Cases from December 2014

Case of the Day, Monday, December 1, 2014

I WOULD WALK 500 MILES …

The Kentucky Department of Highways has a lot to do. Besides keeping up the state’s highways, the DOH has the duty to inspect roadside trees. And there are a lot of trees in Kentucky.

So many, in fact, that – like its habit with parking spaces (see yesterday’s decision) – the DOH favored drive-by inspections. You can see a lot of trees from the passenger seat of a Silverado. There are Proclaimers who would say it was better than walking 500 miles, and then walking 500 more, just to see the back side of some right-of-way trees.

Ioseb Besarionis Dze Jugashvili – you might have known him as “Papa Joe” Stalin – is reputed to have had a favorite saying, “Quantity has a quality all its own.” All right, he probably didn’t say it … after all, he spoke Russian with a strong Georgian accent, and “quality” and “quantity” probably are especially alliterative in that tongue. But when it came to the Kentucky DOH, the fact that its inspectors could inspect miles of trees every hour didn’t necessarily mean that they were getting it right.

When old Cecil Callebs came up on the bottom side of a sycamore tree that fell on his car during a windstorm, his widow sued the Department of Highways, arguing that if its inspectors had only gotten out of the car and walked a little, they would have known that the tree was rotten and a threat to passing motorists.

The case went to a state Board of Claims first. No one suggested that the DOH knew that the tree was decayed, but the widow Callebs argued that its employees would have known if they had only gotten out of the truck to inspect the tree. The Board disagreed, but when she appealed to a trial court, it sided with her. The DOH, it held, should have done a “walkaround.”

Whenever the analysis is focused on whether someone should have known something, rather than whether he or she actually knew it, the courts employ a balancing test (whether they call it that or not). The test considers how critical to its duty discovering the particular information was, and weighs that against how difficult discovering the fact would have been.

Here, the omission was a slight one, although the late Mr. Callebs might have disagreed. The tree had plenty of green leaves, and no defect was obvious from the highway. The DOH had a generalized duty to inspect and maintain trees along the highway. It missed one of the millions in its charge, but the error wasn’t an obvious one.

The Court of Appeals agreed that a “walk-around” would probably have discovered the defect. But such a “walk-around” would have been infeasible. Even if the DOH had the personnel to conduct such inspections, it probably would have had to get permission from private landowners to enter onto their property to see the back side of the tree. Multiply the permission process by thousands of trees, and the unreasonableness of expecting walking inspections is obvious.

Commonwealth v. Callebs, 381 S.W.2d 623 (Ky. 1964). Cecil Callebs was killed when a large sycamore tree, standing on the edge of the right of way some 12 feet from the edge of the pavement, fell across the highway and hit is car. Callebs’ estate filed a claim against the Kentucky Department of Highways for wrongful death with the Commonwealth’s Board of Claims. The board, after hearing evidence, found no negligence on the part of the DOH. The circuit court reversed, holding the DOH negligent. The DOH appealed.

Held: The Department of Highways was not negligent.

The Court of Appeals agreed that DOH lacked actual notice of the defective condition of the tree. The issue in the case, rather, was whether the department had constructive notice of the defective condition, or, stated another way, whether a reasonable inspection would have disclosed the condition. This involved, the Court said, “the question of how close an inspection was reasonably required.”

The leaves on the sycamore tree were green, and the defective condition of the trunk was on the side away from the highway. The defect could have “been discovered only by walking around behind the tree, which perhaps would have involved an entry upon private land abutting the highway.” The Court of Appeals observed that “[i]n order to affirm the circuit court judgment … we would be required to hold that as a matter of law the Department of Highways had a duty to make a ‘walk-around’ inspection of the tree, involving perhaps an entry on private lands. We do not believe that such is the law.”

The Court considered it important that the area around the tree was rural, and that the burden “of a walk-around inspection of each tree near the highway (perhaps requiring the obtaining of entry permission from the abutting landowners)” would be unreasonable in comparison with the risk. Note again in this case the distinction drawn by the Court between in-town and countryside. The Court concluded that highway authorities “under conditions such as existed in the instant case” do not have a duty as a matter of law to make the kind of inspection that would have been required here in order to keep the tree away from Mr. Callebs.

The Court reversed the trial court’s judgment, and let DOH off the hook.

Case of the Day, Tuesday, December 2, 2014

SOMEONE’S GOTTA DO SOMETHING

Not surprisingly, everywhere we go, friends, family, roadies, hangers-on and supplicants bring us their most burning tree law issues.  It must be what Johnny Manziel experiences … fans asking for football tips, wanting to buy autographs, asking how he could run one flawless series against Buffalo before falling on his keister …  that sort of thing.

A loyal reader complained last week that he has a large dead tree in his tree lawn — the strip of grass between the sidewalk and street — and, despite repeated complaints to local government, the city had yet to send anyone to cut the tree down. He wondered whether the tree had to fall on a passing motorist before the city — we’ll call it Deadfall, Ohio — did something.

He raised an interesting question, one we’ll consider for the next two days. Actually, there are two questions at minimum. One came as a surprise to our reader, whom we’ll call Michael Anthony Pettine, Jr. (not his real name). Could it be that Coach might be liable if the tree falls on a motorist, and should he have the tree taken down himself? And if the tree falls, might the City of Deadfall also be liable if the tree falls?

So someone’s gotta do something about the tree.  It’;s like having to choose between two quarterbacks.  But is the someone Coach Pettine or the City?

Today, we’ll consider Coach Pettine’s liability. There’s no doubt that the tree lawn is Coach Pettine’s property, despite the fact it is subject to the City’s highway dedication. There’s a lot an owner can’t do with a tree lawn because of the City’s highway rights, but it’s still his or her property. Generally, the owner can plant and take down trees. And the fact that an owner has the right to add or remove trees suggests that he or she has a duty to as well.

Consider the duty. In Wertz v. Cooper, one of Cooper’s trees fell onto Wertz’s fence during a storm. When Wertz sued her, she countered that she had no idea the tree was diseased, and that the tree’s falling over was an act of God. The Court agreed. It held that in order for a landowner to have a duty, the evidence must establish that he or she had actual or constructive notice of a patent danger that the tree would fall.

There is an exception. Where the tree overhangs the street in an urban area, an owner may be held liable on negligence principles under certain circumstances for injuries or damages resulting from the tree or a limb falling onto the highway. Generally, an urban owner has a duty of reasonable care relative to his or her trees, including inspection to make sure that they are safe.

So Coach Pettine may have a problem (besides the obvious one that he’s the 8th head coach of the Browns since 1999, a history that suggests he should rent, not buy). The duty to inspect isn’t an issue here. Coach already has actual notice the tree’s dead, and his complaints to the City of Deadfall stand as evidence of his state of mind. Whether the City does something or not, Coach Pettine would do well to hire a starting quarterback … and an arborist to inspect the tree. If the tree should go for safety’s sake, Coach Pettine shouldn’t wait for the City to do it.

Tomorrow: Is the City liable to remove the tree, independent of Coach Pettine’s obligation as a landowner?

Wertz v. Cooper, Case No. 06CA3077 (Ct.App. Scioto Co., Dec. 13, 2006), ___ Ohio App.3d ____, 2006 WL 3759831. Following heavy rains, a tree that sat on Cooper’s property tore loose from its roots, and leaned into Wertz’s fence and into a Shriner Colorado Blue Spruce tree that sat upon Wertz’s property. Wertz sued Cooper, complaining that Cooper failed to timely remove her tree. Wertz sought damages, including the cost of removing the fallen tree, the expenses to replace the damaged Blue Spruce, and other incidental damages.

Cooper argued that she had no knowledge of a defective condition of the tree, that she could not have been negligent in failing to maintain the tree, and that she could not be liable for the damage when an “act of God” caused the tree to uproot. The trial court agreed that there was no evidence that the tree was deteriorating, and that Cooper was not liable for an Act of God.

Wertz appealed.

Held: Judgment for Cooper was upheld. A negligence action in Ohio requires a plaintiff to establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered injury. In order for a plaintiff to establish the duty element in a negligence action arising from a fallen tree, the evidence must establish that the landowner had actual or constructive notice of a patent danger that the tree would fall.

There is an exception to the general rule, however, concerning the duty of a property owner relating to growing trees with limbs overhanging a public street or highway. An owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property. In addition, there appears to have developed a distinction throughout the United States that there is a lesser standard of care with reference to rural, farm, timber, or little used land as opposed to strictly urban property. Generally, an urban owner has a duty of reasonable care relative to the tree, including inspection to make sure that it is safe. The duty placed upon the urban landowner, who has only a few trees, is not a heavy burden. This is in contrast to the rural landowner who may have a forest full of trees, which would impose a duty of immense proportions, and constitute an onerous burden on the owner.

Despite the heightened standard to be applied to an urban tree, Wertz had no evidence in this record to establish that Cooper had either actual or constructive notice of a defective condition of the tree. While Wertz advanced her belief that the tree was dead or dying, her allegation was conclusory. She presented no evidence to support her claim. What’s more, even if Wertz were right that she believed that the tree was dead or dying hardly establishes that Cooper knew or should have known that the tree was dead or dying.

Case of the Day, Wednesday, December 3, 2014

SOMEBODY HERE OWES ME MONEY

That’s what the Huffs believed after a tree broke off in a storm and hit Lisa on the noggin. Sure she could sue the property owner.  Any regular reader of this blog knows that.  But the Huffs needed a deep pocket. After all, Lisa had been injured. Someone had to pay.

That was when some canny lawyer noticed that the tree was located near power lines. Sweet! Power lines suggested the electric company, and everyone knows that the electric company has lots of money.  Just look at how much we send them every month.

Problem: the tree wasn’t exactly inside the Ohio Edison easement. But that was a mere technicality to the Huffs, who argued that Ohio Edison hired Asplundh Tree Service to keep the trees trimmed away from the power lines, and that both the power company and the tree service must have known the tree that fell on Lisa was dangerous. This was the tort claim, and it might have merit if Lisa could prove they had actual or constructive notice of the tree.

But never stop with just alleging a tort, where you can pile on other legal theories as well. The Huffs’ attorney suggested a contract count, too. The Huffs, so the legal theory went, were the intended third-party beneficiaries of the contract between Ohio Ed and Asplundh. A third-party beneficiary can sue for a contract breach just as if she had signed the document herself. Asplundh had a contractual obligation to inspect and trim the trees to as to keep the public safe, the Huffs argued, and that included the passing public, which included the walking public, which included Lisa. Anything to get Ohio Edison and Asplundh to open their checkbooks!

It was a novel theory, but the Ohio Supreme Court shot it down. The Ohio Edison – Asplundh agreement was intended to secure services that would keep the power lines clear. While the agreement did require that Asplundh perform the trimming in a safe manner so as not to hurt anyone while it was doing it, that requirement only lasted as long as Asplundh was trimming. The Court wasn’t about to interpret the contract so broadly as to grant contract causes of action to millions of people who were never intended by the signatories to gain party status to a contract. You think the courts are busy now (and insurance premiums are high)? Just wait …

The takeaway here is a passing observation by the Court that parties to a contract can avoid the litigation spawned here by the Huffs simply by stating clearly that their contract is intended to benefit no one but each other. Including such a provision is a cheap preventative to the kind of lawsuit decided here.

Huff v. FirstEnergy Corp. (2011), 130 Ohio St.3d 196.During a heavy thunderstorm, a large sugar maple tree split about 25 feet above the ground. A large limb from the tree hit Lisa Huff, who was walking along a country road, causing serious and permanent injuries. Lisa G. Huff was injured during a walk along a country road.

Ohio Edison maintained an easement near the tree, but the tree was outside the easement. The tree did not present a hazard or threat to the power lines owned by the utility. Ohio Edison had hired Asplundh Tree Expert Company to inspect trees and vegetation along its power lines in this area and to remedy any situation in which trees or vegetation might affect the lines. Ohio Edison and its contractors carry out this work to ensure that adequate clearance is maintained around electric lines. Generally, Ohio Edison deferred to Asplundh’s decisions regarding tree and vegetation maintenance and would perform an overview inspection only to determine whether any vegetation was growing into the electrical wires or equipment. Asplundh had last been in the area where Huff’s injury occurred three years before.

Huff sued Ohio Edison and Asplundh, as well as Ohio Edison’s parent company, FirstEnergy, and the people who owned the land on which the tree was located. She alleged that Ohio Edison and Asplundh were liable for her injuries based upon their failure to inspect, maintain, and remove the tree or to warn the landowner and the public of the danger raised by the tree.

Ohio Edison and Asplundh filed motions for summary judgment. Ohio Edison argued that it didn’t know that the tree was dangerous, that it owed and assumed no duty to Huff regarding the tree, and that it was not negligent and did not proximately cause or contribute to Huff’s injuries. Asplundh argued that it owed no duty to Huff and that its activities did not proximately cause the injury to Huff.

The Huffs argued that Ohio Edison had contracted with Asplundh to inspect and maintain trees within the easement and that Asplundh failed to recognize that the tree in question was diseased and a hazard, and failed to remove the tree when it was on site in May 2001. The Huffs also argued that Ohio Edison was responsible for maintaining trees within and around its easement, that Ohio Edison was aware of the tree based upon its location within an inspection zone, and that Ohio Edison had a duty to remove the diseased tree.

The trial court found that while the tree leaned about ten degrees away from the power lines, “there is absolutely no credible evidence about when the tree began to lean or if it was leaning because of the way it grew.” It also noted that the Huffs admitted that no one knew when the tree became a hazard. With no proof that Ohio Edison or Asplundh actually inspected the tree or removed any branches, the court held that the Huffs failed to show that either company ever had actual or constructive notice of any decay of the tree. Due to the tree’s location – leaning away from the power lines with no limbs near the power lines – Ohio Edison and Asplundh owed no duty to the Huffs.

After examining the contract between Ohio Edison and Asplundh, it concluded that the Huffs were not third-party beneficiaries under the contract. It accordingly granted summary judgment to Ohio Edison and Asplundh.

The Court of Appeals cited the portion of the contract providing that “[Asplundh] shall plan and conduct the work to adequately safeguard all persons and property from injury” could be read in two ways: (1) a narrow reading that provides Asplundh must protect all persons from injury while Asplundh works on the site or (2) a broad reading that requires Asplundh to protect all persons from injury at all times, regardless of when the work is done. The court found the contract to be ambiguous, and reversed the trial grant of summary judgment to Ohio Edison and Asplundh.

The companies appealed to the Ohio Supreme Court.

Held: Summary judgment was granted.

The Court found that the contract between Ohio Edison and Asplundh did not create any duty to the Huffs as third-party beneficiaries. The Court employed an “intent to benefit” test. Under this analysis, if the promisee intends that a third party should benefit from the contract, then that third party is an “intended beneficiary” who has enforceable rights under the contract. If the promisee has no intent to benefit a third party, then any third-party beneficiary to the contract is merely an “incidental beneficiary,” who has no enforceable rights under the contract.

The law generally presumes that a contract’s intent resides in the language the parties chose to use in the agreement. Only when the language of a contract is unclear or ambiguous, or when the circumstances surrounding the agreement invest the language of the contract with a special meaning will extrinsic evidence be considered in an effort to give effect to the parties’ intentions. For a third party to be an intended beneficiary under a contract, there must be evidence that the contract was intended to directly benefit that third party. Generally, the parties’ intention to benefit a third party will be found in the language of the agreement.

In this case, the Court ruled, nothing in the agreement between Ohio Edison and Asplundh showed any intent to benefit the Huffs. The Huffs pointed to a part of the contract that they argue shows such an intent: an attachment to the agreement entitled “FirstEnergy Vegetation Management Specifications” that provided “[t]he Contractor shall plan and conduct the work to adequately safeguard all persons and property from injury.” The Huffs contended that this statement assigns to both Ohio Edison and Asplundh clearly defined duties – to safeguard the public – for the Huffs’ benefit.

The Court held however, that the contract wasn’t entered into for the general benefit of the public walking on public roads, but instead was designed to support Ohio Edison’s electrical service. The purpose of the contract is to ensure that Ohio Edison’s equipment and lines are kept free of interference from trees and vegetation. The remainder of the contract sets forth how this work is to be carried out, including the standards by which Asplundh is to perform its work, the limits on liability for the performance of the work, and the necessary qualifications for the Asplundh employees who were to perform the work. The contract contains no language establishing an ongoing duty to the general public on behalf of either Ohio Edison or Asplundh.

The vegetation management provision incorporated into the contract provides that “[t]he objective of all work covered by these documents is to maintain reliable and economical electric service, through effective line clearance and satisfactory public relations.” The Court observed that working near electrical lines has its inherent hazards, and it was thus “clear that this portion of the agreement establishes safety guidelines designed to protect persons and property from injury while the contractor performs its work. This period is finite: until the work has been completed … [T]he agreement cannot be plausibly read to require Ohio Edison or Asplundh to safeguard all persons from injury at all times, regardless of when the work is completed.”

The Supreme Court concluded that the Huffs thus failed to qualify as intended third-party beneficiaries of the Ohio Edison ­– Asplundh agreement.

Case of the Day, Thursday, December 4, 2014

PUMPED UP ON DANGER TREES

Late last week, we took up the question posed by alert reader whose identity we artfully disguised. He wondered who might be liable if a dead tree in his tree lawn fell onto a passing motorist.  The homeowner – we’ll call him “Lance Armstrong” today (although that’s not his real name) – was frustrated because his hometown, the City of Deadfall, Ohio, had resisted his petitions and remonstrances to remove the offending, ant-eaten carcass.

In our discussion of Wertz v. Cooper, we delivered the bad news that Lance, as owner of the strip of grass between the public sidewalk and street, may well be liable. As an urban property owner, he has, shall we say, a “performance-enhanced” duty to inspect and remove trees that may “test positive” as posing a danger to third parties passing on public streets. So Lance’s hanging out there a country mile (or maybe a city mile, because he is an urban landowner, and Wertz tells us they’re different).

But is he hanging out there alone? The City told Lance he must be on dope to think the municipality would pay to remove the tree. But Lance denies – vehemently denies – that he’s taken any drugs.  And call us gullible, but we believe him.  After all, although he owns the tree lawn, it lies within in the 60-foot wide right-of-way of Arbor Street.  The Ohio Supreme Court has pointedly said that the “roadway, the space immediately above the roadway, the shoulder, the berm, and the right-of-way are all under the control of the political subdivision … [which] has a duty to keep the areas within its control free from nuisance, i.e., conditions that directly jeopardize the safety of traffic on the highway. Where the [subdivision] fails in its duty, it may be liable for injuries proximately caused by the nuisance.” Manufacturer’s Nat’l Bank of Detroit v. Erie County Road Comm (1992), 63 Ohio St.3d 318, 322-23.

So the City has his back (or is on the hook, depending on your viewpoint). Of course, the City has to have actual or constructive notice of the defect, just like the landowner in yesterday’s case. However, Lance is no dope, and he’s already written to the City fathers and mothers about the danger tree, making any attempt to prove the City had actual knowledge what lawyers (or bicycle racers) call a “breakaway.”

Today’s case relates to an unfortunate man who was killed when a dead tree fell onto his car one stormy November night. The tree was on private property out in the country, but it had been dead for so long that the landowner may have had liability. We can’t tell, because this case — in the Ohio Court of Claims — was solely against the Department of Transportation. The Court held that ODOT would be liable, notwithstanding the fact that the tree was on private land, if it had breached its duty to inspect the tree.

ODOT had a “drive-by” inspection program, reminiscent of one we considered last week in Maiden v. Commonwealth of Kentucky. Blusey’s heirs argued that if ODOT had gone around behind the tree (away from the road), they would have seen the decay. Well, yes, the Court said, but that’s beside the point. ODOT has over 40,000 miles of road to inspect, and to inspect every tree in the manner suggested by the plaintiff would be economically infeasible.

Still, the principle we take away from this decision is that just because the tree is on private land, the City of Deadfall doesn’t get off the hook. That doesn’t mean that Lance’s going to feel that much better in the defendant’s dock if the mayor has to stand next to him.

Our sad conclusion: Lance may not be the only one liable here, but he does appear to be the only one who’s acting responsibly (a fact which alone is enough to move us to approbation – about time, Lance!). His most prudent course is to continue acting responsibly, and to get a consulting arborist to examine the tree. A consulting arborist’s expert report that the tree is a hazard may cause the mayor to oil her chainsaw and get to work. But if the City remains unmoved, Lance should probably have the tree taken down himself. He seems pumped up enough to do it …

Blausey v. Ohio Dept. of Transp., Not Reported in N.E.2d, 2005 WL 894878 (Ohio Ct.Cl.), 2005 -Ohio- 1807. Dale Blausey was killed during a windstorm when the car he was driving was struck by a falling Norway spruce tree on a U.S. highway in Erie County, Ohio. The tree had been growing on a roadside right-of-way obtained by defendant on land that was owned by Joe Henry but occupied by a tenant. The primary proximate cause of the fall was the severe deterioration of the roots on the east side of the tree and the high wind that blew the tree onto the highway. The tree had been struck by lightning in 1973, and the damage from that strike led to interior rotting and an infestation of carpenter ants, the combination of which destroyed much of the root system. The deterioration had existed for as long as ten years, gradually weakening the tree to the extent that it became a hazard.

Before it fell, the east side of tree that faced the highway showed little, if any, evidence of decay. Dead limbs were not clearly visible from the highway. Limbs had been removed from the lower part of the tree, which was not uncommon as landowners sought to mow, decorate, or otherwise use the land. Additionally, the lower part of the tree was obscured by bushes and vegetation. The upper growth of both the healthy and the diseased spruce trees was green and quite similar, although on close inspection, the growth on the healthy spruce appeared to be slightly more dense. Cone growth was normal on both trees. Although the 1973 lightning strike had caused the tree to lose its “Christmas tree” shape at the top, the loss was not very noticeable. However, an inspection of the west side of the tree would have revealed evidence of deterioration and of a potential hazard. The State had not inspected the tree except from the highway, and that inspection did not reveal any defect.

Blausey’s executor sued the State for negligence in not identifying and removing the danger tree prior to the accident, and accused it of maintaining a nuisance.

Held: The State was not negligent. In order to prevail upon a claims of negligence, a plaintiff must prove by a preponderance of the evidence that defendant a duty, that it breached the duty, and that the breach proximately caused the injury. The State has a duty to maintain its highways in a reasonably safe condition for the motoring public, but it doesn’t have to become an insurer of the safety of state highways.

To constitute a nuisance, the thing or act complained of must either cause injury to the property of another, obstruct the reasonable use or enjoyment of such property, or cause physical discomfort to such person. In a suit for nuisance, the action for damages is predicated upon carelessly or negligently allowing such condition to exist. But in order for liability to attach to a defendant for damages caused by hazards upon the roadway, a plaintiff must show the defendant had actual or constructive notice of the existence of such hazard. The distinction between actual and constructive notice is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever from competent evidence the trier of fact is entitled to hold as a conclusion of fact and not as a presumption of law that information was personally communicated to or received by a party, the notice is actual. Constructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. To establish that defendant had constructive notice of a nuisance or defect in the highway, the hazard “must have existed for such length of time as to impute knowledge or notice.

The court found that there was insufficient discernible evidence available to defendant’s inspectors to warrant further investigation of the damaged tree or to determine that it was hazardous prior to the accident. While a close inspection of tree would have revealed that tree was a hazard, the deteriorated condition of tree was not apparent through Department’s routine visual inspections from roadway, and with over 40,000 miles of road to inspect, the Department was not — as a matter of social and economic policy —expected to individually inspect the trees.

Case of the Day, Friday, December 5, 2014

IF A TREE FALLS …

This Louisiana case is another in our continuing series of “someone got badly hurt, so obviously someone else has gotta pay.”

Today, a couple lived in a house leased from their physician daughter (so we already know who in this saga has money). The couple wanted to have a dangerously leaning tree taken down. They hired a landscaper, who in turn hired someone who represented himself as a guy who could take down a tree.

The tree cutter had all the safety equipment, but he didn’t use it. After all, it was just a tree. Safety is for wimps! After all, do you want to live forever? The tree cutter obviously didn’t care to do so. He directed the landscaper, who was helping him, to harness the tree to his pickup truck. During their Keystone Cops antics, the landscaper’s truck pulled down part of the tree. Sadly, the tree cutter was attached to it at the time.

The tree cutter sued the landowner and the tenants. But of course! He arguing that the doctor daughter and her parents (and, of course, their insurance company) should pay because they didn’t warn him. Warn him to do what? To use his safety equipment? That the law of gravity was in force? That God may protect fools, but not for very long?

Fortunately, common sense prevailed …

Frazier v. Bryant, 954 So.2d 349 (La.App. 2 Cir. Apr. 4, 2007). The Bryants lived on a property owned by their daughter, Dr. Garrett, based on a verbal lease between them. Mr. Bryant wanted to have a large tree removed because it was leaning toward the house and several of the limbs of the tree were near the roof. He contacted Ron’s Lawn Care to take down the tree.

Mr. Hughes, the owner of Ron’s, hired Mr. Frazier, who had previously approached Mr. Hughes offering his services in tree removal. Mr. Frazier climbed up to the top of the tree and started to cut away the top limbs. He wore a climbing harness and was attached to a climbing rope that was strung over the top of the tree, but he hadn’t connected a lanyard rope that would have secured him to the tree. Mr. Hughes was using his pickup truck to direct portions of the tree away from the house. At some point, Mr. Hughes pulled with his pickup truck and the entire top of the tree came down. Mr. Frazier, still attached to the climbing rope, came down with the tree. He was badly injured.

Mr. Frazier sued Ron’s Lawn Care, the Bryants and Dr. Garrett for negligence. All three filed for summary judgment, and the trial court granted it. Plaintiff Frazier appealed.

Held: The tree cutter falls again. Under Louisiana law, most negligence cases are resolved by employing a duty/risk analysis with elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injures (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Here, the Court said, Mr. Hughes was pulling on the tree because he was told to do so by plaintiff Frazier. No other defendant exercised such control over the operation as to be liable for the accident.

Mr. Frazier argued that the Bryants were liable for failing to warn him of the defective condition of the tree. The Court said that owner or custodian of a thing is liable for damage only upon a showing that (1) he or she knew or should have known of the defect which caused the damage, (2) that he or she knew or should have known that the damage could have been prevented by the exercise of reasonable care, and (3) that he or she failed to exercise such reasonable care. Here, the Court said, no evidence showed that any defect in the tree existed. At most, the evidence suggested that the tree was leaning due to erosion at the base of the tree, the Court held, and nothing indicates that this condition caused Mr. Frazier’s fall.

Case of the Day, Monday, December 8, 2014

WHO YOU GONNA CALL?

It’s not easy to defeat a utility company holding an easement for transmission lines, especially after the great power outage of a decade ago. The great Blackout of August 2003, after all, started because power lines sagged into trees in the Cleveland, Ohio, area.

Yeah, it’s not easy to beat the power company and its chainsaw-wielding minions … but the Corrigans did it for awhile. They had granted an easement to a Cleveland electric utility for a transmission line. In the wake of the blackout, the utility told the Corrigans (and thousands of others) that it would vigorously pursue cleaning up vegetation in the easements. This mean, among other things, no trees within 25 feet of the lines.

The Corrigans had a big silver maple that was about 22.5 feet from the lines. They loved the tree, so they hired an arborist at considerable expense to trim the tree away from the lines and to inject the tree with a hormone to slow growth. Tough luck, the utility said, it’s coming down anyway.

So who do you call when the power company shows up with chainsaws and a gleam in its institutional eye? The Corrigans raced to the local common pleas court, and asked for an injunction. The trial judge agreed, and the Court of Appeals concurred. Both of those courts sided with the Corrigans that the utility could only cut trees that were “a possible threat to the transmission lines.”

It seemed important to the Court of Appeals that the community had not experienced any service interruptions since the Corrigans had pruned the tree, although that reasoning’s pretty thin. The tree has to only fall once, cascading one failed transmission lines into a continental disaster. But the Court seems to have been favorably impressed by the amount of money the Corrigans had spent getting the tree professionally trimmed.

The utility saw an issue here that was bigger than just the Corrigans and their lone silver maple tree. It framed the question as being just who was in charge here, the 88-odd common pleas courts spread throughout Ohio or the public utilities commission. The Ohio Supreme Court agreed that this was indeed the issue, and ruled that the inclusiveness of the state statute and regulations delegating power to the Public Utilities Commission of Ohio gave PUCO the sole authority to decide questions of vegetation management.

We have to admit that the Court of Appeals had left us with the uneasy feeling that the Court of Appeals’ attempt to do some rump justice here may have made it much more difficult for a utility to exercise its easement rights. To be sure, a utility being sued in a case like this would have to be prepared with an expensive and eye-popping case that graphically depicts the dangers that a tree in the transmission path — even a well cared-for tree — can pose.

The Ohio Supreme Court’s holding provides electric utilities a much friendlier forum in which they must litigate issues of vegetation management, although that may not be a bad thing. Utilities have to walk a fine line, incurring ire if property owners think trees were pruned too aggressively, and facing universal fury when service is interrupted by vegetation coming into contact with transmission and distribution lines.

Corrigan v. Illuminating Co., 122 Ohio St.3d 265 (Sup.Ct. Ohio 2009). The Corrigans granted a quitclaim deed to The Illuminating Company, the local electric utility, for a transmission line to run through their yard. The easement gave the Illuminating Company the right to “enter upon the right-of-way occupied by said transmission lines … with full authority to cut and remove any trees, shrubs, or other obstructions upon the above described property which may interfere or threaten to interfere with the construction, operation and maintenance of said transmission lines.” The Corrigans had a large silver maple tree located about 22.5 feet from the centerline of the transmission lines. At considerable expense, they had their own arborist trim the tree and inject slow-growth hormone to keep the tree from posing a risk to the transmission line. Nevertheless, the Illuminating Company decided to remove the tree, and the Corrigans sued for an injunction.

The trial granted an injunction barring the Illuminating Company from removing the tree, and the Court of Appeals agreed. The electric utility, seeing the issue as one that transcended the issue of one tree, but rather affected the company’s ability to manage vegetation in its rights-of-way throughout the state.

Held: The Corrigans argued that the issue was purely a contract matter, but the Supreme Court disagreed. Noting that “[t]here is no question that the company has a valid easement and that the tree is within the easement” and the easement’s language was unambiguous that the utility had the right to remove trees that might interfere with its transmission lines, the Court said the issue was the correctness of “the company’s decision to remove the tree instead of pruning it.” That was “really an attack on the company’s vegetation-management plan [and] that type of complaint is a service-related issue[] which is within PUCO’s exclusive jurisdiction.”

The statute creating PUCO to administer and enforce these provisions provides that the commission hears complaints filed against public utilities alleging that “any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential.” This jurisdiction is “so complete, comprehensive and adequate as to warrant the conclusion that it is likewise exclusive.”

The Court used a two-part test to reach its determination. First, it asked whether the commission’s administrative expertise was required to resolve the issue in dispute, and, second, whether the act complained of constituted a practice normally authorized by the utility.

The Ohio Administrative Code chapter on electric service and safety standards requires that utility companies establish a right-of-way vegetation-control program to maintain safe and reliable service. The Code requires that each electric utility inspect its electric-transmission facilities (circuits and equipment) at least once every year, in accordance with written programs, and takes a number of factors into consideration such as arcing, sagging, and line voltage as well as regulatory requirements from OSHA, FAA, and the Army Corps of Engineers. In addition, electric utilities are required to comply with the American National Standard Institute’s National Electrical Safety Code. The utilities are required to submit their programs to the Commission, which will resolve any disputes as to the efficacy of the plan.

The Court concluded that the Ohio Administrative made it clear that PUCO’s administrative expertise is required to resolve the issue of whether removal of a tree is reasonable.

The second part of the test determined whether the act complained of constitutes a practice normally authorized by the utility. Again, the Court said, the Administrative Code made it clear that vegetation management is necessary to maintain safe and reliable electrical service. Thus, the Supreme Court ruled, the second part of the test was satisfied, and the Corrigan’s complaint fell within the exclusive jurisdiction of PUCO.

That meant that the Illuminating Company’s decision that the silver maple interfered or threatened to interfere with its transmission line was a service-related question, and one that the Corrigans could only dispute in front of PUCO. The Court of Appeals judgment was thrown out.

Case of the Day, Tuesday, December 9, 2014

TRAGEDY AND CLEVER LAWYERING

When a late summer storm blew up in Minneapolis, Chauncey Moua and his wife decided to retreat to the safety of their home to await its passing. They pulled up at home to take shelter. That’s when Mr. Moua decided to park in front of the neighbors’ house, because the neighbors’ tree, the branches of which were overhanging the Moua homestead, was swaying dangerously in the high winds. As he parked the car, a branch fell, killing him.

Mrs. Moua sued her neighbors, the Hastings, for negligence. That was hardly a surprise, but the count for trespass she added made the case unusual. Her claim was novel: she alleged that branches from the Hastings’ tree fell on the Moua property, creating a trespass. The damage from the trespass, she claimed, was the death of Mr. Moua.

Credit her lawyer with a creative argument, but the Court of Appeals said “no cigar.” Mr. Moua had pulled up in front of the neighbors’ house, and was standing in the street next to his car when he was struck. In other words, the tree branch that caused the damage – that is, struck Mr. Moua – was not trespassing on Moua property. As for the claim that the trespassing branches on Moua’s property forced Mr. Moua to move his car elsewhere, and while doing so he was killed, the Court found the injury to Mr. Moua was too remote to the trespass for a causal link to have been shown. Shades of Mrs. Palsgraf!

What, you might wonder, was to be gained from adding a trespass count to the lawsuit? Mrs. Moua had already claimed the neighbors were negligent in not taking care of their tree. The answer lies in fault finding. To win a negligence count, Mrs. Moua had to show the neighbors had actual or constructive notice that the tree was dangerous. Trespass is much simpler. All Mrs. Moua had to show there was that the branches fell onto the Moua property. A trespass cause of action would make collecting big bucks from the Hastings much easier.

The Court left for another day the interesting question of whether a falling branch belonging to another that strikes a landowner on his land might be a trespass.

Moua v. Hastings, Not Reported in N.W.2d, 2008 WL 933422 (Minn.App., April 8, 2008). Blia Moua and her husband, Chauncey Moua, left their home in Minneapolis to pick up their daughter from work. After driving a few blocks, they noticed that the weather suddenly worsened. Moua and her husband became fearful and decided to return home after they saw tree branches falling due to the heavy rain and wind. When they got there, they stopped their vehicle in front of their own home, but Chauncey decided to move the car because he was worried that the storm would blow branches of trees belonging to their neighbors, the Hastings, onto the car. The Hastings lived next door to the Mouas, and some branches of a tree in their front yard hung over the Mouas’ yard. Mr. Moua parked the vehicle in front of the Hastings’ home — where he parked often — and got out of the car when a branch fell from a tree, killing him.

Mrs. Moua admitted that she saw the Hastings’ trees on a daily basis and had never noticed any dead branches. Neither she nor her husband had ever asked the Hastings to trim the trees.

After the Mouas sued for trespass and negligence, the Hastings moved for summary judgment. As for Mrs. Moua’s claim that the branches that had fallen were a trespass on her land by the Hastings, the trial court held that Mrs. Moua had not established how the branches interfered with her use and enjoyment of her property, and the only danger caused by the tree’s branches was due to a severe storm that was noted as one of the worst in several years. Mrs. Moua appealed.

Held: Summary judgment was affirmed. The Court of Appeals held that in Minnesota, a cause of action for wrongful death is purely a legislative remedy. A cause of action for wrongful death exists when death is caused by the wrongful act or omission of any person. Although causation is generally a question of fact for the jury, where reasonable minds can arrive at only one conclusion, causation becomes a question of law, and it may be disposed of by summary judgment. Trespass encompasses any unlawful interference with one’s person, property, or rights, and requires only two essential elements: a rightful possession in the plaintiff and unlawful entry upon such possession by the defendant.

Here, the Court said, the trial judge correctly concluded that even if there had been a trespass, there was no causal link between that trespass and the injury that occurred. The undisputed facts showed that the injury to Mr. Moua occurred on the public street in front of Hastings’ house. Even looking at the evidence in the light most favorable to Mrs. Moua, the Court said, as a matter of law she failed to present a causal link between the alleged trespass by the Hastings’ tree branches and Mr. Moua’s death in the street.

The Court thus concluded that summary judgment in favor of the Hastings on the wrongful death claim was proper.

Case of the Day, Wednesday, December 10, 2014

POUNDING ON THE TABLE

The old trial strategy aphorism recommends that “if your case is weak on the law, pound on the facts; if it’s weak on the facts, pound on the law; and if it’s weak on the law AND facts, pound on the table.”

It doesn’t work all that well, as our hapless landowners in today’s case, the Wimmers, found out. 

“Wimmer” rhymes with “winners,” which is ironic given the outcome in this case.  It seems the Wimmers owned land for which they had given the electric utility an easement for its power lines.  That’s pretty common – anywhere power or communications lines cross over land, or pipes run under the ground, there’s probably an easement involved.  The easement in the Wimmers case let Ohio Edison trim and remove trees as needed to keep vegetation clear of the lines.

The Wimmers didn’t want to see much of their foliage cut away, but because trimming and removing trees costs money, the utility didn’t want to do more than was absolutely necessary. Thus, there was a happy confluence of interest that continued for years.

Then came August 14, 2003. Some high-voltage transmission lines owned by the same Ohio Edison – hot from weather and the high electrical demand of the day – sagged into untrimmed trees just south of Cleveland. Three lines shorted out simultaneously. Normally, such a condition would have tripped an alarm at a monitoring center, letting technicians redistribute the load. But a bug in the software permitted what engineers call a “race condition,” and the alarms didn’t sound. The result was a cascading power failure that became the great North American Blackout of 2003, affecting 55 million people on the eastern seaboard and midwestern United States, as well as the province of Ontario.

After that day, everything changed. The public fumed, the media chastised, politicians fulminated. Changes had to be made. Ohio Edison was understandably humiliated by being the utility whose poor vegetation management started it all. Suddenly, occasional and desultory tree trimming became much more scorched earth. For the Wimmers, that meant that the power company’s crews showed up at their place one day to clear-cut the entire easement.

The family took exception to the plan, and sued to stop it. While their case was wending its way through the courts ¬– not very satisfactorily to them, because Ohio Edison was winning every step of the way – the Ohio Supreme Court handed down its decision in Corrigan v. Illuminating Co. (which we discussed last Thursday). Corrigan held that vegetation management issues fell within the exclusive jurisdiction of the Public Utilities Commission of Ohio. Common pleas courts had no authority to decide whether tree trimming and removal within easements was prudent or unduly robust.

The Wimmers recognized a break when they saw one, and promptly took a mulligan. Sadly, they fared no better before PUCO than they had in the state court system. That might be because Ohio Edison rolled out the IEEE standards for vegetation management to an expert witness who had inspected the easement, could identify the individual trees involved, and had facts and figure at her fingertips on the risk each tree posed to the power lines.

There wasn’t any question that the easement permitted Ohio Ed to cut down trees. The only issue was whether it was reasonably necessary. The Wimmers didn’t have any facts to counter the power company’s showing. They didn’t have any compelling legal arguments. All their lawyer could do was pound on the table, and argue that it was speculative that the trees would grow to be a hazard to the power lines.

Well, sure … the expert was only speculating that the trees would grow, and that they would reach the average height for that kind of tree, and for that matter, that there would ever be a high wind or ice storm that would cause them to ensnare the electric lines. Likewise, it’s speculation that the sun will rise in the morning, based on nothing more than a sheer guess based on the fact that it’s done so for the past 1.6 trillion days since the earth was formed. You see where this is going?

Neither PUCO nor the Ohio Supreme Court – which reviewed the agency’s denial of the family’s complaint – was impressed with the Wimmers’ defense. “Who are you going to believe – me, or your own eyes?” their lawyer seemed to argue. The Commission and the Court both answered that question. Actual evidence carried the day.

Pound on the table, indeed.

Wimmer v. PUCO, 131 Ohio St.3d 283, 964 N.E.2d 411 (Sup.Ct. Ohio, 2012). Ohio Edison owned a transmission-line easement running over the Wimmers’ property. For years, Ohio Edison – in accordance with the company’s general policy – trimmed and once in a great while removed trees growing in the easement. But its policy changed after the 2003 Northeastern United States blackout. When the company tried remove all of the trees in the easement, the Wimmers sued to stop it. They went to court, where Ohio Edison won. But before the decision was final, the Ohio Supreme Court ruled in Corrigan v. Illuminating Co. that PUCO, not a court, was required to decide whether removal was reasonable.

The Wimmers then took their complaint to PUCO. After an evidentiary hearing, the commission ruled that Ohio Edison could remove the trees.

The Wimmers appealed.

Held: Ohio Edison was permitted to remove the trees. The Supreme Court held that there was “no question that the company has a valid easement,” that “the tree is within the easement,” and that the easement “grants the company the right to remove any tree within the easement that could pose a threat to the transmission lines.”

The Wimmers nevertheless argued that PUCO’s decision that the circumstances permitted Ohio Edison to remove the trees was not reasonable. They argued that Ohio Edison failed to present evidence that their trees “may interfere with or endanger the utility’s transmission lines.” The Wimmers maintained that the utility’s evidence was “long on Ohio Edison’s fear and speculation and short on hard facts.”

The Court disagreed. It found that evidence presented to the commission showed that “the vegetation in question has the genetic disposition to grow to heights tall enough to potentially interfere with” the power lines, and that Ohio Edison “reasonably determined that this vegetation may interfere or threaten to interfere with the transmission line and should be removed.” The utility had presented an expert witness who had described the trees growing in the right-of-way – which she had personally examined – and explained that their average mature heights were well above the height of the power lines. She had testified that “even with continuous trimming and pruning, at least one tree had already grown to within four feet of the line, in violation of the National Electric Safety Code, which is published by the Institute of Electrical and Electronics Engineers and sets the industry-accepted safety standards. “

The Wimmers didn’t present any contrary evidence or challenge the Ohio Edison witness’s credentials, but rather just complained that her testimony was speculative. In order to overturn PUCO’s determination, the Wimmers had to show that the decision was “so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty.” They did not come close to doing that.

The Ohio Supreme Court did, however, “note with approval the commission’s admonition that Ohio Edison ‘attempt to minimize the impact to property owners, to the extent possible and without sacrificing safety and reliability, when performing [utility-vegetation-management] activities’.” The Court dryly observed that “Ohio Edison must comply with the commission’s order.”

Case of the Day, Thursday, December 11, 2014

BUILDING A CASE

A family’s Christmas – and for that matter, its future – was ruined on a rural Ohio one December night. Mike and Traci Reed were driving their two kids home from a Christmas celebration, Traci and her 5-year old son in her car following her husband and their daughter in his, because they had picked up her car at her office, where she had left it earlier. When Mike and daughter Samantha got home, Traci – who had been following them – was no longer behind them. Mike backtracked to find her car crushed by a tree. An EMS worker at the scene told him that his wife was dead and son in critical condition.

The wheels of justice ground slowly after the accident. Four years after the accident, the Ohio Court of Claims – which decides questions of the State’s liability – finally decided the question of the Ohio Department of Transportation’s liability. The case is of interest not just because of the dry reduction of human tragedy into dispassionate allocation of responsibility (although it is interesting for that, too). The findings of fact and conclusions of law handed down by the magistrate (who is kind of an assistant judge) illustrate a well-structured case presented by the plaintiff and a poor rebuttal by ODOT.

One wonders why the State of Ohio didn’t just settle the case if it was going to make such a poor showing. Its own employees made the plaintiff’s case, and its expert pretty much just “phoned it in.” But from the plaintiff’s perspective, the case is a veritable “how to” try a claim of liability against a state agency in a “danger tree” case.

Reed v. Ohio Dept. of Transportation, 2012-Ohio-1244 (Ct.Cl., Mar. 23, 2012). Traci Reed and her young son, Conner, were driving northward through the hilly eastern Ohio countryside, when a tree fell on their car. Traci was killed and her son was badly injured.

The tree that fell on Traci had shown as “substantial ‘lean’” in the year prior to the accident, and other trees on the same embankment had fallen during that time. Traci’s husband had observed this, but he had never complained to the Ohio Department of Transportation himself. Rather, he assumed that ODOT knew about the condition because road crews maintained the area throughout the years.

The Court noted that ODOT had a general duty to maintain its highways in a reasonably safe condition for the traveling public, but it is not an insurer of the safety of its highways. ODOT may be held liable for damage caused by defects, or dangerous conditions, on state highways where it has notice of the condition, either actual or constructive. Actual notice exists where, from competent evidence, the trier of fact can conclude the pertinent information was personally communicated to, or received by, the party. Constructive notice is that notice which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. Under Ohio law, in order for there to be constructive notice of a nuisance or defect in the highway, that nuisance or defect must have existed for such length of time as to impute knowledge or notice.

The plaintiff (who was the husband of the deceased wife and mother) presented several ODOT employees responsible for vegetation management and hazard abatement along the road in question. He established that some of the employees knew of the tree and believed it to be dangerous, and others – while not recalling the tree ­ – agreed when studying the accident photos that it was dangerous. Plaintiff called a surveyor to establish that the tree had fallen within the state’s right-of-way on the highway, and put people on the stand who had lived close to the accident site, and who testified that they had seen the tree and thought it was a hazard.

Additionally, the plaintiff produced an urban forestry consultant who was certified by the International Society of Arboriculture as an arborist. The forester prepared for his testimony by reviewing court documents, photographs, visiting the accident site, and examining cut-up tree remnants. He testified that that the tree was a 50-year old red oak, and that it contained “reaction wood,” which forms to counter a lean of the tree. He observed that the pith, the biological center of the tree, was off-center, and that the tree’s roots in the embankment showed mild to moderate decay. He concluded that the tree was “hazardous” (as defined by the International Society of Arboriculture Hazard Rating System). His conclusion was based on the tree’s potential to fail and the potential to hit a target, because of its significant lean, its location in a sloped embankment with exposed roots, and the visually obvious deadwood in the crown of the tree. He testified that once a tree is “off vertical” with unstable soil, each progressive year increases the risk of failure. The tree was located on a steep slope, which compromised its stability.

The expert concluded that ODOT failed in its duty to remove a hazardous tree that had several significant defects, readily observable from the roadway. He said it was “not a question of if, but a question of when” the tree would fall on to the highway.

ODOT presented the testimony of one of its employees who said he had removed the tree from the road after it fell, and he had been familiar with it prior to that time. He said he had never seen any condition that concerned him, and if he had, he would have reported it. ODOT also presented its own expert, who prepared his testimony in the same manner as did the plaintiff’s expert. He said that the tree has a “classic natural lean,” due to the fact that the tree was on the edge of the woods and it grew toward the sunlight. According to ODOT’s expert, the center of the tree was asymmetric but there was no indication that the tree was dead or distressed. The State’s expert opined that the tree falling was “natural, it was not predictable.” However, on cross-examination, he conceded that the tree’s center of gravity was “probably not over the roots” and that a tree does not have to be dead, decayed, or diseased in order to be a hazard.

The finder of fact – in this case, a magistrate who heard the evidence for the court ­– found the Reed’s expert to be more persuasive. The evidence about the tree’s shifted center of gravity carried the day; the court concluded that the red oak tree that fell on Traci Reed’s vehicle was a hazard to the motoring public. As for notice, although ODOT said it had received no complaints from either its staff or the public regarding the tree, two of its employees acknowledged that they were aware that the canopy of the tree extended over the roadway. The court found that ODOT had actual knowledge of the hazardous condition, which had existed for more than a year prior to the accident and which was within the State’s right-of-way.

ODOT argued that the property owner where the tree was located was liable for the tree, but ODOT presented no evidence showing that the landowner had actual or constructive notice. As well, it argued that the tree fell due to an act of God. The court rejected that argument. The evidence showed that there was no weather than night that was sufficiently “unusual and overwhelming as to do damage by its own power” to make the falling tree an Act of God. Even if there had been an adverse weather condition on the night of the accident, the Court said, “it has also been the rule of law that, ‘[i]f proper care and diligence [on a defendant’s part] would have avoided the act, it is not excusable as the act of God.'” ODOT’s failure to exercise proper diligence resulted in the tree falling, the Court said, not an act of God.

ODOT was held liable for the falling tree, and Traci Reed’s death.

And after considering the damages showing? The Court awarded the family $4 million.

Case of the Day, Friday, December 12, 2014

A “READILY APPARENT” THUMP

Those punsters at Despair, Inc., perhaps put it best: a very long journey can sometimes end suddenly, and rather badly.

Howie Conine should have had the Despair, Inc., “Ambition” poster on his wall, where he could have contemplated its message. He surely could empathize with the hapless salmon. He and his wife had their journey end one rainy day on Washington State Route 524 – suddenly and very, very badly. A redwood tree on County of Snohomish land, the hazardousness of which was “readily apparent,” fell on their car with a readily apparent thump.

The law of the jungle gives the poor king salmon no appeal, no forum for damages suffered when her trip upstream ends so precipitously in the jaws of an ursus arctus horribilis. Fortunately for the Conines, the law of Washington State was more hospitable after the tree fell onto their passing car (with them in it). If anything, it was a perfect storm for them: they possessed evidence that the dangerous condition of the tree was “readily apparent,” they were in a notoriously friendly plaintiff-friendly, and they had two defendants to choose from, both of which were governments and thus “deep pockets.”

But who to collect from? The State of Washington, that the Conines argued had a duty to keep the highways safe from falling trees, or the County of Snohomish, that the Conines averred had a duty to protect passers-by from dangers arising from trees on its land?

Well, this is America!  Why not sue both?  

The Conines did just that.

Unfortunately, they ran into an uncooperative trial court, one which held that neither the State nor the County had any obligation to inspect the trees along the road, even one with “this readily apparent hazard.” The trial judge threw the Conines out of court. They had a little more luck with the Court of Appeals, which reversed the trial court decision and sent the matter back for trial on the merits.

Conine v. County of Snohomish, Not Reported in P.3d, 2007 WL 1398846 (Ct.App. Wash., May 14, 2007). Howard and Karen Conine were driving on State Route 524 when a red alder tree standing on an embankment on the west side of the road fell on their car. The tree had been located about 10 feet outside the State’s right of way on land owned by Snohomish County. The Conines sued the State of Washington for failure to maintain the state highways in a safe condition and the County for failure to remove an obvious hazard from its property.

The Conines’ arborist testified that during the 6-12 months immediately preceding the tree’s failure, the appearance of the tree should have given anyone looking at it notice that it was dead and decaying. The arborist said the tree was probably leaning 10 to 15 degrees downhill toward the road, and would have been in the highest risk category because of its condition and proximity to the road. The DOT’s maintenance technician who removed the tree after the accident said the tree “had been a live tree and that its root ball had come loose from the soil owing to the very wet conditions we had in January 2003.”

The trial court held that neither the State nor the County had a “duty to look for this readily apparent hazard.” The Conines appealed.

Held:  The summary judgment was reversed. The State’s liability to users of a road is predicated upon its having notice, either actual or constructive, of the dangerous condition which caused injury, unless the danger was one it should have foreseen and guarded against. The Conines conceded that the State did not have actual notice, but they argued that the tree’s visibly dangerous condition created constructive notice. The Court found that the question to be answered was whether, for constructive notice, the State had a duty to look for a readily apparent hazard. Although the Washington Supreme Court had held in another case that where the tree was on a remote, mountainous, sporadically traveled road, a high threshold for constructive notice of danger was needed to trigger a duty to inspect and remove a dangerous tree. But here, the road was a state highway in a populated area, and the risk to the traveling public shifted the risk analysis. What’s more, in the other case, the Supreme Court found that the tree that fell was no more dangerous than any one of the thousands of trees that lined mountain roads. By contrast, the Conines’ expert testified that the tree that fell was obviously a hazard. The differences, the Court said, precluded a finding that the State lacked constructive notice as a matter of law. Constructive notice that a tree was dangerous gives rise to a duty to inspect. Thus, summary judgment was improperly granted on the basis of no duty to inspect.

The Conines also contended that Snohomish County faced liability as the landowner of the property upon which the tree stood, because the owner of land located in or adjacent to an urban or residential area has a duty of reasonable care to prevent defective trees from posing a hazard to others on the adjacent land. The County argued that it had no such duty, because the tree was a “natural condition of the land.”

The Court held that when the land is located in or adjacent to an urban or residential area and when the landowner has actual or constructive knowledge of defects affecting his trees, he has a duty to take corrective action. The area in question was next to the City of Lynnwood and zoned urban residential. Thus, it was urban in character. The Conines produced expert evidence that the subject tree was obviously dead or dying and leaning for two years, that it looked like a forked snag and that it lacked fine or scaffold branches. This evidence, the Court said, created an issue of material fact as to whether the tree was in a defective condition and the condition was of sufficient visibility and duration to give the County constructive notice of a potential hazard.

Case of the Day, Monday, December 15, 2014

SO WHAT’S THE DAMN PROBLEM?

Poor Capital One. First they wore us out with Alec Baldwin and his band of pillaging Vikings, all hawking Capital One credit cards with the annoying tagline, “What’s in your wallet?”

Now it’s Samuel L. Jackson, who lectures us in a mildly imperious way about how he is not amused by some credit card offers, like we care whether he’s amused or not. Initially, he promised credit card rewards “every damn day,” and you’d think the republic was collapsing. Angry customers threatened to close their accounts over his use of the word “damn.” Capital One promptly folded like a cheap suit, and edited the offensive word out of the ad.

It sort of makes you long for the Viking horde. Certainly, we can play from the Capital One question today. What’s in your file cabinet? That may be a lot more important than whether you have an American Express Centurion card, a Capital One VISA, or even just a SNAP card in your wallet. They’re probably people who have all three in their wallets, anyway.

All of that brings us to today’s case, where a conspiracy buff ran headlong into a City of Omaha tree-trimming crew. It seems that Ms. Richter didn’t think much of the City trimming her trees. She approached the crew to lodge her protest, only to find no love. In fact, one of the workers told her (in colorful language, perhaps) to step away from the truck. She did so, tripping on a hole in her tree lawn.

A “grassy knoll” fan, Ms. Richter claimed that the hole obviously had been created by the City’s removal of a street sign, which was mysteriously replaced sometime soon after the accident. It didn’t help the case that the City had a habit of destroying work orders on sign replacement several years after the work was done, and so couldn’t completely rebut her claims.

Lucky for Omaha (home to famous steaks), the Nebraska Supreme Court was little impressed by Ms. Richter’s “I-believe-it-so-that-proves-it” approach to the case. It held that the City’s normal-course-of-business document destruction wasn’t the effort to hide the “truth” Ms. Richter so badly wanted to be. Omaha prevailed.

Still, there’s a lesson here for businesses — sometimes, when it comes to document preservation, what’s in your file cabinet had better be more rather than less.

And a note to Alec Baldwin – chill, man!

Richter v. City of Omaha, 729 N.W.2d 67, 273 Neb. 281 (Sup.Ct. Neb., 2007). A city work crew was trimming overhanging branches from a tree located in front of Ms. Richter’s home. Ms. Richter walked outside and asked the workers to stop trimming the trees. The workers refused and told her to back away from them and their truck. As Richter backed away, she stepped into a hole with her right foot and fell to the ground, injuring her ankle and twisting her knee.

The hole in which Ms. Richter fell was located on a grassy area between the street and the sidewalk in front of her residence. Although this section of land is a public right-of-way, Richter was responsible for maintaining the area. She claimed the City had removed a sign some time prior to the accident, thus creating the hole, but replaced it some time thereafter. City records — while nonexistent for periods of time prior to the accident — showed no change in signage at the location during the relevant period.

Not to be detained by the facts, Ms. Richter sued under the Political Subdivisions Tort Claims Act. She alleged that the City was negligent in failing to warn the public of a dangerous condition, failing to provide safe passage of a right-of-way, and failing to exercise due care in the operation of its business. The trial court found in favor of the City, holding that the evidence was insufficient as to how the hole came to be, when it came to be a hole, and whether the City knew of this hole prior to Ms. Richter’s injury. There was insufficient evidence that the City caused the hole or that it knew it was there so it could be repaired in a timely manner.

Richter appealed.

Held: The City was not liable.

Ms. Richter argued that Omaha had destroyed old work orders from years prior to the accident, and this conduct indicated fraud and a desire to suppress the truth. The Court disagreed, holding that she was not entitled to the adverse inference allowed under the rule of spoliation because the record indicated that the work orders were destroyed in the ordinary course of the city’s business. The Court said that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator; however, such a presumption or inference arises only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.
In order to be successful on her negligence claim Ms. Richter had to establish, among other things, that the city created the condition, knew of the condition, or by the exercise of reasonable care should have discovered or known of the condition. Other than her belief that this was so, she had no evidence to support her contention.

Sorry, Ms. Richter … you’re entitled to your own opinion, but not your own facts.

Case of the Day, Tuesday, December 16, 2014

FOOL FOR A CLIENT

Ol’ Abe Lincoln was right: Mr. Victor had a first-class knucklehead for a client.The old lawyer’s proverb warns that “The man who is his own lawyer has a fool for a client.” Today’s case from Iowa puts meat on those bones.

Mr. Victor’s car was hit by a truck at an intersection. That kind of thing happens on a daily basis. After the crash, he took matters into his own hands. That does not.

Usually, people use lawyers for that kind of thing. In fact, lawyers usually take cases like this one on a contingency basis, meaning that they don’t get paid unless you win. Of course, lawyers tend to be picky about the kinds of personal injury actions they will bring, , for the same reason that more people bet on the horse “California Chrome” than lay money down on “Old Glue Factory.” Who wants to waste time and money.

Maybe Mr. Victor didn’t like lawyers. Maybe (as is more likely), no attorney would touch the case from a remote control bunker in the Amazon rain forest. For whatever reason, Mr. Victor represented himself. Apparently subscribing to the old Vladimir Ilyich Lenin maxim, “Quality has a quantity all its own,” Mr. Victor sued the other driver, the company that owned the truck the other driver was operating, the property owner whose trees allegedly obscured the stop sign, the county for poor maintenance of the intersection, and the state for poor design of the road.

Mr. Victor did it all in federal court, no doubt because suing in federal court sounds a whole lot cooler than suing in state court. And it is, too, except for those pesky rules about jurisdiction and sovereign immunity. Guess he only skimmed those chapters in Personal Injury Law for Dummies.

By the time the Court was done, the State of Iowa was dismissed as a defendant, as was the property owner. In fact, the only defendant left was the County, which was unable to prove that its tree-trimming practices were a discretionary function. Still, Mr. Victor got pretty badly decimated, proving once again that there’s a reason trained professionals cost money – it’s because they know what they’re doing.

Victor v. Iowa, Slip Copy, 1999 WL 34805679 (N.D. Iowa, 1999). A car driven by Martin L. Victor collided with a truck driven by Ronald Swoboda and owned by the Vulcraft Carrier Corp. The accident happened at the intersection of County Road C-38 and U.S. Highway 75. Then the fireworks started.

Victor, acting as his own lawyer, sued the State of Iowa, Plymouth County, Vulcraft and Elwayne Maser in U.S. District Court, apparently alleging (1) that “Iowa law regarding the right to sue private property owners for negligence is unconstitutional;” (2) that Victor should be allowed to sue Maser for acting negligently in failing to trim vegetation that obstructed his view of southbound traffic on U.S. Highway 75; (3) that the State of Iowa and Plymouth County acted negligently by failing to properly maintain a roadway, investigate the accident thoroughly, and place warning signs and markings appropriately; (4) that the highway patrol failed “to perform duties of safety officers, in assessment of dangerous conditions existing;” and (5) that Vulcraft is responsible for its driver’s failure to follow safety standards for commercial trucking. All the defendants moved to dismiss or for summary judgment.

Held: The State of Iowa was dismissed, because the Iowa Tort Claims Act, which gives permission to residents to sue the State, limits those actions to state court. The Court held that the 11th Amendment to the U.S. Constitution barred actions in federal courts against States except under narrow exceptions. One of those is that the State have given a waiver and consent that is clear and express that it has waived sovereign immunity and consented to suit against it in federal court. Although a State’s general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment. In order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court, and the ITCA does not do so. Therefore, Victor’s claims against the State of Iowa was dismissed.

As for the property owner Maser, the Court ruled that Iowa law put no duty on a private property owner to remove trees which obstructed the view of a highway. Although Victor claimed the Iowa law on the matter unconstitutionally deprived him of the right to sue, he never explained why. The Court observed that “while mindful of its duty to construe pro se complaints liberally, it is not the job of the court to ‘construct arguments or theories for the plaintiff in the absence of any discussion of those issues’… Besides the bare assertion that the Iowa law is unconstitutional, Victor has provided no other discussion of the issue.” Thus, the property owner Maser was dismissed as a defendant.

Victor’s claims that Plymouth County was negligent in failing to install proper warning signs and cut tree branches that obstructed his were not dismissed at this point. Section 670.4 of the Iowa Code exempts a municipality such as Plymouth County from liability for discretionary functions, if the action is a matter of choice for the acting employee, and — when the challenged conduct does involve an element of judgment — the judgment is of the kind that the discretionary function exception was designed to shield. Here, Plymouth County’s policy directed that employees “may trim branches of trees because the trees may constitute an obstruction to vision of oncoming traffic at an intersection,” thus giving employees discretion in implementation of this policy. Thus, the Court said, “the action (or inaction) of which Victor complains was a matter of choice for the county’s employee.”

However, the Court said, Plymouth County’s policy did not encompass “social, economic, and political considerations” and therefore the discretionary function exception does not apply. Victor could proceed with rebutting the County’s claim that the view was not obstructed.

Case of the Day, Wednesday, December 17, 2014

SELF-HELP MEETS CATCH-22

Those of us old enough to remember the ‘60s – and if you were around then, you probably were in such a state that you don’t remember them – recall Joseph Heller’s book, Catch-22.   The short rocket is this: the “Catch 22” is simply illustrated – if one is crazy, one can be discharged from the army.  But one has to apply for the discharge, and applying demonstrates that one is not crazy. As a result, one will not be discharged.

The Catch 22 typifies “bureaucratic operation and reasoning,”  which brings us to today’s conundrum. An alert reader in Lick Skillet, Illinois, wrote to complain that a branch from his neighbor’s oak tree hangs over his property to a great extent, dropping leaves and acorns. He says it’s so big and long that it’s a hazard, and he fears that it will fall on his children.  What, he wonders, can he do?

Oh, yawn, you say. Being a faithful reader of this blog, you immediately recognize that the solution to this is the Massachusetts Rule, which permits a homeowner to use “self-help,” trimming the branches back to his property line.  Ah, but there’s a twist to this particular problem.  If our afflicted homeowner trims to the property line, he will leave a six-foot or so stub of a branch because he cannot go onto the neighbor’s property to trim the branch all the way to the trunk.  The city, he tells us, requires that the branch be trimmed all the way to the trunk, or it will fine him.

At this point, the notion of a lousy $25 fine leaves you still unimpressed, and you’re about to click off this blog for one of those Internet sites that no one admits to checking out, but we all do, anyway.   Not so fast.  It gets better.  Our homeowner complains that the City’s fine for improper trimming is $400 per inch of diameter of tree, and the diameter of the offending oak (at 4 feet above the ground) is something like 36 inches.  That’s right, he’s looking at shelling out $15,000 in fine (plus tree trimming costs), all to cut down a single hazardous branch.

Or so our afflicted correspondent says.  Frankly, we were perplexed by his report.  If things were as our complainant said they were, one effectively could not exercise self-help without his or her neighbor’s cooperation. That seemed to eviscerate the Massachusetts Rule, taking the “self” right out of “self-help.”  It’s the classic Catch 22 – you cannot exercise self-help without your neighbor’s cooperation, which – if you can get it – pretty much makes it anything but self-help.

Years of law practice have made us acutely aware of a sad fact of life: clients get it wrong.  They get it wrong all the time.  You could be cynical and say that clients lie, but we would never suspect that.  Indeed, you don’t have to go that far.  Whether they’re simply confused, perceive it incorrectly, or flat out fib, the result’s the same.  

Here, the Lick Skillet City Code tells a somewhat different story.  The ordinance requires that any trimming in the city has to be done according to ANSI Standard A300, which sets out best practices for tree maintenance. If a trimmer adheres to the standard, what happens to the tree is not his or her fault.  If the trimmer does not trim to the ANSI standard, and the tree later suffers “substantial destruction” – that is, it is killed or becomes a hazard tree – the trimmer is liable.  So our homeowner’s trimming won’t lead to a fine unless the tree is “substantially destroyed.”  And that will take a few years to determine.

Talking to the Lick Skillet City Forester’s office, we found out a few other facts as well, details our correspondent homeowner overlooked telling us.  It appears that our afflicted complainant may not be all that concerned with the fate of his children playing under the branch.  Instead, he wants to build a swimming pool, and the branch is directly over the new installation.  What’s worse, the branch spoils his view.

Whew!  We haven’t had a problem like this since a law school final exam. Where to start?  First, our unhappy pool-building homeowner should hire an arborist. If the arborist agrees that the branch is a hazard, our man is on much more solid ground. The neighbor should be placed on notice of the hazard determination, and the neighbor’s insurance company should be told, too. We bet the insurance company will convince the recalcitrant neighbor to let our homeowner trim to A300 standards without a whimper of protest.

But what if the branch isn’t a hazard (as we’ve heard)? Our homeowner might still have an arborist trim it to the property line according to accepted industry standard (if such a thing is possible). If it is not, our homeowner may have to risk lopping the branch off at the property line, and hoping that the tree doesn’t die. If it does, the City is going to assert that it was the the homeowner’s improper trimming that caused the hazard (or death).

We suspect our homeowner won’t find an arborist who will cut the branch other than at the trunk (which cannot be done without the neighbor’s OK).  If the homeowner is going to go ahead with the pool, he may just have to cut the branch at the property boundary and hope for the best.  If the tree withers and dies within a few years of the surgery, well, then, he has a problem.

That should not be surprising.  Even without the city ordinance, the suggestion has often been made that Massachusetts self-help requires first that the overhanging branches be doing more than just causing shade or dropping leaves. In Herring v. Lisbon Partners, the court suggested that Massachusetts self-help was only available when the overhanging branches or intruding roots were doing more than your average tree: that is, they were a danger or a nuisance, breaking up pavement or damaging roofs.  It could well be that courts will rule that self-help isn’t available merely to improve the view (although such a ruling hasn’t come down anywhere just yet).

Thus, it could be that our homeowner really isn’t entitled to do much of anything if he cannot get an arborist to certify that the branch is doing more mischief than your average branch.  Endangering kids is one thing: spoiling a view is something else. If the branch is a hazard, the homeowner might have a defense to trimming it to the property line, even if the tree dies – the defense of necessity.

Our complaining homeowner told us that he doesn’t want to end up in a lawsuit, or defending himself from a $15,000 fine.  That’s perfectly understandable.  In that case, his best course is obvious, if the branch is a hazard (as he says it is).  If his arborist will give him an opinion that the branch is a hazard, the homeowner should make sure the neighbor and the neighbor’s insurance carrier are both aware of that.  Certified mail, return receipt requested, would be prudent.  We suspect our homeowner will be happily surprised at how quickly the insurance carrier persuades his neighbor to cooperate.

Lawrence Peter postulated the idea years ago as a corollary to the Peter Principle: pull is always stronger than push.  If our homeowner gets the neighbor’s insurance company on board, he’ll have a lot of pull.

Fine aside, could our homeowner be liable for causing substantial damage to his neighbor’s tree by not trimming according to A300 standards?   Remember, our complainant wants to avoid litigation, trimming away the offending branch in a way that leaves him legally bulletproof.  Even without the city’s statutes requiring trimming in compliance with A300, today’s case from California should serve as a cautionary tale.

We have previously determined that California generally recognizes the Massachusetts Rule, which permits a neighbor to use “self-help,” trimming the branches back to the property line. Of course, California seems also to permit use of the private nuisance laws — something that seems like the Hawaii Rule or Virginia Rule — to let a homeowner like our correspondent force someone like his neighbor to remove the branch himself if it is a nuisance.

Mr. Patel was unhappy that the roots from Mr. Booska’s pine tree had heaved some of Mr. Patel’s sidewalk. He excavated along the edge of his yard down to three feet, severing the roots of the pine tree that had encroached under his sidewalk. The root cutting so weakened the tree that it started dying and was in danger of falling. Mr. Booska had to take the tree down, and he promptly sued.

The lower courts said that Patel had an absolute right to cut the roots on his property, citing the holding in  Bonde v. Bishop.  Not so, said the appeals court.  Instead, Mr. Patel had an obligation to cut the roots in a reasonable manner that would achieve his aims — to stop sidewalk heaving — without undue harm to the tree.  The Court held that “no person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.”

Unfortunately, this isn’t the final answer.  The Booska court was swayed by testimony that Mr. Patel could have protected his sidewalks with a much less aggressive method.  We don’t yet know what the result would be if the only means of protecting Mr. Patel’s sidewalk would have required cutting that would necessarily be fatal, but our correspondent could provide us with the answer if he lands in court over cutting the branch to the property line but not in accordance with A300.

In the situation our writer presented to us, his explanation for wanting the branch removed clashed with what the city understood the real motivation might be.  In discussions with his arborist, our neighbor will have to consider whether the branch could be found to be a nuisance, a finding that Bonde suggests can be easily made in California.  Even if it is not a nuisance, our correspondent maybe can start hacking away on his side of the property line, but the hacking should be done according to A300.  Assuming that it cannot be (because the neighbor won’t permit trimming to the trunk), the trimming has to be done in a way that weighs our correspondent’s legitimate aims — whatever they are — against the health and safety of the tree. And preserves the tree, thus avoiding the $15,000 fine.

Oh, the complexity! And to make it worse, tomorrow we’ll look at a Kafkaesque result where a neighbor’s right to cut back a tree can’t be exercised without approval of the property owner, resulting in an old-fashioned California SLAPP-down.

Booska v. Patel, 24 Cal.App.4th 1786, 30 Cal.Rptr.2d 241 (Ct.App. Div.1, 1994). Attorney Booska, representing himself in this action, sued his neighbor Mr. Patel. The roots of a 40-year-old Monterey pine tree owned by Mr. Booska extended into Mr. Patel’s yard. Mr. Patel hired a contractor to excavate along the length of his yard and sever the roots of the tree down to a level of about 3 feet. Mr. Booska complained that Mr. Patel’s actions were negligently performed, and the tree became unsafe, a nuisance, unable to support life, and had to be cut down at Mr. Booska’s expense. The complaint alleged causes of action for negligence, destruction of timber and nuisance. The trial court granted summary judgment for Mr. Patel, holding that under Bonde v. Bishop, Mr. Patel had an absolute right to sever the roots without regard to the effect on Mr. Booska. Mr. Booska appealed.

Held: The Court of Appeals reversed. It held that adjoining landowners do not have absolute privilege to sever encroaching tree roots without regard to reasonableness of their action or consequences to neighbors. Instead, neighbors act reasonably, and failure to do so could be basis for recovery of damages. The Court distinguished the rulings in Bonde v. Bishop and Grandona v. Lovdal, noting that neither of those cases discussed the limits on what an adjoining property owner could do. The Court observes that “[i]n the instant case, Patel has not addressed the issue of negligence in his summary judgment motion but contends that he has an unlimited right to do anything he desires on his property regardless of the consequences to others. No authority so holds. ‘No person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.’”

The appeals court was apparently disturbed that these neighbors hadn’t found the time or inclination to be neighborly about the dispute. It cites language from Bonde v. Bishop: “‘Apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do’.”

The Court then pointedly said, “It seems, in the instant case, that neither party has considered what would be the neighborly thing to do to resolve this problem. While we express no opinion on the appropriate outcome of this case, we find that there are disputed factual issues to be resolved.”

The Court reversed the decision, and sent the case back to the trial court to resolve the issue of negligence.

Case of the Day, Thursday, December 18, 2014

A SLAPP ON THE FACE

Only in California could a tree-trimming case end up as a free speech issue.

Yesterday we considered the plaint of our correspondent from Lick Skillet, Illinois, who wanted to remove a branch overhanging his yard from his neighbor’s rather substantial oak tree. We concluded that Massachusetts-style self-help might be available to him, but it was fraught with peril due to a local ordinance requiring that the tree be trimmed according to ANSI A300 standard. He couldn’t trim according to the standard, because that required going onto his neighbor’s property, and his neighbor denied him permission. He could trim to his property line, but if the tree was damaged or died because of the trimming, he faced a criminal charge and a fine of about $15,000 (or about 495,000 900,000 975,000 rubles). We suggested that the situation he described might be a case of common law running headlong into bureaucracy.

Today, we look at the kind of mischief results when good old fashioned common law self-help runs into bureaucracy.

The Dilbecks wanted to add a second story to their house, but their neighbors’ oak tree had extended its branches so close to the Dilbecks’ place that they had to be trimmed back in order to make room. No problem, right? We all know that self-help is available to the Dilbecks anywhere in California. Sure, but it turns out the Los Angeles isn’t just anywhere. In LA, oak trees are “protected,” and before trimming the oak, the Dilbecks had to get a permit from the County. And the County wouldn’t issue a permit unless the tree’s owner signed on to it.

This sounds something like the problem our complainant in Lick Skillet faces, doesn’t it?

So much for self-help. The Dilbecks did something from which our writer shrinks: they sued, asking that the County be ordered to issue the permit and that their neighbors be found liable in trespass for the tree (the theory being that the neighbors let the branches intrude over the Dilbecks’ lawn). And here’s where it got even more complicated. California has a statute concerning litigation known as “strategic lawsuits against public participation,” the so-called anti-SLAPP statute.  This mouthful with the catchy name is intended to stop oppressive lawsuits that are filed with the intention of keeping people from exercising their rights to free speech. 

There’s a whole cottage industry in the Golden State surrounding SLAPP actions.  And as with a lot of other good ideas (such as RICO), the anti-SLAPP statute is another tool in the canny lawyer’s arsenal, something else with which to bludgeon a plaintiff.

Here, the neighbors complained that the Dilbecks were trying to force them to petition the County to let the tree get trimmed, and the suit should be thrown out as violating the anti-SLAPP statute. The trial court refused to throw the suit out. The Court of Appeals agreed, holding that the Dilbecks weren’t demanding that the neighbors do anything. They were asking the County to do something, and they were suing the neighbors for trespass because of the tree. California law would let them collect money damages if the encroaching tree was a nuisance (Bonde v. Bishop held as much). So whether the Dilbecks won on the merits or not, the action was not a SLAPP suit, and it wouldn’t be dismissed.

Whew!  Makes you long for the simple, ol’ Massachusetts Rule … no permits, no lawsuits, just an aggrieved landowner with a chainsaw.

Dilbeck v. Van Schaick, Not Reported in Cal.Rptr.3d, 2007 WL 2773986 (Cal.App. 2 Dist., Sept. 25, 2007). The Dilbecks owned a place in Altadena, next door to the Van Schaicks. The Dilbecks planned to remodel their home by adding a second story. However, the branches of an oak tree located on the Van Schaicks’ property have grown over the Dilbecks’ home, rendering the Dilbecks’ plans unworkable unless the tree was pruned.

Oak trees are protected by state law.  Los Angeles County had adopted regulations to preserve and protect oak trees, requiring a permit to cut down mature oak trees or to prune their larger branches.  The Dilbecks applied to the County for a permit, but the County would not approve it because it took the position that only the owner of the tree may obtain a pruning permit, and the Van Schaicks had not acquiesced.

So the Dilbecks brought suit against the Van Schaicks and the County for declaratory relief and trespass. They alleged the oak tree growing on the Van Schaicks’ property had encroached onto the their land and interfered with their ability to add a second story to their home. The suit said the County refused to grant the permit because the Dilbecks were not the owners of the tree. The trespass cause of action alleged the oak tree branches were encroaching on the Dilbercks’ land, and asked for an order permitting the Dilbecks or an independent contractor to prune the tree.

The Van Schaicks filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, asserting that the complaint was based on their refusal to support the Dilbecks’ oak tree permit application and therefore attacked their right to free speech. They further argued that the trespass claim lacked merit because the law forbade the Van Schaicks to prune or cut the offending oak tree branches.

The Dilbecks contended that their action did not fit within the definition of a SLAPP suit and that, in any event, their complaint had merit. They denied that the complaint sought to compel the Van Schaicks to support or sign the oak tree permit. The trial court denied the Van Schaicks’ motion to strike, finding that they had not demonstrated that they were being sued for engaging in protected activity. Instead, the trial court held, they were just being sued for trespass. The Van Schaicks appealed the court’s denial of their motion to strike.

Held:   The Dilbecks’ complaint did not arise from acts undertaken in furtherance of the Van Schaicks’ rights of free speech or petition, and the Van Schaicks’ attempt to get it dismissed was rejected.

The California Legislature enacted the anti-SLAPP statute in response to its perception that there has been an increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition for the redress of grievances. The anti-SLAPP statute provides a procedure for the court to dismiss at an early stage non-meritorious litigation meant to chill the exercise of free speech rights. The statute requires the trial court to engage in a two-step process when determining whether a motion to strike should be granted, first, whether the defendant has made a threshold prima facie showing that the acts of which it complains were ones taken in furtherance of its constitutional rights of petition or free speech in connection with a public issue, and two, whether there is a probability that the plaintiff will prevail on the claim.

The issue here, the Court said, was whether the complaint arose from conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. The Van Schaicks contended the suit sought to compel them to petition the County for discretionary relief from the oak tree statutes. But the Court held their characterization of the complaint was wrong. In fact, the Court said, the suit merely sought to compel the County to review the merits of the permit application submitted by the Dilbecks, and requested an order permitting the Dilbecks or their arborist to prune the tree. The complaint did not seek to compel the Van Schaicks to become personally involved in the permit application process in any way, and thus did not violate the anti-SLAPP statute. But the Van Schaicks also contended that the complaint would indirectly force them to speak because a judgment in favor of the Dilbecks on the trespass action would necessarily require the Van Schaicks to petition the County of Los Angeles for discretionary relief from the Oak Tree statute.

The Court disagreed, finding that the Van Schaicks’ contention was based on the incorrect assumption that the only remedy available for trespass was injunctive relief. But California law held a party over whose land overhanging branches extend may either cut them off or maintain an action for damages and abatement, as long as he or she can prove the branches constitute a nuisance.

The prospect that the Van Schaicks could eventually be faced with an order to abate the nuisance and could do so only by seeking a permit from the County did not transform the Dilbecks’ lawsuit into a SLAPP action. The Court ruled that the thrust of the Dilbecks’ complaint was the injury caused to their property by the encroaching tree, not the Van Schaicks’ decision to refrain from involvement in the permitting process. The permit, although obtainable only by petitioning a governmental entity, principally concerned and affected the remodeling of a private home by private individuals.

Case of the Day, Friday, December 19, 2014

UNSNARLING DUTIES

When negligence rears its ugly head, compensation usually depends on the extent of the duty owed the victim by the party whose pocket the injured plaintiff seeks to pick. Take Tim Jones, an experienced cable television installer. One cold day in the bleak midwinter, he climbed an Indiana Bell pole to work on a cable installation. On the way down, he grabbed a phone line instead of a ladder rung. Not being intended as a support structure, the line gave way, and down Mr. Jones went.

Having no evidence that Indiana Bell knew the line was defective and likely to fall away from the pole, Mr. Jones did the only thing he could do – he sued anyway. The issue was a little daunting, because Indiana Bell hadn’t ever hired Mr. Jones. Instead, it just rented pole space to the cable company, which in turn hired the company that employed Jones. So what duty did the telephone company owe Jones in this totem-pole relationship?

Not that much of one, as it turned out. Mr. Jones lost his case, but the Court of Appeals took the opportunity to clarify the duty an easement holder has to invitees on the easement. The lesson is one that a utility holding an easement for, say, power lines, might owe to the employee of a tree-trimming service brought in to keep the easement clear of vegetation.

Jones v. Indiana Bell Telephone Co., 854 N.E.2d 1125 (Ind.App., 2007). Timothy Jones was doing a cable equipment upgrade for Sentry Cable, a cable TV provider. Jones – who had been doing this type of work for about twenty years and was aware of the associated dangers – was working as a subcontractor on this project. He was wearing the appropriate safety equipment.

Jones climbed a telephone pole owned by Indiana Bell, in order to access the cable TV line, which was located about a foot above the telephone line. On his way down, he grabbed the telephone line like it was a ladder rung. It wasn’t. It broke free, and Jones fell 20 feet to the ground, breaking his ankle. Jones sued the phone company for negligence.

At trial, Jones admitted he hadn’t observed any problems with either the telephone line or the clamp assembly. He also admitted he had no evidence that Indiana Bell knew that there was anything wrong with the pole, telephone line, or clamp assembly. Indiana Bell moved for judgment “based upon the … absence of any evidence of a breach of duty as the duty is established in Indiana law.” The trial court found Indiana Bell had no duty to Jones, and granted judgment to the phone company.

Jones appealed.

Held: Indiana Bell owed Jones nothing.

The Court observed that to prevail on a theory of negligence, Jones had to show Indiana Bell owed him a duty, it breached the duty, and his injuries were caused by the breach. Whether a defendant owes a duty of care to a plaintiff is a question of law for the court to decide. Whether an act or omission is a breach of one’s duty is generally a question of fact for the jury, but it can be a question of law where the facts are undisputed and only a single inference can be drawn from those facts.

The parties and the Court focused on the Indiana Supreme Court’s opinion in Sowers v. Tri-County Telephone Co., 546 N.E.2d 836 (Sup.Ct. Ind. 1989), which involved a telephone utility, the employee of an independent contractor, and a discussion of both duty and breach. In Sowers, the telephone company hired Covered Bridge Tree Service to trim trees located near its telephone lines and clear a right of way in order to ease the work of crews mounting cable television lines on the same poles. While trimming trees, a Covered Bridge employee fell into an abandoned manhole.

The phone company did not own the land on which the manhole was located, but it had a prescriptive easement on the land. Sowers sued Tri-County for negligence, and the trial court granted summary judgment in favor of Tri-County. The Sowers court held that a landowner or occupier is under a duty to exercise reasonable care for the protection of business invitees and that the employees of independent contractors are business invitees. The court held that Tri-County did not have a duty to inspect and warn and that the boundaries of Tri-County’s duty of reasonable care to its business invitees “must be defined from the utility’s own use of the easement.”

But here, the Court said, the facts of Sowers were distinguishable. There, the telephone utility itself hired the tree service company, whose employee was then injured while on the telephone utility’s easement. Here, Indiana Bell just rented space on its telephone poles to the cable company, whose subcontractor was then injured on Indiana Bell’s telephone pole. Still, the Court said, the policy reasons articulated in Sowers apply to this case, making the duties owed the same. Sowers first acknowledged that a telephone utility is a special breed in that it is not a traditional landowner or occupier. In addition, it acknowledged that a telephone utility does not often access its property except for the occasional necessity to effect repairs. Because of these facts, Sowers concluded that a great burden would be placed on a telephone utility if it were required to conduct regular inspections of its property for the sole purpose of discovering possible hazards.

Applying Sowers here, the Court concluded, Indiana Bell owed a duty of reasonable care to its invitees – including Jones – but the duty did not include the duty to inspect and warn. However, to the extent that Indiana Bell learned of dangerous conditions on its poles, it had a duty to warn its invitees. The evidence did not show Indiana Bell had any actual knowledge of the dangerous condition, meaning that the trial court properly entered judgment on the evidence in favor of Indiana Bell.

Case of the Day, Monday, December 22, 2014

MERRY F#@*&$% CHRISTMAS!

In our news columns today, we report on a guy in Pennsylvania, Bill Ansell, who treats his neighbors to the Christmas display from hell all year around.  It reminded us of Mrs. Dahlquist, the proud mother, and her exemplary son, Jeff Zube.  Ansell’s holiday decorations are described by some as “anti-holiday.”   Urinating Santa?  Decapitated choirboys?  A Mickey Mouse hanging by his neck until dead?  This isn’t “anti-holiday” – this is sick stuff.

Is Bill looking for a soulmate?  Let us reintroduce Mrs. Dahlquist and her evil spawn, Jeff Zube.  Mrs. D and her boy lived in pretty close proximity to several neighbors, including the Careys. The constant obscenities, threats, spitting from balconies onto the neighbors, rotten eggs and lit cigarette butts got a little wearing on the Careys.  They finally sought an anti-harrassment order under a California statute — Section 527.6 of the Code of Civil Procedure — to get Ma Dahlquist’s gang of two to stop.

Common law provides no remedy to restrain a neighbor who unfortunately has a sewer for a mouth and a tar pit for a soul. Statutes like the California’s CCP §527.6 are not all that common, but they are becoming more and more so.

The lesson in today’s case is that if you’re going to be nasty to a neighbor, be sweet to the other ones. If you’re a jerk to everyone, expect some piling on. Not surprisingly, that happened here: complainants came out of the woodwork, and neighbors were more than happy to cite the constant bird-flipping, the obscene insults and the general squalor that surrounded Ms. Dahlquist and her bouncing boy.

Dahlquist and Zube of course denied everything. Movie fans will remember the memorable Blues Brothers scene with Jake Blue (John Belishi) telling a gun-totin’ Mystery Woman (Carrie Fisher) that “it wasn’t my fault!” In the face of rather detailed, graphic even, descriptions of the Dahlquist/Zube misconduct by the neighborhood, the trial court didn’t believe a word of it.

They appealed. Appellate courts expect that, winner or loser, a party will give the court a reasonably complete and balanced assessment of the record below. Not Dahlquist and Zube. If the fact didn’t fit with their world-view, why, they just left it out. That didn’t leave much in the record. The Court of Appeals held that the record below amply made out a pattern of harassment that was such that would cause a reasonable person to suffer substantial emotional distress. It certainly did for the Careys, and the Court found that under the circumstances, a three-year order was fully justified.

Carey v. Dahlquist, Not Reported in Cal.Rptr.3d, 2007 WL 4555793 (Cal.App. 1 Dist.) Dahlquist and Carey live next door to each other in Sausalito, California. Dahlquisht’s 19 year old son, Zube, lives with her. Carey filed a Section 527.6 petition alleging that, among other things, her neighbor Dahlquist screamed obscenities at her and used “constant foul language, verbal comments (‘this is war’) and written threats.” Dahlquist had also “ordered tree people onto my property and cut down (removed two 30 ft high trees).” Carey requested an order that Dahlquist stay away from her, and that “she not be able to come out on her deck and scream obsenities [sic] at me or my husband as I go up and down my stairs.” In addition, Carey asked the court to order that Dahlquist “not hire workmen to come onto my property and destroy my property” and that she “pay for the survey and replace the trees she removed.”

The same day, Carey filed an application for a temporary restraining order against young Zube, alleging that in a two-page list of “confrontations” with Zube, that he had thrown eggs from his balcony, shouted obscenities at her husband as he came up the stairs, threw poppers onto the stairs while Carey and her husband were walking up the stairs, made “exceptional noise” from Zube’s stereo, and that on multiple occasions when lighted cigarette butts were found on the wooden stairs at Carey’s house. Neighbors provided affidavits complaining of similar acts.

The record also contained a declaration from Jeff Zube’s father claiming that Carey was a chronic complainer, and anyway, young Zube would be leaving soon for Santa Barbara to attend college. Nevertheless, the trial court granted the petition as to both Zube and Dahlquist, holding Zube had “an out-of-control and extremely disrespectful side of you and I’ve seen it in court, and I’ve heard it from the testimony.” The court found that Carey and her witnesses were credible and that the testimony of Dahlquist and Zube was not. It issued a 3-year restraining order, and Dahlquist and Zube appealed.

Held: The order was upheld. Section 527.6 provides that a person who has suffered harassment as defined in the statute may seek an injunction prohibiting harassment as provided in this section. “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff. A “course of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail.

The Court decided that Carey had provided clear and convincing evidence of a knowing and willful course of conduct by Dahlquist. She described confrontations with Dahlquist in which Dahlquist threatened legal action against her and shouted obscenities at her husband as he came up the stairs. Carey found Dahlquist’s behavior threatening. Carey’s neighbor testified that he, too, had been on the receiving end of threatening and harassing behavior from Dahlquist, including her falsely accusing his wife of leaving an obscene message on her voice mail. The Court held that the trial judge had found substantial evidence on which the base the issuance of a permanent injunction.

As for Zube, the evidence established that he had thrown lighted cigarettes on the wooden stairs leading to Carey’s home, that he had spit on the deck, and had thrown poppers on the stairs while Carey was walking up them and also shouted obscenities at Carey. Neighbors confirmed that this sort of behavior had been directed at them as well. Substantial evidence, therefore, supports the trial court’s issuance of the permanent injunction. The continuing course of harassing conduct by Zube and Dahlquist left both Carey and her husband fearful and distressed. This showing was sufficient to indicate a reasonable probability that the course of conduct would continue into the future. It didn’t matter that Zube was leaving for college. The trial court found his other testimony lacked credibility, and the Court of Appeals said it was entitled to disregard his representation that he was leaving.

Even if he did, like bad penny, he’d probably return.

Case of the Day, Tuesday, December 23, 2014

OOPSIE!

Anyone can make a mistake.  Or two.  Consider today’s case on mutual mistake. It all started with a barren cow with a fancy name, Rose 2nd of Aberlour (popularly mislabeled as “Aberlone”), in the case of Sherwood v. Walker, the classic case on mutual mistake in contract law. And the doctrine’s alive and well.

In this Ohio decision, Mr. Thomas entered into an easement with Ohio Power to let the company string lines across his place to service his neighbor’s new house. But it turned out the house was in another power company’s service area, something no one figured out until after Ohio Power had sliced up Mr. Thomas’s trees. Thomas sued Ohio Power to rescind the easement and for damages, claiming mutual mistake. The trial court disagreed, but the Court of Appeals threw out the easement.

The Court’s most important point was this: maybe Thomas and his neighbor Baker didn’t know where the electric service boundary lay. But after all, they weren’t in the power binness. Why should they know? Ohio Power, on the other hand, was just plain sloppy in not recognizing the problem. In Court-speak, “the equities of this situation show that Ohio Power, as the company in the business of providing electric power, was in a much better position than the Thomases to discover the mistake.”

In order to provide grounds to rescind (undo) a contract, the mistake must be mutual. The Battle of New Orleans was a mutual mistake – Andy Jackson thought we were at war with the British, and British Admiral Thomas Cochrane thought they were still at war with the U.S.   Meanwhile, on the mythical planet of Tatooine, it appears that the mistake was not mutual – Obi-wan Kenobi was fully aware that the droids he was with were the ones the storm troopers sought, but he led the storm troopers to believe otherwise.  Not a mutual mistake at all.

Thomas v. Ohio Power Co., Slip Copy, 2007 WL 2892029, 2007 -Ohio- 5350 (Ct.App. Ohio, Sept. 27, 2007). The Thomases owned 159 acres of property in Augusta Township. Right next door was land owned by Brent Baker. The Thomas property is within the geographical area served by Ohio Power Company, but the Baker property is served by Carroll Rural Electric Power. Neither of the power companies may provide power to the area assigned to the other without the consent of both companies and the affected customer.

Baker asked Thomas for permission for Ohio Power to take an easement across the Thomas property to bring power to a house Baker planned to build. Thomas agreed. As a result, an easement was executed, and Ohio Power — in reliance on the easement — cut and cleared many trees on the Thomas property and along the neighboring road. But then Baker found out the house wasn’t in the Ohio Power service area, and the other power company wouldn’t permit Ohio Power to provide service to him, frustrating the purpose for the easement. The Thomases sued Ohio Power, seeking rescission of the easement contract and damages. The trial court concluded that the easement was valid and, therefore, not subject to rescission.

The Thomases appealed.

Held: The parties had made a mutual mistake, and the contract should be rescinded. Mutual mistake is grounds for rescission of a contract if there is a mistake made by both parties as to a material part of the contract, and where the party complaining is not negligent in failing to discover the mistake. A mistake is material to a contract when it is “a mistake … as to a basic assumption on which the contract was made [that] has a material effect on the agreed exchange of performances.” Thus, the intention of the parties must have been frustrated by the mutual mistake.”

In order to claim mutual mistake as a basis for rescinding a contract, a complaint must allege (1) the existence of a contract; (2) a material mutual mistake by the parties when entering into the contract; and (3) no negligence in discovering the mistake on the complainant’s behalf. Here, the Court said, the purpose of the easement was to provide electric power to the Thomases’ neighbor. Both the Thomases and Ohio Power believed Ohio Power could provide electric power to that neighbor, but they were both mistaken about that fact. Ohio Power was in a better position to know that this belief was mistaken than the Thomases, and thus, the Court held, the contract should have been rescinded at the Thomases’ request.

Case of the Day, Wednesday, December 24, 2014

We’re out until Monday, December 29th, watching the early bowl games.  See you then!

 

No heavy lifting right now (unless we’re talking really big presents, maybe a new chainsaw or something). We’re taking the Christmas weekend off – time to start to work on the chestnut stuffing, then eat it, then regret our over indulgence for the next few days.  However, we’ll be back on Monday, December 29th with a report on a recent U.S. Court of Appeals for the Sixth Circuit decision addressing the application of the National Environmental Policy Act to tree trimming on electrical utilities’ rights-of-way (see And Now the News for a video report from WBIR-TV, Knoxville).

For now, we have an arboriculture law present for you from us.

We’re kidding, you say? Of course not. Here’s a little literary gem, a simple case in which the landowner sued a driver who careered off the road into a beloved oak tree. The tree was badly damaged, the owner said, and would need special care for the remainder of its days. The driver defended on jurisdictional grounds, arguing that Michigan’s “no fault” insurance law meant that the court could not assess property damages against him for the mishap.

The Court denied the landowner’s case, but it did so in verse:

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.

Doggerel?   We don’t think so.  Perhaps “poetic justice” instead.   Whatever it might be, it makes for more interesting reading, and no doubt amused everyone except the plaintiff, who was left uncompensated for the damage to the oak tree.

May your trees remain healthy, happy, properly trimmed by a professional arborist, and clear of easements, rights-of-way, neighbors and passers-by for this season and all of 2015.  

Merry Christmas to all!

 

Fisher v. Lowe, 333 N.W.2d 67, 122 Mich.App. 418 (Ct.App. Mich., 1983).

The facts:

“A wayward Chevy struck a tree,
Whose owner sued defendants three.
He sued car’s owner, driver too,
And insurer for what was due
For his oak tree that now may bear
A lasting need for tender care.
The Oakland County Circuit Court,
John N. O’Brien, J., set forth
The judgment that defendants sought
And quickly an appeal was brought.”

Held:

“Court of Appeals, J.H. Gillis, J.,
Gave thought and then had this to say:
(1) There is no liability
Since No-Fault grants immunity;
2) No jurisdiction can be found
Where process service is unsound;
And thus the judgment, as it’s termed,
Is due to be, and is,
Affirmed.”

 

 

Case of the Day, Monday, December 29, 2014

GIVE ‘EM AN INCH, THEY’LL TAKE A MILE

Seems like it was only 80 years ago or so when Grandpaw emerged from his outhouse one day to find a couple of duded up- flatlanders standing on his little piece of Tennessee hillside. They had some kind of deed full of fancy writin’, and they told him if he signed it, they’d string some wires on poles across the place, and he’d have electric lights just like the big city folks.

That sounded like a pretty good deal to Grandmaw, who was good and tired of hand pumping wellwater, cooking on a stove and buying ice whenever the iceman decided to cometh. She made Grandpaw put his ‘x’ on the dotted line.

The flatlanders were as good as their word. They ran some wooden poles and a couple of wires over the homestead, and pretty soon, Grandmaw had her Frigidaire and electric stove, Grandpaw had an electric light in the privy, and life was grand. The flatlanders from the Tennessee Valley Authority sold Gramp power at dirt cheap rates, and only appeared once every couple years or so and trimmed back a few trees under the wires.

Some time in the 1960s, crews came in and replaced the poles with gigantic steel trussed transmission towers on concrete pads. They cut a bigger swath of timber, removing trees under the towers and a few feet to either side. Grandpa and Grandma were pretty unhappy about it, but they were quite old and didn’t know what to do. You checked things with a lawyer, who told you that TVA had an easement from your grandparents, and was within its rights.

Time marched on, your grandparents went to their reward, and your inherited the old place. You tore down the rambling farmhouse and replaced it with a beautiful log home, a rustic but modern weekend getaway. You like sitting on the porch and looking out over the hills and woods. Every so often, a TVA tree trimming crew would stop by, and trim back a few trees near the power lines. You assured them that they didn’t have to worry about the mature trees beyond about 25 feet, because you’d look after them yourself.

Then, about 500 miles north northeast of your idyllic retreat, an overtaxed transmission line sagged in the August Ohio heat, and arced to a nearby tree. The cascading errors and failures that followed plunged the northeastern United States into darkness that lasted in some places for several days.

In the wake of the blackout, the in 2007, the North American Electric Reliability Corporation (NERC), a government-certified industry organization that sets reliability standards for the transmission of electricity, established tougher rules for vegetation management around electric transmission lines. Electric utilities faced hefty fines if they did not vigorously maintain their rights-of-way under transmission lines. In 2012, you got a letter advising you, among other things, that TVA would no longer allow taller, incompatible trees within its rights-of-way, even if landowners say they will control tree height, and that it would be removing, sometimes extensively, incompatible species from its rights-of-way. Any tree that could grow more than 15 feet high at maturity would go.

When you find out that the new vegetation management policy will result in TVA cutting down more than 200 trees, you take action.

That’s what Donna Sherwood and a host of neighbors did, suing TVA in U.S. District Court. They argued that TVA had improperly classified the so-called 15-foot rule as routine maintenance which was exempt from the National Environmental Policy Act. In fact, Ms. Sherwood contended, the new 15-foot rule would essentially denude 260,000 acres, a square of land over 20 miles to a side. Besides, Ms. Sherwood argued, TVA didn’t have the right to remove trees in its right of-way that did not interfere with or endanger the transmission lines.

The District Court threw out the case, holding that TVA had complied with the NEPA and that the easements clearly encompassed removal of timber. The plaintiffs asked the court to submit the easement interpretation issue to the Tennessee Supreme Court, a procedure known as certifying a question. The District Court ruled that it didn’t need to certify the question, because state law was well settled. The easements pretty clearly gave TVA the right to clear trees from its rights-of-way.

The Court of Appeals reversed the District Court, but the decision didn’t give the neighbors much comfort. The appellate court held that record did not show that TVA had complied with NEPA, so the case was sent back to the District Court to compile the record. But on the crucial issue, the Court held that crucial Federal interests, as well as Tennessee law, supported a reading of the old easement Grandpaw created to encompass the 15-foot rule, and clear-cutting a swath as wide as the limits of the easement (in some cases, 200 feet).

The likelihood that NEPA would stop TVA is about as likely as your electric bill falling by 50%. That being the case, Ms. Sherwood is undoubtedly scratching her head with gleeful puzzlement that TVA announced last week that it would abandon the 15-foot rule without further litigation.

The neighbors won … but the matter wasn’t settled in court. That means that come the next blackout, the chainsaws could be unleashed again.

Sherwood v. Tennessee Valley Authority, Case No. 13-6004 (6th Cir., Oct. 28, 2014). The Tennessee Valley Authority (TVA) provides electric power to consumers in seven states across the Southeast.  In order to reliably deliver that power, TVA maintains the vegetation under and around its power line structures. Historically, TVA has removed all trees directly under its power lines, but did not cut down all of the trees in what TVA called buffer or border zones, the edges of the easements TVA possesses.

Over the years, TVA acquired easements that are typically between 75 and 200 feet wide. Built within those easements are approximately 15,900 miles of power transmission lines. Those easements permit the TVA “the perpetual right to enter” and “to erect, maintain, repair, rebuild, operate, and patrol” electric power transmission lines and all necessary appurtenances. As well, the TVA is granted the “right to clear said right-of-way” and keep the right-of-way clear, including brush and trees. TVA has established a vegetation-management program for its easements. TVA maintains the easements by keeping the area beneath the transmission lines clear, while leaving a narrow buffer zone on either side of the easement. The sectors are on five-year cycles for tree removal and three-year cycles for mowing or spraying the undergrowth.

Although the TVA has been maintaining the vegetation in its easements for more than seventy years, it has not removed all of the taller, mature trees located within its rights-of-way. Its right-of-way specialists have been afforded discretion in deciding which, if any, trees to remove. Budget constraints have further restricted the discretion afforded the specialists. As a result, many tall trees remain standing within TVA’s easements. TVA has also made exceptions when landowners have promised to control the height of the trees.

After the August 2003 Northeast U.S. blackout, the wisdom of allowing these taller trees to grow within electric transmission line easements was called into question. In 2007, NERC established rules for vegetation management around electric transmission lines.

TVA altered its vegetation-management practices in order to comply with the new NERC rules and to avoid paying fines and penalties. TVA may allow low-growing species (less than 15 feet at mature height) to be planted in the within the right-of-way, but not directly under transmission lines, but express TVA approval would be required in each case. It would no longer allows taller, incompatible (species that exceed 15 feet mature height) trees within its rights-of-way when requested, even if landowners promise to control tree height. TVA would remove all incompatible species from its rights-of-way.

A TVA spokesman said TVA would have a “zero tolerance policy,” explaining that “we’re going to remove trees that can grow 15 feet or more. We’re also going to clear the full width of the easement.”

Donna Sherwood and her neighbors sued, arguing that TVA’s new policy would result in the removal of millions of taller, older, mature trees from TVA’s rights-of-way. They argued that TVA had failed to conduct the required NEPA studies before implementing this new rule. The plaintiffs have submitted evidence showing that TVA identified more than 200 trees for removal from plaintiffs’ properties. The plaintiffs submitted evidence of the environmental consequences of removing tall, mature trees from the easements.

The district court granted TVA’s motion to dismiss the plaintiffs’ claim that TVA had exceeded the scope of the easements, denying the plaintiffs’ motion to certify a question to the Tennessee Supreme Court. After reviewing the record, the district court held that TVA had not established a new policy, and was acting consistent with the maintenance policy that had been in place for the past fifteen years. Finally, the district court held that TVA’s 2012 vegetation-maintenance policy was not arbitrary or capricious.

The plaintiffs appealed.

Held:   The plaintiffs’ request that the District Court certify a question of state property law to the Tennessee Supreme Court was rejected. However, the record showed that TVA had not adequately considered the environmental consequences of its new 15-foot policy, so the case had to be sent back to the District Court.

As for the NEPA claim, the Court of Appeals held that the administrative record submitted by TVA did not consider the environmental consequences of the 15-foot rule. The Court held that the plaintiffs were alleging that TVA’s alteration of its vegetation-maintenance practice – the removal of all trees over 15 feet, as well as those trees that will grow to a height over fifteen feet – constituted a major federal action under NEPA. The TVA must compile an administrative record for the decision it made that is being challenged by the plaintiffs, in order for the court to evaluate the decision’s propriety under NEPA.

As for the scope of the easements, the Court of Appeals agreed with the District Court that “[b]ecause federal interests are sufficiently high in this matter, the easements are governed by federal law, not state law.” When the United States is a party to a lawsuit, and the underlying activities arise from a federal program, the federal interests implicated may warrant the protection of federal law.

The Court also agreed that the unambiguous language in the easements gave TVA the perpetual right to remove trees. Although state law was not determinative when applied to a Federal easement, the Court said, under Tennessee law the scope of an easement created by a grant is determined by the language of the grant. Here, the easements involved here unambiguously give the United States three rights: (1) the right to enter and to construct electric transmission line structures, (2) the right to clear the easements of brush, trees, and timber, and (3) the right to remove danger trees from the surrounding land. In describing the rights granted, the easements use the plural “purposes,” not the singular “purpose.”

The Court said that nothing in the language of the easements, explicitly or implicitly, limited TVA’s right to clear trees from the right of-way.

Thus, although the NEPA issue remained to be litigated on remand, the easements were broad enough to clear-cut the full width of the easements, regardless of prior practices or the landowners’ opinions as to what was necessary to protect the transmission lines.

Case of the Day, Tuesday, December 30, 2014

LIS BLUDGEONS

If you’re suing a neighbor because you claim title to a piece of her property, the last thing you want to see happen is for her to sell it to the Sisters of the Poor before your lawsuit is completed. The neighbor makes off with the money from selling your property, and when you finally win, you have the PR problem of the bailiff dragging a gaggle of nuns off your land while TV crews report your heartlessness live on CNN.

It was for precisely this reason — well, maybe not precisely this reason — that the law has a mechanism known as lis pendens. A lis pendens — literally, “lawsuit pending” – is a notice filed with the office of the county responsible for deeds (often the county recorder) that puts the world on notice that litigation is going on that relates to ownership of the piece of land at issue. Practically speaking, the filing will send prospective buyers and lenders fleeing for the next county.

The purpose of lis pendens is laudable: it keeps wily defendants from transferring interests in land subject to a lawsuit, so a plaintiff doesn’t have to endlessly sue new buyers and lessees in ordercollect on a judgment. But like with any reasonable and necessary mechanism, there are those who — as the legendary trickster Dick Tuck would have said — who want to run it into the ground.

In today’s case, the plaintiff sued the defendant over a large tree on the boundary between their properties, alleging that it had been negligently trimmed to lean onto their property, that it constituted a “spite fence,” and that its size and location constituted a nuisance. Of interest to us was the last allegation, that in a prior lawsuit between the parties, the defendant’s lawyer had filed a lis pendens on plaintiff’s lot that caused a sale to fall through. The plaintiffs said that the lis pendens — which a court had later thrown out — constituted a tort known as “slander of title.” This was so because the underlying litigation had nothing to do with whether the defendant claimed title or the right to possess the plaintiff’s property. Defendant’s lawyer filed it simply as a club with which to bludgeon the plaintiffs, as part of a take-no-prisoners litigation strategy.

The defendant’s lawyer argued the slander of title had to be dismissed, because as counsel for the other side, he owed no duty to the plaintiffs. The California court conceded that he didn’t, but said that was irrelevant: slander of title is an intentional tort (like a judge hauling off and slugging a public defender). Unfortunately, the Court said, the plaintiffs’ pleading wasn’t very well written, and the Court couldn’t be sure that they had alleged malice. The more prudent course, the Court thought, was to offer them a chance to amend their complaint to make clear that they were alleging the defendant’s attorney had acted maliciously.

Castelanellis v. Becker, Not Reported in Cal.Rptr.3d, 2008 WL 101729 (Cal.App, Jan. 10, 2008). The The Castelanellis owned real estate in Humboldt County. They sued the owner of the neighboring home, Kristine Mooney, and her lawyer Thomas Becker, alleging that on the border between their unimproved lot and Mooney’s property, “a large tree” curves from the bottom portion of its trunk toward the Castelanellis’ property and takes up so much space that “the subject property cannot reasonably be developed as a residential property.” They also claimed that Mooney’s house tree blocked light to the tree and caused the tree to grow almost exclusively over their property, and that Mooney had trimmed or negligently maintained the tree to contribute to its “odd and unusual angle.”

The complaint maintained that the tree constituted a spite fence within the meaning of California law, and was “maliciously maintained for the purpose of annoying the plaintiffs and in an attempt to gain ownership of plaintiffs’ land at less than fair value.” The complaint alleged nuisance, trespass, tortious interference with contractual relations, and tortious interference with economic relations. The Castelanellis alleged that Mooney sought to “purchase plaintiffs’ property at below fair market value” and had “threatened legal action if plaintiffs trimmed the subject tree in order to make their property capable of being developed and sold.” Finally, they alleged that Mooney and Becker published “false statements” in a lis pendens filed as to the Castelanellis’ property, and this lis pendens — later thrown out by another court — had prevented the Castelanellis from selling the property. The trial court agreed that because Mooney and Becker owed the Castelanellis no duty, there could be no slander.

The Castelanellis appealed.

Held: The Castelanellis had made out an adequate cause of action against Attorney Becker. A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged, called a lis pendens. Such a notice places a cloud on the title, and effectively keeps any willing buyer from wanting to close on a transaction until the lis pendens is cleared. In order to be privileged, so that no party may later sue a party or its attorney for filing such a notice, a notice of lis pendens must both (1) identify a specific action “previously filed” with a superior court and (2) show that the previously-filed action affects “the title or right of possession of real property.

In this case, the notice of lis pendens clearly identified that it was signed and filed in conjunction with litigation involving a tree growing upon a shared property line. But nothing in the record enabled the Court to determine that litigation involved the “right of possession” of either of the two properties involved in that litigation. If it did, a litigation privilege clearly applied, and the action against Attorney Becker could not stand.

Becker argued that he had no duty to the Castelanellis, and he could therefore not be sued by them. The Court pointed out that this would be true if the action were based on negligence. However, the action was an intentional tort, like the tort of malicious prosecution, and there need not be a duty of care owed to the victim by the perpetrator before an intentional tort can be inflicted. The Court said that while an attorney cannot be liable in negligence to a formerly adverse party, that rule does not exempt the attorney from liability for malicious prosecution.

The tort of slander of title does not rise to the level of either malicious prosecution or abuse of process. The elements of the tort have traditionally been held to be publication, falsity, absence of privilege, and disparagement of another’s land which is relied upon by a third party and results in a pecuniary loss. Slander of title does not include express malice as an intrinsic factor. Here, while the Castelanellis did not specifically plead malicious prosecution in their amended complaint, that complaint does include allegations that the actions “were done knowingly, willfully, and with malicious intent.” The allegations seemed to the Court sufficient to inject into the slander of title cause of action an allegation of malice, even as to attorney Becker.

In any event, the Court said, the law is clear that, in evaluating a complaint against a general demurrer, it is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action is alleged, the complaint is good against a general demurrer.

The Court held that the absence of any suggestion in the Castelanellis’ opposition to Becker’s demurrer that they either wished to amend or intended to plead some sort of intentional tort via their fifth cause of action left the Court reluctant to rule that the trial court abused its discretion by sustaining the demurrer without leave to amend. Under all the circumstances, the Court thought the better course of action was to remand this matter to the trial court with instructions to consider whether any intentional tort — as distinguished from a claim of negligence — was in fact pled by the Castelanellis and (2) if not, whether the Castelanellis wish to and can plead a valid intentional tort cause of action against Becker regarding the allegedly improper lis pendens.

Case of the Day, Wednesday, December 31, 2014

FINDERS KEEPERS

 

Sometimes, life imitates art. That’s the case for Treeandneighborlaw.com as we end 2014. As our readers are aware, we published a great new book, Contract Basics for Arborists, last August. It’s an awe-inspiring tome, if we say so ourselves, dispensing sage advice on contract documents for arborists and providing a sample form on CD that is adaptable to the businesses of arboriculture professionals.

When we conducted a forum for Arizona arborists in September, we shipped a box of the books to Phoenix. What a mistake we made! We sent the books through the U.S. Postal Service, which promptly ran the books over with a bulldozer in its fragile package department. Or something like that. Whatever happened, the books didn’t arrive. We complained, we e-mailed, we cajoled, we pleaded. The indifferent Postal Service employees told us that the box had been damaged, and that it had been sent to a Postal Service “Mail Recovery Center,” whatever that might be.  Some recovery.  We recovered the labels that had been attached to the box, but getting our books back – which had our name and address in each volume, after all – seemed to elude our best efforts.

You can imagine our surprise when, a few days ago, we discovered a number of copies of our new book for sale on Amazon, all indicated as “used” in varying conditions. We contacted the seller’s company, where a very forthright and pleasant clerk told us that they had multiple copies of the book in stock. We wondered how that could be, inasmuch as we controlled virtually all of the copies except for those lost by the Post Office. “Well, that’s where we got them!” the friendly bookseller explained. “We bid on Postal Service auctions, and buy any used books by the carton load. At the last auction, we got a lot of ’em!”

We asked each other, “Can they do that?” Good question. And who better to answer it than ourselves?  Can we successfully tell the bookseller that the books are ours, and that they have to be sent back?  Or does the used book store now own them fair and square?  You might be surprised to find out that we’re located in Ohio, and it just so happens that we’ve looked at an Ohio case on lost property before.

The case related to “treasure troves,” those little bundles of cash, jewelry, art or old Hostess products that people occasionally stumble over. Or maybe even 100 copies of our book, which we consider to be TBDBITL (“the best damn book in the land,” of course).

It turns out that the answer depends on whether the property is lost, abandoned, stolen or mislaid. If it’s lost or abandoned, it turns out, that bratty neighbor kid you used to play with was right: finders keepers. Unless … and this is the big unless … the owner steps up to claim it.

In today’s case, a very lucky cop found thousands of gold and silver coins scattered on a city street at 4 a.m. He picked them up, and then, being a dutiful cop, turned them in. Here, the owner never stepped forward — and we bet there’s a story in that — so after about a year, the police officer sued for ownership.

The City opposed him, arguing that the money was located on its street and the policeman was on its time clock when he found them. None of that mattered, the Court said. All that counted was that the lost or abandoned property was found by Officer Baker, who thus had ownership rights superior to anyone other than the rightful owner.

The police officer prevailed.  But the owner of the coins – who might have had a hard time proving ownership – never came forward. In our case, by contrast, proving ownership is pretty easy: our name’s all over the property.

So it turns out that the used bookseller may have our books, but it doesn’t have good title.  The books continue to belong to us.  To paraphrase President Ronald Reagan, “Mr. Bookseller, send back those books.”  And if the bookseller wants the money back it paid the Postal Service, well … good luck getting anything back from the Post Office.

Baker v. City of West Carrollton, Case No. 9904 (Ct.App. Montgomery Co., August 7, 1986) (unpublished), 1986 WL 8615. Police officer Charles Baker found a large number of gold and silver coins scattered on a West Carrollton public street. After reporting the find, he and city employees picked up 6,871 gold and silver coins and placed them in the police property room. When no one stepped forward to claim them, Baker sued to establish his right to the money. The City counterclaimed, arguing that the money was found on its street, and Baker was its employee, so the money belonged to it. The trial court agreed, and awarded the money to the City. Baker appealed.

Held: The money belonged to Baker, not the City. The money was considered to be “lost” or “abandoned” property. Under Ohio common law, a finder who takes possession of “abandoned property” acquires absolute title. A finder of a lost article, although he does not by such finding acquire an absolute property or ownership, has a prior claim thereto as against everyone except the actual owner. The rule is practically absolute and is not affected by special circumstances of the character of the thing found, the place of finding, or the relation of the finder to the third person, even where the finder is the employee of the owner of the premises.

At common law a finder who takes possession of lost property has a duty to protect the property; to seek the true owner, and to return the property to the true owner on demand. The state had no right to found property as against the finder. Although Ohio law governs disposition of lost or abandoned property by police departments, the law requires the property to be turned over to persons with a right of possession, and Ohio courts have held that a finder of lost property which is unclaimed by the true owner is a person “entitled to possession of property” under that law. Officer Baker was such a person.

West Carrollton argued that since Baker is a police officer he should not receive a reward for performing his duty. The Court agreed that rewards for police officers’ performance of their duties aren’t appropriate, but it said that the City’s award analogy was strained. It held that Baker’s primary duty was to the true owner of the coins, and he got no reward for that.

Incidentally, the Ohio Supreme Court upheld the decision.