Cases from March 2014

Case of the Day – Monday, March 3, 2014

MORE ON MAZDAS AND BRANCHES

Last week, we took up the case of a chagrinned Mazda RX-8 owner. Why was he unhappy? Was it the 18 mpg he got from the rotary engine? Was it the high-priced premium gas he had to burn? Was it the squirrely techniques for handing the temperamental little rotary? Of course not! RX-8 owners all love their cars! Our guy was unhappy because a limb from his landlord’s tree had fallen on his pride and joy. He wondered whether he could sue.

The answer is, of course, sure he can sue. But, you ask, can he win? That’s a different question altogether.  Short of taking up a collection here at treeandneighborlaw.com, all we can do is consider his question. And we have an answer — a resounding, 9,500 r.p.m. “maybe!”

On Friday, we looked at South Carolina’s duty of care for rural landowners. In today’s case, we see that the duty of care that urban or residential landowners owe to invitees and passersby is much stricter. Ms. Israel was sitting in her car one breezy spring day enjoying what was arguably the 21st best barbeque in the South when a large branch from a neighboring property fell on her car, destroying it and her sandwich. She was troubled about the damage to her car; she was devastated by loss of the uneaten sandwich. So, naturally, this being the United States of America, she sued everyone.

The trial court awarded her thousands of sandwiches worth of damages, but the Court of Appeals reversed. As the owner of property in a residential or an urban area, the neighbor had duty to others outside of his land to exercise reasonable care to prevent unreasonable risk of harm arising from defective or unsound trees on his premises, including trees of purely natural origin. The evidence showed that the decayed tree could be seen from the ground. So the tree’s owner was toast.

But the Court wasn’t willing to serve any barbeque up on the toast. The owner of the pulled pork stand had a duty to his customers to exercise reasonable or ordinary care, measured by his ability to anticipate danger. In the absence of evidence that the restaurant owner either saw or could have seen the decayed limb from his property, he wasn’t liable.

So away from the succulent pork (covered in a mustard-based sauce, no doubt) and back to the gutsy little RX-8. The landlord certainly has a duty to his tenants, who are, after all, invitees. And we suppose the house is in a residential area. But was it clear from the ground that the limb was about to let go? If so, the landlord had a duty to fix it. If it was just one of those things, well … that’s what they call an ‘act of God.’ 

Israel v. Carolina Bar-B-Que, Inc., 292 S.C. 282, 356 S.E.2d 123 (Ct.App. S.C., 1987). Charlotte Israel sued for injuries she received, when a large limb from a tree on property owned by Andrew Berry, Trustee, fell over and onto the car in which she was seated and which was parked in the parking area of the Carolina Bar-B-Que. She sued both the owner of the real estate on which the tree was located and the owner of the land onto which the tree fell.

The next-door lot (the “Berry lot”) was 173 by 135 feet, on which there were a number of trees. Some large water oaks, planted about 1911, were located about 25 to 30 feet from the BBQ property line. These trees had received a radical pruning in 1971. Pictures showed visible signs of decay and rot in one of these trees. Some smaller oaks, planted about 1955, were located some 4 to 10 feet from the property line, between the large water oaks and the BBQ parking lot. These trees were bushy with some limbs overhanging the barbeque operator’s property, and having trunks of no more than 12 inches in diameter. A picture showed these trees in their relation to the barbeque parking lot. The Carolina Bar-B-Que owner occasionally pruned branches off those trees to the extent they were overhanging his lot. The limb that hit the car came from one of the large water oaks, and had a diameter of between 12 and 25 inches. The limb was so large that the Israel car was, in effect, totally destroyed.

The Carolina Bar-B-Que’s manager said that no limbs from the large tree were overhanging his property. He noticed no decayed limbs on these trees. He surmised that the high winds that day “pushed [the limb] out” onto the Barbeque property. When he later removed the trees on this lot, he discovered only one tree in “bad shape” and it was not the tree from which the limb fell. A police officer who investigated the accident said that limb was about 25 feet long, and that he saw a tree from which the limb apparently came. He admitted that he couldn’t testify that there was a decayed portion of the limb visible from the Barbeque lot. However, the tree could have been inspected from the Berry property.

Ms. Israel sued the trust owning the Berry lot and Carolina Bar-B-Que. The jury awarded an $80,000 verdict (or about 27,119 really good BBQ sandwiches) against both the Barbeque and Mr. Berry. They both appealed.

Held: The Court reversed the judgment against the Barbeque, but affirmed it against the Berry trust. The Court admitted that at common law, Berry would not have been liable for falling tree or limb. However, the realities of modern life had modified the rule. A landowner in residential or urban area has duty to others outside of his land to exercise reasonable care to prevent unreasonable risk of harm arising from defective or unsound trees on his premises, including trees of purely natural origin. Here, the Court said, the evidence supported finding that Berry, the owner of the land from which the tree limb fell, was negligent. The tree was partially decayed, the limb’s dangerous condition and the likelihood of its falling could have been observed by reasonable inspection, and a reasonable person should have been aware of the danger which the decayed limb posed to persons on the adjoining property.

The Barbeque owed to a duty of care to the invitees or business visitors, one of exercising reasonable or ordinary care for the invitee’s safety. Reasonable care required by a business with respect to its invitees is measured by ability of reasonably prudent man to anticipate danger under conditions known or reasonably anticipated to exist.  In the absence of evidence that the BBQ owner either saw or could have seen a dangerous condition from the Barbeque property with regard to a tree limb on the adjacent property, Carolina Barbeque was not liable to Ms. Israel.

Case of the Day – Tuesday, March 4, 2014

THE COURT CHANNELS SHAKESPEARE

Traditionally, the Massachusetts Rule – which could be summarized as “I don’t owe you nuthin’ – held that a landowner had no liability to his neighbor for harm done by overhanging branches and encroaching root systems.  If the neighbor didn’t like it, he or she could trim away the offending branches or roots to the property line.  But the courts didn’t want to hear about it.

However, courts had traditionally held an urban landowner to a higher standard of care when the people being protected were passing motorists on a public highway.  In those cases, an urban landowner was obligated to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

In today’s case, Lois Lockhart had a decaying tree on her property.  Neighbor Carl Mahurin complained about it, primarily because one of the branches was overhanging his property.  But Lois did nothing.  Neither did Carl – unless belly-aching counts as effort.

Finally, the branch broke off, and hit Carl, who was standing beneath it.  Being injured, and piqued that Lois ignored his entreaties, Carl sued.

Lois tried to get the case thrown out of trial court.  She pointed out that Carl had nothin’ coming from her.   The traditional rule – read “Massachusetts Rule” here ­– dictated that she had no duty to protect Carl from the natural condition of her tree.

But as the great bard once wrote, “I do perceive here a divided duty.”  Othello, Act I, Scene 3.  And so did the trial court.  It was troubled that Lockhart’s duty to strangers passing by in their Hudsons and Desotos was greater than to her neighbor.  That seem divided, and irrationally so.  The trial court sent the case to the Court of Appeals for the appellate court’s opinion as to her duty.

The Court of Appeals said, “O day and night, but this is wondrous strange!”  Hamlet, Act 1, Scene 5.   It could see no reason for the disparate treatment, either.  Certainly, just as Lockhart owed a duty to Mordred and Mildred Motorist, she must owe the same duty to her neighbor, Carl.  However, the Court of Appeals did allow that Mr. Mahurin could have entered onto Ms. Lockhart’s place and cut the tree down itself.  So he might be contributorily negligent.  Likewise, could he have been a knucklehead for standing under a tree he had complained was dangerous?

To Lockhart, the Court said “There are more things in heaven and earth, Lois,
than are dreamt of in your philosophy.”  Such as a single duty owed by a landowner to both travelers passing on the road and her next-door neighbor.  It sent the case back to trial.

Mahurin v. Lockhart, 71 Ill.App.3d 691, 390 N.E.2d 523 (Ill.App. 5 Dist. 1979).   Plaintiff Carl Mahurin brought this action to recover damages for personal injuries he suffered when a dead branch extending over his property fell from a tree belonging to defendant Lois Lockhart, an adjoining landowner, and struck him. In his complaint, Mahurin alleged that Lockhart failed to prune the tree or take other necessary precautions after he warned her of the condition of the tree and the dangers it posed.

Lockhart moved to dismiss the complaint, arguing that a landowner is not liable for physical harm to others outside of her land caused by a natural condition.  The trial court denied the motion to dismiss, certified that the question of law raised in Lockhart’s motion presented substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.

Held: The Court held that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.

The narrow issue before the court was to determine the extent, if any, of the duty that a landowner in a residential area owes to persons outside of his premises to remedy some defective or unsound condition of a tree upon his land when the tree and its condition were of a purely natural origin.  Mahurin urged the Court to adopt the traditional rule set forth in section 363 of the Restatement (Second) of Torts.  This section provided that neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.   However, if the landowner was in an urban area, he was subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The traditional rule applied even though the landowner is aware of the dangerous natural condition and the expense necessary to remedy the condition is slight.

The Court noted that the traditional rule of non-liability developed at a time when land was mostly unsettled and uncultivated. The landowner – unable to keep a daily account of and remedy all of the dangerous conditions arising out of purely natural causes – was therefore shielded from liability out of necessity.

The Court disagreed that the duty an urban landowner owed to a neighbor should be less than owed to people passing in cars and trucks.  It thus ruled that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.”

Therefore, Lockhart’s duty to Mahurin should “be defined using the ordinary rules of negligence. It is therefore appropriate for the trier of fact to consider … such factors as “the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented” in resolving the issue of liability.

The Court noted Lockhart’s argument that Mahurin was contributorily negligent because he stood under a tree that he, by his own admission, knew was dying and dangerous.  The Court noted that the Restatement provided that a landowner is privileged to enter upon a neighbor’s land to abate a condition thereon which constitutes a private nuisance. “While this privilege alone does not establish the contributory negligence of plaintiff, it could be considered by the jury in resolving this issue.”

The Court remanded the case for trial, using the standards it had adopted.

Case of the Day – Wednesday, March 5, 2014

A LEG TO STAND ON

 What’s the difference between a stork and the plaintiff in today’s case (whose foot was broken when a branch from a neighbor’s tree fell on it)?

OK, it’s too easy – the stork has a leg to stand on.

Rick Meyers’ neighbor had a catalpa tree, a pretty good-looking deciduous tree that drops bean pods and leaves in the fall, but little else.  It’s a solid Anglo-American tree, flowering in the spring and with large leaves and deep shade in the summer.  In fact, it’s the sole food source for the catalpa sphinx moth, a creature favored by southern anglers as bait.  Birds love it, caterpillars love it, fishermen love it … and so do most people.

Except our hobbling protagonist, Rick Meyers.  The Delaneys’ catalpa tree provided shade to Mr. Meyers’ driveway with its overhanging branches.  But one day, Rick had run barefooted outside to put up the car windows (we suspect a thunderstorm was about to hit, which would have been accompanied by gusty winds, but the record didn’t say as much).  While he was doing so, a branch broke free from the tree and fell on his foot.

Rick didn’t have a shred of proof that anyone – including the Delaneys – had reason to know that the branch was going to break.  But lack of evidence was a mere inconvenience.  He sued anyway, claiming that as owners of a tree in a residential area, the Delaneys had a duty to know the branch was going to fall, and never mind how they were supposed to have figured that out.  Rick’s foot hurt, and someone had to pay.

The trial court took a more sanguine view.  It believed that if the Delaneys couldn’t clearly see that the tree was dangerous, they couldn’t be found to be negligent because they had not sleuthed it out.  The Iowa Supreme Court agreed.  The risk has to be seeable before it can be found to be foreseeable.

Meyers v. Delaney, 529 N.W.2d 288 (Iowa Sup.Ct. 1995).  Meyers and Delaney owned adjoining properties.  Standing between their homes, but on the Delaney homestead, was a large catalpa tree.  The tree limbs hung over the Meyers driveway.  The Meyers family parked cars under the branch each day, and the Meyers kids played around it when outside.

 One evening in mid-July, 1990, Rick Meyers ran barefoot out to his car to roll up the windows.  He heard a large crack, and then a large catalpa limb fell from the tree, striking and severely injuring his foot.  He sued the Delaneys for negligence, claiming they failed to maintain the tree properly, failed to warn him of the dangerous condition of the tree, and failed to protect him from a danger that in the exercise of reasonable care the Delaneys knew or should have known existed.

The trial court found that the Delaneys neither knew nor should they have reasonably known the tree was dangerous, so they were not negligent.  Rick Meyers appealed.

Held: The Iowa Supreme Court agreed that the Delaneys were not liable.

The Court noted that the general rule is that one who maintains trees owes a duty to avoid injuring persons on adjoining premises by permitting a tree to become so defective and decayed it will fall on them.  However, the Court held, there is no duty to consistently and constantly check all trees for non-visible decay.  Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.  If the decay or infirmity is readily observable, the tree owner may be liable for injuries caused by a defective condition of the tree if he or she had actual or constructive notice of the trees defective condition.

In this case, the catalpa tree had had a dead limb removed by a friend of the Delaneys the summer before.  The friend, who had some experience working in trees, testified he observed nothing in the tree to cause him concern about his safety.  Furthermore, while Meyer’s expert tree trimmer testified that the tree was dangerous, he conceded on the stand that there was nothing that Delaneys could have observed about the tree before the accident that would have alerted them to be concerned over its safety. 

Thus, there was no negligence.

Case of the Day – Thursday, March 6, 2014

A TREE GROWS IN BROOKLYN – AND THAT’S DIFFERENT

Time was, trees were just trees, and what they did, how they lived, grew and died, was out of the control of the property owner.  No one blamed little Francine Nolan if the tree growing in Brooklyn fell on a Sabrett’s cart.

About the time little Francine was living in her Williamsburg tenement, an influential group of judges, scholars and lawyers in Philadelphia formed an organization known as the American Law Institute.  They believed, among other things, that they could write comprehensive treatises about all areas of the law – which they called “Restatements” – that would serve as authoritative statements of the principles of common law.  No more confusion, no more divergence of holdings, no more contentious arguments!  You can just about hear the group, lemonades hoisted (this was during Prohibition, after all), singing “We Are the World.”

Alas, Prohibition failed, and so did the ALI’s goal of replacing all of those tedious casebooks and treatises with the Restatement of the Law.  Everyone loved the Restatements, but far from replacing state common law, case reporters and codes of statutes, the volumes became just another secondary source.  To be sure, some of the ALI members never really thought an entire law library could be replaced with one shelf of Restatements, notably Benjamin Cardozo.  He believed that the Restatement “will be something less than a code and something more than a treatise. It will be invested with unique authority, not to command, but to persuade.”

The Restatement of the Law continues today, with some volumes in their third printing.  And courts love them, even if they don’t always follow them.

Today’s case is a good example.  When the Browns’ tree fell on Ms. Barker’s property, it made a mess.  She sued her neighbors, arguing that they should have recognized that the tree is at risk of falling, and done something about it.  The Browns pointed out that no less persuasive source than the Restatement (Second) of Torts said that they weren’t responsible for the natural condition of trees on their property.  The trial court agreed, and threw the case out.

The appellate court disagreed.  It rejected the Restatement approach as being outdated and not sufficiently attuned to the differences between urban and rural life.  In other words, the Court said, if a tree grows in Brooklyn, little Francine had better keep her eye on it.

Barker v. Brown, 236 Pa.Super. 75, 340 A.2d 566 (Pa.Super. 1975).  Virginia Barker’s property adjoins that of the Browns.   Both are located in a residential district of State College.  A large tree stood on the Browns’ property, a tree which Barker said the Browns knew or should have known was in a decayed, rotting and dangerous condition.  Barker alleged that the Browns negligently failed to take steps to avert the danger and, as a result, the tree fell onto her property.  

The tree’s fall destroyed two of Barker’s trees, valued at about $600 each. Barker had to have the fallen tree removed from her property at a cost of $147.50, and the process required her to miss two days of work, causing lost wages of $34.00. Finally, the incident caused a loss of value of Barker’s property in the amount of $600.00.

The trial court threw out the case on the grounds that section 363 of the Restatement (Second) of Torts (1965) precluded holding the Browns to blame.  That section provided:

(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

        Held: The appellate court reinstated the lawsuit.

The court held that the Restatement’s distinction between natural and artificial conditions – which had never been the focus of prior Pennsylvania court decisions – was outdated. “It may very well be true,” the Court said, “that the distinction between artificial and natural conditions was valid in a time when landowners were possessed of, and hence would have been charged with the care of large quantities of land. It would still be valid today in rural areas where large landholdings are common. [However], we do not believe that the distinction should be applied to land in or near a developed or residential area. Urban living, by altering the purpose for which the land is used, must also bring with it certain responsibilities. A tree growing in an urban or residential area does not have the same natural relation to surrounding land as a tree located in a rural setting.”

While acknowledging that its approach imposed more cost on landowners, the Court nevertheless believed that “the relatively minor expenditures in time and money that it will take to inspect and secure trees in a developed or residential area is not large when compared with the increased danger and potential for damages represented by the fall of such a tree.”

The Court thus held that a possessor of land in or adjacent to a developed or residential area was subject to liability for harm caused to others outside of the land by a defect in the condition of a tree thereon, if the exercise of reasonable care by the possessor would have disclosed the defect and the risk involved, and repair would have made the tree reasonably safe.

In this case, the Court held, Barker alleged in her complaint that the Browns “knew, or should have known, that the said tree was in a decayed, rotting, and dangerous condition.” This is denied by the Browns, but for purposes of this appeal, the Court had to accept the facts alleged in Barker’s complaint as true. On remand, it noted, the question would be one for the fact finder.

Case of the Day – Friday, March 7, 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. 

 The lesson is that the expert should have covered all the bases: he or she should testify 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.  And a curious note: 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 because he didn’t raise the question on appeal, the Court couldn’t consider it.

 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, March 10, 2014

WRONGFUL TREES

For all of the Latin phrases, hidebound traditions and libraries full of precedent, the law at its essence is nothing more than a codification of policies generally accepted by society.  The law doesn’t always get it right – some laws aren’t carefully drafted, others do exactly what the legislature intended but pursue foolish or even repugnant policies – but by and large, the law tries to lay out rules for conduct based on policies generally accepted to be important.

Keeping an eye on the prize – the societal goals to be achieved – often helps courts from going overboard.  It’s how the camel’s nose can be allowed into the tent without getting the whole camel in the process.

A good example of this is the “wrongful life” lawsuit.  States all allow a “wrongful death” action, in which the survivors of someone killed, say, in a car accident or from medical malpractice sue for damages.  This makes good sense.  But in the last decade or so, some “wrongful life” suits have been brought, where – for example – a physician misdiagnoses, and tells prospective parent that their fetus is healthy, but the doctor is wrong.  The child is born with severe birth defects.  The “wrongful life” suit claims that but for the physician’s negligence, the child would have been aborted.

Very few courts have permitted such a lawsuit, for several very good public policy reasons.  The first is that society does not recognizes, as a matter of policy, that anyone is better off not having been born, no matter how severe the burdens of congenital disability.  Second, the whole idea of tort law is to place the injured party in the same position as he or she would have been in had the negligence not occurred.  But for the negligence, the injured party wouldn’t have been born.  What can be done to put a living plaintiff in that position, or ­for that matter, to compensate for having been born instead of never being?

All right, that’s pretty heady stuff, but what does that have to do with tree law?  Simply this: in today’s case, the plaintiff, Ms. Lewis, suffered having neighbors Gary and Nancy Krussel’s tree fall on her house.  Her suit simply claim this:  the tree fell on her house, the neighbors knew that they had a tree, therefore, the tree was a nuisance, and the neighbors were negligent in not keeping the tree from falling on the house. There was no evidence the Krussels had any inkling this particular hemlock was going to fall.  There was no evidence any reasonable person would have had such an inkling.  In fact, there was no evidence the tree was diseased or damaged.  Reduced to its essence, Lewis’s claim was that the tree existed and the tree later fell, and those facts made it a nuisance.  The tree was alive, the argument seems to say, and that fact wronged Ms. Lewis.

Fortunately, the Washington state courts made short work of this claim.  Ms. Lewis was trying to advance a negligence claim as a nuisance claim, probably because she had no evidence of negligence.  But, the courts ruled, public policy was not ready to declare a tree a nuisance merely because it was growing, nor was it prepared to hold that property owners were liable for what became of any naturally-growing, healthy trees on their land.

Without keeping one eye on public policy, the courts’ development of the law might go like this: First, landowners are responsible for damage caused by trees on their property that are diseased or damaged, and about which condition they are actually aware or reasonably ought to be aware.  The next step would be courts ruling that owners must inspect their trees to avoid liability.  Finally, landowners would be strictly liable for any damage caused by their trees, whether they were aware of a problem or not.

Largely, the law has stopped short of such a draconian rule, because the courts recognize that public policy favors the natural growth of trees, and eschews requiring property owners to devote substantial time and money to inspect trees, where there is no concomitant benefit to the public.  By and large, courts have enough policy sense to let the camel’s nose into the tent while keeping the rest of the dromedary outside.

It is this kind of analysis that is illustrated in today’s case.

Lewis v. Krussel, 101 Wash.App. 178, 2 P.3d 486 (Ct.App. Wash. 2000). During a windstorm, two large healthy hemlock trees fell on Dawn Lewis’s house.  She sued Gary and Nancy Krussel, who owned the property on which the trees had been growing.

Krussel acknowledged that windstorms had knocked down other trees on his property and other property nearby in previous years.  About a week after the windstorm at issue here, another windstorm knocked a tree onto his mother’s mobile home.  But the trees that damaged the Lewis house were natural growth, and Krussel had no reason to believe that they were any more dangerous than any other trees on his property under normal conditions.  After the damage to the Lewis house, Krussel cut down other hemlock trees located near his house upon the recommendation of the local utility district.

After Lewis sued for nuisance and negligence, Krussel moved for summary judgment.  He supported the motion with evidence from a professional forester who inspected the stump of one of the fallen trees and found no evidence of rot.   The forester concluded the tree that fell on the Lewis house was no more dangerous than any other tree standing on the Krussels’ property, and there was no way for the Krussels to determine beforehand whether any one of their trees would fall over.  The trial court dismissed the Lewis claim, and Lewis appealed.

Held:  The appeals court upheld the dismissal of Lewis’s claim.

A homeowner is not obligated to remove healthy trees because they might topple in a storm.  The Court of Appeals said just because a negligence claim was disguised as a nuisance suit didn’t mean that the trial court had to consider it as such.  Instead, in situations where the alleged nuisance is a result of what is claimed to be negligent conduct, the rules of negligence are applied. 

The elements of a negligence cause of action, of course, are (1) the existence of a duty to the plaintiff, (2) a breach of the duty, and (3) injury to plaintiff flowing from the breach of duty.  An owner of property located in an urban or residential area who has actual or constructive knowledge of defects affecting his or her trees has a duty to take corrective action.  However, the same is not the case when the tree is healthy.  In that case, the owner does not have a duty to remove healthy trees merely because the wind might knock them down. 

In this case, the Court agreed, there was no evidence that Krussel had any reason to believe that the hemlock trees posed a hazard, and a professional forester who had inspected the stump of the fallen tree had found that the tree was free of defects.  The mere possibility of harm does not mean probability of harm.

Case of the Day – Tuesday, March 11, 2014

JUDGE JUDY HAS HER LIMITS, YOU KNOW

Ah, Cleveland! Renown for the Rock and Roll Hall of Fame, world leader in the manufacture of duct tape, home to some really good beer and some really bad teams …

Add to that impressive string of achievements one more jewel: Cleveland gave the United States its first small claims court in 1913. The People’s Court was not far behind.

Small claims courts exist in every state of the country, informal courts of very limited jurisdiction (awards of a few hundreds or few thousands of dollars), places where lawyers and formality are rare indeed. It was to just such a place that Mr. Iny dragged Mr. Collom. It seems the roots of Mr. Collom’s tree were breaking up the walls of his neighbor’s garage. Now, any fan of the Massachusetts Rule would have told the neighbor to get out there with a shovel and ax, and cut the offending roots at the property line. Self-help is, after all, as American as … well, as the Massachusetts Rule.

Of course, self-help doesn’t mean you can go onto your neighbor’s property, and it seems the homes and garages in this Long Island town were packed together like sardines. Mr. Iny couldn’t dig up the attacking roots without going onto Mr. Collom’s place, and we’re suspecting from the decision that these two guys were not the best of friends. So Mr. Iny took him to court.

The small claims court awarded him $2,100 for damages. Being of limited jurisdiction, the court couldn’t order Mr. Collom to cut down the tree or dig up the roots, so money was all that was available. Mr. Collom appealed (something you never see happening on TV).

The Supreme Court (which in New York State is not the state’s high court, but rather in this case just a court of appeals) reversed. The remedy here, the court said, shouldn’t have been money. It should have been to cut down the tree. But the small claims court lacked jurisdiction to do that. The Supreme Court itself didn’t have such constraints, so it reversed the money damages and instead ordered Mr. Collom to get rid of the tree.

The most interesting part of the decision is the lengthy and well-written dissent arguing that Mr. Iny’s tree claim was in fact a nuisance claim, and that money damages should have been awarded as well. The dissenting judge argued that New York has adopted its own tree encroachment rule, a hybrid of the Massachusetts and Virginia Rules (which itself has since this case been abandoned by Virginia). In New York, the judge concluded, a complainant has to resort to self-help first. If that fails, the courts will intervene if the tree can be shown to be a nuisance — that is, if the tree “is causing substantial interference with the use and enjoyment of plaintiff’s land, that defendant’s conduct is intentional or negligent.”

Of course, the discussion is found in a dissent to a fairly low-level, unreported decision, but it’s a thoughtful analysis of the encroachment rule in a state where precedent on the subject is sparse. Good reading on cold winter night … unless, of course, another episode of Judge Judy is on.

Iny v. Collom, 827 N.Y.S.2d 416, 13 Misc.3d 75 (Sup.Ct. N.Y., 2006). The roots of a tree situated on defendant’s property damaged the wall of a garage on plaintiff’s property. Plaintiff lacked the room to cut the roots out himself without trespassing on his neighbor’s land. He sought to get his neighbor to remove the objectionable tree, which he felt would have been the best way to fix the problem, but the defendant refused. Plaintiff sued in small claims to recover $2,100. The trial court awarded him this sum. Defendant appealed.

Held: The decision was reversed. The Supreme Court noted that a New York small claims court is a court of limited jurisdiction and lacks the authority to grant any equitable remedy, such as directing the removal of a tree. Under the circumstances presented, the Court ruled, “substantial justice would have been most completely rendered had the court awarded judgment in favor of defendant dismissing the action on condition that he remove the subject tree within a specified period of time”. But the trial court couldn’t do that. The Supreme Court could, however, and ordered the case dismissed, conditioned on defendant removing the tree within 60 days.

One justice dissented. He believed that the trial court’s judgment awarding plaintiff $2,100 in damages was based on a nuisance claim, and should have been affirmed. The dissent said the issue faced in the case was whether under New York law, a property owner whose property is being encroached upon and damaged by the roots of a neighboring property owner’s tree may successfully assert a cause of action sounding in private nuisance if the property owner’s resort to self-help is unworkable, and the property owner’s attempts at obtaining assistance from the neighboring property owner to abate the roots’ encroachment have been unsuccessful.

The dissent argued that to establish a cause of action for private nuisance, the plaintiff must show that the defendant’s conduct causes substantial interference with the use and enjoyment of plaintiff’s land and that defendant’s conduct is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the laws governing liability for abnormally dangerous conditions or activities. The interference can be caused by an individual’s actions or failure to act. Where a defendant has been put on notice that his activity is interfering with plaintiff’s use and enjoyment of his land and defendant fails to remedy the situation, the defendant ought to be found to have acted intentionally and unreasonably.

Furthermore, the dissent argued, “[u]nder New York law, a party is liable for failing to abate a nuisance [under a theory of negligence] upon learning of it and having a reasonable opportunity to abate it.” The question of whether there has been a substantial interference with plaintiff’s use and enjoyment of his/her property is one to be resolved by the trier of fact and involves a review of the totality of the circumstances based upon a balancing of the rights of the defendant to use his or her property against the rights of the plaintiff to enjoy his or her property. The balancing amounts to a risk-utility analysis weighing the social value of the conduct involved against the harm to private interests.

The dissent admitted that while the elements of a nuisance action appear straightforward, in New York there is a paucity of case law addressing nuisances arising from trees or other plant life. Nevertheless, the justice argued, there is substantial case law from jurisdictions outside New York, and he describes in detail the Massachusetts Rule, the Virginia Rule and the Hawaii Rule. The dissent concludes New York has “in large measure, adopted a hybrid approach somewhere between the Hawaii and Virginia Rules in determining the issue of nuisance liability. To sustain a cause of action for nuisance, a plaintiff must resort to self-help in the first instance, which does not appear to be a prerequisite under the Hawaii Rule. Once a plaintiff establishes that self-help failed or self-help was impracticable, he or she must (1) show sensible damage (this kind of “sensible” has nothing to do with common sense, but rather is an injury that can be perceived by the senses), (2) that defendant’s conduct is causing substantial interference with the use and enjoyment of plaintiff’s land, (3) that defendant’s conduct is intentional or negligent, and (4) that the continued interference with the use and enjoyment of plaintiff’s property is unreasonable.

Where a defendant has been notified that a tree was causing damage to plaintiff’s property and refuses to assist plaintiff in taking measures designed to abate the nuisance, the defendant should be found to have acted intentionally or negligently with regard to the nuisance. The unreasonableness of the interference will depend upon an overall balancing of the equities: the injuries to plaintiff and to defendant, the character of the neighborhood, the ongoing nature of the injury, and the nature of defendant’s actions.

Remember, the foregoing – while it may be eminently “sensible” in the meaning of the term – was the opinion of a lone judge, one who was outvoted. It makes for thoughtful reading. But don’t mistake it for the law.

Case of the Day – Wednesday, March 12, 2014

A “READILY APPARENT” THUMP

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

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

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

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

Well, this is America!  Why not sue both?  So the Conines did just that.

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

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

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

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

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

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

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

Case of the Day – Thursday, March 13, 2014

ROCK SOLID 

The solid rock on which the many decisions on landowner liability for trees that fall on neighbors’ land, houses, cars and sundry possessions is the unremarkable notion that a landowner is not responsible for damage caused by the natural condition of the land.  In other words, if it’s just a tree growing naturally on the property – and not some exotic species you saw on your last safari, and just had to plant in your backyard in scenic Bugscuffle, Tennessee – any damage it might cause by shedding its limbs or invading with its roots is pretty much an Act of God.

Or such was the case in 1946, when the Gibraltar Fire & Marine Insurance Co., tried to collect money from Mr. Griefield for damage his tree had done to its insured.  Mr. Griefield told Gibraltar that it had rocks in its head if it thought he was liable for damage caused by a falling limb.  But Gibraltar wasn’t monkeying around.  It sued, claiming in essence that a landowner was liable whenever one of his or her trees caused harm to a neighbor.

The case didn’t involve questions of whether the tree was diseased, whether Mr. Griefield had a duty to inspect his trees, or whether any defects in the tree were readily apparent.  Decisions refining a landowner’s duty – even where the tree is a natural condition of the land – were years in the future.  Rather, today’s case established as rock solid the principle that a landowner has no obligation to trim or take other steps to limit the damages that a tree growing as a natural condition of the land might otherwise cause to a neighbor.

Because the decision, although written with some ruffles and flourishes, is short, we set it out in full:

Griefield v. Gibraltar Fire & Marine Ins. Co., 199 Miss. 175, 24 So.2d 356 (Sup.Ct. Miss. 1946).   This action was begun by the appellee in a County Court and was there tried by agreement by the Judge without a jury, resulting in a judgment for the appellant, but which was reversed by the Circuit Court and a judgment was there rendered for the appellee. The case was tried in the County Court on an agreed statement of facts, which the Reporter will set out in full.

The test of the appellant’s liability vel non is whether the tree from which this limb overhung the land of the appellee’s assignors was of natural growth or had been planted by the appellant or a former possessor of her land. If the latter is the case, liability appears, 4 Restatement, Torts, § 839; Buckingham v. Elliott, 62 Miss. 296, 52 Am.Rep. 188; but if the former is the case the appellant is not liable, 4 Restatement, Torts, § 840, Comment (a). The former is the case here, for there is nothing in the agreed statement of facts to indicate that the oak tree was not of natural growth.

The broad language of the opinion in Buckingham v. Elliott, supra, if given effect, would sustain the judgment of the Circuit Court, but when the authority of that opinion is limited, as it should be, to the issue then before the court, it will be seen that the judgment there rendered is not in conflict with the rule announced in 4 Restatement (Torts), § 840, for the trees there, the roots of which caused the plaintiff’s damage, were not of natural growth but had been planted of the defendant’s land. The appellant was under no obligation to the appellee’s assignors to remove the limb of the tree which overhung their land, and her gratuitous promise so to do was not binding on her, but the appellee’s assignors had the right at all times to themselves remove so much of the limb as overhung their land. 1 American Jurisprudence., Adjoining Landowners, § 56.

The judgment of the Circuit Court will be reversed and the judgment of the County Court will be affirmed.

Case of the Day – Friday, March 14, 2014

THE GRASSHOPPER AND THE ANT

Today, we consider the Vermont case of Stanley v. Stanley, a modern take on the grasshopper and the ant.  It seems that 50 years ago, two brothers bought some woodland.  But only industrious brother George, a busy little worker ant, ponied up the cash for the place, paid the taxes, paid the rent, and managed the affairs of the woodland.  Grasshopper John was too busy doing whatever grasshoppers do.

After about 45 years of this, ant George started getting tired of grasshopper John never paying his fair share.  Ant George was out a lot of investment, and he decided it was time to pay it back.  So he sold the timber on the land for about $46,000.

Suddenly, grasshopper John was very interested in the goings-on, and he sued ant George.  But he didn’t just want half of the proceeds.  Surely that would be unfair.  Instead grasshopper John hires three wise old owls as expert witnesses, and they opine that the timber was really worth anywhere from $60,000 to $80,000.  Plus, he retained the services of a crafty old lawyer, who told him he could get treble damages for ant George’s wrongful cutting of the timber (plus a legal fee for the fox).

The trial court suspected that John was more snake than grasshopper, but it nevertheless didn’t have much choice but award him half the value of the timber.  The court selected the lowest of the various estimates given by the several owls who testified as experts, still awarding the grasshopper one half of the $61,785 value of the timber.  The court refused treble damages.

The grasshopper was furious!  He had been denied what was fair, namely all of it!  He wanted the timber valued at $80,000, with his one-half share trebled to $120,000.  Fortunately, the wise Supreme Court upheld the trial court, finding that treble damages for wrongful cutting don’t apply where one owner of the land — even if he’s an industrious ant — gives permission.  Still, the ant lost $31,000 of his $46,000 to his brother, the grasshopper, whose investment had never amounted to a farthing.

The moral, boys and girls, is that a slothful existence and a good lawyer beats hard work and careful investment any day.

Stanley v. Stanley, 928 A.2d 1194 (Sup.Ct. Vt., 2007).   Some 50 years ago, brothers John and George Stanley bought a perpetual lease of a 100 acre wooded lot in Victory, Vermont.  Defendant George paid the entire purchase price, but the brothers owned the lot as tenants-in-common.  From the beginning of their ownership, George paid the annual rent as well as property taxes when they were assessed.

In 1965, he received money from Portland Pipe Company for the right to lay pipe across the property. In the spring of 2002, he hired a logging contractor to harvest and sell the trees from the lot. The logging operations were completed that summer.  George didn’t discuss the logging operation with plaintiff John until after it was completed.  George figured that “since he had been paying all the expenses relating to the property, he should be able to make the decisions relating to the land.” George got $45,803.32 for the timber removed from the lot.  When John learned that timber was being cut, he took pictures of the operation and tried to reach George — who had neither an iPhone nor broadband — without success.

John didn’t try to stop the logging, but after it was over, he sued his brother, seeking an accounting, partition, treble damages under 13 V.S.A. §3606, costs of the action and attorney’s fees.   While he couldn’t afford to share the expense of the land with his brother, at trial, John apparently found his checkbook, presenting testimony from three experts on the value of the timber cut.  Thomas Hahn, a private consulting forester, presented two different methods of determining the value of the timber cut from the property, the prevailing market price of a unit of wood in the summer of 2002 based on trade publications (using which he concluded that the value of the timber was $61,785.79), and the “timber cruising” or “sampling” method that would support a finding that the fair market value of the timber was $82,000. Stanley Robinson reviewed the logging contractor’s summary of mill slips and trip tickets, and Alan Bouthelier on his observations from visiting the property prior to the logging. The testimony of these two experts supported a finding that the fair market value of the timber cut was approximately $80,000.

The trial court refused to rely on Hahn’s “sampling” method, dismissing it as too speculative.  Instead, it found that the fair market value of the timber cut was $61,785.79, and that plaintiff was entitled to half of this amount. It also ruled that the treble damage statute does not apply to actions between tenants-in-common for the sale of common property, and granted a request for partition. Following the hearing, George gave John $22,901.66, half of what he had been paid for the timber.

None of this being good enough for the rapacious John, he appealed.

Held:  The trial court was affirmed.  The Supreme Court held that Vermont’s timber trespass statute — which reads in part that if a person cuts down trees belonging to another person “without leave from the owner,” the injured party can recover treble damages — is plain and unambiguous.  The Court said that the statute’s language presupposed that the injured party had ownership rights to the exclusion of the party from whom treble damages are being sought.

The statute is a punitive one, intending to deter intentional trespass and wrongful taking of another’s timber. Because George had an undivided ownership interest in the trees at the time of the logging, the treble damages statute simply does not apply.  He simply was not among the intended targets of the statute, those “‘tree pirates’ and ‘arboreal rustlers’ who trespass on another’s property and remove timber to which they have no right.”

John also argued that the trial court erred when it held that the “timber cruising” or “sampling” method of determining the quality and quantity was too speculative.  The Supreme Court held that because the trial court, after evaluating several different methods, relied on testimony of the expert as to one of the methods to determine the fair market value of the timber cut and sold, the Supreme Court would not second-guess it on whether it could have used an alternative method.

Case of the Day – Monday, March 17, 2014

THINGS ARE SELDOM WHAT THEY SEEM

Buttercup:          Things are seldom what they seem,
                          Skim milk masquerades as cream;
                          Highlows pass as patent leathers;
                          Jackdaws strut in peacock’s feathers.

Captain:            Very true,
                         So they do.

                                                  Things are Seldom What They Seem
                                                     (duet with Buttercup and Capt. Corcoran)
                                                  Gilbert & Sullivan, H.M.S. Pinafore

So property rights are as dry as toast? Well, maybe, depending on whether it’s your ox that’s getting gored or not. Consider Marvin Brandt. This hard-working son of a hard-working lumberman is a Wyoming rancher. His father, who started in the 1930s as a lowly sawmill worker, ended up owning the place. Marvin worked at his Dad’s mill as a youth, and he ended up running the mill himself.

The year of our Lord 1976 was an important year. It was the America’s Bicentennial. Marvin bought the sawmill from his father. Congress repealed the General Railroad Right-of-Way Act of 1875. And Marvin bought a nice chunk of land for his sawmill – not to mention plenty of standing timber – from the U.S. Forest Service. He obtained it through a procedure known as a land patent, in which the Government deeds its rights in land to private property holders.

It was a pretty good deal, sold to Marvin without many restrictions. There was an easement for the Laramie, Hahn’s Peak and Pacific Railroad, but that wasn’t much of a problem for him. Easements weren’t such an impediment, he thought. But then, things are seldom what they seem …

Buttercup:            Black sheep dwell in every fold;
                            All that glitters is not gold;
                            Storks turn out to be but logs;
                            Bulls are but inflated frogs.

Captain:                So they be,
                            Frequentlee.

Union Pacific had tracks running through the property that Marvin bought. He wasn’t alone in this: some 30 other people bought Government land subject to the UP’s railroad right-of-way. The right of way originally was obtained by LHP&P in 1908, pursuant to the 1875 Act. The 200-foot wide right of way meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border.

After the railroad line was abandoned, the Government claimed that the land underlying the old track bed. It had plans to turn the route into a hiking trail. When the Government sued to quiet title on the right-of-way, it named all 31 landowners as defendants. None of them owned more than 3 acres affected by the right-of-way, and none of them mounted a defense. They all defaulted.

Except Marvin.

Marvin may be one of your rugged Wyoming individualists. He may be ornery. But one thing was for sure. Unlike the others, Marvin had over 85 acres affected by the old roadbed. Nearly a half-mile stretch of the right of way crosses Marvin’s land, covering ten acres of his parcel. In other words, this wasn’t chump change.

The Government, as administrations of either political party are wont to do, tried to steamroll Marvin. The Feds claimed that the LHP&P had owned the land under its rails, subject only to a reversionary interest in the Government if it ever abandoned the line. Therefore, Uncle Sam claimed, when the tracks came out, ownership of the property reverted to the U.S. Forest Service.

The District Court agreed that the 1875 Act and the land patent were not models of clarity, but the Government won anyway. The Court of Appeals reversed. The Government, seeing its Golden Goose about to be slaughtered, appealed to the Supreme Court.

The Supremes, by a resounding 8-1 decision, said that “things are seldom what they seem.” The right-of-way granted to the railroad might seem like a transfer of the land in fee simple, subject only to being returned to the Government if the rail line was abandoned. But it really was only an easement, meaning that the land patent to Marvin had transferred all of the ownership to him, subject only to the easement. When the easement vanished, the land was all his.

The Government’s insurmountable hurdle was its own cuteness. Back in the 1920s, the railroad had planned to drill for oil along the right-of-way (remember Teapot Dome?). The Government had opposed it, claiming that it owned the oil. The railroad, Uncle Sam claimed, only owned an easement. The land (and the wealth under it) belonged to the Feds. The case ended up in the Supreme Court, where the Government won.

But now, the Government argued that things aren’t what they seem to be, and seemed to be back in 1942.   The Forest Service never owned the land under the railroad when it gave Marvin the land patent.  Instead, the railroad did, and the Government didn’t get it back until well after it had sold the rest to Marvin.  The 1942 decision must be wrong, to the extent it applied to anything other than oil rights.  Thus, the railroad right-of-way reverted to the U.S. Forest Service in 1988, 12 years after the rest of the land was sold to Marvin.

The Supreme Court was not amused. Applying the ancient legal principle that “you dance with the one that brung ya,”  the Justices ruled that the Government persuaded the Court in 1942 that the railroad right-of-way was just an easement, and it wasn’t going let the Government change its position now just because it suited it to do so.  Alas, the Justice Department (and this is a fault that has belonged to predecessor administrations, Republican or Democrat) all too often has no compunction about changing its arguments for convenience when it should adhere to them for principle.  This time, it didn’t work.

Only Justice Sonia Sotomayor dissented, in an opinion that seemed peculiarly strained. Anxious to preserve the back-to-nature folks who enjoyed Federally-funded hiking and biking trails, she argued that the 1942 case was only about subsurface rights – which seems to us to be a distinction without a difference – and, anyway, the Brandt decision would hurt the rails-to-trails movement and result in a lot of litigation as private landholders sought to get what was rightfully theirs.  This may be so, but cost and inconvenience shouldn’t drive Supreme Court opinions.  The law should.

So the right-of-way that the Government once said was an easement but now seemed be something else really was just an easement … as it had been all along.

Buttercup:           Drops the wind and stops the mill;
                           Turbot is ambitious brill;
                           Gild the farthing if you will,
                           Yet it is a farthing still.

Captain:             Yes, I know.
                          That is so.

Marvin M. Brandt Revocable Trust v. United States, Case No. 12–1173. (March 10, 2014): The General Railroad Right-of-Way Act of 1875 provides railroad companies “right[s] of way through the public lands of the United States,” 43 U.S.C. § 934. One such right of way, created in 1908, crosses land that the Government conveyed to the Brandt family in a 1976 land patent. That patent stated that the land was granted subject to the right of way, but it did not specify what would occur if the railroad relinquished those rights.

A successor railroad abandoned the right of way with federal approval. The Government sought a declaration of abandonment and an order quieting its title to the abandoned right of way, including the stretch across the Brandt patent. Brandt argued that the right of way was a mere easement that was extinguished upon abandonment.

The district court quieted title in the government. The Tenth Circuit affirmed.

The Supreme Court reversed.

It held that right of way was an easement that was terminated by abandonment, leaving Brandt’s land unburdened. The Court noted that that in Great Northern R. Co. v. United States, 315 U. S. 262 (1942), the Government had argued a position – that the right-of-way was an easement, not a grant of ownership in fee simple subject to a reversionary interest – that was exactly opposite to its position in this case. In that decision, the Court found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest.

Now, the Government was asking the Court to limit Great Northern’s characterization of 1875 Act rights-of-way as easements to the question of who owns the oil and minerals beneath a right of way. But nothing in the 1875 Act’s text supports that reading, and the Government’s argument directly contravenes the very premise of Great Northern: that the 1875 Act granted a fundamentally different interest than did its predecessor statutes. Nor do the Court’s decisions in other cases support the Government’s position, and – to the extent that they could be read that way – the Court said clearly that any such implication did not survive its unequivocal statement to the contrary in Great Northern. Later enacted statutes, such 43 U. S. C. §§ 912 and 940, and 16 U. S. C. § 1248(c), do not define or shed light on the nature of the interest Congress granted to railroads in their rights-of-way in 1875. Instead, those statutes purport only to dispose of interests the United States already possesses.

The land patent Marvin Brandt obtained in 1976 included ownership of the land under the railroad company easement. When that easement was abandoned, Mr. Brandt obtained the exclusive right of possession to the land he already owned.

Case of the Day – Tuesday, March 18, 2014

THE GRASSHOPPER AND THE ANT

Today, we consider the Vermont case of Stanley v. Stanley, a modern take on the grasshopper and the ant.  It seems that 50 years ago, two brothers bought some woodland.  But only industrious brother George, a busy little worker ant, ponied up the cash for the place, paid the taxes, paid the rent, and managed the affairs of the woodland.  Grasshopper John was too busy doing whatever grasshoppers do.

After about 45 years of this, ant George started getting tired of grasshopper John never paying his fair share.  Ant George was out a lot of investment, and he decided it was time to pay it back.  So he sold the timber on the land for about $46,000.

Suddenly, grasshopper John was very interested in the goings-on, and he sued ant George.  But he didn’t just want half of the proceeds.  Surely that would be unfair.  Instead grasshopper John hires three wise old owls as expert witnesses, and they opine that the timber was really worth anywhere from $60,000 to $80,000.  Plus, he retained the services of a crafty old lawyer, who told him he could get treble damages for ant George’s wrongful cutting of the timber (plus a legal fee for the fox).

The trial court suspected that John was more snake than grasshopper, but it nevertheless didn’t have much choice but award him half the value of the timber.  The court selected the lowest of the various estimates given by the several owls who testified as experts, still awarding the grasshopper one half of the $61,785 value of the timber.  The court refused treble damages.

The grasshopper was furious!  He had been denied what was fair, namely all of it!  He wanted the timber valued at $80,000, with his one-half share trebled to $120,000.  Fortunately, the wise Supreme Court upheld the trial court, finding that treble damages for wrongful cutting don’t apply where one owner of the land — even if he’s an industrious ant — gives permission.  Still, the ant lost $31,000 of his $46,000 to his brother, the grasshopper, whose investment had never amounted to a farthing.

The moral, boys and girls, is that a slothful existence and a good lawyer beats hard work and careful investment any day.

Stanley v. Stanley, 928 A.2d 1194 (Sup.Ct. Vt., 2007).   Some 50 years ago, brothers John and George Stanley bought a perpetual lease of a 100 acre wooded lot in Victory, Vermont.  Defendant George paid the entire purchase price, but the brothers owned the lot as tenants-in-common.  From the beginning of their ownership, George paid the annual rent as well as property taxes when they were assessed.

In 1965, he received money from Portland Pipe Company for the right to lay pipe across the property. In the spring of 2002, he hired a logging contractor to harvest and sell the trees from the lot. The logging operations were completed that summer.  George didn’t discuss the logging operation with plaintiff John until after it was completed.  George figured that “since he had been paying all the expenses relating to the property, he should be able to make the decisions relating to the land.” George got $45,803.32 for the timber removed from the lot.  When John learned that timber was being cut, he took pictures of the operation and tried to reach George — who had neither an iPhone nor broadband — without success.

John didn’t try to stop the logging, but after it was over, he sued his brother, seeking an accounting, partition, treble damages under 13 V.S.A. §3606, costs of the action and attorney’s fees.   While he couldn’t afford to share the expense of the land with his brother, at trial, John apparently found his checkbook, presenting testimony from three experts on the value of the timber cut.  Thomas Hahn, a private consulting forester, presented two different methods of determining the value of the timber cut from the property, the prevailing market price of a unit of wood in the summer of 2002 based on trade publications (using which he concluded that the value of the timber was $61,785.79), and the “timber cruising” or “sampling” method that would support a finding that the fair market value of the timber was $82,000. Stanley Robinson reviewed the logging contractor’s summary of mill slips and trip tickets, and Alan Bouthelier on his observations from visiting the property prior to the logging. The testimony of these two experts supported a finding that the fair market value of the timber cut was approximately $80,000.

The trial court refused to rely on Hahn’s “sampling” method, dismissing it as too speculative.  Instead, it found that the fair market value of the timber cut was $61,785.79, and that plaintiff was entitled to half of this amount. It also ruled that the treble damage statute does not apply to actions between tenants-in-common for the sale of common property, and granted a request for partition. Following the hearing, George gave John $22,901.66, half of what he had been paid for the timber.

None of this being good enough for the rapacious John, he appealed.

Held:  The trial court was affirmed.  The Supreme Court held that Vermont’s timber trespass statute — which reads in part that if a person cuts down trees belonging to another person “without leave from the owner,” the injured party can recover treble damages — is plain and unambiguous.  The Court said that the statute’s language presupposed that the injured party had ownership rights to the exclusion of the party from whom treble damages are being sought.

The statute is a punitive one, intending to deter intentional trespass and wrongful taking of another’s timber. Because George had an undivided ownership interest in the trees at the time of the logging, the treble damages statute simply does not apply.  He simply was not among the intended targets of the statute, those “‘tree pirates’ and ‘arboreal rustlers’ who trespass on another’s property and remove timber to which they have no right.”

John also argued that the trial court erred when it held that the “timber cruising” or “sampling” method of determining the quality and quantity was too speculative.  The Supreme Court held that because the trial court, after evaluating several different methods, relied on testimony of the expert as to one of the methods to determine the fair market value of the timber cut and sold, the Supreme Court would not second-guess it on whether it could have used an alternative method.

Case of the Day – Wednesday, March 19, 2014

TOLD YOU SO

Travel back into time with us … back, back, back to February 28^th, when we solved the poor Mazda owner’s problem by determining that maybe, just maybe, his landlord was liable for injuries to the unhappy sport car enthusiast’s set of wheels.  As in all cases, liability depends on the specific facts.  That’s why there’s no substitute for a good local attorney.

While considering the RX-8 owner’s dilemma, we came across today’s case.  A hospital was built back in the early 1970s. A landscape architect suggested sweetgum trees on the grounds. When the trees were planted, they seemed like a nice touch, an architectural exclamation point to the building.  The sweetgum is a good-looking tree, but rather prolific in its production of sweetgum balls.

Times changed, more people were getting sick, and the hospital grew.  So did the trees.  When a parking garage was added in the 1980s, the designer told the hospital the trees should be removed because they dropped sweet gum balls that got everywhere and were a nuisance.  The hospital refused.  Someone in the administration apparently liked the trees.

Ten years later, a hospital visitor slipped on a sweet gum ball in the parking lot and fell, breaking her wrist.  Lucky for her there was a hospital nearby.  She didn’t feel lucky, however, and sued the hospital for negligence.

The Court applied the reasonable care standard to the case, and found the hospital was negligent.  Crucial to the decision was the fact that the parking lot designer had told the hospital years before that the trees were a nuisance, for the precise reason that led to Ms. Henderson’s injury.  The hospital didn’t necessarily have to cut down the trees, the Court said, but it could have at least instituted a regular clean-up program to stay on top of the sweet-gum ball problem

Henderson v. St. Francis Community Hospital, 303 S.C. 177, 399 S.E.2d 767 (Sup.Ct. S.C. 1990).  Ms. Henderson visited a friend who was a patient at St. Francis Hospital. As she was walking in the hospital parking lot to her car, she stepped on an accumulation of sweet gum balls, turned her foot and fell, breaking her wrist. The balls had fallen from a sweet gum tree planted in the parking lot. She fractured her wrist and sustained various bruises and abrasions.

The original parking lot of St. Francis was designed by CRS Sirrine, Inc. in 1969. The sweet gum trees were planted soon after that. In about 1982, Snoddy & McCulloch Associates, Inc. designed an addition to the parking lot, which had several levels or tiers. Snoddy & McCulloch recommended that the sweet gum trees be removed because they produced debris that would accumulate and become a nuisance. St. Francis refused to remove the trees, instead building a stairway next to one of them.

Henderson sued St. Francis, Sirrine and Snoddy & McCulloch, alleging negligent maintenance and negligent design of the parking lot. The jury returned a verdict against St. Francis and Sirrine, but the trial court reversed the jury, entering judgment n.o.v. in favor of the the defendants. The Court of Appeals affirmed, and Ms. Henderson took the matter to the South Carolina Supreme Court.

Held:   The Court reversed the judgment.  It held that the Hospital was negligent, but not the parking lot designer or the landscape architects.   The Court held that the evidence supported finding that the Hospital had been advised to remove sweet gum trees because the trees produced debris which created nuisance and maintenance problem.  It didn’t, and thus was negligent in failing to provide reasonably safe conditions for its visitors and patients by not removing the trees or employing an adequate maintenance program.  The Court said that although the operator of a parking lot is not an insurer of the safety of those who use it, it must nevertheless use reasonable care to keep the premises used by invitees in reasonably safe condition.

The idea is hardly novel – the New York court said it over a century ago in Gibson v. Denton – if you’re aware of the risk, you had better do something about it.  Here, the Hospital had been warned that the trees required removal or regular care.  Neither happened.

The degree of care to be exercised by a property owner must be commensurate with particular circumstances involved, including considerations like the age and capacity of the invitees who will be using the premises.  For purposes of the measuring whether the Hospital discharged its duty, the “invitees” are the people who visit patients in the hospital and use the parking lot.

Case of the Day – Thursday, March 20, 2014

UTAH SWINGERS ISO PLACE TO PLAY

Sounds like a Craigslist come-on, doesn’t it? But morals weren’t loose here, just one of the fittings on a swingset.

A little boy and his father were at a Salt Lake City park, where the boy was swinging on a “toddler swing.” He fell and hit his head on a concrete lip surrounding the swing.

His father sued the City for negligence — after all, he couldn’t get jurisdiction over Sir Isaac Newton to sue for negligent gravity — and the City raised as a defense the Utah Limitation of Landowner Liability-Public Recreation Act.  That mouthful of an act is Utah’s recreational user statute, and was intended to encourage public and private owners to open unimproved parklands to the public without charge by protecting them from liability for natural conditions.

The trial court made short work of Dad’s lawsuit, holding that he was a non-paying user of the facilities and that the City thus owed his son no duty of care. But on appeal, the Utah Supreme Court reversed. The Supreme Court held that the City hadn’t opened the park in response to the legislature’s encouragement. Rather, the park was opened long before the recreational user statute passed. The governmental immunity act already permitted suing for a city for negligence because of conditions in the park.

The Utah Limitation of Landowner Liability-Public Recreation Act was not intended to apply to an improved city park already covered by other laws. Plus, the Utah Supreme Court said, despite the patchwork of decisions across the country as to what was improved and what was not improved land, it appeared that an improved city park — one that included a swingset apparatus like the kind on which the boy was injured — took the city park outside of the protections of the Utah recreational user statute.

This may seem to be a great win for a poor little kid with a concussion, but not much attention is paid to the losers. Those would be the taxpayers who fund the settlement that’s sure to follow, as well as everyone who will have one less place to go when the City – flummoxed by the confusing state of the law – finds it easier and cheaper just to close the parks.

De Baritault v. Salt Lake City Corp., 913 P.2d 743 (1996). Young Marc De Baritault was on the toddler swing at Laird Park is a city-owned park located in Salt Lake City. He fell and injured his head on a concrete ridge surrounding the play area.

His father sued on his behalf, arguing that City had designed, constructed and maintained the playground negligently. The City argued that because the boy was a recreational user of public lands held open without charge to the general public, the City had no duty toward him under the Utah Limitation of Landowner Liability-Public Recreation Act.

De Baritault argued the Act didn’t apply because its purpose was to encourage private landowners to open up their lands for public use. Although the Act was amended in 1987 to apply to both public and private landowners, De Baritault maintained the Act didn’t apply to Laird Park because the City had not opened the park in reliance upon the Act.

The trial court granted summary judgment on the grounds that Marc was a nonpaying recreational user of Laird Park, and that under the Act, Salt Lake City owed no duty of care to the boy. The court also concluded that there was no evidence of deliberate, malicious, or willful conduct by the City, which would have resulted in liability under section 57-14-6 of the Act.

De Baritault appealed.

Held:   The Act did not protect the City. The Utah Supreme Court held that the Utah Limitation of Landowner Liability-Public Recreation Act did not apply to a small, improved city park, and thus, did not preclude Marc’s recovery for his injuries. The Court held that extending the Act’s application to improved city parks which, unlike many private wilderness lands, were not opened to the public in response to the Act, and which were already covered by other laws – such as the Governmental Immunity Act  – would serve neither the legislative intent nor the purpose of the statute.

In Utah, courts that have focused on the nature of the land itself have found some combination of following characteristics must be present before immunity under the recreational use statute applies: the land must be (1) rural, (2) undeveloped, (3) appropriate for the type of activities listed in the statute, (4) open to the general public without charge, and (5) the type of land that would have been opened in response to the statute.

Case of the Day – Friday, March 21, 2014

EVEN THE PARANOID HAVE ENEMIES

Could you say that “it’s not paranoia if they’re really out to get … your trees?”  Put on your tin foil hat, conspiracy enthusiasts!  Or not, if you think that’s an aluminum industry conspiracy. 

In today’s case, the Riehl family had what could be fairly described as a mania for not trimming their trees and bushes.  Their preoccupation with the natural look made the neighbors’ use of a common roadway rather tough.   As a result, the Riehls were sued in the 1970s, and while the neighbors were found to have an easement, the court wouldn’t force the Riehls to trim the trees. 

Some 15 years later, the City of Rossford passed a nuisance ordinance aimed at people who didn’t trim their trees along streets.  And the odor of conspiracy wafted through the town, spread by black UN helicopters …

The City sued the Riehls in 1997, but then cut a deal with them by dismissing the action and trimming the Riehls’ trees itself.  But in subsequent years, aided no doubt by the Illuminati and Council for Foreign Relations, the City cited the Riehls almost annually, hired contractors to cut the trees down, and then billed the Riehls for the trimming.  Finally, the Riehls had had enough, and — proving that a man who acts as his own lawyer has a fool for a client — they filed their own complaint, alleging everything from fraud to contract breaches to infliction of emotional distress to multiple Constitutional law violations.  And they sued the City, the prosecutor and all of their neighbors. 

The trial court (probably in the pockets of the New World Order) threw out the suit even with respect to defendant who didn’t answer.  The Court of Appeals agreed, expressing bafflement as to why the neighbors were even named, and finding that the fact that the City made a deal in 1997 didn’t mean that it couldn’t come back every year after. 

 Time for the Riehls to raise their own militia … and maybe set them to work trimming the bushes.

 Riehl v. City of Rossford, Slip Copy, 2007 WL 2164158 (Ct.App. Ohio, July 27, 2007).  This case is the latest installment in the ongoing dispute between property owners in Eagle Point Colony about an undedicated access road/alley commonly known as Thirwal Drive. The Riehls owned property along Thirwal Drive, and their perpetually untrimmed trees and bushes encroached on the road to the detriment of other property owners who use it, as well as delivery and trash truck servicing all of the owners along the road.  In 1977, a number of the other residents sued the Riehls seeking to enjoin them from clogging, choking or narrowing the width of Thirwal Drive.  The court ruled that the other owners had an easement by prescription over the Riehls’ land in the form of Thirwal Drive and permanently enjoined the Riehls from clogging, narrowing, or impeding the use of Thirwal Drive. 

But when the neighbors filed a contempt motion because the Riehls weren’t cooperating, the trial court determined that the Riehls didn’t have the obligation to remove or trim the bushes and trees, or otherwise to repair or maintain the easement. 

Thereafter, in 1995, Rossford City Council passed Ordinance No. 94-045, which held that “[e]very occupant of land shall maintain his property so that no brush, trees, bushes or obstructions extend into, on or over any public or private way generally used for the passage of persons or vehicles so as to obstruct or interfere with the passage of such persons or vehicles, or with the ingress and egress of emergency, maintenance, repair or service vehicles or equipment.”  Pursuant to the ordinance, the City cited the Riehls in 1997 but later dismissed the case.  Thereafter, it cited the Riehls virtually every year, trimmed the trees and bushes itself, and billed the Riehls for the cost. 

Finally, in 2005, the Riehls sued the City, the prosecutor, and all of the other neighboring property owners.  The poorly-drafted complaint alleged the City had breached a contract by passing an ordinance charging the Riehls for the trimming, committed fraud, violated the Riehls’ property rights, and retaliated against them by enforcing the nuisance ordinance.  The trial court dismissed the action on all counts as to all defendants.   The Riehls appealed.

Held:  The dismissal was affirmed. The Court said the current litigation, reduced to its essence, was simple: it involved the Riehls’ continuing violation of Rossford’s nuisance ordinance, which was passed after the 1978 decision.  Nothing in the prior decision of the trial court had any effect on the subsequently-passed ordinance.  And, the Court held, the Rossford nuisance ordinance had a real and substantial relation to the safety and general welfare of the public and is neither unreasonable nor arbitrary.  It seeks to prevent Rossford property owners from obstructing any public or private way that is used for the passage of persons or vehicles, including emergency, maintenance, repair or service vehicles or equipment. The nuisance ordinance applies equally to the Riehls and all other residents of Rossford. 

At its heart, the Riehls’ complaint alleged that the 1997 judgment granting the city’s motion to dismiss the first nuisance action filed against the Riehls, amounted to a res judicata determination that the Riehls never again had an obligation to trim their bushes and trees and prevent them from obstructing Thirwal Drive.  However, the Court held, a political subdivision or an employee of a political subdivision is immune from liability in a civil action for injury or loss to property when the claims are in connection with the political subdivision’s or employee’s performance of legislative or quasi-legislative functions, or the enforcement or nonperformance of any law.  What’s more, the Supreme Court of Ohio has expressly stated that “[t]here are no exceptions to immunity for the intentional torts of fraud and intentional infliction of emotional distress …” 

Because the Riehls’ claims against the city arose out the city’s performance of governmental functions, and because no exceptions to immunity apply with regard to the Riehls’ claims against the city for fraud and intentional infliction of emotional distress, the city was entitled to summary judgment on those claims. 

 The city’s immunity doesn’t extend to contracts.  The Riehls argued that in 1997 the city of Rossford entered in to a settlement agreement with the Riehls approved by Judge Dwight Osterud.  They claim that the city agreed to trim the Riehls’ bushes and trees that encroached on Thirwal Drive.  Nevertheless, in 2003 and 2004, the city of Rossford passed ordinances assessing the costs of trimming against the Riehls’ real estate. The Riehls claim that the February 1997 judgment entry amounted to a contract and that through their actions, the governmental defendants breached this contract with the Riehls.  

 The Court rejected their argument.  It held that there was no enforceable plea agreement.  The City got no benefit and the Riehls suffered no detriment from the deal.  Thus, the Court held, there was no consideration for the contract, and thus there could be no contract.   The Riehls also argued that assessing them for trimming their trees constituted an unconstitutional taking of their property without compensation.  But the Ohio Supreme Court has held that the government must pay just compensation for total regulatory takings “except to the extent that ‘background principles of nuisance and property law’ independently restrict the owner’s intended use of the property.”  That’s all that was happening here.  There was evidence that the nuisance ordinance had been enforced against other residents, too, so the Riehls’ claim of disparate treatment failed as well.  Finally, there was no evidence that the city had enforced the tree nuisance ordinance against the Riehls as punishment for their voicing their views pursuant to their First Amendment rights.

 Just like everyone else in Rossford, the Riehls must keep their bushes and trees trimmed at their own expense.

Case of the Day – Monday, March 24, 2014

ANGELS WITH DIRTY WINGS

Any fan of the Christmas comedy hit of the 1990s, Home Alone, remembers Angels with Dirty Wings.  It was the film noir movie that the kid protagonist played repeatedly, the mobster’s taunt – “Keep the change, ya filthy animal” – punctuated with a spray of .45 cal. bullets from a Model 1928 Thompson submachine gun being used as part of the boy’s plot to keep the bad guys at bay.

In today’s case, the angel is Angel’s Path, a developer, and the dirt on its wings slid off a big mound the company put right on its property line as it built houses.  The neighbors didn’t much like the dirt sliding into their back yard, and weren’t big fans of the stagnant water that collected after every rainstorm.  But when Angel’s Path asked for summary judgment on the trespass and nuisance claims the Peters brought, for some reason they opposed it on the cheap, with an affidavit from Mr. Peters and a bare letter from their engineer.

It’s seldom a good idea, saving money at the most crucial moment in the litigation.  Better to adhere to the old law school maxim, “too much is not enough.”  You have affidavits from five experts?  Use ’em all.  You have five boxes of documents?  Attach ’em.  Opposing a motion for summary judgment is no time to spare the horses.  Here, Mr. Peters should have had an affidavit from his engineer, his own survey done by a registered surveyor and recorded down at the county building, and enough pictures of shifting dirt piles and standing water to start his own tumblr.com site.

But he didn’t.  The trial court granted summary judgment to Angel’s Path, finding the survey of property lines — showing the dirt piles on its own land — more persuasive than Mr. Peters’ affidavit claim that the dirt had sloughed over the line.  Peters’ affidavit was “self-serving,” the trial judge complained.

The Court of Appeals reversed.  Sure the affidavit may be a little self-serving, the Court said, but for purposes of summary judgment — a fairly high bar for a defendant to leap — the Court had little problem believing that a property owner knew where his own boundary lay.  The summary judgment test, after all, is whether the evidence, taken in the light most favorable to the party against whom summary judgment is sought, shows there’s no material question of fact.

This standard required that the trial court assume that any reasonably detailed facts Mr. Peters raised in his affidavit were true.  If after doing this, the court still believes that Peters was not entitled to a judgment, then summary judgment could go for Angel’s Path.  It was pretty clear that Mr. Peters was going to need a whole lot more persuasion at trial to pull the halo off Angel’s Path, but for now – at the summary judgment stage– his showing was enough to stay in the hunt.  Just barely.

Incidentally, this case was brought with a companion case from the Kramers, who sued Angel’s Path, too.  That decision is an interesting study in nuisance and trespass.  We’ll consider that decision tomorrow.

Peters v. Angel’s Path, L.L.C., Slip Copy, 2007 WL 4563472 (Ohio App. 6 Dist., 2007). Clarence and Nanette Peters said that Angel’s Path, LLC, a developer, damaged their two residential properties.  As a result of residential property development by Angel’s Path, dirt mounds at the edge of the development property caused water run-off and flooding on their adjacent land.  They sought restraining orders to prevent Angel’s Path from trespassing on their properties or continuing to alter the natural flow of water, as well as damages.

Angel Path filed a motion for summary judgment, arguing that the earth mounds did not cause run-off to appellants’ property or any sinkhole conditions, and therefore, were not a nuisance; and that their surveyor said that the mounds did not encroach upon appellants’ property, so no trespass had occurred.  The trial court also granted summary judgment against the Peters on both their nuisance and trespass claims.  The Peters appealed. 

Held: Summary judgment was reversed. A “nuisance” is the wrongful invasion of a legal right or interest.  A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.   In order for a private nuisance to be actionable, the invasion must be either intentional and unreasonable, or unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

If the private nuisance is absolute, strict liability will be applied.  By contrast, a qualified nuisance is premised upon negligence, essentially a negligent maintenance of a condition that creates an unreasonable risk of harm.  To recover damages for a qualified nuisance, negligence must be averred and proven. A qualified nuisance is a lawful act so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another. 

Where damage to one property by water run-off from an adjacent property is alleged, Ohio has adopted a reasonable-use rule.  A landowner isn’t allowed to deal with surface water as he or she pleases, nor is the owner absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others.  Instead, each landowner over whose property water flows is allowed to make a reasonable use of the land, even though the flow of surface waters is altered thereby and causes some harm to others. He or she incurs liability only when the harmful interference with the flow of surface water is unreasonable.

In answer to Angel’s Path’s motion for summary judgment, Mr. Peters provided an affidavit along with referenced photos that claimed the mounds created by Angel’s Path had slid across the common property onto his property.  Peters’ affidavit also said that Angel’s Path workers entered onto his property to cut the weeds because the slope of the mounds didn’t allow appropriate maintenance without entering onto his land. Finally, the Peters affidavit stated that the back portion of his property now flooded and would not dry out, preventing his use of the land for a rental or for farming.  Peters also included as a letter from his expert stating the mounds blocked the natural flow of the water, creating a “permanent pond,” and suggesting possible ways to eliminate the problem.

The Court said that Mr. Peters’ testimony about the location of his property lines, although perhaps not the best evidence to rebut a commercially prepared survey, was something presumably within the property owner’s personal knowledge. Therefore, despite the fact that he had not yet had a separate survey done, the Court would not disregard the affidavit.  At the same time, the Court criticized the trial judge for placing too much weight on the fact that Angel’s Path plans had been approved by the local county engineers. The Court of Appeals said that while the county engineer and other agencies approved the Angel’s Path development plans, including the projected effects that it might have on surrounding properties, “such facts are of little consequence and comfort when examining the real-world results of the construction …”

Here, for the purposes of summary judgment, the Court concluded that the Peters had presented prima facie evidence to establish causes of action for private nuisance and trespass. Whether Angel Path’s actions were reasonable, intentional, or negligent, the Court said, are decisions to be made in a trial, not on summary judgment.

Case of the Day – Tuesday, March 25, 2014

BLINDED BY THE LIGHT

Rare is the opportunity to glean two cases from one defendant, but such is our good fortune with Ohio developer Angel’s Path, LLC (and yes, the apostrophe suggests there was only one angel on the path).  Yesterday, disgruntled Angel’s Path neighbor Clarence Peters narrowly escaped being thrown out of court because he defended against summary judgment on the cheap.  Today, we find out how his neighbors, the Kramers, fared when they went after the developer because their home was disrupted by noise, dirt and even light from the new home development.

The Kramers claimed the dust and dirt was a public nuisance, and that Angel’s Path was causing the light to trespass on their homestead.  These were both creative arguments, but the Kramers were doing their best to find a legal theory that would address the injustice they were experiencing.  The developer leveled its legal guns, taking a very legalistic approach: the nuisance couldn’t be a public nuisance, it said: a public nuisance has to be affecting the plaintiff differently from the general public, and the general public was eating Angel Path’s dust just as badly as were the Kramers. As for the annoying light, Angel’s Point contended, there just weren’t any cases that said light could be a trespasser.

Chief Justice Oliver Wendell Holmes once famously chided a lawyer arguing before him that “this is a court of law, young man, not a court of justice.”

Luckily for the Kramers, the Ohio Sixth District Court of Appeals wasn’t having any of that.  Often one can tell when a court is stretching to find some way to do justice.  Clearly, the appellate judges were disenchanted with the developer, which was essentially telling them that sure it had done everything the Kramers accused it of, but there wasn’t anything the law could do about it.  Nyah-nyah.

But there was something the Court could do about it.  It reinstated the suit, warning that the Kramers might find it tough to win a trial, but the facts they had alleged suggested several theories they could pursue.

With the case reinstated and headed for a jury of just plain folks who would be even less impressed with Angel Path’s legal hair-splitting and even more sympathetic the sleep-deprived, dust-covered Kramers – not to mention with the Court of Appeals signaling that it would be amenable to a private nuisance argument – one imagines that Angel’s Path very quickly recalled another pithy saying: “A bad settlement is better than a good lawsuit.”

Our takeaway from this case is that nuisance actions can be both flexible and powerful means of redressing neighbors’ activities that interfere with the legitimate enjoyment of home and hearth.

Kramer v. Angel’s Path, LLC, 174 Ohio App.3d 359, 882 N.E.2d 46 (Ohio App. 6 Dist. 2007).  William and Patricia Kramer, sued Angel’s Path, L.L.C., , alleging that construction in a housing development resulted in blowing dust and dirt tracked onto their street and trespass from a lighted “promotional” sign that lighted the front of the Kramers’ residence 24 hours a day.  They alleged that Angel’s Path’s development was a public nuisance because of the dirt and Angel’s Path was actually trespassing on their land with the 24-hour lighted sign.

The trial court threw the suit out altogether.  The Kramers appealed.

Held: The Kramers could proceed to trial against Angel’s Path.

The Court of Appeals held that the Kramers were clearly wrong that the development was a public nuisance, but the facts they had alleged in their complaint, if true, did make out a claim for a private nuisance.  The rule is that courts should interpret complaints to do “substantial justice,” and it would be unfair to make hyper-technical demands for precision in complaints.  The rules only require that a complaint “contain a short and plain statement of the circumstances entitling the party to relief and the relief sought.” The factual allegations in the complaint should control whether some legal cause of action has been properly pleaded and supported on summary judgment.

The opinion contains a welcome primer on nuisance law.  The Court noted that the law of nuisance “has been described as the most ‘impenetrable jungle in the entire law’.” Generally, though, nuisance” is defined as “the wrongful invasion of a legal right or interest.” It may be designated as “public” or “private.” A public nuisance is “an unreasonable interference with a right common to the general public,” and arises only where a public right has been affected. To recover damages under a claim of public nuisance, the plaintiff must establish (1) an interference with a public right and (2) that the plaintiff has suffered an injury distinct from that suffered by the public at large.

By contrast, a “private nuisance” is a non-trespass “invasion of another’s interest in the private use and enjoyment of land.”  Unlike a public nuisance, a private nuisance threatens only one or few persons. In order for someone to be entitled to damages for a private nuisance, invasion has to be either (a) intentional and unreasonable or (b) unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

A nuisance may be “continuing or permanent.” A continuing nuisance arises when the wrongdoer’s tortious conduct is ongoing, perpetually generating new violations. A permanent nuisance, on the other hand, occurs when the wrongdoer’s tortious act has been completed, but the plaintiff continues to experience injury in the absence of any further activity by the defendant.

For a nuisance to be an absolute nuisance, it must be based on intentional conduct or an abnormally dangerous condition that cannot be maintained without injury to property, no matter what precautions are taken.  Strict liability is imposed upon an absolute-nuisance finding. When a defendant commits an unlawful act deemed to be an absolute nuisance, he or she becomes an insurer, and will be liable for “loss resulting from harm which may happen in consequence of it to persons exercising ordinary care, irrespective of the degree of skill and diligence exercised by himself * * * to prevent such injury.”

On the other hand, if the conduct is a “qualified” nuisance, it is premised upon negligence. A qualified nuisance is defined as essentially a lawful act “so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.”   Under such circumstances, the nuisance arises from a failure to exercise due care. To recover damages for a qualified nuisance, negligence must be alleged and proven.  Whether a party’s actions were reasonable is generally a matter for the trier of fact.

Trespass on real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another. The elements of a trespass claim are “(1) an unauthorized intentional act and (2) entry upon land in the possession of another.” A trespass claim exists even though damages may be insignificant. A person can be a trespasser without actually stepping onto another’s property. A trespass may be committed by invading the airspace of the property.  This principle is based upon the concept that an owner of land owns as much of the space above the ground as he or she can use.

Here, the Court said, Angel’s Path argued that the Kramer’s “public nuisance” was undercut by their admission that several neighbors suffered from the same excessive dirt and dust that bothered the Kramers. Therefore, Angel’s Path claimed, the Kramers failed to establish a claim for nuisance, because their injuries were no different that those suffered by the public in general.  Angel’s Path also argued that the light shining into the Kramer home was not a trespass.

The Kramers countered with an affidavit and photos of the property across from their home and of their home, showing that the dirt and dust blew straight from the Angel’s Path property across their land.  They even produced Weather Service wind records supporting the claim.  As for the light, they contended that the entrance-sign light ­– directly across from their house – continuously lit up their home “in an annoying and harassing manner,” including the three front bedrooms. They had asked Angel’s Path turn off the light, nothing changed until after they sued, and took the deposition of an Angel’s Path executive.

The Kramers showed proof of the dirt in their home, and documented the costs of cleaning it up.  They also described the Angel’s Path sign – “like a headlight shining into [the] bedroom windows” – and the problems this caused.

The Court of Appeals disagreed with Angel’s Path that a claim for “public” nuisance could not be sustained, because too many people apparently suffered the same deprivations. Under this line of reasoning, the Court observed, a person creating a public nuisance could escape liability simply by harming more than one party.  Plus, the Court held, even if the Kramers had no public nuisance claim, they may still have a claim for private nuisance. Although Angel’s Path construction may be lawful, questions of fact remained as to whether the developer failed to exercise due care and was so negligent “as to create a potential and unreasonable risk of harm” resulting in the Kramers’ injuries.  Thus, the Court wouldn’t through out the suit.

The Court was concerned that light invasion claim was “an unusual and perhaps creative application of trespass law.”  The Court conceded that arguably, the Kramers could assert that the light physically invaded the airspace over their property. But even if this argument doesn’t carry the day, the Court said, genuine issues of material fact remained as to whether the lighted sign may be a public or private nuisance.

Case of the Day – Wednesday, March 26, 2014

CRY ME A RIVER

Law students learn in first-year civil procedure that it’s entirely proper to file utterly inconsistent pleadings.  For example, if a complaint is that the defendant borrowed plaintiff’s bucket and broke it, the defendant can answer that (1) he never borrowed it; (2) when he returned it, it wasn’t broken; and (3) it was broken when he borrowed it.  And lawyers wonder why all the jokes …

But there are limits, and complaints in civil actions cannot be written completely mindlessly.  In today’s case, landowner Fischer changed the slope of his land, rebuilt a driveway and installed a retaining wall.  His neighbor Christiana claimed the effect was to send unwanted drainage onto his property.   Fischer was unimpressed.  “Cry me a river,” you can imagine him saying.   Christiana’s lawyer – who perhaps was charging his client so much per word in the complaint – obliged, tearfully filing a four-count tome claiming negligence, recklessness, nuisance and trespass.

Fischer filed a motion to strike the recklessness and trespass counts.  This kind of motion varies by state, but the thrust is the same.  Fischer moved to dismiss, claiming that the complaint — even assuming everything Christiana has alleged was true — simply didn’t state a claim.  Here, Christiana depended on pretty much the same facts for recklessness as he did for negligence, except in the recklessness count, he charged that Fischer hadn’t gotten permits from the town for his work.  Well, maybe that was a little sloppy, at least as far as paperwork goes, but lacking a few permits didn’t constitute recklessness towards Christiana.  The Court dismissed the count.

As for the trespass count, however, the Court disagreed with Fisher’s novel interpretation of intent.  The Court said Fischer didn’t have to intend that the water trespass on Fischer’s land, just intend the act that resulted in the trespass — a subtle but crucial distinction.

Thus, the trespass count remained, an important holding: the Court said in essence that without ever stepping foot on Christiana’s property, Fischer could have trespassed, just be being negligent in the way he altered water flow.

Christiana v. Fischer, Not Reported in A.2d, 2007 WL 3173949 (Conn. Super.Ct., Oct. 17, 2007).   Christiana sued Fischer after Fischer altered the slope of his land and built a retaining wall.  Christiana sued for negligence, recklessness, nuisance, and trespass. Fischer moved to strike the recklessness and trespass counts as insufficient to state a cause of action.

Held:    The court split its holding, striking the count for recklessness but not the trespass count.  Recklessness is a state of consciousness with reference to the consequences of someone’s acts, more than negligence, more than gross negligence.  While the actor’s state of mind amounting to recklessness may be inferred from conduct, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them.  Reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

In Count 2, Christiana repeated his allegations of negligence and additionally alleged that Fischer rebuilt a driveway without a building permit and in violation of the town’s zoning regulations. Christiana, however, made no allegation that Fischer was made aware prior to completion of the alteration and construction work of any problems that he was causing that would drain water onto Christiana’s property.  The Court found that the allegations failed to support a cause of action for recklessness.

As for the trespass count, Fischer argued that Christiana failed to allege the intentional conduct essential to state a cause of action for trespass, pointing out that there was no allegation that the defendants intended to direct water or other debris onto the plaintiffs’ property or that they acted with knowledge to a substantial certainty that the water or other debris would enter the plaintiffs’ property.  But the Court held that to make out a trespass, a plaintiff had to have ownership or possessory interest in the land; there had to be an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; the act had to be done intentionally; and the act had to cause direct injury.

However, a trespass need not be inflicted directly on another’s land, but may be committed by discharging water at a point beyond the boundary of such land.  In determining “intent” for trespass purposes, the issue was not whether Fischer had intended the water to enter the Christiana’s land, but whether he had intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect that subterranean and other conditions would cause the flow.

Christiana alleged in his complaint that he had notified Fischer that he was having severe drainage problems as a result of the land alteration and construction on several occasions, and that Fischer failed to take corrective action. The Court found that Christiana’s allegations were sufficient to establish a cause of action for trespass.

Case of the Day – Thursday, March 27, 2014

ADVERSE POSSESSION BY COMMITTEE

Weyerhaeuser Co. bought a big old farm in southeastern Oklahoma for timber operations back in the 1980s. No sooner had it harvested its last tree but next-door neighbor Brantley started taking advantage of the absentee owner.

Over a 20-year period, Brantley claimed, he had grazed his cattle on the place, even running off hunters authorized to hunt there and denying access to Oklahoma Wildlife officers who had a deal with Weyerhaeuser to open the place as a recreation area.  But the farm was a big place. Brantley’s father grazed his cattle on the place, too, for awhile, but he had a lease from Weyerhaeuser. Brantley’s brother — cut from the same cloth as Brantley — grazed his cattle on the place and claimed a piece of it, too. Oklahoma State University had a lease from Weyerhaeuser to use part of the farm as a research facility.

Finally, Weyerhaeuser was ready to resume timber and gravel operations and — Brantley being in the way — the company sued him in trespass. Brantley claimed he owned the place under the doctrine of adverse possession.

No, the Court said, he did not. Adverse possession requires, among other things, that the possession of the land be exclusive. Brantley’s possession of the place was more communal, the Court observed, with other actors coming and going all the time. You just can’t have a committee of people commonly possessing a place adversely. Where two people have entered on land, the one who has the better title is the one in possession. And that person, of course, is the one in possession as a result of a lease. Brantley’s Dad, who had leased the land from Weyerhauser, was the one in possession. Not his piratical son.

Weyerhaeuser Co. v. Brantley, 510 F.3d 1256 (Ct. App. 10th Cir., 2007). Sherrill Farm is located in a scenic portion of southeastern Oklahoma, along the Mountain Fork River and near the Arkansas border. Weyerhaeuser had owned the farm since the early 1980s at least, the entirety period of the dispute. Brantley claimed he began grazing livestock on Sherrill Farm as early as 1980-81, although he never had permission to use it. Since then, he said he had built corrals, feed troughs, and fences on the property. He also removed brush, applied fertilizer, harvested wheat, and maintained roads. Although he installed a locked gate on the farm in the early 1980s, he never paid property taxes on the land. Brantley claimed his adverse possession of Sherrill Farm began in the winter of 1987-88, after Weyerhaeuser last harvested a stand of trees on the property.

During the years Weyerhaeuser used the area for its timber operations, it permitted other uses on Sherrill Farm. Brantley’s father had a license agreement to graze on Sherrill Farm beginning in 1983 until 1992. In 1987, Weyerhaeuser leased parts of Sherrill Farm to Oklahoma State University. OSU planted two research sites in the southern part of Sherrill Farm but made no use of the northern half. OSU complained to Weyerhaeuser about damage to its research plantations from livestock and built a fence to protect the plantations, but it did not seek to have Brantley’s cattle removed from Sherrill Farm entirely. OSU asked Brantley to cease grazing in the leased area, but Brantley was uncooperative. OSU also maintained its own locked gate to Sherrill Farm. Because of this alternative access, Brantley’s gate never prevented OSU or Weyerhaeuser from accessing Sherrill Farm.

In 1998, Weyerhaeuser and the Oklahoma Department of Wildlife Conservation included Sherrill Farm in the Three Rivers Wildlife Management Area. According to the agreement, the general public could access Sherrill Farm for hunting, fishing, and other recreation. Brantley’s locked gate prevented a state wildlife officer from accessing Sherrill Farm during some visits. Brantley testified he saw hunters on the property during this time and asked them to leave. In 2003, Weyerhaeuser granted an easement to another landowner to access her property across Sherrill Farm, but Brantley refused to allow access to the easement through his gate.

Oklahoma State’s lease terminated in 2004. Weyerhaeuser had to resume timber production and begin gravel mining, but Weyerhaeuser said Brantley’s presence delayed these activities, resulting in monetary damages. In 2006, Weyerhaeuser sued Brantley for trespass.

Brantley asserted adverse possession or prescriptive easement as affirmative defenses. After a trial, the district court entered judgment in favor of Weyerhaeuser. Both the parties appealed. Brantley argued he possessed the land adversely, and Weyerhaeuser complained it should have been awarded $200,000 in lost profits.

Held: Weyerhaeuser’s judgment was upheld, but not the lost profits. Under Oklahoma law, to establish adverse possession, Brantley had to show that his possession was hostile; under a claim of right or color of title; actual; open; notorious; exclusive; and continuous for the full 15-year statutory period.

The Court found that Brantley did not have exclusive use of property for 15 years – that length of time being the Oklahoma standard (your home state’s period may vary), and thus failed to establish adverse possession of the land. During the 15-year period, Brantley’s father held a grazing lease on property, Oklahoma State conducted activities on the property, Weyerhaeuser conducted activities such as road maintenance and gravel sampling on property, the land was part of a wildlife area managed by the State, it was open to the public, horses not belonging to Brantley grazed on the property and Brantley’s own brother also claimed grazing rights to property by adverse possession. To show exclusive possession, Brantley had to show an exclusive dominion over the land and an appropriation of it to his own use and benefit. Two persons cannot hold one piece of property adversely to each other at the same time, the Court said, and where two persons have entered upon land, the one who has the better title will be deemed to be in possession.

However, Brantley did not have to pay the $200,000 special damages for trespass. A forest manager’s testimony that, but for the presence of Brantley’s cattle, the property owner would have netted $200,000 in profits from gravel mining — based on 150,000 tons during first year and 300,000 tons during second year — was held by the Court to be too uncertain and speculative to support damages award for lost profits. But the award of $10,000 against Brantley based on Weyerhaeuser’s lost timber sales, was reasonable: Weyerhaeuser had previously used the property for timber harvesting, and the property was currently suitable for planting and harvesting. Weyerhaeuser’s witness was a certified forester who had submitted an affidavit identifying methodology for his damage calculations.

Case of the Day – Friday, March 28, 2014

THE CONTRACT SAYS WHAT?

Landscaper Superior Property Management Services, Inc., had been hired by the Waterbury Homeowners Association to landscape and maintain the grounds at beautiful Shanty Acres. The parties had a standard contract, one that – among other things – called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season.” Elsewhere, the contract directs the landscapers to “trim . . . small and lower branches” on trees.

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

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

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

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

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

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

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

Hill v. Superior Property Management, Inc., Case No. 20120428 (Utah Supreme Ct., 2013). Superior Property Management had held the contract to maintain premises for the Waterbury Homeowners Association for years. The form contract called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season” and to “trim . . . small and lower branches” on trees. After resident Colleen Hill, while walking her dog one early spring day, tripped on a growth from a tree root, she sued Superior for negligence because it had not trimmed the root.

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

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

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

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

Case of the Day – Monday, March 31, 2014

DIVING INTO THE SHALLOW END

There’s nothing funny about it: there are about 800 spinal cord injuries a year from swimmers — mostly young people — diving into shallow water. The idea that you ought to check the depth of the water before diving in is a pellucid as Bahamian waters.  Yet diving accident victims often litigate the issue anyway.  Today’s case is an interesting application of the “open and obvious” doctrine.

The Koops, who were the property owners, weren’t recreational users, because their property was open only to invited guests, not the public.  So they had no immunity under Ohio’s recreational user statute.  As invitees, their guests were owed ordinary care by the Koops – which included a warning of  any dangers that weren’t open and obvious.  When one guest ran across the dock and dove into 18-inch water — rendering himself a quadriplegic — he sued the Koops for negligence.  The Court ruled that the danger was open and obvious.

Not to be deterred, Galinari argued he had been distracted by “attendant circumstances.”  Not a bad argument:  “attendant circumstances” can defeat the “open and obvious” doctrine.  But such circumstances must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of injured party. Attendant circumstances in the past have included such circumstances as time of day, lack of familiarity with the route taken, lighting conditions, and accumulation of ice.  But here, the best the plaintiff could muster was that the water was inviting, other people were swimming in the lake, and there were no posted warnings. Not enough, the Court ruled, to excuse the young man from the simple precaution of checking water depth first.

Galinari v. Koop, Slip Copy, 2007 WL 2482673 (Ct.App. Ohio, Sept. 4, 2007).  In a tragic July 4 accident, 21-year old Nick Galinari dove off a dock into a shallow lake owned by Koop, severely injuring his spinal cord and rendering him a quadriplegic. Galinari was invited by his girlfriend, Kristin Bounds, to attend a family party hosted by Koops on their property.

The property included a small, man-made lake on which guests are permitted to swim, canoe, fish, and generally use for recreational purposes.  On the shore of the lake, there was a ramp connected to a floating dock, all of which extends about 28 feet into the water. The water near the shoreline is quite shallow, fluctuating between approximately ankle-deep and knee-deep.  Galinari and his girlfriend pitched a tent and then mingled with guests at the party for about 45 minutes.  Galinari, Kristin, and Kristin’s sister then decided to go swimming. Kristin went into the lake while Galinari changed clothes.  He then headed down the stairs to the ramp and floating dock to enter the water.  He saw Kristin in the water near the end of the dock, but could not recall later if she was standing or swimming. Without stopping to check the depth of the water at the end of the dock, Galinari jogged to the end of the dock and attempted a “shallow dive” to the right of Kristin. The water where he dove was about 18 inches deep. He struck the bottom of the lake, severely injuring his spinal cord.  There was no sign on the property, nor did anyone give any verbal warnings, about diving off of the dock due to the depth of the water.  

Galinari sued the property owners for negligence for failure to warn him about a dangerous condition on their property. The owners moved for summary judgment, arguing that they were under no duty to warn Galinari of something as open and obvious as the shallow lake.  The trial court granted the Koops summary judgment, agreeing that the shallow water was an open and obvious condition and that theytherefore had no duty to warn Galinari about a danger which he could have discovered through ordinary inspection. Galinari appealed.

Held:  Galinari lost.  he contended that despite the known dangers involved in diving, the question of the Koops’ negligence in failing to warn him of the shallow water required jury evaluation.  He argued that he was a social guest on Koops’ property and that they breached a duty of care in failing to warn him of the dangers of diving off of the dock into their lake. 

The Court disagreed, holding that in order to establish a cause of action for negligence, Galinari had to first show the existence of a duty.  A social host owes his invited guest the duty to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises.  This includes warning the guest of any condition of the premises known to the host and which a person of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover the dangerous condition.

However, a property owner owes no duty to warn invitees of dangers which are open and obvious.  The rationale for this “open and obvious” doctrine is that the nature of the hazard serves as its own warning, and invitees then have a corresponding duty to take reasonable precautions to avoid dangers that are patent or obvious.  In determining whether a condition is open and obvious, the determinative question is whether the condition is discoverable or discernible by one who is acting with ordinary care under the circumstances.  This determination is an objective one: a dangerous condition does not actually have to be observed by the claimant to be an open-and-obvious condition under the law. 

Here, the Court held, it is clear that the depth of water at the end of the Koops’ dock was a discoverable condition.  Kristin was standing in the water near the end of the dock when Galinari dove in.  The water on that day was at or below her knees.  The lake bottom was clearly visible from the floating dock where Galinari dove.  Galinari presented no evidence justifying any reason to believe that the water may have been deeper where he dove.  He hadn’t been told he could dive from the dock and that he hadn’t seen anyone dive from that dock before him.  Kristin was the only person he recalled seeing in the water as he jogged forward along the ramp and dove off of the dock.  Based on this evidence, the Court said, the water was a discoverable condition by someone exercising reasonable care under the circumstances.  Sadly, the Court said, if Galinari had merely looked at the water at the end of the dock, or stepped into the water to determine its depth, he would have easily determined that the lake was too shallow for diving. However, he took no precautionary measures prior to diving into the lake.

But Galinari argued that despite the open and obvious danger created by the shallow water, the doctrine of attendant circumstances precluded summary judgment. Attendant circumstances are an exception to the open and obvious doctrine and refer to distractions that contribute to an injury by diverting the attention of the injured party and reduce the degree of care an ordinary person would exercise at the time. An attendant circumstance must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of injured party. The phrase refers to all facts relating to the event, including such circumstances as time of day, lack of familiarity with the route taken, lighting conditions, and accumulation of ice.  Galinari argued the “inviting nature of the water,” “other water activity” and the “lack of warnings” were circumstances contributing to his belief that the water was safe for diving. 

The Court noted that while the nature of the cool water may have been inviting on a hot Fourth of July, it could not consider that to be an attendant circumstance distracting appellant from the ordinary use of care. Certainly, the Court said, inviting water did not prevent appellant from being able to discover its depth. Nor did the existence of other docks and slides, the length of the dock from which he dove, and the presence of people and canoes in the water create a visual appearance that diving from the end of the dock was safe. It was clear from this testimony that the “attendant circumstances” which Galinari asserted were not distracting him from exercising due care because he did not even notice them. These circumstances in no way prevented him from exercising the ordinary amount of care or led him to believe that the water was safe for diving.

Case of the Day – Tuesday, April 1, 2014

THE WORTH OF A HUMAN LIFE

CBS News reported last night on the continuing controversy over General Motors’ failure to recall cars with ignition switch effects. The news story included the obligatory appearance from the mother of a teenager killed in a Chevy Cobalt. Although GM maintains that no confirmed deaths are linked to the defect, the mother alleges that GM’s desire to save money by not repairing the defect resulted in her daughter’s death. She asked the reporter, “How can you place a value on human life?”

Today’s case seems rather a rather prosaic springboard into that debate, but the hard fact is that the dollar value on human life is set every day. People are always making demands on government or industry that are objectively unreasonable, but that they believe with all their hearts are absolutely necessary because of our own experiences.

It’s the old “cost of a human life” argument, as in “how can you place a price tag on a human life?” We do, of course, all the time. If we didn’t balance lives against costs to society, we’d have no cars, airplanes, or even peanut butter. Think of the lives that would be saved! Without cars, over 34,000 lives would be saved annually in the U.S. alone. Hundreds of people a year die in aviation-related mishaps. And how about peanut butter? Is your guilty pleasure of peanut butter-banana sandwiches before bedtime worth the horrendous risk to countless children with peanut allergies? Tough policy questions, to be sure …

In today’s case, Mrs. Lacasto didn’t lose her life, but she was a mite inconvenienced (and a bit injured) in her run-in with gravity in beautiful Santa Barbara, California. A piece of city sidewalk had been pushed up by the roots of a ficus tree, also a piece of city property. Mrs. Lacasto tripped on the 1-inch rise and injured herself.

In the inevitable lawsuit — this was California, after all — she argued that the City’s tree maintenance program was deficient, and if it hadn’t been so defective she wouldn’t have fallen. The deficient maintenance program meant that the City had “constructive notice” of the damaged sidewalk, and it thus owed her a lot of money for her fall. The defect? Why, she argued, Santa Barbara only inspected trees once every five years! Horrors! If it had inspected more often, she complained, the defective sidewalk caused by the ficus tree would have been discovered.

The numbers tell the story: the City employed four tree trimmers, who had responsibility for maintaining some 32,000 city trees along some 500 miles of sidewalks. The trimmers trimmed 5,500 trees a year, and tried to get to each tree in town once every five years. The Court didn’t use a calculator, but it reckoned that the cost of inspecting sidewalks and trees every two years, as Mrs. Lacasto thought would be prudent, would have been “an onerous burden” on the City.

What’s more, the Court wisely observed, even if the ficus tree had been inspected every two years, it was sheer speculation that sidewalk rise would have been found to be a dangerous condition two years before appellant’s fall.

Of course, the City could just replace the 500 miles of concrete sidewalk with rubber. The taxpayers clearly wouldn’t mind shouldering the cost: after all, who can put a price on Mrs. Lacasto’s shins?

Lacasto v. City of Santa Barbara, Case No. 1188148, 2007 WL 3203036 (Cal.App., Nov. 1, 2007). On a sunny morning in September 2005, appellant tripped on a rise in a sidewalk maintained by City. The one and a quarter-inch rise occurred at the expansion joint between two adjoining concrete panels. One foot to the south of the maximum rise, the elevation diminished to one inch. Appellant tripped at a point between the one and a quarter-inch rise and the one-inch rise. Her toe caught on the sidewalk rise and she fell, breaking her left hip.

A search of the records of the City Division of Public Works showed that, before Lacasto’s trip and fall, the division had never received any complaints or information regarding the condition of the area of sidewalk in question. A search of the records of the City Risk Management Division also failed to disclose any reports, but the City’s Street Maintenance Manager said the sidewalk defect was a hazard and should have been repaired. Near the rise in the sidewalk, a ficus tree had been planted, and a city expert opined that the rise was caused by the tree root lifting the sidewalk. The lifting had also caused a crack in the sidewalk that ran perpendicular to the rise. Mrs. Lacasto’s expert said that ‘[r]aising of hardscape does not happen overnight but over a period of time …” The City admitted it “would have taken several years” for the tree root to grow to the point where it would cause a one and a quarter-inch rise in the sidewalk.

The only sidewalk inspection the City had was to charge all City employees to be on the lookout for hazards. No City employees were responsible for inspecting sidewalks for defects. The only way the City would know about a sidewalk hazard would for a citizen or City employee reporting it to the City. The City has over 500 miles of sidewalk area. About five years before Mrs. Lacasto’s fall, City tree trimmers performed maintenance on the ficus tree in question. The City employed four tree trimmers to maintain over 5,500 of the 32,000 City trees. The City’s current system for pruning trees was based on elapsed time, with every City street and park tree receive some type of maintenance over five years. Lacasto’s expert said the City’s trees should have been inspected at least every two years. The trial court found for the City on summary judgment. Mrs. Lacasto appealed.

Held: Mrs. Lacasto’s case was thrown out. She had based her complaint on the California Tort Claims Act, that provided that a public entity is liable for injury caused by a dangerous condition on its property if the entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. A public entity had constructive notice of a dangerous condition only if the plaintiff established that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Mrs. Lacasto conceded that there was no evidence that the City had actual notice of the defective condition. Therefore, the City’s liability had to be predicated on constructive notice, which would be found to exist only that have existed for such a length of time and are of such a conspicuous character that a reasonable inspection would have disclosed them. In order to charge the city with constructive notice, Mrs. Lacasto had to show some element of notoriety to put the city authorities on notice as to the existence of the defect or condition and its dangerous character. An inch and a half-inch rise in the sidewalk, the Court said, simply wasn’t sufficiently conspicuous to put the city on constructive notice of the defect.

In view of the City’s more than five hundred miles of sidewalks and approximately 32,000 street and park trees, the Court said it would not have been reasonably practicable to impose such an onerous burden upon the City. Even if the ficus tree had been inspected every two years, as recommended by Mrs. Lacasto’s expert, the Court said it would be speculative whether the sidewalk rise constituted a dangerous condition two years before appellant’s fall.