Cases from January 2016

Case of the Day for Monday, January 4, 2016


fees160104Let nothing come between a lawyer and his fee.

You might be cynical, and see 2016’s first reported case (just handed down by the Virginia Supreme Court last Wednesday) as nothing more than a lawyer worried about collecting a large and unwarranted fee. But the case is much more than that.

The facts are rather prosaic. Some landowners failed to carefully mark the common boundary with their neighbor before setting a timber company loose on the property. Sure enough, the cutters harvested some of the neighbor’s trees. That much wasn’t an issue.

When Valarie Garvey sued the Chaceys for timber tress, property damage and a collection of related causes of action, the Chaceys hired some aggressive litigators. Their lawyers knew that the best trial defense often is a good pretrial offense. They fought tooth-and-nail before trial, gaining their best tactical high ground when Valerie’s lawyer inexplicably didn’t identify the plaintiff’s timber expert by the pretrial deadlines.

The expert was crucial, because he was going to testify as to the value of the timber that had been wrongfully cut. But once the expert established the value of the missing trees, Section 55-332 of the Virginia Code would let Valerie Garvey collect three times the value of the wrongly-cut timber, plus reforestation costs, plus other damages to the property (such as the private road the timber harvesters ripped up) plus “legal costs directly related to the trespass.” In short, it looked like a big payday for Valerie Garvey. She just had to do one thing. She had to prove the value of the stolen timber.

Alas, she screwed it up. Perhaps it would be more appropriate to say her lawyer screwed it up. Without the expert, Valerie had no way to get the value of the timber into evidence. When the jury decided the case, it was able to award her the princely sum of $15,135.00 (only a fraction of the reforestation costs she estimated to be $ 78,000.)

expert160104Valerie’s lawyer, trying to save a case that was going south pretty fast, successfully convinced the trial court that the “directly associated legal costs incurred by the owner of the timber as a result of the trespass” included attorneys’ fees. Valerie claimed she had spent over $135,000 in legal fees, and the trial court awarded even more than that – $165,000 – in fees.

We doubt that Valerie’s lawyer was going to get all of that. In fact, Val had every right to be as mad as a wet hen over counsel’s missing the expert witness deadline. We suspect that the lawyer and client had made a deal to salvage something out of the case, and counsel would had ended up with little more than cabfare (but no malpractice claims). Unfortunately, we’ll never know, because on appeal, the Chaceys convinced the Virginia Supreme Court that whatever “directly associated legal costs” might be, they are not “attorneys fees.” The Supreme Court was impressed that wherever the legislature intended to authorize the award of attorneys fees – in over 200 statutes in the Code – it was able to clearly say so.

The Chaceys – not satisfied with hitting a triple – swung for the fence. They asked the Supreme Court to rule that where a plaintiff claiming timber trespass did not prove the value of the missing timber, the case should be thrown out. The Supreme Court disagreed. Proving a timber trespass does not require that one prove the value of the purloined pines. Of course, not doing so cuts the plaintiff out of a lot of damages, but the offense does not depend on proven damages. It just requires that a trespass to timber occur, whether the tree is worth anything or not.

As for Valerie’s attorney, we suspect he’s on the phone right now, calling his malpractice carrier.

reforest160104Chacey v. Garvey, Case No. 150005 (Supreme Court of Virginia, December 30, 2015). In 1995, Valerie Garvey bought 50 acres of land from Allan and Susan Chacey. The Chaceys retained ownership of adjacent property, and they reserved to themselves an easement over Garvey’s property as a means for ingress and egress to their property.

At the end of 2012, Garvey sued the Chaceys and Blue Ridge Forestry Consultants, Inc., alleging timber theft and trespass. Garvey said the Chaceys had hired a logging company a few years previously to remove some timber located on their property, and that the company had trespassed on her property and removed timber without her permission. She alleged that she was entitled to damages for timber theft at three times the value of the timber on the stump, as well as reforestation costs not to exceed $450 an acre, the costs of ascertaining the value of the timber, and her attorney’s fees. She also asked for $30,000 for damages to her property caused by the trespass, including damage to the road, fencing, and the stone bridge.

Prior to trial, Garvey attempted to designate an expert witness for the purpose of establishing the monetary value of the timber on the stump at issue in the complaint. However, she did so too late, and trial court refused to let her expert testify during the three-day jury trial.

While she was testifying at trial, Garvey was asked by her attorney whether she had incurred legal costs in connection with the trespass. The Chaceys objected, but the trial court ruled that legal costs included attorney’s fees. Garvey told the jury that she had incurred more than $135,000 in legal costs, including attorney’s fees, which she claimed were all directly associated with the trespass. She also testified that she had negotiated with Bartlett Tree Services for the restoration of the trees, and she had paid a deposit of $440 towards that work, against a total price of $78,000.

The trial court ruled that Garvey could not recover treble damages since her expert evidence regarding the value of the timber on the stump had been excluded. However, the case could still go to the jury for consideration of damages for reforestation and legal costs.

The Chaceys argued that attorneys’ fees are not recoverable by a prevailing party in an action for timber theft pursuant to the Virginia Code § 55-331. They also contended that Garvey’s timber trespass claim should not have been submitted to the jury, because she had failed to provide any evidence related to the value of the alleged damaged timber. However, the jury found for Garvey on her claims of timber theft, trespass, and property damage. On the timber theft claim, the jury awarded Garvey $135.00 in reforestation costs. The jury also awarded her legal costs. On the trespass count, the jury awarded Garvey $15,000 in damages. The trial court held that Garvey was entitled to $165,135 in “directly associated legal costs incurred by Plaintiff as a result of the trespass, including attorney’s fees, in the amount of $150,000 …”

The Chaceys appealed.

needlawyer160104Held: The Virginia Supreme Court split the ticket. It observed that although Virginia Code § 55-331 permits any victim of timber trespass to collect “directly associated legal costs incurred by the owner of the timber as a result of the trespass,” whether Garvey was entitled to attorney’s fees depends upon the meaning of “costs.” Garvey argued that her attorney’s fees are legal costs directly associated with the trespass. The Chaceys argued that Garvey is merely entitled to the costs necessary for the prosecution of her suit.

Tracing the definition of “costs” in other proceedings, the Court held that “the term ‘costs’ is limited to the costs necessary for the prosecution of a suit, and does not include attorney’s fees. The Code of Virginia contains more than 200 instances where the General Assembly has determined a successful litigant is entitled to ‘attorney’s fees and costs’ or ‘costs and attorney’s fees’ … However, the General Assembly did not include the right to recover attorney’s fees in this statute, something it has done in more than 200 other separate instances.”

The Court disagreed with the Chaceys, however, about the timber trespass claim. The Chaceys, no doubt wanting to capitalize on their pretrial success in keeping Garvey’s expert off the stand, argued that the trial court erred in permitting Garvey’s timber trespass claim to proceed to the jury because Garvey failed to provide any evidence related to the value of the alleged damaged timber. Essentially, the Chaceys were contending that evidence related to the value of the damaged timber is a prerequisite to awarding any of the additional damages provided for under Code § 55-332(B).

Virginia Code § 55-332(B) holds that any person who removes timber from the land of another without permission is liable to the rightful owner for “three times the value of the timber on the stump and shall pay to the rightful owner of the property the reforestation costs incurred not to exceed $450 per acre, the costs of ascertaining the value of the timber, and any directly associated legal costs incurred by the owner of the timber as a result of the trespass.” The Court held that there was nothing in the statute that stated that an owner is only entitled to reforestation costs, legal costs, or the costs of ascertaining the value of the timber after he or she had first established the value of the timber that was improperly taken. Instead, the Court said, the statute made clear that the person who removed the timber “shall be liable to pay” all of these damages to the owner. The fact that Garvey was unable to prove the value of the timber on the stump in this case did not preclude her from being able to recover the other damages she was entitled to under Code § 55-332(B).


Case of the Day for Tuesday, January 5, 2016


Cicero rails against Cataline in the Senate.

Cicero rails against Cataline in the Senate.

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

“Oh, what times, oh, what customs!”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Zirbser Brothers appealed.

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

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

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

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

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

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

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

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


Case of the Day for Wednesday, January 6, 2016


shootdog160106The crotchety old landowner should have known he was good and screwed as soon as he got sued for shooting his neighbor’s hunting dogs. If he didn’t, he sure knew his goose was cooked when the Mississippi Supreme Court started its opinion with this:

     “Many men, including this writer, feel that a person who has never seen squirrels jump from limb to limb in the deep swamp on a frosty Fall morning; or has never heard a wild turkey gobble in April or seen him strut during mating season; or has never watched a deer bound through the woods and fields, or heard a pack of hounds run a fox, or tree a coon; or has never hunted the rabbit, or flushed a covey of quail ahead of a pointed bird dog; or has never angled for bass or caught bream on a light line and rod, or taken catfish from a trotline and limb hook; has never lived.”

And screwed he was. To be sure, he had a real evidentiary problem, one that comes up all too often. A defendant knows there are no eyewitnesses, and he (or she) happily invokes what is generally known as the Bart Simpson defense: I didn’t do it, no one saw me do it, you can’t prove anything.”


   The defense didn’t work all that well for Bart, either.

The hunter’s dogs had run onto I.C. James’ place, and old I.C. (perhaps standing for “Incorrigible Curmudgeon”) didn’t think much of it. So he shot the dogs. And that, as they say, was an unfriendly act.

Old I.C. told Buddy Mabus, the dogs’ owner, that they had run onto his land, so he shot ‘em, and left ‘em “in a bad way.” He acted almost as though he was proud of what he had done. Well, the “mean old S-O-B” act might have given I.C. some visceral pleasure at the time, but it sure didn’t play well before a jury.

Unsurprisingly, by the time the case got to a jury trial, I.C. James had gotten his story straight. He never said he left the dogs in a bad way. In fact, he told the jury, the dogs had killed some of his waterfowl, but he didn’t tell Buddy or his son that, because they’d have just denied they owned the dogs. Apparently, I.C. James had found out by the time of trial that he didn’t have the right to kill the animals just because they had wandered onto his land, unless — and this is a big “unless” — they had killed some of his poultry. All of a sudden, that was his story.

I.C. figured he had the case licked. After all, no one could say the dogs hadn’t killed the ducks. The evidence against him was circumstantial at best. And we all know that circumstantial evidence is no good, something we learned at the Hollywood School of Law.

Except that circumstantial evidence is good evidence, and a jury is entitled to rely on it. In fact, nothing requires a jury to check its common sense at the courtroom door. This jury didn’t. It knew James’ “they killed my ducks, but I just didn’t mention that until now” recitation of events was nothing but — pardon the pun — a “woof” story. The Mabuses testified the dogs ran onto James’ property, gunshots came from that general direction, James then told them he had shot the dogs (but didn’t mention any dead ducks), and later, one dog turned up wounded and three others didn’t come home at all.

James argued all the way to the Mississippi Supreme Court that the jury had to find for him (or, for that matter, the trial court had to overrule the jury in a procedure known as “judgment n.o.v.”) because no one could disprove his statement that the dogs had killed some ducks. Or, as Bart put it, “no one saw me do it, you can’t prove anything.”

The jury thought otherwise, and the appellate court respected that.

Lesson: Don’t go shooting someone’s dogs. It’s not nice.

This is circumstantial evidence that a woman with a child in a stroller happened by here (and that it had rained shortly before that time).

This is circumstantial evidence that a woman with a child in a stroller happened by here (and that it had rained shortly before that time).

James v. Mabus, 574 So.2d 596 (Supreme Court of Mississippi, 1990). Buddy Mabus lives on a farm where he and his son, Terry, raise dogs which they use to track and run deer. On a cold morning in late November, Terry and Buddy — planning to hunt deer — turned their dogs loose about two hundred yards north of Buddy’s dog pen. The dogs jumped a deer and headed north towards I.C. James’ property, about two miles from where the dogs were turned loose. James had his land posted, and Buddy knew James didn’t allow hunting on his land.

At least two of their dogs ran onto James’ land. James said as stopped to open the gate to his pasture, he heard hunting dogs south of his place heading east. He listened for five or ten minutes and then saw his geese flying across his lake and heard his ducks making noise. He grabbed his rifle from behind his truck seat, pointed it out the window of the truck and drove through his pasture to the lake where he saw two dogs attacking his ducks. James shot at them, but did not know whether he hit them because they ran off.

He said he followed the dogs until they left his property.

Terry, on the other hand, said he had stopped about a half a mile east of James’ place and was listening to the dogs running toward the road when he heard the shots, then he heard only silence. Wondering about the sudden quiet, Terry drove to a gate to James’ property where he believed he had last heard the dogs. James came to the gate and told Terry he had shot the dogs. Terry asked what the dogs were doing, and James said, “They were on my land.” A short time later Terry found one of the dogs near the red gate nervous and shaking. Three days later another dog returned to Mabus’ land with three pellet shots in his hip. Two dogs never returned.

Buddy also said he heard the dogs as they crossed onto James’ land. Seconds after they crossed, he heard shots and then silence. After Buddy learned the dogs had been shot, he met Terry at James’ house. James told Buddy he shot the dogs because they were on his land, never mentioning at that time that the dogs had attacked his ducks or geese.

At trial James said he hadn’t mentioned to either of the Mabuses that the dogs had been attacking his ducks because if the Mabuses knew what the dogs had done, they would have denied ownership. The duck issue was important because Mississippi law gave James the right to shoot dogs if they were on his land attacking his waterfowl. James contended that he had seen two dead ducks and one crippled one. James’ daughter also testified that a few months after the incident she saw one dead duck and a crippled one by their pond.

At the close of the Mabuses’ case, James moved for a directed verdict on grounds that the Mabuses put on no proof that the dogs were dead or that James hit any dogs when he shot at them. The trial court denied James’ motion, finding that reasonable inferences could be drawn from the evidence.

The jury found for Buddy Mabus, and I.C. James appealed.

This muppet is a curmudgeon, too, but he hasn't shot any dogs that we know of.

This muppet is a curmudgeon, too, but he hasn’t shot any dogs that we know of.

Held: The dog shooter had to pay. The Mississippi Supreme Court held that credibility and weight to be given to James’ testimony was a matter for the jury to determine. Here, the circumstantial evidence was sufficient to create a jury question as to whether the dogs ran onto the property owner’s land and were shot and injured or killed by the property owner, and the trial court did not abuse its discretion in denying motion for new trial.

The Court observed that inherently probable, reasonable, credible and trustworthy testimony – uncontradicted by other evidence – must be accepted as true. But appellate courts will give a jury great deference in its conclusions about the credibility and weight of testimony. In this case, determining whether to accept property owner James’ testimony that the hunters’ dogs had attacked his ducks or the Mabuses’ testimony was a matter for the jury to decide.

To be sure, verdicts must rest upon reasonable probabilities and not mere possibilities, but a verdict found on circumstantial evidence will stand unless it is opposed by a decided preponderance of evidence or is based on no evidence whatever. The Supreme Court said that whether there was any circumstantial evidence from which the jury reasonably could infer death or injury to Buddy’s dogs caused by James was a determination to be made by trial court, and the weight to give such evidence was for the jury. Here, there was plenty of circumstantial evidence that would let a jury conclude that Buddy’s dogs ran onto James’ land and were shot by James for that reason alone, despite James’ contention that the dogs were attacking his ducks (which would have given him a statutory right to shoot and kill them without liability).

As far as the trial court’s determination that the evidence was sufficient to support the verdict, all conflicts and all reasonable inferences from the testimony will be construed in favor of party who prevailed at jury trial, and the reviewing court will assume the jury drew every permissible inference from evidence offered in favor of the winning party. It appeared to the Supreme Court that the jury simply chose not to believe James’ assertion that the dogs were attacking his ducks.


Case of the Day for Thursday, January 7, 2016


zhivago140623Cue the balalaikas for Lara’s Theme, one of the most memorable leitmotifs in movie history. Today’s victim was singing, all right, after Dr. Zhivago patched him up, but this Lara’s theme went something like “”An employee, no contractor am I; so my rehab, workers comp now must buy …”

We’re not quitting our day job to become lyricists, but Lara – that is, Jose Lara – seemed to himself, his customers and the Lord to be an independent contractor right up until the time he fell off a restaurant customer’s roof while trimming bushes. Only then, in a rewrite of history that would have made a Bolshevik blush, did Mr. Lara decide that he had been an employee all along, and thus was entitled to workers comp payments for the rest of his natural life.

Workers’ compensation covers employees, but not independent contractors, as an efficient and reasonable means of delivering benefits to employees injured on the job. It is intended to provide quick assistance to the injured and to free employers from costly and protracted litigation over claims. This is not to say that the system is intended to be an ATM for any worker with a claim. A claims board seeks to protect the system from bogus claims, and the employer ­– which is likely to see workers comp insurance premium take off like a skyrocket after a claim – have a lively interest in, as Rodney Dangerfield put it, keeping it honest.

In this case, both the claims board and the restaurant cried foul. It seemed Mr. Lara was in the business of doing odd jobs, and that the restaurant had hired him once, months before, to trim the bushes and perform light maintenance. The restaurant was hardly his only customer, and he arrived on the scene with his own tools. The owner told Mr. Lara what had to be done – the bushes trimmed – but left it to Lara to determine how best to do the job.

The workers comp board at first, rather inexplicably, held that Mr. Lara had been the restaurant’s employee, but the restaurant asked for reconsideration. Usually, seeking reconsideration is an exercise in futility. Few things in the known universe are as immovable as a judge who’s made up his or her mind. Asking a judge to rethink the matter and announce that he or she was wrong the first time around is like trying to teach a pig to sing – it wastes your time and ends up annoying the pig.

pigsing140623In this case, however, the board (maybe because it was not made up of real judges) revisited the issue and held that Mr. Lara was indeed an independent contractor. Mr. Lara’s lawyer promptly sought judicial review. We say his lawyer instead of Mr. Lara, because it isn’t at all clear the ingenuous injured workman was on board. In fact, he freely testified that he had a number of customers, that no one at the diner told him how to do his job, and that he didn’t consider himself an employee of the place.

It seems no one other than his lawyer did, either. On review, the court took as most important among the factors the fact that no one directed Mr. Lara in how to trim or when to trim. He wasn’t being paid hourly, but rather by the job. Everything about the relationship said “independent contractor.”

We start to sound drearisome, but how much easier it would have been for the restaurant if it had signed a simple agreement with Mr. Lara before he fell from the roof. It would have saved a mountain of litigation.

Lara v. Workers’ Compensation Appeals Board, 182 Cal.App.4th 393 (2010). Mr. Lara, a 62-year old man, suffered injury to his head, lower back, neck, right shoulder, arm, hand, and thumb when he fell from a roof on March 11, 2000, while pruning bushes for the diner. Lara filed a workers’; compensation claim against Metro Diner’s then sole shareholder, Scott Broffman, personally and against Metro Diner. The diner leases space inside a hotel. Lara fell from the hotel’s roof. At the hearing, Lara testified that he has been gardening, painting, pipe fixing, and doing graffiti removal for 25 years. His clients are people who either know him or who find him on the street corner. He charges by the hour, but sometimes he contracts for the entire day. He usually does the same type of work but for different people each day. He has no employees and does not work out of an office or advertise.

The restaurant manager’s wife Patricia arranged for Lara to do gardening work at Metro Diner on two occasions. The first time, Patricia, who was Lara’s dentist’s secretary, had asked Lara what kind of work he did. When he told her he gardened, she stated that her husband owned a diner. She gave him an address and told him to go early in the morning so his work would not make the restaurant’s tables dusty. Upon his arrival, Lara was asked to trim the bushes along the roofline. The second time he went to Metro Diner, March 11, 2000, was about a year later.

Lara was paid in cash by the hour for his services at Metro Diner the first time, but was not paid the second time because he did not complete the work after his fall and he never sent a bill. Metro Diner did not take taxes out of his pay; Lara pays his own taxes. Lara and Patricia did not discuss the number of hours he would work. Nor did they discuss the price until he was finished with the work. The first time, Patricia paid him $15. They did not discuss when he would provide services in the future, only that she would contact him when services were needed.

These things can happen ...

These things can happen …

On the second occasion about a year later, Patricia asked Lara to do the same job, i.e., trim the bushes along Metro Diner’s roofline. They did not discuss terms of employment, such as the number of hours, or the price he would be paid for the job. Lara had no plans to do any additional work after the second occasion, only that he would trim the bushes for Metro Diner when Patricia asked him to. Lara brought all the equipment he needed to do the job, including a trimmer, rake, a broom, and a blower, which tools he owns. He also brought a ladder that he borrowed from a friend. He arrived in his own truck. No one told him how to do his job “because he already knew how to do his job.” Patricia did not tell him to bring an assistant or how long the job would take. She did not tell him to arrive on Saturday at 7:00 a.m., just to go early because the diner opened between 7:30 and 8:00 a.m.

The Board that Lara was an independent contractor and thus not entitled to workers’ compensation benefits. Lara did not testify during trial that he was an employee of Metro Diner. Rather, he testified he handled his own taxes and contracted with numerous individuals to perform specific jobs. Also, the Board noted Lara’s statement in his civil action against the hotel, filed after his injury, that “I am self-employed as a gardener.” However, the Board recognized that the distinguishing characteristic of an employer is the power to control the details of the work and methods of performance. On that point, the Board found “no evidence that Metro had the power to control the details of [Lara’s] work in pruning the bushes or the method by which he performed that task.”

Lara appealed.

Held: Lara was an independent contractor. The Workers’ Compensation Act extends only to injuries suffered by an ’employee’ which arise out of and in the course of his ’employment. California law holds that an “independent contractor” is any person “who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”

The Court held that the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired….’; The existence of such right of control, and not the extent of its exercise, gives rise to the employer-employee relationship. Other secondary factors, derived largely from the Restatement Second of Agency, include, inter alia, “(1) whether or not the worker is engaged in a distinct occupation or an independently established business; (2) whether the worker or the principal supplies the tools or instrumentalities used in the work, other than tools and instrumentalities customarily supplied by employees; (3) the method of payment, whether by time or by the job; (4) whether the work is part of the regular business of the principal; (5) whether the worker has a substantial investment in the business other than personal services; (6) whether the worker hires employees to assist him.” Two additional factors are whether the parties believe they are creating the relationship of employer-employee; and the degree of permanence of the working relationship.

Applying the criteria, the Court found that Metro Diner did not possess the right of control and the factors do not otherwise weigh in favor of employee status. Lara was engaged to produce the result of trimming the bushes, the Court said. Neither party presented evidence that Metro Diner had the power to control the manner or means of accomplishing the pruning. The means and manner to accomplish the result of pruning were neither discussed nor were part of the agreement.

The Court observed that its conclusion that Lara was an independent contractor at the time of his injury is further supported by other criteria. “First, Lara performed this work as part of his own occupation as a gardener, which he had been doing independently for approximately 25 years. Not only did Lara have many clients, but Patricia did not ask him to perform any service other than pruning the bushes. Second, Lara supplied the equipment he used for the job. Such tools were not ones that a restaurant would have. Third, Lara had a substantial investment in his business such as his equipment. Although Lara does not advertise, he has several different clients who either pick him up from the street corner or who telephone him to perform specific jobs. Fourth, he was not hired by the day or hour, or even on a regular basis. Payment was only discussed after the work was complete. Sometimes Lara charged by the hour and sometimes by the job and so Lara was paid on a job-by-job basis, with no obligation on the part of either Metro Diner or Lara for work in the future. Taxes were not taken out of the money he was paid. Lara estimates and pays his own taxes. Fifth, no date for Lara’s return was specified after the first time he pruned bushes for Metro Diner. Lara understood only that he would be contacted when his services were needed, with the result that he worked for a circumscribed period of time with no permanence whatsoever in his working relationship with Metro Diner. Thus, Lara’s profit or loss depended on his scheduling, the time taken to perform the services, and his investment in tools and equipment.

The Court noted that the criteria were not to be applied mechanically as separate tests, but “are intertwined and their weight depends often on particular combinations … [T]he process of distinguishing employees from independent contractors is fact specific and qualitative rather than quantitative.” Although the workers’; compensation statutes are to be construed liberally in favor of awarding compensation, the Court said, “no amount of liberal construction can change the balance of evidence here. Nor does our conclusion that Lara was an independent contractor defeat the purposes behind the workers’ compensation system. Lara had control over his work and safety and there was no evidence that he could not have spread the cost of insurance against work-related injuries through fees he charged for his services.”


Case of the Day for Friday, January 8, 2016


baddog160108More and more home developments deliver to their residents not just houses, but a particular ambience, one which remains free of eyesores like sheds, clotheslines, and even colors of exterior trim and paint deemed outside the color scheme of the place. These restrictions are often contained in the deeds conveying ownership of the homes. And quite often, the restrictions begin to be violated before the ink is dry.

Many of the violations are slight, not worth the time of the neighbors or associations charged with enforcing the restrictions. But someone usually pushes things too far, and then defends himself or herself in court by complaining that Joe Doaks or Jane Doe down the street violated the same restriction, too, and no one complained about it.

In today’s case, an Ohio dog-trainer tries the same excuse when the homeowners’ association tries to shut down his obedience school.

It’s like complaining to a cop that everyone is speeding, making his actions stopping you somehow … well, unfair. Like President Carter told us once, “Life is unfair.” And so is selective enforcement. But that doesn’t mean that you can’t do it.

Here, the Court told Marchus that what mattered wasn’t whether other people were getting away with violating the covenants. What matter was whether there was a “substantial value” the restriction which should be protected. Where substantial value could be found, equity will enforce a restrictive covenant. No matter who else is violating it.

covenants160108The guy down the street is selling on eBay for a living? Once a day, he loads his pickup truck with small boxes and goes to the post office? There’s probably no “substantial value” being offended. But Mr. Marchus’s baying hounds? Customers and their masters were driving in and out all day long on the private road?  The other property owners were worried about wear and tear on the road, the congestion, and liability for accidents. Those concerns were legitimate.

The Court refused to let the neighborhood go to the dogs.

Rockwood Homeowners Assn. v. Marchus, 2007 WL 1731621 (Ct.App. Lake Co., June 15, 2007). Rockwood Homeowners Association consists of the owners of ten individually owned tracts of land on Girdled Road in rural Lake County, Ohio. Each owner has a primary residence on the property. The residences are accessed by Rockwood Lane, a paved, private road running off Girdled Road.

The developers drafted specific land use restrictions which were attached to each deed, restrictions intended to preserve the rustic character of the land while permitting property owners to operate a home-based business without detracting from the rural atmosphere. Section I(A) of the Declaration of Restrictions provides that “no commercial or institutional activity shall be conducted on these lots, which is not wholly contained within the residential dwellings or which causes damage to the private gravel drive by heavy vehicles.” The Bylaws for the Homeowners Association incorporate the restrictions.

grads160108Over the years, various owners operated home-based businesses from their Rockwood Estates residences, including a pest control business, a security systems business, a log home business and a tree maintenance business. In September 2001, one owner, Dick Marchus, built a 60′ x 80′ building to be used as a dog training facility. After it was done, his wife ran her dog training business in the new outbuilding, conducting one class on Monday and two classes per day from Tuesday through Saturday. While some attendees would arrive with two or three dogs, she limited the commercial vehicle traffic to ten cars per class.

Almost immediately, the Association sought an injunction to keep Marchus from continuing operation of the commercial activities from the outbuilding, on the grounds that the activity violated the covenant. The Marchuses answered and counterclaimed. At trial, the Association argued Marchus’s business was in violation of the restrictions. Marchus admitted the activities were not contained within the residential dwelling, but argued the restrictions had been waived or abandoned by the Association’s failure to enforce the restrictions against the past violations of other property/business owners. The trial court granted the injunction, and Marchus appealed.

Held:   The trial court’s injunction was affirmed. The Court of Appeals noted that restrictive covenants on the use of property are generally viewed with disfavor. However, this disfavor may be overcome by evidence of a plan or scheme into which the restrictions are incorporated and notice of that plan or scheme. A plan like the Rockwood one, designed to maintain the harmony and aesthetic balance of a community, will often be upheld where the restrictions are reasonable.

The evidence indicated the restriction was drafted with the intent of maintaining the bucolic atmosphere of the development and to prohibit increased traffic from entering and exiting the development. The Court said the restriction was uniform and applied to all property owners in the development. When the evidence was viewed as a whole, the Court said, it concluded the restrictions and the development to which they pertained were premised upon a general plan or scheme.

The evidence also showed that Marchus had notice of the restrictions. Consequently, the Court found, the restriction was valid and enforceable. As for waiver or abandonment, the Court said, the test was whether, under the circumstances, there remained a substantial value in such restriction which should to be protected. Where there was a substantial value to the dominant estate remaining to be protected, equity will enforce a restrictive covenant.

Even with the Marchuses' restricting classes to only ten vehicles (leading to dog carpools, no doubt), it was still too much for the neighbors ...

     Even with the Marchuses’ restricting classes to only ten vehicles (leading to dog carpools, no doubt), it was still too much for the neighbors …

Here, the Court found, various residents expressed concerns they held since Greta Marchus opened the business. Increased traffic created congestion and destroyed the rural atmosphere of the development. Because the residents were responsible for the upkeep and maintenance of their private drive, some worried about the increased repair cost resulting from the wear and tear. Some were concerned about being exposed to liability if any of the Marchuses’ customers happened to be injured on the private road. The Court found that the concerns expressed were legitimate and rationally related to appellants’ violation of the covenant, and thus, there was still a substantial value in the restriction.

As for acquiescence, the evidence didn’t show that prior businesses operated anywhere but in the residences of the owners, something which was permitted by the restrictions.


Case of the Day for Monday, January 11, 2016


natural160111There was a era – back in a time when giants roamed the land – in which a landowner had no duty to protect anyone else from harm resulting due to the natural condition of the land. The judicial thinking was that everyone took the land the way they found it. There’s a century-old oak on the place, and it dies? Well, trees grow and then they die. If it happens to fall on old Zebediah’s cabin next door, that’s just one of those acts of God.

The concept made a certain amount of sense when the land was rural, and no one did much landscaping around the cabin. But as time passed, courts found themselves trying to determine whether that sweet gum that fell on the random horse-drawn wagon passing by had been planted by human agency or just had happened to grow there on its own. Time marched on, the horse gave way to a lot of horsepower, and courts abandoned the “natural condition” rule.  Instead, they simply held that a landowner has a duty of reasonable care over all of the conditions of his or her premises, no matter what their origin.


Samara – a botanical term for “whirligig.”

There were a few reasons for the courts’ change of heart. First, if a landowner had a duty to take reasonable care of his or her premises, there was no rational basis for limiting that duty to vegetation that had not been planted by the landowner or those who had owned the place before. After all, when we were kids, we used to break samaras off the backyard maple tree and use them in whirligig contests. Under the old standard, if one of the samaras we dropped during our game took root and grew into a magnificent sugar maple, our folks would have been responsible for the tree. If the wind dropped the same samara, and it took root without our help, the old rule would have absolved our parents of any liability if the tree decayed and then fell on the neighbor boy (an outcome that we, who had been long afflicted by the obnoxious kid next door, would have cheered).

Second, the times, they were a-changin’. America was becoming more urban, and progress demanded that people living in closer proximity to each other with more developed streets and highways, assume more responsibility for injury to each other. Most parcels of property had become smaller – home plots in towns and cities rather than 40-acre and up farms – and the burden placed on landowners to inspect and maintain their premises became less even as the harm that their negligence could cause became greater. The utility and importance of modern roads and the cars and trucks that used them argued for a more responsible approach.

All of that leads to a case like today’s decision, an Indiana decision that asks the philosophical question: If a tree falls in the forest and hits a car, does it sound like a lawsuit?

falls160111That’s certainly the question Stan Valinet was pondering after a tree standing in his forest fell onto Ann Eskew’s car back in 1987.

Robert Frost admitted that “whose woods these are I do not know.”  But Stan Valinet knew.  The woods in Clay Township near 106th and Spring Mill Road were his, and – like most reasonably prudent absentee landowners – Mr. Valinet occasionally drive through Clay Township to inspect his property. He especially admired a massive oak tree, almost two centuries old, growing about 28 feet from the edge of Spring Mill Road.

One dark and stormy December night, Ann Eskew was driving by this very tree, when 60-mph winds blew the mighty oak onto her car, seriously injuring her. It turned out that tree had been dead for at least three years, and had been showing signs of decay for at least 8 years before that.

Even in 1991, the Indiana rule held that rural landowners were not liable for physical harm caused to others outside of the land by a natural condition of the land. Mr. Valinet argued that the oak tree had always been there, and its falling on Ms. Eskew ¬– while regrettable – had nothing to do with him.

car160111The Indiana Supreme Court ruled that, regardless of whether the old oak tree was a natural condition of Mr. Valinet’s land or not, he could be liable to Ms. Eskew if his land was located in an area with sufficient population density, and whether the seriousness of the danger is weighed against the ease with which Mr. Valinet could have prevented it. Finding the facts needed to determine the answers to these questions was a job for the jury.

Valinet v. Eskew, 574 N.E.2d 283 (Supreme Court of Indiana, 1991). Stanley Valinet owned wooded land in a residential area of Clay Township, Hamilton County, Indiana, near the intersection of 106th Street and Spring Mill Road. He lived in Indianapolis, but testified he would occasionally drive through Clay Township to inspect his property.

Valinet’s land included a large oak tree, perhaps almost 200 years old with a 48” diameter trunk. The tree stood 28 feet from Spring Mill Road. On December 15, 1987, Ann Eskew was driving by the property during a windstorm, when the tree fell onto her car, seriously injuring her. It turned out that the tree had been dead for three years, and had been showing visible signs of decay for eight years before that.

Eskew sued. Valinet argued that the 200-year old oak was a natural condition of the land, and he was not liable for natural conditions of the land. The jury found him liable to Eskew, and he appealed, first to the Court of Appeals (which agreed with the jury), and then to the Indiana Supreme Court.

Held: The Supreme Court decided that Indiana would follow the general statement of law set out in the Restatement of Law. Restatement (Second) Of Torts § 363 provided that while a possessor of land would not be liable for physical harm caused to others outside of the land by a natural condition of the land, if the land is in an urban area, the possessor is liable to people “using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The Supreme Court acknowledged that the old rule had been no liability for natural conditions on land. That rule, however, had arisen at a time when the land was largely unsettled and the burden imposed on a landowner to inspect was thought to exceed the benefit to society of preventing possible harm to passersby. However, the Court observed, a line of cases had developed since then in which courts imposed a duty on landowners in more heavily populated areas to inspect trees to try to prevent their posing an unreasonable risk of harm to passing motorists. The rationale for imposing the duty on urban landowners is that the risk of harm to highway users is greater there, and the burden of inspection on landowners is lighter.

The Court agreed that the modern approach made more sense, but it underscored that whether the land was in an area of sufficient population density to invoke the rule requires a factual consideration of factors like land use and traffic patterns. Also, whether the landowner exercised the reasonable care would require the jury to weigh the seriousness of the danger against the ease with which it could be prevented. The Court noted that a landowner need not continually inspect his or her property for natural dangers, but sometimes fulfilling the owner’s duty to passing motorists “might reasonably require periodic inspections to be sure that the premises do not endanger those lawfully on the highway.”


Case of the Day for Tuesday, January 12, 2016


revveduplikeadeuce140721Hey, none of us really knew what the lyrics were to that great piece of mid ‘70s music by Manfred Mann’s Earth Band (written and first recorded by Bruce Springsteen). You know, Springsteen wrote the second line as “cut up like a deuce.” Not until Manfred Mann rewrote the line to be “revved up like a deuce,” did the mondegreen of the line famously become a reference to a feminine hygiene product.

But we digress. We’re really talking light and soybeans here. Recent;y, the vigilent treeandneighborlawblog editors read a book review for a new tome on light pollution called The End of Night.” It reminded us how soybeans like the dark, and about the plight of Farmer Smalley.

Farmer Smalley raises soybeans in Wyandot County, Ohio. When the Ohio Department of Transportation installed high mast lighting at the US 30/US 23 interchange, Mr. Smalley’s soybeans would not flower and flourish under the bright nighttime lights. This is apparently not an unknown effect. He sued the DOT in the Ohio Court of Claims, seeking damages in a self-written complaint.

soybeans140721The Clerk heard the matter administratively, and concluded that the lights were not a nuisance, apparently because of the benefit such lights had for the motoring public. However, the loss of two acres of beans did constitute a constitutional “taking of property” for which he should be compensated. The damages were pretty meager for 2007: $512 plus his $25 filing fee.

Still, the Clerk did not dismiss out of hand the notion that light pollution could constitute a nuisance in some circumstances, those where the social benefit of the light was insignificant next to the interference caused the neighbor.

A few months later, the full Court of Claims reversed the judgment. It held that the Ohio constitution did not permit compensation for consequential damages to property, only for the actual taking of property. Because of that. Farmer Smalley’s loss was not compensable.

Even so, both the Court and the Clerk apparently accepted the notion that the light pollution damaged Smalley’s property. It was just that the damage, however real, could not be compensated.

lightpoll140721Smalley v. Ohio Dept. of Transp., 142 Ohio Misc.2d 27, 869 N.E.2d 777, 2007 -Ohio- 1932 (Ohio Ct.Cl., Mar. 15, 2007). Farmer Smalley has a soybean field next to a four-lane highway intersection. The Ohio Department of Transportation constructed high-mast lighting at the intersection in 2005, and since then, and Farmer Smalley’s soybeans failed to mature during the growing season. Smalley was forced to mow down two acres of failed crop, a failure he attributes to the lighting. He lost about 120 bushels of beans, which — at $6.00 a bushel — were worth $720.

Farmer Smalley sued the DOT in the Ohio Court of Claims. DOT admitted it had installed the mast lighting, which it said was intended to “safely illuminate the expressway.” DOT argued the installed lights “are the safest and most efficient lighting source given the traffic flow and lighting required at interchanges.” It admitted that light did “occasionally bleed onto adjacent property [and] there is little doubt that defendant’s light encroaches upon plaintiff’s property.” It argued, however, that it could not be held liable for any damage to plaintiff’s bean crop caused by its light encroachment. It also argued that Farmer Smalley’s cost to raising the beans was $256.47 an acre, reducing his net loss to $512.94.

Held: The Clerk of the Court held that the light pollution was not a nuisance. However, he found that the actual harm suffered by farmer was different in kind from harm suffered by general public, as required to establish a taking under “Takings Clause” of Ohio Constitution.

It appears that farmer Smalley filed his complaint himself, because DOT flailed about in its defense, as if it wasn’t sure where the farmer was going. It argued at length that its lighting was not a nuisance, because Smalley had offered no proof that DOT was negligent in erecting the lighting. It asked the Court to weigh the benefit that the high mast lighting gave to thousands of motorists against the harm the lights caused plaintiff in destroying two acres of his bean crop.

lights140721The Clerk sagely noted that DOT “… essentially proposed that plaintiff should have to bear a financial burden for his crop loss in a situation where he was legally using his land for a specific valuable purpose and the harm caused was attributable to the acts of DOT.”

He defined an absolute nuisance as a distinct civil wrong arising or resulting from the invasion of a legally protected interest, and consisting of an unreasonable interference with the use and enjoyment of the property of another. Such a nuisance was the doing of anything without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his or her legal rights, or the collecting and keeping on one’s premises of anything inherently dangerous or likely to do mischief, if it escapes, which, escaping, injures another in the enjoyment of his legal rights. A qualified nuisance, on the other hand, was distinguished from absolute nuisance as being dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm which, in due course, results in injury to another.

Considering the utility of the high mast lighting to the motoring public, the Clerk correctly concluded that the lighting was neither an absolute nor qualified nuisance. But that didn’t mean that Mr. Smalley was out of luck. Under the “Takings Clause,” any taking — whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises — entitles the owner to compensation. In order to establish a taking, a landowner must demonstrate a substantial or unreasonable interference with a property right, and such an interference may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises. Something more than loss of market value or loss of comfortable enjoyment of the property is needed, to constitute a taking under the “Takings Clause:” governmental activity must physically displace a person from space in which he was entitled to exercise dominion consistent with the rights of ownership. To constitute a taking actual harm suffered by the plaintiff must differ in kind rather than in degree from the general public.

Later, the full court reversed on different grounds, holding that the Ohio Constitution did not permit compensation for less than a full loss of land.

Nevertheless, the notion that light can constitute a nuisance and that a property owner suffering from light shining onto his or her land from another location, appears to be accepted.


Case of the Day for Wednesday, January 13, 2016


We suspect that imagining a world without frivolous lawsuits would be an impossible dream.

We suspect that imagining a world without frivolous lawsuits would be an impossible dream.

We suspect neighborhood grocer Jerald Walker won’t try to save a few bucks like this anymore. When he had odd jobs to be done around the store, he would offer the work to casual laborer Gene Moser and his sometimes-sidekick Paul McCubbin. Gene and Paul (think “Stan and Ollie,” if you like), would paint, repair doors, rake leaves or perform other menial tasks, and Jerald would pay them an agreed-upon price for the work.

As lawyers like to say, there came a time when Jerald needed some trees trimmed. He called Gene and offered $30.00 for the project. Gene, apparently daunted by the scope of work to be performed, recruited his swamper Paul, agreeing to split the fee 50-50. Instead, the only thing that was split was Paul’s noggin.

Gene and Paul finally showed up to do the job, and Jerald provided them with the saws they needed. They had only trimmed a couple branches when a limb being cut by Gene fell and hit Paul.

Would Pancho sue the Cisco Kid? Tonto file against the Lone Ranger? Sancho allege a tort against Don Quixote? Such weighty questions may never be answered, but we do know that Paul would sue Gene. And he did.

For good measure, Paul McCubbin also went after Jerald Walker, arguing that he deserved workers’ compensation because he had been the store’s employee and, in the alternative, contending that the tree trimming work was inherently dangerous. An “inherently dangerous” occupation provides an exception to the rule that an independent contractor cannot collect against a hiring party.

The Workers’ Compensation hearing officer ruled that Paul McCubbin was not an employee of the store, a position agreed with by the trial. For good measure, the trial court also held that tree trimming was not an inherently dangerous occupation. Paul McCubbin’s guardian – necessary because his head injuries were severe and permanent – had more luck in the Court of Appeals. That tribunal ruled that material questions of fact had been raised both as to whether McCubbin was an employee and whether the work he had been hired to do was inherently dangerous. The parties appealed to the Kansas Supreme Court.

The Supreme Court ruled that nothing in the record permitted a holding that McCubbin was Jerald Walker’s employee. The fact that Walker provided the tools and pointed out the trees to be trimmed was not determinative, because the price was set for a complete job, Walker had no control over when the job was done or how it was done, or even over how McCubbin and Moser would split the payment for the work. Thus, Paul McCubbin was the grocery store’s independent contractor, and Walker was not liable for the accident.

Sure you do ... but does that make you a tree trimmer?

Sure you do … but does that make you a tree trimmer?

What’s more, the Court said, no work is “inherently dangerous” if it can be performed safely. Tree trimming can be done safely and without accident (although maybe not by McCubbin and Moser). Thus, the “inherently dangerous” exception to nonliability did not apply here.

McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (S.Ct. Kan. 1994). Jerald and Carol Walker own Valley Market, a small, neighborhood grocery store in Kansas City, Kansas. Jerald often hired Gene Moser and Paul McCubbin, two local men, to perform odd jobs at the market, such as painting, light carpentry, and other general maintenance duties. Walker viewed the two as ‘contract labor’ rather than as traditional employees. Walker would decide on whatever job he needed to be done and then negotiate with them about the cost of performance.

In April 1989, Walker contacted Moser about trimming dead tree branches from some trees in front of the market. Moser agreed to do the job for $30.00. Moser contacted McCubbin to help him trim the trees, and the two agreed to split the money, with Moser providing all of the equipment. The two trimmed two branches from one tree and had moved onto a second tree, when a trimmed branch struck McCubbin as it fell, causing him severe and permanent injuries.

McCubbin’s guardian filed a workers compensation claim, arguing that McCubbin was Walker’s employee. The Worker’s Compensation administrative law judge held that the parties did not come under the Kansas Workers Compensation Act, as Walker did not meet the statutory definition of an employer and McCubbin did not meet the statutory definition of an employee. The ALJ found instead that both Moser and McCubbin were independent contractors.

McCubbin’s guardian next sued Walker and Moser, alleging that McCubbin’s injuries were the direct and proximate result of their negligence. Walker moved for summary judgment, arguing that McCubbin was an independent contractor and that tree trimming was not an inherently dangerous activity which would require Walker to equip, supervise, or warn McCubbin of the obvious dangers involved in the trimming of trees. The trial court held that even assuming the greatest possible duty that could be owed by Walker to McCubbin, there was no breach. The court found that McCubbin was an independent contractor, and his injuries were caused by his own and Moser’s actions, not by a condition of the premises.

The Court of Appeals reversed, holding that whether McCubbin was an employee or an independent contractor, and whether tree trimming was an inherently dangerous activity, should be determined by a jury.

Walker appealed to the Kansas Supreme Court.

He performed odd jobs, too ... did that make him Auric Goldfinger's independent contractor?

He performed odd jobs, too … did that make him Auric Goldfinger’s independent contractor?

Held: Moser was an independent contractor, and the work he had undertaken was not inherently dangerous so as to impose any special duty on Walker. The Court observed that an independent contractor is someone who contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of the work. The single most important factor in determining a worker’s status as an employee or independent contractor, the Court said, is whether the employer controls – or has the right to control – the manner and methods of the worker in doing the particular task. As a general rule, when a person lets out work to another and reserves no control over the work or workers, the relation of contractee and independent contractor exists, and not that of employer and employee, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor.

The Supreme Court agreed that an exception to the general rule of nonliability of an employer for the negligence of an independent contractor is the “inherently dangerous activity” doctrine. Under that doctrine, one who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which the employer contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the independent contractor’s failure to take reasonable precautions against such dangers. However, an activity cannot be termed inherently dangerous merely because it may possibly produce injury; instead, the intrinsic danger of the work on which the doctrine is based must result from the performance of the work, and not from the collateral negligence of the contractor.

Here, the Court said, Moser and McCubbin were independent contractors. Walker hired Moser to produce a result, and did not recruit McCubbin. Walker did not provide the equipment, and – although he specified which trees he wanted trimmed – did not direct how the work was to be performed. Furthermore, payment was based on the completed task, and was a single sum regardless of the time and effort expended. Finally, it was relevant that Moser and McCubbin provided general maintenance and odd job services for a number of people, not just Walker.

As for the work itself, the Court held, tree trimming is an everyday activity that can be accomplished safely and, when done so, is an activity in which danger is not inherent in the activity itself. Tree trimming generally does not constitute an inherently dangerous activity.

Thus, McCubbin was not entitled to recover damages from the Walkers.


Case of the Day for Thursday, January 14, 2016



Every good trial lawyer knows how to employ the Chewbacca Defense.

Every good trial lawyer knows how to employ the Chewbacca Defense.

Sometimes you wonder when you read a decision, “What were they thinking? That does not make sense.”

Today’s case is something like that. The facts are straightforward enough. Smith sold a gas station-restaurant-bar to Mendonsa, but carefully secured Mendonsa’s promise that he wouldn’t let the trees on the plot get so high that they shaded Smith’s adjacent orchard. Wouldn’t you know it, Mendonsa at some point decided he liked tall trees, or he didn’t like trimming tree, or he couldn’t find his clippers, or something. He let the trees grow, and they shaded four of Smith’s something-berry trees (we have no idea what he was raising in the orchard, but this being California, they probably weren’t plantain trees).

Anyway, Smith sued, and Mendonsa, for some foolish reason, fought the action. The trial court of course found for Smith, and then worked some rump math, figuring the past damages were about $140.00 a year (this was 1952, when a dollar was worth a bit more than now), and multiplied over three years, the damages were $420.00. The Court also enjoined Mendonsa from maintaining trees over 15 feet or branches which were hanging over on Smith’s land.

On appeal, Mendonsa complained that the damage calculations were too imprecise, and that the injunction was unduly burdensome on him. The Court of Appeals disagreed, finding the calculations pretty good for an uncertain case, and anyway complaining that “[t]he wrong was that of the appellants and they are not in a favored position to urge the technical rules governing awards of damages.”

This case may be the legal equivalent of this - what were they thinking?

This case may be the legal equivalent of this – what were they thinking?

Huh? In the words of South Park’s parody of Johnnie Cochran in the legendary Chewbacca defense: “that does not make sense.” If the wrongdoer isn’t entitled to argue that the court has to follow the “technical rules” of assessing damages, then who is? It’s a cinch the plaintiff isn’t going to do anything to restrain the court in calculating damages. This is probably one of those “hard cases make bad law” kind of decisions … but even so, it’s hard to feel much sorrow for Mr. Mendonsa, who should have been enjoined and been made to pay damages.

A deal’s a deal, after all.

Smith v. Mendonsa, 108 Cal.App.2d 540, 238 P.2d 1039 (Ct.App. Cal. 1952). Smith entered into an agreement with Mendonsa concerning the use of a gas station, restaurant and bar he had sold to him. Mendonsa agreed that he would permit no trees to remain on the site which exceeded a height of 15 feet;, and that if any tree got taller than that height, Smith would have the right to remove the same. The purpose of the agreement was to prevent the shading of Smith’s orchard next door. land and to prevent trees on the appellants’ property from overhanging it. Mendonsa let the trees get too tall, and Smith sued to enforce the deal. The trial court agreed with Smith, and awarded him money damages for past violation as well as an injunction prohibiting Mendonsa from maintaining any tree in excess of 15 feet in height or from permitting branches of any tree to overhang the orchard. Mensonda appealed, complaining that the damages awarded weren’t supported by the record and that the injunction was too harsh.

Held: The damages and injunction were upheld. The Court observed that the record showed that the shading of the orchard trees near the appellants’ property line was detrimental to the growth of the trees themselves and would, during some seasons, decrease the yield of fruit on the affected trees. Four trees were affected, the evidence showed, the Court found, and while the proof of damage was not exact, it nonetheless gave some fairly definite basis for computation.

Mendomsa let the trees get a little too tall ...

Mendonsa let the trees get a little too tall …

With respect to growing crops, the measure of damages is the market value of the probable yield without detriment, minus the cost of producing and marketing, and minus the return actually received. The damages awarded amounted to about $140 per year, and the period of the damage was three years. Additionally, there was damage in that the trees themselves were retarded in growth by the shade.

The Court concluded that the record furnished adequate support for the award made. Anyway, the Court said, Mendonsa was in the wrong, and thus he was not in any position to demand application of the technical rules governing awards of damages. Where a party has suffered damage, the Court held, a liberal rule should be applied in allowing a court or jury to determine the amount, and that, given proof of damage, uncertainty as to the exact amount is no reason for denying recovery.

As for the injunction, the Court held, in cases involving promises as to use of property, injunctive relief — depending upon inadequacy of damages — may be granted. A deal is a deal, the Court seemed to say, and where Mendonsa made the promise to keep the trees trimmed back and then violated it, the award of a perpetual injunction from maintaining any tree in excess of the agreed-upon height and from permitting branches to overhang was not an abuse of the trial court’s discretion.

It is, after all, the duty of the court to encourage the keeping of agreements properly made and to give adequate remedy for breach thereof when it occurs, particularly where breach is deliberate and wrong is willful.


Case of the Day for Friday, January 15, 2016


Kind of like this ...

Kind of like this …

Whoops! Mr. Chamberland told his neighbor, St. Laurent & Sons gravel pit, that it could dig up part of his land to lower a hill. But he forgot to record the agreement, and when he sold the land to the Dalphonses two years later, he kind of forgot to tell them, too. So they were understandably surprised when the St. Laurent bucket loaders started chewing away at their property.

The Dalphonses complained to St. Laurent without success. They complained to the police. All that got them was a load of St. Laurent boulders dumped in their driveway for retaliation. So they sued.

After a trial, they waited for a judgment from the court. And they waited and waited and waited. Finally, two years after the trial, they asked the court if they could bring in evidence of the additional damage they had suffered from St. Laurent’s conduct during the two years since the trial. The trial court said no, but at the same time finally seems to have found its typewriter, issuing the long-awaited judgment.

Not the judge ...

Not the judge …

Alas, the judgment was another unpleasant surprise for the long-suffering Dalphonses. It awarded them damages to return their land to its 2-1 slope, but left out the cost of the fill material needed to do the job. St. Laurent said it would happily do reclamation work (having been the one to make the mess to begin with), but the Maine Supreme Court said that it would be like letting Wile E. Coyote fix dinner for the Road Runner.

Instead, the obvious omission of an amount of money needed to buy fill material justified vacating the damage award. As for the damages during the delay, the Court said that the Dalphonses should have been able to show their additional costs incurred while waiting for the trial court — which was definitely no Road Runner — to issue its judgment.

Dalphonse v. St. Laurent & Son, Inc., 922 A.2d 1200, 2007 ME 53 (Sup.Jud.Ct. Maine, April 19, 2007). This case arises from St. Laurent’s operation of a gravel pit adjacent to the Dalphonses’ property, resulting in the collapse of a portion of their property into the steep-sloped pit. In 1999, St. Laurent and Marcel Chamberland, the prior owner of the Dalphonses’ property, reached an agreement that allowed St. Laurent to excavate part of Chamberland’s property to lower and cut back the steep bank next to St. Laurent’s adjacent sand and gravel pit. This agreement was never recorded.

pit160115Without St. Laurent’s knowledge, Chamberland sold his property to the Dalphonses two years later. For three weeks after the closing, the Dalphonses observed no activity in the pit. On May 29, however, David Dalphonse discovered a bucket loader with a St. Laurent logo operating near the center of the east line of the Dalphonses’ property. The digging appeared to encroach four to eight feet onto the Dalphonses’ property. David complained to St. Laurent and later to the police, but St. Laurent continued pit operations. To retaliate against David for calling the police, St. Laurent placed two large boulders in the right-of-way that the Dalphonses had been using to access their garage. Because of these boulders, the Dalphonses delayed their move into their house, had to use wheelbarrows to haul crushed stone and firewood to the rear of the house, and incurred damage to a vehicle when David used an alternate route. The Dalphonses applied for a temporary restraining order the next month. Before a hearing was held, the parties reached a consent agreement that prohibited St. Laurent from digging within 20 feet of the Dalphonses’ property line — later expanded by the court to 50 feet — and provided that the Dalphonses would not remove the boulders that St. Laurent had placed in the right-of-way. The next day, the Dalphonses filed an amended complaint against St. Laurent and Chamberland, seeking damages and injunctive or declaratory relief against St. Laurent arising from statutory trespass, common law trespass, and nuisance.

Chamberland settled with the Dalphonses, and the Dalphonses and St. Laurent went to trial in August 2003. At trial, the Dalphonses’ expert land use consultant provided seven alternative proposals for reclamation of the Daphonses’ land and diagramed them in different colors on a chart depicting the existing slope. One of these alternatives proposed creating a 2.5-to-1 slope from the existing edge using 7,250 cubic yards of fill. The expert testified that the cost of this “Red Line Option” was $33,000, assuming that fill would be drawn without charge from the St. Laurent gravel pit.

delay160115The trial court did not rule for two years. Finally, weary of waiting, the Dalphonses moved to reopen the evidence to show further damages they had sustained while awaiting the court’s decision, including $9,000 in extra construction costs during the rebuilding of their home because they could not have items delivered past the boulders, $5,000 in lost garage rental income, and $3,000 in loss of land due to erosion into the pit. St. Laurent opposed the motion. The trial court finally issued its judgment, denying the motion to reopen the evidence without prejudice because it “raise[d] issues not previously discussed or raised by evidence or pleadings.” The trial court found St. Laurent liable for damages of $6,295 for the roughly 1,481 cubic yards of land the Dalphonses had lost through St. Laurent’s statutory trespass, and awarded the Dalphonses damages of $19,397.50 pursuant to the trespass statute to cover the cost of professional services the Dalphonses had obtained to establish the trespass and the consequent damages.

The trial court directed that the pit be filled to restore the Dalphonses’ eastern boundary to its previous height, with a 2-to-1 grade running from that boundary line to the floor of the St. Laurent pit. The court estimated that the cost would be just slightly more than the cost of executing the Red Line Option, which would have involved a 2.5-to-1 grade from the existing edge of the banking at a cost of $32,000. The court awarded the Dalphonses $32,500 as the cost of reclamation, noting that, as compared to the Red Line Option, the line it had established would require “more fill at the top to resolve the height of the land.”

The trial court also granted the Dalphonses injunctive relief, ordering that when the reclamation was complete, the parties were not to enter upon each other’s land and St. Laurent was not to conduct excavation or pit operations in the reclaimed area or within 50 feet of the Dalphonses’ property line. It also ordered St. Laurent to remove the boulders from the right-of-way.

The Dalphonses appealed.

Held: The trial court’s refusal to let the Dalphonses reopen the record to present additional evidence was reversed. The Supreme Court said that although the Dalphonses bargained for the boulders to remain in place on their property pending the outcome of trial, they did not reasonably foresee a two-year delay in judgment. When the trial court delayed for so long, the effect of the delay exacerbated the effects of St. Laurent’s wrongful actions.

The Supreme Court also ruled that the Dalphonses should have been allowed to show their additional damages. The Court held that a trial court should permit the presentation of additional evidence after close of evidence if doing so will prevent an unfair result, and the delay here created such a result. Also, the Court ruled, the trial judge erred in not including in the damages the cost of the fill material needed.

St. Laurent argued it should be allowed to save money by reclaiming the land with its own work force and own materials, but the Supreme Court said that given the level of acrimony between the parties, the trial court was acting reasonably to award sufficient damages so that the Dalphonses could have a third party do the work. And clearly, the Court held, the Dalphonses were entitled to recover cost of fill necessary to restore their land to their boundary line with a 2-to-1 slope running from that line to gravel pit floor.


Case of the Day for Monday, January 18, 2016


Case of the Day for Tuesday, January 19, 2016


An arborist defendant's nightmare - the troop of Brownies your client's tree toppled onto.

An arborist defendant’s nightmare – the troop of Brownies your client’s tree toppled onto.

Arboriculture professionals pride themselves at being expert at what they do, which is – generally put – to manage trees. Management may be trimming, preservation, or in many cases, removal of trees. Often, how the tree is to be treated depends on the arborist’s expert opinion of the condition of the tree, and the threat (if any) that the tree poses to persons or property.

A lot can depend on the arborist’s opinion. If an examination of a tree misses a defect or disease, and the tree ends up falling on a troop of Brownies who happen by on the public sidewalk at just the wrong time, the unlucky arborist will end up with a lot of ‘splainin to do.

The U.S. Court of Appeals for the Seventh Circuit handed down a decision in fall 2014 that involved not a single tree. Nevertheless, the decision should serve as a caution to arborists, landscapers and tree trimmers – not to mention those who hire them.

It seems that small-time grain handler ConAgra Foods, Inc. (January 15th market cap – $16.9 billion) had a problem with a wheat pellet storage bin. Grain can be tricky stuff, generating a lot of dust as well as carbon monoxide. Both of these like to explode with little provocation. The technical people call it “deflagration,” more of a low-level snap and crackle than a high-level detonation “pop” – but to the man or woman on the street, it’s an fairly destructive bang.

ConAgra knew just what to do when one of its grain bins in Chester, Illinois, started heating up spontaneously. It called in an expert in “hot bins,” a sort of a Red Adair of wheat silos. The company, West Side Salvage, went to work on the unstable grain bin, but only after a delay occasioned by contracting procedures and West Side’s other business commitments.

The delay proved the project’s undoing. West Side tried to salvage some of the wheat pellets in the bin, but removal of the grain let more oxygen into the bin, and the instability increased. West Side’s supervisor called firefighters to stand by, but while he awaited their arrival, he sent several workers for one of West Side’s subcontractors into the bin through a tunnel to retrieve tools. While they were doing so, the grain dust exploded, seriously injuring them.

Everyone knows that an owner is not responsible for the negligence of an independent contractor. Everyone also knows that the owner may be liable if it does not provide the independent contractor with a safe place to work. The district court agreed that ConAgra had done just that, and that West Side was negligent in sending the employees into the dangerously unstable grain bin. It smacked ConAgra and West Side jointly with $18 million in damages for negligence.

ConAgra appealed, arguing that it was not liable for any damages to the subcontractor employees, because West Side knew what it was getting into. Besides, its contract with West Side provided that west Side would indemnify ConAgra from any West Side negligence. West Side, anxious to have a company with ConAgra’s deep pockets around to share the $18 million, retorted that ConAgra failed to reveal material information to it about the unstable grain bin. Furthermore, West Side’s indemnification of ConAgra may have been written into the contract, but West Side had never signed the document.

Your customer hired you because you're an expert at what you do. You have to act like one.

Your customer hired you because you’re an expert at what you do. You have to act like one. If something goes wrong, you’ll surely be judged like one.

The Seventh Circuit was baffled. The injured workers complained that ConAgra had provided them with a dangerous workplace? Of course it did, the Court said. The whole point of hiring a “hot bin” expert was that the bin was dangerous. The Court held that where an owner hires an independent contractor to remedy a dangerous situation, the owner would not be held liable if the feared disaster came to pass. Such a policy would only discourage people with serious or dangerous problems to hire experts to get them fixed.

The Court has just as little patience with West Side’s complaint that ConAgra had failed to disclose information to it about the grain bin’s condition. West Side didn’t exactly say that ConAgra had provided false information. In fact, it admitted that ConAgra adequately answered all of the questions it had put to its client. The problem, West Side argued, was that ConAgra had other information about the dangerous grain bin – specifically, temperature readings from earlier in the month – that it failed to volunteer.

The 7th Circuit expressed incredulity at the claim. West Side was a self-professed expert in “hot bins.” ConAgra was not. An owner like ConAgra was entitled to assume that when an expert like West Side is hired, the expert will ask for all the information it deems important. In this case, ConAgra did not end up sharing liability with West Side simply because it didn’t answer questions that were never asked.

The Court seemed almost perplexed by West Side’s argument that it had never gotten around signing the contract with ConAgra, so it wasn’t bound by the provision that it indemnify ConAgra from damages resulting from its negligence. That hardly mattered, the Court said. West Side began the work, whether it signed the contract or not. That was enough to signify that it had accepted the contract terms.

So what’s the takeaway for arboriculture professionals? First, be sure the contract is completely negotiated and signed the way you want it. If you leave it for later but begin work now, a court may conclude you had accepted terms you thought were still being negotiated. Second, you’re an expert at what you do. Be certain to gather all of the information you need for the job. When the tree falls on that Brownie troop, you can’t hide behind the owner’s failure to give you information about the condition of the tree that you never asked for.

Jentz v. ConAgra Foods, Inc., 767 F.3d 688 (7th Cir. 2014). A grain bin in Chester, Illinois, exploded in April 2010, injuring three workers. The month before, ConAgra Foods – the owner of the bin, which was part of a flour mill – discovered a burning smell coming from the storage vessel, which contained wheat pellets. ConAgra hired West Side, which claimed expertise in handling “hot bins.” When work began, West Side hired A&J Bin Cleaning to do some of the tasks. Two of the injured workers, John Jentz and Robert Schmidt, were employees of A&J. The third, Justin Becker, was employed by West Side itself.

ConAgra wanted to salvage as much of the grain as possible, but as pellets were removed from the top more oxygen reached wheat composting at the bin’s bottom. West Side decided to remove some grain via side tunnels. On April 27 West Side detected smoke coming from the bin. Its crew sprayed water on the pellets and used an air lance to try to discover the smoke’s source; the effort failed. Mel Flitsch, West Side’s foreman, told ConAgra to call the fire department. Waiting for firefighters to arrive, Flitsch sent Jentz and Becker into a tunnel, instructing them to remove tools that might impair firefighters’ access. While they were there, the explosion occurred. They were severely injured but survived. Schmidt, who was in an elevator nearby, also was injured, but less seriously.

A Federal district court jury awarded $180 million in damages against ConAgra Foods and West Side Salvage. ConAgra contended that liability rested on West Side, which it had hired to address problems in the bin. For its part, West Side did not contest liability to the workers but contended that it does not have to reimburse ConAgra for the cost of repairing the facility. The injured workers contend that both ConAgra and West Side must pay the full verdict.

The dust may just deflagrate and not really detonate - but it's mighty impressive nonetheless.

The dust may just deflagrate and not really detonate – but the distinction probably makes no difference if you’re the one caught in the fireball..

Held: The Court of Appeals held that ConAgra was not liable. Normally, the appellate panel said, employees of an independent contractor cannot obtain damages from the owner of the premises at which the contractor was working. The injured workers contended that ConAgra nevertheless was liable for failing to provide West Side with a safe place to work. ConAgra responded that of course the grain bin was unsafe — that’s why West Side had been hired to begin with. ConAgra relied on the principle that someone who engages an independent contractor to redress an unsafe condition is not liable when the feared event occurs.

The Court agreed, pointing out that Illinois law held that “in a case involving negligent rendition of a service [by an independent contractor] … a factfinder does not consider any plaintiff’s conduct that created the condition the service was employed to remedy.” Here, ConAgra may have delayed in hiring West Side (it rejected other companies for lack of liability insurance), and it may not have provided all of the information about the bin it had, but that does not matter. The evidence showed that West Side was hired to deal with a hot bin, and all liability therefore is on its account. Having hired a self‑proclaimed expert in hot bins, ConAgra was entitled to assume that West Side would ask for whatever information it needed. The Court said that “[p]eople who hire lawyers rely on them to ask for information material to the situation, and no court would hold a client liable to his lawyer for failing to reveal spontaneously something that the lawyer never asked about; similarly people who hire specialists in controlling the risks of grain storage are entitled to rely on them to know what matters and ask for the material information.”

Finally, ConAgra signed and tendered to West Side a contract containing a promise by West Side to indemnify ConAgra for any damage caused by West Side’s negligence. The jury concluded that West Side is liable under this promise, but West Side argued that it did not return a signed copy of the contract to ConAgra. It agreed to undertake the job, and set to work, but did not sign on the dotted line. The district judge thought this irrelevant, because performance usually is as good as a signature as a way to accept a proposed written contract. The Court of Appeals agreed. Knowing the proposed terms, West Side began the work. That was as good as a signature on the dotted line.


Case of the Day for Wednesday, January 20, 2016


Cute ... but varmints

Cute … but varmints

It seems that these furry little critters called marmots dig holes and generally make pests of themselves. At least, that what Pam Tessman would tell you.

She spent July 4th one year at a Wyoming RV park with her son, where at one point in the day she walked through a field and saw a marmot hole, the very one she later tripped on in the dark.

Of course, the fact she knew the hole was there and that the marmot probably wasn’t in the employ of the park owner, didn’t matter to the limping and litigious Pam — she sued park owner Mary Berry anyway. The alliteratively named Ms. Berry might tell you that Pam was something of a varmint herself. Nevertheless, the jury awarded Pam a cool quarter million dollars at trial (reduced by 25% because the jury figured that she should have remembered the hole in the grassy field from earlier that day).

But the Supreme Court of Wyoming had other ideas. Before there can be liability, the Court said, there has to be a duty. And in Wyoming, a landowner isn’t responsible to protect guests from dangers that were known and obvious. Little furry burrowing animals tend to leave holes that are completely natural, the Court said, as well as open and obvious. There was no reason to hold the RV park owner liable for Pam’s clumsy misfortune, or to sting Mary Berry to line Pam’s pocket.

trip150112Berry v. Tessman, 170 P.3d 1243, 2007 WY 175 (Sup. Ct. Wyo., 2007). Pam Tessman was staying at Mary Berry’s RV park. At check-in, Pam asked Mary Berry where she could take her son fishing. Mary Berry pointed Pam to a river just off the property, and Pam followed the directions. She and her son cut behind a bathhouse across several fields, over a broken-down fence and over a set of railroad tracks, to the fishing hole.

Pam saw a lot of adults and kids using the “grassy area” behind the bathhouse to get to and from the river. In fact, on the way back, Pam saw several boys playing by a marmot hole in the field behind the bathhouse. That evening, Pam was watching fireworks when she saw her son was up by the railroad tracks with some children who appeared to be setting off fireworks. Concerned for his safety, Pam left the lit pool area and went out into the grassy area behind the bathhouse to call him back. She stepped in the marmot hole she had seen earlier that day, twisting her ankle.

Pam sued to recover for her injuries. The trial court found in Pam’s favor and awarded her $259,000, which it reduced by 25% for her contributory negligence.

Pam appealed.

Held: The Wyoming Supreme Court reversed the trial court, and Pam got nothing.

The elements of a negligence action are a duty owed the plaintiff by defendant to conform to a specified standard of care, a breach of the duty by defendant, and that the breach of the duty of care proximately caused injury to the plaintiff. A landowner in Wyoming owes a general duty to act reasonably in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Landowners have no duty to protect from known and obvious dangers, even those resulting from natural causes.

However, a plaintiff may show that an otherwise naturally occurring condition does not fall within this rule by showing that the defendant created or aggravated the hazard, that the defendant knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Even a naturally occurring, known and obvious hazard that the landowner has not aggravated could result in liability if the landowner were to create an expectation of heightened safety for people on the premises. The Court saw no reason the known and obvious danger rule should not apply to the ubiquitous hazard posed by the holes of burrowing animals.

slip_and_fall150112However, Pam Tessman hadn’t shown that her circumstances warranted a finding that the marmot hole she stepped in was anything other than a naturally occurring, known and obvious danger, from which Mary Berry had no duty to protect her. She made no showing that Mary Berry owed her any other duty that would support a finding of negligence here. The marmot hole was not a hazard she had created. The marmots weren’t domestic animals or pets but wild animals present in the surrounding area, as well as on the property itself.

Simply enough, the record evidence didn’t suggest that Mary aggravated the danger posed by the marmot hole. To the contrary, the trial court found that Mary tried to minimize the danger from such holes on her property by filling them regularly and by having the animals trapped whenever they became a nuisance. A landowner does not have a duty to protect a guest on her property from a naturally occurring, known and obvious hazard she has not aggravated if she has not, through her own undertaking, created an expectation in her guests that they will be protected from such a hazard.

Mary didn’t create or aggravate the marmot hole that caused Pam Tessman’s injuries, nor did Mary undertake any act that could have caused Pam to rely reasonably on a heightened expectation of safety or special protection from marmot holes on her property. Thus, Pam gets nothing.


Case of the Day for Thursday, January 21, 2016


fence150113Nothing can come between brothers … except maybe an angry ex.

As brothers, Jerry and Kenneth were tight, just good ‘ol boys down on the farm. Their folks had given them 20 acres each, two small farms next to each other.

Ken got his farm first, and he put up a rickety, crooked fence, one good enough to keep cows penned up but not much as a boundary marker. A few years later, he gave brother Jerry permission to put up his own cattle pen, which attached to Ken’s own wandering fence. The upshot of all this sloppy fence building was that a 2.6-acre parcel belonging to Ken was on Jerry’s side of the fence. So what? They were brothers, after all. Ken didn’t mind, and he and Jerry both used the little piece of land. Jerry built a pond on part of it. Ken harvested some of the timber standing on it, and sold the lumber for profit.

So the boys lived side by side, happily ever after. Well, not quite. Seems after about 20 happy years, Jerry’s wife had had enough of the cows, enough and the ponds, and mostly, enough of Jerry. So it was the big “D” for Jerry, and when the smoke cleared, his ex owned a good chunk of his place.

She didn’t much like the ambiguous status of the 2.6 acres, so she sued Ken. Why not? She had just sued his brother, and look how well it turned out for her! The ex claimed the 2.6 acres by adverse possession. However, it turned out that her ex brother-in-law wasn’t the pushover Jerry had been. The trial court agreed that it couldn’t be adverse possession unless Jerry had held the 2.6 acres in a manner hostile to his brother’s rights. And, after all, they were family.

Divorce150113Simply put, there was no evidence that Jerry had fenced in his brother’s land except with his brother’s permission. Permissive possession, simply put, is not adverse.

Cleveland v. Killen, 966 So.2d 848 (Miss.App., 2007). Ken and Jerry each owned a 20-acre tract of land located next to each other in Neshoba County. Ken’s tract was directly north of Jerry’s, and there was a straight property line dividing the two parcels.

Ken received his land from his folks in the 1960s. When Jerry got his in 1970, he wanted to build a fence for some cows. Jerry got Ken’s OK to “tie on” additional fencing to a fence that Ken had built on his own property, a crooked thing that was sort of parallel to the boundary line, but not intended to represent the boundary line. In fact, it seemed none of the parties knew where the exact boundary line was when Jerry built the fence. Since Ken’s fence spanned the middle of the property, Jerry began at the corners and added fencing eastward and westward to the edges of the property. Combined with Kenneth’s portion, this let Jerry fence his cattle without building a fence across the entire property. But because Ken’s original fence was north of the actual property line, the completed fence separated the 2.6 acres in dispute from the remainder of Ken’s property.

split150113For a long time, there was no conflict about who owned the 2.6 acres now in dispute. Jerry used the land for gardening and for animals, and Ken cut timber on the land and built a gate in the fence so he could run his cattle over to Jerry’s pond. But some 20 years after Jerry built the original fence, he put in a pond, about a third of which was on Ken’s land but on Jerry’s side of the fence. There was no conflict over the pond until Jerry’s wife divorced him and got a remainder interest in his 20 acres. Ex-wife Tommie sued Ken when he hired a surveyor to mark the property and then built a fence that represented the true property line. By then, Jerry was suffering from dementia and didn’t testify. The trial court found for Ken, and Tommie appealed.

Held: The land was not lost to Tommie by adverse possession, the Court of Appeals held, affirming the trial court. The Court found that the evidence was sufficient to show that Jerry had had Ken’s permission to use the 2.6-acre parcel in question. The landowners were brothers who had lived side by side with their families for 35 years with no disputes, there was evidence that Jerry had asked for Ken’s OK to build a fence (which Ken had given), the brothers thereafter used each other’s property, Ken brought his cattle across the land to use the pond, and that Ken even cut down some trees located in the disputed area and kept the profit he received from selling the timber.

As a rule, permissive possession of lands — even if continued for a long time — doesn’t confer title on the person who possesses them until a positive assertion of a right hostile to the owner has been made. If there never had been a request or a grant of permission to use land, the use would not have been permissive, but rather would have been adverse. When a close family relationship is involved, proof of adverse possession is not ordinarily as easily established as it is when the parties are strangers.


Case of the Day for Friday, January 22, 2016


the-muffin-man-07So who was it who lived on Byrum Lane-O?

No, it wasn’t the Muffin Man, but the Clarks. They had assembled several parcels of land into a pretty nice cattle spread and homestead along the Jefferson River. And they had always used Byrum Lane. The road passed across their land, across the Dwyer Place and ultimately back to some more of their land and up to their house.

Back in the 1960s, the land around the Byrums’ cow palace had been subdivided in smaller lots for homes, almost none of which (other than the Clarks’ place) had been built. Meanwhile, all the landowners and their guests used Byrum Lane, and had for a long while. The County had even maintained the road sporadically.

But then came the legal drama. When the Clarks completed their new home, the Dwyers (or maybe the Dwyers’ descendants, who were the parties to the case), told the Clarks they couldn’t use the road anymore. The Clarks sued, arguing they had a prescriptive easement. A prescriptive easement is much like adverse possession (the doctrine that lets an especially brazen and long-term trespasser gain title to your land). However, unlike adverse possession, the prescriptive easement isn’t about ownership: rather, it’s about the right to use someone else’s property. If you have used someone else’s driveway openly, notoriously, adversely, continuously and without interruption for the period of time required by statute, an easement in your favor has been created just by force of your chutzpah.

In this case, the Clarks had used Byrum Lane without permission for years, as had their predecessors, and as had just about everyone else. The County had even maintained it for awhile, seemingly uncertain whether it was a public right-of-way or not. The specific issue before the Supreme Court was whether the prescriptive easement extended to the Clarks’ use of Byrum Lane to reach a house on a parcel that didn’t exist when the prescriptive easement came into being. The Court said they could. The land had been subdivided before the prescriptive easement came into being, so the Dwyers had reason to think that if an easement had come into being prescriptively, it could be used to reach one of the homes which were contemplated on the vacant lots.

private160122 Clark v. Heirs and Devisees of Dwyer, 339 Mont. 197, 170 P.3d 927 (Mont. Supteme Court, 2007). The Clarks owned real estate, which they had acquired as several tracts over a seven-year period beginning in 1979. The Dwyers owned real property that bordered a piece of the Clark land with railroad tracks acting as a visible property line. The Dwyer property was bordered on the east by a county road named “Waterloo Road” and on the north by a roadway known as “Byrum Lane.”

Byrum Lane extended from Waterloo Road, across the Dwyer property, and across the northern border of the Clarks’ property – which lay between the Dwyer land and property owned by George and Virginia Byrum – before continuing onto the Byrums’ property lying to the southwest of the Clarks’ land. In essence, Byrum Lane dissects the Clarks’ land.

The Byrums used Byrum Lane by virtue of two recorded easements in their favor. The portion of Byrum Lane crossing the Clarks’ land is a recorded 60-foot wide roadway and utility easement. The portion of Byrum Lane traveling from Waterloo Road over the Dwyer property is a road and utility easement for a 30-foot wide roadway. This portion of Byrum Lane crosses the Dwyer property from Waterloo Road for a distance of about 834 feet before reaching the Clarks’ property.

Historically, Byrum Lane was used by the Clarks and their predecessors to access the tracts the Clarks had purchased. During the period of 1979 to 1986, Byrum Lane served as the Clarks’ sole access to their house. From the period of 1986 to 1991 the Clarks used Byrum Lane to feed livestock, load hay, and move equipment. Later, after they built a new house in 1988 on one of their tracts that previously had no residence, the Clarks continuously used Byrum Lane (although they also had access to their house by way of a roadway from Waterloo Road.)

The Clarks claimed a prescriptive easement along Byrum Lane, allowing them access over the Dwyer property to their land. Following trial, the court found that Byrum Lane had been used by the public and Clarks’ predecessors since the early 1900s, had been maintained by the county road department on occasion, was generally known as a public road which the public had a right to use long before the Dwyers purchased their property, and had been used without permission by the Clarks and Byrums (as well as others) since the time the Dwyers bought their land. The Dwyers and Byrums argued that the Clarks didn’t have the right to use the road to reach a residence on a tract that hadn’t had one when the prescriptive easement came into existence.

The trial court disagreed, saying that all owners of the road were put on notice in the 1960s that the road was intended to service residences when the subdivision of the property into various tracts took place. Thr court concluded that the Clarks established the elements of a prescriptive easement, an open, notorious, exclusive, adverse, continuous, and uninterrupted use of the roadway for at least five years. The Dwyers appealed.

barricade160122Held: The Supreme Court upheld the trial judge. The Dwyers complained that the trial court had no business making findings about the public-use nature of the road. The Supreme Court disagreed, holding that although the action involved an alleged private easement, the public-use findings served only to give credibility to the private-easement claim and had no other legal effect.

To establish a private prescriptive easement, the Court said, a party must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the full statutory period of five years required by Montana Code §70-19-404. An open and notorious use is a distinct and positive assertion of a right that is hostile to the rights of the owner and brought to the attention of the owner. Once a prescriptive easement is established, the owners of the easement are limited to the use and frequency of use that was established during the prescriptive period. If an easement is not specifically defined, it is considered to be of a size that is reasonably necessary and convenient for the purpose for which it was created, and not more. And once established, a prescriptive easement “runs with the land,” which means that the benefit or burden passes automatically to successors.

Applying these principles, the Supreme Court found that the Clarks had a prescriptive easement to use Byrum Lane. The right to use the private prescriptive roadway easement provided subdivision access extended to the Clarks’ and other tracts, lands that never had residences. The tracts were subdivided before the prescriptive easement came into being, the Court said, and the act of subdividing the tracts of land put all landowners on notice that the disputed roadway was intended to service all residences. Furthermore, the disputed roadway had been used to service parcels for several decades.


Case of the Day for Monday, January 25, 2016


bell160125A young girl and her friend sneaked onto church property to play. While they were doing whatever young kids do when they’re where they shouldn’t be, the girl pushed on a bell. The bell fell, injuring her foot. When kids trespass and do stupid things, how do the parents respond? Why, they sue the landowner, of course.

In this case it was a local Catholic Church, getting sued – unusually enough – for something that had nothing to do with sex abuse. Despite the Diocese’s obvious relief at being sued on behalf of a child plaintiff who wasn’t complaining about a priest, the Church nonetheless argued that under Wisconsin’s recreational use law, it enjoyed immunity.

In a strange analysis, the Court of Appeals disagreed. Reba was hurt when she pushed on the bell, and the Court held that her pushing the bell wasn’t related to the game she and her friend had been playing. This, the Court said, was mischief. Plus, the Court said, the Church wasn’t really a recreational property, and the Church didn’t invite people to use it as such. In fact, it took steps to keep kids from playing there. So because Reba was engaging in mischief as a trespasser, and because the Church was arguably acting responsibly in trying to keep this kind of conduct from occurring, it owed Reba a greater duty than had it left the place wide open. This is probably a correct application of the recreational use statute, but it certainly seems — as a matter of public policy — not to make a lot of sense.

"Trespasser William" the kid was not ...

         Remember Winnie the Pooh?  “Trespasser William” young Reba was not …

Fortunately, under Wisconsin law, the Church only would have owed a duty to a trespasser to refrain from willful, wanton, or reckless conduct, about the same result the Church would have gotten from application of the recreational use statute. Unfortunately, a jury found the Church had engaged in such conduct, and it awarded the plaintiff money damages.

You might think that you have no duty to a trespasser wandering onto your property. Guess again.

Fargo ex rel. MacArthur v. United Nat. Ins. Co., 739 N.W.2d 490 (Wis.App., 2007). A child playing house on church property was injured when she tried to push on a bell, which fell and injured her. Through her parents, the girl sued the St. Ignatius Catholic Church for negligence, and a jury awarded her damages. St. Ignatius appealed, arguing that it was entitled to immunity under the Recreational Use law, Wis. Stat. §892.52.

Daffy160125Held:  The award of damages to young Miss Fargo was affirmed. The recreational immunity statute limits the liability of property owners toward others who use their property for recreational activities. The statute defines recreational activity to include “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure…” The statute lists 29 specific activities that constitute recreational activities, but instructs that “recreational activity” should be liberally construed in favor of property owners to protect them from liability.

To determine whether a person was engaged in a recreational activity under the statute, the Court said, a fact-finder should consider the totality of circumstances surrounding the activity, examining the intrinsic nature of the activity, the purpose of the activity — including the injured person’s subjective assessment of the activity — and consequences of the activity. A court should also consider the nature of the property, including whether the owner intended the property to be used for recreational activities, and the reason the injured person is on the property.

The Church should have posted this sign. Er ... on second thought, maybe not .

     The Church should have posted this sign.  Um … on second thought, maybe not .

Here, St. Ignatius argued it was entitled to immunity because young Reba Fargo was injured while playing house with a friend on church property, and this was a recreational activity. The Court disagreed. Instead, it ruled, Reba was injured when she pushed the bell, which then fell on her foot. The Court held that her act of pushing the bell wasn’t related to the game she had been playing. Rather, viewing the activity objectively, she was attempting to move a large, stationary object by pushing very hard.

The Court concluded that this independent act was mischievous, because Fargo was trying to move an object that was not designed to move. Wisconsin law holds that mischievous conduct is not a recreational activity. What’s more, considering the nature of the property, St. Ignatius was a church, not a playground or other place where recreational activity would usually occur. The church made attempts to limit children      playing on its property. While not determinative, that fact was an appropriate factor bearing on the recreational use analysis.

Considering all of the factors, the Court concluded that Reba Fargo was not engaged in a “recreational activity” within the meaning of the Recreational Use statute. Thus, St. Ignatius was not entitled to immunity.

Case of the Day for Tuesday, January 26, 2016


Not showing up may not make you all that interesting ... but it could lighten your wallet.

Not showing up may not make you all that interesting … but it could lighten your wallet.

The Pitts had a nice piece of undeveloped land in the outback of Utah, next to the Pine Meadows Ranch. Mr. and Mrs. Pitts weren’t exactly obsessive about checking on their land. After all, what could possibly go wrong with a chunk of meadow and pine trees?

Well, some lousy neighbors, for one thing. While the Pitts lived in the city, the people at Pine Meadows Ranch turned the Pitts’ rural paradise into … well, the pits. Pine Meadows Ranch dumped its trash on the land, drilled a well — for what, the decision doesn’t mention — and cut down a number of trees. When the Pitts finally discovered the perfidy of their adjoining landowner, they sued.

Pine Meadows Ranch never answered the suit, and the trial court — after waiting a suitable period of time — granted default judgment. The court then took the testimony of Howard Pitts — who said the land was worth $16,000 before the trespass but was “totally ruined” afterwards, the trees constituting $5,000 of the total — and granted judgment for $36,000. The 36 large ordered in the judgment finally got the Ranch’s attention.

On appeal, the Ranch complained that the dog ate its summons or some such nonsense. The Court of Appeals didn’t forgive the Ranch’s non-appearance, but it did reverse the damages. The Court thought Pitts’ conclusory testimony about the value of the trees and land was a little too light on fact to support the award. Additionally, the trial court had observed during the damages hearing that the $36,000 was probably too much, but maybe it would get the non-appearing Defendant’s attention. From that aside the Court of Appeals suspected that maybe the trial judge had assessed $36,000 to punish a no-show.

The case went back down for a new hearing, but there’s an important lesson her anyway: not showing up does not endear a defendant to a court.

Mr. Pitts wasn't sure how many trees had been cut, but he said the property was ruined.

Mr. Pitts wasn’t sure how many trees had been cut, but he said the property was ruined.

Pitts v. Pine Meadow Ranch, Inc., 589 P.2d 767 (1978).  The Pitts alleged that Pine Meadows Ranch or its agents intentionally and willfully trespassed on their unimproved real property, used it as a junkyard and a garbage dump, drilled a well in the middle of it, and destroyed a number of beautiful trees. The Pitts claimed damages in the amount of the full market value of the real property, being $16,000, of which $5,000 was the value of the trees, for which they claimed treble damages under Utah Statute § 78-38-3, together with punitive damages of $10,000.

The Ranch didn’t answer the complaint, and the trial court granted default judgment. After that, the court took Howard Pitts’ testimony under oath, and granted judgment in the amount prayed for, $36,000. The Ranch moved to vacate the judgment, which was denied, and it appealed.

After the Pitts started trying to collect on their judgment, the Ranch appealed.

Held: The default judgment could not be attacked, but the damage award had to be set aside. There was no evidence of market value of the plaintiffs’ property after trespass on which to base a finding of malice or wanton destruction of property.

showup160126The Court observed that the measure of damages for trespass on real property and destruction of the property is generally the difference between the value of the property before and after the trespass. Where there was no evidence of market value of plaintiffs’ property after trespass except a statement that the property was “totally ruined,” nor where any evidence had been provided upon which to base finding of malice or wanton destruction of property, the defendants were entitled to new hearing on damages issue.

The Supreme Court said that Mr. Pitts’ bare statement that the destroyed trees constituted $5,000 of the value of the property was the only evidence to support the treble damage award. Under these circumstances, the Court said, it did not find sufficient credible evidence to support the judgment of $36,000.

The record showed that the trial court thought the $36,000 to be too much, but said, “Well, if they respond to a judgment of this size, if they are faced with a collection problem maybe they will respond.” The Supreme Court found that the trial court entered judgment in that amount because the defendants had been dilatory, and he thought a large judgment would bring them into court. When the defendants did respond to the big judgment, the trial court refused to overturn it because at that time to do so would be an injustice to the plaintiff.

Damages have to be based on stronger evidence than that.


Case of the Day for Wednesday, January 27, 2016



Unlike the kid above, our Ralph wasn't quick like a bunny when the branch fell.

Unlike the kid above, our Ralphie wasn’t quick like a bunny when the branch fell.

When the elder Mr. Eagle volunteered to help trim a tree at his church, his son tagged along. It seems that Ralphie was anxious to help Daddy.

Ah, the brashness of youth. The lad (he was 50 years old, but he still lived with mom and dad, so he was unquestionably a kid, albeit a big one), shouldered the three septuagenarians out of the way and climbed the ladder himself. Well, one thing led to another, and the group of tree-trimming amateurs lost control of a limb. The limb fell, the 70-year old man holding the ladder jumped out of the way to avoid being hit, and the falling limb knocked the ladder out of the way. Ralphie fell off the ladder and he landed — hard.

Having his eye on the collection plate, the litigious Eaglet sued the Church, the other retirees and, of course, his own father (with whom he resided) for negligence. He claimed that the volunteers were acting as agents of the church, making the church liable.

The trial court would have none of this, and threw the case out. The Court of Appeals agreed, finding that as volunteers, the tree trimming crewmembers owed each other reasonable care at most. And it wasn’t reasonable to believe the man holding the ladder would stand and take a hit when the limb fell. There wasn’t evidence that any of the trimmers were negligent, so the Church couldn’t be liable.

As for premises liability, the Court said, the evidence showed Eagle had volunteered to help three old men do something dangerous: he should have seen it coming. In reading the decision, one gets the impression that neither the trial court nor the appellate panel thought much of the young Eagle, who horned in on the volunteer effort, ignored his father’s request that he not participate, and then — after getting hurt — suing everyone involved.

FallingMan15101Eagle v. Owens, Case No. C-060446 (Ct.App. Hamilton Co., 2007). A small church needed some tree trimming performed. During a Sunday service, the pastor had asked for volunteers to perform the tree-trimming task. The church typically relied on volunteers for landscaping work, including potentially dangerous work such as trimming trees. Merida and Owens volunteered for the task. Both had performed similar tasks for the church on several occasions in the past without incident.

Before leaving the church that day, the two volunteers stood by the tree to examine what had to be done. When Eagle’s father walked by, they recruited him to help them. Eagle’s father was a deacon of the church, an unpaid, rotating position that required him to make decisions for the church’s benefit with the four other deacons. Ultimately, the three men, all over the age of 70, agreed to meet the next morning to perform the task.

When the elder Eagle arrived the next day, he brought his 50-year old son with him. The son thought the other volunteers were too old, so he took over trimming from a ladder perch. Before the younger Eagle began sawing, his father insisted on changing the position of the rope around the limb. Merida remembered telling Eagle’s father that he did not like the change, but he claimed that he deferred to him because he was a deacon. The limb did not fall cleanly, and its branches knocked over the ladder the younger Eagle was standing on. One of the men who had been holding the ladder ran to avoid being struck by the limb. Eagle fell and was injured.

He sued everyone who was there, as well as the church, alleging that they had “carelessly and negligently caused a tree limb to fall and strike” him. He also alleged that his father, Owens, and Merida were acting as agents or employees of the church when the accident occurred, and that the church was responsible for the acts of its agents. The individual defendants moved for summary judgment on the basis that Eagle had assumed the risk of any injury by participating in such an inherently dangerous activity. The church moved for summary judgment on the respondeat superior claim, arguing that it could not be liable where the individual defendants were not negligent and were not agents of the church, and where Eagle had assumed the risk.

The trial court granted summary judgment for the defendants without giving any reasons or issuing a decision. The younger Eagle appealed.

Held: The young Eagle’s wings were clipped. The Court agreed with the trial court’s dismissal, holding that as nonprofessional volunteers, the defendants at most owed Eagle a duty of reasonable care under the circumstances. Eagle did not present any testimony, expert or otherwise, to demonstrate how his father’s, Merida’s, or Owens’ conduct fell below a standard of reasonable care. No one foresaw that the branches on the limb would strike Eagle after breaking off from the trunk, and no one expected Owens to hold the ladder if it swayed while Eagle was on it, because it was obvious that he was physically unable to do so. And if he had stayed to steady the ladder, he likely would have been struck and injured by a large limb.

fallsign150114The Court held that the duty of reasonable care did not require such a foolish act of bravery, despite Eagle’s assertion that he would have steadied the ladder and suffered the blow of the limb if the roles had been reversed. To establish a claim against the church under the doctrine of respondeat superior, the record must demonstrate that a principal-agent relationship existed, and that the tortious conduct was committed by the agent while in the scope of his agency.

Here, the Court said, it did not need to determine whether reasonable minds could have concluded that any of the three men were agents of the church and whether Eagle was injured by acts taken within the scope of that agency, because the individual defendants did not act tortiously towards Eagle in carrying out the task. Where there is no actionable conduct by an agent, there can be no vicarious liability for the principal. Finally, on the claim of premises liability, the Court held that in determining the duty the church owed to Eagle, it had to focus on Eagle’s status as a participant in the tree-trimming task, because his injury resulted from his participation in this task and not from his status as a person present on the church’s property in general.

It was undisputed that Eagle was warned of the danger; that the church had always used volunteers, including Merida and Owens, to perform similar tree-trimming tasks in the past; and that these volunteers had performed in the past without incident. Eagle did not present any testimony from a tree-trimming professional to attack the church’s decision to use these same volunteers to remove this limb. The Court concluded that reasonable minds could come to but one conclusion, and that conclusion was that the church did not breach a duty of care owed to Eagle.


Case of the Day for Thursday, January 28, 2016



Mark Twain once said, “An expert is just somebody from out of town.” In the eyes of the law, it’s a little more than that. Certified arborists, operators of tree trimming services, even just guys from out of town – just about anyone can be qualified by courts as expert witnesses.

And what good is an expert witness? Primarily, experts testify not to facts, but rather to opinions. Juries like opinions. Opinions sway juries.

In a tree case like today’s from Arkansas, a frolicking bulldozer operator wiped out a bunch of a neighbor’s trees. Clearly, she was entitled to damages. But how much would the damages be? She hired the county extension agent to testify as to the value of the trees that had been cut down. The defendant complained that the expert relied on timber sales reports written by others, but the Court of Appeals accepted his opinion, and in the process explained what type of research process it wanted to see as a basis for an expert opinion.

Of course, the state’s treble damages statute, which multiplied the value of the lost timber by threefold, made the expert’s opinion all that more important to both sides. Incidentally, the defendant tried to argue that there was no proof that the bulldozer operator was his agent, but that was a mere sideshow: the evidence was overwhelming on that point.

Expert150116Jackson v. Pitts, 93 Ark.App. 466, 220 S.W.3d 265 (Ct.App. Ark. 2005). Richard Jackson owns land just north of land owned by Nora Pitts. Pitts claimed that Jackson or people acting for him bulldozed trees on her land where it borders that of the Jackson. Lloyd Pitts,

Nora’s son, saw John Moore operating a bulldozer in the area of the destroyed timber, which was located on Pitts’s property line with Jackson’s land. Lloyd said he walked along his mother’s land shortly afterward and saw holes where trees had been removed from the bulldozed ground. Another witness saw the bulldozer activity on Pitts’ property, and said that the bulldozer operator told him that he had been directed by Jackson to perform the work. The trial court found that the Jackson and Moore trespassed Pitts’ land and destroyed marketable timber, setting the value of the destroyed timber at $1,157.20. Treble damages allowed under §18-60-102 of the Arkansas Code increased the judgment of $3,471.60. Jackson appealed.

Held: The trial court judgment was upheld. Jackson claimed that treble damages were unjustified, but the Court disagreed. The imposition of treble damages in a trespass action for trees damaged, broken, destroyed, or carried away requires a showing of intentional wrongdoing, although intent may be inferred from the carelessness, recklessness, or negligence of the offending party.

Here, the Court said, the evidence was sufficient to support a finding that an agency relationship existed between Jackson and the bulldozer operator such that Jackson was liable for the operator’s damage to Pitts’ timber. Lloyd Pitts saw the bulldozer on his mother’s property operating in the area of the damaged timber, and saw Moore operating it. Another witness said Moore said he was working for Jackson. Jackson admitted he had hired Moore to work on his property with a bulldozer, and that if any trees had been removed from Pitts’ property, it would have been done by Moore.

Mark Twain says there are none of these ...

Mark Twain says there are none of these …

As for the amount of damages, the Court said, the evidence in each trespass case determines what measure of damages should to be used to value trees damaged, broken, destroyed, or carried away. Timber is generally valued according to its “stumpage value,” which is the value of the timber standing in the tree. Here, Pitts’ expert witness gave testimony of the estimated number of trees destroyed by Moore, and their market value at the time. The evidence was admissible, the Court said, even though the opinion relied in part on hearsay. The expert described the methodology he used to compute timber value within a specified area, which included diameter measurements of randomly-selected trees, an estimate of the timber volume multiplied by the number of trees within a specified area, and the use of a university timber market report to obtain an estimated market value.

What’s more, the Court observed, the expert testified he personally walked the area to conduct his measurements and testified he walked off the area that was bulldozed, and then went into the woods next to that area to measure a similar amount of land and counted the trees within it. The Court said an expert witness may base an opinion on facts or data otherwise inadmissible, as long as the facts or data are of the type reasonably relied on by experts in that particular field.


Case of the Day for Friday, January 29, 2016


mmma160129Every red-blooded American boy (and girl, for that matter) knows the story of Mike Mulligan and Mary Anne. Work had dried up for the pipe-smoking Mike and his redoubtable steam shovel, they took a job in Popperville digging the basement for the new town hall. The selectmen — especially one named Henry B. Swap — were dubious of Mike’s claim that Mary Anne could dig the basement in one day, so they made a deal with Mike that he wouldn’t get paid unless he completed the work in the time allotted.

Mike didn’t make the deadline, but the story had a happy ending anyway. Such was not the case for Terry W. Henry. Terry, an experienced timber harvester, needed work. He asked Bobby Hubbard, who ran a timber company working several tracts of leased land, for a job. Now Bobby appears to be one of those kinds of employers, you know, the kind of guy who “tries out” people and then finds them deficient, not hiring them and, for that matter, not paying them for the “try out” period. On top of that, Hubbard made everyone an independent contractor, paying them in cash without any withholding and without any tax reporting whatsoever.

While Terry Henry was on his one-day “tryout” — the deal being that he would get paid if Hubbard found his work acceptable —  a tree branch fell on him. Of course, Bobby “Captain All-heart” Hubbard refused to pay him for the day’s work and fought Henry’s workers’ compensation claim. The Board found that under the law, Henry was an employee, despite the conditional promise of payment. Hubbard argued that Henry would have become, at best, an independent contractor and been ineligible for workers’ comp. But he abandoned his argument at the Workers’ Comp board level, and the Supreme Court wouldn’t let his lawyer resurrect the argument when the Court of Appeals hadn’t heard it. If he had made the independent contractor argument, he might have been off the hook, but it’s hard to see the “independent contractor” argument as anything more than a tax and responsibility dodge.

work160129Still, Hubbard’s lawyer flubbed the case procedurally by not keeping the issue alive. Maybe Hubbard had his mouthpiece working under a “tryout” deal, too, and he won’t have to pay his solicitor.

Hubbard v. Henry, 231 S.W.3d 124 (Sup.Ct. Ky., Aug. 23, 2007). Henry had operated a bulldozer and cut timber for about ten years. He responded to an ad that Hubbard, a licensed master logger who leased the right to harvest timber from landowners, had placed. Hubbard usually employed four workers to operate a bulldozer and cut and load the timber under written employment contracts. The workers were independent contractors and supplied their own saws, chaps, and safety equipment, while he provided the bulldozer, skidder, gasoline, chains, and files.  Hubbard  paid them weekly in cash for days worked, and he did not withhold taxes or issue a Form 1099 for their pay.

Henry B. Swap

     Henry B. Swap had nothing on Bobby Hubbard …

Because Hubbard wanted to be certain that Henry could do the job, Henry agreed to work on a trial basis for a couple of days and to receive no pay unless Hubbard was satisfied with his work. Henry recalled that they discussed pay of either $10.00 per hour or $100.00 per day (which Hubbard disputed) and said Hubbard never told him he would be hired as an independent contractor. Henry cut a number of poplars, one of which fell into a sycamore tree. Another worker then showed Henry how to do a hinge cut, and a branch from the sycamore struck him on the head, injuring him severely.

Henry later asked Hubbard to pay him for the day that he worked, but Hubbard refused, but gave him some money later but did not say that it was payment for the work. Henry filed for workers compensation payments, asserting he had been hired and was working as an employee when he was injured.  Hubbard countered that Henry had not been hired and was working on a trial basis only or — even if he had been hired — he was an independent contractor rather than as an employee. The ALJ found Henry was working on a trial basis when he was injured. Nothing that state law premised employee status on the existence of a contract for hire, the ALJ also found that Henry failed to show a meeting of the minds sufficient to impute an implied contract for hire or to show that he expected to be paid for the work that he performed on the date of his injury.

Henry asserted to the Board that the ALJ erred by concluding that there was no implied contract for hire, by concluding that he worked on a trial basis but was not hired, and by failing to determine that he worked as an employee. The Board held as a matter of law that Henry was Hubbard’s employee, noting the undisputed evidence that Hubbard’s outfit was a logging company in the business of harvesting lumber for profit and that, at the time of Henry’s injury, he was harvesting timber at a job site that Hubbard controlled.

The Court of Appeals affirmed, and Hubbard appealed.

pinno160129Held: Workers compensation benefits were awarded. The workers’ compensation statute defines “employee,” for coverage purposes, to include every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury. It is intended to protects workers who are injured while performing work in the course of an employer’s business by considering them to be “employees,” despite the lack of a formal contract for hire, unless the circumstances indicate that the work was performed with no expectation of payment.

Under the statute, Henry was an “employee” when he was injured during his tryout for employment as a timber cutter, despite the fact Hubbard would owe Henry nothing if Hubbard was dissatisfied with the work. There was a contract of sorts, one which held that Henry would be hired and paid for work unless Hubbard was dissatisfied with his work. A co-worker did not state that he would have discouraged Hubbard from hiring Henry, and Hubbard did not indicate that he was dissatisfied with Henry’s work or would not have hired him had he not been injured.

The issue of whether Henry was an independent contractor in the course of an employer’s trade, business, profession, or occupation — who by law had effectively elected not to be covered by the Workers’ Compensation Act — was not properly preserved by Hubbard from the decisions below.