Cases from June 2014

Case of the Day – Monday, June 2, 2014

FOOL FOR A CLIENT

 

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

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

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

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

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

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

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

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

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

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

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

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

Case of the Day – Tuesday, June 3, 2014

UNSNARLING DUTIES

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

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

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

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

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

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

Jones appealed.

Held:   Indiana Bell owed Jones nothing.

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

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

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

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

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

Case of the Day – Wednesday, June 4, 2014

OOPSIE!

“We’re sorry, so sorry …”    Just warmin’ up for today’s case on mutual mistake.  It all started with a barren cow with a fancy name, Rose 2nd of Aberlour (popularly mislabeled as “Aberlone”), in the case of Sherwood v. Walker, the classic case on mutual mistake in contract law.  And the doctrine’s alive and well. 

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

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

In order to provide grounds to rescind (undo) a contract, the mistake must be mutual.  The Battle of New Orleans was a mutual mistake – Andy Jackson thought we were at war with the British, and British Admiral Thomas Cochrane thought they were still at war with the U.S.   Tiananmen Square, on the other hand – which happened 25 years ago today unless you’re in China (in which case it never happened at all) – was not mutual mistake.  The protesters thought the government would never massacre them for demanding more personal freedom; the government knew better.

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

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

The Thomases appealed.

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

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

Case of the Day – Thursday, June 5, 2014

STRAINED RESULT IN GEORGIA

Every morning, we look to the left and right as we pull onto the main street, only to stare into an ill-placed car wash sign. The First Armored Division could be rolling into town, and we couldn’t see it the M1A1s coming before they flattened our Yugo.

So every morning we wonder whether the sightline obstruction might not make someone liable to our next of kin when the inevitable happens. As it did one rainy night in Georgia.

A car had a chance encounter with a dump truck at a Georgia intersection. The pickup driver perished. Investigators suspected that untrimmed shrubs on vacant property at one corner of the crossroads, as well as a “curvature” in the road, made the intersection dangerous. The intersection had experienced several other accidents due to visibility.

In the aftermath of the tragic auto accident, the victim’s survivors sued the Georgia Department of Transportation, claiming it had a duty to keep trees and shrubs from a vacant lot trimmed back to protect the sight lines at the intersection in question. The trial court disagreed.

On appeal, the Court agreed that as a matter of law, DOT had no duty to maintain the intersection. But it did have a duty to inspect. It seemed that an issue of fact existed as to whether the vegetation had encroached on the highway right-of-way. But the Court discounted the plaintiff’s expert opinion that encroachment had occurred, because DOT contended it didn’t know where the right-of-way began, so who knew?

The result seems to turn summary judgment on its head, letting DOT off the hook without a trial when a real fact issue ­– the location of the highway right of way – remained. We were left as confused about liability afterwards as we were beforehand. And we still can’t see down the street.

Welch v. Georgia Dept. of Transp., 642 S.E.2d 913 (Ct.App. Ga., 2007). Addie D. Welch was killed when her vehicle hit a dump truck at an intersection. A policeman said the overgrown bushes on the northwest corner of the intersection contributed to the accident. A sheriff’s department investigator said overgrown shrubs on the vacant property and a “curvature” in the road combined to make the intersection dangerous. Several other accidents due to visibility had occurred previously at the intersection.

Welch’s expert witness said that a driver’s line of sight was obstructed by overgrown shrubs and trees on the northwest corner of the intersection. The expert said that the overgrowth extended two feet into the Georgia DOT right-of-way, and that DOT was responsible for maintaining the line of sight. The expert also said American Association of State Highway and Transportation Officials’ (AASHTO) guidelines for that intersection require a line of sight of 430 feet. Because of the overgrown vegetation, Welch’s line of sight was between 143 and 277 feet.

After the accident, DOT employees helped remove the overgrowth. Claiming that trees and shrubs on the property adjacent to the intersection were negligently maintained and obstructed her line of sight, Welch’s estate and surviving children and grandchildren sued the Georgia DOT. DOT moved for summary judgment, arguing that state law precluded plaintiffs’ claim, or in the alternative, that plaintiffs presented no evidence that Welch’s line of sight was obstructed. The trial court granted DOT’s motion, and Welch appealed.

Held: DOT was not liable. The Court ruled that DOT was immune under OCGA § 32-2-2. That statute gives DOT has the general responsibility to design, manage and improve the state highway system. But, where state highways are within city limits, the DOT is required to provide only substantial maintenance and operation, such as reconstruction and resurfacing, reconstruction of bridges, erection and maintenance of official department signs, painting of striping and pavement delineators and other major maintenance activities.

Although the road Welch was on was a state highway, the intersection lay within the corporate limits of Quitman. Accordingly, DOT was required only to provide substantial maintenance activities and operations. Those activities, the Court said, did not include the maintenance of shrubbery and vegetation. Thus, the statute did not impose a duty on DOT to maintain the shrubbery. But Welch also argued that another statute, OCGA §50-21-24(8), made DOT liable for failing to inspect its right-of-way. In order to prevail on this claim, the Court said, Welch had to show that the vegetation extended into DOT’s right-of-way. DOT argues that the overgrowth was on private property.

Although Welch’s expert believed the vegetation encroached on the DOT right-of-way, the Court agreed with DOT’s view that the extent of the right-of-way couldn’t be ascertained without using courthouse records and surveyors. Because Welch’s expert had not relied on DOT testimony to opine that vegetation extended into the right-of-way, and the Court found that the evidence was uncertain as to the location of the right-of-way, Welch’s expert’s opinion that vegetation extended into the right-of-way was disregarded, and plaintiff was found not to have established DOT’s liability.

Case of the Day – Friday, June 6, 2014

LIS BLUDGEONS

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

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

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

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

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

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

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

The Castelanellis appealed.

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

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

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

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

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

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

Case of the Day – Monday, June 9, 2014

CHUTZPAH, CONNECTICUT STYLE

So you like your wild mountain property, with its clean, sparkling streams and majestic trees? You like to think that it will always look as pristine and undeveloped as it does right now. To make certain, when you finally sell it, you place some restrictions on the deed, so that there won’t be any double-wide trailers, pre-fab A-frame chalets or tar paper shanties.

Seems reasonable, doesn’t it? But eventually the people you sold the land to sell it to someone else, and the someone else has a really good lawyer. “This is Connecticut!” the solicitor tells his client. “We can beat this restriction!”

And lo and behold, that’s just what he does. It seems in Connecticut, the terms on which you were originally willing to sell your land don’t much matter. In today’s case, the heirs of the original nature-lovin’ owner suffered a lot of angst when they finally sold off most of the lake property. But the buyer won them over, even agreeing to a development restriction on part of the land, in order to preserve its natural character. A few years later, that buyer sold the land to the Williams, who had been convinced by their lawyer that the restriction wasn’t enforceable. The new owners promptly sued for a declaratory judgment that the restriction was void.

The Connecticut court agreed that it was. It fell outside of the three traditional categories of restrictions that ran with the land. Even so, the Court said, it could be enforced under equitable principles. But it wouldn’t do that, the Court said, because it would be so unfair to the buyers of the land. After all, the Court said, it wasn’t clear who the beneficiary of the restriction was or who could enforce it. Therefore, the Court held it would be unfair to the buyers because — and we’re not making this up — they “bought the property because they thought the restriction was unenforceable. If the restriction is found enforceable, the property could only be developed for recreational purposes and would be far less valuable. Devaluing property without a clear beneficiary is not reasonable.”

The decision certainly turns common sense on its head. Where a seller is unwilling to sell unless a restriction is placed on the land, it’s hard to argue that the continuing restriction harms marketability. It’s more marketable than if the seller doesn’t sell at all. And for that matter, should it be the law’s business to promote marketability over a seller’s free will?

It seems safe to imagine that as conservation — and especially forest preservation because of “climate change” concerns — is of increased public policy importance, the notion of “marketability” and the free right to develop may become less of a holy grail. As it probably should.

Williams v. Almquist, 2007 WL 3380299 (Conn. Super., Oct. 30, 2007) (unreported). Robert Bonynge bought a 150-acre tract of land at Lake Waramaug in 1898, which he later conveyed away in several parcels. Although some of the original tract was sold in the 1930s, and some of the heirs owned certain parcels outright, a 105-acre tract was eventually sold to Lee and Cynthia Vance by the Bonynge heirs in 2001. The negotiations for that sale were a difficult and emotional process, with the primary concern of the heirs to conserve the natural condition of the property. The Vances agreed to give some of the land and a conservation easement to the Weantinoge Heritage Land Trust. Also, they agreed a restriction on 8.9 acres of the property: “There shall be no construction or placing of any residential or commercial buildings upon this property provided that non-residential structures of less than 400 square feet may be constructed for recreational or other non-residential purposes and further provided that the property may be used for passive activities such as the installation of septic and water installations, the construction of tennis courts, swimming pools and the construction of facilities for other recreational uses.”

David and Kelly Williams bought part of the 8.9-acre tract in 2005 from the Vances, still still subject to the restriction agreed upon in February 2002. Shortly thereafter, the Williams entered into an agreement with the Vances in which the Vances waived their right to enforce the restriction. The Williams then sued for declaratory judgment against the Bonynge heirs, asking the court to declare the restriction in their deed void and unenforceable.

Held: The restriction on the Williams’ land is unenforceable. The Court noted that restrictive covenants generally fall into one of three categories: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee presumptively or actually for his benefit and protection of his adjoining land which he retains. Here, the restrictive covenant did not fall under the first category because it originally arose from the sale of the Bonynge heirs’ land to the Vances, not from an exchange of covenants between adjoining landowners. Likewise, the second category did not apply. Rather, that category applies under a general developmental scheme, where the owner of property divides it into building lots to be sold by deeds containing substantially uniform restrictions, any grantee may enforce the restrictions against any other grantee. But in this case, the Court ruled, the evidence suggested that a common plan or scheme did not exist.

The restrictive covenant did not fall under the third category either. Where the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor’s successor in title can enforce, or release, the covenant depends on whether the covenant was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant expressed therein, read in light of the circumstances attending the transaction and the object of the grant. The question of intent is determined pursuant to the broader principle that a right to enforce a restriction of this kind will not be inferred to be personal when it can fairly be construed to be appurtenant to the land, and that it will generally be construed to have been intended for the benefit of the land, since in most cases it could obviously have no other purpose, the benefit to the grantor being usually a benefit to him as owner of the land, and that, if the adjoining land retained by the grantor is benefitted by the restriction, it will be presumed that it was so intended. Here, three of the Bonynge heirs retained property near the 105-acre tract, but did not own property directly adjoining or overlooking the restricted tract. As such, the Court said, there was no presumption that the restriction was meant to benefit their land. The deed didn’t say as much: in fact, the deed didn’t indicate that the restriction was meant to benefit anyone at all. With no mention of beneficiaries in the deed and no testimony regarding the intent of the retaining landowners, the Court held, the restriction could not fall under the third category.

The trial court said it could properly consider equitable principles in rendering its judgment, consistent with Connecticut’s position favoring liberal construction of the declaratory judgment statute in order to effectuate its sound social purpose.

Although courts before have approved restrictive covenants where they benefited a discernable third party, the Court here found that the restriction was not reasonable because it had no clear beneficiary and limited the marketability of the property. The possible beneficiaries were the Bonynge heirs, only those heirs who retained property in the Lake Waramaug area, the other residents in the Lake Waramaug area, the Vances, or simply nature itself. Without a discernible beneficiary, the Court ruled, it was difficult to determine who could enforce the restriction and for how long.

The restriction also unreasonably limited the marketability of the property. Although restrictions are often disfavored by the law and limited in their implication, restrictive covenants arose in equity as a means to protect the value of property. Here, no identifiable property was being protected by the restriction. The plaintiffs bought the property because they thought the restriction was unenforceable. If the restriction is found enforceable, the property could only be developed for recreational purposes and would be far less valuable. Devaluing property without a clear beneficiary, the Court said, was not reasonable.

Case of the Day – Tuesday, June 10, 2014

BOUNDARY TREES BELONG TO US ALL

Don’t start singing “We are the World” just yet, but trees that grow on the boundaries between properties generally belong to us all, at least all of us who own the properties on which the tree sits. That’s the general law … but not in Colorado.

In today’s case, the Rhodigs loved the trees planted along the property line.  They cared for them, added to the tree line, and even replaced one when it died.   You know what happens when trees grow. They get bigger, a botanical phenomenon that is beyond the scope of this blog.  But trust us on this.  Over a 20-year period, these particular trees grew so they finally stood astride the boundary line of the properties.  One, due to a slight miscalculation on the Rhodigs’ part, was entirely (but very slightly) on the neighbors’ land.

At least that’s where they stood until Mr. Keck moved in and cut them down.  The Rhodigs sued, claiming the trees that grew on both properties were owned as tenants in common. This was important, because the traditional rule was that in such a case, neither party could cut down a tree without the consent of the other. The Supreme Court of Colorado held that whether the trees grew on the boundary wasn’t as important as what had been the agreement between the parties when the trees were planted. There has to be meeting of the minds as to the planting, the care, or even the purpose of the trees, the Court said, because without an agreement, one party cannot have an ownership interest in something affixed to someone else’s land.

A spirited dissent argued the traditional English rule — that held that trees straddling a boundary belonged to both parties as tenants in common — makes more sense. Certainly, it saves a lot of judicial hair-splitting as to agreements and courses of dealing between two neighbors who were now in court.

Rhodig v. Keck, 161 Colo. 337, 421 P.2d 729, 26 A.L.R.3d 1367 (Sup.Ct. Colo. 1966).  The Rhodigs sued Roy Keck for malicious and wanton destruction of four trees which allegedly grew on the boundary line between the Rhodig and Keck properties. Keck admitted removing the trees but alleged that they were completely on his property and that he had the right to destroy them.

When the Rhodigs purchased their property, there were two trees standing near the lot line. In 1943 Rhodig planted two more trees in a line with the first two. Later one of the original trees died and the Rhodigs replaced it. In 1962 Keck, wishing to fence his property to the south of Rhodigs, had a survey made of the lot line. This showed that one tree was entirely inside Keck’s property by three inches; a second tree, 18 inches in diameter, extended four inches onto Rhodigs’ land and was 14 inches on Keck’s lot; a third tree, eight inches in diameter, extended two inches onto Rhodigs’ land and was six inches on Keck’s lot; the fourth tree, which was 16 inches in diameter, was growing five inches on Rhodigs’ land and 11 inches on Keck’s lot.

As a result of the survey, Keck removed the trees. Incidentally, the Rhodigs had done their own survey 10 years earlier, and their findings matched those of Mr. Keck. In fact, they had tried to buy a strip of land with the trees from Mr. Keck without success.

The trial court granted Keck’s motion to dismiss at the close of plaintiffs’ case, finding that the Rhodigs had failed to establish that they were owners of the trees. The Rhodigs appealed.

Held:  The Court held that the Rhodigs’ contention that they and Keck were tenants in common of the trees did not hold. It said “the trees in question, when planted, must necessarily have been wholly upon Keck’s property and no agreement or consent was shown concerning ownership. The mere fact that the Rhodigs testified that they owned the trees and maintained them is not sufficient evidence to permit a recovery. This is so because they could not own something affixed to Keck’s land without some agreement, right, estoppel or waiver. Apparently a test in determining whether trees are boundary line subjects entitled to protection is whether they were planted jointly, or jointly cared for, or were treated as a partition between adjoining properties. In the instant case none of these attributes was proved by the plaintiffs.”

The Court held that one of the trees — being wholly on Keck’s land — was not involved in the dispute at all. As to the other three trees, the Court said, the Rhodigs had failed to prove a legal or equitable interest in them, meaning that the legal owner of the land — Mr. Keck — had the right to remove the encroachment.

The judgment was affirmed.

Case of the Day – Wednesday, June 11, 2014

ALL YOUR TREE ARE BELONG TO US

If you were not following Internet culture (as oxymoronic as that phrase may be) back in 2001, you might not recognize the badly-mangled taunt “All your base are belong to us,” derived from the poorly-translated Japanese video game, Zero Wing. It became a cult classic in 2001, and the melodious strains of the techno dance hit Invasion of the Gabber Robots can be heard in some of the goofier corners of the ‘Net – and there are plenty of those – to this very day.

In today’s case, an elm tree stood on the boundary line between the Ridges and the Blahas. One can almost imagine Mr. Blaha — who was tired of the mess the elm made every fall — announcing to the tree that “you are on the way to destruction!”  But the problem was that, contrary to Mr. Blaha’s belief, all the tree’s base did not belong to him, at least not just to him. Rather, the base of the tree straddled the property line between the Blaha homestead and the Ridges’ house.

Unlike the Colorado decision of Rhodig v. Keck, which we discussed yesterday, the Illinois court did not require that the plaintiff show who had planted or cared for the tree.  Instead, its analysis was simple: the tree grew in both yards, and thus, the Ridges had an interest in the tree, as did the Blahas. This made the landowners “tenants in common,” and prohibited either from damaging the tree without permission of the other.

The Illinois view, which is the more common approach that Colorado’s “husbandry” test, is the prevailing view in the United States. In this case, the Court issued an injunction against Mr. Blaha prohibiting him from cutting down the tree. For great justice.

Ridge v. Blaha, 166 Ill.App.3d 662, 520 N.E.2d 980 (Ct.App. Ill. 1988).  The Ridges sought an injunction against the Blahas to prevent them from damaging an elm tree growing on the boundary line between their respective properties. After living with the elm for many years, the Blahas tired of the tree’s unwanted effects and decided to remove it with the help of an arborist. The Ridges were not consulted, however, and when arborist Berquist came to remove the tree, plaintiffs objected that the tree belonged to them and that they did not want it destroyed.

The evidence showed that the base of the tree extended about 5 inches onto the Ridges’ property, but that the tree trunk narrows as it rises so that at a height of 1.25 feet, the trunk is entirely on Blahas’ side of the line. Photographs were also introduced which showed the tree interrupting the boundary line fence. The trial court found that no substantial portion of the elm’s trunk extended onto the Ridges’ property and that, as such, they did not have a protectable ownership interest in the tree. The Ridges appealed.

Held: The Ridges had a protectable interest. The Court held that the fact that a tree’s roots across the boundary line, acting alone, is insufficient to create common ownership, even though a tree thereby drives part of its nourishment from both parcels. However, where a portion of the trunk extends over the boundary line, a landowner into whose land the tree trunk extends had protectable interest even though greater portion of trunk lied on the adjoining landowners’ side of boundary. That interest makes the two landowners tenants in common, and is sufficient to permit the grant of an injunction against the adjoining landowner from removing the tree.

Move Zig.

Case of the Day – Thursday, June 12, 2014

WHEN A TREE GROWS INTO A BOUNDARY – AND CAUSES A NUISANCE

Trees often don’t start out straddling property lines. Rather, they sprout as carefree saplings, but later grow above and below the ground without regard for metes and bounds.

Do you remember Flap Your Wings? It’s a great children’s book by P.D. Eastman, a story in which Mr. and Mrs. Bird suddenly find an oversize egg in their nest, placed there by a well-meaning stranger who found the orb on the ground and wrongly deduced it had fallen from the tree? They love and care for the egg, but it hatches into something that unexpectedly becomes a real nuisance in their nest.

When the Bergins planted a tree on their land in 1942, they had little idea that it would grow into a big problem. The tree thrived over 25 years, a great oak from a little acorn having grown.  (All right, it was an elm, but you take the point …) It expanded from its modest plot toward and across the boundary line with their neighbors, in the process knocking the neighbors’ chain link fence out of line, raising the sidewalk and causing drainage problems.

The Holmbergs argued that the tree was a nuisance, and demanded that the Bergins remove it. The Bergins argued that the tree was a boundary tree, and it thus belonged to both the neighbors and to them commonly. They thus could not be seen to be maintaining a nuisance.

The Court disagreed with the Bergins’ defense, ultimately adopting the rationale of the Colorado case of Rhodig v. Keck. It was the intent of the parties, the Court ruled, not the location of the tree, that governed whether the tree was a boundary tree.

Here, the Bergins planted and maintained the tree exclusively. They and the Holmbergs neither treated nor intended the elm to be a boundary tree. Instead, the tree ended up straddling the boundary only by an accident of growth. No matter where the tree had grown to encompass, it remained the Bergins’ tree, and the court found it to be a nuisance.

The damage wrought by the tree makes an interesting comparison to the 2007 Virginia decision in Fancher v. Fagella on encroachment and nuisances. The tree’s shallow root system made remedies short of removal infeasible, and the roots seemed to run just about everywhere. The case is an excellent illustration of how the facts of the particular growth at issue can drive a court’s decision.

Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (Sup.Ct. Minn. 1969). The Bergins and Holmbergs were adjoining landowners in Minneapolis. In 1942, the Bergins planted an elm tree on their property about 15 inches north of the boundary line, and they have maintained the tree and have exercised sole control over it since that time. The Holmbergs bought their place 10 years later, and constructed a chain-link fence on their property 4 inches south of the common boundary line. When the fence was completed, the tree was 6 inches away from it and 2 inches away from the boundary line, so the tree did not touch or interfere with the fence.

By 1968, the tree was 75 feet high, with a trunk diameter of 2 1/2 feet, and it was protruding about 8 inches onto the Holmberg’s property. Its roots extended onto Holmberg’s property and pushed the fence out of line, making the use of a gate in the fence impossible. The tree was close to both houses and the roots, being cramped for room, have pushed up a large hump in the ground around the base of the tree. The roots raised the ground level from the base of the tree to the Holmbergs’ sidewalk and caused it to tip toward their house, resulting in drainage into their basement.

To fix the problem, the Holmbergs were forced to construct a new sidewalk, which — because of the tree roots — promptly cracked as well. The Bergins’ property value property would depreciate by $5,000 if the tree were removed.

Over the Bergin’s complaint that the tree was a boundary tree, the trial court found that the tree was a nuisance and ordered it removed by the Bergins at their own expense. No damages were awarded to the Holmbergs due to their failure to take advantage of earlier opportunities to remove roots. The Bergins appealed.

Held:  The tree was a nuisance. The Minnesota Supreme Court held that something more than the mere presence of a portion of a tree trunk on a boundary line is necessary to make the tree itself a ‘boundary line tree’ so as to bring it within the legal rule that it is owned by adjoining landowners as tenants in common.

Whether the tree marks the boundary depends upon the intention, acquiescence, or agreement of the adjoining owners or upon the fact that they jointly planted the hedge or tree or jointly constructed the fence.

Nothing in the record discloses any intention of the parties that the tree mark a boundary line between the properties. The law is clear that one cannot exercise his right to plant a tree in such a manner as to invade the rights of adjoining landowners. When one brings a foreign substance on his land, he must not permit it to injure his neighbor. And, the Court held, an injunction against the continuance of a nuisance — such as the one issued by the trial court — may be proper if it is necessary to a complete and effectual abatement of the nuisance

Case of the Day – Friday, June 13, 2014

PROGRESS IN FITS AND STARTS

This is the perfect time of year to ask this, with the corn in many midwestern fields already knee-high.  It’s already getting harder to remember the bleak mid winter, when the countryside looked so stark and empty. Before you know it, country roads will seem like passages cut between towering falls of corn.   In many parts of the American Midwest, “corn to the corners” is the rule.

Something reminded us of sightlines yesterday.  Maybe it was the rusted F-150 pickup that barely slowed going through the four-way stop intersection we were approaching.  It might have been The Who, singing “I Can See For Miles and Miles” on the SiriusXM 60s station we were listening to.   Whatever caused the thought, my wife wondered aloud whether the farmers who planted their corner right to the corners of the field – obscuring the sightlines for motorists approaching an intersection –  might be liable for resulting collisions.

The Florida Supreme Court has wrestled with this issue, and thrashed around trying to define a standard for the liability of landowners to people not on their property for injury resulting from the conditions of the land.

Up until a few years ago, the Florida high court had adopted a “foreseeable zone of risk” test to determine whether a defendant owed a duty to a plaintiff. That test, simply put, was a judicial determination of whether it was reasonably foreseeable that some adverse condition would create a risk. This is not a ‘proximate cause’ analysis, although the casual reader would be forgiven for thinking it was. Rather, the inquiry in the “foreseeable zone of risk” test was one of a general zone of harm, such as whether overgrown foliage from private land extending over a highway would generally create a foreseeable zone of risk to motorists.

Prior to the “foreseeable zone of risk” test, the Court had employed a rather strict agrarian-era test that pretty much held a landowner blameless for any harm caused by a defect in his or her land. But under the “foreseeable zone of risk” test, the Court had held, for example, that a service station owner whose foliage had grown to obscure ingress and egress to the station was liable for damages resulting from a collision.

Then, in Williams v. Davis, the Court restored the balance. It explained that the service station owner was a commercial business in an urban area, one that specifically relied on the frequent coming and going of motor vehicles. Employing the foreseeable zone of risk analysis made sense. In the Williams case, however, the defendant was a homeowner whose bushy trees and shrubs were contained entirely on her own property. The Court employed the foreseeable zone of risk test, but found it unlikely that a residential landowner would foresee that adjacent motorists would be endangered by the mere presence of foliage on the property.

The Court’s approach isn’t particularly helpful to landowners trying to determine the extent of their duties. The service station owner probably thought he was all right under the old agrarian standard, until his case became the vanguard of the new movement. There was no reason for the defendant in this latest case to feel secure in the wake of the service station decision, but it turns out she was. The same casual reader forgiven above might be excused for wondering whether all this “foreseeable” and “unlikely” business isn’t a lot of judicial lawmaking on a case-by-case “feel” in a rump approach that makes it very difficult for a landowner to know in whose or what zone he or she might be in. Very messy.

For her part, my wife – a sweet corn lover of the first water – would hold farmers liable for stands of field corn, but not if it were Silver Queen.  The standard seems irrational, but at least its not nearly as amorphous as the “foreseeable zone of risk” analysis.

Williams v. Davis, 974 So.2d 1052 (Sup.Ct. Fla., 2007). Twanda Green, an employee of Diamond Transportation Services, Inc., died in an accident while transporting cars in a procession from one rental car location to another. As she made a left-hand turn at the “T” intersection of Pine Street and Sidney Hayes Road, a dump truck ran into her car, killing her.

Her estate sued several defendants, including Beverly Williams, who owned the home and property abutting the intersection. The Estate claimed that foliage on the property obstructed Green’s view of other traffic as she approached the intersection. Williams moved for summary judgment, and the trial court agreed, throwing out the suit against the landowner. While the trial court opinion referred to “overgrown foliage” and “obstructing foliage,” nothing in the record suggested that the Estate was claiming that the foliage actually extended outside the bounds of the Williams’ land or into the right-of-way. The Court of Appeals reversed, holding that Williams owed Green and other motorists a duty of care to maintain the foliage on the property so as not to restrict the visibility of motorists at the intersection. Williams appealed to the Florida Supreme Court.

Held:   A private landowner does not have a duty of care to motorists arising from trees or foliage that does not intrude into the right-of-way. The Court applied what is known in Florida as the “foreseeable zone of risk” analysis established in McCain v. Florida Power Corp. A party claiming negligence must show that the landowner owed a “duty, or obligation, recognized by the law, requiring the [landowner] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Where a person’s conduct is such that it creates a “foreseeable zone of risk” posing a general threat of harm to others, a legal duty will ordinarily be recognized to ensure that the underlying threatening conduct is carried out reasonably.

The McCain analysis is different from the type of foreseeability required to establish a duty as opposed to that which is required to establish proximate causation. Establishing the existence of a duty requires demonstrating that the activity at issue created a general zone of foreseeable danger of a certain type of harm to others.

By contrast, establishing proximate cause requires a factual showing that the dangerous activity foreseeably caused the specific harm suffered by those claiming injury in the pending legal action. Prior to McCain, Florida courts had followed the common law “agrarian rule” to determine whether a duty exists by landowners to motorists or others passing on a neighboring highway.

Under the agrarian rule, a landowner could never be held liable for harm occurring to motorists on adjacent roadways as a result of natural conditions on the land regardless of any alleged neglect of the landowner. That rule was developed when Florida was largely an agrarian society, and provided that a landowner was essentially immune to claims by persons not on the landowner’s property when injured, even when those persons claimed a condition on the land caused the injury. The rule was also based in part on a distinction between acts of malfeasance and nonfeasance, which reasoned that harm resulting from the mere passive existence of purely natural conditions constituted nonfeasance, whereas harm caused by the active creation of conditions would constitute malfeasance.

More recently, in Whitt v. Silverman, the Supreme Court rejected application of the absolute no-liability agrarian rule in considering whether a commercial landowner in an urban setting owed a duty to motorists and pedestrians who might be harmed by conditions on the property. Instead, it applied the “zone of risk” foreseeability analysis articulated in McCain, and concluded that under that holding, the landowners’ conduct created a foreseeable zone of risk posing a general threat of harm toward the patrons of the business as well as those pedestrians and motorists using the abutting streets and sidewalks. The decision stood for the proposition that a business may be held liable to pedestrian passers-by by reason of the failure of the business to provide safe egress to vehicles exiting the premises. But for McCain, there are no Florida decisions imposing liability upon a property owner based on natural conditions contained wholly within the boundary of the private property.

The Court recognized in this case that ordinarily a private residential landowner should be held accountable under the zone of risk analysis principles of McCain only when it can be determined that the landowner has permitted conditions on the land to extend into the public right-of-way so as to create a foreseeable hazard to traffic on the adjacent streets. Applying that test in this case, the Court saw little basis for imposing liability on the owner of a wooded residential lot for letting the property remain in its natural condition, as long as the growth did not extend beyond the property’s boundaries. Unlike the situation in Whitt, wherein it concluded that it should be foreseeable to the operator of a commercial service station that obstructions to the vision of an exiting motorist could constitute a danger to adjacent pedestrians, the Court found it unlikely that a residential landowner would foresee that adjacent motorists would be endangered by the mere presence of foliage on the property.

The Court said that while all property owners must remain alert to the potential that conditions on their land could have an adverse impact on adjacent motorists or others, it was not convinced the existing rules of liability established by our case law that distinguish conditions having an extra-territorial effect from those limited to the property’s boundaries should be abandoned. Furthermore, motorists in Florida have a continuing duty to use reasonable care on the roadways to avoid accidents and injury to themselves or others. That duty, the Court said, includes a responsibility to enter intersections only upon a determination that it is safe to do so under prevailing conditions.

Case of the Day – Monday, June 16, 2014

DOING NOTHING IS NOT AN OPTION

“A stitch in time saves nine” is an idiom that’s been around for three hundred years or so. It also is an everyday explanation of the equitable doctrine of “laches.”

It always seemed a little ironic that English common law needed an entire branch of jurisprudence known as “equity.” Oliver Wendell Holmes, Jr., famously lectured a litigant once that his courtroom was “a court of law, young man, not a court of justice.” It was precisely because there was so much law and so little justice that medieval England developed a parallel judicial system known as courts of equity, where litigants could get just results that were precluded in the courts of law by hidebound rules of pleading and damages.

The basis of equity is contained in the maxim “Equity will not suffer an injustice.” Other maxims present reasons for not granting equitable relief. Laches is one such defense.

Laches is based on the legal maxim “Equity aids the vigilant, not those who slumber on their rights.” In other words, “you snooze, you lose.” Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. If the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice.

Ms. Garcia suffered encroachment from a copse of boundary-tree elms for a long time, perhaps too long a time, without doing anything about it. She could have trimmed roots and branches that intruded into her alfalfa fields years before – New Mexico law let her do that – but she fretted and stewed in silence. When she finally wanted to take action, the elms were so big that the trunks themselves had crossed the property line. Her “self-help” would have killed the trees.
The lesson? As the old TV box announcer used to adjure, “You must act now.”

Garcia v. Sanchez, 108 N.M. 388, 772 P.2d 1311 (Ct.App. N.M. 1989). This dispute between neighboring landowners involves trees originally planted on defendant’s property which have overgrown and now encroach upon plaintiff’s property. By the time Garcia bought her land in 1974, ten elm trees planted some years before near the common property line were well established. Although originally planted inside defendant’s property line, over the years the trees had reached full size, and had grown so that nine of them were directly on the boundary, with the trunks encroaching onto plaintiff’s property from one to fourteen inches.

Garcia used her land for growing field crops. Sanchez’s side had a driveway and residence. Garcia didn’t complain about the trees until 8 years after buying her property. Two years after her first complaint, she sued.

The trial court found Garcia’s actions in providing water and nutrients to her crops had caused the trees to grow toward her property, but it concluded that Sanchez negligently maintained the elm trees, allowing the roots and branches to damage the crops on Garcia’s property. The court also found that she has not suffered enough damage to warrant the removal of the trees, and that cutting any substantial portion of the trunks of the trees would seriously harm them. The court found that yearly trenching of the roots and trimming of branches on Garcia’s side of the property line would essentially resolve any problems resulting from the encroachment of tree roots and overhanging branches on her property, so it ordered Sanchez to pay $420.80 for damage to Garcia’s alfalfa, to yearly trench the roots and trim the branches of the trees, and to provide water and nutrients to the trees in order to restrict their growth toward plaintiff’s property.
The parties appealed.

Held: The Court of Appeals reversed and remanded. It held that the trees originally planted inside a property line, which had grown to encroach onto adjoining property along boundary, were not jointly owned under the common boundary line test absent an oral or written agreement to have the trees form boundary line between the parties’ property. It agreed that the trial court’s refusal to order that Sanchez remove the encroaching trees was not an abuse of discretion, observing that the trial court had tried to balance equities by weighing the value of trees against the agricultural character of property involved and nature of harm suffered by Garcia.

But the Court of Appeals went further: it ruled that the harm caused to Garcia’s crops by the elms’ overhanging branches and tree roots is not actionable. Instead, following Abbinett v. Fox, the Court held that a plaintiff’s remedies are normally limited to self-help to protect against the encroaching branches and roots. But here, Garcia waited too long: her plan now, after years of suffering in silence, to remove a substantial portion of the root system or trunk of the encroaching trees (the Massachusetts Rule right) may endanger lives or injure Sanchez’s property, and that laches gives a court the right to limit the exercise of her self-help plan under its equitable authority.

The Court sent the case back to the trial court to determine whether Garcia’s failure to exercise self-help to control encroaching roots, branches and tree trunks over an extended period should preclude injunctive relief now.

Case of the Day – Tuesday, June 17, 2014

DOING IT ON THE CHEAP

 

Over the next few days, we’re going to talk about independent contractors in the legal sense. The status of employee versus independent contractor, you’d think, would be pretty cut-and-dried. Fred Flintstone at the Bedrock quarry? Well, he used his employer’s equipment, he did what he was told, he punched a timeclock … clearly an employee. On the other extreme we have the A-Team. They came to you, brought their own weapons (and usually a homemade armored vehicle or two) and a helicopter. They came to do a job, and then left (usually just a step ahead of the Army authorities). No question, they were independent contractors. Very independent contractors.

The difference between B.A. Baracas and Fred Flintstone is significant and obvious. But that hardly prevents people from calling one the other when the mood strikes them. Some employers think it’s crafty to label their employees as “independent contractors.” It’s irresistible: no tax withholding, no pesky employer matching of social security payments, no unemployment insurance, and no time-and-a-half for overtime. The IRS fights a never-ending battle against this dodge, and even mandates a test to determine whether your worker is a Fred or a B.A.

There are reasons besides taxation for a principal to try to pound a square employee into a round independent contractor hole. Liability and worker’s compensation are two of those. Over the next few days, we’re going to examine the problem of worker classification as it relates to the arboriculture industry. Today, we’re looking in on a real cheapskate, and how his tightfistedness nearly killed a teenage girl.

Penny-pincher Sulcer had a tenant named Quimby. No, not the Mayor of Springfield, but instead a long-haul trucker. The landlord ignored his tenant’s pleas to trim a dangerous tree, until the tree got in the way of the landlord’s plans. Then he told his tenant — a tree-trimming tyro — to trim it for him, for free, of course.

For some unfathomable reason, Quimby did, dropping a limb in a freak accident that struck his high school senior daughter Leslie’s chest, requiring emergency open heart surgery to fix. She survived (even marrying lucky young Mr. Allen during the pendency of the litigation). Sulcer argued that he wasn’t at fault, because Quimby was really just an independent contractor, and it was Leslie’s and Quimby’s fault that she stood too close to the tree while Quimby was cutting limbs.

The trial court bought it, but the Court of Appeals — offended, we hope, that the landlord was getting off scot-free— looked at the issue differently. The question, it properly held, was what Sulcer owed Leslie as a tenant, not as a volunteer worker for her volunteer worker tenant Dad. And clearly, he had breached his duty to keep young Leslie safe from the perils of an unskilled tree-cutter. Of course, the Court couldn’t help but notice the report of Leslie’s arborist: he said a professional trimming job would have cost ol’ tightwad Sulcer $300 to $500. The Court didn’t say it, but we think it was a bit disgusted that the landlord was willing to jeopardize the life and health of his tenants for $500.00.

Allen v. Sulcer, 255 S.W.3d 51 (Tenn.Ct.App., 2007). A landlord told his tenant, Mr. Quimby, to prune large limbs from a tree on the rental property with a chainsaw. The tenant’s 18-year old daughter, Leslie Quimby (now Leslie Allen), was assisting by clearing the limb debris, and suffered an aortic valve rupture and other internal injuries that required emergency open-heart surgery, resulting from the impact of a tree limb that had fallen and ricocheted off the ground, striking her in the chest and chin. At the time of the incident, her father was in an ash tree (about 15 to 20 feet off the ground) in front of his rental house, pruning overgrown limbs with a chainsaw. Ms. Allen was standing in front of the house and assisting her father by clearing the limb debris.

The tenant had previously requested more than once that William E. Sulcer, his landlord who lived 100 yards from the rental house, have the tree pruned. Quimby had voiced his concern that the overgrown limbs, hanging over the house and driveway, would hurt someone. Even though Sulcer had used professional tree services on his farm in the past, he asked Quimby agreed to perform the work because he was tired of the limbs hanging over the house and driveway. Sulcer did not offer to compensate Quimby for his services. Quimby had no training or expertise in pruning or felling trees, or with operating chainsaws, even though he owned one and used it on the limb in question. Sulcer knew Quimby didn’t have experience pruning trees but relied on the fact that Quimby had cut limbs on the property before with no problems. Even so, Quimby had never before trimmed large limbs or climbed into a tree to do so. Other than selecting the limbs, Sulcer provided no other instruction, provided no equipment, and was not present at the time of the injury.

Ms. Allen sued Sulcer, alleging he was negligent as landlord and as the principal of the negligent agent Quimby. She asserted that Sulcer was negligent in instructing her father to undertake such a task, in failing to supervise his activities, and in failing to maintain the leased premises in a safe condition. She argued the negligence of her father should be imputed to Mr. Sulcer under the principles of vicarious liability. Sulcer responded that if there were any relationship between Quimby and himself, it was that of employer and independent contractor. He contended he did not create the alleged dangerous condition and that, if it existed, he had no duty to Ms. Allen because the dangerous condition was known (or should have been known) to her. He argued that, as an employer of an independent contractor, he was not liable for the negligent acts of the contractor, or for injury to the contractor’s helpers.

The trial court found Quimby to be an independent contractor, and it was a well settled principle of law that employers of an independent contractor owe no duty to the employees or “helper” of the independent contractor engaged in an inherently dangerous activity. The trial court granted judgment for the defendant, and Ms. Allen appealed.

Held: The summary judgment for Sulcer was reversed. The Court observed that a successful negligence claim requires the plaintiff to establish a duty of care owed by the defendant to the plaintiff; conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty; an injury or loss; causation in fact; and proximate cause. The Court said that although the parties agreed that Quimby acted as an independent contractor on behalf of Sulcer, the facts of the case more directly implicated landlord/tenant law. The trial court had overlooked the fact that Ms. Allen was a tenant of Sulcer and failed to account for the possibility of Sulcer’s negligence as a landlord. Thus, the Court held, the dispositive question was whether Ms. Allen encountered a harm whose foreseeability gave rise to a duty of reasonable care on the part of Mr. Sulcer, the landlord, to protect her from the danger of falling limbs.

In general, landlords owe a duty of reasonable care to their tenants. When a landlord undertakes to repair or maintain some part of the premises, he owes his tenants a duty to exercise ordinary and reasonable care in seeing the repairs are properly made. In other cases, landlords were held liable for injuries to tenants where they sent unskilled employees to repair units. Here, Sulcer knew that Quimby was unskilled in tree trimming, that he did not want to perform this work, and was afraid of heights. Sulcer didn’t even offer to pay Quimby. He didn’t inquire into safety precautions or any other methods Quimby might use. Sulcer argued he had no duty to Ms. Allen because the danger of falling limbs was open and obvious, and, because the danger was so open and obvious, it was not foreseeable that Quimby would allow her to collect the limbs or be anywhere near the work site. But Tennessee courts have concluded that an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability. As in any negligence action, a risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by a defendant’s conduct outweigh the burden upon the defendant to engage in alternative conduct that would prevent the harm.

Here, limbs falling from a tree are not so obvious a danger as to relieve Sulcer of his duty to hire a competent tree trimmer. Sulcer created an unreasonable risk of harm when he asked an unskilled tenant to conduct work that is dangerous. While the force of a falling limb is predictable, its trajectory while falling and after striking the ground is not. This unpredictability makes the risk of injury from a falling limb more salient when unskilled hands attempt the task. The alternatives available to Sulcer, the Court said, ranged from discussing pruning methods to offering assistance to hiring a professional tree trimmer, all of which, to varying degrees, would have materially lowered or eliminated the probability of such harm with very little burden to the defendant. The Court found that Sulcer had a duty to select someone who would know how to minimize the risk of trimming such large branches.

Case of the Day – Wednesday, June 18, 2014

ANOTHER GOOD REASON TO HIRE AN INDEPENDENT CONTRACTOR

Yesterday, we noted that often, landowners want to make independent contractors out of employees in order to beat Uncle Sam out of tax revenues. That’s not to say that there aren’t several very legitimate reasons to carefully define the relationship as an independent contract.

Mrs. Dugger hired a Kentucky Certified Master Logger, Tommy Thomas, to log her land. She signed a contract with him which specified, among other things, that ‘ol Tom-Tom was an independent contractor. Well, master logger or not, Tommy Boy wasn’t a master listener. Although Mrs. Dugger told him she didn’t own the land across the crick and he shouldn’t log it.

Of course he logged it anyway. Predictably, the woman who owned the land on the other side of the watercourse sued, naming both Tommy T. and Mrs. Dugger as defendants.

Mrs. Dugger’s lawyer got her dismissed from the lawsuit on summary judgment, because Kentucky law – like that of virtually all states – held that an owner wasn’t liable for the errors of an independent contractor. And there was no question that Tommy Thomas was an independent contractor. The written agreement between the two of them was a great help in establishing this, as well as to prove that Mrs. Dugger had told her contractor where her property boundaries lay.

The appeals court agreed, holding that Thomas’s master logger certification meant he should have known better. The contract helped show that the parties always contemplated he would be an independent contractor, and he in fact did control the manner of the work and how it was accomplished. Mrs. Dugger might have been liable anyway if the cutting was “work involving a special danger.” But in Kentucky, the Court said, it’s not.

Worley v. Dugger, Not Reported in S.W.3d, 2007 WL 4373120 (Ky.App., Dec. 14, 2007). Mrs. Dugger entered into a logging contract in May 2003 with Tommy Thomas to cut timber from part of her property. During Thomas’ cutting, he crossed onto Worley’s land and took trees valued at over $1,300. Worley sued Thomas and Dugger, seeking damages for the wrongful taking of timber pursuant to KRS § 364.130.

Just prior to trial, Mrs. Dugger won summary judgment on the basis that Thomas was acting as an independent contractor at the time he wrongfully took timber from Worley’s property. Later, a default judgment was entered against Thomas on the issue of liability. Worley moved to vacate the summary judgment and get Mrs. Dugger back into the lawsuit. When the court refused to vacate, Worley appealed.

Held: Summary judgment in favor of Mrs. Dugger was appropriate. The trial court found Thomas was acting as an independent contractor at the time when he wrongfully took timber from the plaintiff. Thomas was told not to log beyond the borders of Dugger’s property, something admitted under oath. What’s more, Mrs. Dugger was not vicariously liable for Thomas’ wrongful timber harvest because she failed to adequately instruct him. Although landowners had been found liable in another cases where independent contractors had cut trees from neighboring land, that was because the landowners had their contractors cut trees in spite of not knowing where the boundary lines were located.

Here, the Court said, Mrs. Dugger explicitly instructed Thomas to not exceed the boundaries of her property beyond the creek. Thomas, on his own initiative and contrary to Mrs. Dugger’s instructions, crossed the creek onto Worley’s land. Thomas was a “Kentucky Certified Master Logger,” and the Court held that this certification meant that Thomas should have been familiar with his duty to observe boundary lines to avoid the possibility of liability.

Plus, Thomas’s contract with Mrs. Dugger clearly identified him as a “contractor.” In Kentucky, as a general rule employers are not vicariously liable for the acts of independent contractors. The right to control the work, and the methods of its performance, are determinative on the question of whether one is a servant or an independent contractor. If the employer retains the right to control the work and the manner in which it is done, those doing the work are servants. On the other hand, if an employee has the right to control the manner of work and the right to determine the means by which results are accomplished, he is deemed an independent contractor and the employer is not responsible for his negligence.

The exception to the general rule is that if the work to be performed is either a nuisance or is inherently dangerous, the employer will not be absolved from liability. The Court ruled that tree cutting is not “work involving a special danger” as contemplated by the law. Here, the Court held, Thomas was an independent contractor because he controlled the manner of the timber cutting as well as the means he would use to complete the job. Under the facts of this case, the work of cutting timber upon Mrs. Dugger’s land was neither a nuisance nor inherently dangerous. Thus, Mrs. Dugger could not be held liable for Thomas’s merely negligent work.

Case of the Day – Thursday, June 19, 2014

O TEMPORA, O MORES!

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 our late and beloved latin teacher, Emily Bernges of Sturgis, Michigan – we developed great respect for Cicero. Senator Marcus T. had plenty of his own problems to deal with when he gave his first oration against Cataline, but we threw up our hands like he did and asked the same question about today’s case. Over the past several months, we have been charting on occasion how, during the 20th Century, the law governing landowner liability 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.

Mr. 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 have reviewed in late April.  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!  Mrs. Bernges would undoubtedly agree, and be proud of how much we have retained from her class over 40 years ago.

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.

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 – Friday, June 20, 2014

WHEN GOOD FENCERS GO BAD

Today, we continue talking about independent contractors versus employees.  One benefit ensuring that the people you hire to do your work for you are independent contractors is some protection when they make a hash of things.  

The fencers working on the Wendylou ranch crossed the line. Literally. You know, as in trespassed on the neighbors’ estate.  The episode suggests that there may have been a backstory of some neighbor animosity as well.

The little Schievink homestead (300 acres, but that’s little in Texas, where everything’s bigger) was surrounded by the mega-hunt reserve Wendylou Ranch. Wendylou was having some fence put in, and hired Rudy’s Fencing to do the work. Eventually, Rudy’s accidentally colored outside of the lines with its bulldozer – a fairly minor mistake, which was promptly corrected and seemed to cause little damage – and the Schievinks raced to their lawyer’s office.

Something seems rather peculiar about this case, and we wish we knew the backstory. Maybe it was the Hatfields and McCoys. Or David and Goliath. Whatever the history between them, the Schievinks were bound and determined that they were going to hang the trespass on Wendylou (despite the fact that Rudy’s, a company with 25 employees and 20 years in business, probably could have easily paid for the actual damage caused to the 15-foot wide, 1,600-foot long strip that had been bulldozed accidentally). The cost and aggravation of litigation hardly seems worth it for them, although their lawyer must have been pleased.

To be sure, he fired both barrels at the mega-hunters. And missed. The Court found that Wendylou hadn’t been an aider or abettor of the trespass, because its people had been careful to identify the property lines, instruct Rudy’s to install the fence 15 feet inside the boundaries, and insisted on walking the boundary with Rudy’s staff before each segment of fence was installed to be sure everyone knew where the frontier on the frontier really was. It was mere happenstance that Rudy’s crew got ahead of schedule, and pressed on one day into new territory without alerting Wendylou’s manager that more boundary needed to be identified.

More important for our purposes today, the Court agreed with Wendylou that Rudy’s was an independent contractor. This was important, because while Wendylou would be responsible for the negligent acts of its employees, it was not responsible for in independent contractor’s accidental trespass.

So what is the difference between this case and those situations where the owner has to pay when the hired bulldozer over-dozes? Chiefly, it would seem to be the extra care Wendylou took to ensure that its contractor remained independent yet adequately directed. Misteaks do occur, but a careful property owner can minimize their effect. Usually, when an owner hires a guy with a ‘dozer, the transaction is much more casual.

Schievink v. Wendylou Ranch, Inc., 227 S.W.3d 862 (Tex.App., 2007). The Schievinks own 300 acres of land, surrounded on all sides by land owned Wendylou, which does business as Wendy Lou Classic Game Ranch, a “true Tex African game experience” on 4,500 acres of land.

Wendylou hired Rudy’s Fencing to build a game fence around parts of its ranch. The manager of Wendylou, Mike Odell, gave verbal instructions to Rudy’s Fencing personnel about where the fence should be, and Rudy’s Fencing used its own equipment and — other than being told where to start, stop, or put a gate —was not instructed as to the details of building the fence or clearing the fence line.

Odell walked the boundary line with Rudy’s Fencing’s on-site during each stage of the construction, only going as far as the fence builders were expected to go in that stage. Odell checked the progress occasionally but did not supervise the day-to-day activities. Odell told Rudy’s to build the new fence two to three feet inside the old fence (which followed the boundary line) to keep from encroaching on the Schievinks’ land. Odell had not yet walked the fence line with Rudy’s at the point where the fence veered onto the Schievinks’ place, because Odell had thought the previous phase through a creek would take longer than it did.

Rudy’s used a bulldozer to clear the fence line. Rudy’s supervisor was confused about his location, and he directed the bulldozer operator to cut the boundary fence and follow another fence row onto the Schievinks’ property. The operator bulldozed a strip of land approximately 15 feet wide by 1,600 feet long before Mr. Schievink arrived to tell Rudy’s supervisor that they were on Schievink’s land.

The Schievinks sued Wendylou for trespass and for breaching a duty as an adjoining landowner. Wendylou moved for summary judgment because the evidence showed that Wendylou did not trespass on the Schievinks’ land or instruct Rudy’s Fencing to trespass, and because Wendylou is not liable for the trespass of an independent contractor. The trial court granted Wendylou’s motion for summary judgment. The Schievinks appealed.

Held: Wendylou is not a trespasser. The Schievinks argued Wendylou breached a duty as an adjoining landowner by failing to instruct Rudy’s Fencing as to the property line, that Rudy’s Fencing wasn’t really an independent contractor, and — even if it were an independent contractor —Wendylou was negligent for failing to give adequate instructions to Rudy’s Fencing.

The Court agreed that a person may be liable for trespass if he aids, assists, advises, or causes another to enter the property, even if the person entering the adjoining land is an independent contractor. But here, the Court said, there was no evidence that the Ranch manager had any role in the trespass. Instead, he had guided the contractor to avoid trespass, but through confusion on the part of the independent contractor, the trespass had occurred anyway. The Court found no genuine issue of fact concerning Wendylou’s breach of any duty that it owed to the Schievinks to instruct Rudy’s Fencing as to the correct property line.

The Schievinks also argued that an issue existed whether Rudy’s Fencing was an independent contractor. If Rudy’s Fencing or its personnel were employees of Wendylou, rather than independent contractors, then Wendylou could be liable for their negligent acts under the doctrine of respondeat superior. But a person who hires an independent contractor is generally not liable for the acts of an independent contractor unless the employer exercises sufficient control over the details of the independent contractor’s work.

The Court considered seven factors in deciding that Rudy’s was an independent contractor: (1) the independent nature of the business; (2) the obligation to furnish necessary tools, supplies, and material to perform the job; (3) the right to control the progress of the work, except as to final results; (4) the length of time for which Rudy’s was employed; and (5) the method of payment, whether by time or by the job. The uncontested evidence showed that Rudy’s Fencing had been in the business for over 20 years, had 25 employees, had bid the job competitively by the foot, had furnished its own people and tools, and had supervised the day-to-day work.

The Court thus held that the evidence established as a matter of law that Rudy’s Fencing was an independent contractor.

Case of the Day – Monday, June 23, 2014

LARA’S THEME

Cue 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.

In 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.

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 – Tuesday, June 24, 2014

THE JURY IS INSTRUCTED TO DISREGARD THE SMELL

 

Trial courts often must give juries instructions to disregard certain evidence they have heard in reaching their verdicts. As a court once described it, “if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.”

Today’s case starts out to be pure California … a landslide, a muddy pool, emotional distress because of a dirty carpet. Oh, the humanity! The injured Ms. Rahmanian claimed that her neighbor Nelson had suffered a water leak, and the leak damaged her property. The extent of the damage was grievous, Ms. Rahmanian pled, well over $200,000. Her house was a mess, carpets ruined, pool filled with mud … she demanded justice!

But it turns out that Ms. Rahmanian had already gotten twenty grand from her insurance company, and she hadn’t used a penny of it to dry out carpets, clean walls, empty the pool — the usual cleanup performed to keep a bad mess from becoming worse. The defendant managed to sneak that piece of evidence into the record, and as a result, the plaintiff only collected about $110,000, just about half of what she wanted. How could she ever clean the drapes on that?

People damaged by the negligence of others have a duty to mitigate. That means that they are expected to take reasonable steps to minimize the damage. It only stands to reason. The courts will try to put the innocent injured back in the position they occupied before the damage. But the innocent aren’t expected to sit on their hands, either … or spend money intended to clean up the damage on mimosas at the Beverly Wilshire.

Ms. Rahmanian complained on appeal that the jury shouldn’t have heard about the insurance money. She was literally correct. Who got what from their insurers is irrelevant to whether a party was negligent, and whether that negligence caused damage. But the Court of Appeals clearly lacked sympathy for her. It held that — while the evidence about the insurance money shouldn’t have come in — Ms. Rahmanian didn’t suffer for it, because the trial court told the jury to disregard it.

Never mind that it might be hard for the jurors to ignore the fact that a poor pool-deprived supplicant like Ms. Rahmanian already had collected some dough from her insurance company and spent it on … well, pedicures, poodles in purses, whatever Californians fritter money away on when they don’t mitigate. The Court did some rough justice here, something that happens more often than you might think.

Rahmanian v. Nelson, Not Reported in Cal.Rptr.3d, 2007 WL 1123983 (Cal.App. 2 Dist., Apr. 17, 2007).   Nelson’s house is located above the house owned by Sharon Rahmanian. A water leak on Nelson’s property caused the slope located at the back of her land to collapse, leading to a mudslide that covered her pool and patio area. She sued Nelson for negligence and trespass.

Nelson did not dispute liability. The primary issue at trial was the amount of damages. Rahmanian’s witnesses testified that the mudslide caused damage to the pool and patio, and to the French doors at the back of the house. In addition, mud or muddy water entered the house, causing damage to everything located near the doors, including carpets and drapes. Rahmanian’s expert testified that to repair the slope would cost about $75,000, plus $24,440 to re-landscape the slope. The cost to repair the pool and house would added another $134,000, and she lost use of the pool to the tune of $1,153 a month. For good measure, she complained of damages from physical symptoms and mental suffering she had experienced since the mudslide.
Nelson’s witnesses said the mudslide could not have caused much damage to the patio or pool. They also questioned whether water or mud caused any damage to the interior of the house. Nelson’s experts estimated it would cost $89,371 for repairs and re-landscaping. During the trial, there were three references to $20,000 Rahmanian had already received from her insurance carrier, but had not used to repair any damage.

The jury awarded Rahmanian $80,000 for slope repair; $21,000 for other property damage; $5,000 for loss of use; and $4,000 for emotional distress. Not satisfied with this amount, Rahmanian moved for a new trial, which the court refused. She appealed.

Held: The trial court shouldn’t have let testimony about the $20,000 in insurance money in, but that wasn’t enough to give Ms. Rahmanian a new trial. Under California’s collateral source rule, if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.

In order to permit such evidence to be introduced, the trial court must first weigh the relevance and probative value of evidence of plaintiff’s receipt of collateral benefits against the inevitable prejudicial impact such evidence is likely to have on the jury’s deliberations. Here, that advance weighing was not done. But, the Court said, Rahmanian was not prejudiced. The jury asked the court for guidance on the impact of the $20,000 during deliberations, and the court instructed the jury to ignore what it had heard repeatedly. Ms. Rahmanian did not object to the language of the court’s instruction: in fact, her counsel supplied the key wording used by the court, so she was not allowed later to raise an objection concerning its clarity.

Because the court, with the assistance of counsel, was able to intervene during deliberations to prevent the jury from acting on the misleading information it received concerning the $20,000, the jury’s verdict could not have represented an improperly discounted award. Thus, the appellate court said, no miscarriage of justice occurred.

The trial court also gave an instruction to the jury that Ms. Rahmanian had a duty to mitigate the damage, that is, to take immediate steps after the landslide to minimize the long-term effects. Ms. Rahmanian maintained that the only evidence to support the instruction was the improperly admitted evidence of the $20,000 insurance money. The Court said that because the trial court had given a curative instruction about the insurance money, the appellate court presumed the jury followed the court’s final directive to “not consider” the $20,000 in calculating damages.

Case of the Day – Wednesday, June 25, 2014

NOT A HAPPY BUNCH AT ALL

The Wong family, through their company Happy Bunch, LLC, was quite happy indeed with the nice piece of property the family occupied. The Wongs especially liked the 10 trees that lined one boundary. They had planted and nurtured them for 20 years or so, and the trees had gotten big enough that eight of them actually straddled the boundary line with their neighbor.

But what a hot dog the neighbor turned out to be! Grandview North was a developer, and planned a Wienerschnitzel franchise on the lot next door. The City required that Grandview add about four feet of fill to the lot, and Grandview was afraid the Wongs’ boundary trees would get in the way. Grandview had a survey done, and the company knew the trees were on the boundary line, with most of the trunks on the Happy Bunch land (two were entirely on the Happy Bunch side of the boundary). So what? After finding itself unsuccessful at getting Mr. Wong to consent to the trees being cut down, Grandview made its view grander by taking out the trees itself. Mr. Wong was done wrong …

Happy Bunch sued. The trial court ruled that Grandview owed $32,000 or so for the trespass to timber, but it refused to impose statutory treble damages, finding them not applicable to boundary trees.

The Court of Appeals, in a case of first impression, disagreed. It ruled that boundary trees in Washington State are owned by both landowners as common property, and neither may cut them down without the consent of the other. The Court ruled that damages when a boundary tree is cut down is the replacement value of the tree, apportioned by the percentage of the trunk on the injured landowner’s property, a method that strikes us as rather artificial and likely to undervalue the tree to the injured property owner. What, Happy Bunch gets half a tree back? There was a little justice, however: the Court of Appeals ruled that the treble damage statute for trespass to timber applied to boundary trees as well as other trees.

Happy Bunch, LLC v. Grandview North, LLC, 173 P.3d 959 (Wash.App. Div. 1, 2007). The Wong family owned land through its limited liability company, Happy Bunch LLC. Grandview, was a property development company that purchased a parcel of property next door the Happy Bunch property to build a Wienerschnitzel drive-through restaurant. The City of Mount Vernon required that four feet of fill be placed on the Grandview property as part of the planned development.

Twelve mature trees stood either on or near the boundary line between the Happy Bunch and Grandview properties. Some portion of the trunks of 10 of the trees — all originally planted by the Wongs some years before — extended from the Happy Bunch property onto the Grandview property. Grandview believed it couldn’t meet the city’s fill requirement without putting a retaining wall on the Happy Bunch/Grandview property line. Because the roots and trunks of the trees extended onto Grandview’s property, Grandview believed that they would interfere with the construction of the retaining wall and decided to move them, even though Grandview knew a survey showed the trees’ true location on the property line.

The Happy Bunch was not happy, not agreeing with the plan, and found through its own survey that the trees were either on the boundary line or entirely on the Happy Bunch land. Despite Happy Bunch’s opposition, Grandview cut down all ten trees. Happy Bunch sued, claiming that it had acquired title to the land under and around the trees by adverse possession due to the Wongs’ maintenance of the trees and surrounding area. It also sought damages for both the value of the cut trees and the estimated $15,065 cost of digging up the trees’ root systems and repairing damage to the Wongs’ driveway likely to be sustained as a result. Happy Bunch also requested that the entire award be trebled pursuant to Washington law because of Section 64.12.030 of the Revised Code of Washington, the state’s timber trespass statute, thus seeking a total damage award of $168,294.

The trial court ruled that Grandview committed timber trespass by cutting the trees on the Wong/Grandview property line. The trial court took the damage figure to the trees of $40,033, and multiplied it by the percentage of the cut trees that had been growing on Happy Bunch’s property, resulting in damages of $32,519.22 to Happy Bunch on its timber trespass claim, as well as $2,500 for the cost of grinding out the remainder of the stumps. The court denied the damages of $15,065 for completely removing the trees’ root systems and repairing the resulting damage. Finally, the trial court ruled that Happy Bunch was not entitled to treble damages as provided by the timber trespass statute “[b]ecause the trees that were cut straddled the common property line.” Happy Bunch, LLC appealed.

Held: Judgment was reversed on most counts. The Court of Appeals concluded t Happy Bunch was only entitled to recover damages for injury to those portions of the trees growing on its land. However, the Court found that RCW §64.12.030’s treble damages provision did apply.

In most jurisdictions, a tree standing on a common property line is considered the property of both landowners as tenants in common. Although Happy Bunch admitted that courts commonly calculate damages based on the value of each cut tree, apportioned according to the percentage of the tree that was located on the injured landowner’s property, it contended that the proper approach here was the one applied in the Colorado case, Rhodig v Keck. Rhodig held that absent a showing of an agreement to the contrary, a boundary line tree belongs entirely to the party on whose land the tree was originally planted, with damages calculated accordingly.

The Court of Appeals rejected Rhodig, holding that adoption of its rule would enable Washington landowners to effect boundary line adjustments with trees, creating “an entirely new theory of adverse possession without a basis in either the statutory or common law of this state.” The Court said the Rhodig holding would mean that Happy Bunch acquired title to the land under the trees simply because had once had planted the trees. Therefore, the Court held, a tree standing directly upon the line between adjoining owners so that the line passes through it is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other. Grandview had an interest in the trees proportionate to the percentage of their trunks growing on Grandview’s property, and thus, the trial court correctly awarded Happy Bunch only that portion of the trees’ value reflecting Happy Bunch’s property interest in them.

Happy Bunch contended that an award of treble damages was mandatory pursuant to RCW §64.12.030, unless Grandview proved one of the mitigating factors listed in the statute. The Court agreed, holding that the trespasser must allege and prove mitigation, and absent such a showing, treble damages will be imposed. The Court rejected Grandview’s argument that it believed it had a right to remove the trees, noting that Grandview possessed a survey that indicated that the majority of the trees were predominantly located on Happy Bunch’s property, and that at least two of the trees were not located on Grandview’s property at all. The Court said that where a person has been given notice that another has an ownership interest in trees, and the person nonetheless cuts them down, the actor will be liable for treble damages under the statute. Both the punitive and compensatory policies underlying the statute are implicated with respect to boundary line trees, the Court reasoned, and for that reason, the statute must be applied.

Case of the Day – Thursday, June 26, 2014

SHOWING UP

Denise Pevarnek’s agent chopped down her neighbors’ trees so she’d have a better view of the river. The neighbors complained, but Denise steadfastly ignored their remonstrances. The neighbors sued, but Denise ignored the summons. She finally decided to start paying attention after a default was entered against her and the trial court intended to assess treble damages against her in the amount of $77,000.

Denise tried futilely to undo the consequences of her earlier indolence. Alas, a stitch in time saves nine. The Court ruled that she had had plenty of notice, but her decision to ignore the lawsuit was her problem, and undoing the default she so richly deserved would have turned her problem into her neighbors’ problem. And they were already smarting from the loss of their trees.

Of interest in the case — one argument she included in Denise’s scattershot but untimely defense— was her contention that the cost to replace the trees wasn’t the right measure of damages, and that the trial court was wrong to rely on an affidavit of an arborist that didn’t explain in detail how he had arrived at the damage costs. The Court rejected this, saying that in the case of trespass, the measure of damages is either the reduction in value of the property, or — where the property can be repaired — the cost to fix things. The goal of the damage award, according to the Court, is to come as close as possible to compensating the owner for the damages, and trial courts have a lot of latitude to choose the method that seemed more reasonably calculated to do so.

The affidavit, the Court noted, laid out the expert’s education and experience, showed that he had inspected the damaged real estate. and proposed a reasonable strategy for repairing the harm. The arborist listed what had to be done and how much he’d charge to do it. It might not be perfect, but perfection is often the enemy of “good enough.” The affidavit, the Court ruled, was “good enough.”

The Court reminded the defendant that if she really had found the damage showing to be flawed and superficial, she could have come to the hearing and contested it. Snooze and lose, indeed.

Bologna v. Pevarnek, Not Reported in N.W.2d, 2007 WL 4207801 (Mich.App., Nov. 29, 2007). Denise Pevarnek hired Chester Damiani to clean up her property. He was zealous to a fault, deciding that to improve the view of the Detroit River from her adjacent lot by cutting down trees belonging to her neighbors, the Bolognas. Believing that Denise and Chester’s conduct was baloney, the Bolognas sued for trespass, alleging that the destruction reduced the value of their property and exposed a view to Pevarnek’s unsightly neighboring property and asking for $28,000, trebled by Michigan’s wrongful cutting statute to $84,000.

Denise Pevarnek was served, but she didn’t answer, and the Bolognas got a default judgment. Thereafter, they presented an affidavit of a certified arborist that the cost of landscape restoration was $24,050. At this point, Pevarnek began taking action to defend, seeking to have the default undone. The trial court refused, and it entered judgment against her for $77,730. Pevarnek appealed.

Held: The judgment was upheld. Much of the case revolves around whether Denise Pevarnek should be relieved from her default judgment, and the Court of Appeals ruled, in essence, that she knew about the suit and did nothing. In other words, “you snooze, you lose.” But of interest in the area of tree law was Denise’s claim that the trial court was wrong in using the cost of replacing the trees as a measure of the damages the Bolognas suffered. The Court of Appeals said where the wrong consists of a trespass to property resulting in an injury to the land that is permanent and irreparable, the general measure of damages is the diminution in value of the property. If the injury is reparable or temporary, however, the measure of damages is the cost of restoration of the property to its original condition (if less than the value of the property before the injury).

The rule is, however, flexible in its application. The ultimate goal is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss. Here, the Court said, given the fact that the Bolognas’ trees could be restored, it was proper for the trial court to use the cost-of-restoration method.

Pevarnek argued that the trial court erred by adopting without question the assertion of alleged damages without sufficient foundation. The plaintiff had filed an affidavit of arborist Steve McCollum, who swore that – in order to return the property to its pre-trespass condition, that is, with no view of Pevarnek’s property – 12 new trees had to be planted, some existing trees had to be replanted, the over-pruned trees had to be removed, and the lawn had to be repaired. He stated that the total cost of this work was $24,050. The trial court awarded plaintiffs damages of $77,730, equal to three times the sum of the cost of work proposed by McCollum and $1,860 for the cost of a privacy fence. Although McCollum’s affidavit didn’t explain how he calculated the damages, he stated his qualifications and education, he said he had personally inspected the Bologna property, assessed their needs, specifically listed the work to be done, and listed the cost for his business was to complete it. The Court said the expert affidavit put forth a reasonable basis for the damage computation, and that was enough.

Case of the Day – Friday, June 27, 2014

TAKE A LITTLE OFF THE SIDES

The Massachusetts Rule is the original dose of self-reliance, holding that a landowner has an absolute right to trim back overhanging branches and encroaching roots of his or her neighbor’s tree. But even in Massachusetts, sometimes people may get carried away.

The O’Malleys had planted and nurtured nine rather rare (for Massachusetts) false cypress trees on their land, using them to form a natural screen between their home and Ruhan’s place next door. The trees were about 15 to 20 feet tall. Along came Ruhan’s landscaper, who apparently knew about the Massachusetts Rule in a crude sort of way. He trimmed the false cypress trees back to the property line and then some, sawing them right down to the trunks on Ruhan’s side of the trees. The court said that the trees continued to survive and even to serve as a screen, but that their “aesthetic integrity” had been compromised by the negligence of Ruhan’s agent. That’s legalese for “the trees looked like hell.”

In the battle of the experts, the O’Malleys leapt to an early lead. Their arborist expert witness testified that replacement of the trees would cost about $14,000. Ruhan’s expert didn’t testify as to the cost of cleaning up the damage, but instead suggested that the trees were still growing and still screening the O’Malleys, so the shaving of one side of the trees didn’t really harm anything. The Court disagreed with Ruhan, finding that loss of aesthetic integrity was indeed damage, regardless of whether the trees still grew or not. And because Ruhan’s expert hadn’t put in any evidence challenging the O’Malleys’ estimate of $14,000 to replace the trees, that number was the best evidence the Court had to go on.

There are two lessons here. The first is that there are limits to what the Massachusetts Rule will let a landowner do. We don’t know what those limits are. But this court could have channeled Justice Potter Stewart, who famously said of obscenity in Jacobellis v. Ohio that “I know it when I see it.” Wherever the line was, Ruhan’s tree trimmer apparently crossed it with his chainsaw. We say “apparently,” because the Court of Appeals suggested that the whole notion of whether Ruhan was entitled under the Massachusetts Rule to trim all the way to the trunk wasn’t necessarily settled. But Ruhan didn’t appeal that issue, so the Court couldn’t consider it.

The second lesson is that the Ruhan’s expert should have covered all the bases: he or she should have testified that there was no loss, but if there was, it would only cost an amount certain to repair. If you don’t give the court your own evidence, you can hardly blame the judge for using the other side’s.

O’Malley v. Ruhan, Not Reported in N.E.2d, 2006 Mass.App.Div. 174, 2006 WL 3501553 (Mass.App.Div. 2006).  The O’Malleys sued Ruhan after his landscaper pruned the branches of their nine false cypress trees — 15 to 20 feet tall each — back to the trunks of the trees, rendering the trees permanently lopsided. The trial court held that the value of the trees, although they survived, was equal to their replacement cost, and awarded the O’Malleys $14,007. Ruhan appealed.

Held:  The O’Malleys were entitled to recover the replacements costs for the false cypress trees. O’Malley’s arborist expert opined that replacement costs totaled $14,007.00. Ruhan did not object to that expert’s testimony, including to his opinion as to replacement cost. In absence of objection, the Court said, the expert’s testimony was to be accorded appropriate evidentiary weight. Ruhan’s expert, on the other hand, apparently testified in essence that the mutilation of the trees did not diminish the value of O’Malley’s property at all, that is, that Ruhan’s negligence caused no harm of any kind to O’Malley.

Because the trial court found that harm had been caused, the Court said, that issue was decided. The only issue was the amount of damages. The Court held that it would be appropriate to award damages based on the value of the timber, on diminution in the value of the property, or for the reasonable costs for restoring the property to its original condition. Observing that courts throughout the country have placed a greater emphasis on the rights of a property owner to enjoy the aesthetic value of trees and shrubbery, notwithstanding the fact they may have little commercial value, the Court held that when trees are destroyed by a trespasser, “sound principle and persuasive authority support the allowance to an aggrieved landowner of the fair costs of restoring his land to a reasonable approximation of its former condition, without necessary limitation to the diminution in the market value of the land.” Because the amount awarded by the trial court was based on the only damages figure in evidence, it was reasonable.

Interestingly enough, the appeals court made reference to the Massachusetts Rule first enunciated in Michalson v. Nutting. The Court observed that while it is the law in Massachusetts that a neighbor has the right to remove so much of a neighbor’s tree as overhangs his property, “[e]xplication of the parameters of this right, though, is as scarce as palmetto palms on Cape Cod. Presumably, the right is one that must be exercised in a reasonable manner.” But, the Court noted, whether Ruhan was within his rights or not under the Massachusetts Rule was not raised on appeal, so the Court didn’t decide it.

Case of the Day – Monday, June 30, 2014

FORCE MAJEURE

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

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

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

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

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

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

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

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

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