Cases from November 2015

Case of the Day – Monday, November 2, 2015


The first rule of plaintiffs advocacy ... look for the deep pockets.

The first rule of plaintiffs advocacy … look for the deep pockets.

Mr. Spano was a municipal employee, detailed to haul away debris left by a tree trimming company that had been hired by the village government to trim trees along a street.  A fellow municipal employee – using a village front-end loader – dropped a log on Spano, injuring him.

Quick, legal scholars – whose fault was it Spano was hurt?  Could it be the village worker whose ham-handed running of the loader had caused the log to fall on Spano?  Could it be the village manager, who had let an unqualified worker run some dangerous heavy equipment?   Perhaps the Village itself, for not budgeting enough to buy a decent front-end loader or staff up the Street Department so that Spano had more help?

C’mon, you would-be lawyers.  We need to be creative here.  The real culpable party, according to Spano’s lawyers, was none of these.  Instead, it was the tree-trimming company.  Of course!  It had cut the logs too large, so large that it was too hard for the front-end loader to handle.

At first, this notion may seem puzzling.  But not to a good plaintiff’s attorney.  The back story here, of course, is that a patchwork of well-intended New York laws (and may God save us from well-intended laws) made it impossible for Spano to successfully sue his employer or, for that matter, his fellow workers. It wasn’t so much that anyone entertained the notion that the private tree-trimmer, Northwood Tree Service, was negligent.   No one really thought that.  However, Northwood was the sole party at the scene that wasn’t immune to a lawsuit.  Thus, it wasn’t just the deepest pocket, it was the only pocket.

Of course, Spano also could have sued the front-end loader manufacturer for making a machine that couldn’t safely pick up a big log, or the chainsaw manufacturer for negligently making chainsaws that cut big pieces instead of small pieces, or even Starbucks for putting too much caffeine in the front-end loader operator’s latte. With lawyers this creative, the list could be endless.

lawyer-cartoon140402The court thought so, too. It held that Northwood owed no duty to Mr. Spano simply because it had a contract with the Town. Even if it did, it was hired to cut down a tree, and that’s what it did. Spano’s attorney could see where the case was heading and tried to amend his way out of it, but the Court said where the complaint was palpably without merit and the amendment not sufficient to fix the problem, pulling the plug on the whole case was the only humane thing to do.

Spano v. Northwood Tree Care, Inc., 852 N.Y.S.2d 289, 48 A.D.3d 667 (N.Y.A.D. 2 Dept., 2008). Spano was injured while performing tree debris removal for his employer, the Town of Mount Pleasant, which contracted with Northwood Tree Care to cut down a tree. The Town provided its own employees to haul the logs away. When one of Spano’s coworkers attempted to pick up a particular log with a front-end loader, the log — which was too big for the bucket — fell on Spano’s ankle.

And how big was the log?

And how big was the log?

Spano said Northwood Tree Care’s employees negligently created unreasonably large and unmanageable logs for Town employees to haul away. He sued Northwood Tree Care, seeking to recover damages for injuries suffered as a result of the accident. The trial court granted summary judgment for Northwood Tree Care, and Spano appealed.

Held: The suit was properly dismissed. Northwood Tree Care established that it did not owe a duty of care to Spano by virtue of its contract with the Town, and in any event, the Town properly performed its obligations. The trial court also correctly denied Spano’s cross motion for leave to amend the complaint. While leave to amend a complaint shall be freely given under the rules, the Court said leave may be denied where, as here, the proposed amendment was palpably insufficient or patently devoid of merit.


Case of the Day – Tuesday, November 3, 2015



vote151103It’s election day.  Time to vote against that low-life tax-and-spend coddler of the rich, ol’ what’s his name. Or his opponent. Or you can write us in if you like.

In honor of the day, we offer you something a little different — a tree law case about elections. In a hard-fought Minneapolis Park Board election in 2005, a challenger’s campaign literature asserted the incumbent was not sufficiently anti-Dutch Elm disease (and other assorted smears). What? You didn’t know that it was possible to be squishy soft on Dutch Elm? Neither did we.

The incumbent cried foul, claiming that the challenger had lied. We were shocked, shocked, to hear a suggestion that a candidate lied on the hustings. Who’s ever heard of such a thing?

It seems Minnesota election law draws a line in the sand. And the Court agreed that the administrative decision fairly drew a distinction between opinion — such as “my opponent doesn’t do enough to mulch trees” — and fact — i.e., “my opponent’s plan is to turn beavers loose on the Park’s oak trees!”

Shocked, shocked, indeed ...

Shocked, shocked, indeed …

So, boys and girls, run for office if you will. But play fair!

Fine v. Bernstein, 726 N.W.2d 137 (Minn.App., 2007). Jim Bernstein was a candidate in the November 8, 2005, election for the Minneapolis Park and Recreation Board. Bob Fine, the incumbent, was first elected to the Park Board in 1997 and was re-elected in 2001. Fine had served as Park Board president since 2002. As president, he did not serve on any Park Board committees. During his campaign, challenger Bernstein distributed flyers and published campaign advertisements.

Bernstein’s flyer compared his positions to Fine’s positions on seven park-related issues. Three of the claims were

(1) More funding for speedy removal of trees infected by Dutch Elm disease and replant new trees? – Doesn’t    Support.

(2) Provide superintendent with a $500,000 slush fund? – Yes!

(3) Fund and finish Lake of the Isles restoration? – Not a priority.

Fine filed a complaint with the Minnesota Office of Administrative Hearings, alleging that Bernstein violated the Minnesota Fair Campaign Practices Act by preparing and disseminating campaign materials without a disclaimer and containing false statements. After an evidentiary hearing held the day before the election, Bernstein’s newspaper advertisement and three statements on the flyer violated the Minnesota Fair Campaign Practices Act. Bernstein was fined $800 for the violations. He appealed.

lies151103Held:  Lies! Damn Lies! Statistics!  The Court found that substantial evidence supported the Office of Administrative Hearings’s conclusions.  The Court noted that a violation of the statutory prohibition on false campaign material requires a finding of both a false statement and actual malice or reckless disregard.  While statements criticizing official conduct do not lose constitutional protection merely because they are criticisms and effectively diminish an official’s reputation — and the First Amendment protects expressions of opinion — not everything is opinion just because the speaker says it is.

The Court said that four factors are used to distinguish a protected statement of opinion under the First Amendment from an actionable statement of fact: (1) a statement’s precision and specificity; (2) a statement’s verifiability; (3) the social and literary context in which the statement was made; and (4) a statement’s public context.  Here, Bernstein’s statement that park board incumbent Fine did not support more funding for speedy removal of trees infected by Dutch Elm disease and replanting, was a false fact rather than a statement of opinion. Although Bernstein argued he had meant “more funding” to mean more additional funding than the Park Board staff had recommended. The Park Board records showed that Bob Fine fully supported $1,800,000 in increased funding over two years for the project, and a reasonable person would have understood that Bernstein was referring to Fine’s support of additional funding.

Bernstein’s statement that Fine supported providing the park superintendent with a “$500,000 slush fund,” also was a false fact rather than a statement of opinion. Fine supported a budget authorizing superintendent to spend up to $50,000 without park board approval, but the fund was never authorized, and Fine did not support a “slush fund,” as a reasonable person understands that term. Finally, Bernstein’s assertion that Fine did not see an island restoration project as not a priority was a false fact rather than a statement of opinion. The evidence showed that Fine voted in favor of giving the project the highest priority level and that he attempted to obtain additional funding through his membership on the city board of estimate and taxation. The Court found that Bernstein either knew the statements were false, or he was recklessly disregarded checking into whether the statements were false. The $800 fine was appropriate.

By the way, Bernstein lost.


Case of the Day – Wednesday, November 4, 2015


oopsMr. Harper accidentally cut down 70 trees on Ms. Dumas’ property, thus markedly improving his view. Oops!

The more skeptical among us think that cutting one Dumas tree would have been an accident, cutting down a few would be tragedy. But cutting down 70 of ‘em, and coincidentally achieving the better view Mr. Harper coveted … well, that sounds like enemy action.

The Connecticut court is considerably more credulous than are we. The judge bought the notion that Mr. Harper and his woodsmen goofed, but pondered long and hard about how to figure the damages. In a weird inversion of schadenfreude, Ms. Dumas argued her damages should be measured by the value that Mr. Harper derived from his better view. The Court rejected that.

Instead, it held, the measure of damages is either the value of the timber or the diminution in value of Ms. Dumas’ place. Harper said that the trees he accidently lopped weren’t ornamental, so the only damage is about $1,000 worth of debris (thus proving that while he couldn’t identify a property line, old Mr. Harper didn’t lack for chutzpah).

schaden141031The Court disagreed. The trees weren’t strictly ornamental, but that was their purpose, regardless of Mr. Harper’s sad attempt at speciesism. The damages should be measured by the cost of repair, the Court said, and the repair will cost $16,000.

Careful testimony by Ms. Dumas’ expert was crucial to establishing her damages, and arborists and landscape professionals should consider how plenty of detail can persuade a court to side with an expert’s report. For the same reason play-by-play people keep a color commentator near at hand, an expert should tell a story that’s not only accurate and complete, but interesting as well.

Dumas v. Harper, Not Reported in A.2d, 2008 WL 496558 (Conn.Super.Ct., Feb. 6, 2008). Yvon Dumas claims that Emery Harper and his agents entered on her land without permission and cut down about seventy trees. Dumas claimed trespass, and sought damages and treble damages pursuant to Connecticut law, and other equitable relief. The matter was tried to the court.

Based on the evidence, including a site inspection, the court found that Harper and his minions cut down about 70 trees, resulting in the area looking unsightly, with tree stumps and branches and debris strewn about. The Court found that Harper’s trespass was the result of a mistake.

Nothing left but a stump field ...

Nothing left but a stump field …

Dumas introduced evidence of the value of the “view” to Harper with the trees on her property cut down. But the Court ruled that the value of any view to Harper was not the measure of damages, but rather the damages were either the market value of the tree once cut down, or the diminution in the market value of Dumas’ property caused by the cutting. Harper argued that the only measure of damages the court can award pursuant to Connecticut General Statute § 52-560 was the market value of the 70 trees as severed from the soil, because the trees in question were neither ornamental nor shade trees. The Court disagreed, holding that while the trees were not ornamental trees as such, the evidence was that they had ornamental value insofar as their removal rendered that portion of Dumas’ property unsightly. It would make no sense, the Court said, for the damages to be limited to the value of the trees as severed from the realty. The damages to be awarded to Dumas should be based on the reduction in the pecuniary value of the land because of the cutting.

The Court found that the diminution in value to the Dumas property should be measured by the cost of cleanup and screening the area with new trees. The Court accepted the expert opinion of Dumas’ landscape consultant, who testified that the work would take a week or more and would cost $9,180 for labor and $6,000 for new trees.


Case of the Day – Thursday, November 5, 2015


lawsuit151105The Walls never imagined that when they bought the overgrown half-acre next to the old church that they were buying boundary trouble. But as soon as Mr. Wall started clearing the trees and brush, the Church complained he was encroaching on their land.

Being a careful kind of guy, Mr. Wall stopped until he could have an expert check it out. It turned out he wasn’t on the Church’s land, so he kept clearing the land. The Church sued, arguing that while maybe it was the Walls’ land, the Church had acquired it over the years by adverse possession.

The Walls moved for summary judgment, asking the trial court to throw the Church’s case out because there were simply no facts supporting the Church’s claims. Part of the Walls’ claim was that the area was so overgrown, it would have been impossible for the Church to have possessed the disputed land.

When a party files for summary judgment, it is incumbent on the other side to show with affidavits and other documentary evidence that genuine questions of fact exist. Here, the Church opposed the Walls’ motion with three affidavits of long-time members that seemed to be pretty much “cookie-cutter” claims that the Church had openly, continuously and hostilely possessed the disputed land for years.

The trial court wasn’t impressed: it threw out the affidavits because the witnesses didn’t adequately describe the fence or claim they were familiar with the boundaries. The Court of Appeals, however, reversed – it found that the affidavits were detailed enough to show that a real question existed whether the Church had possessed some of the Walls’ property.

But then on rehearing, the Court reversed its own reversal, holding that the affidavits permitted two equally reasonable inferences as to whether the fence was located on the neighboring landowners’ property. That being the case, the Court said, the affidavits did not create a genuine issue of material fact warranting submission of the case to the jury. Someone could only speculate or guess whether the fence was located on the neighboring landowners’ property or on the church property.

cutter151105The moral to the story: it’s never a good idea to file conclusory affidavits. Detail is good, and the more facts you can aver, the better. Here, the Church’s lawyer wrote some mirror-image affidavits that were short enough on fact and long enough on conclusion (and confusion) that the Church got its case tossed.

Springfield Missionary Baptist Church v. Wall, 993 So.2d 469 (Ala.Civ.App. 2008). Springfield Missionary Baptist Church owned land next to a half-acre parcel owned by Robert and Melissa Wall. Robert began clearing the land when the Church contacted him, contending that he had torn down a boundary-line fence and some trees on Church property. Concerned about the allegation, he double-checked the boundary line and determined that he had not crossed it. He then continued with his clearing.

The Church sued the Walls to quiet title to a portion of the Walls’ property. The Walls moved for a summary judgment, arguing that the Church’s deed did not give it title to the disputed strip of land, as the Church had alleged in its complaint, and that, even if the Church was arguing that the fence the Church claimed had been destroyed had encroached onto the Walls’ property such that it could claim adverse possession of a portion of the Walls’ property up to that fence, neither of the surveyors who had surveyed the properties and determined the boundary line had indicated an encroachment of any kind on either survey.

The Walls also argued that their property had been “overgrown” and heavily wooded at the time it was purchased in November 2005 and that, because it was in such a condition, no part of it had been susceptible to being used in a manner that could establish adverse possession of any part of the property. The Church countered that the fence that the Walls had destroyed had served as a boundary line between the two properties. It said it had used the property up to the fence as a parking lot and that it had used the area up to the fence for more than 60 years, thus establishing adverse possession of the disputed “strip.”

The Church submitted the affidavits of three long-time church members. The nearly identical affidavits two of them said they had been members of the church since 1928 and 1934, respectively. Both said that the Church has claimed ownership the property encompassed by the legal description set out in the 1995 survey, and the Church had in continuous, actual, open, notorious, and peaceful possession of said land from at least the year 1928 to the present time. Regarding the fence, they both said it had been located on the property as long as they could remember. A second affidavit executed in opposition to the Walls’ motion for a summary judgment said the Church had been in its present location for over 20 years and that she has been a member of the church for over 20 years. The third member’s affidavit said the old fence that was removed by [the Walls] had been in place as long as [I] can remember and served as the boundary line.” According to her, “the church parking lot went all the way to the fence line,” and that she had walked the boundary line marked by the fence many times.

The trial court struck the affidavits submitted by the Church on the grounds that the affidavits only stated conclusions regarding adverse possession instead of making statements of fact that would support a conclusion that the Church had adversely possessed the disputed property. It held that the affidavits failed to adequately describe the fence and because the affiants failed to testify that they were familiar with the legal boundary line of the property. The trial court’s judgment, in addition to striking the affidavits, determined that the church had failed to provide substantial evidence of an encroachment on the Walls’ property.

The trial court granted summary judgment in favor of the Walls.

The Church appealed, arguing that it presented substantial evidence creating a genuine issue of material fact and thus presented sufficient evidence to preclude the entry of the summary judgment.

Answer: The part where you claimed to the neighbors' property.

Answer:  The part where the church said to the Walls “thou shall not clear your property because it really belongs to us.”

Held: The Court of Civil Appeals reversed the trial court in a decision in September 2007, but then, in January 2008, reversed itself, upholding the trial court. The Court of Appeals ultimately held that the summary judgment affidavits submitted by church members did not present solely conclusory statements so as to warrant striking the affidavits in their entirety. However, the affidavits didn’t create a controversy that required the case to go to the jury. The affidavits permitted two equally reasonable inferences as to whether the fence was located on the neighboring landowners’ property, leaving a fact finder to only speculate or guess whether the fence was located on the neighboring landowners’ property.

The Court observed that it was only where evidence points equally to inferences both favorable and unfavorable to the party moving for summary judgment that it lacks probative value, and its use to support one inference more than another, when in fact it will support both with equal plausibility, becomes mere conjecture and speculation.


Case of the Day – Friday, November 6, 2015


clutch151106It’s an awful thing to see two insurance companies, toe to toe, fighting each other to the death … Well, maybe that’s an overstatement, but today’s case does pit two insurance companies against each other. One insured an engineering firm against professional negligence (malpractice), while the other that insured the company against everything else. And you can bet that they were arguing over who would get the honor of picking up the check.

Compare it to a doctor’s office: if you doctor cuts off your ear when he or she was supposed to be curing your eczema, that would be covered by the professional insurer (assuming a jury thought it might be malpractice). If after you get the ear cut off, you slip and fall on a wet floor while paying, the doctor’s general insurer would cover your sore tush (financially, of course).

The engineering firm, an outfit named Czop/Specter, Inc. (pronounced “czop-specter”), had a contract with the Commonwealth of Pennsylvania to inspect its highways, and — when it found a dangerous condition — to schedule crews to fix it. Czop/Specter had an employee whose credentials were approved by PennDOT, who took special training in highway standards, and then performed the inspections. When poor Mr. Cuthbertson (just your average motorist) was hurt by some driver who blew through a stop sign, his lawyer — who had no interest in committing legal malpractice — sued everybody. Claiming that the driver who hit his client couldn’t see a stop sign obscured by trees and foliage, Cuthbertson included the engineering firm Czop/Specter as a defendant in the suit, claiming that Czop/Specter should have identified the obscured sign and had the trees trimmed. Czop/Specter’s insurance companies were fighting over whether the negligence that the plaintiff alleged was covered by the professional liability policy (the cut off ear) or the general policy (a slip on the wet floor).

The insurers sued in federal court, asking it for a declaratory judgment – simply an order from the court determining whether any damages that might be awarded because of any negligence should be paid by the professional liability insurer or general insurer. The professional liability insurance company claimed that the allegedly negligent inspection wasn’t a professional service, but instead could have been performed by anyone. The general insurer argued the liability wouldn’t belong to it, because its policy specifically excluded inspections from covered acts. The court said that the employee who performed the inspections had to be approved beforehand by PennDOT, had to complete special training and — although not an engineer himself — had other specialized education in herbicide application which was necessary for the position. The court’s conclusion: you don’t have to be a doctor or lawyer to provide professional services.

obscure151106Is there a lessons here? The court seemed to suggest that because the claimed negligence didn’t fall under one policy, it necessarily had to fall under the other. But that ain’t necessarily so. It’s entirely possible that Czop/Specter could have found itself being sued for negligence on a matter that no one ever contemplated — a passenger in a car hit because of an obscured sign because of an untrimmed tree because of a negligent inspection — one that was covered by neither policy. A lesson for arborists and tree specialists. You’d be wise to carefully read those boring, tedious, incomprehensible policies.

Lumbermens Mut. Cas. Co. v. Erie Ins. Co., 2007 WL 2916172 (E.D.Pa., Oct. 21, 2007). Donald Cuthbertson, Jr. was injured in an auto accident when another driver drove through a stop sign and collided with the car in which Cuthbertson was riding. Cuthbertson sued in state court, alleged among other things that the accident occurred because the driver did not see “an obscured and otherwise difficult to observe stop sign … due to a combination of factors, including tree branches, vegetation, bushes, brush and grass which obstructed visibility of eastbound drivers west of the stop sign.”

Czop/Specter, Inc., held a contract with the Pennsylvania Department of Transportation to perform inspections on the highway and to schedule any work required as a result of the discovery of hazardous road conditions resulting from overgrown vegetation. The inspection and scheduling services were performed by Czop’s employee, David Riley. In his complaint, Cuthbertson asserted that Czop was negligent in the performance of the contract.

Lumbermens Insurance provided a defense to Czop under the terms of an Architects and Engineers Professional Liability Policy that covered claims “arising out of a wrongful act in the performance of ‘professional services’.” Professional services were defined as “those services that the insured is legally qualified to perform for others in the insured’s capacity as an architect, engineer, land surveyor, landscape architect, construction manager or as defined by endorsement to the policy.” Lumbermens claimed that Erie Insurance Exchange — which insured Czop against general claims — had the obligation to defend, because the inspection services weren’t “professional services.” Erie’s policy contains an endorsement excluding from coverage “damages due to any services of a professional nature, including but not limited to: … supervisory, inspection, or engineering services.” Erie argued that the services performed by Czop through Riley constituted supervisory and inspection services and, therefore, the claim is excluded from coverage under the Erie policy. The battling insurers asked a federal district court to settle the dispute between them.

The plaintiff argued that the engineering firm inspector had ignored the risk ...

The plaintiff argued that the engineering firm inspector had ignored the risk …

Held: Lumbermens must defend Czop from the lawsuit, because the services were professional in nature. Under the law, a ‘professional’ act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.

In determining whether a particular act is of a professional nature or a ‘professional service’ a court must look not to the title or character of the party performing the act, but to the act itself. Riley’s services under the Engineering Agreement were “services of a professional nature” because the job entailed Riley’s inspection and supervisory services, which could not have been performed by just “anyone” and which were expressly excluded from coverage under the Erie policy. The Engineering Agreement required Czop to submit Riley’s credentials for approval by PennDoT for the position of “Roadside Development Consultant.” Riley was then trained by a PennDoT employee, and he attended mandatory seminars that prioritized needed work and roadside vegetation control. Upon completing his training, Riley conducted inspections in order to identify hazards, scheduled roadside work to be performed by others in accordance with PennDoT’s standards, and supervised the contractors performing the work.

The Court found that Riley could not have performed the job without the specialized training he received from PennDoT. Riley did not hold an engineering degree, although Czop is an engineering firm. Riley did, however, have specialized herbicide training which he used in connection with his inspection responsibilities under the Engineering Agreement. One need not be a doctor or a lawyer to render professional services. The job that Czop was paid for was the inspection and supervisory services performed by Riley. His failure to inspect and supervise the trimming of the vegetation that obscured the stop sign — if it happened — would constitute a “wrongful act in the performance of professional services” as that term was defined in the Lumbermens policy.


Case of the Day – Monday, November 9, 2015

Case of the Day, Monday, November 3, 2014


Fun ... but not that sturdy ...

Fun … but not that sturdy …

Carefree RV living. Groovin’ on the high life in your boyfriend’s parents’ backyard, roughing it in a Coleman camper … what fun.

At least it’s fun until an unexpected storm blows through, and a devastating derecho lays waste to your suburban Buffalo neighborhood (we’re guessing this was the well-documented Labor Day 1998 Derecho event). A branch broke off a tree in during the blow, and it fell on the camper, injuring Mary Simet and apparently writing the final chapter of her relationship with beau Randy Newman (no, not that Randy Newman).

Mary sued Coleman. Its stupid camper couldn’t absorb the impact of a massive tree branch in a windstorm, imagine that! And for good measure, Mary named her soon-to-be-ex-boyfriend and his parents, claiming that the branch was rotten and they should have cut it off, or not put the camper there, or warned her, or … or something. You know the drill. I’ve been injured. Therefore, someone’s gotta pay! And that’s when your lawyers start looking around for defendants who have insurance.

After the storm, of course, the Lehmans and their neighbors cleaned up. Mary complained that the cleanup spoiled her evidence, and the trial court, amazingly enough, agreed. But then it concluded that the evidence showed that any rot on the limb was not clearly observable, which let the Lehmans off the hook. And the whole derecho event was an act of God for which the Lehmans ­ including the Facebook-relationship-status “single” Randy – could not be blamed. dumped140404

Wow. Sued by your own girlfriend. Now that’s what we call getting dumped.

Simet v. Coleman Co., Inc., 839 N.Y.S.2d 667 (N.Y.A.D. 4 Dept. 2007). Mary Simet suffered catastrophic injuries during a severe storm, when a tree limb blew onto the camper in which she was sleeping with her boyfriend at that time, Randy Newman, who is the son of Linda Lehman.

The camper was owned by Linda and her husband, David, and was located in their back yard. The limb, located approximately 30 feet from the camper, broke during an unusually intense storm with high winds, known as a “derecho.” Mary and Randy were unaware of the approaching severe storms when they retired to the camper and, indeed, the first severe storm warning wasn’t issued until after the storms had passed through the area.

The Lehmans had no notice that the tree from which the limb broke was decayed or defective. Mary’s expert opined that, regardless of whether the tree appeared to be healthy, the Lehmans would have been advised by an arborist to secure the limb if they had retained an arborist to inspect their trees.

On the advice of their insurance carrier and as part of a neighborhood cleanup after the storm, the Lehmans removed the branch and the camper remains, after photographic evidence was collected.

Mary sued Randy and his parents, and then she moved to strike their answer based on their alleged spoliation of that evidence. The trial court struck the Lehman’s answer because of the spoliation, but then granted summary judgment for them anyway, and threw out Mary’s case.

Mary appealed, and so did the Lehmans.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998. “Derecho” is a term derived from Spanish for “straight,” and is characterized by intense straight-line winds.

Held: The Court of Appeals held that striking the Lehmans’ answer based on spoliation was not warranted, that the Lehmans were entitled to summary judgment, and the limb falling was an act of God that precluded Randy’s liability.

The Court held that the Lehmans removed the limb and camper not to frustrate the plaintiff’s but only after their insurer gave permission and as part of a neighborhood effort. They had carefully photographed it before disposing of it. At most, the spoliation of the evidence was negligent, and the remedy striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence deprives the moving party of the ability to establish his or her case. That wasn’t the situation here.

Furthermore, the Lehmans weren’t liable to Mary Simet. The Court held that they did not create the dangerous condition with respect to her presence in the camper, and did not have constructive notice that the tree from which the limb broke was decayed or defective. No one was on notice a storm was coming. The fact that an arborist, if one had been hired, might have advised the Lehmans to secure the limb is irrelevant. New York law requires that the manifestation of tree decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.

Finally, the falling of the tree limb during the storm was an act of God that precluded Randy’s liability, with whom Mary was staying in camper at the time.


Case of the Day – Tuesday, November 10, 2015



fence141104We often wish we recalled more from our real property law classes taken our first year of law school, much longer ago than we’re willing to admit. But we still recall our amazement when we first heard about the doctrine of adverse possession. It seemed at once shocking and exciting to us that an enterprising trespasser could move onto someone else’s land, and – if they squatted long enough – graduate from trespasser to owner for free. Is this a great country or what?

We shared beers with classmates and argued about which fact patterns would let the Freddy Freeloader family get title from Albert Absentee, just because the Freeloaders squatted on the property. In fact, we can still recall the property-law mantra: open, notorious, exclusive, continuous and hostile. AdvPosChklst040407That is, for whatever period the statute requires, commonly 21 years (but it can vary by state), the squatter must take possession of the land openly and notoriously. The possession must be continuous and unshared with anyone who actually has the right to the land. Finally, it must be adverse to the landowner’s interest. It seemed simple to us. What we didn’t know as law students but we know now is that judges generally don’t like giving away someone else’s property to a party claiming by adverse possession, and as a result, meeting the adverse possession test isn’t always that easy to do.

But it can happen. Today’s Arkansas case is a prosaic illustration of how this is so, and how courts sometimes shape the adverse possession tests to do justice. The Boyds and Robertses were friendly rural neighbors. For decades, both families had always thought that the old, run-down fence dividing their properties was the boundary. The Robertses and their predecessors had used all of the land up to the fence, planting grass, grazing cattle, maintaining the fence, clearing brush – even paying the taxes – for over 20 years. The Boyds accepted things the way they were. After all, everyone knew the fence was the boundary.

The time came when the Boyds had a survey done and discovered that everyone was wrong. The fence wasn’t the boundary. Instead, the Boyds owned a whole lot more property than they ever thought they did. Even after discovering that, they didn’t push the Robertses back, but instead let the fence stand. It was a good fence, and made for good neighbors.

proptug040407But finally, the Boyds made plans to sell their place to Winningham, someone who wasn’t so friendly. Winningham and the Boyds told the Robertses to move back to the property line, and Wimmingham tore down the old, overgrown fence. Litigation (not hilarity) ensued.

Generally, if a squatter “encloses” the land with a fence, the act of enclosure is enough to meet the “open and notorious” requirement for adverse possession. Here, Boyd’s buyer strove mightily to convince the court that the Robertses had never really possessed the disputed land, but the Court was not impressed. The old fence didn’t really “enclose” anything, but it made an “open and notorious” claim, even if the parties believed all along that the Robertses’ possession was righteous. It seemed hardest for the Court to swallow the fact that the Robertses had paid the taxes on the disputed land. Somehow, it just didn’t seem fair to pretend the Boyds had controlled it all along.

It might not have been a “good fence” … but it was good enough.

Boyd v. Roberts, 98 Ark.App. 385, 255 S.W.3d 895 (Ark.App. 2007). The Boyds purchased their property in 1981. At that time, a barbed-wire fence ran between their property and the property to the east, which was purchased by the Robertses in 1990. The Boyds had a survey performed in 2002 that revealed the true property line ran from 75 to 96 feet on the Robertses’ side of the barbed-wire fence. Pursuant to the survey, new boundary lines were marked and staked.

AdvPosCartoon040407During the summer of 2004, after seeing the markers, Mr. Roberts contacted Mr. Boyd and was informed that the Boyds were claiming the property according to the new markers. Mr. Roberts was further informed of the Boyd’s intention to sell the property to Winningham. The disputed area was used as a pasture and a hay meadow. Boyd had known for 22 years that the true line was east of the fence but did not know the true line’s exact position because of the drainage ditch. Instead, he had just gone by the fence.

The trial court found the Robertes to have possessed the disputed property by maintaining the fence, mowing as close as possible to the fence, and running horses on the disputed area. The Boyds and Winningham did not dispute that the Robertses had color of title and paid the taxes on their property or that the Robertses’ activities lasted more than seven years. The trial court found that the Robertses intended to adversely possess the property because they believed that they owned the property. It held that the title should go to the Robertses, and it even awarded them $511 for destruction of the fence. Winningham appealed.

Held: The award of the disputed property to the Robertses was upheld. Winningham argued that the disputed area was not enclosed because the fence surrounding it was degraded prior to its removal by Winningham. While the construction of a fence is not necessary to constitute adverse possession, fencing the disputed area is an act of ownership evidencing adverse possession.

We wish this shirt had been around when we were in law school - it would have made the doctrine of adverse possession much more real and understandable for us ...

We wish this shirt had been around when we were in law school – it would have made the doctrine of adverse possession much more real and understandable for us …

The fact that the fence may have been degraded did not necessarily mean that the property was no longer enclosed. The question was properly whether the enclosure, like other acts of possession and claims of ownership, was sufficient to “put the true owner upon notice that his land was held under an adverse claim of ownership.” Here, the Court said, the fence was visible enough so that all of the parties knew it existed when they purchased their respective properties. Furthermore, the parties undisputedly treated the fence as the boundary between their properties. On these facts, the Court said the property was sufficiently enclosed so as to provide notice that the Robertses were claiming the land up to the fence.

Winningham also argued that the Robertses did not actually possess the entire disputed area because a ditch prevented them from mowing all the way to the fence. But the Court found that because the disputed tract was enclosed, the Robertses’ possession of any part thereof is constructive possession of the entire enclosure. Winningham maintained that the Robertses’ possession was not “open and notorious.” The Court held that actual possession of real estate was notice to the world of claim or interest of one in possession, regardless of whether such claimant had on record a written instrument creating in him an interest or title. Notice of adverse possession could be inferred from facts and circumstances, such as grazing livestock, erection of a fence, or improving the land. Here, the Robertses’ activities were visible to all and were the type that would normally be done by one claiming ownership.

Title to the disputed area was transferred by the Court to the Roberts family.

Case of the Day – Wednesday, November 11, 2015


Hawkeyes151111Our attention is riveted on Iowa right now. First (and undoubtedly most important), the Hawkeyes are undefeated, now 9-0 in November. This is beyond amazing for a Kirk Ferentz team. And Iowa takes on the Golden Gophers this weekend in a great Midwestern rivalry, fighting for the coveted bronze pig.

Oh, yeah. It also seems that there are all manner of unpleasant people going around the state blathering negativism. No, no, no … we’re not talking about the Democratic and Republican candidates. Who can take a person crazy enough to want the job of President seriously anyway? We’re talking about something important … trees.

A loyal reader from the home of the greatest state fair in the land — and we need more of those, not just from Des Moines — wrote to ask some incisive questions about a rather boorish neighbor. Her questions had to do with the neighbor’s plans to bulldoze a driveway along a steep grade right next to our interrogator’s land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away his land.

We found four questions, not just one, in our reader’s letter. The first question: what about trees right on the boundary line? The second question: what about trees on our reader’s land, but with roots extending into the neighbor’s land? The third question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well? And last, if our reader has rights here, can she get an injunction to stop the harm before it starts, or is her only option to collect money damages later?

All good questions. Today we’ll answer the question about those boundary trees. Boundary trees are trees growing on the legal boundary between properties. In Iowa, the case governing boundary trees is Musch v. Burkhart. Musch valued the cottonwood trees growing along the boundary of his land and the adjacent property belonging to Burkhart; his neighbor, however, thought the cottonwoods were a pain in the neck. Musch had cut some of them down — after all, there was about 500 yards of the tree line — leading Burkhart to conclude that he, too, could cut some down, in fact, cut down as many as he wanted.

The court’s analysis was interesting, in that whatever agreement the prior owners of the two parcels — who had apparently agreed to some arrangement on ownership, care and use of the tree line — may have made had been lost to history. The court said that absent some evidence to the contrary, it would assume that trees growing on a boundary line were owned by the two owners as tenants in common because they grew on both properties and “drew sustenance” from both properties. It almost suggests that trees which are provably drawing sustenance from root systems spread pretty much equally from two properties must be owned by both owners as tenants in common.

The importance is that ownership of the tree by both property owners as tenants in common establishes what essentially is a 50-50 partnership with each partner given a veto. As tenants in common, both must agree before anything happens to the tree.

The other holding of significance in this case is that the court found that damage to trees is, for all legal purposes, irreparable harm. Nothing is irreparable in a geologic time sense. Trees that are destroyed can be replaced, and the seedlings becoming just as majestic in 50 or 100 years. The Musch decision takes a much shorter view, however, suggesting that if it will require a half century to heal, it’s irreparable harm.

That’s significant, because a showing of irreparable harm is necessary to obtain injunctions to stop tree cutting. Musch, like the rest of us, would rather keep the tree than get a few bucks later, after a century tree is gone. Maybe not gone forever, but to us humans, gone for a century might as well be.

So our reader has a couple answers here. If the trees are boundary trees, an Iowa plaintiff has the right to get an injunction to save them.

The coveted pig

The coveted pig

Tomorrow: what if the trees aren’t on the boundary? Saturday” can the Hawkeyes get the bronze pig back from Minnesota?

A lot of drama going on Iowa. Stay tuned.

Musch v. Burkhart, 12 L.R.A. 484, 83 Iowa 301, 48 N.W. 1025, 32 Am.St.Rep. 305 (S.Ct. Iowa, 1891). Musch lived next to Burkhart in rural Black Hawk county. His house, barn, and other buildings are on the northwest corner of his property. Burkhart’s south boundary line is the north boundary line of Musch’s place.

About 20 years before, Jeffers — who owned the land before Musch — planted a line of cottonwood trees for about 500 yards along the north boundary of his land. The trees had grown to a height of from 30 to 60 feet, and their trunks had diameters of from 1 to 2 feet. The average space between them is about three feet. Musch attached barbed wires to the north side of the trees, making a wire fence. Musch used the fence to contain his cattle and relied on the trees as protection from storm and winter winds to his buildings and stock.

Burkhart threatened to cut the trees down. He claimed he and Musch had an agreement to maintain a common fence, but that the trees had thrown out roots extending for many feet into his land; that by reason of such roots, and the shade of the trees, a strip of his land 50-65 feet wide, immediately north of the trees, was unproductive. Burkhart argued the trees were of no value to Musch and that he had a right to remove them. What’s more, Burkhart argued that Musch had cut down some of the trees originally planted there, and he should have a right to do the same.

The trial court found that the trees had value to Musch, but that their roots had damaged Burkhart. Clearly, they stood on the common boundary line. The trees were planted before Burkhart bought his land. The trial court wasn’t able to discern the nature of the agreement between the prior owners of the two tracts of land, but it nevertheless found for Musch, and enjoined Burkhart from cutting down the trees.

Burkhart appealed.

boundary151111Held: Musch was entitled to have the trees protected. The Court found that because the trees stood on and drew sustenance from both tracts of land, in the absence of a showing to the contrary, they were considered to be owned by the parties as tenants in common.

When one tenant in common destroys the subject of the tenancy, he is liable to the co-tenant for the damages he thereby sustains. A court, by injunction, may restrain one tenant in common from doing a serious injury to the common estate. While an injunction will not be allowed to restrain a trespass where damages are an adequate remedy, where the injury will be irreparable, an injunction is appropriate.

The Iowa Supreme Court held that the destruction of trees and shrubbery growing upon premises occupied by Musch would be, “in a legal sense,” an irreparable injury to him. The trees served to shelter and protect Musch’s buildings, and thus Burkhart could be enjoined from cutting them down despite the fact that their presence caused damage to his land.


Case of the Day – Thursday, November 12, 2015


bulldoze151112Yesterday, we tackled the first of several inter-related questions raised by an Iowa reader. She wrote that a neighbor planned to bulldoze a driveway along a steep grade right next to her land. She feared that the bulldozing would destroy root systems of hertrees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away her land.

We identified four questions in our reader’s inquiry. We tacked the first question yesterday, about trees that might be exactly on the boundary line, and we concluded that Iowa law would not let her neighbor take steps that would destroy them (such as wiping out the root systems) without our reader’s OK.

But that answer begs the question of what will happen to trees which are growing entirely on our questioner’s land but extend their branches or root systems onto the neighbor’s place. (The third question — what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well — and the final question about whether our reader could get an injunction to stop the harm before it starts, will be addressed tomorrow.)

The short answer to today’s question is found in the century-old case of Harndon v. Stultz. That decision adopted what years later would be called the “Massachusetts Rule,” specifically that a landowner has no right to judicial help in stopping an encroaching tree from his or her neighbors, but he or she may trim its branches and roots back to the property line. Under the rule of Harndon, it would appear that the neighbor could bulldoze out the root systems which have grown onto his land without liability.

But we’re not entirely satisfied that this would be the answer. Remember first that the plaintiff in Harndon complained that the trees in question were damaging her land, the roots tying up the ground and the trees shading what otherwise would be cropland. The court didn’t have a lot of sympathy for her, but it did recognize that she was suffering because the tree was just doing what trees are doing.

The United States been moving inexorably toward the Hawaii Rule, which provides a landowner judicial relief where the trees are nuisances, and not merely being trees. Witness the Virginia decision of Fancher v. Fagella, in which the tree was causing substantial damage to the plaintiff’s home. The obverse of this coin is illustrated in the question posed here: what happens when the neighbor is suffering absolute no damage whatsoever from the trees in question? As our reader explained it, the neighbor merely wants to bulldoze a road on a steep slope along a very narrow piece of property. During the bulldozing, it’s likely that root systems will be severed and trees badly damaged or killed.

Our suggestion that there may be more to it than a century-old case suggests isn’t that far off. A California decision already has held that a neighbor must act reasonably in exercising his or her self-help rights, and “reasonable” is expressed in terms of taking steps which are no greater than those needed to ameliorate the harm. Booksa v. Patel, 24 Cal.App.4th 1786, 30 Cal.Rptr.2d 241 (Ct.App. Div.1, 1994). And Professors Prosser and Keeton, in their seminal work The Law of Torts (5th ed. 1984) §57, say that a landowner has a privilege to make use of the land for his own benefit, and according to his own desires, which is an integral part of our whole system of private property; but it has been said many times that this privilege is qualified by a due regard for the interests of others who may be affected by it. The possessor’s right is therefore bounded by principles of reasonableness, so as to cause no unreasonable risks of harm to others in the vicinity.”

Remember, no one said our neighbor's roots are invasive.

Remember, no one said our neighbor’s roots are invasive.

In the case our reader has raised, it may well be that the time is ripe not to reverse Harndon v. Stultz, but rather to add to the body of law it represents by finding that a neighbor’s right of self-help is circumscribed by reasonableness. Under that standard, where a neighbor kills a tree by removing a root system, where the tree admittedly has caused no sensible harm to him, might be unreasonable.

It’s certainly something our reader’s Iowa attorney might want to consider.

Tomorrow:  What if the bulldozing causes landslides on our reader’s property?

Harndon v. Stultz, 124 Iowa 440, 100 N.W. 329 (S.Ct. Iowa, 1904). Harndon and her husband owned and farmed an 80-acre tract of land. Stultz had 160 acres just to the south of the Harndon farm. Many years before, the Harndons planted a willow hedge along the entire south line of the farm, and later, Stultz extended the hedge eastward. The Harndons claimed that Stultz had agreed with them to maintain the west half of the hedgeline and the Harnsons would maintain the east half. Some years later, the Harndons dug up the east half of the hedge, replacing it with a fence. Mrs. Harndon then demanded that Stultz do the same. Stultz refused, and she sued for an order finding the hedge to be a nuisance and requiring Stultz to cut it down. She argued that the willow had spread through the soil, and so much shade was cast by willows that it rendered a portion of the Harndons’ land unusable. As alternative, the Harndons asked that, if Stultz had no duty to remove the hedge, they be allowed to do so at their expense. The trial court dismissed the petition, and the Harndons appealed.

Tomorrow - Could our reader's neighbor cause a landslide?

Tomorrow – Could our reader’s neighbor cause a landslide?

Held:  The Court adopted what was essentially the Massachusetts rule years ahead of its time. Nothing in the law, the Court said, made it a defendant’s duty to cut down a hedge or tree simply because over a passage of time, the owner’s neighbor found the roots and the shade of the growing trees injured the productiveness of his land. The raising of trees, the Court held, is a legitimate use to which an owner may put his land. If the limbs of such trees overhang the land of a neighbor, he may cut them off at the line, and, if the roots penetrate the neighbor’s soil, he may dig them out, but that is the extent to which he may carry his objection.

The Court said that an adjoining property owner may cut off the overhanging branches of trees at the property line, and dig out the roots penetrating the soil on his land. However, that property owner is not entitled to compel the owner of the tree to cut it down, regardless of whether the care and maintenance was provided by the owner or by the adjoining property owner. On the other hand, the Court said, trees standing on the boundary line between lands of adjoining owners are the common property of both parties, which neither may destroy without the consent of the other. The Court upheld the trial court, but modified the decree to let the Harndons remove the hedge at their cost, based on Stultz’s statement at argument that she didn’t object to its removal.


Case of the Day – Friday, November 13, 2015


We're using the word

We’re using the word “sic” today … not as in “sic ’em” but rather in the classic Latin sense. But we’re thinking about football, too. Hence, the beautiful thematic illustration above.

Today, we consider the final issues raised by our Iowa reader, who wrote complaining that her neighbor planned to bulldoze a driveway along a steep grade right next to his land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away his land.

We identified four questions in our reader’s inquiry. We have addressed the questions about her neighbor’s damage to trees that might be exactly on the boundary line, as well as those located on her land but with roots crossing the boundary line. Today we address the final question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well. Could our reader get an injunction to stop the harm before it starts? It’s a cliffhanger.

No fear, lovers of legal drama, because Iowa (as well as most states) has accepted in one form or another the doctrine of sic utere tuo ut alienum non lædas, meaning “so use your own property as not to injure that of your neighbor.” The doctrine has been held to have limits that fall well short of your basic trespass to real estate — in today’s case, a landowner tried unsuccessfully to stop the property owner above him from sending additional drainage down a creek, eroding his banks. But the Court acknowledged that sic utere tuo ut alienum non lædas did exist, and was illustrated in the generally-accepted right of lateral support.

Bad things can happen when lateral support is lost.

Bad things can happen when lateral support is lost.

And that right may be what rides to the rescue of our Iowa reader. The right to lateral and subjacent support means that a property owner has the obligation not to remove soil or change grades in such a way as to take away lateral support to the soils of her neighbor. The Court said it isn’t a silver bullet — it applies only to activities along the property boundaries – but that may be enough for our reader.

Bulldozing an already steep grade, and removing root systems — which in all likelihood play a substantial role in stabilizing the slope — may well violate the other landowner’s duty to provide lateral and subjacent support.

So what to do? As we saw several days ago, the Iowa courts have taken a rational view of how much harm is irreparable — and showing irreparable harm is essential to winning an injunction — making get a court order stopping the bulldozing before it starts is entirely possible. Our reader’s local attorney probably will want to engage an expert who can examine the situation and provide a detailed, technical affidavit predicting the extent and permanence of the harm which could result from bulldozing the already significant slope.

Our reader mentioned that she was also checking the various administrative agencies to be sure that the permit process was being followed. Often, a lot of potential harm can be headed off by arguing the case before agencies that — with stricter and more detailed requirements — can hobble ill-conceived projects before they take flight.

A word of caution: we’re throwing out ideas left and right, but we’re not anyone’s lawyers here. There is no substitute for local boots on the ground, an attorney from the area versed in land use law. We trust that our reader, perhaps armed with some good ideas, will refer the matter to her local lawyer.

The Bronze Pig - who wouldn't bash heads together for 60 minutes of football over such a fetching trophy?

The Bronze Pig – who wouldn’t bash heads together for 60 minutes of football over such a fetching trophy?

Tomorrow: It’s Saturday. We’re watching Iowa vs. Minnesota for the coveted Bronze Pig.

Pohlman v Chicago, Milwaukee & St. Paul Railroad Co., 131 Iowa 89, 107 N.W. 1025, 6 L.R.A.N.S. 146 (Sup.Ct. Iowa 1906). The railroad had a track grade and bridge located near and above Pohlman’s property. Water traditionally drained off the Pohlman place through Poole Hollow, which went through a corner of the property. But the railroad decided to improve the flow of water around its grade by running a ditch of its own into Poole Hollow. The result was that more water flowed through the Hollow during rainstorms, and the flow was at a much more rapid rate. The fast-moving flow eroded Pohlman’s land, and he sued. In his action, he argued that the railroad company had damaged his real estate and violated the old doctrine of sic utere tuo ut alienum non lædas – which translates as “so use your own property as not to injure that of your neighbor.” The trial court granted a demurrer to the railroad, throwing the case for not stating a claim on which relief can be granted.

Pohlman appealed.

Held: The case was properly dismissed. Superficially, the Court acknowledged, the decision was clear. Lower property was obligated accept the flow of water discharged by the higher property, meaning that the increased flow through Poole Hollow was not a condition for which a court would grant relief. But, the Court halfway complained, “if this were all, it would seem that the case must be at an end. But counsel for appellant go farther and invoke the maxim sic utere tuo ut alienum non lædas — “so use your own property as not to injure that of your neighbor,” and insist that the case, in view of the peculiar circumstances, is brought within the operation thereof.”

The principle is that no property has greater right than the other, and that each owner is obligated to use his or her property in such a way as not to injure the property of his or her neighbor. The Court acknowledge that there existed a right of lateral and subjacent support, and the theory being advanced by Pohlman was that “to all intents and purposes the situation presents a case of the removal by an adjoining proprietor of the lateral support to the soil of his neighbor.”

bulldoze151113The Court acknowledged that the right was a natural one, and was predicated upon necessity. “As the term itself implies, it has relation to the support which in a state of nature the soil of one owner receives at the boundary line from the soil of his neighbor.” But, warned the Court, the doctrine could not be extended to embrace cases of trespass generally. “It goes no further than to inveigh against an interference within the zone of the natural support afforded by the soil conditions at the boundary line.” This case had nothing to do with boundary line support. Instead, the essence of the complaint was that by the accelerated flow of the surface water more soil had been carried away from the general surface of Pohlman’s land than otherwise would have occurred.

The point of the case is that a right of lateral and subjacent support exists, and — as of 1906 — that was about as far as sic utere tuo ut alienum non lædas extended.


Case of the Day – Monday, November 16, 2015


experience151116Ask a Cleveland Browns fan – experience really does matter. Grabbing the hottest college quarterback (Charlie Frye, Brady Quinn, Colt McCoy, Johnny Manziel) with zero NFL experience has not been Jimmy Haslam’s ticket to the Super Bowl.

Experience makes a difference. That’s a lesson we can take away from today’s case.

There’s another lesson, too, exemplified by the old criminal law adage that no defendant should ever trust his freedom to 12 people who are too stupid to know how to get out of jury duty. Part of that maxim is based in reality: despite the Constitutional promise of a “jury of your peers,” most trial attorneys know that the jury generally ends up overpopulated with government workers (who get time off with pay for jury duty) and retirees. Professionals, business owners and managerial types – to name a few – usually finagle their way out of the jury dock.

You're much more likely to get 12 confused jurors than you are to get angry ones ...

You’re much more likely to get 12 confused jurors than you are to get angry ones …

Historically, the facts found by the jury are virtually bulletproof. This is partly because tradition and the Constitution have sanctified the community judging concept represented by juries, and partly because the legal system has to have some method of deciding facts with some finality.

Nevertheless, social scientists tell use that there is wisdom in the crowd. So perhaps the jury is right more than it’s wrong. Perhaps it isn’t. Because the law accords such respect to the secrecy of jury deliberations, we may never know.

Today’s case, just handed down last week by the Maine Supreme Court, illustrates how carefully appellate courts parse jury findings. It’s quite common for the trial-court loser to complain on appeal that the jury findings were wrong. As the Maine Supreme Court makes clear to us, it’s quite uncommon for the appellate court to agree.

Back in spring 2011, Keith Anthony asked his neighbor, Paul Gagnon, to help him cut down a rotten tree. Both Keith and Paul were accomplished tree professionals. Paul used a chainsaw on the 30-inch trunk while Keith pushed on it with a Bobcat. Suddenly, the tree “exploded.” A falling limb knocked Paul unconscious and seriously injured him. (Despite the fact that Paul subsequently died during the litigation, he did not succumb to injuries from the tree.

Paul sued Keith for negligence, arguing that Keith should have warned him that the tree could explode, and that he shouldn’t have been pushing on the tree with the skid-steer. In his answer to Paul’s complaint, Anthony argued that Paul was negligent, too, raising what’s known as the affirmative defense of comparative negligence. The trial court jury found that both Keith and Paul were negligent, and that Paul was at least as negligent as Keith in causing his own injuries.

explo151116The appellate courts do everything possible to tip the scales in favor of the jury. It’s standard of review – the deference the courts of appeal will give the jury’s product – is to uphold a jury’s verdict if, when viewed in the light most favorable to the winning party, there is any credible evidence in the record to support the verdict. This means that if five witnesses said Keith drove the Bobcat over Paul’s foot, but one witness said that Paul deliberately stuck his foot under the wheels, the jury’s decision to go with the one witness and reject the observations of the other five will be upheld. Appellate litigation is like watching those hapless Browns get outscored 30-0 by Pittsburgh for the first 59:30 minutes of the game, only to have Cleveland score a single field goal in the final thirty seconds and win.

Here, the Court decided that no one expected the tree to explode. Shortly after the accident, Paul admitted that he didn’t think Keith was doing anything with the skid-steer that contributed to the tree breaking or falling too soon. Keith corroborated the accidental nature of the event, testifying that the tree “just dropped suddenly without warning or anything.”

The Court went out of its way to note that both Paul and Keith “had substantial experience cutting trees and working in the woods, and both were aware of the rotted condition of the tree they were working on.” A Maine arborist testified that using the Bobcat to try to bulldoze the tree over while someone else sawed at it was, charitably put, a stupid idea. Under the circumstances, the Court said, both Paul and Keith should have known better than to try to use a skid-steer to push the tree over.

As for the jury, the Court reasoned that from the evidence, a jury could have concluded that Keith was negligent in operating the Bobcat; (2) either Keith or Paul or both were negligent because they should have known that the way they were cutting down the tree was dangerous; or (3) no one was negligent, and the tree “explosion” was just one of those things. Because the jury could have gone any of several ways on the verdict, its conclusion that both of the guys were knuckleheads was supported by the record.

In other words, there was enough evidence in the record for everyone. When that’s the case, the jury’s decision as to which version to credit stands.

And if you’re experienced enough to know better, a jury is going to hold you to your experience.

A Bobcat of the type that Keith misused ...

A Bobcat of the type that Keith misused …

Estate of Gagnon v. Anthony, Case No. 2015 ME 142 (Supreme Court of Maine, Nov. 10, 2015). Keith Anthony asked his neighbor, Paul Gagnon, to help cut down a rotted tree at Anthony’s place. Both men were experienced woodcutters. The tree to be felled was about thirty inches wide with a large limb growing out of it. Gagnon used a chainsaw to make a wedge cut in the tree below the limb while Anthony used the bucket of his Bobcat skid-steer loader to push the limb away from the house and a nearby sapling. As they performed their respective tasks, the tree “exploded” and the limb fell on Gagnon, injuring him. Gagnon sued Anthony, alleging that Anthony failed to warn him about the possibility that the limb could snap because of the rotted condition of the tree, and also alleging that Anthony was negligent in his operation of the Bobcat. Anthony raised an affirmative defense of comparative negligence under 14 M.R.S. § 156 (2014).

A trial jury found that both Anthony and Gagnon were negligent and that Gagnon was at least as negligent as Anthony in causing his own injuries. The Estate’s motion for a new trial was denied, and this appeal followed.

Held: The jury’s verdict was upheld. The Court said it would uphold a jury verdict if, when viewed in the light most favorable to the prevailing party, there is any credible evidence in the record to support the verdict. Gagnon, as the movant, was required to show that the jury verdict was so manifestly or clearly wrong that it is apparent that the conclusion of the jury was the result of prejudice, bias, passion, or a mistake of law or fact.

jury151116The Maine Supreme Court said it was clear from the record that neither man expected the tree to “explode” as it had. In a recorded statement that was admitted in evidence, Gagnon explained that the tree “broke way too soon, it should have never broke at that point.” In his statement, Gagnon placed no blame on Anthony, stating that he did not believe that Anthony was doing anything with the skid-steer that contributed to the tree breaking or falling too soon. Anthony corroborated the accidental nature of the event, testifying that the tree “just dropped suddenly without warning or anything.” Furthermore, the evidence showed that both Gagnon and Anthony had substantial experience cutting trees and working in the woods, and both were aware of the rotted condition of the tree they were working on. The Court dryly observed that “it would not be unreasonable to infer from this circumstance that both men knew, or should have known, the risks associated with cutting the rotted tree, and both should have known that the plan to use the Bobcat to fell that tree was ill advised.”

The Court said that the evidence was sufficient for the jury to decide any of three ways. The jury could have found that (1) Anthony was negligent in his operation of the Bobcat; (2) either Anthony or Gagnon or both were negligent because the dangerousness of the method they undertook to fell the rotted tree should have been obvious to each; or (3) neither of them was negligent, and the limb falling onto Gagnon was simply an unexpected accident. Where the causal fault of both parties is in dispute, the Court said, “it is the sole prerogative of the jury to determine the comparative degrees of fault of each of the parties to a negligence action.”

Although the record did contain evidence that Anthony accepted some responsibility for Gagnon’s injuries, and although a licensed Maine arborist testified that pushing a tree with a skid-steer is “not the proper way to do it,” the Court ruled that there was sufficient credible evidence in the record to support the jury’s finding that Gagnon was at least as negligent as Anthony.

Thus, the trial court didn’t abuse its discretion in denying Gagnon’s motion for a new trial.


Case of the Day – Tuesday, November 17, 2015


We started the modern, bells-and-whistles version of our blog two years ago.

Since then, we’ve blogged on hundreds of cases and posted thousands of news links.

Have some cake!




rottentree140408When a tragedy occurs, it’s all too common to look for someone to pay for it.  In today’s case, a young man, was left a quadriplegic when a healthy-looking tree standing along side a public highway fell without warning and struck his car. The trial judge was obviously moved by the sad story, and felt it his duty to open the state’s wallet.

The trial judge denied the Louisiana Department of Transportation and Development a free pass.  The judge recognized that a prior holding relieved the state from the duty to inspect all sides of a tree.  But he reasoned that the rule had been adopted in a case where a construction crew’s negligence had weakened the tree on the side away from the road.  The trial court here reasoned that this case was different: it was natural rot, and natural rot did require DOTD to inspect all sides of a tree.

Truly a distinction without a difference! Step back and consider the implications of this holding.  Besides the fact that why the tree was weakened is really not relevant to the danger it poses, the trial court’s ruling would mandate incredibly costly and time-consuming inspections.  A state — even Louisiana — has a lot of highways to inspect.  In Louisiana’s case, it amounts to nearly 17,000 miles of road, and a lot of trees.  The costs to the taxpayers of a tree-by-tree inspection would be staggering.

A perfect illustration of a distinction without a difference.

A perfect illustration of a distinction without a difference …

The Court of Appeals made short work of the trial judge’s higher “duty.”  It held that the law was clear.  Where the tree appears healthy — like the one that fell on the victim — the state’s duty could be discharged in a drive-by inspection. No matter why the tree was rotten.

Walker v. State, Dept. of Transp. and Development, 976 So.2d 806 (La.App. 2 Cir., 2008).   Nathaniel Walker was a passenger in a vehicle being driven by Dannie Evans on Louisiana Highway 71, when a large oak tree fell on the car.  Nathaniel was left a quadriplegic, albeit one with a good lawyer.  He sued Dannie, Allstate Insurance and the State of Louisiana Department of Transportation and Development.

Among other things, Walker alleged the oak tree that fell on the vehicle was on the highway right-of-way in violation of highway safety regulations, that DOTD had prior knowledge that the tree needed to be removed and that DOTD failed to inspect the right of way.  DOTD moved for summary judgment, arguing that Nathaniel couldn’t any facts in support of his allegation that DOTD had prior knowledge that the tree needed to be removed. DOTD supported this claim with an affidavit from one of its maintenance superintendents who had conducted an inspection of the area in question two weeks before the mishap.  The state agency argued that under the law, it owed no duty to motorists traveling on state highways to check for damage on all sides of trees that abut state roadways.  The trial court denied summary judgment to DOTD, because the damage to the tree in this case was a result of natural rot as opposed to third-party operated construction equipment. The trial court stated that despite the holding in a prior case –Caskey v. Merrick Const. Co. – the distinction as to how the tree was injured imposed a greater duty to inspect on DOTD.

DOTD appealed.

Held:  DOTD won, and Walker’s case was dismissed. The appellate court said in order to recover damages from DOTD, Walker had to prove that the state had ownership or control of the tree which caused the damage; the tree was defective (that is, it created an unreasonable risk of harm); the state had actual or constructive knowledge of the defect and failed to take remedial procedures within a reasonable amount of time; and the state’s failings led to the injurie Walker suffered.

Now this is a distinction without a difference ...

… as is this.

No one contested that DOTD had control over the rotten oak tree, that the rotten oak tree was defective, and that the rotten oak tree caused Walker’s injuries.  Instead, the Court held, the primary issue was whether DOTD had actual or constructive knowledge that the tree was rotten. The condition that caused the oak tree in question to fall was visible only on the back side of the tree, out of sight of DOTD inspectors who passed by on the road. There was no genuine issue as to the location of the rotten area in question, or whether the rotten area in question was observable from the roadway. Additionally, the photographs taken at the accident scene reveal that the oak tree was otherwise healthy, containing a full canopy of green leaves.

The Court said that DOTD’s duty to protect against the risk of a tree falling onto a highway required it to inspect for dead trees and remove them within a reasonable time. The state was not required, however, to inspect every tree that conceivably could fall on the road or to remove trees simply because they had the potential to fall onto the road.

In Caskey, the court held that DOTD inspectors had no duty to walk around all sides of the tree and check for damage, particularly when the tree is otherwise green and healthy.  The trial court in this case imposed a greater duty on the state than the law required.  The Court of Appeals ruled that the trial court’s incorrect determination – that a different duty exists when the defect results from natural causes as opposed to artificial causes – was a contradiction of the law, a distinction without a legal difference.


Case of the Day – Wednesday, November 18, 2015


Would you accept a release from any of these mutts?

Would you accept a release from any of these mutts?

There are those who say this is not the most opportune time to be talking about releases, with the President pushing to close Guantanamo prison right at a time when radical Islamic terrorists are somewhat in the news, slaughtering 129 people to underscore their rather peculiar worldview.  And far be it from us to inject ourselves into the tragedies of the day.  

The releases we want to talk about here have nothing to do with sweethearts pictured to the left.  Instead, we’re considering the kinds of prospective releases or liability waivers that are a part of our lives, from amusement parks and ski resorts to pools to dry cleaners to parking lots and hat checks. We get little tickets that have fine print on the back stating that by using whatever service we’re using, we agree that we can’t hold the vendor liable if anything goes wrong. Our fedora’s missing from the hatcheck?  Too bad. Our pants have a hole burned in them from being pressed? Maybe we can cut them off and make shorts. The roller coaster collapses and crushes us to death? Sorry, pal, guess this just ain’t your day, and tomorrow doesn’t look very good, either.

Certainly, such releases serve an important purpose, being crucial grease on the cogs of commerce. You can find websites that let you “roll your own” liability waiver form for whatever event you have planned with just a few clicks. But the proliferation of such releases has to leave us wondering – first, are all these liability waivers enforceable? And second, can we use prospective waivers in the arboriculture industry — such as “by hiring me to trim your tree, you release me of liability if I make it fall on your Yugo” — to absolve ourselves from liability?

A California court grappled with such a release when a developmentally disabled child drowned at a city-run camp for such children. The girl’s mother had signed a release from liability – parents sign those forms all the time, and whoever reads them? – but the trial court and the court of appeals held the release would not release the City from liability for gross negligence. The Supreme Court of California agreed, holding that an agreement to release future liability for negligence in recreational activities could not, as a matter of law, release the City or the employee from liability for gross negligence.

The case includes a detailed review of the history of such releases, and a rationale for determining which types of releases are enforceable, and which are not. Generally, a prospective release may not relieve grantee of any obligation to meet even a rudimentary standard of care. If Santa Barbara had written its release to relieve it of liability for simple negligence, the release probably would have been valid. But it wrote it too broadly, to release it from any negligence, even gross negligence or recklessness. That was too much for the Court.

Big pigs get slaughtered ... The takeaway - write your release to be reasonable, or a court may ignore all of it.

Big pigs get slaughtered … The takeaway – write your release to be reasonable, or a court may ignore all of it.

In other words, little piggies go back to the trough, but big piggies get slaughtered.

City of Santa Barbara v. Superior Court, 62 Cal.Rptr.3d 527, 41 Cal.4th 747, 161 P.3d 1095 (S.Ct.Cal., 2007). The City of Santa Barbara provided extensive summer recreational facilities and activities for children, including a camp for children with developmental disabilities called Adventure Camp. Katie Janeway, who suffered from cerebral palsy and epilepsy participated in the camp. Swimming activities were held on two of five camp days each week in a City swimming pool.

The application form for Adventure Camp included a release of all claims against the City and its employees from liability, including liability based upon negligence, arising from camp activities.

Katie’s mother signed the release in 2002, as she had in prior years. She also told the City about Katie’s disabilities, specifically that the girl was prone to seizures in the water, and that Katie needed supervision while swimming. The City knew the child had suffered such seizures in the past, and camp administrators took special precautions during the Adventure Camp swimming activities in 2002, assigning a special, trained counselor to keep Katie under close observation during the camp’s swimming sessions.

Pants came back from the cleaners with a hole? read the fine print on your claim ticket. There's probably a waiver there.

Pants came back from the cleaners with a hole? Read the fine print on your claim ticket. There’s probably a waiver in there somewhere.

Katie participated in the first swimming day at the 2002 Adventure Camp without incident. On the second swimming day she drowned. About an hour before drowning, Katie had suffered a mild seizure that lasted a few seconds. Her counselor observed the seizure and sent another counselor to report the incident to a supervisor. The supervisor said that the report never was received. Katie’s counselor watched her for 45 minutes following the mild seizure, and then — receiving no word from her supervisor — let Katie go ahead with swimming. Malong concluded that the seizure had run its course and that it was safe for Katie to swim. As Katie dove into the water for the second time that day, the counselor momentarily turned her attention away from Katie. When she looked back no more than 15 seconds later, Katie had disappeared. After the counselor and others looked for Katie for between two and five minutes, an air horn blew and the pool was evacuated. Lifeguards pulled Katie from the bottom of the pool, and she died the next day.

Katie’s parents filed a wrongful death action alleging the accident was caused by the negligence of the City. Relying upon the release, the City moved unsuccessfully for summary judgment. Failing in this, the City appealed, and the appellate court denied the petition, holding the agreement was effective and enforceable insofar as it concerned liability for future ordinary negligence, but concluding that a release of liability for future gross negligence is generally unenforceable, and the release form did not validly release any liability.

The Supreme Court granted review.

Held: The City’s release was invalid to extent it purported to apply to future gross negligence. The Court observed that “ordinary negligence,” an unintentional tort, consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. “Gross negligence,” on the other hand, is a want of even scant care or an extreme departure from the ordinary standard of conduct. A signed release absolving the City and its employees from liability for “any negligent act” in its operation of recreational program for disabled children violated public policy and was thus unenforceable, to the extent it purported to release liability for future gross negligence. Therefore, the Janeways were not precluded from pursuing wrongful death action.

Sure you can impose your waiver in the fine print ... but it's not just boilerplate. Use care in drafting it, or - better yet - spend a little money to have a lawyer do it for you.

Sure you can impose your waiver in the fine print … but it’s not just boilerplate. Use care in drafting it, or – better yet – spend a little money to have a lawyer do it for you Some things are too important for D-I-Y.

The Court said that public policy generally precludes enforcement of agreements that would remove the obligation to adhere to even a minimal standard of care. Courts may, in appropriate circumstances, void contracts on the basis of public policy, the determination of which resides first with the people as expressed in the California Constitution and second with the state legislature. Although the power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and should be exercised only in cases free from doubt, nevertheless — the Court said — courts are authorized to distinguish ordinary negligence from gross negligence, even absent express legislative authorization.

The Court grudgingly seemed to accept that waivers of liability for future ordinary negligence – at least in recreational or sports contexts – would be enforceable. However, neither California nor the overwhelming number of other states permit a waiver of liability for future aggravated negligence.

Whether this holding might have applicability before recreational and sports activities, such as in “inherently dangerous” activities such as tree removal, is up in the air. While this shouldn’t dissuade an arborist or tree removal company from including a carefully-drawn and limited waiver in the contract, neither should the professional bank on the waiver being enforced.


Case of the Day – Thursday, November 19, 2015



coffeespill140410Mrs. Taubenfeld should have listened to the Mamas and Papas … they predicted that this might happen to her. It seems Mrs. T was walking past a Starbucks when she stepped into one of those tree wells cut into the sidewalk. She fell over an exposed tree root and hit the ground. She immediately hobbled off to her lawyer’s office. A lawsuit against Starbucks and the strip mall owner soon followed.

She argued that the lease between the strip mall owner and Starbucks required the mall owner to maintain the sidewalk. The Court disagreed, saying that the lease didn’t matter, because a contract between parties could not create a duty to the public where one didn’t otherwise exist.

Tree well – is it a threat or simply a menace?

Tree well – is it a threat or simply a menace?

And no such duty existed here. A village ordinance required that property owners and lessees keep their sidewalks clear of obstructions, but that law didn’t create a right for a private person to sue. If Starbucks had failed to keep up the sidewalk, it might have to answer to the city government, but not to Mrs. Taubenfeld.

Statutes commonly make people or entities liable to the government (in the form of fines or penalties) for noncompliance. Usually, where the obligation is to clear natural problems, such as snowfall, high grass or exposed tree roots – conditions which the owner did not create ­– the statutes do not give general public the right to sue for damages arising from noncompliance.

Taubenfeld v. Starbucks Corp., — N.Y.S.2d —-, 2008 WL 451055, 2008 N.Y. Slip Op. 01587 (N.Y.A.D. 1 Dept., Feb. 21, 2008). Florence Taubenfeld fell over a tree root. The root was growing in a tree well cut into a public sidewalk in front of premises owned by Park Plaza and leased to Starbucks. Faster than you can say sugar-free hazelnut latte made with nonfat milk, Mrs. Taubenfeld sued, claiming negligence. The trial court granted Park Plaza’s motion for summary judgment, but denied Starbucks’ motion. Starbucks appealed.

Held: Starbucks won and the suit was thrown out. While the lease between Park Plaza and Starbucks required Park Place to maintain the sidewalk and landscaping. Assuming that the tree well into which Taubenfeld tripped and fell is part of the sidewalk or landscape, the lease could not create a duty to the public that did not otherwise exist. The Court held that neither Park Plaza nor Starbucks owed a duty to the public to repair the protruding root since neither created the root or causehbnbd it to exist by reason of some special use of the sidewalk or tree well, or were obligated to maintain the sidewalk or tree well under some statute or ordinance.

A book on Mrs. Taubenfeld's reading list.

A book on Mrs. Taubenfeld’s reading list.

In this case, the lease imposed on Starbucks only a duty to maintain those portions of the sidewalk that the coffee shop made special use of, for the purpose of providing outdoor seating for its customers. As to the remainder of the sidewalk beyond Starbucks’ outdoor seating, Park Plaza’s duty was limited by a Larchmont village ordinance that directed property owners to keep the sidewalk in front of their premises in good repair and safe condition for public use. That ordinance, however, did not specifically create tort liability.

While Starbucks made special use of a portion of the sidewalk by putting out two tables with two chairs each, the special use did not extend beyond the tables and chairs to the tree well where Taubenfeld fell, or to the people on the crowded sidewalk. Some of those people were walking and others were standing around Starbucks’ tables chatting. Taubenfeld complained that she had had to walk around them, diverting her path into the tree well. Even if this were true, that fact made neither Starbucks nor Park Plaza liable to her.


Case of the Day – Friday, November 20, 2015



Horrific crashes. They happen everywhere. Someone blasts through a stop sign late at night and slams into another car. One driver dies. A lawsuit ensues.

Stopsignobsc140411It’s an all-too-frequent tragedy. In today’s case, however, the inevitable lawsuit by the next-of-kin has an unusual twist. Named as a defendant is the property owner at the corner, who is accused of contributing to the accident by having overgrown trees and shrubs that obscured the stop sign.

There was testimony by the investigating highway patrol officer that the sight lines were not so obscured that the offending driver couldn’t have seen the traffic sign. But the Court of Appeals decided that it wasn’t necessary to sort that out, because Georgia law resolved the issue.

It turns out that a Georgia statute made it unlawful for a property owner to place any unauthorized device or structure in such a location as to obscure traffic signs.  Over the years, the courts had defined the statute to include trees and shrubs planted by the owner as among the prohibited devices.  But the catch is that the owner must have planted the trees and shrubs himself or herself: it the overgrowth was natural, it could be a rainforest for all Georgia law cared.

The sign's obscured by a rainforest? That's fine with Georgia, as long as you didn't plant it ...

The sign’s obscured by a rainforest? That’s fine with Georgia, as long as you didn’t plant it …

The Court held that because there was no evidence the landowner had planted the overgrown vegetation, it didn’t matter how bushy it was. The landowner couldn’t be liable. The lesson seemed to be that the less you do to take care of your place, the better off you are. So it really did depend on what kind of tree it was …

Rachels v. Thompson, 658 S.E.2d 890, 290 Ga.App. 115 (Ga.App. 2008). Around midnight on July 4, 2003, Rachels was driving his truck northbound on Kent Rock Road, approaching Emmitt Steel Road. There is a stop sign on Kent Rock Road at its intersection with Emmitt Steel Road, but no stop sign on Emmitt Steel Road. Around this same time, Ashley Grant was traveling westbound on Emmitt Steel Road in a Jeep. Grant did not see Rachels’s truck until immediately prior to the accident. The truck and Jeep collided.

The sign, it turned out, was covered with kudzu ...

The sign, it turned out, was covered with kudzu …

Rachels’ estate sued Thompson, the property owner adjacent to the road, on the grounds that the property was overgrown, thus hindering visibility. Rachels’s negligence claim was premised upon Thompson’s having violated O.C.G.A. § 32-6-51, which provides that “[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which: … (3) Obstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads[.]” The lower court dismissed the case, and Rachels appealed.

Held: The case was dismissed.

The Court noted that O.C.G.A. § 32-6-51 has been interpreted to include purposely planted trees and other vegetation, including an allegedly vision-obstructing row of trees planted by the defendant. But here, there was no evidence that the foliage at issue was purposefully planted by Thompson. The photos placed into the record by Rachels in opposition to the motion show a lot overgrown with kudzu.

Further, in his response to interrogatories, Thompson stated that “[t]here are no improvements on the property[,]” and [s]ince there were no improvements on the property, no maintenance was required.”

The Court held that Rachels has failed to show a breach of duty by Thompson, and summary judgment was correctly granted to the defendant. Therefore, the case was dismissed.


Case of the Day – Monday, November 23, 2015


Unfiled lawsuits rarely get better if you continue to delay.

Unfiled lawsuits rarely get better if you continue to delay.

Mr. Balducci had a couple of parcels on Sumner Street. One of them, a property at 240 Sumner, was subject to occasional flooding problems arising from poor drainage. He wanted the problem remedied, so he made a deal to partner up with the Town of Lunenburg to install a drainpipe. Like most deals of this nature, Balducci’s job was simply to pay and the Town’s end of the project was to do the work.

The directionally-challenged workers for the town installed a drainpipe. It’s just that Mr. B had two places, not just one. And you guessed it: the drainpipe was installed at 244 Sumner Street instead of 240 Sumner Street, where it was supposed to be set. The result, of course ¬– besides a drainpipe installed where it wasn’t needed – was that the flooding problems continued at 240 Sumner, where it was needed but not installed.

Mr. Balducci was galvanized into action – some seven years after the error. The mystery is why it took Mr. Balducci so long to notice the Town’s error, and why – after he figured it out a year later – it took him more than six years to sue. There is, of course, a statute of limitations to just about every kind of action, civil or criminal. In the case of contracts in Massachusetts, it’s six years. The Town argued he had waited too long to sue. Mr. Balducci responded that he had six years from time he discovered the mistake – not from the time of the mistake itself – to sue. The Court agreed that the “discovery rule” let him run his time to file a lawsuit from the day he learned of the Town’s blunder.

His victory proved to be a hollow one. Quite often, laws permitting suit against governments contain what are called “exhaustion” requirements. Before you can sue, you have to “exhaust” your administrative remedies by filing a claim with the governmental agency, usually on a prescribed form with a prescribed number of copies and according to a prescribed schedule. The goal, public policy types tell us, is to enable the governmental agency to resolve problems short of lawsuits by promptly and fairly addressing the claimant’s concerns. Horse hockey. The real purpose of the “exhaustion” requirement is to exhaust people like Mr. Balducci, or – barring the grinding down of the citizenry with arcane complaint requirements – setting a snare to trap the unwary.

Mr. Balducci was one of those unwary ones. Whatever he did during the six-year interregnum between discovering that the drainpipe was in the wrong place and suing, he never made demand on the Town to cure its negligence. That meant that his claim for negligence had not been administratively exhausted, and the count was thus thrown out. Unsurprisingly, the Massachusetts Tort Claims law required that such a demand — called “presentment” — be made on the municipality before a lawsuit could be filed.

It is not clear how Mr. Balducci missed the fact the Town had put the drainpipe in the wrong place, or - for that matter - that his property was still a little damp.

It is not clear how Mr. Balducci missed the fact the Town had put the drainpipe in the wrong place, or – for that matter – that his property was still a little damp.

Mr. Balducci had a few other claims to make against the Town, including trespass and wrongful removal of trees. After all, he had given the Town the OK to enter onto 240 Sumner, but not 244 Sumner. Those counts were not subject to an exhaustion requirement, and they survived. But it’s clear that early in his lawsuit, Mr. B already had a big mountain to climb. More careful procedural planning — not to mention being quicker out of the chute — would have saved him some legal headaches now.

Balducci v. Town of Lunenburg, Not Reported in N.E.2d, 2007 WL 4248021 (Mass.Super., Oct. 19, 2007). Tony Balducci owned two properties next to each other on Summer in the Town of Lunenburg. In 2000, he and the Town entered into a written agreement for replacement of a drainpipe located on his property, with Balducci and the Town splitting the cost. He gave the Town an easement for the installation. But instead of installing the drainpipe at 240 Sumner Street, the Town installed it at 244 Sumner Street. As a result, Balducci continued to experience flooding in his building at 240 Summer Street. He sued the Town of Lunenburg, alleging breach of contract, negligence, trespass, willful trespass to trees, and nuisance.

The Town moved to dismiss, arguing that the various counts should be dismissed due to the statute of limitations, a failure to comply with the Massachusetts Tort Claims Act, and failure to state a claim upon which relief may be granted.

Held: The Town’s motion was only granted in part. The Town first argued that Balducci’s claim was barred by the statute of limitations, because he brought the action more than six years after the alleged breach. But the Court observed that the “discovery rule” operates to toll — or suspend — a limitations period until a plaintiff learned or should have learned that he has been injured by the defendant’s conduct. Because Balducci could present facts that show that he only learned of the improper installation of the drainpipe in 2001 when his basement flooded, the Court was unwilling to dismiss the action on the basis of the Town’s motion alone.

Likewise, the Court denied the Town’s argument that the contract action should be dismissed for failure to state a claim. The Court said there were genuine issues of material fact as to whether the Town had permission to install the drainpipe where it did, and whether it did so properly. The agreement was vague as to where the drainpipe should be installed, and the Town’s easement only referred to the agreement.

However, the Town was able to get the negligence claim dismissed. The Massachusetts Tort Claims Act required that a party present its claim in writing before suing. If a party does not fulfill this requirement, its case has to be dismissed for failure to state a claim upon which relief may be granted. Balducci did not aver in his complaint that he has complied with the MTCA, requiring that the negligence count be dismissed.

The trespass claim — that the Town trespassed when it entered the wrong parcel of land to install the drainpipe and that the permanent nature of the drainpipe has created a continuous trespass — would not be dismissed. An action for trespass against a municipality does not come under the MTCA, so Balducci was able to proceed on this claim without making any form of presentment. Balducci’s complaint that the Town unlawfully removed trees from his property in violation of state statute, would not be dismissed.

SL151123Balducci argued that because the easement deed wasn’t recorded until late 2004, the discovery rule barred dismissal of this count under the statute of limitations. While the Court didn’t agree with that argument, it held Balducci appeared to be able to show a set of facts, such as that he did not become aware that trees on the wrong property were cut down until the easement deed was filed in December 2004.

Finally, Balducci argued the Town created a private nuisance when it installed the drainpipe on Balducci’s property. The Town argued the count should be dismissed for failure to state a claim upon which relief may be granted, as the allegations could not constitute a private nuisance. The Court disagreed, noting that where a municipality is the owner or in control of real estate and creates or permits a private nuisance to another person’s real property, it was liable just as a natural person would be. The essense of private nuisance is injury to property or persons outside the public place controlled by the municipality. There was a genuine issue of material fact as to whether the Town installed a drainpipe on property it controlled, which is now causing injury to Balducci’s land.


Case of the Day – Tuesday, November 24, 2015



When the Upper Oconee Water Authority started building a new reservoir, its consulting engineer needed to use the Walls’ property to let its subcontractor have access to a drainage pipe. “Just a little easement, ma’am,” the engineering firm told Mrs. Walls. “And we promise not to cut down any trees.”

Of course you promise not to.  And we believe you.  Right?  

You guess it — the contractor promptly started cutting down the Walls’ trees.  Then – adding insult to injury – after the contractor was done with the drainage pipe, the Walls’ property flooded.  After repeated complaints to the engineer got no satisfaction, the Walls sued.

The trial court threw the case out. But on appeal, the Walls won back their trees. The appellate court ruled that the Walls didn’t prove that the engineer and its contractors caused the pooling water. Instead, the Walls only proved the water appeared after the contractors’ work, not that the contractors’ work caused the standing water. The Walls had engaged in the classic logic fallacy of post hoc, ergo propter hoc. Just because the water followed the contractors doesn’t mean the water was caused by the contractors.

Classic "post hoc ergo propter hoc" reasoning ... but then, he's a dog. What can you expect?

Classic “post hoc ergo propter hoc” reasoning … but then, he’s a dog. What can you expect?

But as for the trees, the Court said, the Walls had a right under Georgia law to be secure in their property. The engineers were responsible for supervising their contractors, given the engineering firm’s representative telling Mrs. Walls that he would stop the tree cutting. A jury could have found that the engineering firm was liable for the damages arising from the trespass. Therefore, the Court sent the case back for trial.

Walls v. Moreland Altobelli Associates, Inc., 290 Ga.App. 199 (Ga.App. 2008) The Walls live on a large piece of land along Highway 330 in Jackson County. In 1999, the Upper Oconee Basin Water Authority bought the land across the highway from the Walls’ residence to build a water reservoir. The Water Authority hired Moreland, a civil engineering firm, to manage the reservoir construction.

Hank Collins, a construction manager with Moreland, began overseeing several construction projects to be completed by Maxey Brothers Construction. One of those involved replacing a drainage pipe under Highway 330 and re-grading the area to allow proper drainage from the Walls’ property to the reservoir side of the road. Before the project began, a Moreland representative asked the Walls to grant the Water Authority a temporary easement along the front of their property to permit workers to complete the drainage work. The representative assured Mrs. Walls that the construction would not disturb any trees on the property and would only minimally affect the land. Based on these assurances, Mrs. Walls signed the easement.

Imagine the Walls' surprise ...

Imagine the Walls’ surprise … could it be that the contractor was somehow a little less than candid?

But when Maxey Brothers began work on the Walls’ property, the contractor promptly started cutting down trees. Mrs. Walls immediately called Collins, who apologized, stating that the trees should not have been cut and that “he would stop it immediately.” Collins also promised that Moreland would replace or pay for the cut trees. Although Mrs. Walls discussed the trees with Collins several times over the next year, Moreland did not pay for the tree loss. In the meantime, the Walls noticed that during heavy rains, standing water would accumulate on their property near the opening to the new drainpipe. The Walls had never experienced standing water before the construction. Mrs. Walls wrote to Moreland about both the water and tree removal, but Moreland did not remedy her concerns. Instead, it referred her complaints to the Water Authority, which investigated the situation. The Water Authority offered to repair the drainage area along the Walls’ property and pay $100 to settle the tree claim.

The Walls sued Moreland for trespass and nuisance, alleging that a work crew supervised by Moreland cut trees on their property without permission, improperly installed the drainpipe, and created a standing water nuisance. The Walls sought compensatory and punitive damages and attorney fees. The trial court tossed the case out. The Walls appealed.

Held: The Court of Appeals split the case, upholding the trial court on dismissing the nuisance claim but reversing on the damage to trees claim. As for the standing water claim, the Walls offered no evidence that the work overseen by Moreland caused the water problem. To be sure, the Walls said they hadn’t had the problem before the construction, but the mere fact that one event chronologically follows another is alone insufficient to establish a causal relation between them.

Moreland also produced evidence that following the project’s completion, a utility company laid underground cable in the area and Jackson County installed a water line along the road, both of which altered the grade. And Collins testified that Mrs. Walls first complained about the water problem after the utility company worked in the area. Because the Walls failed to link the work performed by Maxey Brothers and Moreland to the drainage problem, they did not establish causation.

AidAbet140415However, the trial court shouldn’t have booted the Walls’ claim for trespass based on the tree cutting. Georgia statutes provides that the right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie. Cutting trees on property owned by another, the Court say, may result in a trespass under OGCA §51-9-1. The evidence showed that the Walls objected to any tree cutting, and a Moreland representative assured Mrs. Walls that the work would not affect any trees. Mrs. Walls also testified that when she confronted Collins about the tree cutting, he stated that trees should not have been cut. Under these circumstances, a jury could find that the tree cutting exceeded the permitted entry onto the Walls’ property.

While Maxey Brothers actually felled the trees committed the trespass, Moreland was responsible for overseeing Maxey Brothers’ work and ensuring that it complied with the project plans, which, according to at least some evidence, did not involve tree cutting. Moreover, Collins knew that Maxey Brothers planned to cut trees on the Walls’ property, but did nothing to stop the work.

Based on this evidence, the Court said, a jury could find Moreland liable for trespass. One who aids, abets, or incites, or encourages or directs, by conduct or words, in the perpetration of a trespass is liable equally with actual trespassers. This is an important expansion of liability for trespass. Often the trespasser is a mere functionary. The party who put the wheels in motion to cause the trespass – and, incidentally, who has the deep pockets – is the aider or abettor. Being able to reach such a defendant is crucial.


Case of the Day – Wednesday, November 25, 2015


Before the bird is served, the turkeys have to run around the backyard playing football for awhile.

Before the bird is served, the younger turkeys in the family have to run around the backyard playing football for awhile.

With Thanksgiving (and the traditional family touch football game) upon us, here’s another cautionary tale from the annals of “I got hurt, so I need someone to sue.”

Dan was a healthy, 26-year old recreational football league kind of guy. He was playing flag football with some buddies in the Dome Football League, using an indoor facility owned by the Town of Tonawanda. Of course, you need to mark the boundaries of the football field, and — necessity being the mother of invention — someone used a softball glove as a marker.

Dan stepped on the glove during a moment of football derring-do, and he was injured. So of course, he threw a yellow hankie at the Football League and the Town. The Town and League threw their own red flags, asking the booth, that is to say, the trial court, to review and throw out the case. The trial court refused to do so.

The appellate court, however, penalized Dan 15 yards and loss of down. When someone engages in an injury-prone event, like flag football, he or she (usually “he” in case of football, but there are exceptions), consents to reasonably foreseeable consequences of the activity. There are always sidelines markers, the Court observed, and Dan didn’t show that using a softball mitt was created a danger any greater than using the usual cones or plastic flags employed by the League.

So what does this have to do with trees? When people engage in outdoor activities in which they come in contact with trees, roots, stumps and holes in the ground, it’s always a fair question whether they assumed the risk when they elected to ski, mountain bike, run a 5k or whatever they were doing at the time. And if you’re a Dan, be prepared to prove that the hazard you confronted was something over and above what you could reasonably expect to encounter in the activity.

tfootball141126Gardner v. Town Of Tonawanda, 850 N.Y.S.2d 730 (N.Y.A.D. 4 Dept., 2008). Dan Gardner, a 26-year old flag football enthusiast, slipped and fell on a baseball glove that he and his buddies were using as a sideline marker during a recreational indoor flag football game organized by the Dome Football League and played in a facility owned by Town of Tonawanda. Dan was experienced in playing recreational flag football games on the indoor artificial turf field and he knew the sidelines of the field were marked with orange plastic cones and that the referee had discretion to use other types of markers on the sidelines as well. Dan said he was unaware that a baseball glove was being used as a sideline marker, but he didn’t have any evidence supporting his contention that the risk of slipping on the baseball glove was greater than the risk of slipping or tripping on the cones or plastic flags usually used as sideline markers. But that didn’t stop him from suing the Football League and the Town. The defendants moved for summary judgment, but the trial court denied it.

Dinner will have to wait for the game

Dinner will have to wait for the game

Held: Summary judgment was granted to the Town, and the case dismissed. The Court concluded that Dan assumed the risk of the injuries that he sustained because the use of the baseball glove as a sideline marker didn’t create a dangerous condition over and above the usual dangers that are inherent in recreational flag football.

The doctrine of primary assumption of the risk generally constitutes a complete defense to an action to recover damages for personal injuries and applies to the voluntary participation in sporting activities. As a general rule, the Court said, participants properly may be held to have consented by their participation to those injury-causing events which are known, apparent or reasonably foreseeable consequences of their participation. Such injury-causing events include the risks that are inherent in and arise out of the nature of the sport generally and flow from such participation.


Case of the Day – Thanksgiving, November 26, 2015

Happy Thanksgiving

Case of the Day – Friday, November 27, 2015



Snoopy made the opening line of Paul Clifford one of the most famous in the history of pedestrian writing.

Snoopy made the opening line of Paul Clifford one of the most famous in the history of pedestrian writing.

Or so begins Edward George Bulwer-Lytton’s 1830 novel, Paul Clifford, the opening line now famous thanks to Snoopy in the comic strip Peanuts and the fiction contest that bears the author’s name.  Given that today is Black Friday (and many of you are leaving the house while it’s still quite dark outside, today we’re going to look back on a really dark and stormy night, when farmer Hays drove his truck through the Ohio countryside, past the golf course owned by a local lodge of the Benevolent and Protective Order of Elks.

On this particular dark and stormy summer night, an oak tree by the side of the road, weakened and decayed after a lightning strike several years before, fell on Farmer Hays, bringing to a sudden end his time on this mortal coil. Subsequently, his estate sued the Elks, claiming the Lodge had been negligent in failing to do anything about the hazardous tree, despite the fact that its decrepit state was well known to the duffers.

Relying on rather thin precedent, the trial court threw out the Hays descendents’ claim, holding that a rural landowner had no duty to protect travelers on the highway from the natural condition of trees on his or her property. The matter reached the Ohio Supreme Court in 1951.

The Supreme Court started with the observation that the law permitted every landowner to make such use as the person’s property as he or she wishes, provided it is used in such a manner as not to invade the rights of others. It then added flesh to that general rule, holding that while a rural landowner has no duty to inspect trees adjacent to a highway, when he or she has knowledge – actual or constructive – of a patently defective condition of a tree which may injure a traveler, the landowner must exercise reasonable care to prevent harm to people lawfully using the highway.

While there was little precedent in other states for the duty to act defined by the Hay court, the decision hardly came as a surprise. The American Law Institute’s Restatement of the Law of Torts had previously held that while “[n]either a possessor of land, nor a lessor, vendor or other transferor thereof, is subject to liability for bodily harm caused to others outside the land by a natural condition of the land other than trees growing near a highway.” But it contained an important caveat. The Restatement – which tried to identify trends in the law – noted that its drafters expressed “no opinion as to whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

The ALI presciently foresaw evolution of the duty defined in Hay and cases in other jurisdictions that followed it. The Hay rule has since become a standard of care imposed by virtually all states.

These things happen ... but the landowner may be liable, depending on what he or she knew and when he or she knew it.

These things happen … but the landowner may be liable, depending on what he knew and when he knew it.

Hay v. Norwalk Lodge No. 730, B.P.O.E, 92 Ohio App. 14, 109 N.E.2d 481 (Ohio App. 6 Dist. 1951). Farmer Hay was driving his truck on New State Road when a large limb or limbs fell from a tree located on land owned by the local chapter of the Benevolent and Protective Order of Elks. The limb struck the top of the cab, injuring Mr. Hay so that he lost control of the truck, crashed into a tree, and died as a result of his injuries.

The late Mr. Hay’s Estate sued, alleging that the tree had been struck by lightning several years before, and was extensively damaged and weakened as a result. The complaint said the damage to the tree was visible and apparent for several years, and that after the tree was struck by lightning, apparent natural processes of decay set in and further weakened the tree and its branches, which extended over and above the traveled portion of the road. Finally, the complaint averred that the Elks knew that portions of the said tree extended over the road, that it had been struck by lightning, and the tree was thus weakened. The complaint concluded that the Elks had neglected to remove or to brace the damaged portions or to do anything to make the tree secure, and failed and neglected to give notice to motorists of the danger.

The trial court held that the Elks had no duty to Mr. Hay to alert him as to the danger tree, or to remove or trim it. It threw out the complaint. The matter ended up before the Ohio Supreme Court:

Held: The Supreme Court reversed, and sent the case back for trial. It held that every person may make such use as he or she will of real property, provided he or she uses it in such manner as not to invade the rights of others. But in the case of rural landowners, this means that although there is no duty imposed upon the owner of property abutting a rural highway to inspect trees or to ascertain defects which may result in injury to motorists, an owner having actual or constructive knowledge of a patently defective condition of a tree which may result in injury to motorists must exercise reasonable care to prevent harm to people lawfully using the highway.

The Court noted that the only Ohio holding even close to its conclusion in this case was one in which the owner of property upon which a tree was situated was held to have the duty to exercise ordinary care for the safety of pedestrians using the sidewalk. However, the American Law Institute in Restatement of the Law had noted that its members were split, and thus had no opinion on “whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees ... but if the landowner knows there's a problem, he or she should attend to it.

Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees … but if the landowner knows there’s a problem, she should attend to it.

The Ohio Supreme Court observed that the law imposes upon every member of society the duty to refrain from conduct of a character likely to injure a person with whom he comes in contact and to use his own property in such a manner as not to injure that of another. The justices reviewed cases from other states, which led the Court to the “conclusion that in the absence of knowledge of a defective condition of a branch of a tree which in the course of natural events is likely to fall and injure a person in the highway, no liability attaches to the owner of the tree. On the other hand, where the owner has knowledge of the dangerous condition of the tree or its branches, it is his duty to exercise reasonable care to prevent the fall of the tree or its branches into the highway.” The Court agreed with a Minnesota case that held that it was unreasonable to require the owner of rural land to inspect his property with regard to naturally arising defects, because of the burden thereby imposed upon the owner of large and unsettled tracts of land. But the Court rejected the Minnesota case’s conclusion that the owner was not liable even if he had actual knowledge.

The Ohio Supreme Court instead followed dictum from a Federal court decision that “an owner of property abutting a highway has the obligation to use reasonable care to keep his premises in such condition as not to endanger travelers in their lawful use of the highway. If he fails to do so and thereby renders the way unsafe for travel, he should be liable therefor. It is, therefore, concluded that, although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto to ascertain defects which may result in injury to a traveler on the highway, an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway. If the danger is apparent, which a person can see with his own eyes, and he fails to do so with the result that injury results to a traveler on the way, the owner is responsible because in the management of his property he has not acted as a reasonably prudent landowner would act.”

Because the complaint filed by the Hay Estate alleged that the Elks had actual knowledge of the decayed tree, the complaint made out a claim that, if true, would entitle the Estate to recover. The case was reinstated and sent back to the trial court.


Case of the Day – Monday, November 30, 2015


bikefall140418All right, time to work off our over-indulgences of the past five days (turkey, stuffing, pumpkin pie, college football).  We’ll start with a simple warm-up – considering two dumb adult stunts. The first stunt was Tom Alexson’s ill-advised decision, when he saw a tree branch laying on his bike path, to ride by and smoothly push it out of the way with his hand as he passed. Kids, please don’t attempt this at home! Of course, it didn’t work, and he crashed into and over the limb, hurting himself badly.

The second dumb adult trick was Alexson’s unwillingness to accept the blame for his own stupidity. He didn’t, of course. Who does, these days? Instead, he sued the White Memorial Foundation, which owned the land and museum that stood on it.

The Foundation defended under the Connecticut Recreational Use Act, asking that the case be dismissed because no fee for use of the Foundation property, and Alexson was on the land for a recreational purpose. Alexson’s crafty mouthpiece argued that the Foundation didn’t qualify, because it charged a fee to enter the museum. But the Court ruled that it didn’t charge Alexson to ride his bike around the grounds, and that was good enough. After all, he didn’t fall in the museum attic.

Aha140418A-ha, the lawyer cried, riding a bike isn’t listed as a specific recreational activity in the statute. Horse hockey, the Court said. The statute clearly doesn’t limit recreational activities to the one listed. Lance Armstrong, after all, thinks bike riding is very recreational (and for years thought that taking banned drugs was not doping).

Yeah, argued Alexson, but the Foundation’s failure to warn me of the danger was willful or malicious. Maybe so, the Court said, but Alexson needs to do more than just give the Court his rather slanted opinion that it’s so.

The case was tossed, as it should have been. Dumb adult stunts, indeed.

Alexson v. White Memorial Foundation, Inc., Not Reported in A.2d, 2008 WL 803423 (Conn.Super., Mar. 5, 2008). Workmen for the White Memorial Foundation were notified that a tree had fallen across a roadway on Foundation property. The workmen began to cut up fallen tree, but failed to complete the task before Alexson – who was riding his bicycle on the White property – saw some of the tree still blocking the roadway and decided that he could push the obstruction aside as he passed. Instead, he collided and badly hurt himself.

Alexson sued, alleging that the Foundation was careless and negligent in only partially removing the branch from a portion of roadway and that the Foundation’s failure to warn or guard against the obstruction was willful and intentional. The Foundation moved for summary judgment on the ground that General Statutes §52-557g, known as the recreational land use statute, made the Foundation immune.

Held: The Foundation was protected by the Connecticut Recreational Use Act. The Act provides that a landowner is immune from liability for simple negligence where: (1) the defendant is the owner of the land in question; (2) the defendant has made all or part of the land where the plaintiff was injured available for use to the public free of charge; and (3) the plaintiff, at the time that he was injured, was using the land for a recreational purpose.

Alexson argued that there was a genuine issue of material fact as to whether the Foundation made the land available to the public free of charge. In addition, Alexson alleged that there was a genuine issue of material fact as to whether the exception to the recreational land use immunity statute, codified in §52-557h, applied to the defendant because, as alleged by the plaintiff, the defendant willfully and maliciously failed to warn against a dangerous and defective condition.

The Foundation said the land on which Alexson was injured was always available for recreational use to the public without charge. Alexson admitted that on the day he was injured, he was not charged by the Foundation, and conceded that the only time he has been charged a fee was when he went inside the museum. The Court found that there was thus no genuine issue of material fact that the defendant Foundation made the part of the property on which Alexson was injured available, free of charge, to the public.

biketree140418The final prong of the statute required that the land be available for recreational purposes. Section 52-557f(4)(a) provides a list of activities that constitute a “recreational purpose,” and the list doesn’t include bicycle riding. The Court observed, however, that, the statute clearly stated that “[r]ecreational purpose includes, but is not limited to, any of the following …” It was evident, the Court held, that the enumerated activities set forth in the statute were not exclusive.

Riding a bicycle, the Court said, fell within the penumbra of activities considered “recreational” for the purpose of the statute. Therefore the Foundation satisfied the third prong of the statute. Thus, the defendant is entitled to statutory immunity, unless Alexson could show the Foundation had engaged in a willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. The Court said the phrase “willful or malicious” meant conduct which must encompass both the physical act proscribed by the statute and its injurious consequences.

Willful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. Its characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Alexson’s conclusory statements in his complaint, coupled with the conclusory statements in his affidavit (the admissibility of which the Court found to be dubious at best) did not raise a genuine issue of material fact. The Court said the complaint was “bereft of the factual predicate necessary to lead a reasonable person to infer that the workmen intended to injure passers by, and this plaintiff in particular, by their actions.”

The dismissal of this ridiculous suit was upheld.