Case of the Day – Tuesday, January 24, 2023


I grew up learning that Niccolo Machiavelli said “the ends justify the means.”  (He didn’t).  But Alexandr Solzhenitsyn did dispute the aphorism Machiavelli never spouted. In The First Circle,  Solzhenitsyn complained that “the end never justifies the means. Vile means defeat the ends they seek to bring about.”

It made sense to me. But it turns out that, at least in Kentucky, the ends do sometimes justify the means. That’s the principal lesson to take away from today’s case.

And in a strange way, that makes good sense, too. In yesterday’s case, a Kentucky court of appeals quite logically held that where Kentucky law said that a county engineer is responsible for keeping highways clear of fallen trees, a county engineer could not argue that he did not have to comply with the statute simply because the Louisville area metro government decided to organize its department of public works differently. The duty, the Court said, was not held discretionary. Instead, it is ministerial. That is, the duty is clearly stated in law, and all the engineer has to do is perform it.

But when County Engineer Rick Storm went to trial and admitted the statute made him responsible – regardless of the fact he never knew it and had no ability to discharge the statutory obligation even if he had – the jury listened to all the evidence, heard the court’s legal instructions, and yet inexplicably held that Rick was not liable.

Juries. Living contradictions to the belief in the wisdom of the crowd. My first reaction to Rick’s jury was to appreciate a thoughtful survey that appeared a few years ago in The New York Law Journal. Entitled “Are We Boring Juries to Death?” the article rightly complained:

Between the closing arguments and the deliberations, judges take jurors on a pseudo crash course through law school. However, law students receive an entire semester of guidance to become versed in the intricacies of substantive law (approximately 48 in-class lecture hours in addition to in-home studying), whereas jurors receive complicated instructions, that cover wide ranging topics, and take between 90 and 120 minutes to disseminate.

And what do we expect from jurors? We expect them to listen to, process, retain, and apply a burdensome breadth of information throughout the course of a trial. We demand they understand at least two different legal theories, digest all testimony and documentary evidence, contemplate issues like credibility, truthfulness, bias, and more. If that was not enough pressure, we require them to almost instantaneously understand dense legalese that attorneys have had the luxury to research and study for hours, and in many cases, years.

Certainly, the authors had a point. You take a group of legal laymen, bore them to death in a warm, sleepy courtroom, cram them with arcane legal jargon, and set them loose to apply knowledge they have only heard once. It’s as amazing that juries ever hit the mark as it is unsurprising that anyone with any sense avoids jury duty.

Yet, the more I thought about the jury letting Rick off the hook, the more sense that inexplicable decision made. The end is getting fallen trees off roads. If Louisville chooses other means to reach the end, why does it really matter? It is the end that justifies the means, even if those means do not include Rick.

Storm v. Martin, 540 S.W.3d 795 (Supreme Ct. Ky., 2017). A windstorm that blew across Louisville dropped power lines and trees. Three days later, Lou Martin was riding his motorcycle on Phillips Lane when he collided with a downed tree in the roadway. Lou was badly hurt.

Lou sued Ted Pullen, Jefferson County Director of Public Works and Rick Storm, who was the Metro Louisville County Engineer, in their individual capacities, alleging negligence due to their failure to remove the downed tree or to warn motorists of the hazard. At the time, Rick reported directly to Ted. Rick and Ted filed a joint motion for summary judgment on grounds that they were entitled to qualified official immunity in their individual capacities. The trial court agreed with Ted but denied the motion with respect to Rick.

Rick appealed. The Court of Appeals noted that KRS 179.070, which sets forth the powers and duties of a county engineer, specifically states that “(1) [t]he county engineer shall… [r]emove trees or other obstacles from the right-of-way of any publicly dedicated road when the tree or other obstacles become a hazard to traffic[.]” Rejecting Rick’s argument that he was not aware of the statute and that the operations and maintenance division of the Department of Public Works was the entity responsible for tree removal, the panel cited Wales v. Pullen (a contemporaneous case against Rick involving a motorist injured by a downed tree in the same windstorm, which we covered yesterday), holding that despite the fact “the Louisville Metro Government Department of Public Works may have chosen to structure its department differently, “based on the statutes as written, a member of the public… would expect the county engineer to remove trees, as evidenced by the clear statutory mandate and power to do so.” The Court said the statute’s use of the word “shall” rendered Rick’s duty ministerial. Thus, he had no qualified immunity.

After that, Rick went to trial. He testified that as county engineer, he and his staff were a division of a larger Department of Public Works, that he had never been responsible for trees, and that the task had always been performed by the operations and maintenance division. Rick admitted that he was unaware of KRS 179.070, and that no one ever told him tree removal was part of his job responsibilities. In fact, Rick said his department did not even have the equipment to remove trees. Similarly, Greg Hicks, the Assistant Director in charge of the operations and maintenance division of Public Works, testified that it had always been his division’s responsibility to remove trees from the roadway.

At the close of all evidence, Lou moved for a directed verdict, arguing that Rick had proved the plaintiff’s case. The trial court denied the motion. The jury then returned a unanimous verdict in favor of Rick, finding that Lou had not proven that Rick failed to comply with his duty as set forth in the instruction.” Lou asked for a judgment n.o.v., pointing out that Rick’s testimony conclusively established that he failed to comply with KRS 179.070(1)(j). Lou argued that the jury’s question to the trial court during deliberations showed jurors were less concerned with Rick’s duty and more concerned with whether a judgment would wipe him out financially. The trial court was unmoved.

Not so the Court of Appeals. It reversed and remanded for a new trial, holding that the jury’s findings that Rick did not fail to comply with his duty were against the weight of the evidence, and overlooked the specific duty the statute imposed on Rick.

Rick appealed to the Kentucky Supreme Court.

Held: The Supreme Court disagreed. It found that the record held ample evidence on the issue of Rick’s duty as county engineer, but the evidence supported the jury verdict rather than cut against it. The trial court’s jury instructions did not misstate the engineer’s duties. After the jury heard extensive testimony that the director of public works had assigned tree removal duties to the assistant director in charge of operations and maintenance, and after being instructed on the specific duties required of the county engineer, the jury unanimously found that he had not breached his duty, holding that the statute was directory and substantial compliance could satisfy its provisions.

In order to determine whether strict compliance or substantial compliance is sufficient to satisfy a statutory provision, the Court held, a trial judge must first determine whether the applicable provision is mandatory or directory. This determination is vital, because a proceeding not following a statute’s mandatory provision is illegal and void, while the failure to observe or conform to a directory provision is not. In other words, if the directions given by the statute to accomplish a given end are violated, but the given end is in fact accomplished – without affecting the real merits of the case – then the statute is to be regarded as merely “directory.”

Clearly, the Court held, the intent behind KRS 179.070(1)(j) is to ensure that trees or other obstacles do not block a public roadway. To achieve this goal, the statute requires that, when such obstacles become hazardous, they must be removed. Section 179.070(1)(j) does not mandate that this duty is non-delegable, nor does it provide guidance for how the county engineer is to actually ensure the removal of hazardous trees from a roadway.

“Obviously,” the Supreme Court said, “the statute does not contemplate personal strict compliance on the part of the county engineer as the sole means to accomplish this, particularly so close in time to a severe weather event when a huge number of trees have fallen. Especially under the facts of this case, the delegation of tree removal to other agencies or persons could accomplish the intent of the statute, and therefore, the statute is directory and substantial compliance may satisfy its provisions. This duty is ministerial, meaning that Rick Storm is not entitled to immunity, but that does not dictate the duty is absolute. Whether Rick acted negligently by failing to perform a ministerial duty is an issue for the jury to determine… After hearing the testimony, and being instructed on the specific duties required of the county engineer, the jury unanimously found that Storm had not breached his duty.”

– Tom Root


Case of the Day – Monday, January 23, 2023


It is not an especially enviable position in which to find oneself. As Jefferson County Engineer (Metro Louisville, Kentucky), Rick Storm had a laundry list of duties assigned by the legislature. One of them was to see that downed trees were cleared from the road.

Louisville and metro Jefferson County are big places. Over the years, the Department of Public Works had swollen to eight departments and 800 employees. Rick’s County Engineer department was a kind of a backwater, with about 50 people mostly doing planning and oversight of other departments’ projects. The days of the County Engineer showing up with a couple guys and a dump truck were long gone in urban, complex, high-speed Louisville.

As for tree removal, Rick’s boss, the Director of the Department of Public Works had a separate office that handled that.

The problem was that state statutory codes are a lot like Roach Motels. Statutes check in but they rarely check out. One antiquated law on the books required the County Engineer to clean up downed trees.

Rick had no idea the law said that, and in Jefferson County, that wasn’t how they did things, anyway. But when Wally ran his Harley into branches still on the roadway six days after a severe windstorm, he didn’t care what Rick did or didn’t know, or what the Dept. of Public Works did or didn’t prefer to do in cleaning up trees. The law said the inaptly-named Rick Storm was responsible for cleaning up storm-damaged trees, and that was all that Wally needed to know.

Wales v. Pullen, 390 S.W.3d 160 (Ct. Appeals Kentucky, 2012). On September 14, 2008, Louisville was hit by a significant windstorm that resulted in downed power lines and downed trees across the city. Six days later, Wallace Wales was returning home on his motorcycle after a night out with friends. As he rode down Wilson Avenue, he hit branches of a tree thin the middle of the roadway and crashed.

Ted Pullen is the Metro Louisville Director of Public Works and Assets, running an agency of almost 800 employees working in eight divisions. Each division has either an assistant director or a manager who supervises the division and reports directly to Pullen. Rick Storm was one of those managers, an Assistant Director of Public Works, overseeing the engineering division. He also served as the County Engineer to represent the Louisville Jefferson County Metro community on the Planning Commission. As the Assistant Director in charge of the engineering division, Storm supervised about 50 employees who managed all manner of engineering, including highway construction and maintenance, Rick also helped Ted run the department.

Following the motorcycle accident, Wally Wales sued Louisville Gas & Electric, Ted Pullen and Rick Storm in their official and individual capacities, for failure to remove the downed trees or place adequate warnings of the trees on Wilson Avenue. Ted and Rick filed a joint motion to dismiss, claiming that the allegations against them in their official capacities were barred by the doctrine of sovereign immunity and that the claims against them in their individual capacities should be dismissed because they were entitled to qualified official immunity.

Wally admitted that Rick and Ted could not be held liable in their official capacities, but argued that they were only subject to qualified official immunity. Kentucky Revised Statutes (KRS) 179.070 required the county engineer to remove trees or other obstacles from the right-of-way when they become a hazard to traffic. The trial court held that appears that Storm’s action or omission of removing a downed tree would be considered ministerial in nature.

Under normal circumstances, when a tree falls onto a Louisville street, someone notifies 911 and 911 will contact Police or Fire and Public Works. A Public Works supervisor is dispatched to the scene, and the utility company, Public Works or a private contractor (if the job is too big) will cut up the tree. Ted said this is an unwritten procedure that everyone knows from his or her experience in the Public Works Department.

Following the 2008 windstorm, the Public Works Department, feeling “vastly overwhelmed” by the number of calls, put incoming calls about downed trees on a list and distributed those lists to the district areas. Ted’s executive assistant maintained the list and was responsible for making the assignments. Ted admitted he knew Kentucky statutory law placed a duty upon the County Engineer to remove trees in the road that cause a public safety hazard. However, Ted never discussed Rick’s statutory duty with him and never told him that removing trees was included in his official duties.

Rick said he never read KRS 179.070 and that no one ever told him that removing trees was part of his job duties. He indicated that Public Works had a sub-department that handled tree removal and that he was simply too busy to have that function as one of his job duties, especially given the size of the city. When asked why he thought the statute did not apply to him, Rick said he was simply not aware of the statute. He admitted he did not remove trees from the roadway during the post-storm cleanup period, and he did not ask anyone to remove any such trees from the roadway during that time.

Ted argued to the trial court that as the head of Public Works, he was only required to supervise his employees and ensure the implementation of the department’s policies. He claimed that he was not personally responsible for removing trees from roadways or otherwise ensuring that roadways were safe. For his part, Rick denied that as the County Engineer, he was responsible for removing trees and other obstacles from the roadways.

The trial court found both Ted and Rick were entitled to qualified official immunity. The judge concluded no one alleged that Ted or the employees he directly supervised were charged with the removal of the tree. The court held that “none of [Pullen’s] duties involve obedience to the orders, or the execution of any specific act, such that they are ministerial in nature.” With respect to Rick, the trial judge overlooked his previous holding that given the language of KRS 179.070, Rick’s “action or omission of removing a downed tree would be considered ministerial in nature.” Instead, the trial court relied on Rick’s own statement that he was never informed of the statute and that he was never told that removing trees was part of his job. Concluding that Rick had no actual authority to direct the removal of storm debris, the trial court held that he did not owe Wally any duty.

Wally appealed.

Held: Under KRS 179.070, the county engineer had the duty and authority to remove a downed tree, and he was liable for any negligence in failing to remove the trees or in improperly removing the trees. Rick was not entitled to qualified official immunity. Ted, however, was entitled to qualified official immunity inasmuch as his duties were discretionary in nature. Nothing in the record suggested Ted acted in bad faith with respect to any of his duties.

While government officials and employees like Ted and Rick may enjoy immunity in their official capacity, they do not enjoy immunity for negligent performance of ministerial tasks when sued in their individual capacity. When a state officer or employee is sued in his or her individual capacity, he or she is protected only by qualified official immunity.

Sovereign immunity is the principle that a sovereign nation is inherently immune from suit unless it has given its consent to be sued. This immunity extends to legislators in the performance of their legislative functions, judges for their judicial functions, and prosecutors for the performance of the prosecutorial functions. The rationale for this is to protect these offices against the deterrent effect of a threat of suit alleging improper motives where there has been no more than a mistake or a disagreement on the part of the complaining party with the decision made.

Questions regarding immunity for other governmental positions are resolved by examining the nature of the functions with which a particular official has been lawfully entrusted and evaluating the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Absolute immunity of a government official from suit for monetary damages is justified only when the danger of the official being deflected from the effective performance of his or her public duty is great.

Qualified immunity affords protection from damages arising from good faith judgment calls made in a legally uncertain environment. It applies to negligence only where the acts or functions are discretionary, where the acts were taken in good faith; and where the acts are within the scope of the employee or the officer’s authority. Government employees are not afforded qualified immunity for any ministerial act or any discretionary act performed in bad faith.

The decision as to whether acts are discretionary or ministerial must be determined by the facts of each particular case after weighing such factors as the nature of the official’s duties, the extent to which the acts involve policymaking or the exercise of professional expertise and judgment, and the likely consequences of withholding immunity. An act is not discretionary merely because some judgment is used in deciding on the means or method used. Where the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will be liable to the individual for any injury that he may proximately sustain in consequence of the officer’s failure or neglect to perform the duty at all or to perform it properly. In such a case the officer is liable as well for nonfeasance as for misfeasance or malfeasance.

Wally argued that the trial court disregarded KRS 179.070(1)(j), which stated that county engineers will remove trees from roadways and held that Storm had no actual authority in his position to remove the trees at issue in this case. KRS 179.070 holds that a county engineer shall, among other things, remove trees or other obstacles from the right-of-way of any publicly dedicated road when the tree or other obstacles become a hazard to traffic.”

Given the clear statutory mandate to remove trees, the Court of Appeals said, Rick as the County Engineer had “the duty and authority to remove a downed tree.” While the Jefferson County Metro Public Works Department may have chosen to structure its department differently, based on the statutes as written, a member of the public – like Wally – would reasonably expect the county engineer to remove trees, as evidenced by the clear statutory mandate and power to do so. Rick’s duty, the Court found, was not discretionary, but rather ministerial. Therefore, he was personally liable for negligence in failing to remove the trees or in improperly removing the trees.

Parenthetically, the Court noted, “the trial court’s reliance on Rick’s statements that he was never informed of this statutory duty was in error. This Court does not believe this is an adequate defense for a public official or employee seeking the protection of sovereign immunity… [W]here the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will be liable to such individual for any injury which he may proximately sustain in consequence of the failure or neglect of the officer either to perform the duty at all or to perform it properly.

Ted, however, did have qualified official immunity. As the director of public works, his duties did not involve mere obedience to others and were discretionary in nature.

– Tom Root


Case of the Day – Friday, January 20, 2023


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

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

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

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

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

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

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

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

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

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

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

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

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

– Tom Root


Case of the Day – Thursday, January 19, 2023


Reader Paul D. sent a comment yesterday:

Figuring damages for tree loss… I don’t understand why you would use diminution of property value… Unless you were going to soon sell the property or you had a business on the property or your property generated some kind of income. But if the trees were for a personal reason, such as shade or privacy, wouldn’t the better way of proving damages be the current value of trees removed or at least restoration costs?

I think placing a diminution price on a residential property can often be very subjective and inaccurate, especially compared to having a qualified arborist make a value assessment.

Paul asks a good question. Why would anyone prefer a diminution in property value over restoration costs or stumpage value?

Here’s a prime example of someone who might: A few years ago, a tree service company sent a crew to an address in Grove City, Ohio, to remove a maple on the front lawn. Instead of going to 1553 Main Street, the crew mistakenly went to 1533 Main Street. That house, coincidentally, also had a maple tree in its front lawn, a magnificent and healthy specimen that the homeowner loved very much.

You can guess what happened. While the homeowner was obliviously toiling in his office 10 miles away, the tree cutting crew made short work of the beautiful maple. When the owner arrived home that evening, his arboreal pride and joy was nothing but a stump and some sawdust.

There was no question about liability: the tree service company goofed. But how much to pay for the tree? Stumpage value makes no sense. The homeowner wasn’t raising the tree to sell the timber. Replacement cost for the tree might be a fairer measure. However, the largest tree that could be planted for the homeowner – with costs of a few thousand dollars – will not begin to replace the lost tree.

In our homeowner’s case, the measure of damages we finally settled on was a real estate appraisal that concluded that the value of the home had been lessened by about $17,000 by the removal of the mature tree.

Today’s case considers what might happen if the removal of the trees does not diminish the value of the property. A man named Chung bought a parcel of land for a home. When he had a tree-cutting service clear the land for construction, the cutters crossed the line onto Rora Park’s land and removed about 560 trees. The decision only implies this, but it appears that the “accident” might not have been accidental at all. Rather, Chung may have steered the cutters in the wrong direction in order to improve the view from his land.

Whatever the reason, the liability was certain. The problem arose because removing 560 trees didn’t really decrease the value of Rora Park’s land at all. Hard to believe, but then, Alaska is a pretty big place. So Ms. Park demanded restoration damages and payment of the cost of restoring the property by planting new trees. That would have been about $400,000. The trial court granted damages equal to the cost of replanting 50 trees, but the Alaskan Supreme Court reversed.

Chief Justice Oliver Wendell Holmes, Jr.

       Chief Justice Oliver Wendell Holmes, Jr.

It seems that if the wronged property owner doesn’t have a “reason personal to the land-owner for restoring the trees,” an Alaskan court won’t use that measure of damages. In this case, Ms. Park waxed eloquent about how she had once had cancer, and “this natural beauty of my yard is [a] healing spot for me, and . . . after work I come by, see my property and see the natural beauty and the trees and all that[. W]hen I [saw] that all cut out it just [made] me very – [it] just [broke] my heart, and then very angry . . .” Unfortunately for her, she later tried to downplay how often she visited the property.

The trial court wouldn’t let her have it both ways and found that she hadn’t justified restoration damages. But, apparently troubled by Ms. Parks’ neighbor getting away with a fast one, the trial court nevertheless awarded her restoration damages anyway. It may have seemed like justice, but it wasn’t the law.

The Alaskan Supreme Court said that restoration damages could be awarded only if Park had a “reason personal” for restoring her property. Because she failed to prove she had such a reason, she ended up being entitled to pretty much nothing.

There’s something not right about letting a slippery character like Chung pull a fast one, cut down 50 of the neighbor’s trees for a better view, and not have to pay damages for it. But that’s the system for you. It reminds one of a quotation attributed to Oliver Wendell Holmes, Jr: “This is a court of law, young man, not a court of justice.”

Chung v. Park, 339 P.3d (Sup.Ct. Alaska, 2014). Landowner Rora Park sued her neighbor Christopher Chung for trespass, alleging that he cleared about 50 trees from her property without permission. The trial court found that the tree cutting did not diminish the property value and that there was no reason personal to the landowner for restoring the trees. But the trial judge nevertheless awarded damages equal to the cost of restoring 50 trees on the property.

Ordinarily, a landowner damaged by a trespass may recover either the loss in property value or reasonable restoration costs. But restoration costs are inappropriate if they are disproportionate to the loss in property value unless there is a reason personal to the landowner for restoring the land. We thus conclude that we must vacate this award.

Chung hired a company to build the foundation of his new house. As part of that project, the contractor agreed to clear trees and other vegetation from the lot. Aerial photographs indicate that some trees were removed from Park’s property near the border of Chung’s lot between August 2008 and the end of September 2008, and more trees were removed between 2008 and 2009. The trees appear to have been removed more or less directly behind the house built on Chung’s property. Timber debris, presumably from the cleared trees, was also discovered buried on Park’s property. An expert witness hired by Park estimated that 562 trees were cleared from about a third of an acre of Park’s property. He calculated that it would cost over $400,000 to restore the property to its former condition. But Chung’s expert witness testified that the market value of Park’s property was likely not affected by the removal of trees.

trespasstimber150126The trial court found Chung liable for the trees removed from Park’s property. Although the court acknowledged that Park had not proved that the tree cutting reduced the value of her property and found that Park had no reason personal for replacing the trees, it nevertheless concluded that “it would be reasonable both aesthetically and legally to award damages that would permit replacement of trees on that first portion of the lot that can be clearly shown to have been scraped clean as of September 27th, 2008.” The court, therefore, awarded Park the cost of replacing 50 trees, $23,500. Because the court found that Chung’s trespass was intentional, it awarded treble damages under AS 09.45.730.

Chung appealed.

Held: The Alaska Supreme Court vacated the damage award. It held that a party who is injured by an invasion of his property not totally destroying its value may choose as damages either the loss in value or reasonable restoration costs. But reasonable restoration costs are an inappropriate measure of damages when those costs are disproportionately larger than the diminution in the value of the land and there is no reason personal to the owner for restoring the land to its original condition. A reason personal is one that is “peculiar or special to the owner.” The Court said, “We require the landowner to demonstrate a reason personal because we believe it indicates circumstances where the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.”


     Ms. Park tried to sell the court that the trees were her “personal healing spot.” New wave… or just trying to pump up her damages?

During the trial of this case, Park tried to establish a reason personal for replacing the trees that Chung had allegedly removed. She talked about having had cancer, and relying on her property as a “healing spot for me.” But later in the trial, she downplayed her visits to the property. As a result, the court found that Park had not established a reason personal for restoring her property.

According to the unrebutted testimony of Chung’s expert witness, the removal of trees from Park’s property did not appreciably affect the value of her property. The trial court accepted that testimony in its findings of fact. Therefore, the Supreme Court concluded, the damages the trial court awarded – $23,500 before trebling – were disproportionate to the diminution of the property value. The Court said that the trial court could award restoration damages only if it found that Park had a reason personal for restoring her property. Because it did not, the trial court’s award of compensatory damages that exceeded the diminution in the market value of Park’s property was not appropriate.

– Tom Root


Case of the Day – Wednesday, January 18, 2023


We have seen our share of “obstructed view” cases, in which landowners were not liable because their vegetation obscured traffic signs.

But what if the landowner does something to the tree or vegetation to exacerbate the situation? Is that even possible? More to the point for a negligence calculus, does a landowner owe a duty to motorists?

Today’s case asks just that question. A utility company that took the easy way out, and simply topped a pine tree standing under one of its lines. Topping is a lousy way to trim a tree. No self-respecting arborist would have anything to do with it. And, it turns out, that topping did not stop the tree from growing. It simply forced the tree to grow out instead of up.

Iglehart v. Bd. of County Comm’rs, 60 P.3d 497 (Supreme Ct. Okla. 2002). Brenda Iglehart failed to stop at a county road intersection where crossing traffic had the right-of-way. She was broadsided. She sued everyone she could think of, including the Board of County Commissioners for maintenance of the road, and – relevant to this appeal – Verdigris Valley Electric Cooperative. She alleged Verdigris, which owned an easement alongside the road, contending it negligently maintained a white pine tree by “topping” it in order to keep the tree limbs from interfering with electric lines. By so doing, Brenda said, Verdigras caused the tree to grow laterally and more densely, obscuring the stop sign. According to plaintiffs, Verdigras owes a duty of care to motorists traveling on the adjoining roadway, or at least a duty to warn of a hazardous condition within its control, and that its breach of this duty directly caused Brenda’s injuries.

The trial court granted summary judgment to Verdigris and the Commissioners). The Court of Civil Appeals reversed the summary judgment for the Board but upheld summary judgment in favor of Verdigris. The appellate court held that a utility company does not owe a duty of care to travelers on roads adjacent to its power lines which are under its maintenance.

Brenda appealed to the Oklahoma Supreme Court.

Held: A utility company owes a duty of care to traveling motorists on adjoining roads when its substandard maintenance of trees could foreseeably cause danger to the public.

The Court observed that to establish negligence liability for an injury, Brenda must prove that (1) Verdigris owed her a duty to protect her from injury, (2) Verdigris breached that duty, and (3) its breach was a proximate cause of Brenda’s injuries. The burden is not cast upon Brenda to establish that Verdigris was negligent in order to escape its motion for summary judgment. Rather, to avoid trial for negligence, Verdigris must establish through unchallenged evidentiary materials that, even when viewed in a light most favorable to Brenda, no disputed material facts exist as to any material issues and that the law favors Verdigris.

Verdigris contends that (1) no duty existed; that (2) if a duty existed, the company did not breach it, and that even if it had, (3) its actions were not a proximate cause of Brenda’s injuries.

The threshold question for negligence suits is whether a defendant owes a plaintiff a duty of care. “We recognize,” the Court said, “the traditional common-law rule that whenever one person is by circumstances placed in such a position with regard to another, that, if he (she) did not use ordinary care and skill in his (her) own conduct, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” Among a number of factors used to determine the existence of a duty of care, the most important consideration is foreseeability. Generally, a defendant owes a duty of care to all persons foreseeably endangered by his conduct concerning all risks which make the conduct unreasonably dangerous. Foreseeability establishes a “zone of risk,” which is to say that it forms a basis for assessing whether the conduct creates a generalized and foreseeable risk of harming others.

The question of whether a duty is owed by a defendant is one of law; a breach of that duty is a question of fact for the trier. Here, the Court held that a utility company indeed owes a duty of care to traveling motorists on adjoining roads when its substandard maintenance of trees could foreseeably cause danger to the public. Citing the Oregon Supreme Court’s decision in Slogowski v. Lyness, the Court ruled it was potentially foreseeable to a utility company that a tree it maintained could cause a hazardous condition to motorists on an adjacent roadway. Once having undertaken the task of trimming and inspecting trees within its easement, a party must act reasonably in the exercise of that task.

In this case, the Court said, Brenda has raised a disputed issue of fact regarding the foreseeability of the injuries she suffered, sufficient to avoid summary process. According to the affidavit of her expert witness, James R. Morgan, the white pine tree in question had been “topped.” The main tree trunk has been cut off in the upper quadrant of the tree. Once this occurs, the upward growth is halted, and the tree instead increases density and limb growth. These results, the affidavit stated, are particularly true for the type of pine tree in question and are common knowledge among those who cut trees.

Verdigris challenged the certainty with which the expert made his determination, but at this stage of summary process review, the Court said, “we must view facts in the light most favorable to the plaintiff. Mindful of this rule, we hold that – given the proximity of the tree to the stop sign and the common-sense notion that without a visible stop sign, an intersection, such as that here in question, poses an obvious hazard” Brenda had raised a disputed issue of material fact as to the foreseeability of the accident arising from the action of Verdigris. “Foreseeability must hence be left for a jury evaluation.”

– Tom Root


Case of the Day – Tuesday, January 17, 2023


springsnow160321Somewhat to my surprise, my snowdrops poked their little green shoots through the cold soil two weeks ago. But with the arrival of snow this past weekend, they are buried under several inches of white stuff. Which is good, because they are not usually seen until the second week of February, here in the Great Lakes Basin just 30 miles south of the Canadian border.

My wonder dog Winnie found this morning’s walk a little nippy, but tomorrow will be in the 40s. She’ll find it more to her liking, just fine for chasing deer (she flushed ten of them on Sunday, pursuing them like the 40 lbs. of bad news she can be when chasing game, small and large).

So I walk my dog on a cold day. Who cares? Landscaper Superior Property Management Services, Inc., sure did when Colleen Hill decided to do that. Utah-based Superior had been hired by the Waterbury Homeowners Association to landscape and maintain the grounds at beautiful Shanty Acres. The parties had a standard contract, one that – among other things – called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season.” Elsewhere, the contract directs the landscapers to “trim . . . small and lower branches” on trees.

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

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

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

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

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

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

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

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

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

Hill v. Superior Property Management, Inc., 2013 UT 60 (Utah Supreme Ct., 2013). Superior Property Management had held the contract to maintain premises for the Waterbury Homeowners Association for years. The form contract called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season” and to “trim . . . small and lower branches” on trees. After resident Colleen Hill, while walking her dog one early spring day, tripped on a growth from a tree root, she sued Superior for negligence because it had not trimmed the root.

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

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

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

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

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

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

– Tom Root


Case of the Day – Martin Luther King, Jr., Day 2023


The majestic courage shown by the Selma marchers 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today's plaintiff.

The courage shown by the Selma marchers 58 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately, cannot be undone by knuckleheads like today’s plaintiff.

For a country that was supposed to be sailing into a post-racial world after the election of President Obama in 2008, we’ve had a rough time of it in the last 14 years.  In race relations, 21st century-style, there is the deadly serious (such as Ferguson, Chicago, ClevelandCharleston, Minneapolis, and Brunswick, Georgia)– the merely reprehensible (University of Kentucky senior arrested after screaming racial slurs at black UK freshman) – the head-scratching (trees can be racist?), and of course a former President who is or is not racist, depending on your political viewpoint, but who regardless had no problem saying that white people are being sent to the back of the line for COVID treatment.

That last issue, and exactly how he may have referred to the governance and economics of Haiti, El Salvador, and some countries in Africa, are a suitable launching point for a trip into the absurd. The absurd is something we’ll look at today, on Dr. Martin Luther King’s birthday commemoration.

Sigmund Freud was famously but questionably credited with having said “sometimes a cigar is just a cigar.” In today’s case, a matter of trespass to trees was somehow recast into a federal civil rights action by the plaintiff, who was a man with a litany of offenses committed against his ancestors which he wanted to redress.

Mr. Brewer apparently trespassed on Mr. Lance’s property and removed three trees. Rather than an appropriate trespass to trees action (with a request for treble damages) in South Carolina courts, Mr. Lance went for broke, suing Mr. Brewer for violation of his civil rights under 42 U.S.C. § 1983.

A § 1983 action is a powerful one, authorizing a federal court action to be brought against persons who, under color of state law, deprive another of his civil rights. It has been used against those who discriminate in housing, police officers who wrongly kill suspects, employment discrimination, and even in zoning decisions.

But § 1983 doesn’t do everything. Here, Mr. Lance argued that not only had Mr. Brewer falsely claimed to have the County’s permission to cut down the trees, but Mr. Brewer’s grandfather had defrauded Mr. Lance’s cousin in a land deal about 40 years before. When the Federal magistrate judge recommended dismissal of the § 1983 action, Mr. Lance objected, arguing rather ineloquently that ““GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction.”

cartoon150313Destruction was something the federal court was willing to risk, holding that no matter how it tried to construe Mr. Lance’s complaint, there just wasn’t a civil rights violation alleged. Of course, he was free to pursue his complaint in state court, and we assume he did so.

Lance v. Brewer, 2007 U.S. Dist. LEXIS 30247, 2007 WL 1219636 (D.S.C., Apr. 24, 2007). In late 2005 Defendant Brewer cut down three large trees and other tree limbs on Plaintiff Lance’s property without permission. Lance asserted that Brewer, who ran a business named Don’s Scrap Metal and Iron, sold these trees for profit but that he and his relatives did not receive any profit. Lance alleged that Brewer told him the county gave him permission to cut down the trees, but according to Lance, a county employee told him that Brewer did not have permission to cut down the trees. In addition to these claims, Lance argued that Brewer’s grandfather purchased the property adjoining his property forty to fifty years ago by “fooling” Lance’s cousin into selling 20 acres of river-front property for $200.00.

Lance alleges Brewer’s actions constitute racism and discrimination under 42 U.S.C § 1983, and he seeks $85,000.00 on behalf of the heirs of his cousin, Willie Lance. A U.S. Magistrate Judge recommended that Lance’s claim be dismissed. Lance disagreed, and sought rejection of the Report & Recommendation.

Dr. King stood for equality and justice… not nonsense.

Held: Lance’s tree-cutting-as-civil-rights case was dismissed. The Court noted that Lance had objected to Report and Recommendation because “GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction. The United States Court has Federal Jurisdiction, because this is a Civil Rights Violation.” The Court said, “[t]he Plaintiff’s unsubstantiated statement that the Court has federal jurisdiction because this is a civil rights violation does not change the fact that even liberally construing the Plaintiff’s complaint, it fails to state a claim for a federal civil rights violation.” Here, Brewer is a private individual.

What’s more, Lance tried to state a claim pursuant to § 1981. The Court held that Lance has failed to allege an essential element of a § 1981 claim, that there is a contract or property law right enjoyed by white citizens but not by the Plaintiff, who is black. The Court concluded that – tree or no tree – no federal question was raised by Lance’s claim, and thus jurisdiction did not exist.

– Tom Root