Cases from April 2014


Case of the Day – Wednesday, April 2, 2014


The first rule of plaintiffs advocacy ... look for the deep pockets.

The first rule of plaintiffs advocacy … look for the deep pockets.

Mr. Spano was a municipal employee, detailed to haul away debris left by a tree trimming company that had been hired by the village government.  A fellow employee using a village front-end loader dropped a log on Spano, injuring him.

Quick, legal scholars – whose fault was it Spano was hurt?  Not the village worker whose ham-handed running of the loader had caused the log to fall on Spano. Not the village manager, who had let an unqualified worker run some dangerous heavy equipment. No, the real culpable party, according to Spano’s lawyers, was the tree-trimming company. Of course!  It cut the log too large, so large that it was too hard for the front-end loader to handle.

The back story here, of course, is that a patchwork of New York laws made it impossible for Spano to sue his employer successfully or, for that matter, his fellow workers.  It wasn’t that Northwood Tree Service was negligent.  Rather, it was that Northwood was the sole party at the scene that wasn’t immune to suit. It wasn’t the deepest pocket, it was the only pocket.

Of course, Spano also could have sued the front-end loader manufacturer for making a machine that couldn’t safely pick up a big log, or the chainsaw manufacturer for negligently making chainsaws that cut big pieces instead of small pieces, or even Starbucks for putting too much caffeine in the front-end loader operator’s latte.  With lawyers this creative, the list could be endless.

lawyer-cartoon140402The court thought so, too.  It held that Northwood owed no duty to Mr. Spano simply because it had a contract with the Town.  Even if it did, it was hired to cut down a tree, and that’s what it did.  Spano’s attorney could see where the case was heading and tried to amend his way out of it, but the Court said where the complaint was palpably without merit and the amendment not sufficient to fix the problem, pulling the plug on the whole case was the only humane thing to do.

Spano v. Northwood Tree Care, Inc., 852 N.Y.S.2d 289, 48 A.D.3d 667 (N.Y.A.D. 2 Dept., 2008).  Spano was injured while performing tree debris removal for his employer, the Town of Mount Pleasant, which contracted with Northwood Tree Care to cut down a tree.  The Town provided its own employees to haul the logs away.  When one of Spano’s coworkers attempted to pick up a particular log with a front-end loader, the log — which was too big for the bucket — fell on Spano’s ankle.

And just how big was the log?

And just how big was the log?

Spano said Northwood Tree Care’s employees negligently created unreasonably large and unmanageable logs for Town employees to haul away.  He sued Northwood Tree Care, seeking to recover damages for injuries suffered as a result of the accident.  The trial court granted summary judgment for Northwood Tree Care, and Spano appealed.

Held: The suit was properly dismissed.  Northwood Tree Care established that it did not owe a duty of care to Spano by virtue of its contract with the Town, and in any event, the Town properly performed its obligations.  The trial court also correctly denied Spano’s cross motion for leave to amend the complaint. While leave to amend a complaint shall be freely given under the rules, the Court said leave may be denied where, as here, the proposed amendment was palpably insufficient or patently devoid of merit.

Case of the Day – Thursday, April 3, 2014


oopsMr. Harper accidentally cut down 70 trees on Ms. Dumas’ property, thus markedly improving his view.  Oops!

The more skeptical among us think that cutting one Dumas tree would have been an accident, cutting down a few would be tragedy. But cutting down 70 of ‘em, and coincidentally achieving the better view Mr. Harper coveted … well, that sounds like enemy action.

The Connecticut court is considerably more credulous than we are. The judge bought the notion that Mr. Harper and his woodsmen goofed, but pondered long and hard about how to figure the damages.  In a weird inversion of schadenfreude, Ms. Dumas argued her damages should be measured by the value that Mr. Harper derived from his better view.  The Court rejected that.

Instead, it held, the measure of damages is either the value of the timber or the diminution in value of Ms. Dumas’ place.  Harper said that the trees he accidently lopped weren’t ornamental, so the only damage is about $1,000 worth of debris (thus proving that while he couldn’t identify a property line, old Mr. Harper didn’t lack for chutzpah).

The Court disagreed.  The trees weren’t strictly ornamental, but that was their purpose, regardless of Mr. Harper’s sad attempt at speciesism.  The damages should be measured by the cost of repair, the Court said, and the repair will cost $16,000.

Careful testimony by Ms. Dumas’ expert was crucial to establishing her damages, and arborists and landscape professionals should consider how plenty of detail can persuade a court to side with an expert’s report. For the same reason play-by-play people keep a color commentator near at hand, an expert should tell a story that’s not only accurate and complete, but interesting as well.

Nothing left but a stump field ...

Nothing left in Ms. Dumas’ yard but a stump field …

Dumas v. Harper, Not Reported in A.2d, 2008 WL 496558 (Conn.Super.Ct., Feb. 6, 2008).  Yvon Dumas claims that Emery Harper and his agents entered on her land without permission and cut down about seventy trees.  Dumas claimed trespass, and sought damages and treble damages pursuant to Connecticut law, and other equitable relief.  The matter was tried to the court.

Based on the evidence, including a site inspection, the court found that Harper and his minions cut down about 70 trees, resulting in the area looking unsightly, with tree stumps and branches and debris strewn about.  The Court found that Harper’s trespass was the result of a mistake.

Dumas introduced evidence of the value of the “view” to Harper with the trees on her property cut down.  But the Court ruled that the value of any view to Harper was not the measure of damages, but rather the damages were either the market value of the tree once cut down, or the diminution in the market value of Dumas’ property caused by the cutting.  Harper argued that the only measure of damages the court can award pursuant to Connecticut General Statute § 52-560 was the market value of the 70 trees as severed from the soil, because the trees in question were neither ornamental nor shade trees. The Court disagreed, holding that while the trees were not ornamental trees as such, the evidence was that they had ornamental value insofar as their removal rendered that portion of Dumas’ property unsightly. It would make no sense, the Court said, for the damages to be limited to the value of the trees as severed from the realty. The damages to be awarded to Dumas should be based on the reduction in the pecuniary value of the land because of the cutting.

The Court found that the diminution in value to the Dumas property should be measured by the cost of cleanup and screening the area with new trees.  The Court accepted the expert opinion of Dumas’ landscape consultant, who testified that the work would take a week or more and would cost $9,180 for labor and $6,000 for new trees.

Case of the Day – Friday, April 4, 2014


Fun ... but not that sturdy ...

Fun … but not that sturdy …

Carefree RV living!  Groovin’ on the high life in your boyfriend’s parents’ backyard, roughing it in a Coleman camper … what fun!

At least it’s fun until an unexpected storm blows through, and a devastating derecho lays waste to your suburban Buffalo neighborhood (we’re guessing this was the well-documented Labor Day 1998 Derecho event).  A branch broke off a tree in during the blow, and it fell on the camper, injuring Mary Simet and apparently writing the final chapter of her relationship with beau Randy Newman (no, not that Randy Newman). 

Mary sued Coleman. Its stupid camper couldn’t absorb the impact of a massive tree branch in a windstorm, imagine that!  And for good measure, Mary named her soon-to-be-ex-boyfriend and his parents, claiming that the branch was rotten and they should have cut it off, or not put the camper there, or warned her, or … or something. You know the drill.  I’ve been injured.  Therefore, someone’s gotta pay!  And that’s when your lawyers start looking around for defendants who have insurance.

After the storm, of course, the Lehmans and their neighbors cleaned up.  Mary complained that the cleanup spoiled her evidence, and the trial court, amazingly enough, agreed.  But then it concluded that the evidence showed that any rot on the limb was not clearly observable, which let the Lehmans off the hook.  And the whole derecho event was an act of God for which the Lehmans ­ including the Facebook-relationship-status “single” Randy – could not be blamed.  dumped140404

Wow.  Sued by your own girlfriend.  Now that’s what we call getting dumped.

Simet v. Coleman Co., Inc., 839 N.Y.S.2d 667 (N.Y.A.D. 4 Dept. 2007). Mary Simet suffered catastrophic injuries during a severe storm, when a tree limb blew onto the camper in which she was sleeping with her boyfriend at that time, Randy Newman, who is the son of Linda Lehman.  

The camper was owned by Linda and her husband, David, and was located in their back yard. The limb, located approximately 30 feet from the camper, broke during an unusually intense storm with high winds, known as a “derecho.”  Mary and Randy were unaware of the approaching severe storms when they retired to the camper and, indeed, the first severe storm warning wasn’t issued until after the storms had passed through the area. 

The Lehmans had no notice that the tree from which the limb broke was decayed or defective.   Mary’s expert opined that, regardless of whether the tree appeared to be healthy, the Lehmans would have been advised by an arborist to secure the limb if they had retained an arborist to inspect their trees.  

On the advice of their insurance carrier and as part of a neighborhood cleanup after the storm, the Lehmans removed the branch and the camper remains, after photographic evidence was collected. 

Mary sued Randy and his parents, and then she moved to strike their answer based on their alleged spoliation of that evidence.  The trial court struck the Lehman’s answer because of the spoliation, but then granted summary judgment for them anyway, and threw out Mary’s case. 

Mary appealed, and so did the Lehmans.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998.  “Derecho” is a term derived from Spanish for “straight,” and is characterized by intense straight-line winds.

Held:   The Court of Appeals held that striking the Lehmans’ answer based on spoliation was not warranted, that the Lehmans were entitled to summary judgment, and the limb falling was an act of God that precluded Randy’s liability.  

The Court held that the Lehmans removed the limb and camper not to frustrate the plaintiff’s but only after their insurer gave permission and as part of a neighborhood effort.  They had carefully photographed it before disposing of it.  At most, the spoliation of the evidence was negligent, and the remedy striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence deprives the moving party of the ability to establish his or her case.  That wasn’t the situation here. 

Furthermore, the Lehmans weren’t liable to Mary Simet.  The Court held that they did not create the dangerous condition with respect to her presence in the camper, and did not have constructive notice that the tree from which the limb broke was decayed or defective.  No one was on notice a storm was coming.  The fact that an arborist, if one had been hired, might have advised the Lehmans to secure the limb is irrelevant.  New York law requires that the manifestation of tree decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. 

Finally, the falling of the tree limb during the storm was an act of God that precluded Randy’s liability, with whom Mary was staying in camper at the time.

Case of the Day – Monday, April 7, 2014



fence040407We often wish we recalled more from our real property law classes taken our first year of law school, much longer ago than we’re willing to admit. But we still recall our amazement when we first heard about the doctrine of adverse possession. It seemed at once shocking and exciting to us that an enterprising trespasser could move onto someone else’s land, and – if they squatted long enough – graduate from trespasser to owner for free. Is this a great country or what?  

We shared beers with classmates and argued about which fact patterns would let the Freddy Freeloader family get title from Albert Absentee, just because the Freeloaders squatted on the property. In fact, we can still recall the property-law mantra: open, notorious, exclusive, continuous and hostile. AdvPosChklst040407That is, for whatever period the statute requires, commonly 21 years (but it can vary by state), the squatter must take possession of the land openly and notoriously. The possession must be continuous and unshared with anyone who actually has the right to the land. Finally, it must be adverse to the landowner’s interest. It seemed simple to us. What we didn’t know as law students but we know now is that judges generally don’t like giving away someone else’s property to a party claiming by adverse possession, and as a result, meeting the adverse possession test isn’t always that easy to do.

But it can happen. Today’s Arkansas case is a prosaic illustration of how this is so, and how courts sometimes shape the adverse possession tests to do justice. The Boyds and Robertses were friendly rural neighbors. For decades, both families had always thought that the old, run-down fence dividing their properties was the boundary. The Robertses and their predecessors had used all of the land up to the fence, planting grass, grazing cattle, maintaining the fence, clearing brush – even paying the taxes – for over 20 years. The Boyds accepted things the way they were. After all, everyone knew the fence was the boundary.

The time came when the Boyds had a survey done and discovered that everyone was wrong. The fence wasn’t the boundary. Instead, the Boyds owned a whole lot more property than they ever thought they did. Even after discovering that, they didn’t push the Robertses back, but instead let the fence stand.  It was a good fence, and made for good neighbors.

proptug040407But finally, the Boyds made plans to sell their place to Winningham, someone who wasn’t so friendly. Winningham and the Boyds told the Robertses to move back to the property line, and Wimmingham tore down the old, overgrown fence. Litigation (not hilarity) ensued.

Generally, if a squatter “encloses” the land with a fence, the act of enclosure is enough to meet the “open and notorious” requirement for adverse possession. Here, Boyd’s buyer strove mightily to convince the court that the Robertses had never really possessed the disputed land, but the Court was not impressed. The old fence didn’t really “enclose” anything, but it made an “open and notorious” claim, even if the parties believed all along that the Robertses’ possession was righteous. It seemed hardest for the Court to swallow the fact that the Robertses had paid the taxes on the disputed land. Somehow, it just didn’t seem fair to pretend the Boyds had controlled it all along.

It might not have been a “good fence” … but it was good enough.

Boyd v. Roberts, 98 Ark.App. 385, 255 S.W.3d 895 (Ark.App. 2007). The Boyds purchased their property in 1981. At that time, a barbed-wire fence ran between their property and the property to the east, which was purchased by the Robertses in 1990. The Boyds had a survey performed in 2002 that revealed the true property line ran from 75 to 96 feet on the Robertses’ side of the barbed-wire fence.  Pursuant to the survey, new boundary lines were marked and staked.

AdvPosCartoon040407During the summer of 2004, after seeing the markers, Mr. Roberts contacted Mr. Boyd and was informed that the Boyds were claiming the property according to the new markers. Mr. Roberts was further informed of the Boyd’s intention to sell the property to Winningham.  The disputed area was used as a pasture and a hay meadow.  Boyd had known for 22 years that the true line was east of the fence but did not know the true line’s exact position because of the drainage ditch.  Instead, he had just gone by the fence.

The trial court found the Robertes to have possessed the disputed property by maintaining the fence, mowing as close as possible to the fence, and running horses on the disputed area. The Boyds and Winningham did not dispute that the Robertses had color of title and paid the taxes on their property or that the Robertses’ activities lasted more than seven years. The trial court found that the Robertses intended to adversely possess the property because they believed that they owned the property. It held that the title should go to the Robertses, and it even awarded them $511 for destruction of the fence.  Winningham appealed.

Held: The award of the disputed property to the Robertses was upheld.  Winningham argued that the disputed area was not enclosed because the fence surrounding it was degraded prior to its removal by Winningham. While the construction of a fence is not necessary to constitute adverse possession, fencing the disputed area is an act of ownership evidencing adverse possession.

We wish this shirt had been around when we were in law school - it would have made the doctrine of adverse possession much more real and understandable for us ...

We wish this shirt had been around when we were in law school – it would have made the doctrine of adverse possession much more real and understandable for us …

The fact that the fence may have been degraded did not necessarily mean that the property was no longer enclosed.  The question was properly whether the enclosure, like other acts of possession and claims of ownership, was sufficient to “put the true owner upon notice that his land was held under an adverse claim of ownership.” Here, the Court said, the fence was visible enough so that all of the parties knew it existed when they purchased their respective properties. Furthermore, the parties undisputedly treated the fence as the boundary between their properties.  On these facts, the Court said the property was sufficiently enclosed so as to provide notice that the Robertses were claiming the land up to the fence. 

Winningham also argued that the Robertses did not actually possess the entire disputed area because a ditch prevented them from mowing all the way to the fence. But the Court found that because the disputed tract was enclosed, the Robertses’ possession of any part thereof is constructive possession of the entire enclosure.  Winningham maintained that the Robertses’ possession was not “open and notorious.”  The Court held that actual possession of real estate was notice to the world of claim or interest of one in possession, regardless of whether such claimant had on record a written instrument creating in him an interest or title.  Notice of adverse possession could be inferred from facts and circumstances, such as grazing livestock, erection of a fence, or improving the land. Here, the Robertses’ activities were visible to all and were the type that would normally be done by one claiming ownership.

Title to the disputed area was transferred by the Court to the Roberts family.

Case of the Day – Tuesday, April 8, 2014



rottentree140408When a tragedy occurs, it’s all too common to look for someone to pay for it.  In today’s case, a young man, was left a quadriplegic when a healthy-looking tree standing along side a public highway fell without warning and struck his car. The trial judge was obviously moved by the sad story, and felt it his duty to open the state’s wallet.

The trial judge denied the Louisiana Department of Transportation and Development a free pass.  The judge recognized that a prior holding relieved the state from the duty to inspect all sides of a tree.  But he reasoned that the rule had been adopted in a case where a construction crew’s negligence had weakened the tree on the side away from the road.  The trial court here reasoned that this case was different: it was natural rot, and natural rot did require DOTD to inspect all sides of a tree.

Truly a distinction without a difference! Step back and consider the implications of this holding.  Besides the fact that why the tree was weakened is really not relevant to the danger it poses, the trial court’s ruling would mandate incredibly costly and time-consuming inspections.  A state — even Louisiana — has a lot of highways to inspect.  In Louisiana’s case, it amounts to nearly 17,000 miles of road, and a lot of trees.  The costs to the taxpayers of a tree-by-tree inspection would be staggering.

difference140408The Court of Appeals made short work of the trial judge’s higher “duty.”  It held that the law was clear.  Where the tree appears healthy — like the one that fell on the victim — the state’s duty could be discharged in a drive-by inspection. No matter why the tree was rotten.

Walker v. State, Dept. of Transp. and Development, 976 So.2d 806 (La.App. 2 Cir., 2008).   Nathaniel Walker was a passenger in a vehicle being driven by Dannie Evans on Louisiana Highway 71, when a large oak tree fell on the car.  Nathaniel was left a quadriplegic, albeit one with a good lawyer.  He sued Dannie, Allstate Insurance and the State of Louisiana Department of Transportation and Development.

Among other things, Walker alleged the oak tree that fell on the vehicle was on the highway right-of-way in violation of highway safety regulations, that DOTD had prior knowledge that the tree needed to be removed and that DOTD failed to inspect the right of way.  DOTD moved for summary judgment, arguing that Nathaniel couldn’t any facts in support of his allegation that DOTD had prior knowledge that the tree needed to be removed. DOTD supported this claim with an affidavit from one of its maintenance superintendents who had conducted an inspection of the area in question two weeks before the mishap.  The state agency argued that under the law, it owed no duty to motorists traveling on state highways to check for damage on all sides of trees that abut state roadways.  The trial court denied summary judgment to DOTD, because the damage to the tree in this case was a result of natural rot as opposed to third-party operated construction equipment. The trial court stated that despite the holding in a prior case –Caskey v. Merrick Const. Co. – the distinction as to how the tree was injured imposed a greater duty to inspect on DOTD.

DOTD appealed.

Held:  DOTD won, and Walker’s case was dismissed. The appellate court said in order to recover damages from DOTD, Walker had to prove that the state had ownership or control of the tree which caused the damage; the tree was defective (that is, it created an unreasonable risk of harm); the state had actual or constructive knowledge of the defect and failed to take remedial procedures within a reasonable amount of time; and the state’s failings led to the injurie Walker suffered.

Now this is a distinction without a difference ...

Now this is a distinction without a difference …

No one contested that DOTD had control over the rotten oak tree, that the rotten oak tree was defective, and that the rotten oak tree caused Walker’s injuries.  Instead, the Court held, the primary issue was whether DOTD had actual or constructive knowledge that the tree was rotten. The condition that caused the oak tree in question to fall was visible only on the back side of the tree, out of sight of DOTD inspectors who passed by on the road. There was no genuine issue as to the location of the rotten area in question, or whether the rotten area in question was observable from the roadway. Additionally, the photographs taken at the accident scene reveal that the oak tree was otherwise healthy, containing a full canopy of green leaves.

The Court said that DOTD’s duty to protect against the risk of a tree falling onto a highway required it to inspect for dead trees and remove them within a reasonable time. The state was not required, however, to inspect every tree that conceivably could fall on the road or to remove trees simply because they had the potential to fall onto the road.

In Caskey, the court held that DOTD inspectors had no duty to walk around all sides of the tree and check for damage, particularly when the tree is otherwise green and healthy.  The trial court in this case imposed a greater duty on the state than the law required.  The Court of Appeals ruled that the trial court’s incorrect determination – that a different duty exists when the defect results from natural causes as opposed to artificial causes – was a contradiction of the law, a distinction without a legal difference.

Case of the Day – Wednesday, April 9, 2014


It seems like every ticket you buy has a waiver of liability printed on the back ... and who ever pays attention to them?

It seems like every ticket you buy has a waiver of liability printed on the back … and who ever pays attention to them?

Englebert Humperdinck wasn’t thinking about this kind of release, and most of the time, neither do we. But prospective releases or liability waivers are a part of our lives, from amusement parks and ski resorts to pools to dry cleaners to parking lots and hat checks. We get little tickets that have fine print on the back stating that by using whatever service we’re using, we agree that we can’t hold the vendor liable if anything goes wrong. Our fedora’s missing from the hatcheck? Too bad. Our pants have a hole burned in them from being pressed? Maybe we can cut them off and make shorts. The roller coaster collapses and crushes us to death? Sorry, pal, guess this just ain’t your day, and tomorrow doesn’t look very good, either.

Certainly, such releases serve an important purpose, being crucial grease on the cogs of commerce. You can find websites that let you “roll your own” liability waiver form for whatever event you have planned with just a few clicks. But the proliferation of such releases has to leave us wondering – first, are all these liability waivers enforceable? And second, can we use prospective waivers in the arboriculture industry — such as “by hiring me to trim your tree, you release me of liability if I make it fall on your Yugo” — to absolve ourselves from liability?

A California court grappled with such a release when a developmentally disabled child drowned at a city-run camp for such children. The girl’s mother had signed a release from liability – parents sign those forms all the time, and whoever reads them? – but the trial court and the court of appeals held the release would not release the City from liability for gross negligence. The Supreme Court of California agreed, holding that an agreement to release future liability for negligence in recreational activities could not, as a matter of law, release the City or the employee from liability for gross negligence.

The case includes a detailed review of the history of such releases, and a rationale for determining which types of releases are enforceable, and which are not. Generally, a prospective release may not relieve grantee of any obligation to meet even a rudimentary standard of care. If Santa Barbara had written its release to relieve it of liability for simple negligence, the release probably would have been valid. But it wrote it too broadly, to release it from any negligence, even gross negligence or recklessness. That was too much for the Court.

Big pigs get slaughtered ... The takeaway - write your release to be reasonable, or a court may ignore all of it.

Big pigs get slaughtered … The takeaway – write your release to be reasonable, or a court may ignore all of it.

In other words, little piggies go back to the trough, but big piggies get slaughtered.

City of Santa Barbara v. Superior Court, 62 Cal.Rptr.3d 527, 41 Cal.4th 747, 161 P.3d 1095 (S.Ct.Cal., 2007). The City of Santa Barbara provided extensive summer recreational facilities and activities for children, including a camp for children with developmental disabilities called Adventure Camp. Katie Janeway, who suffered from cerebral palsy and epilepsy participated in the camp. Swimming activities were held on two of five camp days each week in a City swimming pool.

The application form for Adventure Camp included a release of all claims against the City and its employees from liability, including liability based upon negligence, arising from camp activities.

Katie’s mother signed the release in 2002, as she had in prior years. She also told the City about Katie’s disabilities, specifically that the girl was prone to seizures in the water, and that Katie needed supervision while swimming. The City knew the child had suffered such seizures in the past, and camp administrators took special precautions during the Adventure Camp swimming activities in 2002, assigning a special, trained counselor to keep Katie under close observation during the camp’s swimming sessions.

Pants came back from the cleaners with a hole?  read the fine print on your claim ticket.  There's probably a waiver there.

Pants came back from the cleaners with a hole?  Read the fine print on your claim ticket. There’s probably a waiver there.

Katie participated in the first swimming day at the 2002 Adventure Camp without incident. On the second swimming day she drowned. About an hour before drowning, Katie had suffered a mild seizure that lasted a few seconds. Her counselor observed the seizure and sent another counselor to report the incident to a supervisor. The supervisor said that the report never was received. Katie’s counselor watched her for 45 minutes following the mild seizure, and then — receiving no word from her supervisor — let Katie go ahead with swimming. Malong concluded that the seizure had run its course and that it was safe for Katie to swim. As Katie dove into the water for the second time that day, the counselor momentarily turned her attention away from Katie. When she looked back no more than 15 seconds later, Katie had disappeared. After the counselor and others looked for Katie for between two and five minutes, an air horn blew and the pool was evacuated. Lifeguards pulled Katie from the bottom of the pool, and she died the next day.

Katie’s parents filed a wrongful death action alleging the accident was caused by the negligence of the City. Relying upon the release, the City moved unsuccessfully for summary judgment. Failing in this, the City appealed, and the appellate court denied the petition, holding the agreement was effective and enforceable insofar as it concerned liability for future ordinary negligence, but concluding that a release of liability for future gross negligence is generally unenforceable, and the release form did not validly release any liability.

The Supreme Court granted review.

Held: The City’s release was invalid to extent it purported to apply to future gross negligence. The Court observed that “ordinary negligence,” an unintentional tort, consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. “Gross negligence,” on the other hand, is a want of even scant care or an extreme departure from the ordinary standard of conduct. A signed release absolving the City and its employees from liability for “any negligent act” in its operation of recreational program for disabled children violated public policy and was thus unenforceable, to the extent it purported to release liability for future gross negligence. Therefore, the Janeways were not precluded from pursuing wrongful death action.

Sure you can impose your waiver in the fine print ... but it's not just boilerplate.  Use care in drafting it, or - better yet - spend a little money to have a lawyer do it for you.

Sure you can impose your waiver in the fine print … but it’s not just boilerplate. Use care in drafting it, or – better yet – spend a little money to have a lawyer do it for you Some things are too important for D-I-Y.

The Court said that public policy generally precludes enforcement of agreements that would remove the obligation to adhere to even a minimal standard of care. Courts may, in appropriate circumstances, void contracts on the basis of public policy, the determination of which resides first with the people as expressed in the California Constitution and second with the state legislature. Although the power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and should be exercised only in cases free from doubt, nevertheless — the Court said — courts are authorized to distinguish ordinary negligence from gross negligence, even absent express legislative authorization.

The Court grudgingly seemed to accept that waivers of liability for future ordinary negligence – at least in recreational or sports contexts – would be enforceable. However, neither California nor the overwhelming number of other states permit a waiver of liability for future aggravated negligence.

Whether this holding might have applicability before recreational and sports activities, such as in “inherently dangerous” activities such as tree removal, is up in the air. While this shouldn’t dissuade an arborist or tree removal company from including a carefully-drawn and limited waiver in the contract, neither should the professional bank on the waiver being enforced.

Case of the Day – Thursday, April 10, 2014


coffeespill140410Mrs. Taubenfeld should have listened to the Mamas and Papas … they predicted that this might happen to her. It seems Mrs. T was walking past a Starbucks when she stepped into one of those tree wells cut into the sidewalk.   She fell over an exposed tree root and hit the ground. She immediately hobbled off to her lawyer’s office. A lawsuit against Starbucks and the strip mall owner soon followed.

She argued that the lease between the strip mall owner and Starbucks required the mall owner to maintain the sidewalk.  The Court disagreed, saying that the lease didn’t matter, because a contract between parties could not create a duty to the public where one didn’t otherwise exist.

Tree well – is it a threat or simply a menace?

Tree well – is it a threat or simply a menace?

And no such duty existed here.  A village ordinance required that property owners and lessees keep their sidewalks clear of obstructions, but that law didn’t create a right for a private person to sue.  If Starbucks had failed to keep up the sidewalk, it might have to answer to the city government, but not to Mrs. Taubenfeld.

Statutes commonly make people or entities liable to the government (in the form of fines or penalties) for noncompliance.  Usually, where the obligation is to clear natural problems, such as snowfall, high grass or exposed tree roots – conditions which the owner did not create ­– the statutes do not give general public the right to sue for damages arising from noncompliance.

Taubenfeld v. Starbucks Corp., — N.Y.S.2d —-, 2008 WL 451055, 2008 N.Y. Slip Op. 01587 (N.Y.A.D. 1 Dept., Feb. 21, 2008).   Florence Taubenfeld fell over a tree root. The root was growing in a tree well cut into a public sidewalk in front of premises owned by Park Plaza and leased to Starbucks.  Faster than you can say sugar-free hazelnut latte made with nonfat milk, Mrs. Taubenfeld sued, claiming negligence.  The trial court granted Park Plaza’s motion for summary judgment, but denied Starbucks’ motion.  Starbucks appealed.

Held: Starbucks won and the suit was thrown out.  While the lease between Park Plaza and Starbucks required Park Place to maintain the sidewalk and landscaping. Assuming that the tree well into which Taubenfeld tripped and fell is part of the sidewalk or landscape, the lease could not create a duty to the public that did not otherwise exist.  The Court held that neither Park Plaza nor Starbucks owed a duty to the public to repair the protruding root since neither created the root or causehbnbd it to exist by reason of some special use of the sidewalk or tree well, or were obligated to maintain the sidewalk or tree well under some statute or ordinance.


A book on Mrs. Taubenfeld's reading list.

A book on Mrs. Taubenfeld’s reading list.

In this case, the lease imposed on Starbucks only a duty to maintain those portions of the sidewalk that the coffee shop made special use of, for the purpose of providing outdoor seating for its customers. As to the remainder of the sidewalk beyond Starbucks’ outdoor seating, Park Plaza’s duty was limited by a Larchmont village ordinance that directed property owners to keep the sidewalk in front of their premises in good repair and safe condition for public use. That ordinance, however, did not specifically create tort liability.

While Starbucks made special use of a portion of the sidewalk by putting out two tables with two chairs each, the special use did not extend beyond the tables and chairs to the tree well where Taubenfeld fell, or to the people on the crowded sidewalk. Some of those people were walking and others were standing around Starbucks’ tables chatting. Taubenfeld complained that she had had to walk around them, diverting her path into the tree well. Even if this were true, that fact made neither Starbucks nor Park Plaza liable to her.

Case of the Day – Friday, April 11, 2014


Horrific crashes.  They happen everywhere.  Someone blasts through a stop sign late at night and slams into another car.  One driver dies.  A lawsuit ensues.

Stopsignobsc140411It’s an all-too-frequent tragedy.  In today’s case, however, the inevitable lawsuit by the next-of-kin has an unusual twist.  Named as a defendant is the property owner at the corner, who is accused of contributing to the accident by having overgrown trees and shrubs that obscured the stop sign.

There was testimony by the investigating highway patrol officer that the sight lines were not so obscured that the offending driver couldn’t have seen the traffic sign.  But the Court of Appeals decided that it wasn’t necessary to sort that out, because Georgia law resolved the issue.

A Georgia statute made it unlawful for a property owner to place any unauthorized device or structure in such a location as to obscure traffic signs.  Over the years, the courts had defined the statute to include trees and shrubs planted by the owner as among the prohibited devices.  But the catch is that the owner must have planted the trees and shrubs himself or herself: it the overgrowth was natural, it could be a rainforest for all Georgia law cared.

The sign's obscured by a rainforest?  That's fine with Georgia, as long as you didn't plant it ...

The sign’s obscured by a rainforest? That’s fine with Georgia, as long as you didn’t plant it …

The Court held that because there was no evidence the landowner had planted the overgrown vegetation, it didn’t matter how bushy it was.  The landowner couldn’t be liable.  The lesson seemed to be that the less you do to take care of your place, the better off you are.  So it really did depend on what kind of tree it was …

Rachels v. Thompson, 658 S.E.2d 890, 290 Ga.App. 115 (Ga.App. 2008).  Around midnight on July 4, 2003, Rachels was driving his truck northbound on Kent Rock Road, approaching Emmitt Steel Road. There is a stop sign on Kent Rock Road at its intersection with Emmitt Steel Road, but no stop sign on Emmitt Steel Road. Around this same time, Ashley Grant was traveling westbound on Emmitt Steel Road in a Jeep. Grant did not see Rachels’s truck until immediately prior to the accident. The truck and Jeep collided. 

The sign, it turned out, was covered with kudzu ...

The sign, it turned out, was covered with kudzu …

Rachels’ estate sued Thompson, the property owner adjacent to the road, on the grounds that the property was overgrown, thus hindering visibility.  Rachels’s negligence claim was premised upon Thompson’s having violated OGCA §32-6-51(b), which provides that “[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which: … (3) Obstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads[.]”  The lower court dismissed the case, and Rachels appealed.

Held:  The case was dismissed. 

The Court noted that OGCA §32-6-51(b) has been interpreted to include purposely planted trees and other vegetation, including an allegedly vision-obstructing row of trees planted by the defendant.  But here, there was no evidence that the foliage at issue was purposefully planted by Thompson. The photos placed into the record by Rachels in opposition to the motion show a lot overgrown with kudzu.

Further, in his response to interrogatories, Thompson stated that “[t]here are no improvements on the property[,]” and [s]ince there were no improvements on the property, no maintenance was required.” 

The Court held that Rachels has failed to show a breach of duty by Thompson, and summary judgment was correctly granted to the defendant.  Therefore, the case was dismissed.

Case of the Day – Monday, April 14, 2014


Crunch.  And after the tree falls, the insurance company adds insult to injury.

Crunch. And after the tree falls, the insurance company adds insult to injury.

An unhappy homeowner from urban Cincinnati, Ohio – we’ll call her Sylvia Glade – asks about her neighbor’s mighty oak tree. It seems the tree had a branch overhanging Sylvia’s home. The branch constantly dropped sticks, and the tree itself has been shedding branches regularly. As far back as the late 1990s, Sylvia thought the tree was dangerous and began asking her neighbor, whom we’ll call Elouise, to do something about it. A tree expert Sylvia hired to look at her trees about five years ago agreed, saying the big oak should go.

The elderly Elouise was unmoved. She gave Sylvia permission to cut down the tree (as long as Sylvia paid to do so), but then denied her the right to enter the property to do so. With the property line hard up against Sylvia’s house, without Elouise’s cooperation Sylvia couldn’t even get a ladder under the branch to cut it away.

But there’s good news: Sylvia doesn’t have to worry about that branch any more. Sadly, there’s bad news, too: the branch is no longer a hazard because it fell on a windy day, crushing two floors of Sylvia’s house. Her neighbor’s insurance carrier said, “Oops, looks like an act of God! Not our responsibility.” Sylvia thinks God should be left out of things, because the branch — which broke right at the trunk — looked very decayed.

Elouise’s insurance company says Elouise had no idea the tree wasn’t healthy. “She didn’t know, so we don’t owe,” the company’s mantra seems to be. Sylvia complains she told the neighbor on many occasions, and even the neighbor admits she saw decayed branches that had fallen from the tree. Once, Elouise even hired Sylvia’s son to haul away some large branches that the old oak shed in a windstorm. But Sylvia asked us what duty of care Elouise owed her under Ohio law.

We start with the evolution of the Massachusetts Rule. Originally, the Rule held that a homeowner usually had no remedy against overhanging branches, other than his or her right to trim the branch back to the boundary line. That Rule has been limited recently, notably in the Virginia Supreme Court case of Fancher v. Faglia (2007) and the North Dakota Supreme Court holding in Herring v. Lisbon Partners Credit Fund, Ltd. (2012). Both of those courts said that while a property owner might be limited to self-help where an encroaching tree was only doing what trees do, that is, dropping leaves, nuts, berries, seedpods and twigs, where a tree becomes a nuisance, the owner of the tree is liable for removing it.

The relevant Ohio case is Nationwide Insurance Co. v. Jordan. Mrs. Jordan’s big maple tree fell, damaging the neighbors’ place. They sued Mrs. Jordan, claiming the tree trespassed.

No dice, the Court said. The trespass would only work if the tree were an absolute nuisance, and that isn’t the case. Mrs. Jordan would be liable, the Court held, if she actually knew the tree were dangerous, or if she have either. The neighbor, although vociferous in her condemnation of the tree, admitted that she never complained to Mrs. Jordan about it.

In Sylvia’s case, the insurance company is wrong. It’s not enough that the neighbor says she didn’t know the branch was dangerous. The other half of the question is whether she was on constructive notice that the tree was dangerous, that is, whether she reasonably should have known the decay was making the tree unsafe. If Sylvia is right, the evidence will show the neighbor was told many times the tree was dangerous. She witnessed the tree drop a number of large branches of the previous years. She had to hire Sylvia’s strong son to clean up the mess. And Sylvia told her about the danger, even agreeing to pay for the removal the tree herself.

Several Ohio cases (such as Wertz v. Cooper) suggest that neighbor Elouise – being an urban dweller – has a greater duty to inspect her trees than would a country squire. The evidence suggests Elouise had every reason to be concerned about the tree, and thus had a duty to inspect it to be sure it wasn’t about to collapse Sylvia’s house.

claim140414Elouise’s insurance company may want to rethink its position and start looking for its checkbook.

Nationwide Insurance Company, et al. v. Jordan, 639 N.E.2d 536 (1994).This action arose between adjoining landowners as a result of the falling of a mammoth maple tree.   The insurance company, which had paid the damages to its insured’s place, sued for trespass and negligence. The defendant tree owner testified that she had no notice the tree was susceptible to falling.   Her tenant likewise testified that she had no notice of the tree’s danger.   The defendant’s tree service manager testified that he worked on the property’s trees every two years, and that the tree in question was not unsafe less than two years before it fell. The only person to testify to notice that the tree was rotten and likely to fall was the plaintiff’s insured.

The trespass claim arose because the plaintiff maintained that the falling tree trespassed on the insured’s property. The trial court made short work of this, holding that the only way liability could be imposed on Mrs. Jordan without proof of fault would be if the tree were an absolute nuisance. Healthy trees growing on property, even urban property, are not absolute nuisances, the trial judge said. Thus, the insurance company had to prove that Mrs. Jordan either knew or had constructive knowledge that the tree was likely to fall. The insurance company couldn’t prove that, so the trial court found for Mrs. Jordan. The insurance company appealed.

A diagram of one modern method of measuring a tree's decay.  Elouise had any number of options - some cheap, some costly, some old school, some high-tech - for verifying the health of her big old oak.

A diagram of one modern method of measuring a tree’s decay. Elouise had any number of options – some cheap, some costly, some old school, some high-tech – for verifying the health of her big old oak.

Held: Mrs. Jordan was not liable. The Court said that there was no evidence that Mrs. Jordan actually knew or had a reason to know that the maple tree was in danger of falling. The neighbor complained that the tree’s propensity to fall was obvious to her, but she admitted he never told Mrs. Jordan. The Court observed that “[h]ad the plaintiff conveyed this knowledge to her neighboring landowner, the danger might well have been obviated, or, alternatively, the plaintiff’s hands would be clean and the defendant would have been on notice and resultantly liable for the fall.”

The Court further held that maintenance of a tree on an owner’s property was not an “absolute nuisance,” and thus the adjoining landowner could not proceed merely upon strict liability against owner, but, instead, was required to prove negligence. To recover on a theory of negligence arising out of falling tree, a plaintiff’s evidence must establish that defendant had actual or constructive notice of patent danger that tree would fall. Here, Mrs. Jordan had neither actual notice nor constructive notice of tree’s dangerous condition. Both Mrs. Jordan and her tenant testified that they had no notice of tree’s danger, Mrs. Jordan’s regular tree trimming contractor worked on property’s trees every two years and found that tree in question was not unsafe not more than 24 months before it fell.

The Court ruled in favor of Mrs. Jordan.

Case of the Day – Tuesday, April 15, 2014


When the Upper Oconee Water Authority started building a new reservoir, its consulting engineer needed to use the Walls’ property to let its subcontractor have access to a drainage pipe.  “Just a little easement, ma’am,” the engineering firm told Mrs. Walls.  “And we promise not to cut down any trees.”

You can see where this is going.  What’s the first thing the contractor did?  You guess it — started cutting down the Walls’ trees.  Plus, after the contractor was done with the drainage pipe, the Walls complained, their property flooded.  After repeated complaints to the engineer got no satisfaction, the Walls sued.

The trial court threw the case out.  But on appeal, the Walls won back their trees.  The appellate court ruled that the Walls didn’t prove that the engineer and its contractors caused the pooling water. Instead, the Walls only proved the water appeared after the contractors’ work, not that the contractors’ work caused the standing water.  The Walls had engaged in the classic logic fallacy of post hoc, ergo propter hoc. Just because the water followed the contractors doesn’t mean the water was caused by the contractors.

Classic "post hoc ergo propter hoc" reasoning ... but then, he's a dog.  What can you expect?

Classic “post hoc ergo propter hoc” reasoning … but then, he’s a dog. What can you expect?

But as for the trees, the Court said, the Walls had a right under Georgia law to be secure in their property.  The engineers were responsible for supervising their contractors, given the engineering firm’s representative telling Mrs. Walls that he would stop the tree cutting.  A jury could have found that the engineering firm was liable for the damages arising from the trespass. Therefore, the Court sent the case back for trial.

Walls v. Moreland Altobelli Associates, Inc., 290 Ga.App. 199 (Ga.App. 2008)  The Walls live on a large piece of land along Highway 330 in Jackson County. In 1999, the Upper Oconee Basin Water Authority bought the land across the highway from the Walls’ residence to build a water reservoir. The Water Authority hired Moreland, a civil engineering firm, to manage the reservoir construction.

Hank Collins, a construction manager with Moreland, began overseeing several construction projects to be completed by Maxey Brothers Construction. One of those involved replacing a drainage pipe under Highway 330 and re-grading the area to allow proper drainage from the Walls’ property to the reservoir side of the road.  Before the project began, a Moreland representative asked the Walls to grant the Water Authority a temporary easement along the front of their property to permit workers to complete the drainage work. The representative assured Mrs. Walls that the construction would not disturb any trees on the property and would only minimally affect the land. Based on these assurances, Mrs. Walls signed the easement.

Imagine the Walls' surprise ...

Imagine the Walls’ surprise … could it be that the contractor was somehow a little less than candid?

But when Maxey Brothers began work on the Walls’ property, the contractor promptly started cutting down trees.  Mrs. Walls immediately called Collins, who apologized, stating that the trees should not have been cut and that “he would stop it immediately.” Collins also promised that Moreland would replace or pay for the cut trees.  Although Mrs. Walls discussed the trees with Collins several times over the next year, Moreland did not pay for the tree loss. In the meantime, the Walls noticed that during heavy rains, standing water would accumulate on their property near the opening to the new drainpipe.  The Walls had never experienced standing water before the construction.  Mrs. Walls wrote to Moreland about both the water and tree removal, but Moreland did not remedy her concerns. Instead, it referred her complaints to the Water Authority, which investigated the situation. The Water Authority offered to repair the drainage area along the Walls’ property and pay $100 to settle the tree claim.

The Walls sued Moreland for trespass and nuisance, alleging that a work crew supervised by Moreland cut trees on their property without permission, improperly installed the drainpipe, and created a standing water nuisance. The Walls sought compensatory and punitive damages and attorney fees.  The trial court tossed the case out.  The Walls appealed.

Held:  The Court of Appeals split the case, upholding the trial court on dismissing the nuisance claim but reversing on the damage to trees claim.  As for the standing water claim, the Walls offered no evidence that the work overseen by Moreland caused the water problem.  To be sure, the Walls said they hadn’t had the problem before the construction, but the mere fact that one event chronologically follows another is alone insufficient to establish a causal relation between them.

Moreland also produced evidence that following the project’s completion, a utility company laid underground cable in the area and Jackson County installed a water line along the road, both of which altered the grade. And Collins testified that Mrs. Walls first complained about the water problem after the utility company worked in the area.  Because the Walls failed to link the work performed by Maxey Brothers and Moreland to the drainage problem, they did not establish causation.

AidAbet140415However, the trial court shouldn’t have booted the Walls’ claim for trespass based on the tree cutting.  Georgia statutes provides that the right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.   Cutting trees on property owned by another, the Court say, may result in a trespass under OGCA §51-9-1.  The evidence showed that the Walls objected to any tree cutting, and a Moreland representative assured Mrs. Walls that the work would not affect any trees. Mrs. Walls also testified that when she confronted Collins about the tree cutting, he stated that trees should not have been cut. Under these circumstances, a jury could find that the tree cutting exceeded the permitted entry onto the Walls’ property.

While Maxey Brothers actually felled the trees committed the trespass, Moreland was responsible for overseeing Maxey Brothers’ work and ensuring that it complied with the project plans, which, according to at least some evidence, did not involve tree cutting. Moreover, Collins knew that Maxey Brothers planned to cut trees on the Walls’ property, but did nothing to stop the work.

Based on this evidence, the Court said, a jury could find Moreland liable for trespass. One who aids, abets, or incites, or encourages or directs, by conduct or words, in the perpetration of a trespass is liable equally with actual trespassers.  This is an important expansion of liability for trespass.  Often the trespasser is a mere functionary.  The party who put the wheels in motion to cause the trespass – and, incidentally, who has the deep pockets – is the aider or abettor.  Being able to reach such a defendant is crucial.

Case of the Day – Wednesday, April 16, 2014



The Tree and Neighbor Law crew, ready to get the timber to market.

The Tree and Neighbor Law crew is ready to get our timber to market.  But what if a flood commandeers our logs?

As the spring rains approach us, can the spring floods be far behind?  Many of us have our timber all harvested, awaiting the spring log drive downriver, just like our forefathers and foremothers did.

But what happens if the floods carry our logs away and deposit them on someone else’s property? It’s a concern that must keep countless Americans awake at night.   Fortunately, the question has come up before, and the answer’s not “finders, keepers.”

Back in postwar New York State – post-Civil War, that is – Sherman was just such a logger.   Log driving, now extinct, was the accepted means of delivering cut timber to market.  Back then, New York State a lot of cut timber. But before Sherman could drive his logs downriver, an act of God did it for him, and deposited them on Sheldon’s land.

‘Act of God?’ you say.  What did the Almighty have to do with some misplaced logs?  Well, theologically speaking, probably nothing … but this is the law we’re talking about. And the law had to find some way to define those events that were fortuitous and beyond anyone’s control. So the law did.

The New York Court of Appeals (the state’s highest court) explained acts of God as comprising “a large class of cases, in which injury is suffered by a party, where the law gives no redress … In these cases the injury arises from a fortuitous occurrence beyond the control of man. It is termed ‘the act of God’. The party through whom it occurs is not responsible for it. The party suffering must submit to it, as a providential dispensation.”

Of equal interest is the Court’s explanation of the rights of the owner of the logs (and face it, that’s why you’re reading this, with your pile of timber laying along the riverbank awaiting a race down the flue to a mill).   The Court held that Sherman’s logs were deposited on Sheldon’s land through no fault of the owner.   Because of this, not only was Sherman not liable when the logs ruined Sheldon’s prize vegetable garden, but Sherman had the right to go onto Sheldon’s land to get his logs, if he wanted to do so.

Not always the case, we come to find out ...

Not always the case, we come to find out …

Remember a few months ago, when we pondered whether you could cross the fence to collect the apples that had fallen from your tree onto your neighbor’s land? This decision seems to suggest that, if gravity is an act of God, you may do so.

Sheldon v. Sherman, 42 N.Y. 484 (1870). Sherman’s logs were carried down the river by a flood and deposited upon Sheldon’s land, without fault on Sherman’s part or of those building or having charge of the boom. Sheldon sued for damages due to the trespass of the logs. Sherman wanted his logs back. The trial court held that Sherman could recover his logs if he wanted to, but if he did, he would have to pay for whatever damage they had caused.

Sheldon thought he should be allowed to keep the logs regardless of Sherman’s desires. The case made its way to New York’s highest court, the New York Court of Appeals.

Held:  Sherman was not responsible for any injury arising from the logs being deposited on Sheldon’s land. Furthermore, if Sherman decided to abandon the logs where they lay, Sheldon could not force him to remove them. And if Sherman wanted the logs back, he may lawfully enter upon the premises to recapture his property.

logflow140416If Sherman does recover the logs, he then would be responsible for damages caused by the trespass. The Court said “[b]efore he can reclaim or recapture the property thus astray, justice and equity demand that he should make good the injury caused by its deposit and its continuance.”

The Court cited a prior holding that “[h]e who has found a thing that is lost is bound to preserve it, and to take care of it in order to restore it to its owner … And when he does restore it, he cannot detain any part of it nor demand anything for having found it. But he will recover only what expense he has been at … The proprietor of a ground on which is thrown the rubbish of a building that has fallen down, or that which a flood has carried away from another’s ground, is obliged to suffer him who has had the loss to take away what remains, and to allow him such free access to his grounds as is necessary for that end …”

Citing another earlier case with similar facts, the Court observed that no one there had questioned the authority to remove his logs. When he did so, he “became at once responsible for the payment of the damages. If [the owner] made no express promise to pay them, the law raises the promise and will sustain an action based upon it.”

Case of the Day – Thursday, April 17, 2014



Snoopy made the opening line of Paul Clifford one of the most famous in the history of pedestrian writing.

Snoopy made the opening line of Paul Clifford one of the most famous in the history of pedestrian writing.

         Or so begins Edward George Bulwer-Lytton’s 1830 novel, Paul Clifford, the opening line now famous thanks to Snoopy in the comic strip Peanuts and the fiction contest that bears the author’s name.  In today’s case, it really was a dark and stormy night when farmer Hays drove his truck through the Ohio countryside, past the golf course owned by the local lodge of the Benevolent and Protective Order of Elks.

         On this particular dark and stormy summer night, an oak tree by the side of the road, weakened and decayed after a lightning strike several years before, fell on Farmer Hays, bringing to a sudden end his time on this mortal coil. Subsequently, his estate sued the Elks, claiming the Lodge had been negligent in failing to do anything about the hazardous tree, despite the fact that its decrepit state was well known to the duffers.

         Relying on rather thin precedent, the trial court threw out the Hays descendents’ claim, holding that a rural landowner had no duty to protect travelers on the highway from the natural condition of trees on his or her property. The matter reached the Ohio Supreme Court in 1951.

         The Supreme Court started with the observation that the law permitted every landowner to make such use as the person’s property as he or she wishes, provided it is used in such a manner as not to invade the rights of others.  It then added flesh to that general rule, holding that while a rural landowner has no duty to inspect trees adjacent to a highway, when he or she has knowledge – actual or constructive – of a patently defective condition of a tree which may injure a traveler, the landowner must exercise reasonable care to prevent harm to people lawfully using the highway.

While there was little precedent in other states for the duty to act defined by the Hay court, the decision hardly came as a surprise.  The American Law Institute’s Restatement of the Law of Torts had previously held that while “[n]either a possessor of land, nor a lessor, vendor or other transferor thereof, is subject to liability for bodily harm caused to others outside the land by a natural condition of the land other than trees growing near a highway.” But it contained an important caveat. The Restatement – which tried to identify trends in the law – noted that its drafters expressed “no opinion as to whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

The ALI presciently foresaw evolution of the duty defined in Hay and cases in other jurisdictions that followed it. The Hay rule has since become a standard of care imposed by virtually all states.

These things happen ... but the landowner may be liable, depending on what he or she knew and when he or she knew it.

These things happen … but the landowner may be liable, depending on what he  knew and when he  knew it.

Hay v. Norwalk Lodge No. 730, B.P.O.E, 92 Ohio App. 14, 109 N.E.2d 481 (Ohio App. 6 Dist. 1951). Farmer Hay was driving his truck on New State Road when a large limb or limbs fell from a tree located on land owned by the local chapter of the Benevolent and Protective Order of Elks. The limb struck the top of the cab, injuring Mr. Hay so that he lost control of the truck, crashed into a tree, and died as a result of his injuries.

Mr. Hay’s Estate sued, alleging that the tree had been struck by lightning several years before, and was extensively damaged and weakened as a result. The complaint said the damage to the tree was visible and apparent for several years, and that after the tree was struck by lightning, apparent natural processes of decay set in and further weakened the tree and its branches, which extended over and above the traveled portion of the road. Finally, the complaint averred that the Elks knew that portions of the said tree extended over the road, that it had been struck by lightning, and the tree was thus weakened. The complaint concluded that the Elks had neglected to remove or to brace the damaged portions or to do anything to make the tree secure, and failed and neglected to give notice to motorists of the danger.

The trial court held that the Elks had no duty to Mr. Hay to alert him as to the danger tree, or to remove or trim it. It threw out the complaint. The matter ended up before the Ohio Supreme Court:

Held:  The Supreme Court reversed, and sent the case back for trial. It held that every person may make such use as he or she will of real property, provided he or she uses it in such manner as not to invade the rights of others. But in the case of rural landowners, this means that although there is no duty imposed upon the owner of property abutting a rural highway to inspect trees or to ascertain defects which may result in injury to motorists, an owner having actual or constructive knowledge of a patently defective condition of a tree which may result in injury to motorists must exercise reasonable care to prevent harm to people lawfully using the highway.

The Court noted that the only Ohio holding even close to its conclusion in this case was one in which the owner of property upon which a tree was situated was held to have the duty to exercise ordinary care for the safety of pedestrians using the sidewalk. However, the American Law Institute in Restatement of the Law had noted that its members were split, and thus had no opinion on “whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees ... but if the landowner knows there's a problem, he or she should attend to it.

Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees … but if the landowner knows there’s a problem, she should attend to it.

The Ohio Supreme Court observed that the law imposes upon every member of society the duty to refrain from conduct of a character likely to injure a person with whom he comes in contact and to use his own property in such a manner as not to injure that of another.  The justices reviewed cases from other states, which led the Court to the “conclusion that in the absence of knowledge of a defective condition of a branch of a tree which in the course of natural events is likely to fall and injure a person in the highway, no liability attaches to the owner of the tree. On the other hand, where the owner has knowledge of the dangerous condition of the tree or its branches, it is his duty to exercise reasonable care to prevent the fall of the tree or its branches into the highway.” The Court agreed with a Minnesota case that held that it was unreasonable to require the owner of rural land to inspect his property with regard to naturally arising defects, because of the burden thereby imposed upon the owner of large and unsettled tracts of land. But the Court rejected the Minnesota case’s conclusion that the owner was not liable even if he had actual knowledge.

The Ohio Supreme Court instead followed dictum from a Federal court decision that “an owner of property abutting a highway has the obligation to use reasonable care to keep his premises in such condition as not to endanger travelers in their lawful use of the highway. If he fails to do so and thereby renders the way unsafe for travel, he should be liable therefor. It is, therefore, concluded that, although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto to ascertain defects which may result in injury to a traveler on the highway, an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway. If the danger is apparent, which a person can see with his own eyes, and he fails to do so with the result that injury results to a traveler on the way, the owner is responsible because in the management of his property he has not acted as a reasonably prudent landowner would act.”

Because the complaint filed by the Hay Estate alleged that the Elks had actual knowledge of the decayed tree, the complaint made out a claim that, if true, would entitle the Estate to recover. The case was reinstated and sent back to the trial court.

Case of the Day – Friday, April 18, 2014


bikefall140418We have two dumb adult stunts to consider today.  The first was Tom Alexson’s ill-advised decision, when he saw a tree branch laying on his bike path, to ride by and smoothly push it out of the way with his hand as he passed.  Kids, don’t attempt this at home!  Of course, it didn’t work, and he crashed into and over the limb, hurting himself badly.

The second dumb adult trick was Alexson’s unwillingness to accept the blame for his own stupidity.  He didn’t, of course – who does, these days? Instead, he sued the White Memorial Foundation, which owned the land and museum that stood on it.

The Foundation defended under the Connecticut Recreational Use Act, asking that the case be dismissed because no fee for use of the Foundation property, and Alexson was on the land for a recreational purpose.  Alexson’s crafty mouthpiece argued that the Foundation didn’t qualify, because it charged a fee to enter the museum.  But the Court ruled that it didn’t charge Alexson to ride his bike around the grounds, and that was good enough.  After all, he didn’t fall in the museum attic.

Aha140418A-ha, the lawyer cried, riding a bike isn’t listed as a specific recreational activity in the statute.  Horse hockey, the Court said.  The statute clearly doesn’t limit recreational activities to the one listed.  Lance Armstrong, after all, thinks bike riding is very recreational (and for years thought that taking banned drugs was not doping).

Yeah, argued Alexson, but the Foundation’s failure to warn me of the danger was willful or malicious.  Maybe so, the Court said, but Alexson needs to do more than just give the Court his rather slanted opinion that it’s so.

The case was tossed, as it should have been.  Dumb adult stunts, indeed.

Alexson v. White Memorial Foundation, Inc., Not Reported in A.2d, 2008 WL 803423 (Conn.Super., Mar. 5, 2008).  Workmen for the White Memorial Foundation were notified that a tree had fallen across a roadway on Foundation property. The workmen began to cut up fallen tree, but failed to complete the task before Alexson – who was riding his bicycle on the White property – saw some of the tree still blocking the roadway and decided that he could push the obstruction aside as he passed.  Instead, he collided and badly hurt himself.   

Alexson sued, alleging that the Foundation was careless and negligent in only partially removing the branch from a portion of roadway and that the Foundation’s failure to warn or guard against the obstruction was willful and intentional. The Foundation moved for summary judgment on the ground that General Statutes §52-557g, known as the recreational land use statute, made the Foundation immune. 

Held: The Foundation was protected by the Connecticut Recreational Use Act.  The Act provides that a landowner is immune from liability for simple negligence where: (1) the defendant is the owner of the land in question; (2) the defendant has made all or part of the land where the plaintiff was injured available for use to the public free of charge; and (3) the plaintiff, at the time that he was injured, was using the land for a recreational purpose.

Alexson argued that there was a genuine issue of material fact as to whether the Foundation made the land available to the public free of charge.  In addition, Alexson alleged that there was a genuine issue of material fact as to whether the exception to the recreational land use immunity statute, codified in §52-557h, applied to the defendant because, as alleged by the plaintiff, the defendant willfully and maliciously failed to warn against a dangerous and defective condition.

The Foundation said the land on which Alexson was injured was always available for recreational use to the public without charge.  Alexson admitted that on the day he was injured, he was not charged by the Foundation, and conceded that the only time he has been charged a fee was when he went inside the museum. The Court found that there was thus no genuine issue of material fact that the defendant Foundation made the part of the property on which Alexson was injured available, free of charge, to the public.

biketree140418The final prong of the statute required that the land be available for recreational purposes. Section 52-557f(4)(a) provides a list of activities that constitute a “recreational purpose,” and the list doesn’t include bicycle riding.  The Court observed, however, that, the statute clearly stated that “[r]ecreational purpose includes, but is not limited to, any of the following …”  It was evident, the Court held, that the enumerated activities set forth in the statute were not exclusive. 

Riding a bicycle, the Court said, fell within the penumbra of activities considered “recreational” for the purpose of the statute.  Therefore the Foundation satisfied the third prong of the statute. Thus, the defendant is entitled to statutory immunity, unless Alexson could show the Foundation had engaged in a willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.  The Court said the phrase “willful or malicious” meant conduct which must encompass both the physical act proscribed by the statute and its injurious consequences.

Willful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. Its characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Alexson’s conclusory statements in his complaint, coupled with the conclusory statements in his affidavit (the admissibility of which the Court found to be dubious at best) did not raise a genuine issue of material fact. The Court said the complaint was “bereft of the factual predicate necessary to lead a reasonable person to infer that the workmen intended to injure passers by, and this plaintiff in particular, by their actions.”

The dismissal of this ridiculous suit was upheld.

Case of the Day – Monday, April 21, 2014


newspaper140421The year 1929 ended badly for a lot of people, with the stock market crash wiping out millions. It started just as badly for one Lou Cotillo, when a chestnut tree on suburban land being developed by a real estate firm crashed onto the road. Under the spreading chestnut tree was Mr. Costillo’s car, which, unfortunately enough, contained him and a passenger.

It turned out the chestnut in question, a rather big specimen, had been dead for a few years. However, the Court noted, “beyond its deadness, [it] bore no exterior evidence of decay.” Deadness? Is that even a word?

Maybe not, but the jury had little trouble determining that the tree’s obvious “deadness” made the real estate developer liable for the accident. Brandywine appealed, arguing that the trial court should have taken the case away from the jury and thrown it out. It argued that, as a matter of law, it wasn’t liable for the results of a tree’s natural condition (that is, it’s “deadness”).

Applying what little Delaware law the United States Court of Appeals for the Third Circuit could find, the appellate panel upheld the jury verdict. The Court held that responsibility for an owner’s property is one of the burdens of ownership, and, as a landowner has the right to enjoy his property unhampered by the actions of his neighbor, his neighbor – ­whether a landowner or a highway traveler ­– is similarly entitled. The trial court told the jury that Brandywine had a duty to keep its property from being a source of danger to the travelers on the highway “to the extent that reasonable care can guard against” the danger. The jury decided that Brandywine had breached its duty. Game, set and match.

This case was an early decision in the general trend of imposing a duty of reasonable care on non-rural landowners. The issue in negligence cases such as this one is always the nature of the duty owed by the defendant. Defendants – such as Brandywine Hundred Realty in this case – want the duty to be as minimal as possible – where plaintiffs want the jury charge to describe a duty of the first water. From the “trees will be trees” laissez faire approach of the 19th century, where owners generally had no duty whatsoever to protect passers-by from hazardous trees, to a modern view that while not guarantors of their trees, property owners had a duty to correct problems of which they had actual or constructive knowledge.

chestnutdown140421Brandywine Hundred Realty v. Cotillo, 55 F.2d 231 (3rd Cir. 1931). On a dark winter night in January 1929, Mr. Cotillo and a passenger were driving forested suburban land owned by Brandywine Hundred Realty, Inc. A chestnut tree, standing about 10 feet from the road, fell suddenly, crushing Mr. Cotillo’s car and killing his passenger. The tree had been dead for four years, but, “beyond its deadness, bore no exterior evidence of decay.”

Cotillo sued, and the case went to trial. The real estate company asked the judge to take the case from the jury and find in its favor as a matter of law, because the natural condition of the tree caused the accident, and it had no duty to Mr. Cotillo. The judge disagreed, and instead told the jury that Brandywine had a duty to exercise reasonable care in the use of its property, so as not to harm neighboring landowners or motorists. The jury found for Mr. Cotillo.

Brandywine appealed, arguing that the trial court had misdefined its duty.

Held:   The trial court was correct in its definition of Brandywine’s duty. The appellate court said that “[a]fter all is said and done, this case turns on the application of the time honored principle of law, ‘sic utere tuo ut alienum non laedas’–so use your own as not to injure another.” It held that Mr. Cotillo had a right to use the highway, and that Brandywine had the duty “to so use his property on his own land that it shall not cumber the highway and endanger the safety of those using it …” It agreed with the trial court’s charge to the jury that “ the owner of property abutting on a public highway is under a duty to keep it from being a source of danger to the public or to the travelers on such highway, to the extent that reasonable care on his part can guard against.”

Negligencedef140421The Court of Appeals also concurred that the fact the tree had died of natural causes, rather than because of Brandywine’s conduct, had no effect on the realty company’s duty. Regardless of how the tree ended up in a condition of “deadness,” if its deadness was known by Brandywine or could have been known “by the exercise of ordinary case … then it became the duty of the defendant to exercise reasonable care and diligence to prevent the tree from falling and injuring those who might have occasion to use the public highway.”

Thus, the question of Brandywine’s alleged negligence was for the jury to pass upon. It did so, and found negligence. The Court found no basis for disturbing that finding.

As for “deadness” as a word – the dictionaries give the Court a pass on it, but as far as we’re concerned, the jury’s still out on that one …

Case of the Day – Tuesday, April 22, 2014



Lesprit140422Ah, l’esprit d’escalier!  Those biting, snappy comebacks we wish we had said at the time.  Today’s case is about something akin to that, not rapier ripostes, but rather one of those rather important contract terms — how long the multi-year agreement would last — that both parties kind of wished they had discussed at the time they first made their deal.

And maybe one of them did. To be sure, each probably had what is today called an “exit strategy” in mind.  But neither brought it up.  And what’s worse, nothing was in writing on the parties’ joint venture to raise and harvest peaches.  Samuel Goldwyn was right when he observed that “a verbal contract isn’t worth the paper it’s printed on.”  What’s surprising is that their verbal deal lasted as long as it did.  Invariably, however, problems ensued.  When Miami Valley Fruit Farm wanted to terminate the deal after about 20 years, Southern Orchards protested that the length of the venture was for the useful life of the trees, meaning that the deal would go on until the trees were worn out. It sort of turns the old Stripes line on its head: you can’t go … until all the plants die.

The Court agreed, because that was the only interpretation that made sense to it.  You see, without a contract in black and white, everything was pretty gray.  Think of how much they saved on lawyers by not writing up a detailed contract.  Probably less than 5% what they spent litigating the issue 20 years later …

verbalk140422Miami Valley Fruit Farm, Inc. v. Southern Orchard Supply Co., 214 Ga.App. 624, 448 S.E.2d 482 (Ga.App., 1994).  Southern Orchard Supply Co. and Miami Valley Fruit Farm entered into an oral agreement whereby Miami Valley, which owned the 295 acres of land, purchased peach trees, and Southern Orchard planted, cultivated and harvested the trees.   Under the agreement, which has been in effect about 20 years, the parties equally divided the net profits from the sale of each year’s peach crop.

After the 1993 peach crop was harvested and sold, Miami Valley told Southern Orchard that it was terminating the oral agreement and that Southern Orchard would not be allowed to cultivate and harvest the 1994 peach crop.   Southern Orchard sued for an injunction, arguing that it had made substantial investments in the planting and cultivation of the peach trees and in equipment and packing facilities based on the mutual understanding of the parties that the agreement would continue for the “economic life” of the peach trees.  

The evidence showed that after a peach tree orchard is planted, the trees have to be cultivated for years before they mature enough to bear fruit and begin to produce profitable, full crops.   Once mature, the trees have an “economic life” for an indefinite period of years, during which they produce profitable crops each year until their fruit production declines to the point where they are no longer profitable and new trees must be planted.   The “economic life” of the trees varies based on factors such as the variety of the peach and cultivation techniques.  The trees at issue still had years of “economic life” remaining. 

Southern Orchard argued the agreement had to last for the “economic life” of the trees in order to provide for recoupment of its expenses.   Miami Valley argued there was no agreement between the parties for any specific duration of the contract, that the parties considered the agreement to run from year-to-year, and that in any event the “economic life” of a peach tree could not provide the agreement with a definite term since the duration of the life cannot be determined with any degree of certainty.   Accordingly, Miami Valley argued it had the right to terminate the agreement. 

The trial court held that there was an enforceable oral contract for Southern Orchard to cultivate and harvest the peach trees on the land at issue for the “economic life” of the trees, and because Southern Orchard had no adequate remedy at law for the breach of the agreement, the trial court could grant injunctive relief, ordering Miami Valley not to interfere with Southern Orchard’s performance of the agreement for the 1994 peach crop.  Miami Valley appealed.

stitch140422Held: The injunction against Miami Valley is upheld.  The Court of Appeals held that the question as to the length of time the contract remains in force is governed by the circumstances of each particular case.  Here, the Court said, evidence showed that the parties intended the employment contract to continue for more than a single crop season.   Considering the particular circumstances and expenses incurred to plant, cultivate and harvest the peach trees, the Court found, the parties agreed that the employment contract would continue for as long as the trees produced reasonably profitable crops, the “economic life” of the peach trees. 

The old aphorism that a “stitch in time saves nine” is worth recalling here. A little consideration to all of the material terms of the agreement at the outset – maybe a few bucks spent on a lawyer whose forte is thinking about all the “what ifs” that the parties aren’t considering ­– would have saved a lot of time and expense two decades down the road.

Case of the Day – Wednesday, April 23, 2014



literally140423One of the many badges that marks us as curmudgeons, according to a recent book, is our preoccupation with proper language. It irritates us no end when people say “irregardless” when they mean “regardless,” say “affect” when they mean “effect,” or use “like” every third word or so.

But what metaphorically drives us batty is the casual and improper use of the word “literally.” The word means “actually” or “without exaggeration.” Believing as we do that the widespread devaluation of like every corner of the English language is like literally send us to hell in a handcart, we were surprised to see that today’s case ­– well over 50 years old – featured a witness describing “literally thousands of bees inside the trunk” of the decayed tree.

We were fascinating that, with such a swarm pursuing him, the witness took the time to count the bees, at least until he passed 2,000.   That took nerves of steel. Literally.

Beyond our disquiet over the witness’s imprecise and flawed language, we were interested in the application of both Hay v. Norwalk Lodge No. 730, B. P. O. E., 92 Ohio App. 14, 109 N.E.2d 481 (Sup.Ct.Ohio 1951) and Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231 (3rd Cir. 1951). While those decisions, which we’ve discussed in recent posts, related to injury to passing motorists, the court here couldn’t see any practical difference between the landowner’s duty to a motorist and to a parked car.   Furthermore, it found that the tree was so obviously dead and dangerous that the landowner was chargeable with knowing about its condition, although he’d only owned the property for a few weeks.

How many bees?  Literally thousands ...

How many bees? Literally thousands …

The court said that a few weeks was not so legally insufficient a period time for him to have gotten over and inspected the place that the factfinder was wrong for finding him liable.

The trend here is clear: the law was moving toward holding that a property owner had an affirmative duty to inspect the land. Actual or constructive knowledge wasn’t enough. The absentee owner should have done a drive-by, the court decided by implication. And thus, the evolution of a requirement that an owner affirmatively care for his or her property continued.

Turner v. Ridley, 144 A.2d 269 (Ct.App.D.C. 1958). Turner owned a house facing a street on which automobiles were regularly parked. The small front yard featured a single large tree. On a fall evening, Ridley’s friend parked Ridley’s car at the curb in from of Turner’s house. Early the next morning, with no inclement weather to blame for the event, the tree toppled and fell across the sidewalk, striking Ridley’s car.

At the time the tree fell, according to the man who had parked Ridley’s car – a man named Reid ­–the tree ‘was rotten and looked like it was dead and had very few leaves on it.’ and on the night before it fell he had remarked to a friend ‘that tree looks like it is going to fall some day.’ The tree in falling broke off even with the ground, and then it was observed that the tree was hollow and badly decayed with ‘literally thousands of bees inside the trunk.’

Turner testified he had purchased the property through an agent at a foreclosure sale a month before the mishap, that the property had been vacant since he purchased it, that he had never seen the property or the tree, and that he had no notice or knowledge that the tree was in a dangerous or rotten condition. The trial court awarded judgment to Ridley for the damages he sustained.

Turner appealed.

Held:   Turner was liable for the damage to Ridley’s car. While prior cases diverge somewhat, the Court found the Ohio decision in Hay v. Norwalk Lodge No. 730, B. P. O. E., instructive, holding that “an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway.”

Knowledge could either be actual or, as held in Brandywine Hundred Realty Co. v. Cotillo, constructive, “if such condition was known or by the exercise of ordinary care could have been known by the defendant.”

The car was the first casualty ... but not the only one.

The car was the first casualty … but not the only one.

The Court admitted that Hay and Brandywine dealt with personal injuries to travelers on the highway, but it observed that there is “no distinction in principle between the case of personal injury to one lawfully traveling on a highway and the case of property damage to a vehicle lawfully parked on the highway.” The issue was whether the owner – who had only owned the property for a few weeks and who had never seen it before – could be charged with constructive knowledge of the tree’s condition. There was no question that the tree was obviously dangerous and quite dead. The Court acknowledged that “[a] three-week period is no great length of time, but we cannot rule that such period was legally insufficient time for appellant to look over his property and observe the condition of the tree and take steps to prevent its fall. We think the evidence presented a factual question as to notice and lack of care.”

“Hard cases are the quicksands of the law,” as an old maxim put it. Here, the intersection of an absentee owner, an obviously defective tree, a fairly minor damage bill, a colorful witness and lack of any defense by Turner, combined to bring about a holding that imposed additional duties on a landowner.

Case of the Day – Thursday, April 24, 2014


             Yesterday, we noted the incremental creep of the law toward imposing an affirmative duty to inspect trees. The Turner v. Ridley court suggested that it was no longer enough that an owner lacked actual or constructive knowledge of a defective tree. In some cases, he had a duty to inspect, and in the absence of having done so, he was charged with knowing that his trees were dangerous.

Which one is Tilford E. Dudley?

Which one is Tilford E. Dudley?

            Were we wrong in predicting that Turner portended the judicial application of a duty to inspect? Today’s case was decided only a few years after Turner by the same court, the District of Columbia Court of Appeals.   In this case, a tree standing next to an apartment house fell across an alley onto Tilford E. Dudley’s place. The name itself is classic – evocative of a titled cousin come to visit the Granthams at Downton Abbey.

            Tilford sued the apartment owner, Meadowbrook, Inc. At trial, the Lord Dudley showed that the tree, although quite alive at the time it fell, had a five-foot long concrete patch in one side and was decayed from the inside out. It hadn’t been shedding branches, but due to the proximity of the apartments, soil had been banked several feet high around the tree and a “well” had been dug at its base for the trunk.

            The trial court threw out the case after Tilford Dudley finished his direct case, holding that the defendants won as a matter of law, because there was no evidence they were on notice that the tree was defective.

A concrete patch in a tree.

A concrete patch in a tree.

            The Court of Appeals was apparently rather impressed that the tree had been patched with enough concrete to build rebuild the 14th Street Bridge. Concrete plugs in trees was a common enough treatment to fend off decay years ago, but – like physicians’ blood-letting as a cure for illness – it has fallen into disfavor recently. But in this case, the Court said, such a big concrete patch – as well as, possibly, the banked soil and apartment building only four feet from the truck ­– ought to have caused the owner’s manager to do something to inspect the tree or, importantly, hire an arborist to inspect the tree. There may have been evidence she did so, but the Court of Appeals said that Meadowbrook couldn’t hide behind a general lack of obligation to inspect.

            The Court thus nudged the standard a bit further along. If something in the tree’s history – and the concrete patch apparently was over 10 years old – might suggest that it was diseased or injured at one time, the Court seemed to say, an owner might have an affirmative duty to inspect, or even to hire an expert to inspect, her trees.

            Of course, there’s no telling what condition might trigger such an affirmative obligation. Decayed trunk? Dead limbs? Bracing or cabling installed by a tree service? A surfeit of twigs shed by the tree? Insects clinging to the bark? There’s no telling, but you can be sure that a court will be more willing to Monday morning quarterback a defect that results in collapse, holding that the property owner should have been inspecting for that.

            Dudley v. Meadowbrook, Inc., 166 A.2d 743 (C.A.D.C. 1961). A large tree on Meadowbrook’s property fell across an alley and onto Dudley’s premises, damaging his garage and other property. Dudley sued for his damages. At the end of his case the trial court found for Meadowbrook, ruling that it was unnecessary for the defense to put on any answering evidence.

            Dudley appealed.

            Held:   The holding was vacated, and the vase returned to the trial court.

            The tree, which had been growing since before 1942, fell at a time when no strong wind was blowing. When an apartment house was built there, the soil had been banked 2 or 3 feet deep on two sides of the tree and a concrete well was built around the tree trunk. The apartment building was about 4 feet from the tree well and a paved parking area was about a foot away. Dudley testified that the tree was about 75 feet tall and 2 .5 feet wide at the base. Where it broke off at ground level there were indentations extending about 6 inches below the ground and into the base of the tree trunk, and an area of about 2 feet inside the trunk appeared to be “spongy, decayed and soft,” although no decay showed on the outside of the trunk. Dudley said the tree was in full foliage with no dead branches but that on one side of the trunk there was a strip of cement extending from near the base to a height of about 5 feet . The cement had been there for at least 12 years before the tree fell.

No longer part of an arborist's bag of remedies ...

No longer part of an arborist’s bag of remedies …

            The Court admitted that the law was muddled, but held that “the sound and practical rule is that liability in such cases is to be determined by the test of negligence and that a landowner should be held to the duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor’s property.” It then opined that “[a] healthy tree does not ordinarily fall of its own weight without some exterior force being directed against it. Though some evidence indicated that the tree looked sound, it was in fact full of decay. At least 13 years earlier it had been subjected to surgery and a large area filled with concrete. We think it cannot be said as a matter of law that during all the intervening years the owners were under no duty to inspect it or have it examined by an expert to see whether it required further attention and whether it was safe to let it remain standing.”

            Without any evidence other than its own sense that something didn’t seem right that the tree had fallen without any apparent external factor and that it had once had surgery, the court substituted its judgment for the evidence in the record. Some of its holding can be ascribed to as courts’ natural bias in favor of letting a jury decide rather than having the case taken from the factfinder by a trial judge. But if evidence of surgery more than 13 years prior is sufficient to “require … [the owners] to produce evidence as to what they knew about it or what examinations they made during the many years since the tree was last treated,” then a generalized rule that requires urban owners to inspect their trees cannot be far behind.

            Here, the case was sent back for a new trial.

Case of the Day – Friday, April 25, 2014



The archetype of a safe man ... he wears both a belt and suspenders.

The archetype of a safe man … he wears both a belt and suspenders.

No matter how safe you try to be, there is always something else you could have done to be safer.  We all make compromises when the utility of what we are doing to be safer becomes more burdensome than the incremental increase in safety our act attains.  On one hand, it’s safer to wear seat belts than not to wear them, and the cost of wearing them is exceedingly slight compared to the benefit derived.  On the other hand, while it would be much safer for all traffic not to exceed 15 mph, the cost of such an act far outweighs the benefits derived from enforcing such a rule. 

A similar situation applied in this landmark municipal liability case from Omaha.  During a windstorm, a motorist pulled over because he couldn’t see to drive.  A tree belonging to the City fell, hitting his car and paralyzing him.  The tree, a silver maple, was badly decayed.   The motorist sued the City, arguing that for a tree owner to permit a danger tree to stand violated the City’s own ordinances.   At trial, the disabled plaintiff was awarded $5 million. 

On appeal, however, the Supreme Court of Nebraska was more persuaded by the City’s argument that if every person in its arborist crew spent an entire work year inspecting silver maple trees, each tree would only receive a 12-minute inspection.  The City had a tree inspection program in place, and the Court found it reasonably conceived and discharged.  Could the City have done more?  Certainly.  Had it done so, would the damaged tree have been found?  No one could say. 

The City’s tree inspection program was reasonable, and that was all that was required.  The verdict was reversed.

treecar140425McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545 (S.Ct. Neb., 1984). Mr. McGinn was driving in the City of Omaha on a rainy, blustery afternoon, when the inclement weather made him pull over to park.   As he was doing so, a silver maple tree fell in front of him, and a branch struck his car, rendering him a quadriplegic.

Photographs taken after the accident revealed that the trunk of the tree was extensively decayed.  McGinn sued the City, arguing it was negligent in failing to inspect the tree for disease, decay, and structural defects, and in violating a city ordinance making it unlawful for a landowner to permit a dangerous tree to stand.   The City countered that McGinn was contributorily negligent and that the storm, which could not have been reasonably anticipated, caused the tree to fall.   The trial court rendered judgment in favor of McGinn and awarded $5 million in damages. 

The City appealed.

Held:  The judgment was reversed. The Nebraska Supreme Court held that city was not negligent for having failed to remove the tree where there was no evidence that inspection program conducted by city was negligently designed or carried out, or that the tree had been found to be hazardous as a result of any inspection made by the city.

Normally, governmental units are liable under ordinary negligence principles for injuries or damages which result from a tree falling onto a public road from land in possession of a governmental unit.  In this case, while McGinn was correct that the City had violated an ordinance rendering it unlawful for any property owner to permit diseased or structurally weak tree from standing upon his property, the violation was at most evidence of negligence, and did not impose strict liability upon the City.  Rather, negligence must be measured against particular set of facts and circumstances present in each case, and the utility of the City’s conduct has to be measured against the magnitude of the risk.   

silvermaple140425Here, the City had established an annual inspection program to check for hazardous trees.  The program was neither negligently designed nor negligently carried out.  Alternatives might have reduced the risk, such as cutting down any silver maple older than a certain age or conducting lengthy, individual tree inspections, but these remedies were expensive and unreasonable.  There was no indication that the tree which fell on McGinn’s car during the severe storm had been found to be hazardous during any inspection made by the city. 

Thus, the Court said, the city was not negligent in not having had the tree removed, and thus was not liable for personal injuries sustained by McGinn.

The takeaway here is that in a proper weighing of the reasonableness of a defendant’s actions, courts traditionally weigh the magnitude of the task. A homeowner with ten trees cannot reasonably fail to ascertain the condition of his or her trees. A municipality with 10,000 trees, can fail to ascertain the condition of those trees if it has an inspection program that is reasonable in terms of cost and efficacy.

Case of the Day – Monday, April 28, 2014


Cicero rails against Cataline in the Senate.

Cicero rails against Cataline in the Senate.

That great Roman senator and statesman, Marcus Tullius Cicero, was raging against Cataline when he uttered the now-famous phrase “O tempora, o mores!”

“Oh, what times, oh, what customs!”

We took Latin in high school, and – thanks in no small part to the late Emily Bernges of Sturgis, Michigan – we developed great respect for Cicero. Senator Marcus T. had plenty of his own problems to deal with when he gave his first oration against Cataline, but we threw up our hands like he did and asked the same question about today’s case. Over the past week, we have been charting how, during the 20th Century, the law governing landowner liability had crept inexorably toward mandating that property owners inspect their trees.   In today’s case, a New Jersey court likens trees to product liability, in that a property owner who sells his or her land may remain liable for what happens to the trees well after the new owner takes possession.

“Bull-pucky!” you say. “I sold the place, I’m done with it!” To that we respond first that you need a better class of epithet, and second that you are sadly mistaken.

NBS140428Mr. Narsh had the misfortune to be driving by a wooded lot belonging to a local church, when a tree fell on his car. After the funeral, his estate sued the church, as well as the previous owner, the owner before that owner, and the owner before that owner. It’s surprising that the Lenape Indians – who had owned the area back when Giovanni da Verrazzano arrived in 1524 – weren’t co-defendants, too.

It turned out that Zirbser Brothers, Inc., had bought the land three years before the accident. That corporation sold it 18 months later to Zirbser-Greenbriar, Inc. (“ZGI”), which – as its name suggests – was another company owned by the same people who owned Zirbser Brothers, Inc. ZGI built a nursing home on some of the land, and conveyed the rest, including the part with the dead tree, to St. Stephen’s Lutheran Church just a few weeks before the accident.

A jury decided that the Estate that had sold the property to Zirbser Brothers, Inc., and the Church were not liable. However, the Zirbser brothers’ two companies were found liable, despite the fact that neither owned the property when the tree fell.

The court first observed that in New Jersey, one who places or maintains in or near a highway anything which, if neglected, will render the way unsafe for travel, is bound to exercise due care to prevent it from becoming dangerous. This rule places an affirmative duty on the landowner to prevent trees from becoming dangerous.

We could see that coming from the decisions we reviewed last week. It seems, however, that there was more. The Court said it saw “no reason why an owner who would be liable to a member of the public under the rule … should be absolved from liability by the simple act of the sale of his property.” Calling the rule that a landowner was no longer liable once the property was sold an “[a]ncient distinction,” the appellate court compared the matter to product liability – where manufacturers and everyone else in the supply chain remain on the hook for defects for what seems forever (just ask the general aviation industry) – holding that the landowner could remain responsible for defects even after the land was sold and he could no longer remedy any problems.

 The Court found “no support in reason and logic for any distinction between the liability of a vendor of land in an urban area who erects a tower on his land, and one who maintains a rotten tree on his land.” The Court concluded that “[t]he obligation of reasonable inspection which may be involved if a vendor is to be held liable for dangerous conditions existing on his property at the time of its conveyance, is small when compared with the danger posed by a rotten tree poised over a busy highway. The fact that the vendor may have lost the right to go on the property and make repairs is beside the point–the rule is aimed at inducing him to make inspections and guard against dangers before conveyance. The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times.”

Yeah, right. What this means to the prudent homeowner is that any conveyance of real estate should be accompanied by a tree inspection by a certified arborist, insurance against the outside chance that someone gets hurt or property gets damaged by a falling tree in the future.

How long in the future? This liability for property that has been sold can’t go on forever, right? After all, the Lenapes didn’t get sued. The Court said that “where an owner of land adjacent to a highway in an urban area, conveys his land, on which is located a tree which he knows, or should know, presents an unreasonable risk of injury to the public, he remains subject to liability for physical harm caused by such condition after his vendee has taken possession … until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

What’s reasonable? That’s probably for the jury to decide. The problem is, if you’re in front of a civil jury, that means you’re in trial, and you’ve already lost even if you win. Better to spend the extra money early for an arborist’s inspection at closing.

More cost. More uncertainty. More precautions. Oh, what times! Oh, what customs!

Narsh v. Zirbser Brothers, Inc., 111 N.J.Super. 203, 268 A.2d 46(N.J.Super.A.D. 1970). On April 28, 1967, James H. Narsh met his death when a large tree fell upon him as he was driving his car on North Evergreen Avenue in Woodbury. The plot on which the tree had been standing was heavily wooded with old trees, a number of them being close to the sidewalk. A witness who resided in an apartment across the street heard a cracking noise and saw the tree fall onto decedent’s car. He had previously noticed that the tree, which was very close to the road, was dead, shedding branches, and appeared quite rotten.

The plot on which the tree had been located had been sold three years before by the estate of Alfred Green to Zirbser Brothers, Inc. Zirbser Brothers, Inc. retained title until for two years, then conveyed it to ZGI, a corporation formed by the Zirbser brothers and having the same stockholders, directors and officers as Zirbser Brothers, Inc. ZGI retained a portion of the tract for a nursing home, but on April 20, 1967, sold the remainder – including the portion on which the offending tree was located – to a church. The accident occurred eight days later. All four parties were sued.

The jury was exonerated the Green estate and the church, but found both Zirbser Brothers, Inc. and ZGI “guilty of negligence which was a proximate cause of the accident.” The jury awarded $85,000 in damages.

Zirbser Brothers appealed.

Held:   Zirbser Brothers, Inc., remained liable for the tree for a reasonable period of time after transfer to the church.

There was ample evidence that the fallen tree, like many others on the property, was rotten, and that any owner should have known it.   But Zirbser Brothers, Inc., neither owned nor possessed the lot in question at the time of the accident. Its conveyance to ZGI had taken place almost a year before, although Zirbser was on the property building the nursing home. Some of its construction materials, and its construction trailer, was still on the land when the accident occurred. Nevertheless, from the time of the sale to the church, Zirbser was without right to cut down trees or otherwise police the part of the property where the subject tree was located.

The Court held that as of the time of the accident, Zirbser’s presence on the property purchased by the church, standing alone, did not afford an adequate basis for a present duty on its part to guard against the falling of the tree.

Pay the inspector, Shirley ... it's a lot easier and cheaper to do it now.

Pay the inspector, Shirley … it’s a lot easier to do it now … and as a group, they’re cheaper than lawyers.

If one negligently creates a condition on land which is unreasonably dangerous to outsiders, the Court said, there is no  good reason why his potential liability should stop either when he transfers possession of that land or when his successor in occupancy becomes liable either because of his possession or because of his fault in negligently omitting to repair the danger. The Court observed that the boundaries of tort liability for dangerous conditions on the land have gradually been extended by our courts in recent years.  It held that “[t]he rationale which underlies [a landowner’s] continued liability for a structure on his land would apply equally to a tree which is so close to a highway as to endanger traffic thereon should it fall. In this day and age, with its attendant increase in population, greater use of automobiles and more intense use of land, the presence of a rotten tree along a busy highway poses dangers greatly in excess of those with which the courts were confronted in the cases in which appellant relies. The obligation of reasonable inspection which may be involved if a vendor is to be held liable for dangerous conditions existing on his property at the time of its conveyance, is small when compared with the danger posed by a rotten tree poised over a busy highway. The fact that the vendor may have lost the right to go on the property and make repairs is beside the point – the rule is aimed at inducing him to make inspections and guard against dangers before conveyance.”

The Court thus held that where an owner of land adjacent to a highway in an urban area conveys his land – on which is located a tree which he knows, or should know, presents an unreasonable risk of injury to the public – “he remains subject to liability for physical harm caused by such condition after his vendee has taken possession. If he has actively concealed the condition from the vendee his liability continues until the vendee discovers it and has reasonable opportunity to take effective measures against it, otherwise it continues until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

The takeway here: the prudent landowner will have regular inspections of trees done, with written reports, and will follow the reasonable advice of the arborists. When the property is sold, a home inspection may be requested by the buyer, but a grounds inspection should be ordered by the seller.

Case of the Day – Tuesday, April 29, 2014



camelhorse140429Not the football kind, the tree kind. Encroachment governs the rights of adjoining property owners when the trees on one of the properties encroaches on the property of the other. Overhanging branches, invasive root systems, falling debris … those kinds of problems.

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

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

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

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

This decision fits neatly into what we have been considering for the past week on negligence and nuisance.  Here, the tree had become a nuisance, possibly because Fagella had not cared for the tree before it began damaging the neighbor’s property.  The tree did nothing more than what trees do – it grew.  And grew and grew.  It was healthy, perhaps amazingly so, but Fagella was ordered to shoulder the cost of damages caused not because it was dangerous, or dead, or anything other than an inconvenience.

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

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

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

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

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

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

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

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

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

Case of the Day – Wednesday, April 30, 2014



AdvPossSignIn an Ohio case we were working on the other day, we had occasion to be considering a “wrongful cutting” statute. Many states have them, statutes that require people who trespass on land and remove trees to pay multiple damages – most commonly three times the value of the timber but in some states double damages. Usually, the statute requires that the person trespassing and removing trees have some culpability more than mere negligence. The notion is that people who recklessly or intentionally cut down someone else’s trees need a strong disincentive to their conduct, and awarding a multiple of damages is intended to discourage them from their nefarious deeds.

But like any good statute (look at the federal RICO statute in the event you need some proof of this) the opportunity for misuse of the wrongful cutting law is rife.  In today’s case, we start with your garden-variety adverse possession case. The plaintiff really had encroached on his neighbor’s property over a period of close to 50 years, although he had not gone to court to get record title. When the record owner of the land cut down some of the trees on land his title said still was his, the adverse possessor not only sued to quiet title – that is, get a judicial acknowledgement that he now owned the disputed strip of real estate – but even wanted treble damages for the timber his neighbor had cut.

The Massachusetts Land Court wisely declined the plaintiff’s invitation. It ruled that if your title says the land is yours, even if someone might be able to take it away from if the case goes to court, you hardly can be blamed for cutting timber on it.  The Massachusetts statute required that you have “good reason to believe that the land on which the trespass was committed” wasn’t yours, in order to be on the hook for treble damages.

The adverse possessor already was getting title to land he had never bought, a judicial act some would call unjust enrichment. Giving him treble damages because the guy who owned the property according to the title cut down some of what the records said were his trees trees would really be piling on.

Mendes v. Bachant, Not Reported in N.E.2d, 2007 WL 1874768 (Mass. Land Ct., June 29, 2007). George Mendes bought land in 1969. At that time, a shed stood at the rear of the parcel, and in fact intruded on land owned by a man named Gleason. Neither Mendes nor the prior owner had permission to locate a shed on Gleason’s land, and apparently no one was aware that the shed was in the wrong place.

Mendes installed a barbeque pit on the disputed land ... do you think the Bachants were ever invited to a pig roast?

Mendes installed a barbeque pit on the disputed land … do you think the Bachants were ever invited to a pig roast?

Gleason sold the land in 1969 to the Bachants. In the 1970s, Mendes installed a garden and trellis on the disputed land. Ten years later, Mendes replaced the shed with a larger shed which further encroached, and built a stockade fence behind the shed which enclosed the area in dispute. He also added a barbeque pit. Again, he did this without permission and apparently even without knowledge that he was intruding.

Some 46 years or more after the first intrusion, the Bachants figured out that they held title to the disputed land, and in 2005, they tore down the fence, tore up the garden, and cut down and removed trees in the disputed area. Mendes sued, claiming the land by adverse possession and asking damages for trespass to trees. He demanded treble damages under Massachusetts G.L. c. 242, §7 for the destroyed timber.

The Bachants said that Mendes had failed to establish what portion of their property he adversely possessed, and had not proven the elements of dominion and control or open and notorious possession sufficient to establish his claim of adverse possession. The trial issued a temporary restraining order enjoining the Bachants from undertaking any construction or related activities on the disputed land. After trial, the court made findings.

Held:   The land belonged to Mendes by adverse possession, but the Bachants were’t liable for cutting down the trees.

The Court ruled that Mendes’ possession had been actual, exclusive, and non-permissive, exercising dominion and control for a continuous period of at least 20 years.  The Bachants argued that because the land was undeveloped woods, a stricter rule applied, and Mendes was required to have enclosed the area he possessed. The Court agreed that where a party claims adverse possession of woodlands, it must also demonstrate that the land at issue was either enclosed or reduced to cultivation and, in contrast, title by adverse possession cannot be shown to wild or woodland that has always been, and remains, open and unenclosed. But, the Court said, Mendes met the stricter standard imposed upon woodland parcels by enclosing substantial portion of the disputed area with a stockade fence and the cultivation of a vegetable garden within the same enclosure, coupled with the aforementioned additional activities.

beware140430 As for the trespass to trees, the Court observed that under G.L. c. 242, §7, a person who without right to do so cuts down and removes another’s trees and timber is liable for treble damages. Mendes contended the Bachants unlawfully entered his land, and removed all of the trees and brush up to his shed. The Bachants argued that they were entitled to enter upon the land pursuant to their record title. The Court didn’t buy either argument, but it observed that the statute permitted treble damages only where the trespasser did not have “good reason to believe that the land on which the trespass was committed was his own.”

Here, the Court said, the Bachants’ record title indicated they owned the disputed area. Thus, even if damages were appropriate, treble damages wouldn’t apply. All they had done was to cut trees from land that remained theirs as a matter of law until the courts said otherwise.


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