalyptus tree which invaded the subsurface of land belonging to his neighbor, Joan Cannon. The trial court found that the roots had caused no actual damage, and denied an award ordering the Dunns to remove the offending roots and tree.

Joan appealed.

Held: Dunn did not have to remove the roots. The Court of Appeals rejected Cannon’s argument that it should apply the Restatement (Second) of Torts § 158 (1965), which stated that “one is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally… fails to remove from the land a thing which he is under a duty to remove.”

The Court said that it was “obvious that one must first determine whether there is a duty to remove the object and that in this case § 158(c) really begs the question.” More to the point, the Court observed, was the Restatement (Second) of Torts § 840 (on nuisances), which held that a possessor of land is not liable to his adjoining landowner for a nuisance resulting solely from a natural condition of the land.

Ms. Cannon could not prove any damages flowing from the alleged encroachment ... unlike this guy.

Ms. Cannon could not prove any damages flowing from the alleged encroachment … unlike this guy.

The Court paid lip service to the Massachusetts Rule, noting that Arizona law permitted a “landowner who sustains injury by the branches or roots of a tree or plant on adjoining land intruding into his domain, regardless of their non-poisonous character may, without notice, cut off the offending branches or roots at the property line.” At injured landowner’s expense, of course.

But when some actual and sensible or substantial damage has been sustained, the Court said, the injured landowner may maintain a nuisance action for abatement of the nuisance, and compel the removal of the branches or roots at the tree owner’s expense. However, where no injury has been sustained, no lawsuit be brought for either an injunction or damages.

– Tom Root