Case of the day – Monday, November 10, 2025
GOOD DRAFTING DOESN’T ALWAYS PREVENT LITIGATION
A little more today on independent contractors: I have often noted that inexact lawyering can lead to needless litigation. That’s not to say that good draftsmanship will necessarily avoid litigation, but — as we see in today’s case — it always helps.
Dugger got the logs – Worley was left with the stumps
Mrs. Dugger hired a Kentucky-certified master logger, Tommy Thomas, to log her land. She signed a contract with him which specified, among other things, that ol’ Tom-Tom was an independent contractor. Well, master logger or not, Tommy Boy wasn’t a master listener. Although Mrs. Dugger told him she didn’t own the land across the crick and he shouldn’t log it.
Of course, he logged it anyway. Predictably, the woman who owned the land on the other side of the watercourse sued, naming both Tommy T. and Mrs. Dugger as defendants.
Mrs. Dugger’s lawyer had her dismissed from the lawsuit on summary judgment, because Kentucky law was clear that an owner wasn’t liable for the errors of an independent contractor, and Tommy Thomas was clearly an independent contractor. The written agreement between the two of them was a great help in establishing this, as well as proving that Mrs. Dugger had told her contractor where her property boundaries lay.
The appeals court agreed, holding that Thomas’s master logger certification meant he should have known better. The contract helped demonstrate that the parties consistently intended for him to be an independent contractor, and he, in fact, controlled the manner of the work and how it was accomplished. Mrs. Dugger might have been liable anyway if the cutting was “work involving a special danger.” But in Kentucky, the Court said, it’s not.
She had a good lawyer – but it didn’t keep her out of the courtroom
Worley v. Dugger, Not Reported in S.W.3d, 2007 WL 4373120 (Ky.App., Dec. 14, 2007). Mrs. Dugger entered into a logging contract in May 2003 with Tommy Thomas to cut timber from part of her property. During Thomas’ cutting, he crossed onto Worley’s land and took trees valued at over $1,300. Worley sued Thomas and Dugger, seeking damages for the wrongful taking of timber pursuant to KRS § 364.130.
Just prior to trial, Mrs. Dugger won summary judgment on the basis that Thomas was acting as an independent contractor at the time he wrongfully took timber from Worley’s property. Later, a default judgment was entered against Thomas on the issue of liability. Worley moved to vacate the summary judgment and reinstate Mrs. Dugger in the lawsuit. When the court refused to vacate, Worley appealed.
Held: Summary judgment in favor of Mrs. Dugger was appropriate. The trial court found Thomas was acting as an independent contractor at the time when he wrongfully took timber from the plaintiff. Thomas was told not to log beyond the borders of Dugger’s property, something he admitted under oath. What’s more, Mrs. Dugger was not vicariously liable for Thomas’s wrongful timber harvest because she failed to adequately instruct him. Although landowners had been found liable in other cases where independent contractors had cut trees from neighboring land, that was because the landowners had allowed their contractors to cut trees without knowing the exact location of the boundary lines.
Here, the Court said, Mrs. Dugger explicitly instructed Thomas to not exceed the boundaries of her property beyond the creek. Thomas, on his own initiative and contrary to Mrs. Dugger’s instructions, crossed the creek onto Worley’s land. Thomas was a “Kentucky Certified Master Logger,” and the Court held that this certification meant that Thomas should have been familiar with his duty to observe boundary lines to avoid the possibility of liability.
Lucky thing Mrs. Dugger had it in writing …
Plus, Thomas’s contract with Mrs. Dugger clearly identified him as a “contractor.” In Kentucky, as a general rule, employers are not vicariously liable for the acts of independent contractors. The right to control the work and the methods of its performance is determinative on the question of whether one is a servant or an independent contractor. If the employer retains the right to control the work and the manner in which it is done, those doing the work are servants. On the other hand, if an employee has the right to control the manner of work and the right to determine the means by which results are accomplished, he is deemed an independent contractor and the employer is not responsible for his negligence.
The exception to the general rule is that if the work to be performed is either a nuisance or is inherently dangerous, the employer will not be absolved from liability. The Court ruled that tree cutting is not “work involving a special danger” as contemplated by the law. Here, the Court held, Thomas was an independent contractor because he controlled the manner of the timber cutting as well as the means he would use to complete the job.
Under the facts of this case, the work of cutting timber upon Mrs. Dugger’s land was neither a nuisance nor inherently dangerous. Thus, Mrs. Dugger could not be held liable for Thomas’s negligent work.
– Tom Root
Case of the Day – Friday, November 7, 2025
ODDJOB
We suspect that imagining a world without frivolous lawsuits would be an impossible dream.
We suspect neighborhood grocer Jerald Walker won’t try to save a few bucks like this anymore. When he had odd jobs to be done around the store, he generally would offer the work to casual laborer Gene Moser and his sometimes-sidekick Paul McCubbin. Gene and Paul (think “Stan and Ollie,” if you like), would paint walls, repair doors, rake leaves or perform other menial tasks, and Jerald would pay them an agreed-upon price for the work.
As lawyers like to say, there came a time when Jerald needed some trees trimmed. He called Gene and offered $30.00 for the project. Gene, apparently daunted by the scope of work to be performed, recruited his swamper Paul, agreeing to split the fee 50-50. Instead, the only thing that was split was Paul’s noggin.
Gene and Paul finally showed up to do the job, and Jerald provided them with the saws they needed. They had only trimmed a couple of branches when a limb being cut by Gene fell and hit Paul.
Would Pancho sue the Cisco Kid? Tonto file against the Lone Ranger? Sancho allege a tort against Don Quixote? Such weighty questions may never be answered, but we do know that Paul would sue Gene. And he did.
For good measure, Paul McCubbin also went after Jerald Walker, arguing that he deserved workers’ compensation because he had been the store’s employee and, in the alternative, contending that the tree-trimming work was inherently dangerous. An “inherently dangerous” occupation provides an exception to the rule that an independent contractor cannot collect against a hiring party.
The Workers’ Compensation hearing officer ruled that Paul McCubbin was not an employee of the store, a position agreed with by the trial. For good measure, the trial court also held that tree trimming was not an inherently dangerous occupation. Paul McCubbin’s guardian – necessary because his head injuries were severe and permanent – had more luck in the Court of Appeals. That tribunal ruled that material questions of fact had been raised regarding both whether McCubbin was an employee and whether the work he was hired to do was inherently dangerous. The parties appealed to the Kansas Supreme Court.
The Supreme Court ruled that nothing in the record permitted a holding that McCubbin was Jerald Walker’s employee. The fact that Walker provided the tools and pointed out the trees to be trimmed was not determinative, because the price was set for a complete job, Walker had no control over when the job was done or how it was done, or even over how McCubbin and Moser would split the payment for the work. Thus, Paul McCubbin was the grocery store’s independent contractor, and Walker was not liable for the accident.
Sure you do … but does that make you a tree trimmer?
What’s more, the Court said, no work is “inherently dangerous” if it can be performed safely. Tree trimming can be done safely and without accident (although maybe not by McCubbin and Moser). Thus, the “inherently dangerous” exception to nonliability did not apply here.
McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (S.Ct. Kan. 1994). Jerald and Carol Walker own Valley Market, a small, neighborhood grocery store in Kansas City, Kansas. Jerald often hired Gene Moser and Paul McCubbin, two local men, to perform odd jobs at the market, such as painting, light carpentry, and other general maintenance duties. Walker viewed the two as ‘contract labor’ rather than as traditional employees. Walker would decide on whatever job he needed to be done and then negotiate with them about the cost of performance.
In April 1989, Walker contacted Moser about trimming dead tree branches from some trees in front of the market. Moser agreed to do the job for $30.00. Moser contacted McCubbin to help him trim the trees, and the two agreed to split the money, with Moser providing all of the equipment. The two trimmed two branches from one tree and had moved onto a second tree, when a trimmed branch struck McCubbin as it fell, causing him severe and permanent injuries.
McCubbin’s guardian filed a workers’ compensation claim, arguing that McCubbin was Walker’s employee. The Worker’s Compensation administrative law judge held that the parties did not come under the Kansas Workers’ Compensation Act, as Walker did not meet the statutory definition of an employer and McCubbin did not meet the statutory definition of an employee. The ALJ found instead that both Moser and McCubbin were independent contractors.
McCubbin’s guardian next sued Walker and Moser, alleging that McCubbin’s injuries were the direct and proximate result of their negligence. Walker moved for summary judgment, arguing that McCubbin was an independent contractor and that tree trimming was not an inherently dangerous activity that would require Walker to equip, supervise, or warn McCubbin of the obvious dangers involved in the trimming of trees. The trial court held that even assuming the greatest possible duty that could be owed by Walker to McCubbin, there was no breach. The court found that McCubbin was an independent contractor, and his injuries were caused by his own and Moser’s actions, not by a condition of the premises.
The Court of Appeals reversed, holding that whether McCubbin was an employee or an independent contractor, and whether tree trimming was an inherently dangerous activity, should be determined by a jury.
Walker appealed to the Kansas Supreme Court.
He performed odd jobs, too … did that make him Auric Goldfinger’s independent contractor?
Held: Moser was an independent contractor, and the work he had undertaken was not inherently dangerous so as to impose any special duty on Walker. The Court observed that an independent contractor is someone who contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of the work. The single most important factor in determining a worker’s status as an employee or independent contractor, the Court said, is whether the employer controls – or has the right to control – the manner and methods of the worker in doing the particular task. As a general rule, when a person lets out work to another and reserves no control over the work or workers, the relation of contractee and independent contractor exists, and not that of employer and employee, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor.
The Supreme Court agreed that an exception to the general rule of nonliability of an employer for the negligence of an independent contractor is the “inherently dangerous activity” doctrine. Under that doctrine, one who employs an independent contractor to do work involving a special danger to others that the employer knows or has reason to know to be inherent in or normal to the work, or which the employer contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the independent contractor’s failure to take reasonable precautions against such dangers. However, an activity cannot be termed inherently dangerous merely because it may possibly produce injury; instead, the intrinsic danger of the work on which the doctrine is based must result from the performance of the work, and not from the collateral negligence of the contractor.
Here, the Court said, Moser and McCubbin were independent contractors. Walker hired Moser to produce a result and did not recruit McCubbin. Walker did not provide the equipment, and – although he specified which trees he wanted to be trimmed – did not direct how the work was to be performed. Furthermore, payment was based on the completed task and was a single sum regardless of the time and effort expended. Finally, it was relevant that Moser and McCubbin provided general maintenance and odd job services for a number of people, not just Walker.
As for the work itself, the Court held, tree trimming is an everyday activity that can be accomplished safely and, when done so, is an activity in which danger is not inherent in the activity itself. Tree trimming generally does not constitute an inherently dangerous activity.
Thus, McCubbin was not entitled to recover damages from the Walkers.
– Tom Root
Case of the Day – Thursday, November 6, 2025
WHY WRITTEN CONTRACTS CONTINUE TO BE SUCH A GOOD IDEA
I’ve preached it until I’m blue in the face. As movie impresario Samuel Goldwyn put it, “a verbal contract isn’t worth the paper it’s written on.” But it seems like a good point with which to start the new year.
In today’s case, landowner Whatley hired a tree cutter to take down two trees in his yard. Whatley knew from nuthin’ about tree cutting, so he told the guy to do it any way he saw fit. Of course, these two, being good ol’ boys, didn’t bother with a written agreement (which could have been as simple as an estimate with some terms printed on the back).
And what kind of terms did they need? Well, maybe one who said that the tree cutter was an independent contractor of Whatley would have been nice. As it turned out, the cutter and his able assistant dropped the first tree without a problem. When they considered the second tree, which stood on a slope hard against the neighbors’ place, the cutter figured he could drop it in one piece safely. Whatley, who (as we said) knew from nuthin’ about tree cutting, said, “If you can do it, do it.”
But the cutters couldn’t do it. The tree toppled onto the Sharmas’ place, breaking trees and smashing their fountain. And here’s where it got messy. The Sharmas, of course, sued the tree cutter. But they sued Whatley, too, arguing that it was his fault as the employer of the cutters.
Some blunders are obvious …
The law is well established that a landowner isn’t responsible for the negligence of an independent contractor, because the independent contractor has full authority to decide how to do the job himself. But without that written agreement, everyone had to pack the courtroom to explain how the relationship was an independent contract and not an employer-employee relationship.
The Sharmas seized on the offhand statement Whatley made about ‘doing it if you can do it, ‘ and tried to conflate it into Whatley guiding the work. The court sorted things out, but a nice written agreement spelling out the relationship probably would kept Whatley out of court to begin with.
Whatley v. Sharma, 291 Ga.App. 228, 661 S.E.2d 590 (Ga. App. 2008). Whatley hired a tree-cutting contractor to remove two trees from his yard for $1,100 to be paid on completion. The oral contract didn’t specify how the trees should be removed. The contractor arrived a week later with a “tree climber,” whom the contractor had hired in case they needed to fell the trees by cutting them into sections (also known as “topping off” the trees) rather than dropping the trees as an entire unit. They felled the first tree in one piece, and based on the tree climber’s recommendation, the contractor informed Whatley that they also intended to cut down the second tree as an entire unit. Whatley responded, “[I]f you can do it, do it.”
But the second tree, located on a hill on Whatley’s property that sloped toward the nearby property line, twisted as it fell and toppled into the Sharmas’ yard, damaging their trees and outdoor fountain. The Sharmas argued that there was no way the second tree could have been cut down in one piece without damaging their property.
The Sharmas sued the contractor, arguing he was negligent in felling the tree as an entire unit rather than “topping off” the tree. The Sharmas also included Whatley as a defendant. Whatley moved for summary judgment, arguing that he was not responsible for the actions of the tree cutter, who was an independent contractor. His motion for summary judgment was denied, and he appealed.
Held: The summary judgment was granted, and Whatley was dismissed from the suit. The Court began with the observation that, under Georgia law, a person who engages an independent contractor is generally not liable for any torts committed by the independent contractor. The reason for the rule is that since the employer has no right of control over the manner in which the work is to be done, it is regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk and administering and distributing it.
The Court said that the true test of whether a person employed is a servant or an independent contractor is whether the employer, under the contract, has the right to direct the time, the manner, the methods, and the means of execution of the work, or whether the contractor in the performance of the work contracted for is free from any control by the employer in the time, manner, and method in the performance of the work.
Here, the Court held, the unrefuted evidence shows that Whatley engaged a professional tree-cutting contractor for a clearly defined job: to remove two trees for a set price. As a homeowner inexperienced in such matters, Whatley provided no equipment or tools for the job and gave no instructions on how to take down the trees, but rather (in the words of the contractor) gave him “freelance” to cut down the trees as he saw best. The contractor and his “tree climber” made the decision to cut down the second tree as an entire unit, based on the contractor’s belief that he could cause the tree to fall into Whatley’s yard alone.
The Sharmas argued that a single conversation between the contractor and Whatley showed that Whatley controlled the contractor’s actions. They claimed that Whatley’s statement, “if you can do it, do it,” in response to the contractor’s decision to take the tree down as an entire unit showed that Whatley was controlling the contractor’s actions. But the Court said this response merely proved that the contractor was free to cut down the tree as he saw fit: “Whatley was expanding, not contracting, the options available to the contractor to remove the tree, to whom was committed the discretion as to the final decision of the method of removal. At most, this was a suggestion or recommendation, and that is not enough….”
The Sharmas also contended that an exception to the “independent contractor” rule places liability on Whatley, because “[a]n employer is liable for the negligence of a contractor … [w]hen the work is wrongful in itself….” The Sharmas maintained that the felling of the second tree in one piece so close to their yard necessarily required trespass onto their yard and therefore was wrongful in itself. However, the Court said, the competent evidence showed that Whatley never told the contractor he could go onto the Sharmas’ property, and that the contractor believed he could fell the tree without entering their yard. Anyway, a landowner’s hiring someone to cut down a tree from his land is not wrongful in itself, even though the contractor ends up trespassing onto a neighbor’s yard.
– Tom Root
Case of the Day – Wednesday, November 5, 2025
DOING IT ON THE CHEAP
Fred Flintstone’s boss dictated the hours, methods and conditions of work. Hence, Fred was pretty clearly an employee.
Over the next few days, we’re going to talk about independent contractors in the legal sense. With Uber, Lyft and a host of other “gig” companies around, all of which save money by calling their workers “independent contractors,” the topic is timely. The tree business worries (or should worry) a lot about the status of a worker. A lot of bad things can happen when a worker is misclassified as an independent contractor when he or she is an employee. In the next five days, we’ll try to look at a lot of the pitfalls.
You’d think that determining whether a worker is an employee or independent contractor ought to be pretty cut-and-dried. Fred Flintstone at the Bedrock quarry? Well, he used his employer’s equipment, he did what he was told, he punched a time clock… clearly an employee. On the other extreme, we have the A-Team. They came to you, brought their own weapons (and usually a homemade armored vehicle or two), and included a helicopter. They came to do a job and then left (usually just a step ahead of the Army authorities). No question, they were independent contractors. Very independent contractors.
They brought their own gun, transportation, and – in the case of B.A. Baracas – high-class bling. Clearly, the A-Teamers were independent contractors.
The difference between B.A. Baracas and Fred Flintstone is significant and obvious. But that hardly prevents people from calling one the other when the mood strikes them. Some employers think it’s crafty to label their employees as “independent contractors.” It’s irresistible: no tax withholding, no pesky employer matching of social security payments, no unemployment insurance, and no time-and-a-half for overtime. The IRS fights a never-ending battle against this dodge, even providing a convenient form to help you determine whether your worker is a Fred or a B.A.
There are reasons beside taxation for a principal to try to pound a square employee into a round independent contractor hole. Liability and workers’ compensation are two of those. Over the next few days, we’re going to examine the problem of worker classification as it relates to the arboriculture industry. Today, we’re looking in on a real cheapskate and how his tightfistedness nearly killed a teenage girl.
Penny-pincher Sulcer had a tenant named Quimby. No, not the Mayor of Springfield, but instead a long-haul trucker. The landlord ignored his tenant’s pleas to trim a dangerous tree until the tree got in the way of the landlord’s plans. Then he told his tenant — a tree-trimming tyro — to trim it for him, for free, of course.
For some unfathomable reason, Quimby did so. Unfortunately, in so doing, Quimby dropped a limb in a freak accident that struck his high school senior daughter Leslie’s chest, requiring emergency open heart surgery to fix. She survived (even marrying lucky young Mr. Allen during the pendency of the litigation). Sulcer argued that he wasn’t at fault because Quimby was really just an independent contractor, and it was Leslie’s and Quimby’s fault that she stood too close to the tree while Quimby was cutting limbs.
The trial court bought it, but the Court of Appeals — offended, we hope, that the landlord was getting off scot-free — looked at the issue differently. The question, the appellate judges properly held, was what Sulcer owed Leslie as a tenant, not as a volunteer worker for her volunteer-worker-tenant-Dad. And clearly, he had breached his duty to keep young Leslie safe from the perils of an unskilled tree-cutter. Of course, the Court couldn’t help but notice the report of Leslie’s arborist: he said a professional trimming job would have cost ol’ tightwad Sulcer $300 to $500. The Court didn’t say it, but we think it was a bit disgusted that the landlord was willing to jeopardize the life and health of his tenants for $500.00.
No, not this Quimby – Leslie Quimby …
Allen v. Sulcer, 255 S.W.3d 51 (Tenn. Ct.App., 2007). A landlord told his tenant, Mr. Quimby, to prune large limbs from a tree on the rental property with a chainsaw. The tenant’s 18-year-old daughter, Leslie Quimby (now Leslie Allen), was assisting by clearing the limb debris and suffered an aortic valve rupture and other internal injuries that required emergency open-heart surgery, resulting from the impact of a tree limb that had fallen and ricocheted off the ground, striking her in the chest and chin. At the time of the incident, her father was in an ash tree (about 15 to 20 feet off the ground) in front of his rental house, pruning overgrown limbs with a chainsaw. Ms. Allen was standing in front of the house and assisting her father by clearing the limb debris.
The tenant had previously requested more than once that William E. Sulcer, his landlord, who lived 100 yards from the rental house, have the tree pruned. Quimby had voiced his concern that the overgrown limbs hanging over the house and driveway would hurt someone. Even though Sulcer had used professional tree services on his farm in the past, he asked Quimby to perform the work because he was tired of the limbs hanging over the house and driveway. Sulcer did not offer to compensate Quimby for his services. Quimby had no training or expertise in pruning or felling trees or in operating chainsaws, even though he owned one and used it on the limb in question. Sulcer knew Quimby didn’t have experience pruning trees, but he relied on the fact that Quimby had cut limbs on the property before with no problems. Even so, Quimby had never before trimmed large limbs or climbed into a tree to do so. Other than selecting the limbs, Sulcer provided no other instruction, provided no equipment, and was not present at the time of the injury.
Ms. Allen sued Sulcer, alleging he was negligent both as landlord and as the principal of the negligent agent, Quimby. She asserted that Sulcer was negligent in instructing her father to undertake such a task, in failing to supervise his activities, and in failing to maintain the leased premises in a safe condition. She argued that the negligence of her father should be imputed to Mr. Sulcer under the principles of vicarious liability. Sulcer responded that if there was any relationship between Quimby and himself, it was that of employer and independent contractor. He contended he did not create the alleged dangerous condition and that, if it existed, he had no duty to Ms. Allen because the dangerous condition was known (or should have been known) to her. He argued that, as an employer of an independent contractor, he was not liable for the negligent acts of the contractor or for injury to the contractor’s helpers.
The trial court found Quimby to be an independent contractor, and it was a well-settled principle of law that employers of an independent contractor owe no duty to the employees or “helper” of the independent contractor engaged in an inherently dangerous activity. The trial court granted judgment for the defendant, and Ms. Allen appealed.
Held: The summary judgment for Sulcer was reversed. The Court observed that a successful negligence claim requires the plaintiff to establish a duty of care owed by the defendant to the plaintiff; conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty; an injury or loss; causation in fact; and proximate cause. The Court said that, although the parties agreed that Quimby acted as an independent contractor on behalf of Sulcer, the facts of the case more directly implicated landlord/tenant law. The trial court had overlooked the fact that Ms. Allen was a tenant of Sulcer and failed to account for the possibility of Sulcer’s negligence as a landlord. Thus, the Court held, the dispositive question was whether Ms. Allen encountered a harm whose foreseeability gave rise to a duty of reasonable care on the part of Mr. Sulcer, the landlord, to protect her from the danger of falling limbs.
This should not be amateur hour … as the penny-pinching landlord found out.
In general, landlords owe a duty of reasonable care to their tenants. When a landlord undertakes to repair or maintain some part of the premises, he owes his tenants a duty to exercise ordinary and reasonable care in seeing that the repairs are properly made. In other cases, landlords were held liable for injuries to tenants when they sent unskilled employees to repair units. Here, Sulcer knew that Quimby was unskilled in tree trimming, that he did not want to perform this work, and was afraid of heights. Sulcer didn’t even offer to pay Quimby. He didn’t inquire into safety precautions or any other methods Quimby might use. Sulcer argued he had no duty to Ms. Allen because the danger of falling limbs was open and obvious, and, because the danger was so open and obvious, it was not foreseeable that Quimby would allow her to collect the limbs or be anywhere near the work site. But Tennessee courts have concluded that an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability. As in any negligence action, a risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by a defendant’s conduct outweigh the burden upon the defendant to engage in alternative conduct that would prevent the harm.
Here, limbs falling from a tree are not so obvious a danger as to relieve Sulcer of his duty to hire a competent tree trimmer. Sulcer created an unreasonable risk of harm when he asked an unskilled tenant to conduct work that was dangerous. While the force of a falling limb is predictable, its trajectory while falling and after striking the ground is not. This unpredictability makes the risk of injury from a falling limb more salient when unskilled hands attempt the task. The alternatives available to Sulcer, the Court said, ranged from discussing pruning methods to offering assistance to hiring a professional tree trimmer, all of which, to varying degrees, would have materially lowered or eliminated the probability of such harm with very little burden to the defendant.
The Court found that Sulcer had a duty to select someone who would know how to minimize the risk of trimming such large branches.
– Tom Root
Case of the Day, Tuesday, November 4, 2025
FREE GIFT
Some expressions just bug me. “Free gift” is one of them. Of course it’s free. It’s a gift, you knucklehead. What kind of gift would it be if it were not free?
“Free gift” is redundant, a stupid expression, like “past history” and “foreign imports.” And speaking of ‘stupid,’ sometimes you wonder how someone can have so much money and so little else to do that he or she can afford to fritter time and money away on a stupid lawsuit.
Southern California Edison Co., the company responsible for the Dixie Fire in California, has easements all over southern California for transmission and distribution lines. In today’s case, it had a 10-foot wide easement across Steve Severns’ property for maintaining its lines in such a way as not to set all of LA County aflame.
No problem there. But the easement was vague on how SCE was to get to the easement. The language just said “free access,” and for 77 years, the utility and a succession of property owners understood that a route the owner and the company had agreed upon shortly after the easement was granted was the access easement SCE was entitled to use.
But then Steve bought the place. When SCE needed to replace a pole (and, Steve, you can see what happens when California electric utilities don’t maintain their lines), Steve decided he didn’t like the access route SCE had used for 77 previous years. Trying to be accommodating, SCE agreed to a different route, one so vertical it had to pull its trucks to the easement with bulldozers. But then Steve, who believed without any evidence to back him up, that SCE had agreed to restore the route (where the old route had always been left in place), sealed up his property. He told SCE to use a helicopter to get to its easement.
When SCE sued, demanding the “free access” the easement promised, Steve said, “Oh no, that ‘free access’ just means SCE is free to move around inside its 10-foot easement.”
The law has developed many useful laws of statutory and contract construction over the years. One of the principal canons is to give purpose to every part of the contract so that no clause is redundant, surplusage or meaningless.
The court put that canon to good use here. Steve’s interpretation of “free access” to mean SCE had free access only within the described 10-foot easement was just plain stupid. It’s SCE’s easement. Of course it had free access within it.
But that being the case, and the canon of construction instructing us to give meaning to every term, then “free access” must mean something else.
Southern California Edison Co. v. Severns, 39 Cal. App.5th 815 (Ct.App. Cal., 2nd Dist., Sept. 10, 2019). Steve Severns owns a 16-acre parcel of property which is subject to a public utility easement granted to Southern California Edison Company. SCE maintains electrical power lines and supporting structures within a 10-foot-wide strip along the eastern boundary of the property. That strip is described by metes and bounds in the recorded conveyances. Each conveyance also grants SCE “free access” to its electrical facilities.
Steve did not dispute that SCE was entitled to use the 10-foot-wide strip described in the easement for utility purposes, but the parties disagree as to whether SCE has the right to gain access to its easement by traversing other portions of the property. For nearly 80 years, until Steve came along, the property owners allowed SCE crews such access. But not Steve.
Steve bought the property in 2006. In 2008, SCE needed to replace three poles. SCE employees discussed the routes that could be used to reach the poles. Steve objected to SCE’s use of the route historically utilized to access pole 5, because he said that SCE trucks had damaged pipes along the route and that it was too close to the back of his house. The parties agreed that SCE would build an alternative route. The newly created route was steep and, during the work on the poles, the trucks had to be pulled up the steepest stretch with a bulldozer.
Steve complained the new 2008 route was to be temporary. While there was no written agreement, Steve testified that George Perez, an SCE representative, told him that after the pole was replaced SCE would put the property back in the same condition that it was in prior to the pole installation. SCE denied the existence of any such agreement and refused to do so.
Because of the dispute, Steve changed the gate access code/tumbler box and took other steps to prevent SCE’s access. He told SCE to use adjacent properties or helicopters to access its electrical facilities. SCE sued for interference with the easement and declaratory relief. Steve cross-complained, seeking damages for nuisance, trespass and ejectment.
The trial court found, based on the easement language, that SCE had been granted “floating easements” over the property to access its electrical facilities. The floating easements became “fixed” easements when SCE and the property owners agreed on the access routes years before. At that point, SCE became “the owner of an easement of reasonable width” over each agreed-upon access route. The trial court allowed SCE “‘free’ (i.e. unimpeded) access” to those routes.
The trial court further found that SCE and Steve had agreed by acquiescence to abandon the original route to pole 5 and to change the location of that access easement to the 2008 route. The court concluded that while SCE may not construct a new access route or use portions of the property falling outside the 10-foot-wide strip and the delineated access routes, it may perform geotechnical testing incident to repairs and improvements on those routes and trim or remove interfering trees.
Steve appealed.
Held: SCE held a floating easement to cross the property.
A basic rule of interpreting real estate conveyances, including easements, holds that the intent of the parties to the easement is the paramount consideration. The Court noted that it is not the intent of the grantor that governs in such cases. It is the joint intent of the grantor and the grantee. Grants are to be interpreted in like manner with contracts in general. The interpretation of an easement, which does not depend upon conflicting extrinsic evidence, is a question of law.
Recorded conveyances must be interpreted as a whole, with each clause aiding the interpretation in the attempt to give purpose to every part, and the interpretation should, where possible, give effect to every part so that no clause is redundant.
The Court observed that some expressly granted easements – commonly known as floating easements – are not specifically defined as to location by the creating conveyance. These easements are nonetheless fully valid and enforceable by their holders. An easement granted in general terms, nonspecific as to its particular nature, extent or location, is perfectly valid, the Court said, entitling the holder to choose a reasonable location and to use such portion of the servient tenement as may be reasonably necessary for the purposes for which the easement was created.
What’s more, the actual use made by the holder over a period of time fixes the location and the nature and extent of the use. Such an easement necessarily carries with it not only the right but also the duty to maintain and repair the structure or facility for which it was created.
Where an instrument conveys or reserves an unlocated, floating easement, it is presumed that the parties intended to establish a reasonably suitable and convenient route in view of the anticipated needs of both parties. The easement right cannot be exercised over the entire servient tenement, but until the easement is located by agreement of the parties, it is a cloud on the title to all of the property.
In this case, the Court said, SCE’s recorded conveyances do not identify the portion or portions of the property that the company may use for “free access” to its electrical facilities. Steve argued the “free access” language in the conveyances simply means SCE is entitled to move freely within the 10-foot-wide metes-and-bounds easement area. Steve’s interpretation made no sense. “It is undisputed,” the Court observed, “that the recorded conveyances, taken together, grant SCE easements over the 10-foot-wide strip for utility purposes. This grant would be meaningless if SCE could not move freely within that strip to construct, replace, inspect and maintain its electrical power poles, lines and equipment.” Because SCE’s right to move freely within the 10-foot area is not dependent upon the ‘free access’ language, the Court ruled, “the only reasonable interpretation is that the grantors of the easement intended, through that language, to grant SCE some right of access over the property to reach its electrical facilities. Under Severns’ interpretation, the “free access” language would be both redundant and unnecessary.”
Even if the Court were to assume the “free access” language was ambiguous, the extrinsic evidence established the grantors understood the recorded conveyances granted SCE the right to traverse the property to access the 10-foot-wide strip. “It is a cardinal rule of construction that when a contract [or conveyance] is ambiguous or uncertain,” the Court held, “the practical construction placed upon it by the parties before any controversy arises as to its meaning affords one of the most reliable means of determining the intent of the parties.” Here, the evidence confirmed that for decades the grantors freely allowed SCE to drive over the property to access its electrical facilities. Even Steve permitted access until the dispute arose over the restoration of the 2008 route. “This historical usage of the property is consistent with our interpretation of the conveyances,” the Court ruled.
The exception to the historical easement involved the route to pole 5. The route changed in 2008 when Steve asked SCE to construct an alternative route to that pole. Because substantial evidence supported the trial court’s finding that “the original route across the north side of the house has been abandoned and that the road along the east side of the house has been established as the new access route,” the new route because SCE’s new easement route. “We are not persuaded,” the Court said, “by Severns’s argument the 2008 route was meant to be temporary. The court heard conflicting testimony on this issue and ruled in SCE’s favor. Such credibility determinations are the province of the trial court.”
– Tom Root
Case of the Day – Monday, November 3, 2025
HURTS SO BAD
In case you missed it the past two days, this is a trackhoe removing a tree.
Today is our last day down on Dick Lavy’s Darke County farm. As you recall, we helped Dick’s faithful employee Sylvester trim the trees along a fencerow that separated one of the Lavy from land belonging to his neighbor, Jim Brewer.
We were fairly impressed to watch Sylvester run a trackhoe down the Lavy side of the fencerow, smacking down branches with the machine’s bucket. It was not pretty, but it got the job done effectively and cheaply.
Jim Brewer, however, wasn’t very happy with the result and sued Dick Lavy Farms. Farmer Lavy argued the Massachusetts Rule let him trim overhanging trees any way he liked, that Sylvester wasn’t negligent or reckless, and that the damage – if there even was damage – didn’t amount to much. The jury thought it was arboricide and socked Farmer Lavy for $148,350.
Last Thursday, we watched the Court of Appeals for Darke County, Ohio, fillet Dick Lavy’s argument that the Massachusetts Rule was a license to butcher. The Court affirmed a landowner’s right to trim encroaching trees and roots to the property line but held that such trimming had to be done in a reasonable manner so as not to injure the adjoining owner’s trees.
On Friday, we saw the Court compare the various means of trimming a fencerow, comparing for ease of use, custom in the area, and cost. It concluded that the trial court was right to find DLF negligent in trimming part of the fencerow and reckless in continuing after a sheriff’s deputy advised Dick Lavy to get legal advice before continuing (advice the farmer ignored).
Today, the Court delves into the $148,350 damage award. Clearly, the Court is troubled that Jim only paid $170,000 for the whole 70 acres, and provided no evidence that the value of the land fell a farthing because of Sylvester’s trimming activities. The Court felt hard-pressed to see Jim get almost $150,000 when no trees other than some saplings were destroyed.
Jim didn’t help his cause by admitting (as he had to) that he only visited the land about eight times a year to hunt and picnic, and the trimming didn’t interfere with those activities. He argued that he planned to build a house there in another 14 years or so, but the Court couldn’t see that the damaged fencerow trees had any impact on those plans.
Usually, the measure of damages for a trespass where trees are cut is the difference in the land’s value after the cutting versus before the cutting. There are times when this measure does not capture the real loss: a family loses a cherished ornamental tree, for example, or the landowner nurtures trees for their ecological value.
That’s what Jim Brewer claimed, too…
In this case, however, it’s hard to see how Jim was hurt at all, not to mention hurt as badly as he claimed to be. Indeed, that’s how the Court of Appeals seems to read it, too. Come with us now on a detailed and thoughtful journey through all of the matters a court (and aggrieved party) should consider in setting the amount of loss. Although the Court sends the damage award back for the trial judge to deal with, it’s quite clear that the appellate panel is disinclined to turn the case into a winning lottery ticket for Jim Brewer.
Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016)
(These facts are repeated from the previous two days: If you don’t need the refresher, skip to the holding)
In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.
The former owner had allowed his neighbor Dick Lavy Farms to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees were ornamental or unique.
In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line and that such clearing was important for crop production, yield and safety of farm equipment. Using a track hoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the trackhoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch Sylvester stated that he never consciously reached over with the bucket to try and break a branch at the tree trunk that was on Brewer’s side of the property.
When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County sheriff’s deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.
Or, if you’re Sylvester, don’t use a chainsaw at all…
The deputy told Brewer that Lavy said that he was allowed to take tree branches from his side and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.
Although the deputy suggested that Lavy obtain legal advice before continuing, Lavy continued clearing the fencerow. Knowing that Brewer was upset, Lavy told his employee not to clean up branches that fell on Brewer’s side.
Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.
Brewer sued Dick Lavy Farms, alleging a violation of O.R.C. § 901.51, reckless trespass, and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.
DLF argued that it had a common law privilege to cut off, destroy, mutilate or otherwise eliminate branches from Brewer’s trees that were overhanging DLF land. The Farm also argued that if it was liable, the proper measure of damages should be the diminution of Brewer’s property value; in the alternative, the court’s holding on the issue of damages was against the manifest weight of the evidence. Finally, DLF claimed it had not negligently or recklessly trespassed on Brewer’s property.
The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515.
Dick Lavy Farms appealed.
(If you remember the facts from the previous two days, start here)
Held: It was Halloween for Jim, and he got a trick, not a treat. The $148,350 in damages was set aside because Jim’s property really didn’t diminish in value.
The Court observed that in a previous case, it had held that where the trespasser could not reasonably foresee that trees had a special purpose or value to the landowner, and where the trespasser “cuts trees that are part of a woodland mix and not unique, the ordinary measure of the harm is the difference in the fair market value before and after the cutting.” The trial court, however, had relied on a different standard:
It was all trick and no treat for Jim…
In an action for compensatory damages for cutting, destroying and damaging trees and other growth, and for related damage to the land, when the owner intends to use the property for a residence or for recreation or for both, according to his personal tastes and wishes, the owner is not limited to the diminution in value (difference in value of the whole property before and after the damage) or to the stumpage or other commercial value of the timber. He may recover as damages the costs of reasonable restoration of his property to its preexisting condition or to a condition as close as reasonably feasible, without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.
At trial, Jim’s expert arborist testified that the cost of removing the trees Sylveste3r had damaged would cost $55,000, and the cost of replacing them would be $138,000, plus tax. Jim did not offer any evidence that his 70-acre property’s fair market value had fallen by so much as a penny. DLF’s arboriculture expert testified the life expectancy and service life functionality of the fencerow were not affected by the manner in which the trees were pruned. He valued the fencerow as a woodland edge fence and argued that real estate or fair market value would be the proper way to assess damages. Another DLF expert also testified that the fair market value of Brewer’s property was the same before and after the incident.
The trial court found that removal of the damaged trees was unnecessary, and thus discounted that $55,000 cost. In addition, the court concluded that the $138,000 estimate for tree replacement was excessive, and reduced that amount by 50%. The court also deducted 14% for ash tree disease, which had already caused the death of a number of trees on both sides of the lane. The trial court thus arrived at $59,340 in compensatory damages.
Next, the trial judge decided that DLF had negligently trimmed one-fourth of the property (or about 1,000 feet), and recklessly trimmed the remaining three-fourths of the fencerow. The trial court awarded $14,835 for negligence, and $44,505 for DLF’s recklessness. Pursuant to O.R.C. § 901.51, the court trebled the recklessness amount to $133,515. This brought the total damages to $148,350.
The Court of Appeals noted Ohio’s general rule that “recoverable restoration costs are limited to the difference between the pre-injury and post-injury fair market value of the real property,” The courts have carved out an exception, however, that permits restoration costs to be recovered in excess of the decrease in fair market value when real estate is held for noncommercial use, when the owner has personal reasons for seeking restoration, and when the decrease in fair market value does not adequately compensate the owner for the harm done. This restoration cost exception has been applied, for example, where the damaged trees have been maintained for a specific, identifiable purpose (like recreation, or a sight, sound, or light barrier), when damaged trees are essential to the planned use of the property, or when the damaged trees had a value that can be calculated separate from ornamental trees have been destroyed, or where the trees form part of an ecological system of personal value to the owner.
Even where the restoration exception is applied, the Court said, “the proposed cost [cannot be] grossly disproportionate to the entire value of the injured property.”
The Court said that the damage to Jim Brewer’s trees was “temporary” (meaning, apparently, that the damaged limbs would grow back), and that the Ohio rule is that “damages for temporary injury to property cannot exceed the difference between market value immediately before and after the injury, is limited. In an action based on temporary injury to noncommercial real estate, a plaintiff need not prove diminution in the market value of the property in order to recover the reasonable costs of restoration, but either party may offer evidence of diminution of the market value of the property as a factor bearing on the reasonableness of the cost of restoration.”
The trial court seemed certain that Dick Lavy was a deep pocket, and that may have driven its damage award.
“Viewing the trial court’s award of damages from the perspective of reasonableness,” the Court of Appeals said, “we must conclude that the award for restoration was objectively unreasonable.” First, the application of O.R.C. § 901.51 “almost exclusively involves situations where trees have been completely cut down, making it considerably easier to determine the full extent of the damage to the plaintiffs’ property.” Here, Jim Brewer admitted that other than a few small saplings, he was not claiming that any large trees had been removed from his land. Instead, he contended only “that 326 trees had been damaged in some manner and would ultimately die, even though pictures of the area taken in June 2014 depict a substantial canopy of foliage… Brewer also testified that a number of trees had died, but he did not give any specific number.”
The Court found that Jim Brewer’s trees were not ornamental and were not located at his residence. Instead, they were native trees that were just part of a fencerow. Jim testified he used the property for hunting only about six times a year, and for family get-togethers maybe twice a year. He also admitted the removal of branches had not had any effect on these activities or his ability to rent tillable land to farmers. Jim intended to put a house on the property after his 4-year-old child graduates from high school, but he didn’t claim that DLF’s tree trimming affected his plans to do so.
The Court found it noteworthy that Jim Brewer paid $180,000 for all 70 acres, yet claimed the restoration cost (including removal and replanting of trees) for a very small part of that property was more than $200,000.
Jim did not present any proof that the fair market value of the land had fallen because of the tree trimming. The Court agreed that he was not required to present such evidence, bur said “it would have been helpful, particularly since two defense witnesses indicated that removing vegetation from the fence row did not impact the fair market value of the land.” Additionally, the Court found that much of the trial judge’s calculations “were based on speculation or were incorrect. For example, the court concluded that one-fourth of the fence row was trimmed negligently, but the plaintiff’s own evidence showed that more like 1,800 feet had been trimmed when Jim Brewer first complained. “The trial court could have chosen to disregard [the DLF employee’s] testimony,” the Court said, “but there is no logical reason to disregard the plaintiffs’ own admission about how far the fence row had been cleared.”
The Court of Appeals was not inclined to see Jim Brewer get a winning lottery ticket…
The trial court also gave no particular reason for its 50% discount on damages. What’s more, the Court of Appeals complained, “The trees on the fence row were a woodland mix of native trees, not ornamental trees. A number of the trees were undesirable, and there was no evidence of special value. In addition, the fence row had been unmaintained for 10 or 29 years. Even though these facts no longer require damages to be limited to diminution in value, they are still points that should be considered in deciding whether an award is reasonable.”
The Court of Appeals vacated the damages, and directed the trial court on remand to consider the reasonable restoration costs, taking into consideration the decrease in the fair market value of the land; the fact that the trees were a common woodland mix, not ornamental trees or trees that Jim had planted for a particular purpose; the fact that the fence row was not maintained for many years, and had undesirable and dead trees on each side of the row; the extent to which the trees have regenerated since the date of the 2013 trimming; the lack of impact on Jim’s intended home site; and the fact that Jim’s use of his property is “sporadic and is not impacted by any injury to the trees.”
The detailed list of evidence the trial court is to consider pretty much tells the trial judge how the Court of Appeals expects this to turn out.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 