Cases from May 2015

Case of the Day – Friday, May 1, 2015


Facts150501Courts of appeal sit mostly to determine how the law should apply to facts. Usually, when a trial court decides a legal question, a court of appeal will give a fresh look to the issue, called “de novo” review. You Latin scholars will recall that this literally means “of new.” Think “fresh look.”

Not so with facts. Whether the trial court got the facts right is something that seldom worries an appellate court. Usually, the appellate court won’t alter a grail court’s factual finding unless it’s clearly wrong. This is known generally as the “clearly erroneous” standard.

The different states and Federal government apply slightly different standards of review to different types of cases, and generalizing may be useful for our purposes, but not for real life. Still, as a rule, appellate courts treat trial courts’ findings of fact with great deference. Today’s case is one of those decisions that make you wonder why they should.

The Tinnes had owned a lakefront resort for years and used a private road, Corewood Lane, for their guests to have access to the beachfront property. When they retired, the couple sold all of the place except for a small piece on the north side, where they built a retirement home.

The Brands tore up the asphalt a bit ...

The Brands tore up the asphalt a bit …

Their golden-age digs had a driveway that attached to Corewood Lane. The new resort owners, the Brands, promptly began obstructing Corewood Lane, even tearing out big chunks of the asphalt. Finally being roused from their retired reverie by the Brands’ unfriendly conduct — which even included the Brands trimming trees on the Tinnes’ property — the retired couple sued for a judgment that Corewood Lane had become a public road by implied dedication. They asked for an injunction against future obstruction, and treble damages for the cut tree limbs.

The trial court obliged on a record that was pretty thin. It ordered that Corewood was public, told the Branches to repave it, pay $10000 to the Tinnes for having obstructed it, and $250.00 (which it trebled to $750.00) for having trimming the Tinnes’ trees without permission.

The Court of Appeals reversed it all.

It turned out that Mrs. Tinnes herself testified that they had never intended Corewood to be a public street, and the landowner’s intent is the most crucial element in an implied dedication of a private road as a public one. What’s more, no one bothered to introduce any evidence of the amount of damage that had been caused by the trespass and pruning of the Tinnes’ trees, and anyway, Missouri’s treble damage statute related to cutting down trees, not just pruning them. To be sure, damages are presumed when a trespass is proven, but the damages awarded are nominal unless actual harm is shown.

And how much is nominal? The Court of Appeals cut the damage award to one dollar.

One is left to wonder what evidence the trial court was weighing when it throttled the Brands to begin with. It would appear that the trial judge decided the case with his heart, not his head.

Tinnes v. Brand, 248 S.W.3d 113 (Mo.App. S.D. 2008). Corewood Lane runs through property once owned by the Tinnes but now owned by the Brands. When they owned the land, Mr. and Mrs. Tinnes ran a lakefront resort on the property. Corewood Lane was the access road through their property to the resort site and lakefront. When the Tinneses sold the resort in 1996, they retained four acres on the property’s north side, where they built a home and a driveway leading to Corewood Lane.

As soon as they bought the resort, the Brands started obstructing Corewood Lane with tree limbs, boats, and open ditches. They also removed asphalt pieces (which they claimed were broken) from the paved road, after which parts of the road eroded and washed away. They even trimmed some tree limbs on the Tinnes property.

The Tinnes sued for a declaratory judgment that Corewood Lane was “a road easement for Plaintiffs, and the public,” or alternatively that plaintiffs had the right to use it as an easement appurtenant to their residential property. They also sought an injunction requiring the Brands to repair the road, and not damage or obstruct it in the future, plus actual and punitive damages. The trial court found that the entire length of Corewood Lane was dedicated to the public for use as a roadway; ordered the Brands to repair and repave the road at their own expense; enjoined them from interfering with use of the road by plaintiffs or the public; awarded $100 actual damages against the Brands for obstructing and damaging the road; and awarded trespass damages of $250, “trebled according to law” to $750, for the Brands’ cutting of trees and limbs on the Tinnes’ property.

The Brands appealed.

The Tinnes didn't need a formal street dedication ... but if they had actually intended to dedicate the street, it would have helped ...

The Tinnes didn’t need a formal street dedication … but if they had actually intended to dedicate the street, it would have helped …

Held:  The decision was reversed, because the evidence didn’t support a finding that Corewood Lane had been dedicated to public use.

To show implied or common-law dedication of a roadway, a plaintiff must prove (1) the landowner’s unequivocal intent to dedicate the land to public use; (2) public acceptance; and (3) public use. Intent must be unequivocally manifested, expressly or by plain implication. Here, plaintiff Deanna Tinnes herself denied on the stand that they had ever intended to dedicate the lane to public use. The Court held that the record did not “convincingly demonstrate” that any landowner meant to create public rights in Corewood Lane adverse to the owner’s own rights.

As for the $250.00 trespass award, “trebled according to law” to $750.00, the Court of Appeals held that that the Brands had only cut tree limbs, not any whole trees, and neither party presented evidence as to damages. However, the Brands admitted the trespass, and the Tinnes were entitled to nominal damages, even if they proved no actual damage. Because the trial court awarded $100.00 for the Corewood Lane access damages, the Court of Appeals said that the $250.00 damages for the trespass could hardly be called nominal.

The Court ordered damages for the tree trimming to be reduced to $1.00.


Case of the Day – Monday, May 4, 2015


Residential developments often have restrictions in deeds, or just merely homeowners’ association rules, prohibiting different colors of house paint, refusing clotheslines and outbuildings, and even banning trees that block a neighbors’ view. And yet people buy houses in the developments, too excited at closing to pay a lot of attention to yet another page of legalese buried in a mountain of legalese. When – several years later – those restrictions get in the way of their whims, the unhappy parties blame everyone but themselves.

That happened to Gail Andrews, who bought a place at beautiful Sandpiper Village in Waldport, Oregon. These places aren’t cheap, but the ocean view makes them quite desirable. oceanviewMs. Andrews lived harmoniously with her neighbors for several years, until a nearby homeowner asked her to trim her trees because they were blocking his view of the ocean. Ms. Andrews ignored his request. Not to be denied, the neighbor had the local homeowners association ask her to trim them. She didn’t ignore the homeowners association. Instead, she sued them, and her lawyer found a hook.

The restrictions on trees had been modified in 1993, a few years before she moved in. But then a year later, the association’s lawyer, trying to be helpful, decided to rewrite things a little. He added the phrase “designated ocean view lot” to the restriction, so it read “no trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.”  You know, he was just trying to be helpful, to make it a little clearer. Only problem was that there was no such thing as a “designated ocean view lot.” Ms. Andrews glommed onto the new language, claiming she didn’t have to trim her trees because her neighbor’s lot wasn’t a “designated ocean view lot.” In the alternative, she said the whole restriction was void because the homeowners had never passed on the “designated ocean view lot” language.

legaleseThe Court concluded that the evidence showed that the association’s lawyer never intended his rewrite the change the restriction that the homeowners had approved. Besides, Ms. Andrews had a chance to read all of the rules before she moved in. Her excuse was that some unnamed person who had been attached to the homeowners association had once told her that her neighbor’s place was not a “designated ocean view lot.” Kind of short on corroborative facts, Ms. Andrews, aren’t we? The Court thought so. Without revealing who and when the conversation occurred, Ms. Andrews was unconvincing.

There’s a lesson here for the helpful lawyer. If the restriction was too confusing as it was passed — and there’s no evidence it was — he should have asked the homeowners to vote on the new one. Being a lawyer, he should have foreseen that problems with the restriction wouldn’t arise from good faith confusion as much as bad-faith avoidance, and the non-trimmer would hire a mouthpiece who would try to drive a chainsaw through his “helpful” re-write. And why would anyone use gobbledygook like “designated ocean view lot” when there was no procedure for designating lots in the first place? punchThe lawyer’s helpful “fix” just created a mess and cost his client a lot of money. The unanswered question is whether his client punched him in the kisser and fired him, or just fired him without fisticuffs. It would be a close call.

Andrews v. Sandpiper Villagers, Inc., 170 P.3d 1098 (Or.App., 2007). Sandpiper Villagers, Inc., was the local association of homeowners in Sandpiper Village, a coastal subdivision. When the subdivision was built in 1968, the developer recorded a declaration of covenants and restrictions prohibiting trees, hedges, shrubbery, plantings or fencing over 6 feet tall. The restrictions were to remain in effect for 25 years, during which they could be amended by vote of the lot owners. In 1993, the association adopted an amended declaration providing that no trees, hedges, shrubbery, plantings or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. The next year, the association’s legal counsel drafted what he termed to be a “stylistic” change to the restriction, one that was not voted on by the homeowners. Following his change, the provision held that no “trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” Another provision stated “[i]f a provision is subject to more than one reasonable interpretation, any reasonable interpretation adopted by [the board] shall control.”

Andrews bought a lot in Sandpiper Village in 1997, after reviewing the 1994 restrictions as part of her title report. Six years later, another member of the association sent a written notice to Andrews asking her to trim trees on her property in order to preserve his view. She did not. When the ARC asked in writing that she do so, she sued, asking a ruling from the court that the association had no authority to require her to trim the trees because there was no documentation or other evidence showing that her neighbor’s property was a “designated [ocean] view lot.” She also asked that the restrictions be declared void as contrary to state statutes.

legalese-noThe Association moved for summary judgment, arguing that because the phrase “designated ocean view lots” was drafted as a stylistic change and never voted on by the homeowners, it should be disregarded. Without that phrase, the Association argued, the 1994 restrictions had the same effect as the 1993 restrictions. Alternatively, the Association said that, even assuming that phrase is a valid part of the 1994 restrictions, the phrase was ambiguous and the court either should defer to the ARC’s interpretation or determine – based on extrinsic evidence – that it was not intended to effect a substantive change to the 1993 restrictions under which all lots were entitled to view protection. The trial court awarded summary judgment in favor of the Association. Andrews appealed.

Held: The Court of Appeals upheld the judgment for the Association. If a text’s meaning is unambiguous, the Court said, courts decide the meaning of contractual provisions as a matter of law. If disputed contractual provisions are ambiguous, however, courts proceed to examine extrinsic evidence of the contracting parties’ intent, including, if helpful, evidence regarding the parties’ practical construction of an agreement.

Here, the phrase “designated ocean view lots” in the restrictions was unambiguous, referring to those lots that, as a matter of observable fact, had a view of the ocean. Plus, extrinsic evidence supported the Association’s claim that the regulations were unchanged from those approved by the homeowners. The Association’s lawyer’s contemporaneous communications indicated that his revised section of the regulations was intended to have the same substantive effect as section of regulations which, by its terms, did not restrict the protection of ocean views to any particular ocean view lots, such as those that someone had previously “designated” as having an ocean view.

Andrews argued that a prior chairman of the ARC assured her that her neighbor’s lot was not a “designated ocean view lot,” but the Court said that wasn’t a sufficient claim to create a factual dispute about the meaning of the restrictions. Andrews’ affidavit did not state whether the prior chairman was the chairman of the committee at the time she made the statement or, alternatively, at the time that the regulations were adopted.


Case of the Day – Tuesday, May 5, 2015


Either the aftermath of battle ... or the morning after a U.S. celebration of Cinco de Mayo.

Either the aftermath of battle … or the morning after a U.S. celebration of Cinco de Mayo. The Mexicans, having more sense than we do, make little fuss over May 5th.

As we anticipate the great feast awaiting us on Cinco de Mayo – this day of days commemorated in the U.S. to celebrate a surprising but utterly insignificant victory of Mexican forces over the French Army – we hoist a cerveza to Kelly Rush.  Mr. Rush, like the Mexican military, won an meaningless trial court victory on the way to getting routed.

The French invaded Mexico because our neighbor to the south owed reparations to the Second Empire, but had decided a siesta was more salubrious than settling up.  By contrast, Mr. Rush was looking to be paid for the work he had done for JoAnn Goodwin. Kelly is undoubtedly an arborist and landscaping specialist of the first water, but as a businessman … well, that’s another story.

Mr. Rush bid a job for JoAnn Goodwin. And like Gaul, it was divided into three parts. One part was tree removal, one was landscaping, and one was installation of a drain system. Of course, as soon as the job began, there was mission creep. More trees were to be cut down, and then more, and extra branches were to be hauled away. Rush diligently completed the extra work, but he wasn’t nearly so diligent in getting change orders signed by his customer, leading to inevitable confusion.

Alas, hilarity did not ensue. Instead, JoAnn denied asking for any more trees to be cut down, and alleged Rush was overcharging her. Rush said more money was owed. At that point, Kelly “Who Needs a Lawyer?” Rush sued Ms. Goodwin in Justice of the Peace Court, a very informal court in Texas for small issues. He won $4,500. It was his moment, his own victory at Puebla. But recall that after getting his Gallic butt kicked on May 5, 1862, French General Charles de Lorencez responded a year later with a second Battle of Puebla. No one talks much about that one, because the cheese eaters routed the Mexican forces and headed for Mexico City. Like Monsieur General, Ms. Goodwin regrouped, reprovisioned, and came after Mr. Rush again.

In her own second battle, Goodwin appealed to the regular trial court, which was obliged under Texas law to hold a whole new trial. At that trial, Rush’s damages fell from $4,500 to $200, despite the fact he showed the court the contract, two change orders Ms. Goodwin had initialed but not signed and one which he had prepared but she hadn’t even initialed.

The stubborn Mr. Rush appealed the $200 verdict. At the Court of Appeals, Kelly Rush found himself really swimming upstream. His only argument was that the trial court’s decision was contrary to the weight of the evidence, and those cases are hard to win on appeal. To make matters worse, in his zeal to save money, Mr. Rush forgot that sometimes lawyers are good for something. That “something” here would have been to get the documents he was relying actually admitted into the trial record so the court of appeals had something to look at. Without the missing documents – which Kelly Rush hadn’t introduced into the record – the Court of Appeals said it really had nothing to look at, and the $200 award stood.

Pozole - the national dish of Mexico.

Pozole – the national dish of Mexico.

Parenthetically, one would think that the trial court would have helped out layman Kelly Rush on coaching him to introduce the documents into evidence. But it wasn’t required to. We bet Kelly Rush was glad he saved so much money by not hiring one of those worthless lawyers to help him out! Lesson: Document your work. Get signatures from the customer. Hire a lawyer when you need one. After all, lawyers hire arborists when they need them. OK, end of lesson … and the pozole’s on!

Rush v. Goodwin, Not Reported in S.W.3d, 2007 WL 3380025 (Tex.App.-Waco 2007). JoAnn Goodwin requested a landscaping bid from Kelly Rush involving three parts: tree removal, landscaping, and construction of a French drain system. After completing the work, Rush complained that he was not paid in full.

Rush complained that he ended up cutting down many more trees than originally agreed to. Both Rush and Goodwin walked the property, and they agreed to have 26 trees cut down. But Rush said that after the initial agreement, the number of trees to be cut down kept changing. He claimed that the final agreement called for removal of 36 large trees, 14 small trees, and 1 large limb from Goodwin’s property, at an agreed-upon price of $200 for each large tree, $100 for each small tree, and $100 for removal of the large limb. The total was $8,700.

At trial, Rush presented an original contract which he had signed and Goodwin had initialed stating that 26 trees were to be cut down at $200 each and a large limb removed for $100, for a total of $5,300. As well, he presented a document only he had signed – a request for removal of 36 large trees at $200 each, 14 small trees at $100 each, and removal of a large oak branch at $100 – and another he had signed and Goodwin had initialed in part by Goodwin, reflecting an agreement to cut and remove 33 trees at $6,600.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Conco de Mayo celebrant in a period costume. Think of him as a Mexican version of a Civil War re-enactor.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Cinco de Mayo celebrant in a period costume, a Mexican version of a U.S. Civil War re-enactor.

Goodwin contended she only agreed to have 26 large trees removed from her property at $200 per tree. She said that after counting the stumps, only 26 trees had been removed, and that even if more than 26 trees had been removed, she never agreed to their removal. She maintained that Rush overcharged her $1,400 to remove trees that were not cut down. In addition to tree removal, the agreement called for removal of vegetation and growth, spreading of dirt, and removal of fences. Rush and Goodwin agreed that the cost of that project would be $3,600. Goodwin paid Rush $1,000 on the landscape agreement and still owed $1,600. She argued that because she overpaid $1,400 on the tree removal and other projects, she did not owe the $1,600 balance.

Rush also argued that after starting the project, Ms. Goodwin asked that extra side projects be performed, and the cost of these projects came to total of $749.94, none of which Goodwin paid. He filed suit without an attorney against Goodwin, seeking relief of only $1,600 but being awarded $4,500 plus court costs. A glorious and unexpected windfall! But Ms. Goodwin appealed to county court, where in a bench trial the court returned Rush to reality, awarding Rush a symbolic $200 with interest.

Rush appealed.

Held: Rush got only his $200 award.

Not available in Spanish - but for you English speakers, we hereby plug our book. Following its advice would have saved Mr. Rush a world of pain.

Not available in Spanish – but for you English speakers, we hereby plug our book. Following its advice would have saved Mr. Rush a world of pain.

In his appeal, Rush claimed he was underpaid for his work and essentially argued that the $200 damage award was against the great weight and preponderance of the evidence. When seeking review of the factual sufficiency of the evidence supporting an adverse finding on which the appealing party had the burden of proof, the appellant must show that the adverse finding is against the great weight of the evidence. The appellate court must weigh all the evidence, and may set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. The appellate court isn’t permitted to pass on the credibility of witnesses or substitute its judgment for that of the trial court.

The Court found that Rush had completely bollixed up the trial. During that proceeding, Rush referred to the various documents he said established the terms of the tree removal and landscape agreement, but he failed to ask the court admit any of them into evidence. The Court of Appeals said that in order for it to consider the documents, those papers had to have been introduced and admitted at trial. Without them, the Court could only examine the parties’ testimony. That testimony was largely in conflict, and it was the role of the trial court, not the Court of Appeals, to determine which party’s testimony was more believable.

The trial court’s award of only $200 in damages, the Court of Appeal said, was not overwhelmingly against the great weight of the evidence, especially when the alleged contracts were not in evidence.

Oops. Or as the Mexicans say, “¡Ay!”


Case of the Day – Wednesday, May 6, 2015



A few weeks ago, we talked about the Murrells of Rancho Palos Verde, California, a sordid tale of wealth, arrogance, clever lawyers and Pyrrhic victories. Today’s case may lack money, power, hubris and clever attorneys, but – like the Murrells – Leslie MacCardell won a hollow victory.

This case starts as a tale of lawyers screwing up. Yes, the very idea that a trained legal professional who exercises the utmost care could err taxes one’s credulity. But just for the sake of argument, let’s imagine that such a thing is possible …

The mistake was made by the professionals in the Massachusetts Land Court way back in the 1940s. Visualize the plot … two lots located next to each other, a power line easement granted way back in antiquity that didn’t describe the corridor of the easement at all, and … well, like a sophomoric sitcom, you can see where this is heading. When the Land Court issued certificates of title (a Massachusetts thing) it recorded the easement on Lot 2. The problem is that the power lines went across Lot 1. Hilarity ensued.

NNo one really notices power line poles – they’re just there. So it’s no surprise that nobody noticed the blunder until the neighbor on Lot 2 wanted to increase the size of his electrical service. The power company needed to install a transformer, and as a matter of course, it checked land records to verify its easement. Lo and behold, it found that the easement had been recorded on the wrong land. “No probalo,” the power company said, and it sued Leslie MacCardell — on whose land the power lines were located — to have the easement sort of eased on over to Leslie’s lot.

Not so fast, Leslie exclaimed. She fought back, arguing that she was a purchaser in good faith, and nothing in the records she had searched when she bought the place revealed a power company easement. “Good faith, indeed!” hooted the power company. She had actual knowledge of the easement when she bought. After all, the poles were there and her lights turned on (yeah, the utility actually said this) and she got a bill. How’d she think all of that happened if not for an easement?

Well, said Massachusetts highest court, in any of several ways. Despite the power company’s rather arrogant suggestion that it was just inconceivable that it would not have a proper easement, the Court said the poles could have been there permissively, or maybe — as it turned out — it was nothing but a trespass. Whatever it was, the Court held, it wouldn’t just assume that a landowner had actual knowledge. Rather, it was up to the power company to prove she did. And it didn’t.

We’re guessing that, just like the Murrells in yesterday’s case, this turned out to be kind of a Pyrrhic victory for our plucky heroine. Clearly, the power company’s poles had been on her property, openly and notoriously and continuously and adversely for many years. The utility probably had an open and shut case for a prescriptive easement, and it seems curious that it didn’t plead that as an alternate cause of action.

Commonwealth Elec. Co. v. MacCardell, 450 Mass. 48, 876 N.E.2d 405 (Sup.Jud.Ct. Mass. 2007). Thomas Murray owned two parcels of land. He granted an easement to the electric company for installation of transmission lines. The easement didn’t provide compass directions, but instead mentioned that the land was located in Duxbury and that the pole lines could “enter from land now or formerly of Plum Hill Avenue and cross to land now or formerly of Chester L. Churchill.” In 1944, the Murray estate filed an action in the Land Court to register and confirm the title to the two parcels. Both the certificate of title and the Land Court decree of registration mistakenly said that Lot 2 was subject to the pole easements when in fact was Lot 1. MacCardell owns Lot 1, the lot that contains the actual poles (which supply electricity to both her place and the adjacent property). Neither MacCardell’s title nor the next-door neighbor’s title mentions the utility easement. When her neighbor asked for increased electrical service, the power company decided it had to install a transformer.

oopsDuring its routine check on its easement, the utility found that there was an easement on Lot 2 but no easement on for Lot 1. The utility petitioned the Land Court to amend MacCardell’s title for Lot 1 to include the easement. MacCardell argued that in 1944 the Court’s decree imposed the easement on Lot 2, not Lot 1. She claimed she purchased a title with no encumbrances, and allowing the electric company to amend her title would impair her property. The Land Court entered judgment in favor of MacCardell. The utility appealed, but the Appeals Court affirmed the Land Court’s judgment. Thereafter, the electric company appealed to Massachusetts’ highest court.

Held: MacCardell owned her land free of the easement. Massachusetts law is settled that title holders and subsequent purchasers of registered land for value and in good faith take “free from all encumbrances except those noted on the certificate.” With respect to easements, the general rule is that in order to affect registered land as the servient estate, an easement must appear on the certificate of title. There are two exceptions to the general rule: (1) if there were facts described on the certificate of title that would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser had actual knowledge of a prior unregistered interest. In this case, no one disputed that the easement was not recorded anywhere in MacCardell’s chain of title. However, the utility argued that she had actual knowledge of the easement.

Who even notices utility poles?

Who even notices utility poles?

The “actual knowledge” exception means that for a titleholder to benefit from the protections afforded by the land registration system, the title holder must not possess actual knowledge of unregistered easements. The burden of proof lies with the party seeking to encumber an owner’s registered land, in this case, the electric company. Unfortunately for the utility, the Court said, it had presented no proof that MacCardell had actual knowledge of the easement.

All it argued was she had utility poles on her property, she could turn her lights on every morning, and she received a monthly utility bill. All of that proved she had knowledge, the utility claimed, because it was “inconceivable that a utility company’s installation and use of poles” would ever be permissive rather than a claim of right. The Court rejected this, suggesting that the poles, the power and the bill might equally suggest that the use may be adverse, which does not create an easement under the law, or a registered owner might have granted permissive use. What’s more, the Court said, the mere presence of a utility pole didn’t automatically place a registered landowner on notice that her property might be encumbered, because the actual owner of a utility pole isn’t readily ascertainable, and the average person may be unaware of the exact boundaries of the land. To meet the actual knowledge exception, the Court held, there must be some intelligible oral or written information that indicates the existence of an encumbrance or prior unregistered interest.


Case of the Day – Thursday, May 7, 2015


Family reunions at the Halcumb homestead must have been rather awkward after sister Patsy sued her brother Ken for a hundred grand in cut timber.

Ken lived on land pursuant to a life estate, with Patsy holding the reversionary interest. Ken and his buddy Troy Denton decided to harvest the timber and sell it, thereby committing waste on the property. Sister Patsy sued brother Ken and collected $32,000. Only half a loaf, it turns out – Patsy had demanded treble damages under Arkansas’ wrongful cutting law – a statute similar to one in many states, which punishes wrongful taking of timber by tripling the damages to be paid by the wrongdoer. The trial court had denied treble damages, much to Patsy’s dismay.

She didn’t bother to appeal. Instead, right after Ken paid her off, she turned around and sued Troy, asking for the treble damages.

history140528Remember your mother warning you, “Don’t make me repeat myself?”  Well, maybe you remember George Santayana.  Courts don’t like to repeat themselves, either. When a court has spoken definitively on an issue, that judgment binds those parties who had a fair chance to litigate it.  This, in its various flavors, is res judicata (where the claim cannot be relitigated) or collateral estoppal (where only one or more points cannot be relitigated). Either is a defense to be raised against a claim.

Troy did just that, asking the trial court to dismiss the claim under the doctrine of res judicata, literally meaning “the thing has been adjudicated.” Patsy tried the novel argument that because her brother had the right to get contribution from Denton for the money he had to cough up to big Sis, she had the right to sue him as well. After all, Troy was a joint tortfeasor.

But the court said that begged the question. If her brother wasn’t liable for the treble damages, his partner-in-tort hardly could be. And that was the problem. Patsy had had a fair shot at the tree harvesters in the first trial. The law guarantees everyone one fair shot, but not two. Where the second case is based on the same events as the first, the Court said, it is precluded by issue preclusion, the concept that encompasses collateral estoppel, res judicata, and claims preclusion.

That just makes good sense — both from the standpoint of judicial economy and everyone’s interest in seeing litigation have some reasonable and final endpoint.

succeed White v. Denton, Not Reported in S.W.3d, 2007 WL 4181557 (Ark.App., Nov. 28, 2007). Patsy White owned timberland in Polk County, subject to a life estate in the property held by her brother, Ken Halcumb. In the summer of 2004, Halcumb contracted with Denton to cut and remove timber from the property. White sued her brother for conversion of the timber and for damage to the property, alleging the land sustained damage in excess of $100,000 plus more than $25,000 in cleanup and replanting costs. She asked for treble damages for the value of the converted timber.

White won a $31,202.80 judgment in 2005. In that judgment, the trial court denied White’s prayer for treble damages, finding that Arkansas law on treble damages for wrongful cutting of timber did not apply. The Court also refused to award damages for clean up or replanting of the timber. She did not appeal, and her brother paid. A month later, she sued Denton for trespass and conversion of her timber, again asking for treble damages. Denton asked for summary judgment, asserting that White’s complaint was barred by the doctrine of res judicata, having been by the judgment she got against her brother. The trial court agreed and dismissed White’s complaint. While appealed.

Held: Denton is off the hook. White argued that the recovery of a judgment against one joint tortfeasor did not discharge the other joint tortfeasor. She said that Denton acted “jointly” with her brother to commit the torts of trespass and conversion of her timber, but contended that Denton is “independently liable” for those acts. She argued that her cause of action against Denton is not barred by res judicata because she hadn’t had a full opportunity to pursue Denton as a joint tortfeasor. She acknowledged that she received in damages the same amount of money that Halcumb sought to collect from the timber, but she contended that the judgment did not include the remaining damages that she claimed.

The Three Musketeers -

The Three Musketeers – “All for one and one for all?” Or were they merely joint tortfeasors?

The Court said that the term “res judicata” encompassed both issue and claim-preclusion. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. While state law established a common policy for loss distribution among joint tortfeasors, it didn’t give a plaintiff the right to sue each of multiple tortfeasors individually for the same damages. The Court noted that White recovered a judgment for the very claims that she subsequently attempted to assert against Denton. If she was unsatisfied with the amount of the judgment, the Court said, her remedy was appeal, not a new suit against someone she could have included in the first action.

Here, the Court held, White’s suit against Denton arose from the same wrongful cutting of her timber and the damages that she sought were identical. While Patsy arguably asserted a somewhat different legal theory – negligence – as a basis for imposing liability against Denton, however, that fact made no difference.


Case of the Day – Friday, May 8, 2015


Remember that Disney World earworm  “We are the World?”   Hold that tune in your head as an especially annoying mnemonic device, to remind you that trees that grow on the boundaries between properties generally belong to us all, at least all of us who own the properties on which the tree sits.

Well, maybe just about everywhere except Colorado.

In this case, one neighbor mistakenly planted trees entirely on the property of his neighbor, at least by a few inches. You know what happens when trees grow. These grew so they stood astride the boundary line of the properties.

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

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

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

The problem seems to be that boundary trees, once planted, seldom stay small

The problem seems to be that boundary trees, once planted, seldom stay small

When the Rhodigs purchased their property, there were two trees standing near the lot line. In 1943 Rhodig planted two more trees in a line with the first two. Later one of the original trees died and the Rhodigs replaced it. In 1962 Keck, wishing to fence his property to the south of Rhodigs, had a survey made of the lot line. This showed that one tree was entirely inside Keck’s property by three inches; a second tree, 18 inches in diameter, extended four inches onto Rhodigs’ land and was 14 inches on Keck’s lot; a third tree, eight inches in diameter, extended two inches onto Rhodigs’ land and was six inches on Keck’s lot; the fourth tree, which was 16 inches in diameter, was growing five inches on Rhodigs’ land and 11 inches on Keck’s lot. As a result of the survey, Keck removed the trees. Incidentally, the Rhodigs had done their own survey 10 years earlier, and their findings matched those of Mr. Keck. In fact, they had tried to buy a strip of land with the trees from Mr. Keck without success.

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

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

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

The judgment was affirmed.

BoundarydefTwo of the justices dissented, arguing that the majority of the Court had sanctioned conduct on the part of Mr. Keck which constituted a trespass and the destruction of co-owned property. Citing early English common law holding that (1) a tree which stood on a property line made the adjoining owners tenants in common of that tree, and (2) if one of the co-owners cut the whole he was liable for damages to the other, the dissenters argued that the Rhodig trees should come within that well-established rule. “To come within these rules a tree need not have been placed on the property line for the purpose of forming a border or boundary,” the dissenting justices said. “A tree which stands on a property line in a state of nature or one which has been planted by man is treated in the same way.”


Case of the Day – Monday, May 11, 2015


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 … not to mention Johnny Football … you know, the guy who just came out of “rehab,” where the rehab staff tried to cure him from acting like a spoiled idiot.

Cleveland's gift to the world

Cleveland’s gift to the world.

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).

Great Lakes' American pale ale, named for that embarrassing episode in 1969 when the Cuyahoga River burned.

Great Lakes’ American pale ale, named for that embarrassing episode in 1969 when the Cuyahoga River burned – not for the first time – and ended up as an icon for the nascent environmental movement. Incidentally, the river’s quite clean these days, and the brew’s a pretty fine pale ale.

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 Rule and Virginia Rule (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.

Remember - the dissent is the opinion of the losers

Remember – the dissent is the only the opinion of the losers, amusing but inconsequential.

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 – Tuesday, May 12, 2015



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

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

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

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

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

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

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

Move Zig.


Case of the Day – Wednesday, May 13, 2015


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

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

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

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

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

Little trees don't stay little

Little trees don’t stay little

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

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

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

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

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

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

The parties had never agreed that the tree would mark their boundary - and this was important to the court

The parties had never agreed that the tree would mark their boundary – and this was important to the court

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

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

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

Case of the Day – Thursday, May 14, 2015


Think how much litigation a talking horse might have saved ...

Think how much litigation a talking horse might have saved …

A horse is a horse, of course, of course …

Sherri Ann Konieczny — and we’ll just call her Sherri Ann — was horseback riding at the Dmytros’ farm. Sadly, her horse – not named “Mr. Ed” couldn’t talk, so he didn’t warn her about the pile of timber hidden in the tall grass. Instead, the horse struck the pile of wood left by Mr. Dmytros along a fenceline, tripped and fell. Sherri Ann fell, too, and the Dmyrtos’ insurer got sued.

But Sherri Ann was a non-paying guest of the Dmytros. Their insurer thought her claim was … well, was the kind of stuff you find falling from the south end of a northbound horse, if you get our allusion. The insurance company defended under the recreational user immunity statute.

That statute hardly applies, the grievously injured Sherri Ann argued, because Wisconsin’s recreational user immunity law only relates to the condition or maintenance of the land. A stack of timbers, she said, aren’t related to the condition or maintenance of the land.

Maybe Sherri Ann’s horse couldn’t talk, but the Court of Appeals could: it said “neigh.”  The Court ruled that the intent of the law was to encourage landowners to open their lands to the public. The Dmytros’ act of storing lumber on their land was the kind of thing a landowner would normally do. Clearly, if the courts started drawing such artificial lines – such as that a landowner’s typical use of his or her land might negate recreational user protection – then landowners couldn’t trust the recreational use statutes, and they simply wouldn’t open their lands to recreational users.

It’s a constant balancing act between giving injured people the right to collect for injuries caused by the negligence of others and encouraging a socially useful end like public access to recreational opportunities. The Court did it well in this case.


Konieczny v. Wausau-Stettin Mut. Ins. Co., 740 N.W.2d 902 (Wis.App. 2007). Sherri Ann Konieczny was injured while horseback riding on William and Cecilia Dmytro’s property. According to Konieczny, her horse struck a piece of timber that was lying next to a fence line, causing the horse to lunge forward and throw her to the ground.

The Dmytros had obtained the timbers about five months earlier when William Dmytro helped a neighbor demolish a barn. The timbers had been stored by the fencerow ever since.

Konieczny sued the Dmytros’ insurer, Wausau-Stettin, which moved for summary judgment under Wis. Stat. §895.52, the recreational immunity statute. Konieczny argued the recreational immunity statute did not apply because the storage of the timber on the Dmytros’ property was unrelated to the condition or maintenance of the land. The trial court ruled that Konieczny’s claim was barred, and she appealed.

Held:  Konieczny’s claim was properly rejected under the Wiconsin recreational use statute.

So an owner's clutter might constitute a "condition of the land?"

So an owner’s clutter might constitute a “condition of the land?”

Horseback riding is explicitly included within the statutory definition of “recreational activity.” A plain reading of the statutory language, the Court said, appeared to bar Konieczny’s claim because the Dmytros had no duty to keep the property safe or to warn Konieczny about the timbers. Konieczny claimed the statute did not apply where a landowner’s conduct causes injury and that conduct is not directly connected to the condition of the land. But, the Court noted, the recreational immunity statute was designed to immunize people in their capacity as landowners to encourage them to open their land for public use.

Here, the Dmytros’ act of storing timber along their fence line is not distinct from their capacity as landowners. The timber constituted a condition on the Dmytros’ land and their act of putting it there created that condition. Contrary to Konieczny’s assertion, the timber was not unrelated to the condition or maintenance of the land. This situation fits squarely within the parameters of the recreational immunity statute, the Court held.

Case of the Day – Friday, May 15, 2015


This bunch is pretty happy ... The Wongs? Not so much.

This bunch is pretty happy … The Wongs? Not so much.

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

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

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

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

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

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

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

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

Happy Bunch, LLC appealed.

Held: Judgment was reversed on most counts. The Court of Appeals concluded that Happy Bunch was only entitled to recover damages for injury to those portions of the trees growing on its land. However, the Court found that RCW §64.12.030’s treble damages provision did apply.

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

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

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


Case of the Day – Monday, May 18, 2015


Delaware Water Gap National Park

Delaware Water Gap National Park

Ms. Merando and a friend had been enjoying the scenery of Delaware Water Gap National Park – a beautiful place – one summer day, when a tree (which had previously been topped) fell from an embankment and crushed the car, killing Ms. Merando and her young daughter, Kaylyn.

It was a tragedy, and sometimes tragedies drive the bereaved to push harder than makes sense. That happened here, where Ms. Merando’s husband sued the National Park Service for not having removed this topped tree before it fell. The tree was a disaster waiting to happen, a dead, previously-butchered hulk leaning over the road like an ogre waiting to pounce.

A legal tradition – dating back to the days of knights and knaves and peasants and ogres – holds that no one may sue the king without the king’s permission. The doctrine is known as “Sovereign Immunity.” To address the unfairness of this rule, the U.S. government and virtually all states have passed tort claim acts, which give permission in certain circumstances to sue the sovereign (here, the sovereign is an Uncle named Sam, not a King or Queen).

The federal statute is called the Federal Tort Claims Act. Under the Federal Tort Claims Act, an individual may sue the government in some cases but not others. There are limitations. One of those limitations is that you can’t sue the government if it failed to perform a discretionary act. Whether hazard tree removal is a discretionary function is at the heart of this case.

The Court of Appeals upheld the lower court, dismissing Mr. Merando’s case. The National Park Service, it appears, had written guidelines that essentially directed every park to adopt a hazard tree removal policy that makes sense for the individual park. The result is a patchwork of unwritten policies. That sounds like a prescription for chaos.

Actually, it’s a prescription to avoid liability. If the Service had a written hazard tree removal policy and the local rangers hadn’t adhered to it with the tree in questions, then liability on the part of the government would be pretty clear. But, as some sharp National Park Service lawyer undoubtedly figured out — and yes, even Smokey the Bear has his own mouthpiece — if you don’t write it down, it’s that much harder for a plaintiff to prove that you failed to follow it.

The Delaware Water Gap National Park had a rather amorphous “drive-by” inspection policy, and Mr. Merando was unable to demonstrate that anyone had violated it. The lesson seems to be that “the less you do, the safer you are.”

Some hazard trees are easier to spot than others ...

Some hazard trees are easier to spot than others …

Merando v. U.S., 517 F.3d 160 (3rd Cir., 2008). Janine Noyes, Kathleen Merando and Kathleen’ daughter, Kaylyn, were sightseeing in Delaware Water Gap National Recreation Area. While traveling in Ms. Noyes’s car along the New Jersey side of the Park, a large dead oak tree fell from an embankment and crushed the vehicle. Mrs. Merando and her daughter were killed instantly. The tree was approximately 27 feet in length, and had been had “topped” and delimbed, leaving it standing in a “Y” shape with no bark or branches and with the dead tree pole leaning toward the roadway.

The 63,000-acre Park lies along four miles of the Delaware River in Pennsylvania and New Jersey. It is mainly forested land, and is accessed by approximately 169 miles of roadways, 68 miles of trails, and several streams. As with other national parks throughout the country, the National Park Service, an agency within the U.S. Department of the Interior, is responsible for maintaining the Park, including the area where the accident in question occurred. The Government took title to the land where the oak tree was situated in 1969 and to the roadway itself in 1996.

Plaintiff, as administrator of the estates of Ms. Merando and her daughter, sued the Government for negligence, alleging that the Government negligently pruned the tree causing it to die and eventually collapse, and that the tree constituted a hazardous and extremely dangerous condition of which the Government knew or should have known and that it negligently failed to act to remove the tree. The Government moved to dismiss the complaint on the basis of the discretionary function exception to the Federal Tort Claims Act (“FTCA”). The Government also argued that the New Jersey Landowners Liability Act barred the action. The trial court dismissed on the basis that the FTCA stripped the court of jurisdiction to hear the case. Mr. Merando appealed.

Held:  The district court’s dismissal was affirmed. The federal, as a sovereign, is immune from suit unless it consents to be sued. That consent, and the extent of the consent, is set out in the Federal Tort Claims Act, and it is a plaintiff’ burden to prove that the FTCA has waived the immunity. Generally, the government is immune from a suit claiming negligence in the discharge of a discretionary function.

car150518The purpose of the discretionary function exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. In determining whether the discretionary function exception applies in any particular case, a court must first determine whether the act giving rise to the alleged injury involves an element of judgment or choice. The requirement of judgment or choice is not satisfied if the law, a regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive. – But even if the challenged government conduct involves an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The focus of the inquiry is on the nature of the actions taken and on whether they are susceptible to policy analysis.

In this case, determining whether the discretionary function exception applied to a tort action arising when the dead tree fell on the passing car, the relevant conduct was not the National Park Service’s alleged violation of its mandatory policy not to “top” trees, because there was no evidence that the Government was involved in or consent to the topping of the tree. Instead, the relevant conduct was the Service’s decisions that comprised its hazardous tree management plan and its execution of that plan. The issue was whether the controlling statutes, regulations, and administrative policies required the Park Service to locate and manage hazardous trees in any specific manner. The Court concluded that the Service’s unwritten tree management plan did not mandate any particular methods of hazardous tree management, and its choice to use “windshield inspections” in low usage areas of the park was a discretionary decision — driven by limited resources — not to individually inspect every potentially hazardous tree in the park.


Case of the Day – Tuesday, May 19, 2015


Lon Chaney was not a part of this lawsuit.

Lon Chaney was not a part of this lawsuit.

It’s hard to feel too much sympathy for Mr. Chaney (Dave Chaney, not Lon Chaney) in today’s case. He and his wife lived in a hollow on the Ohio River, downhill from the Wilsons.

When the Chaney homestead filled with mud because of a landslide, the Chaneys saw green where most homeowners would just see brown. They sued the hilltop Wilsons, complaining that their neighbors had trespassed and cut down some 400 trees, many of them belonging to the Chaneys. The Chaneys alleged that the removal of the trees — insulting enough on its own — led to the hillside ending up in the Chaneys’ living room.

The trial court got the two sides to agree that their surveyors would decide on the proper boundary. The surveyors did so, and concluded that Mr. Wilson had cut down his own trees, not Chaney’s trees. Meanwhile, The Chaneys lost or fired their attorney — we’re unclear what happened, but regardless, it came at a bad time — and proceeded to lose on summary judgment. They then appealed, arguing for the first time that they hadn’t agreed to have their surveyor work with the other side’s surveyor.

The Court of Appeals ruled against the Chaneys, holding that their allegation was too little, too late. Because it hadn’t been raised in the trial court (where it could have been corrected), the argument could not be raised on appeal. Besides, the Chaneys’ lawyer had agreed to the two-surveyor mechanism, and that agreement was binding on the parties.

There may have more to the Court’s repudiation of the Chaneys’ position. The trial judge was clearly a little put off that the Chaneys had told their insurance company that the landslide was caused by rain, thus collecting a cool $200,000 for the damage. (The Chaneys had had quite the living room) Now, the Chaneys were saying that the mudslide resulted the Wilsons’ alleged tree cutting. The shifting story didn’t especially smack of sincerity.

Most people see a mudslide as a disaster ... the Chaneys saw it as a ticket to Easy Street.

Most people see a mudslide as a disaster … the Chaneys saw it as a ticket to Easy Street.

It is considered poor form to try to collect twice.

Chaney v. Wilson, Not Reported in S.W.3d, 2007 WL 2019673 (Ct.App. Ky., July 13, 2007). Philip and Michaelynn Wilson owned property adjacent to David Chaney’s property in Maysville, Kentucky. The Chaneys lived at the bottom of a steep hill near the banks of the Ohio River. The Wilsons lived at the top of the hill, overlooking the river.

The Chaneys charged that the Wilsons caused timber to be cut and removed from the Chaneys’ property, and that such actions caused the removal of lateral and subjacent support, either causing or aggravating a landslide that damaged their property. At the behest of the trial court, two surveyors surveyed and agreed on boundary line between the parcels. The surveyors also concluded that any trees that had been cut were in fact on the Wilsons’ property.

The Chaneys may have been perfectly honest with the insurance company ... but if they were, it meant they were trying to snooker the court.

The Chaneys may have been perfectly honest with the insurance company … but if they were, it meant they were trying to snooker the court.

The trial court entered a final order, incorporating by reference the surveyors’ agreed description as the disputed boundary line and granting the Wilsons’ motion for summary judgment. Regarding the Chaneys’ claim that some 400 trees had been cut, the trial court found that the physical evidence on the site did not support the allegation, and, “based upon the boundary line as agreed and established by the parties two independent surveyors, any minimal cutting of trees occurred on the defendant’s side of the established boundary line, effectively negating any claims of improper ‘cutting of timber’ as alleged in the Complaint.”

The court also took judicial notice of a separate legal proceeding filed by the Chaneys against their insurance company in which they also alleged that their home was damaged by a landslide in March 1997 – nine months before the Wilsons cut down any trees –which had been triggered by heavy rains. The Chaneys had received a settlement of $200,000 from their insurer for the landslide damage.

The trial court dismissed the Chaneys’ complaint. An appeal followed.

Held: The summary judgment was upheld. On appeal, the Chaneys — who had lost their attorney during the proceedings — only made one argument, that they did not authorize counsel to agree to the surveyors’ collaborating on the legal description of the disputed boundary line. But the Court held that while an attorney cannot substantively settle a case without his client’s express authority, a party is nonetheless bound by the procedural agreements and stipulations of its attorney in the conduct of the litigation for which that attorney was hired. The agreement entered to have the surveyors conduct a joint survey was such a procedural agreement, and was within the attorney’s authority.

What’s more, the Chaneys never complained in the trial court that their attorney lacked the authority to make the agreement. The Court noted that an issue not timely presented to the trial court may not be considered for the first time on appeal.


Case of the Day – Wednesday, May 20, 2015


spiders150520Jim Stafford and Greg Barnett have something in common — neither one likes spider or snakes. In Greg’s case, he doesn’t think much of Southern California Edison, either.

The utility had an easement along one side of his yard, where he and his neighbor had parallel fences. The easement was to maintain power lines, but when Greg cleaned up some debris between the fences, a big ol’ spider bit him. Arachnophobia reared its ugly head, followed close on by a lawsuit.

Greg said Edison had a duty to maintain its easement, and it should therefore be liable to him for the spider bite. The trial court disagreed, and the Court of Appeals concurred. It found Greg’s argument, like the spider of waterspout fame, just an “itsy bitsy” bit light on common sense. The easement was one known as an easement “in gross,” meaning that it was limited, in this case, to activities related to delivering electricity. Edison could (and had) trimmed and cut down trees that interfered with its lines, but it had no duty to Barnett to do things unrelated to the right for which the easement was granted. Such as kill spiders.

itsybitsy150520The Court rightly concluded that to make the utility liable would be a major burden on a public utility given the thousands of miles of easement territory the company had. Nothing except the fact that the cleanup job bites kept Barnett from cleaning up his own land.

Barnett v. Southern California Edison Co., Not Reported in Cal.Rptr.3d, 2007 WL 2751874 (Cal.App. 4 Dist., Sept. 21. 2007). Gregory J. Barnett owned a place on Hayes Avenue. Edison held a six-foot wide easement on the west side of the property to “construct, lay, install, use, maintain, alter, add to, repair, replace, inspect and/or remove, at any time and from time to time, aerial and underground electric lines and communication lines, consisting of poles, guys and anchors, crossarms, wires, cables, conduits, manholes, vaults, pull boxes, markers[,] and other fixtures and appliances, for conveying electric energy to be used for light, heat, power, telephone[,] and/or other related uses …”

Barnett said SoCal Edison should have killed the spiders.

Barnett said SoCal Edison should have killed the spiders.

Barnett’s neighbor built a fence along the western boundary separating Barnett’s property from the neighbor’s, and Barnett had installed his own fence which overlapped the neighbor’s fence. There was a small gap of land between the two fences measuring two feet wide and four feet long. The gap was located within Edison’s easement. One day, Barnett was bitten by a spider while cleaning the area between the two fences of small pieces of concrete, branches, leaves, and old paper trash. He said he was trying “to abate the infestation of rats, spiders, and other vermin …” that Edison had ignored.

Barnett claimed Edison told him that he could not close the gap or take other remedial measures because Edison’s lineworkers needed access to the utility pole located between the two fences. Barnett sued Edison for negligence and premises liability, arguing it had the duty to clean up the space and eradicate the spiders.

Edison argued it owed no duty of care to prevent the spider bite. Barnett argued Edison exerted exclusive control over the area and, therefore, had a duty to maintain the premises in a safe condition. The trial court agreed that Barnett could not establish the duty element of his cause of action for negligence. Instead, there was merely a nonexclusive easement for the maintenance of electric facilities that burdened Barnett’s property. Barnett’s alleged injury from a spider bite was unconnected to Edison’s use of the property pursuant to its easement. Therefore, as a matter of law, Edison did not owe Barnett a duty of care to prevent spiders from nesting behind his fence. Barnett appealed.

socallines150520Held:  The easement did not create a duty for Edison toward Barnett. An easement such as this one, called an easement in gross, is not attached to any particular land as dominant tenement, but belongs to a person individually. Here, it is undisputed there was just a parcel of property owned exclusively by Barnett. Edison held an easement in gross, limited to the purpose of conveying electricity to its customers. Edison owed no general duty of care for all purposes on its easement in gross, or more specifically, any duty to rid the area of spiders, rats, and other vermin.

The easement owner’s possessory right is limited to the use of the land granted by the easement. Accordingly, an easement holder has a duty to act reasonably under the circumstances in its use of the servient estate, but the duty does not extend beyond the scope of that use. Barnett didn’t cite a single case where an easement holder was held to have a duty to guard against a risk of harm unrelated to the scope of the interest represented by the easement. The Court said that to impose such an unlimited duty “would impose a tremendous burden on Edison, its customers, and all other utilities in California.

Barnett argued he presented evidence Edison exerted exclusive control over the easement property and therefore assumed the duty of care typically held by a landowner. The Court held he had failed to provide relevant admissible evidence to support his claims. Although Barnett claimed Edison had once removed a rat-infested palm tree, he admitted he had told Edison the palm tree was growing up into Edison’s lines, and Edison had an obligation to maintain a certain clearance between its trees and electric lines. Trimming and removing trees was part of the express terms of its easement right. The eradication of the rats was merely incidental.

Case of the Day – Thursday, May 21, 2015


fallentree141117When the Santiagos parked on a side street in Vineland, New Jersey, to attend the christening of their god-daughter, they had no idea that Mrs. Santiago was about to get christened with a 60-foot tall maple tree.

It seems that the tree’s roots had girdled — which is what happens when the roots grow back around themselves and essentially strangle the tree. Girdling is a problem with city trees, the roots of which may grow in confined places. When it happens, trees have no subsurface support, and often fall in conditions that wouldn’t affect normal trees.

That’s what happened to the tree that struck Mrs. Santiago, and her lawyer and expert witness arborist did an excellent job of explaining the problem to the court. But the City won on summary judgment anyway. It seems that the city workers responsible for the trees all testified that they were nothing more than glorified leaf-rakers — one of them, when asked what he knew about trees, responded “[t]rees have leaves, that’s about it” — and none of them knew how to inspect a tree to determine whether it might have girdled roots.

The city workers involved were not the sharpest bulbs on the tree --- or something like that.

The city workers involved were not the sharpest bulbs on the tree — or something like that.

Now you’d think that the fact that city owned the urban tree and its tree people had no idea how to care for them ought to make this case a dunker for the injured Mrs. Santiago. But in New Jersey, the Tort Claims Act requires that a plaintiff show that the city’s failure to act was “palpably unreasonable.” The fact that city’s tree workers couldn’t find the business end of a chain saw turned out to be a fact that favored the city. The Court of Appeals agreed that the city’s decision not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality was not “palpably unreasonable.”

Compare this decision to holdings in other jurisdictions that an urban owner has a heightened duty to inspect his or her trees (see Conine v County of Snohomish, a Washington State decision). Seems if you’re a New Jersey city worker, the less you know, the better off you are. We don’t know much about girdling, but we know nonsense when we read it.

Santiago v. City of Vineland, Not Reported in A.2d, 2007 WL 2935035 (N.J.Super. A.D., Oct. 10, 2007). The Santiagos drove to 8th Street to attend the christening of their god-daughter. As they crossed the street, a 60-foot maple tree fell and struck Mrs. Santiago. She sued the City, claiming it was responsible for the care and maintenance of trees on its property, and was negligent, careless and reckless in permitting a dangerous condition to exist.

girdling141117Mrs. Santiago submitted a report prepared by Russell E. Carlson, a master arborist, saying that the tree broke at its base, a few inches below the surface of the ground, because it lacked a root system sufficient to support the tree. He found that girdling roots had effectively strangled the tree, resulting in decay of the base of the trunk and inadequate development of the root system. Girdling roots form when a root grows in a direction that crosses the trunk of the tree. Ordinarily, roots will grow away from the trunk of the tree but when a root meets an obstruction, it will change direction, and may grow around the edges of the planting pit.

Carlson said that eventually, circling roots will come in contact with the growing tree trunk. The cells of the bark of both trunk and root are compressed. Symptoms of this are a thinning of foliage and reduction of twig growth in the crown, followed by twig and branch dieback. The tree may eventually die above the area of contact. When this girdling condition persists for many years, the roots that normally extend away from the tree may atrophy and eventually decay. While healthy trees usually withstand winds over 70 mph, trees that have lost their structural support at the base can topple in much lower winds, and in some cases when there is no wind at all.

Even when the roots are underground, the expert said there are signs that girdling roots may be present. The trunk of the tree goes straight into the ground, without the normal flare from trunk to roots. Carlson stated that excavation of the soil at the base of the tree is “sometimes necessary” to determine the extent of the girdling. This process could take a few minutes, or several hours, depending on the size of the tree, soil conditions, and the extent and depth of the girdling roots.

Only one of three city employees whose depositions were taken knew anything about trees, and even he had no experience identifying diseased or dying trees. The general supervisor of streets and roads for the City said it would be a hardship both economically and logistically for the City’s Department of Public Works to inspect every tree within the City’s borders, or even within the City’s right of way and on City property, for the multitude of diseases that are capable of causing damage to any or all of the varieties of trees within the City’s borders.

The City moved for summary judgment, arguing that Santiago had not presented sufficient evidence to support a claim under the Tort Claims Act because she did not establish that the City had actual or constructive notice of a dangerous condition. The judge concluded that the City’s actions respecting the tree were not palpably unreasonable. Santiago appealed.

Held: The suit was properly dismissed. The Tort Claims Act provides that a public entity may be liable for an injury caused by a condition of its property if a plaintiff establishes (1) that the property was in dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) a public 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.

The workers in question should have gone to shcool ...

The workers in question should have gone to shcool …

A public entity is deemed to have “actual notice of a dangerous condition” when it had “actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” In addition, a public entity is deemed to have “constructive notice” of a dangerous condition if a plaintiff establishes 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.

Here, Mrs. Santiago had the burden of showing that the City’s action or failure to act was palpably unreasonable. Although the term “palpably unreasonable” is not defined in the TCA, it has been interpreted to mean “more than ordinary negligence, and imposes a steep burden on a plaintiff.” For a public entity to have acted or failed to act in a manner that is palpably unreasonable, it must be obvious that no prudent person would approve of its course of action or inaction. The trial judge correctly determined that the Santiago had not presented sufficient evidence to raise a genuine issue of material fact as to whether the City’s actions in this matter were palpably unreasonable. The City’s public works employees were not trained to identify girdling roots or whether a tree was in danger of imminent failure as a result of such condition. The judge also pointed out that the City had not retained an arborist to “go around and inspect trees for girdling roots and perhaps a myriad of other types of similar problems, which would make a tree unsafe.” Based on the evidence, the judge correctly found that a jury could not find that the City’s failure to have such an inspection program was “patently unacceptable under any given circumstance.”

The evidence showed it is obvious that a regular program to inspect the City’s trees for imminent failure due to girdling roots would require additional manpower and resources. In this case, the City elected not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality. Such a determination, the Court said, was not palpably unreasonable.


Case of the Day – Friday, May 22, 2015


From the hatcheck to the parking lot to the dry cleaner to the amusement park, we grant pre-injury waivers of liability all the time. And we’re helpless to stop it. Don’t believe us? Try negotiating that fine print on the back of your parking lot ticket next time you leave the Mercedes in the hands of some teenager named “Kent Steerwell.” You’ll be handed your keys, probably with a suggestion of where to put them (and it won’t involve inserting them in the ignition, either).

When expert Alpine skiing enthusiast Bill Rothstein parted with his hard-earned cash for a couple of souped-up passes to the Snowbird resort (your basic pass and a special one that let him skip lines and not have to mingle with the great unwashed), he signed the waivers without a second thought. You know, the ones that said the resort wasn’t liable for a ding-dong thing in case he got hurt.

031-downhill-skiingWhile skiing the “Fluffy Bunny” run (hardly sounds like a double-diamond course, does it?) Bill ran into a poorly-marked retaining wall and messed himself up but good. Fortunately, his favored hand wasn’t injured, so he quickly signed off on a lawsuit against the ski operator. But the trial court was impressed by the breadth of the release Rothstein had signed — as tall as the Wasatch and as wide as the Bonneville Salt Flats — and it threw the case out.

The Utah Supreme Court saved Rothstein’s bacon. It held that, no matter what the pre-injury waivers said, Utah public policy required that ski resorts take responsibility for the results of their negligence. A state statute, the Inherent Risks of Skiing Act, exempted ski resorts from certain risks that are inherent in skiing — such as broken legs, frostbite, fashion faux pas — so that the operators could buy insurance against actual negligence. The Court held that inasmuch as the legislature exempted ski resorts from certain types of risks so that they could afford insurance to cover the remaining ones, it was contrary to public policy for a ski resort to try to exempt itself from liability for any negligence whatsoever. The Romans had a word for it: expressio unius est exclusio alterius, which means “the expression of one excludes all others.” This means that because the law expressly carved out certain acts from liability – such as the effects of the relentless pull of gravity – it specifically intended not to carve out other unlisted acts. Acts like failing to adequately mark a retaining wall.

Now available - expressio unius coffee mugs!

Now available – expressio unius coffee mugs!

The waiver was void, and Rothstein was free to sue … if not to ski the “Fluffy Bunny.”

Rothstein v. Snowbird Corp., 175 P.3d 560 (S.Ct. Utah, 2007). “Fast Billy” Rothstein, an expert skier collided with a retaining wall while skiing at Snowbird Ski Resort. The retaining wall was unmarked and no measures had been taken to alert skiers to its presence. Although Snowbird had placed a rope line with orange flagging near the wall, there was a large gap between the end of the rope and a tree, which Mr. Rothstein incorrectly understood indicated an entrance to the Fluffy Bunny run.

No - not this kind of

No – not this kind of “law suit”

Rothstein sued Snowbird for negligence. Snowbird defended itself by asserting that Mr. Rothstein had waived his ability to sue Snowbird for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence.

Rothstein’s super passes — which let him have faster access to the slopes than mere mortal pass-holders — required him to sign an agreement that said

“I hereby waive all of my claims, including claims for personal injury, death and property damage, against Alta and Snowbird, their agents and employees. I agree to assume all risks of personal injury, death or property damage associated with skiing … or resulting from the fault of Alta or Snowbird, their agents or employees. I agree to hold harmless and indemnify Alta and Snowbird … from all of my claims, including those caused by the negligence or other fault of Alta or Snowbird, their agents and employees …”

If that wasn’t enough, a second agreement he signed said,

“In consideration of my use of the Snowbird Corporation (Snowbird) ski area and facilities, I agree to assume and accept all risks of injury to myself and my guests, including the inherent risk of skiing, the risks associated with the operation of the ski area and risks caused by the negligence of Snowbird, its employees, or agents. I release and agree to indemnify Snowbird, all landowners of the ski area, and their employees and agents from all claims for injury or damage arising out of the operation of the ski area or my activities at Snowbird, whether such injury or damage arises from the risks of skiing or from any other cause including the negligence of Snowbird, its employees and agents.”

Read the fine print

Read the fine print – if your eyes are up to the challenge

The trial court thought these agreements were pretty comprehensive, not to mention dispositive. It granted summary judgment in favor of Snowbird. Quicker than you could say, “Fluffy Bunny,” Rothstein appealed.

Held: The trial court was reversed, and Rothstein was allowed to sue the ski resort. The Court held that releases that offend public policy are unenforceable. Under Utah’s Inherent Risks of Skiing Act, certain hazards inherent in skiing are defined. Resorts aren’t liable for those risks — like breaking a leg on a downhill run — thus clarifying the hazards sufficiently to enable the ski operators to by insurance against those risks that aren’t excluded.

The Court said that by expressly designating a ski area operator’s ability to acquire insurance at reasonable rates as the sole reason for bringing the Inherent Risks of Skiing Act into being, the Utah legislature “authoritatively put to rest the question of whether ski area operators are at liberty to use pre-injury releases to significantly pare back or even eliminate their need to purchase the very liability insurance the Act was designed to make affordable. They are not.” The premise underlying the passage of a law to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The Court said “the bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.”

Inasmuch as the legislature had determined that resorts should insure themselves against risks not inherent in the sport of skiing, the Court held that it was contrary to public policy to permit an operator to duck liability for negligence that could have been avoided by requiring its patrons to waive claims for negligence as a condition of use.


Case of the Day – Tuesday, May 26, 2015


Nickel Plate Beach on a warm but windy Memorial Day.

Nickel Plate Beach on a warm but windy Memorial Day.

We started the summer yesterday with a Memorial Day visit to Nickel Plate Beach in Huron, Ohio. Nickel Plate (named for a great railroad of the same name) is a substantial extent of sand on the south shore of Lake Erie. Usually, it’s sunny and peaceful there. But sometimes, when the wind is out of the northwest, the deceptively tranquil beach develops a serious undertow.

The story is repeated often enough that lifeguards hear it in training as a cautionary tale. Someone is drowning, and a rescuer tries to help, only to die as well. On a stormy summer day in 2002, a woman was trapped in the undertow at Nickel Plate Beach. She was rescued, but not before four young men perished when they entered the troubled water to save her.

Afterwards, families of the men sued the City of Huron, arguing that despite Ohio’s recreational user statute, the City was not immune from liability for the men’s deaths. The trial court disagreed, and dismissed the suit. An appellate court agreed. The City ran the beach, but there was no evidence that it controlled or tried to control the waters of Lake Erie, which belonged to the State of Ohio. The men drowned in Lake Erie, the Court held, not on the grounds of the city park. Thus, even if Lake Erie constituted a nuisance, it wasn’t the City’s nuisance, but rather the State’s.

hand150525Smith v. Huron, Slip Copy, 2007 WL 4216133, 2007 -Ohio- 6370 (Ohio App. 6 Dist., Nov. 30, 2007). Four people died at Nickel Plate Beach on July 10, 2002, when another person screamed for help from the water. The four entered the water to save her, but although she survived, the four would-be rescuers drowned in the windswept waters of Lake Erie.

Their survivors sued the City of Huron, seeking recovery for the drowning deaths from the city and entities that controlled the beach. They claimed that the city failed to maintain the swimming area it owned in a safe manner and failed to warn the general public of hazardous defects on the premises. The complaint also alleged the city maintained or abetted the creation of a nuisance at the beach and in the water; that the deceased men had reasonably relied upon representations that the beach and waters were safe, and that the city voluntarily assumed a duty of controlling and maintaining the waters adjacent to the beach.

The City of Huron filed for summary judgment arguing that it was entitled to immunity as a political subdivision pursuant to O.R.C. Chapter 2744, that it was not liable because it had satisfied the requirements of Ohio’s recreational user statute, that the men engaged in recreational pursuits prior to their deaths, and that the decedents assumed the risk by voluntarily exposing themselves to the waters of Lake Erie even though they were warned of the dangerous conditions. The trial court granted the City summary judgment. The survivors appealed.

sign150525Held:   The City of Huron was immune from liability. The survivors claimed that O.R.C. §2744, Ohio’s Political Subdivision Tort Liability Act, did not confer immunity on Huron. And indeed, under O.R.C. 2744.02(B), in some situations, a political subdivision can be held liable for damages in a civil suit arising from injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or its employees in connection with a governmental or proprietary function.

The survivors claimed the City was liable under the exception that a political subdivision can be held liable for damages in a civil suit arising from injury, death, or loss to persons or property caused by its failure to keep the public grounds within their political subdivision open, in repair, and free from nuisance. They argued that Nickel Plate Beach and the waters of Lake Erie adjacent to the shoreline are public grounds within the city of Huron.

The Court of Appeals ruled that the city didn’t maintain any actual control over Lake Erie itself by placing buoys in the lake or at times posting “no swimming” signs on the beach. The city didn’t actively keep swimmers from going beyond the buoys or boaters from going inside the marked area; nor did the city take overt actions to prevent swimmers from going in the water when the beach was “closed” due to rough conditions. More important, the Court said, title to Lake Erie clearly belongs to the state of Ohio, which holds it in trust for the benefit of the people of Ohio.

The victims in this case drowned in Lake Erie, not on grounds within Nickel Plate Beach or Huron. The City didn’t maintain any actual control of Lake Erie. Based on that, the Court found that the trial court correctly granted summary judgment in favor of the City of Huron.


Case of the Day – Wednesday, May 27, 2015


Remember Alexander? He didn't have anything on Heidi ...

Remember Alexander? He didn’t have anything on Heidi …

Ever have one of those days? Heidi Cordeiro knows how you feel. Heidi had a terrible, horrible, no good, very bad day once. First, she heard a crash in her driveway, and looked out to see that a tree belonging to the hospital next door had fallen, crushing her car. Then, she hurried out to assess the damage, only fall over the branches of the downed tree, spraining her ankle. At least she didn’t have to hobble far to the emergency room.

She of course sued the hospital — who doesn’t like suing hospitals? — for the damage to her car and her ankle. Her case was essentially that the tree fell, so of course the hospital was negligent. Unfortunately, that just set her up for another bad day.

The Superior Court made short work of Heidi’s suggestion that landowners were strictly liable for falling trees. It correctly pointed out that in Connecticut, a plaintiff must plead (and of course later prove) that the landowner knew or should have known that the tree was diseased, decayed or otherwise dangerous.

Heidi couldn’t do that, and her case was dismissed. We’ll never know whether liability would have extended to paying for Heidi not being careful where she stepped.

She had a bad day.

Cordeiro v. Rockville General Hospital, Inc., Not Reported in A.2d, 44 Conn. L. Rptr. 58, 2007 WL 2570406 (Conn.Super., Aug. 21, 2007). A tree belonging to the Rockville General Hospital fell into the yard and driveway of the premises Heidi Cordeiro was renting, damaging her car. When she went out to look at the damage, Heidi tripped and fell on the branches of the tree. She sued her landlord and the Hospital, alleging negligence and asking for damages for her personal injury and for damage to her car. Rockville Hospital moved to strike the count against it arguing that the plaintiff has failed to state a claim.

Held: Rockville Hospital was dismissed as a plaintiff. The Hospital argued the facts alleged in Heidi’s complaint did not give rise to any duty owed by the Hospital to the plaintiff, the falling tree was caused by an “act of God” for which the Hospital was not liable, and the falling tree was an open and obvious defect that the plaintiff should have avoided.

Fallen_treeThe Court observed that the essential elements of a negligence action were duty, breach of duty, causation and actual injury.Here, Heidi Cordeiro alleged that “a tree … belonging to the defendant … fell upon the yard and driveway area of the premises where the [plaintiff] resided [as a tenant], and when the plaintiff went out to look at the damage to the vehicle parked in her driveway, she was caused to trip and fall over the branches of said tree, causing her to sustain … injuries.”

In early times, there was generally no liability for trees falling on neighboring lands, an obvious practical necessity when land holdings were very large and in a primitive state, but the rule made little sense in urban settings. In urban areas like the City of Rockville, there is generally found to be a “duty of reasonable care, including inspection to make sure that the tree is safe.” It is now generally recognized, particularly in urban areas, that a tree owner has a duty to an adjoining landowner to exercise reasonable care to prevent an unreasonable risk of harm presented by an overhanging dead branch in a residential area. Thus, an invitee of commercial premises may recover for injuries sustained from the fall of a defective or unsound tree growing on adjoining premises, including trees of a purely natural origin.

George of the Jungle could have been Heidi's doppelgänger.

George of the Jungle could have been Heidi’s doppelgänger.

However, the owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition. A landowner who knows that a tree on his property is decayed and may fall and damage the property of an adjoining landowner is under a duty to eliminate the danger. But a landowner does not have a duty to consistently and constantly check all trees on his property for non-visible rot. Instead, the manifestation of decay must be visible and apparent. In Connecticut, if the tree condition is one of which the defendant would become aware through reasonable exercise of its faculties, the defendant is chargeable with notice.

In this case, Ms. Cordeiro had to plead and prove facts showing that the Hospital knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition, or other such proof of actual or constructive notice, in order to state a claim. But she made no such allegation here. Instead, she only alleged that the Hospital “was responsible for the proper maintenance of its trees and was responsible to assure that its trees did not fall into adjoining properties, causing injury.” The law does not require landowners to continuously examine their trees for invisible decay to assure they do not fall. Instead, it requires them to take action when there is actual or constructive notice of a dangerous natural condition.


Case of the Day – Thursday, May 28, 2015


We liked our lunch at Jimmy John's, and didn't discover that we were really victims - not patrons - until more than a year later.

We liked our lunch at Jimmy John’s, and didn’t discover that we were really victims – not patrons – until more than a year later.

Last week, we learned that we had been grievously injured a year and a half ago when we ate a Jimmy John’s sub sandwich in Winston-Salem, North Carolina. Sure, at the time, the sub tasted pretty good, and we seem to recall that we left the place feeling like we had gotten our money’s worth.

Boy, were we ever wrong! It turns out that we may have gotten a sandwich that may have been advertised as having alfalfa sprouts, but did not. We don’t really remember what sandwich we ate, and if alfalfa sprouts were omitted (and if that had been important to us), we imagine we would have noticed. No matter, we are members of a class of consumer harmed by high-handed chicanery, alfalfa sprout deprivation that shocks the conscience!

There’s much about the current class action lawsuit against Jimmy John’s that we don’t understand. ccording to the information we’ve gleaned from the settlement documents, we’re maybe going to get a coupon for a free pickle, or maybe a bag of chips. The lead plaintiff gets $5,000 for her trouble, and her lawyers get about $400,000. Regardless of the amount of damages that may someday flow our way to heal our psyches, we were intrigued. It made us wonder about causation and damages. And, of course, about trees …

America's right to alfalfa sprouts – vindicated by the majesty of the law.

America’s right to alfalfa sprouts – vindicated by the majesty of the nation’s legal system.

Back in the early days of the last decade, Georgia Power was building a new transmission line through some swampland. The utility mapped out an area in which, due to environmental considerations, trees had to be cut by hand instead of machine. The area was larger than the minimum required by law. While an employee of one of its contractors was cutting down trees, a branch fell from behind him and paralyzed him.

So what caused the injury? The fact the worker didn’t watch the trajectory of what he was cutting? Just bad luck? His employer’s lousy safety program? Maybe a sproutless sandwich from Jimmy John’s? Or was it the fact – as Rayburn argued at trial – that Georgia Power insisted more trees be cut by hand than the law mandated? Or maybe it was the fault of the consumers whose need for more electricity caused the building of the power line? Or maybe mainstream religion, for rejecting an Amish lifestyle that would eschew electricity?

You get the idea … when someone is badly hurt (and often when they’re not hurt at all), it’s good sport to look around for someone to blame, someone with deep pockets. But here, the Court refused to stretch the limits of causation unreasonably. And while not conceding that tree cutting was inherently dangerous, the Court nevertheless said in essence that the Plaintiff was a consenting adult, and he freely agreed to assume the risks.

pickle141017The lesson, kiddies, is this (and we don’t care what the slick lawyer’s ad on the back of your phone book says): Someone else doesn’t have to pay every time you get hurt. Here, have a pickle …

Rayburn v. Georgia Power Co., 284 Ga.App. 131, 643 S.E.2d 385 (Ct.App. Ga., 2007). Georgia Power set out to build a new transmission line. The coastal plain on which the power line was being built included wetlands and rivers. Because of Army Corps of Engineers concerns with destruction of wetlands, Georgia Power maintained a policy of clearing wetland buffers of trees by hand rather than with machines, which tended to tear up root mats and the ground. As well, the Georgia Erosion and Sedimentation Act required at least a 25-foot buffer to be cleared by hand on each side of a warm water stream, and at least a 50-foot buffer for trout streams, within which vegetation must be cleared by hand. In one case, a Georgia Power environmental supervisor specified a 50-foot buffer because the area was especially sensitive, but his assistant, an environmental analyst, marked in her notebook that they put 100-foot buffers on the stream. She set out flags showing the buffers. At some point, Georgia Power staff moved the wetland buffer to the edge of the right of way.

Caffrey Construction won a contract to clear timber, having taken into account that several areas in the project had to be hand-cleared. While working in a buffer zone, Rayburn was struck from behind by a limb from another tree. Rayburn sued Georgia Power, contending that the company’s negligence caused his injury. The trial court granted summary judgment for Georgia Power, holding that Rayburn’s injury was “the product of a normal risk faced by persons employed to cut down trees.” The court held that the decision to extend the buffer did not cause Rayburn’s injury, the cause of which was either his decision to cut down the tree in the circumstance presented, or else an unforeseen occurrence for which no one was responsible. The court also declined to find that tree-cutting is an “inherently dangerous” occupation or that Georgia Power directed the time and manner of Caffrey’s work. Rayburn appealed.

lawgold141017Held: Georgia Power was not responsible for Rayburn’s injury. The Court noted that the employer of an independent contractor owes the contractor’s employees the duty of not imperiling their lives by the employer’s own affirmative acts of negligence. However, the employer is under no duty to take affirmative steps to guard or protect the contractor’s employees against the consequences of the contractor’s negligence or to provide for their safety. This is especially true where a plaintiff has assumed the risk. An injured party has assumed the risk where he or she (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself or herself to those risks.

Here, Rayburn argued that Georgia Power owed him a legal duty not to expose him to unreasonable risks of harm by requiring hand-clearing in an area that could have been more safely cleared by machine, and that it breached this duty. He submitted evidence that clearing timber by hand is more dangerous than clearing it by machine. While state regulations only required a 25-foot buffer to be hand-cleared on each side of a creek, Georgia Power marked a buffer line more than 100 feet from the stream. Rayburn complained that, despite the option of a safer means of tree cutting, Georgia Power “directed that the work be performed by inherently dangerous methods in extremely hazardous conditions contrary to accepted construction industry standards.” Therefore, he argued, Georgia Power’s decision to hand-clear this section of property regardless of the danger to Caffrey’s employees should make it liable for his injury.

The Court held that notwithstanding all of this, Georgia Power could not have appreciated the dangers better than he did. The Court said that exposing someone to harm generates liability only when the person exposed does not appreciate the harm or is helpless to avoid it, which was not the case here. While Rayburn’s experts concluded that the working conditions were “abhorrent,” the Court said, none of the witnesses said that the conditions were out of the ordinary for that part of the state. If the contractor’s employees can ascertain the hazard known to the entity hiring the contractor, the contractor need not warn the employees of the hazard. Rayburn argued that, even if he knew the general risk involved in felling trees with a chain saw, he did not assume the specific risk that the particular branch that hit him would do so.

Chainsawb&w140225Rayburn was hired to cut trees. He had experience cutting trees. He testified that he observed the conditions and would have spoken to his supervisor if he thought they were unsafe. He already knew that cutting trees with a chain saw was hazardous, and therefore Georgia Power had no duty to warn him that he could get hurt by doing the job which presented hazards that he fully understood. He had actual knowledge of the danger associated with the activity and appreciated the risk involved.

Rayburn also argued that OCGA §51-2-5 made Georgia Power liable for Caffrey’s negligence, because the work was “inherently dangerous,” and because it controlled and interfered with Caffrey’s method of performing the job. But the Court said the statute only makes an employer liable for the contractor’s negligence, and here, Rayburn has not established that Caffrey’s negligence led to his injury. Even if he had, Rayburn had not shown that Georgia Power retained the right to direct or control the time and manner of clearing the timber. Georgia Power’s on-site supervisor visited the property once or twice a week, but did not direct the Caffrey employees in how or when to do their jobs. The Court observed that merely taking steps to see that the contractor carries out his agreement by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable.


Case of the Day – Friday, May 29, 2015



Snooze141120The whole issue of “conflict of laws” is about as dry as toast, at least until someone’s injury will go uncompensated because the wrongdoer is immune from liability.

In today’s case, Mr. Cain — a Mississippian — worked for a Mississippi tree-trimming company. The company signed on with a Louisiana public utility to trim trees along a right-of-way in Louisiana. Mr. Cain was hurt when his bucket truck came into contact with an electric line, and he collected on workers’ comp from the Mississippi company. But he sued the electric utility for his injuries, too.

We have no basis for saying that the utility was or was not negligent, and thereby was liable for his injuries. What we do know is that the utility and Cain’s employer had entered into a agreement which made Cain a “statutory employee” of the utility while he was working on the job, although he really remained an employee of the tree-trimming service. So under Louisiana law, the utility was immune from Cain’s suit. But under Mississippi law, companies couldn’t use the “statutory employee” dodge to avoid liability. The trial court said that Louisiana law applied because the accident happened there. Pretty logical, huh? The U.S. Court of Appeals for the Fifth Circuit in New Orleans didn’t think so.

The Court said that while normally that would be the case, Louisiana state law provided an exception, to apply where the other state’s policies would be seriously harmed by applying Louisiana law. Mississippi had a strong policy in favor of protecting the subcontractor’s worker — and that policy carried the day. The lesson here for companies working across state lines — or hiring out-of-state companies to work in their home states — is to check carefully beforehand to be sure that protective measures like “statutory employees” really will work. What goes on in Vegas stays in Vegas … but what goes on at home sometimes doesn’t really travel well.

Does this make conflict of laws clear to you? We thought so ...

Does this make conflict of laws clear to you? We thought so …

Cain v. Altec Industries, Inc., Slip Copy, 2007 WL 1814130 (5th Cir., Jun. 22, 2007). Francis Cain, a Mississippi resident, worked for Carson Line Service, Inc., a Mississippi corporation. Carson signed a contract with Washington – St. Tammany Electrical Co-operative (“WST”), a Louisiana corporation, under which Carson agreed to clear rights-of-way for WST’s power lines.

Working on this project, Cain was trimming trees along a power line in St. Tammany Parish, Louisiana, when his aerial truck boom came into contact with an energized WST power line. Cain was badly hurt.

Cain got workers’ compensation benefits under Mississippi’s workers’ compensation law through Carson’s insurance carrier, but that wasn’t enough. He and his wife decided to raise cain with WST, too, so they sued.

WST filed a third party claim against Carson for defense and indemnity. WST filed a motion for summary judgment claiming tort immunity based on the “statutory employer doctrine” in Louisiana’s workers’ compensation law. That law lets contractors agree that a subcontractor’s employees are “statutory employees,” which makes the contractor immune from liability to them. Cain argued that their case was an “exceptional case,” pursuant to La. Civil Code Article 3547. Mississippi law — under which no “statutory employee” exception existed for the companies to hide behind – should govern the claim, he argued. The trial court granted WST’s motion, concluding that Louisiana law applied.

The Cains appealed.

Held: Mississippi law, not Louisiana law, governed. The Court of Appeals first determined that the laws of Louisiana and Mississippi conflicted. It then found that under Louisiana law, a written contract between a principal and contractor recognizing the principal as the statutory employer of the contractor’s employees was valid and enforceable, making WST immune from civil tort liability. Mississippi law, on the other hand, didn’t recognize and wouldn’t enforce contracts giving tort immunity to a principal sued by a contractor’s employees unless the principal has the legal obligation under the Mississippi Workers’ Compensation Act to secure compensation for that contractor’s employees.

Why all this legal hair-splitting? An injured worker thought workers' comp was;'t enough ... and was looking for a deep pocket.

Why all this legal hair-splitting? An injured worker thought workers’ comp was;’t enough … and was looking for a deep pocket.

WST had no obligation under the Act. Thus, there was a substantive difference between Louisiana and Mississippi law, requiring a choice-of-laws determination. The Court said that the issue of whether WST was immune from tort liability was an issue of loss distribution and financial protection governed by La. Civ.Code article 3544. Under its mechanical rule, Louisiana law would apply because, at the time of the injury, Cain, who lived in Mississippi, and WST, a Louisiana corporation, were domiciled in different states, and both the injury and the conduct that caused it occurred in one of those states, that is, Louisiana. Thus, the Court said, WST would be entitled to the statutory employer tort immunity afforded it under Louisiana law.

However (and this was the big “however”), article 3547 also holds that where “from the totality of the circumstances of an exceptional case, it is clearly evident under the principles of Article 3542, that the policies of another state would be more seriously impaired if its law were not applied to the particular issue …” the law of the other state will apply. The Court ruled, after comparing the policies and interests of both Louisiana and Mississippi, it was clear the policies of Mississippi would be more seriously impaired if Louisiana law were applied to this dispute than would Louisiana’s if Mississippi law were applied.

Consequently, the Court said, it would apply Mississippi law to this dispute. Thus, WST was not immune from suit.