Cases from October 2015

Case of the Day – Thursday, October 1, 2015


Perhaps we should use Mr. Peabody's Wayback Machine ...

Perhaps we should use Mr. Peabody’s Wayback Machine …

Travel back into time with us … back, back, back to June 18th, when we solved the poor Mazda owner’s problem by determining that maybe, just maybe, his landlord was liable for injuries to the unhappy sport car enthusiast’s set of wheels. As in all cases, liability depends on the specific facts. That’s why there’s no substitute for a good local attorney.

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

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

Ten years later, a hospital visitor slipped on a sweet gum ball in the parking lot and fell, breaking her wrist. Lucky for her there was a hospital nearby. She didn’t feel lucky, however … rather, she felt aggrieved. She therefore sued the hospital for negligence. What else does an aggrieved person do?

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

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

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

Sweetgum tree ... star of Fancher v. Fagella, making an encore appearance here.

Sweetgum tree … the star of Fancher v. Fagella makes an encore appearance in the St. Francis parking lot.

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

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

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

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


Case of the Day – Friday, October 2, 2015


furball151002Texas is a place where a husband can shoot his wife’s lover, and the wife’s the one who gets charged. So we’re a little gratified when what could have devolved into a gunfight ends up with the misbehaving defendants coming up on the short end of a jury verdict instead.

This case — a perfect illustration of the problem we we’ve talked about before with verbal contracts — shows the horrors that result when complex deals aren’t written down. Bachmeyer and the Stukeses made an oral deal: Bachmeyer could graze his herd on their land if he would expend his time and money fixing their place up. He did, to the tune of about $8,186.00, but clearly some event must have intervened to sour the deal, because the Stukeses refused to let Bachmeyer’s longhorns graze. “Be that way,” Bachmeyer may have replied, “but give me back the $8,186.00 I spent.” Strangely, they refused to even do that.

Bachmeyer sued, and the Stukeses obligingly counterclaimed, raising a host of complaints against him about trespass, shoddy fence-building, cutting down too many trees … the works. The trial thus turned into a regular furball, made more complicated by the lack of a written agreement that would have settled a number of issues.

Things got even messier, because it turned out the Stukeses didn’t do much better choosing lawyers than they did writing contracts. Their attorney let the trial court give a whacked-out jury instruction on the meaning of “trespass,” one which essentially required the jury to find that Bachmeyer intended or negligently trespassed, instead of merely intending the act that led to the trespass.

lightning151002Mark Twain once observed that “[t]he difference between the almost right word and the right word is really a large matter — it’s the difference between lightning and a lightning bug.” And was he ever right! At law, one has trespassed if he or she intends or negligently enters onto the real property of another. That is, if you step off a public sidewalk onto my lawn in order to let a group of nuns pass, you have trespassed. You intended to take the step that you took, and intended to end up on my grass. If however, you remained on the sidewalk, but the nuns grabbed you and threw you bodily onto my lawn, you did not trespass.

The instruction the court gave let the jury think that Bachmeyer had to intend that his incursion on the property was a trespass. If turned trespass into a “state of mind” offense that it has never been. The upshot of the wrong instruction — just the almost right words in almost right places — as well as the Stukeses’ lawyer being asleep at the switch, was a judgment against the defendants. The Stukeses were told to cover Bachmeyer’s $8,186.00, and for good measure to pay Bachmeyer’s legal fees in the amount of $17,500.00.

The Court of Appeals wasn’t terribly sympathetic. … except on the fee award, which it sent back for reduction and recalculation. We bet that the Stukeses’ lawyer’s had some trouble collecting his fee.

Stukes v. Bachmeyer, 249 S.W.3d 461 (Tex.App., 2007). Bachmeyer and the Stukeses owned neighboring properties. They entered into an oral agreement to allow Bachmeyer to use the Stukeses’ property to graze cattle in exchange for Bachmeyer‘s agreement to replace the fence separating the two properties, to remove brush, and to otherwise improve the Stukeses’ property. The total value of Bachmeyer’s material and labor was $8,186.00.

When the Stukeses didn’t pay him, he sued. The Stukeses counterclaimed breach of contract, negligence, trespass, promissory estoppel, and a declaratory judgment. They claimed Bachmeyer failed to perform his services in a workmanlike manner because portions of the property had been flooded unnecessarily, requiring repairs to roadways and replanting of pasture; Bachmeyer removed trees that he wasn’t authorized to remove; Bachmeyer removed vegetation in a manner that left the property uneven and unsuitable for pasture; Bachmeyer failed to fertilize and to control weeds, or he did so in an improper manner; Bachmeyer installed fencing unevenly, so that it encroached on the boundaries of the property; Bachmeyer damaged the Stukeses’ tractor; and Bachmeyer altered the natural terrain of the property in a manner that directed excess water runoff onto the Stukeses’ property.

The case was tried to a jury that found in Bachmeyer’s favor on all claims. The trial court entered a judgment ordering that the Stukeses take nothing by their counterclaims, that Bachmeyer recover actual damages from the Stukeses in the amount of $8,186.00 plus interest, and that Bachmeyer recover attorney’s fees in the amount of $17,500.00 for trial and $4,000.00 more if the Stukeses appealed.

trespass151002The Stukeses promptly did appeal, claiming that the evidence was legally and factually insufficient to support the jury’s negative findings on trespass and negligence claims, and that the evidence was legally insufficient to support the jury’s finding on Bachmeyer’s attorney’s fees.

Held:   The verdict on trespass and negligence was upheld. It turned out that the trial court gave the jury a bad instruction on trespass. Trespass to real property occurs when a person enters another’s land without consent. To recover trespass damages, a plaintiff must prove that (1) it owns or has a lawful right to possess real property, (2) the defendant physically, intentionally and voluntarily entered the land, and (3) the defendant’s trespass caused damage.

But the trial court gave the jury a bum instruction. It told the jury that “[o]ne who intentionally trespasses upon land in possession of another is subject to liability whether or not the actor causes harm to the other. A trespass may also be committed through negligence.” The jury paid attention, and found that Bachmeyer did not intentionally commit a trespass, and that he did not negligently commit a trespass.

The problem was that negligence is not a required element of a trespass cause of action. What’s more, while a plaintiff has to prove that the defendant intentionally committed the act that constituted a trespass, the plaintiff doesn’t have to show that the defendant intended a trespass. If Bachmeyer had tripped on a tree root and fallen over the boundary, the act would not have been a trespass. But if he walked over the boundary — even if he didn’t know the boundary was there — he would be trespassing, because he intended the action, walking, that resulted in the invasion of the property. The jury charge, however, required the jury to find that Bachmeyer either intentionally or negligently committed a trespass.

The Stukeses did not object to these instructions. They were, therefore, required to show more than simple trespass, and the Court of Appeals was duty bound to assume that the charge correctly stated the law. As for alleged overflow of water onto their land from Bachmeyer’s land, the Court ruled, the Stukeses were heist by their own petard: they were unable to prove that Bachmeyer had negligently or intentionally trespassed with the water onto their land. As for the wandering fence, the Stukeses argued it encroached on their property in places. Bachmeyer testified he and the Stukeses had agreed on the encroachments. The Court held that the mere fact that the fence encroached on the Stukeses’ property was insufficient to establish that Bachmeyer intentionally or negligently trespassed. The jury was free to believe or disbelieve Bachmeyer’s testimony that the parties agreed to place the new fence as closely as possible to the old fence and that he did so. The Court deferred to the jury’s resolution of this credibility issue.

The Stukeses also argue that Bachmeyer trespassed because he unnecessarily cut down trees on their property. A landowner that intends to have timber cut on his property owes a duty to adjoining landowners to ascertain the property line of adjoining land with diligence and care. Here, the Court said, the Stukeses and Bachmeyer agreed that to replace the old fence, some of the trees would have to be removed. Bachmeyer testified that he told the Stukeses that he would have to remove some of the trees to put up a straight-line fence and that the Stukeses agreed to the removal of the trees. It is undisputed that Bachmeyer had the right to remove trees on the Stukeses’ property to construct the new fence. Whether he negligently or intentionally exceeded that right, the Court said, was inherently a fact question. The jury had factually and legally sufficient evidence to conclude that he did not.


Case of the Day – Monday, October 5, 2015


newyear151005Well, at least it’s the U.S. government’s new year, which started last Thursday, and the Supreme Court begins its new term today. So it’s back to work for them. Let’s hope the government’s new year works out better than the last one did one.

We’ll launch New Year’s festivities with a convoluted adverse possession case. The surveyor started the problems in 1969 by taking the landowner’s word for it that a rock marked the corner of the 40-acre tract. It was the wrong marker by about 40 feet, and so everything he did from there was wrong, too. Garbage in, garbage out.

But no one knew about the error. The landowners used the faulty centerline to give an easement to neighbors, and the neighbors put a driveway on it. That was off center as well. To compound problems, there was a decrepit barbed wire fence off center from the off-center centerline that Mr. and Mrs. Snow — who had bought land a year after the faulty survey — believed to be the real centerline.

The Supremes are back in Washington, planning another boffo year ...

The Supremes are back in Washington, planning another boffo year …

When the owner next to the Snows sold in the mid 1990s, he knew they claimed the 1.5 acres between the easement and the old fence as theirs, so he sold 8.5 of his 10 acres by warranty deed but the disputed land by quit-claim deed (which meant that the seller wouldn’t help out the buyer in any legal battle arising with the Snows).

And the battle inevitably came. The Snows argued the old fence enclosed the land, and they had exercised control over the disputed acreage by cutting a firebreak and harvesting cedar. But landowner Camp said the land was so densely wooded, no one could see what – if anything – that the Snows had done. The trial court held that the Snows hadn’t exercised continuous control over the land, and that the old fallen-down fence didn’t demark or enclose anything. And there was no evidence that Camp or his predecessor had acquiesced in the old fence being the boundary. If he had, he wouldn’t have conveyed the disputed area, even by quit-claim deed.

By the way, contrary to popular belief, the deed is not called a “quick claim” deed.


It’s “public” with an “l”. Likewise, it’s “quitclaim” and not “quickclaim.”

Snow v. Camp, Not Reported in S.W.3d, 2007 WL 2782825 (Ark.App., 2007). When the Snows purchased a 40-acre tract in Baxter County in 1967, an old barbed-wire fence crossed the property. It seems that at the time the surveyor, John Ed Isbell, set the boundary between the Snows’ lands and that now owned by the Camps in 1969, he used a stone shown to him by the property owners as the corner of the 40 acres, and then goofed, laying out lines that were about 80 feet short of a true forty acres. Then, in 1970, the Snows, the purchasers of another tract, and the grantor signed a right-of-way easement agreement. The legal description for the 50-foot easement agreement used the 1969 survey’s centerline as the midpoint of the easement. The Snows built a 15-foot gravel driveway that was mostly within, but was not in the center of, the fifty-foot easement.

Twenty-five years later, the Williams bought the tract now owned by the Camps. During his 18 months of ownership, Williams learned that the Snows claimed the 1.5-acre portion lying south of the old fence line and north of their actual boundary line. When he sold 10 acres in 1997 to Camp, Williams knew there was an issue about the area, so he conveyed 8.5 acres north of the old fence by warranty deed and the 1.5-acre area at issue by quitclaim deed.

In May 2000, the Snows sued the Camps for adverse possession of the 1.5-acre tract and for an injunction preventing the Camps from interfering with the easement. They argued that the boundary line between the parties’ property was established along the fence line by acquiescence. As a result of the error in the survey on which the easement’s legal description was based, the Snows asked for reformation of the easement as they had actually used it.

At trial, Isbell admitted that his survey was wrong. Ramona McDonald, who was a party to the easement agreement, said that they had intended for the road to be in the middle of the easement. The Snows had exercised control of the 1.5-acre tract by cutting cedar up to the fence line and mowing for a firebreak. When they bought the property, the land was so heavily wooded that the area in question could only be accessed on foot. Williams said he had understood that he owned property north and south of the fence; that he maintained his yard to the fence line; and that on the other side of the fence were dense woods, which he was unaware had been mowed. He said that, once, when he had discovered some men hired by the Snows cutting sprouts close to the easement, he told them that it was his land. He said the fence was completely down on the ground for about twenty feet in at least two places, that it did not surround the Snows’ property and that no one kept animals on either side of the fence. He knew that the Snows claimed the land. He said that neither he nor the Snows had used the area, which he called “just a vacant, barren strip of woods.” Michael Camp admitted that Williams had informed him, after giving him the two separate deeds, that the Snows claimed the 1.5-acre tract. He said he had never considered the old fence to represent the boundary line.

barbwire151005The trial court ruled that the Snows failed to establish adverse possession of the area in dispute, which it found to be unenclosed, because they did not continuously occupy or use the property for more than seven years and they never excluded any record owner from it. The Snows appealed.

Held: The Snows didn’t prove their adverse possession. The Snows argued the trial court should have considered the significance of the surveyor’s incorrect centerline in deciding the claim for adverse possession, although the old fence line to which they claim adverse possession is considerably north of that Line. They argued they had shown control of the 1.5-acre tract since 1969 by clearing a fire break around and making repairs to the fence, cutting trees and bushes, harvesting rocks, mowing, parking equipment, and feeding forest animals there. But the appeals court held that due deference had to be given to the trial court’s superior position to determine the credibility of the witnesses, and the trial court had found some testimony more compelling than other.

In order to prove the common-law elements of adverse possession, the Snows had to show that they has been in possession of the property continuously for more than seven years and that their possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. It is ordinarily enough proof of adverse possession that a claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. For possession to be adverse, it must be hostile only in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the holder of title to the land.

There is every presumption that possession of land is subordinate to the holder of the legal title. The intention to hold adversely must be clear, distinct, and unequivocal. What’s more, the General Assembly added a requirement for adverse possession in 1995, that the claimant prove color of title and payment of taxes on the disputed property or a contiguous piece of land for seven years. Fencing the disputed area is an act of ownership evidencing adverse possession, and the fact that the fence may have deteriorated does not necessarily mean that the property is not enclosed. Instead, the question is whether the enclosure is sufficient to put the record title owner on notice that his land is held under an adverse claim of ownership. In this case, the Court ruled, the evidence easily supported the trial court’s decision. The Snows’ use of the disputed land was sporadic and inconsequential, and in no way exclusive.

The Court rejected the Snows’ argument that the parties acquiesced to the fence line as the boundary. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. A boundary line by acquiescence may be inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. All the Snows had here was a dispute, and no evidence of a tacit recognition by the Camps or their predecessors in title that the old fence line was the boundary.


Case of the Day – Tuesday, October 6, 2015



swinger140320Sounds like a Craigslist come-on, doesn’t it? But morals weren’t loose here, just one of the fittings on a swingset.

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

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

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

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

An inherently dangerous undertaking?

An inherently dangerous undertaking?

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

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

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

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

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

De Baritault appealed.

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

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


Case of the Day – Wednesday, October 7, 2015


Those tin hats really work -- it's just that THEY want you to think there's something wrong with wearing 'em ...

Those tin hats really work — it’s just that THEY want you to think there’s something wrong with wearing ’em …

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

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

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

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

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

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

conspiracyalert140321 Riehl v. City of Rossford, Slip Copy, 2007 WL 2164158 (Ct.App. Ohio, July 27, 2007). This case is the latest installment in the ongoing dispute between property owners in Eagle Point Colony about an undedicated access road/alley commonly known as Thirwal Drive. The Riehls owned property along Thirwal Drive, and their perpetually untrimmed trees and bushes encroached on the road to the detriment of other property owners who use it, as well as delivery and trash truck servicing all of the owners along the road. In 1977, a number of the other residents sued the Riehls seeking to enjoin them from clogging, choking or narrowing the width of Thirwal Drive. The court ruled that the other owners had an easement by prescription over the Riehls’ land in the form of Thirwal Drive and permanently enjoined the Riehls from clogging, narrowing, or impeding the use of Thirwal Drive.

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

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

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

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

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

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

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

blackhelicopter140321 The Court rejected their argument. It held that there was no enforceable plea agreement. The City got no benefit and the Riehls suffered no detriment from the deal. Thus, the Court held, there was no consideration for the contract, and thus there could be no contract. The Riehls also argued that assessing them for trimming their trees constituted an unconstitutional taking of their property without compensation. But the Ohio Supreme Court has held that the government must pay just compensation for total regulatory takings “except to the extent that ‘background principles of nuisance and property law’ independently restrict the owner’s intended use of the property.” That’s all that was happening here. There was evidence that the nuisance ordinance had been enforced against other residents, too, so the Riehls’ claim of disparate treatment failed as well. Finally, there was no evidence that the city had enforced the tree nuisance ordinance against the Riehls as punishment for their voicing their views pursuant to their First Amendment rights.

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


Case of the Day – Thursday, October 8, 2015


risk151008More unneighborly neighbors …

Ms. Smith owned 134 landlocked acres, and she gained access to them only through using a township road that was no longer maintained and appeared by all accounts to be abandoned. But the road led through the Thompsons’ place, and — for reasons not revealed in the case — they didn’t much like Ms. Smith crossing their land on the abandoned township road.

They sued to keep her off the road, claiming trespass. Ms. Smith responded that it was still an official township road. “We’ll see about that,” the Thompsons must have grunted in reply. They were grunting because they were busy pounding metal posts into the old road so she couldn’t use it. For legal cover, the Thompsons petitioned the Township to vacate the road.

Here’s where it gets murky. The Township apparently refused to vacate the road, and Ms. Smith asked for summary judgment, pointing out that the court couldn’t issue an injunction to keep her off a public road. The court agreed, but the Court of Appeals did not. It found that the general public had no absolute right to use an unmaintained township road, and that the trial court could enjoin Ms. Smith from doing so if it were so inclined. Also, it said that there were way too many moving parts to this case for summary judgment to be appropriate.

closed151008Frankly, the notion that the general public has no right to transit a public highway that isn’t being maintained is an alarming one, for a number of reasons. Chief among them is the difficulty anyone would have telling when a road ceases to be poorly maintained, and falls into non-maintenance. This decision strikes us as a poor one.

Thompson v. Smith, 172 Ohio App.3d 98, 873 N.E.2d 323 (Ct.App. Columbiana Co., 2006). This case arose out of a property dispute that began when Marlene Smith attempted to use an old township road named Ashton Road in Madison Township near the Columbiana County Airport. The road hadn’t been maintained by Madison Township for many years and was mostly overgrown with trees. Ashton Road cuts through property owned by both Donald and Rebecca Thompson, as well as land owned by Ms. Smith, a 134-acre tract abutting and just north of the 53 acres owned by the Thompsons. Ashton Road begins somewhere west of the Smith property, then cuts generally southwest through both properties, and eventually connects to other township and county roads to the south and east of the Thompsons.

It appeared from the record that Ms. Smith’s 134 acres were landlocked, and Ashton Road might be her only access to other improved and maintained roads, but it was unclear. The Smith property was cut off from access to the north many years ago when State Route 11 was built. A portion of Ashton Road served as a private driveway to the houses around the southwest corner of the Thompson property, and it is partly maintained by the Thompsons. The Thompsons do not maintain any portion of Ashton Road beyond their own driveway and private home.

Some time point prior to the filing of the complaint, Ms. Smith or her agents entered what they assumed was Ashton Road and removed a locked gate that was crossing the right of way. The gate had actually been installed by Ms. Smith some years before, but it had not been locked until the Thompsons began doing so. The Thompsons then filed a complaint against Ms. Smith alleging trespass, preliminary injunction, permanent injunction, and quiet title. Ms. Smith filed an answer and counterclaim.

roadblock151008Sometime after the complaint was filed, the Thompsons installed seven metal posts across what they consider to be an abandoned part of Ashton Road, and they petitioned the Township to officially vacate Ashton Road. Ms. Smith then filed a motion for summary judgment. The motion argued that a member of the general public could not be found to trespass on a public road and that the court of common pleas had no jurisdiction to quiet title to a township road. The motion asked the court to dismiss the trespass claim and the quiet-title claim.

The trial court held that Ashton Road was a public road, that none of the parties had acquired any private ownership interest in the public road known as Ashton Road and that none of the parties can be found to have trespassed on Ashton Road. The court dismissed the Thompsons’ requests for injunction, finding that no person has the authority to erect obstacles on a public road. The court also held that it had no authority to quiet title to Ashton Road.

The Thompsons appealed.

Held: The Court of Appeals reversed, finding that genuine issues of material fact precluded summary judgment, and that the trial court had the power, if it so elected, to grant an injunction against a private person using a public road.

The Thompsons demanded that Ashton Road be the road not taken ... but the whole idea frosted Ms. Smith.

The Thompsons demanded that Ashton Road be the road not taken … but the whole idea “frosted” Ms. Smith.

The Court found that genuine issues of material fact concerning landowners’ and neighbor’s property rights and their actions and intentions with respect to road, which township had not vacated but which had become overgrown with weeds and bushes, precluded summary judgment for neighbor on landowners’ claim for injunctive relief to prevent neighbor from using the road.

The Court held that the general public has no absolute right to use or change a township road that is not being maintained by the township, whether or not the road has been formally vacated by the township. Also, §5553.042(B) of the Ohio Revised Code holds that a township shall lose all rights in and to any public road, highway, street, or alley which has been abandoned and not used for a period of 21 years, after formal proceedings for vacation have been taken. “Upon petition for vacation of such a public road, highway, street, or alley filed with the board of county commissioners by any abutting landowner, if the board finds that the public road, highway, street, or alley has been abandoned and not used for a period of twenty-one years as alleged in the petition, the board, by resolution, may order the road, highway, street, or alley vacated, and the road, highway, street, or alley shall pass, in fee, to the abutting landowners, as provided by law …”

The Court of Appeals held that the trial court erred when it concluded that there were no circumstances in which an injunction could be granted to prevent a private citizen from using a public road. But one of the primary purposes of injunctive relief in Ohio is to protect property rights. The trial court in this case is free to utilize the remedy of injunctive relief to protect the rights of the parties, even though the primary dispute involves access to and use of a public road.

The Court concluded there remained unresolved factual disputes concerning the property rights of the parties and their actions and intentions with respect to Ashton Road. Therefore, summary judgment was not appropriate.


Case of the Day – Friday, October 9, 2015


different151009The late Steve Jobs — whose equipment we use in running —exhorted us all to “think different,” by which he meant “buy Apple products.” Now, of course, Steve’s life is a major motion picture.

Notwithstanding Steve’s Einsteinian advice, our mother – a retired English teacher – has lectured us that Apple really meant “think differently.” No matter.

Today, we’re taking a fresh look at the Virginia Supreme Court’s decision in Fancher v. Fagella, the seminal 21st century case on tree encroachment. In so doing, we re-read the old Smith v. Holt decision that is credited with first adopting the old Virginia Rule 76 years ago. And we’re thinking different about it.

Initially, we confess, we joined with the Virginia Supreme Court and commentators in ridiculing Smith v. Holt’s focus on whether a tree was “noxious” or not. We liked the newer Fancher approach, which the Washington Post, after all, hailed as breaking new ground.  But now, after revisiting Smith v. Holt and considering the 19th century cases on which it was based, we’re wondering why Virginia ever thought the Fancher decision was necessary at all. Thinking different … can an Apple Watch be in our future?

Over the years, the law on what a neighbor may do with encroaching trees branched into three or four divisions. The flinty self-reliant New Englanders have followed with the Massachusetts Rule, a holding that landowners may resort to self-help to stop encroaching trees and roots by trimming them back to the property line, but the courts are not available to hear encroachment disputes if self-help is not adequate. At the other end of the United States (and 50 years later), Hawaii adopted what is unimaginatively known as the Hawaii Rule, a holding that while Massachusetts Rule-style self-help was always available to a landowner, so were the courts: landowners could sue to collect damages and to force a neighbor to trim or remove a tree when that tree was causing actual harm or was an imminent danger to his or her property.

We're thinking different about Fancher ... so where's our new watch?

We’re thinking different about Fancher … so where’s our new watch?

The disrespected Virginia case on the issue, Smith v. Holt, was in fact forward-looking and logical: in essence, Smith v. Holt adopted the Hawaii Rule years ahead of the Ahola State, and did so with law which — had the Virginia courts not acted so precipitously in Fancher v. Fagella — would still be the law in the Old Dominion.

Smith v. Holt was the 1939 decision — handed down only eight years after the Massachusetts Rule was adopted in the Bay State — that the Virginia Supreme Court repudiated in its 2007 Fancher decision. In Smith v. Holt, the Virginia Supreme Court reviewed a dispute in which a neighbor’s private hedge had grown over the years to the point that it was growing on the complaining neighbor’s lawn and shading a large portion of it. The Court held that the Massachusetts Rule should apply unless the hedge in question was (1) causing actual harm or was an imminent danger to the neighbor; and (2) was “noxious.” Because Mrs. Smith had not shown that actual harm was being caused, the Supreme Court declined to order Mr. Holt to remove the hedge. The Smith v. Holt holding was seen at the time as a variation on the Massachusetts Rule — although we doubt that it was any real departure from the implied limits of that rule — and became known as the Virginia Rule.

In Fancher v. Fagella, the Supreme Court abandoned the Virginia Rule it adopted in Smith v. Holt. We think this abandonment was unnecessary, premised on a misunderstanding of its own holding 68 years earlier. The adoption of the Hawaii Rule is happening increasingly throughout the United States, and probably is as inevitable as urban growth. However, the Virginia Supreme Court’s overturning of Smith v. Holt was an over-reaction predicated on its own misunderstanding of what is meant by a “noxious” tree. Even in the Massachusetts Rule decision eight years before, the court had cited a 19th century New York decision that held “[i]t would be intolerable to give an action in the case of an innoxious tree whenever its growing branches extend so far as to pass beyond the boundary line and overhang a neighbor’s soil.” The Massachusetts Rule was never intended to extend noxious trees. And what the Smith v. Holt court meant by “noxious” was clear in the context of that case. The court relied on an 1884 Mississippi case in which a mulberry tree was held to be “noxious” because its roots had penetrated and contaminated a neighbor’s well. There was nothing inherently poisonous about the tree: it was just growing in such a way as to cause real harm to the neighbor, beyond mere shade and encroachment. In fact, in the only Virginia case ever to rely on Smith v. Holt -— the case we’re reviewing today — a trial court found in 1990 that “under the circumstances of this case, the “mock” or “osage” orange trees are noxious.”

Osage oranges ... the very definition of

Osage oranges … the very definition of “nuisance.”

So it’s clear that whether a tree is “noxious” has nothing to do with the inherent characteristics of the tree or hedge, but has everything to do with where the tree or hedge at issue is located and what it is doing to the neighbor. And that is the classic definition of a nuisance given by the U.S. Supreme Court in a 1926 case: “merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” A noxious tree is a perfectly good tree, but one in the wrong place causing actual, substantial harm, or threatening the same.

But the Fancher Virginia Supreme Court ran off on a tangent, talking about kudzu and poison ivy when it is clear that the courts that first enunciated the “noxious” standard meant nothing more than a tree that was causing or threatening real harm. Ironically, under the Hawaii Rule adopted in Fancher, the plaintiff would have done no better than she did in Smith v. Holt. The hedge she complained about in 1939 wasn’t causing her any harm other than shade and encroachment on her property. That’s not actionable under the Hawaii Rule. If it had been destroying her foundation or choking her sewer, the Smith v. Holt court would have declared it “noxious” and thus a nuisance.

Likewise, Smith v. Holt was all Mr. and Ms. Fancher needed to carry the day. In fact, their arborist understood: he testified that the sweetgum “tree was ‘noxious’ because of its location …” (emphasis added). The arborist and the Fanchers both understood Smith v. Holt. Why the trial court could not, and why the Virginia Supreme Court found it necessary to overrule a perfectly serviceable decision — something courts are traditionally loathe to do — we don’t know. But contrary to the hand wringing and the editorializing, no new day has dawned on Virginia encroachment law. Under Smith v. Holt, a tree causing actual or imminent sensible harm to a complaining neighbor was a “pig in a parlor.” Under Fancher v. Fagella, it still is.

nuisance151009Arrington v. Jenkins, Chancery 89-173, 1990 WL 751069 (Cir.Ct.Va. Feb. 20, 1990) (unreported). This decision, which relied on Smith v. Holt, a landmark Virginia case which was overruled in September 2007 by Fancher v. Fagella, appears to have concerned a suit by one urban neighbor against another because her Osage orange tree had limbs which were overhanging his yard. The Osage orange, of course, drops round fruit of about 5 inches in diameter, which are green and lumpy and inedible to humans. The fruit are known as hedge apples.

Arrington sued for an injunction, asking the Court to order Jenkins to trim the branches that were overhanging the Arrington yard, apparently because of the 5” inedible “hedge apples” the tree dropped on his lawn every fall.

Held:  The trial court held that “under the circumstances of this case, the ‘mock’ or ‘osage’ orange trees are ‘noxious’” within the meaning of Smith v. Holt. Because of that fact, the trial court said, the responsibility for the trimming of the trees to avoid the fruit from falling upon Arringtons’ property must rest with Jenkins. The court issued an injunction that restrained Jenkins from allowing the limbs of the Osage orange trees to grow over and above the Arringtons’ land.


Case of the Day – Monday, October 12, 2015


Case of the Day – Tuesday, October 13, 2015


dasani151013The Sixth Circuit United States Court of Appeals last Friday enjoined the U.S. Environmental Protection Agency from enforcing new “clean water rules” by redefining what constituted “waters of the United States” to essentially include every body of water larger than a Dasani bottle. The Court held, among other things, that the likelihood that the rules were unconstitutional is pretty substantial. The Court of Appeals drily noted that the EPA rules were “facially suspect,” the judicial equivalent of holding one’s nose.

The Court of Appeals decision freezing imposition of the rules, which were only adopted about 40 days ago, in all likelihood prevents enforcement until the Supreme Court grapples with the questions presented by the new rules.

The decision got us musing about “waters of the United States,” and the expression’s older cousin, “navigable waters.” That brought to mind Orr v. Mortvedt.

In Orr, our latest installment of neighbors behaving badly, we find a gaggle of adjacent homeowners living around a flooded quarry in Iowa. The owner of the quarry sold off the land in pieces to several buyers; apparently, he may have oversold it a bit.
The Mortvedts made a deal in which they bought land and some real estate under the lake all the way to the west shore. That’s what the sales agreement said. Problem is, the deed delivered to the Mortvedts at closing didn’t exactly agree, and no one read the fine print.

Later, they got into it with the neighbors, who actually did own some of the land the Mortvedts thought they had bought. The neighbors were frosted because the Mortvedts were boating and fishing on parts of the lake over their land. Eventually, this being the land of the free and all, everyone sued everyone else.

quarry151013The case went all the way to the Supreme Court of Iowa, which held that the Mortvedts couldn’t get their deed reformed to match the sales agreement, because the law didn’t let that happen where an innocent third party was involved. The Orrs — who were the neighbors who would be affected by such a reformed deed — weren’t a party to the original deal. If the Mortvedts got their deed changed to reflect that they owned more property, the Orrs’ deed would necessarily have to be changed to show that they owned less. They weren’t a party to the original deal between the Mortvedts and the sellers, and therefore, it would be unfair to take their land to satisfy the Mortvedts.

As for the widespread boating on the lake, the Supreme Court of Iowa was forced to make a decision of first impression in the state, and adopt the common law rule that for non-navigable water (such as this lake), an owner was restricted to boating and fishing only on the prt of the lake which lay over bottom that party owned. This was pretty much an unsatisfactory result — the case discusses at length all of the good reasons for adopting the Scottish rule to the contrary — but as the old legal aphorism goes, “hard cases make bad law.”

Orr v. Mortvedt, 735 N.W.2d 610 (Supreme Court of Iowa 2007). The Twedt family owned a rock quarry and land surrounding it in Hamilton County. There came a time when the mining of the quarry was discontinued, and the excavated area ¬– consisting of about thirty acres – became a lake. The Twedt family sold the land in a series of transactions over a period of years. Each of the transactions resulted in the conveyance of a portion of the lake bed and land surrounding it. Jeffrey and Susan Mortvedt purchased a tract west and north of the lake, including the northern tip of the lake bed, in 1996. Two years later, Stephen and Shirlee Orr bought a parcel situated primarily on the east side of the lake and including that part of the lake bed located between the parts previously purchased by another party, the Sevdes, and the Mortvedts. The Orrs soon conveyed a piece of the property they had acquired, including a part of the lake bed, to Ronald Cameron.

hardcase151013The Mortvedts argued their property extended to the water’s edge on the west side of the lake., but the Orrs claimed a survey filed at the time of the Mortvedts’ purchase establishes that the Orrs own a narrow strip of land on the west side of the lake. The boundary dispute escalated when the Orrs cut down trees and planted other vegetation on the disputed narrow strip of land, as well as from the parties’ inability to agree about their respective rights to use the lake. The Sevdes and the Orrs objected when the Mortvedts used parts of the lake beyond the boundaries of the lake bed owned by the Mortvedts for fishing and boating. The Orrs, the Sevdes, and Cameron sued, seeking a resolution of the boundary dispute and other relief, and the Mortvedts counterclaimed, asking that the plaintiffs be required to restore the lake water level to that which prevailed when the Mortvedts purchased their property in 1996, and that the plaintiffs be held not to have a right to install or maintain a fence in the lake. The Mortvedts also sought reformation of their deed to conform it to the understanding of the parties to the 1996 conveyance that their east property line extends to the lake water’s west edge.

The trial court held the parties were entitled to the exclusive possession, use and enjoyment of the water covering the real estate described in their respective deeds. It also held that each of the parties owned any minerals located on the real estate described in its respective deed, that the Mortvedts were prohibited, absent express written permission, from entering upon or using the water overlaying the properties owned by the Sevdes, the Orrs, and Cameron — who were legally entitled to construct a fence, berm or other structure to mark the boundaries of their properties — and the Sevdes, the Orrs, and Cameron were entitled to drain the water covering, mine minerals from, and restore wetlands upon their properties. The court denied the Mortvedts’ counterclaim. The Mortvedts appealed.

This guy is charged with assaulting a child and her mother. Truly a defense attorney's nightmare ... and a living example of a

This guy is charged with assaulting a child and her mother. Truly a defense attorney’s nightmare … and a living example of a “hard case” that may lead a jury to make bad law.

Held: The Mortvedts were not entitled to obtain reformation of the deed, because the remedy of reformation was unavailable under the circumstances of the case.

The Iowa Supreme Court ruled that it only would order reformation of a deed against a party to the deed, a person in privity with such a party, or a person with notice of the relevant facts. Reformation will not be ordered to the prejudice of innocent third persons.

The Orrs were innocent third parties as to the transaction between the Twedt estate and the Mortvedts, and had no knowledge that the Mortvedt transaction was anything other than was recorded in the deed. The Court found that a reasonably prudent person would interpret the survey filed with deed, prepared by a professional surveyor, as an illustration of the boundary legally described in the Mortvedts’ deed and as confirmation that the Mortvedts had not acquired from their grantor the narrow strip of land on the west side of the lake that is the subject of this dispute. Nothing stated or illustrated in the Mortvedts’ recorded deed and survey would cause a prudent subsequent purchaser to further inquire into the deeding parties’ intentions and to consequently discover any discrepancy between those intentions and the legal description in the deed. The holding, of course, meant that Mortvedts had no claim for damages for the Orr’s removal of trees from the narrow strip of land on the west side of the lake.

The Court also held that while the public generally has a right of access to navigable watercourses, the term “navigable watercourses” refers to watercourses “susceptible of use for purposes of commerce” or “possess [ing] a capacity for valuable floatage in the transportation to market of the products of the country through which it runs.”

The Court said that the landlocked body of water in this case had never served as a highway of commerce, and the non-navigable status of the lake dictated that the bed of the lake is owned by the state or by private parties. The non-navigable lake in this case was privately owned by the parties because each of their deeds includes part of the lake bed. And in an issue never decided in Iowa before, the Supreme Court held that the common law rule adopted by most states — that on non-navigable waters, users are limited to the areas of the watercourse which lay on lands they owned, rather than having a right to use the whole watercourse if they owned land underlying any of it.

Ironically, there is little doubt that under the EPA’s rules, the 30-acre quarry sitting in the middle of the Great Plains is among the “waters of the United States.”


Case of the Day – Wednesday, October 14, 2015


love151014It’s good sport these days to criticize the Massachusetts Rule — that landowners are limited to trimming tree roots and branches back to the property as the exclusive remedy for encroachment by a neighbor’s tree — as being a relic of a time gone by, when everyone lived in a rural or semi-rural area and times were simpler. The modern Hawaii Rule — that permits a landowner to sue for damages and injunctive relief when the encroachment causes “sensible harm” — makes more sense in urban environments and in our modern-day (and, dare we say, litigious) society.

The Virginia Supreme Court said as much in Fancher v. Fagella. And North Dakota weighed in with Herring v. Lisbon Partners Credit Fund. When it comes to the old Massachusetts Rule, it’s pretty much “you hold him down, and we’ll kick him.”

Call us apostates, but we’re skeptical that’s the Massachusetts Rule’s demise is such a good thing. So today, we sing a love song to the Massachusetts Rule.  And a reprise of Kentucky’s leading encroachment case provides the perfect illustration. Schwalbach’s neighbor, Forest Lawn Memorial Park, had trees that were dropping leaves and twigs that were as dead as the cemetery’s patrons. When Schwalbach sued, the Court held that the only remedy when branches behave like normal trees – specifically, by dropping twigs and leaves – is Massachusetts-style self-help.

Tennessee criticized the approach 17 years later as old fashioned in Lane v. W.J. Curry Sons, but the plain fact is that the Hawaii Rule would have had precisely the same outcome: under that rule, branches dropping a normal load of twigs and leaves were not causing actual, sensible harm. No court would have intervened to order any outcome other than the one found in the Schwalbach case.

apostate151014The case is a perfect example of how the facts of the case — be they extreme (such as in Virginia’s Fancher case or North Dakota’s Herring case) or slight annoyance (such as in today’s case) — drive the decisions. It’s not just that hard cases make bad law, as we pointed out yesterday: the law is always driven by the facts of the case. A careful comparison of the decisions establishing the Massachusetts Rule to the decisions favoring the Hawaii Rule suggests that the rules may not be very far apart at all.

Schwalbach v. Forest Lawn Memorial Park, 687 S.W.2d 551 (Ct.App.Ky. 1985). The Schwalbachs owned an apartment building located next to the Forest Lawn Cemetery. They bought the property in 1969. By 1972, they were whining that overhanging limbs from some of Forest Lawn’s trees dropped twigs and leaves and other detritus. What a shocking indignity.

Forest Lawn trimmed some of the branches, but the problem persisted. The Schwalbachs were more into brickbats than chainsaws. They never trimmed any of the overhanging branches themselves, but were content to let their mouthpiece do their work for the in court.

Forest Lawn will handle the dead people ... but the Schwalbachs are responsible for the dead leaves.

Forest Lawn will handle the dead people … but the Schwalbachs are responsible for the dead leaves.

The Schwalbachs replaced their flat roof with a pitched one, at the cost of $14,300, a result of damage done by an accumulation of leaves and twigs. The trial court found that the damages resulted from normal deadfall of leaves and snall debris from the trees. It applied the Massachusetts Rule  set forth in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931), concluding that the Schwalbachs should have removed the offending limbs back to the boundary line.

The Schwalbachs appealed.

Held: Kentucky follows the Massachusetts Rule. The Court rejected the Schwalbachs’ argument that Kentucky should follow the rule that every owner should be held responsible for private nuisances on real estate, essentially an ordinary negligence rule. The Court observed that “[i]mposing liability upon a landowner for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees.”

The Court did suggest that were the tree in question dead and likely to fall and cause serious injury, “[a] claim for damages or removal of such a tree might be based on the theory of negligence for damages or nuisance for removal.”

This decision was criticized by the Tennessee Supreme Court in Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn., 2002) as among those antiquated cases that didn’t permit any remedy for encroaching branches and roots beyond self-help.


Case of the Day – Thursday, October 15, 2015


Greed may be good ... but it doesn't get a lot of love from the court.

Greed may be good … but it doesn’t get a lot of love from the court.

Gloria Lane was a down-on-her-luck middle-aged woman who lived with her disabled brother in an old house. Their place was next to a rental property, a house equally as old, owned by a corporate landlord, W.J. Curry & Sons. You see where this one is going? Hard cases can make bad law. And even where the result isn’t necessarily wrong – and we’re not hard-hearted enough to criticize people who were too poor to afford to fix the bathroom – cases are fact-driven.

We can imagine the scenario: a slumlord rolling in dough, too chary to keep the place up and too avaricious to pay damages inflicted on the impoverished neighbors. That, at least, is the innuendo. The Curry property included three large, healthy oak trees near the boundary with the Lane homestead. The trees are much taller than the either of the houses, and featured limbs that protruded over Gloria Lane’s house and caused manifold problems. First, the court said, she had to replace her roof 15 years before the lawsuit “because the overhanging branches did not allow the roof to ever dry, causing it to rot.” She complained that prior to replacing the roof, “[e]very roof and wall in [her] house had turned brown and the ceiling was just falling down. We would be in bed at nighttime and the ceiling would just fall down and hit the floor.”

In 1997, one of the oaks shed a large limb, which fell through the Lanes’ roof, attic, and kitchen ceiling. Rain then ruined her ceilings, floor, and the stove in her kitchen. The Lanes were physically unable to cut the limbs back that were hanging over the house, and they couldn’t afford to hire it done. For that matter, Gloria couldn’t even afford to fix the hole in her roof.

flush151015If that weren’t enough, the oaks’ roots clogged the Lane’s sewer line, causing severe plumbing problems. Gloria tried to chop the encroaching roots away from the sewer over the years, but they kept growing back and causing more plumbing problems. At the time of the lawsuit, she hadn’t been able to use her toilet, bathtub, or sink in two years because of the clogs. Instead, she went to the neighbors’ house (presumably not the Curry rental) to use the toilet. Meanwhile, raw sewage was bubbling into her bathtub, and the bathroom floor has had to be replaced because of toilet back-ups and water spills onto the floor.

Gloria told the trial court that “everything is all messed up. I can’t bathe. I can’t cook. I don’t want people coming to my house because it has odors in it, fleas, flies, bugs. It’s just been awful for me.” Ms. Lane, already under a psychiatrist’s care, said she “just can’t take too much more.”

After the branch punched a hole in her roof, Gloria asked the owner of W.J. Curry – one Judith Harris, who was neither W.J. nor any of his sons – to do something. She had a tree service trim the lower branches, but not the ones that would have been more expensive to reach. This didn’t solve the problems. When Gloria complained again, Ms. Harris told Gloria that she was on her own.

Now these, boys and girls, are hard facts. We aren’t dealing with the Schwalbachs, who were perfectly fit and reasonably flush, complaining about a few twigs and leaves to an underfunded cemetery association (read yesterday’s post). Here, we have a dramatis personae that includes, as protagonist, a pathos-inducing poor woman caring for an invalid, and a soulless corporation destroying her happy home, dropped limb by dropped limb by rotten roof by clogged sewer. And we’ve got some real damages, too. You try knocking on the neighbor’s door eight times a day and night to use the ‘loo, and see how you feel. Did the Massachusetts Rule have any chance of survival in the face of this heart-wrenching tale?

punch151015Of course not. The evil slumlord defendant (and we don’t know that to be true, but the story has a life of its own) argued that Tennessee followed the Massachusetts Rule. After all, it pointed out, Gloria was free to fire up her Husqvarna and clamber out onto her roof herself to cut down the offending limbs. Tennessee law firmly established that her remedies were limited to Massachusetts-style “self help.” That means Gloria should get nothing for the hole in her roof, nothing for her falling plaster, nothing for her waterlogged stove, and nothing for the sewage bubbling in her bathtub.

The trial court agreed with W.J. Curry. It held that while it was “certainly a serious situation that the plaintiff has not been able to use her bathroom for two years … these three trees are alive and living and they do what trees normally do. They produce branches and grow and they produce a root system. And even though you trim the branches back or you trim the roots back, they are going to produce more branches and more roots.” Spoken like a judge whose own toilet flushes just fine. The appellate court agreed, noting that the trees were not “noxious,” a quaint notion championed by Smith v. Holt (and since abandoned in Fancher v. Fagella).

The Tennessee Supreme Court reversed, adopting the Hawaii Rule, holding that living trees and plants are ordinarily not nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. When that happens, the Court said, the owner of the tree had some responsibility to clean up the mess. No doubt swayed by the extensive record of travail propounded by Ms. Lane, the Court held that W.J. Curry’s trees clearly satisfied the definition of a “private nuisance.” It sent the case back to the trial court for a remedy to be crafted, one that no doubt included money damages and probably an order that the landlord cut down the oversized trees.

Sure, Gloria ... get up there and trim those branches yourself.

Sure, Gloria … get up there and trim those branches yourself.

Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002). The long-suffering Gloria Lane sued W.J. Curry and Sons, Inc. a landlord owning a rental property next to her house. Over the years, her roof was damaged by branches overhanging from oaks growing on the Curry property, a branch fell, smashing into the home and causing extensive damage, and the root system substantially damaged her sewer system, rendering her home almost uninhabitable.

Gloria sued, asserting that encroaching branches and roots from the Curry trees constituted a nuisance for which she was entitled to seek damages. W.J. Curry responded that Ms. Lane’s sole remedy was Massachusetts Rule-style self-help, and she could not recover for any harm caused by the trees.

The trial court and Court of Appeals agreed with W.J. Curry and Sons, holding that an adjoining landowner’s only remedy in a case like this one was self-help, and that a nuisance action could not be brought to recover for harm caused by encroaching tree branches and roots.

Ms. Lane appealed top the Tennessee Supreme Court.

Held: Self-help is not an adjoining landowner’s sole remedy when tree branches and roots encroach. A nuisance action may be brought when the encroaching branches and roots damage the neighboring landowner’s property.

The Supreme Court held that although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.

Thumb's down to the Massachusetts Rule.

Thumb’s down to the Massachusetts Rule.

The Court engaged in a lengthy discussion of the various theories of liability adopted in various states, including the Massachusetts Rule, the Hawaii Rule, and the old, pre-Fancher Virginia Rule. The Court decided that the Hawaii Rule should be followed, because it “voices a rational and fair solution, permitting a landowner to grow and nurture trees and other plants on his land, balanced against the correlative duty of a landowner to ensure that the use of his property does not materially harm his neighbor,” while being “stringent enough to discourage trivial suits, but not so restrictive that it precludes a recovery where one is warranted.” The Court criticized the Massachusetts Rule, agreeing with the notion that limiting a plaintiff’s remedy to self-help encourages a “law of the jungle” mentality by replacing the law of orderly judicial process with the doctrine of “self-help.” Yet, the Court said, the Hawaii Rule was consistent with the principle of self-help Tennessee courts had previously enunciated.

The Court was careful to note that it was not altering existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property.


Case of the Day – Friday, October 16, 2015


leakybucket151016Law students learn in first-year civil procedure that it’s entirely proper to file utterly inconsistent pleadings. For example, if a complaint is that the defendant borrowed plaintiff’s bucket and broke it, the defendant can answer that (1) he never borrowed it; (2) when he returned it, it wasn’t broken; and (3) it was broken when he borrowed it. And lawyers wonder why there are so many attorney jokes …

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

crymeariver140326Fischer filed a motion to strike the recklessness and trespass counts. He argued that the complaint — even assuming everything Christiana has alleged was true — simply didn’t state a claim. Christiana depended on pretty much the same facts for recklessness as he did for negligence, except in the recklessness count, he charged that on top of everything else, Fischer hadn’t gotten permits from the town for the project. Well, maybe that was a little sloppy, at least as far as paperwork goes, but the Court held that Fischer’s lack of a few permits didn’t constitute recklessness towards Christiana. The recklessness count was bounced.

Fischer argued that the trespass count should be dismissed, because there was no allegation that he intended for the water to flow onto Christiana’s land. The Court disagreed with Fisher’s novel interpretation of trespass, holding that Fischer didn’t have to intend that the water trespass on Fischer’s land, just intend the act – that is, the diversion of the water – that resulted in the trespass. The distinction is subtle but crucial.

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

Christiana was upset because Fischer's retaining wall left his place a little soggier than it had been before ,,,

Christiana was upset because Fischer’s retaining wall left his place a little soggier than it had been before …

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

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

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

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

trespass140326However, a trespass need not be inflicted directly on another’s land, but may be committed by discharging water at a point beyond the boundary of such land. In determining “intent” for trespass purposes, the issue was not whether Fischer had intended the water to enter the Christiana’s land, but whether he had intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect that subterranean and other conditions would cause the flow.

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


Case of the Day – Monday, October 19, 2015


Filthy_animal140324Any fan of the Christmas comedy hit of the 1990s, Home Alone, remembers Angels with Dirty Wings. It was the film noir movie that the kid protagonist played repeatedly, the mobster’s taunt – “Keep the change, ya filthy animal” – punctuated with a spray of .45 cal. bullets from a Model 1928 Thompson submachine gun, being used as part of the boy’s plot to keep the bad guys at bay.

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

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

angelsfight140324But he didn’t. The trial court granted summary judgment to Angel’s Path, finding the survey of property lines — showing the dirt piles on its own land — more persuasive than Mr. Peters’ affidavit claim that the dirt had sloughed over the line. Peters’ affidavit was “self-serving,” the trial judge complained.

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

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

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

angelspath140324Peters v. Angel’s Path, L.L.C., Slip Copy, 2007 WL 4563472 (Ohio App. 6 Dist., 2007). Clarence and Nanette Peters said that Angel’s Path, LLC, a developer, damaged their two residential properties. As a result of residential property development by Angel’s Path, dirt mounds at the edge of the development property caused water run-off and flooding on their adjacent land. They sought restraining orders to prevent Angel’s Path from trespassing on their properties or continuing to alter the natural flow of water, as well as damages.

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

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

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

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

nuisance151019In answer to Angel’s Path’s motion for summary judgment, Mr. Peters provided an affidavit along with referenced photos that claimed the mounds created by Angel’s Path had slid across the common property onto his property. Peters’ affidavit also said that Angel’s Path workers entered onto his property to cut the weeds because the slope of the mounds didn’t allow appropriate maintenance without entering onto his land. Finally, the Peters affidavit stated that the back portion of his property now flooded and would not dry out, preventing his use of the land for a rental or for farming. Peters also included as a letter from his expert stating the mounds blocked the natural flow of the water, creating a “permanent pond,” and suggesting possible ways to eliminate the problem.

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

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


Case of the Day – Tuesday, October 20, 2015


Angelspathsite140325Rare is the opportunity to glean two instructive cases from one malefacting (if that’s a word) defendant. However, such is our good fortune with Ohio developer Angel’s Path, LLC (and yes, the apostrophe suggests there was only one angel on the path). Yesterday, disgruntled Angel’s Path neighbor Clarence Peters narrowly escaped being thrown out of court because he defended against summary judgment on the cheap. Today, we find out how his neighbors, the Kramers, fared when they went after the same developer because their home was disrupted by noise, dirt and even light from the new home development.

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

Chief Justice Oliver Wendell Holmes once famously chided a lawyer arguing before him that “this is a court of law, young man, not a court of justice.” Fortunately for the Kramers, the Ohio Sixth District Court of Appeals wasn’t having any of that. Often one can tell when a court is stretching to find some way to do justice. Clearly, the appellate judges were disenchanted with the developer, the lawyers for which were essentially telling them that while Angels’ Path had done everything the Kramers accused it of, there wasn’t anything the law could do about it. Nyah-nyah.

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

With the case once again headed for a jury of just plain folks who would be unimpressed with Angel Path’s legal hair-splitting and probably sympathetic to the sleep-deprived, dust-covered Kramers, one imagines that Angel’s Path very quickly recalled another pithy legal aphorism: “A bad settlement is better than a good lawsuit.”

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

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

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

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

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

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

To the Kramers, “Blinded by the Light” was more than a Springsteen ditty once covered by Manfred Mann … it was an every-night occurrence.

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

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

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

Every day seemed like the Dust Bowl to the Kramers ...

Every day seemed like the Dust Bowl to the Kramers …

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

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

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

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

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

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

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


Case of the Day – Wednesday, October 21, 2015


cash151021Whenever an accident results in permanent disability, it is understandable that the injured party and his family looks for as many deep pockets as they can find.

A million bucks sounds like a lot of money. At least until you deduct a third for the lawyers, and spend the rest on a lifetime of care and support for a paraplegic. The facts of today’s case are rather prosaic: workers from a landscaping service were trimming a tree. Something may have slipped — or maybe it was just one of those things — but a tree limb fell and struck the worker on the ladder, knocking him off and causing spinal cord injury.

Missouri workers’ comp awarded him $1 million. But he nevertheless sued his employer and the other workers who present that day, alleging negligence. The Missouri trial court quickly threw out the claim against the employer — after all, this kind of litigation was just what workers’ comp was supposed to avoid. But the Court struggled with the claims against his jobsite supervisor and two fellow landscapers.

The Court of Appeals did not. Instead, it found that in order to take the co-workers outside the protection of the statute, Garza would have to show some they had engaged in some sort of purposeful, affirmatively dangerous conduct, more than the garden-variety negligence he alleged had occurred that day. Thus, the courts never reached the question of whether anyone had been negligent that day, because even if everything Mr. Garza alleged were true, it would just not be enough.

falloff151021Garza v. Valley Crest Landscape Maintenance, Inc., 224 S.W.3d 61 (Ct.App.Mo. 2007). José Garza worked for Valley Crest Landscape Maintenance, Inc., as a landscaper. One day, he was told to report to a home to provide landscaping services. Brad Mason, a supervisor, directed which trees to trim. Garza’s crew leader, Rafael Moya, instructed Garza to climb a ladder and cut a specified limb. Moya placed the ladder against the tree, held the ladder, and rigged ropes to the limb to be cut. Javier González held the rope which Moya had rigged, while Garza climbed the ladder. While Garza was on the ladder, the limb knocked him to the ground, causing a permanent spinal cord injury.

Garza filed a worker’s compensation claim and collected over $1 million on the claim. He then filed a complaint in state court against Valley Crest, Mason, Moya and González, alleging negligence. The Defendants moved to dismiss on lack of subject matter jurisdiction, claiming that worker’s compensation was the sole remedy available to Garza.

The trial court agreed. Garza appealed.

negligence151021Held: The dismissals were affirmed. Normally, workers compensation is intended to be a worker’s only remedy for injuries on the job, even where those injuries are the result of the negligence of the employer. Generally, co-employees enjoy the same protection under the exclusive remedy provision of the workers compensation statute as the employer, absent a showing of something more. That “something more” is a determined on a case-by-case basis and includes any affirmative act, taken while the supervisor is acting outside the scope of the employer’s duty to provide a reasonably safe environment, that breaches a personal duty of care the supervisor owes to a fellow employee.

Allegations by Garza against his co-workers that they failed to securely hold a ladder, failed to properly rig ropes to the branch being cut, failed to create a proper support with the rope, and failed to use reasonable care in holding the rope did not amount to the purposeful, affirmatively dangerous conduct that was required to move the co-workers outside the protection of the statute’s exclusive remedy provisions.

The Court held that mere allegations of negligence are “not the kind of purposeful, affirmatively dangerous conduct that Missouri courts have recognized as moving a fellow employee outside the protection of the Workers’ Compensation Law’s exclusive remedy provisions.


Case of the Day – Thursday, October 22, 2015


poster151022A long time in a war far away, everybody was doing all he or she could for the war effort. Buying bonds, working on the home front, soldiers marching, airmen flying, sailors sailing, marines landing … we were all in it together. The Heaths, who owned property in New Jersey, were in it, too, and were only too happy to give an easement to a defense plant for a natural gas pipeline over their land.

The War ended but the easement lived on. It passed from owner to owner (as did the unimproved land to which the easement applied) until the easement for the gas lines was owned by Duke Energy and the unimproved land had become University Heights. By then, the easement for the gas lines was lined up with a beautiful boulevard that had been built over it. That boulevard, Fountain Avenue, in turn, but was lined with 75’ tall trees.

Fast forward to 2001, a new century, a time when World War II vets were octogenarians. Duke Enrgy announced that it was going to cut down the trees to better service the gas lines. All that collective “we’re in it together” hoo-hah had long since been retired. Thus, as they say in legal circles, litigation ensued.

The trees belonged to the Township, although as the Court of Appeals observed, the homeowners thought of them as their own. The Township rolled over and agreed that Duke could take down 55 of the 80 it had planned to cut, but the residents kept up the fight. The trial court sided with them, and prohibited Duke from cutting the trees.

Duke appealed, arguing the homeowners had no standing to stop it. After all, the trees didn’t belong to them. Standing is a powerful concept in the law. The Constitution empowers courts to hear “cases and controversies,” and those words have meaning.  If a party lacks standing, that is, skin in the game, there’s no real case or controversy, because the parties aren’t really at loggerheads.

Here, the Court disagreed with Duke. A 75’ shade tree in your front yard is, the Court said, powerful incentive to litigate vigorously. However, the Court said, the trial court’s siding with the homeowners on summary judgment was too hasty. Real questions existed whether aerial surveillance was necessary, whether the tree roots were really invading the gas line, and whether the trees would keep crews from an emergency break.

Gas line explosions are usually big enough to get ...your attention ... hence, Duke Energy's concerns were entirely fanciful

Gas line explosions are usually big enough to get your attention.  Hence, Duke Energy’s concerns were not entirely fanciful …

Township of Piscataway v. Duke Energy, 488 F.3d 203 (3rd Cir., June 6, 2007). In the early 1940s, Flora and H. Morgan Heath took title to a large tract of undeveloped land in the Township of Piscataway. The Heaths granted Defense Plant Corporation “the right to lay, operate, renew, alter, inspect and maintain” two pipelines for the transportation of natural gas across the land. The 1944 grant required Defense Plant “to bury such pipelines so that they will not interfere with the cultivation or drainage of the land, and also to pay any and all damages to stock, crops, fences, timber and land which may be suffered from the construction, operation, renewal, alteration, inspection or maintenance of such pipelines.” Defense Plant subsequently installed two 20-inch diameter natural gas pipelines.

In January 1960, the Richters and Gerbers (who now owned the property) granted TETCO — which was Defense Plant’s successor — the right to construct a third pipeline across the property. The 1960 grant allowed the owners “to fully use and enjoy the said premises, except for the purposes granted to [TETCO] and provided the [owners] shall not construct nor permit to be constructed any house, structures or obstructions on or over, or that will interfere with the construction, maintenance or operation of, any pipe line or appurtenances constructed hereunder, and will not change the grade over such pipe line.” TETCO agreed to bury all pipes to a sufficient depth so as not to interfere with cultivation, and agreed to pay such damages which may arise to growing crops, timber, or fences from the construction, maintenance and operation of said lines. TETCO then constructed a third 36-inch diameter pipeline.

Three years later, three real estate development companies that then owned the property entered into an agreement with TETCO in which TETCO agreed to reduce the size of the easement by releasing all portions of the land in the prior grants not needed for the pipelines. Attached to the 1963 agreement was a drawing prepared by TETCO, which showed a proposed residential neighborhood through which TETCO’s 60-foot wide easement ran at a slight diagonal. The 1963 agreement preserved all of the rights and restrictions set forth in the prior grants. Later, Duke Energy succeeded TETCO.

Meanwhile, as a result of residential development of the property, the land on which the easement is located became a one-block long public street named Fountain Avenue. The street became flanked by a large number of trees, many of which were planted in the early 1960s as part of the original residential development of the neighborhood and have grown to about 75 feet tall.

The homeowners who became part of this lawsuit lived in single-family homes built by the developers on lots lining Fountain Avenue. Although all of the trees at issue in the case were located on Township property, the homeowners viewed the trees, from a practical and aesthetic perspective, as extensions of their front yards. In April 2000, Duke announced that it would be removing approximately 80 trees from Fountain Avenue in order to better maintain the pipelines. Township residents vehemently opposed the proposed action, and sued Duke for an order prohibiting the Township and the homeowners from interfering with Duke’s rights under the easement.

The Township settled with Duke and consented to the immediate removal of fifty-five trees from Fountain Avenue, as well as to the future removal of any trees that exceed eight inches in diameter. The homeowners disagreed, and proceeded with the case. Following a hearing, a federal district court granted the homeowners’ motion for summary judgment, concluding that Duke failed to offer any evidence that removal of the trees was “reasonably necessary” to the maintenance of the pipelines and that Duke was barred by the doctrine of laches from asserting a right to remove the trees pursuant to the terms of the easement grant.

Duke appealed.

street151022Held: The case was sent back to the trial court. Duke argued that because the homeowners didn’t own the trees, they lacked the legal standing to stop Duke from cutting them down. But the Court disagreed, finding that removal of the trees from in front of homeowners’ property would have caused actual injury to the homeowners’ servient estates. The trees added to the value of the owners’ property, and they helped reduce air pollution, improved air quality, and provided cooling shade which reduced energy costs in summer months.

Under New Jersey law, the Court said, there is an implied right arising out of every easement to do what is reasonably necessary for its complete enjoyment. However, that right is to be exercised in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner. Therefore, summary judgment for the homeowners wasn’t proper here, because a genuine issue of material fact existed as to whether aerial surveillance was reasonably necessary to the maintenance of natural gas pipelines and, if so, whether the trees along Fountain Avenue prevented such surveillance. Likewise, a question existed as to whether the trees prevented operators from gaining quick access to pipelines in event of an emergency, as well as to whether the root growth of the trees posed a significant threat to the integrity of the pipelines.

The trial court also found that Duke was barred by laches from seeking to remove the trees now, after having had the right to do so for many years without exercising it. Under New Jersey law, laches may be enforced only when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned. The key factors to be considered when deciding under New Jersey law whether to apply the laches doctrine, according to the Court, were the length of the delay, the reasons for the delay, and the changing conditions of either or both parties during the delay. In this case, the Court said, there was evidence of newly promulgated natural gas transmission standards, as well as greater attention paid to natural gas pipeline safety, as a result of recent catastrophes. Those new developments, the Court said, were sufficiently compelling to create a genuine issue for trial.


Case of the Day – Friday, October 23, 2015


nimby151023The Croneys of Bigelow, Arkansas, bought a place on Taylor Loop Road, and — apparently being NIMBY enthusiasts — immediately sued the city to keep it from making their residential road any bigger or better. The court told them they had to name all the other landowners as parties to the suit. They did not, and the court threw the case out.

This was 1998, and the Croneys thereafter probably got busy with Y2K or the dot-com bubble or maybe just going to see There’s Something About Mary. Whatever the reason, they didn’t pursue it. But when the City started to bury new utilities on the road in 2005, the Croneys sued again.

This time, the City complained that the suit was barred by res judicita, a doctrine that prevents parties from litigating the same issues over and over, sort of a “one bite of apple” doctrine. After all, the City complained, the Croneys tried this lawsuit once before and got thrown out. What’s more, when the Croneys added some neighbors to the suit, the neighbors were dismissed as defendants and the Croneys were told to pay their legal fees. The trial court agreed.

The Court of Appeals reversed and remanded the case. It concluded that when your case gets thrown out for failure to join necessary parties, you’ve not had a fair chance to litigate the issue. The heart of res judicata is that the plaintiff gets one bite of the apple before the apple’s taken away. Here, the apple was snatched away before the Croneys got their first chomp.

apple151023Also, the Court of Appeals was a bit miffed that the trial court said the Croneys’s claims against the few neighbors they did include as defendants to the suit were meritless. The trial court could hardly complain on one hand that the Croneys had no claims against the neighbors and complain on the other that the neighbors were necessary to be included as defendants in the case.

This may seem to be a dry-as-toast civil procedure issue, but on such technicalities serious neighbor law issues may founder.

Croney v. Lane, 99 Ark.App. 346, 260 S.W.3d 316 (Ark.App., 2007). In 1998, the Croneys bought property on Taylor Loop Road. They sued to enjoin the City of Bigelow and Perry County from improving Taylor Loop Road. The trial court ordered them to clearly specify the relief sought and to join in the lawsuit “all landowners that may use the subject road to access their property.” They didn’t do, so the trial court dismissed their complaint.

In July 28, 2004, the Croneys again sued to quiet title to their property, subject to a public easement by prescription across Taylor Loop Road, and to enjoin the City from installing utility lines under the roadway. In response, the City argued the Croney’s lawsuit was barred by the doctrine of res judicata.

toast151023The Croneys amended their petition to allege that neighbor Buddy Lane destroyed their trees and was continuing to trespass on their property, and to allege that other neighbors, the Hootens, owned the land. The trial focused primarily on the width of Taylor Loop Road and the uses to which the City has made of it, but there was also testimony regarding the lack of records in the clerk’s office indicating how the road has been used, about the ever-increasing width of the road, and about the City’s placement of culverts and water lines under the road. At the close of the testimony, both defendant Lane and the Hootens moved for directed verdicts. The motions were granted.

The court entered an order dismissing Croneys’ complaint for failing to join all of the landowners on Taylor Loop Road, and because the action was barred by res judicata because appellants had previously filed suit against the City on the same issues and that the previous suit had been dismissed with prejudice. Finally, the court declared Taylor Loop Road a public road.

Croneys appealed, arguing the trial court erred in summarily dismissing their complaint on the basis of res judicata, that the City had no right to bury utilities under, or to widen, Taylor Loop Road, that the Croneys were entitled to a decree describing the City’s easement with specificity, and that the trial court erred in dismissing Croneys’ petition to quiet title.

Held:  The trial court’s decision was reversed, and the case was remanded. The Court said that the purpose of the res judicata doctrine is to put an end to litigation by preventing the re-litigation of a matter when a party has had one fair trial on the matter. The test to determine whether res judicata applies is whether matters raised in a subsequent action were necessarily within the issues of the former suit and might have been litigated there.

The key question is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Here, the Court said, the Croneys did not have a full and fair opportunity to litigate their case, because it was involuntarily dismissed pursuant to the rules of civil procedure for failure to add necessary parties and to clearly specify the relief sought. The fact that the trial court specified that the dismissal was “with prejudice” didn’t matter, because the trial court had had the option to make it without prejudice, and the rules prevent declaring a case as dismissed with prejudice the doctrine of res judicata should not apply.

The Croneys liked their street the way it was ...

The Croneys liked their street the way it was …

The Court of Appeals said that dismissal of the case for failure to join indispensable parties was improper, because nothing in the record showed that the nonjoined property owners could not be joined to the lawsuit. As a predicate to dismissing a case pursuant for nonjoinder, a trial court must determine that the indispensable, nonjoined parties cannot be made parties to the litigation. Consequently, before dismissing appellants’ case, the trial court was required to determine that the nonjoined parties who relied on Taylor Loop Road to access their properties were not amenable to process. Here, the Court said, nothing in the record indicated that these other parties could not be joined.

The trial court had dismissed Lane and the Hootens as defendants because the Croneys presented no evidence establishing that Lane had destroyed their trees or was continuing to trespass on their property. The trial court awarded Lane and the Hootens fees after concluding that the actions against them were “totally lacking a justiciable issue of law or fact, as permitted by Ark.Code.Ann. §16-22-309(a)(1). This offended the Court of Appeals, which complained that the trial court erred, on one hand, in finding that Croneys were required to join all of the adjacent property owners in the suit while, on the other hand, finding that their claim against the only adjacent property owners who had been added was lacking merit.

Although the arguments made against the Hootens were weak, the Court said, the Hootens were nonetheless indispensable parties whom appellants were required to join for a complete adjudication of the road issues. Consequently, the trial court erred in awarding attorney’s fees to the Hootens. As for Lane, he was not an indispensable party, and Croneys presented no evidence establishing the merit of their claims against him. The trial court was permitted to assess fees against the Croneys for Mr. Lane.


Case of the Day – Monday, October 26, 2015


cruiseE151026Huey Lewis and Gwinneth Paltrow covered Smokey Robinson’s 1979 hit, “Cruisin’,”in a duet recorded in 2000.

They weren’t talking about the kind of cruising we’re looking at today. We’re interested in timber cruising.

An interesting decision in U.S. District Court for the Southern District of Illinois contains a trove of judicial findings of fact and application of law in a timber trespass case, including an explanation of timber cruising. The Court presided over a trial of an overzealous timber harvester, whose timbering activities went beyond the owner’s property and took 231 of Uncle Sam’s trees formerly attached to the Shawnee National Forest.

cruiseB151026The case is interesting not so much because the Court wisely slapped down the tree cutter’s claim that the Government had to show he intended the trespass (read our October 2 post on Stukes v. Bachmeyer, on that subject) — but because the Court carefully describes the technique of timber cruising and differentiates between stumpage value and timber value. You should read the full case: the Court carefully finds tree cutter Kosydor liable through a carefully-constructed wall of direct and circumstantial evidence, it finds against the Government on unjust enrichment, and it gives a shaky analysis of why the suit against Kosydor was filed within the statute of limitations.

And if you’re of a mind to read more, the U.S. Forest Service has a detailed handbook on tree cruising available for downloading, as well as some pretty slick software.

U.S. v. Kosydor, Slip Copy, 2007 WL 2409557 (S.D.Ill., Aug. 21, 2007).  Larry Griffin, a conservation officer for the Illinois Department of Natural Resources, went to Terry Foster’s property to investigate a deer hunting complaint. He noticed timber cut off of what appeared to be the Shawnee National Forest. At the time, the boundary line between Foster’s property and the Shawnee was not marked, and no survey had ever been conducted to establish the boundary line.

cruiseD151026After Griffin reported matters to the U.S. Forest Service, the agency conducted a survey to establish the actual boundary line between Foster’s property and the Shawnee. Once the boundary was marked, the Forest Service initiated a timber cruise.

Timber cruising includes identifying a tree species, taking stump diameter measurements, taking measurements from the stump to the top of the tree left on the ground, taking measurements of any logs left on the ground, and recording measurements on a tally sheet. A total of 231 tree stumps were counted on the Shawnee property in the area adjacent to Foster’s property. Information regarding each stump was recorded, including its species, its diameter, and the distance from the stump to the corresponding treetop left in the woods.

Kosydor owned and operated a timber logging business. He contracted with Foster to harvest timber from Foster’s land. His agreement provided for a 50/50 split of proceeds generally, with a 70/30 split on walnut veneer in favor of Foster. Although Kosydor, who was aware that Foster’s property bordered the Shawnee, denied cutting any trees in the National forest, one of his employees testified emphatically that he had cut trees from the Shawnee National Forest under Kosydor’s direction.

As for the owner, Mr. Foster was unaware of anyone else, other than Kosydor, doing logging off of those areas during the period of time that he has lived there. The only reasonably available route for accessing and removing the wrongfully cut timber passes over Foster’s property and within very close proximity to his residence.

cruiseA151026Held: Kosydor was liable to the government under the Illinois Wrongful Tree Cutting Act. The Court found that Kosydor had voluntarily taken on the responsibility of determining the boundary line between Foster’s property and the Shawnee, despite a provision in their contract that Foster would be responsible for doing so, and that he was responsible for the entire logging operation. The Court noted that to prevail on the WTCA claim, the government had to prove that Kosydor intentionally cut or knowingly caused to be cut trees belonging to the United States which he did not have the full legal right to cut.

Kosydor argued the government had to prove that he intended to trespass on the National Forest land, but the Court disagreed. All the United States had to do, it held, was to prove he intended to cut the trees that happened to belong to the Government. Kosydor’s allegedly innocent mistake as to the location of the boundary line, the Court said, was not a defense to the WTCA claim. The Court observed that it is rational that the burden of establishing boundaries be placed on a defendant who orders wood to be cut. Otherwise, it would be advantageous for a defendant to cut now and worry about tree boundary lines later, since the maximum financial burden he would face would be the stumpage value of the severed trees.

One purpose of the WTCA is to discourage timber cutters from cutting trees without thoroughly checking out the boundary lines. The Act is meant to discourage not only the malevolent timbermen but also errant timbermen.

cruiseC151026Under the WTCA, stumpage value is used to calculate the underlying value of the timber. Stumpage value and timber value estimates, the Court said, are both depend upon timber volume estimates, which in turn are based upon the raw data collected in the field by timber cruisers. Put another way, estimating the value of timber taken in a trespass involves a three-step process. First, a timber cruise is conducted and measurements are taken in the field. Second, the collected measurements are then converted into volume estimates using established mathematical formulas. Third, those volume estimates are then converted into value estimates.

The distinction between timber value and stumpage value only comes into play during the third step of the process. Stumpage value which is the value of standing trees or what one might pay for the right to cut and remove trees. Timber value which is the value paid by mills for cut logs. In this case, the Court held, the stumpage value was $12,520.62, reduced from the Government’s estimate by 10% to give Kosydor the “benefit of the doubt.” Because the trebling of stumpage value is mandatory under the Illinois WTCA, the total loss was $37,561.86.

The Government had already reached a separate peace with Foster, who paid $18,000 to make his problem go away. This was deducted from the judgment, and Kosydor was ordered to pay $19,561.86.


Case of the Day – Tuesday, October 27, 2015


The old fence marked something ... just not the boundary.

The old fence marked something … just not the boundary.

Poor (and we mean that literally) Mr. Hartshorne. He and next-door neighbor Coldsnow had had some disagreements about the property boundary about 25 years ago or so, and it’s fair to conclude that the Hartshornes probably ask the Coldsnows over for tea and crumpets all that often.

In the late 90s, Mrs. Hartshorne went to her reward. Her death left Mr. Hartshorne saddled with debts, and he sold some of his timber to pay for it. He probably should have had his property surveyed (which would have cut into the timber profits, meager though those might be). Instead, Widower Hartshorne just told the logger that he could log to the old fence, which the Hartshornes had always thought was the property boundary.

It wasn’t. You know how these things go.

Sadly, had the timber sale been enough to cover Mr. Hartshorne’s debts, no one would ever have discovered that some of trees he sold had actually belonged to his neighbor. But the proceeds were a little light. Thus, Mr. Hartshorne divided his property in order to sell some of it off. When you divide property, you have to line up a surveyor. The survey showed Mr. Hartshorne that the old fencerow was not the boundary after all.

His neighbor, Coldsnow (perhaps aptly named for all the sympathy he showed a poor widower), found out the same, and realized that this meant that some of the trees Hartshorne’s logger had cut were on his land. Coldsnow sued for trespass, and asked the court to treble the damages under the Ohio treble damage for timber trespass statute. The jury agreed with Coldsnow that the cost to restore or replace the timber was $11,500, and that Hartshorne was reckless. The damage award trebled to $34,500.

Hartshorne complained that the proper measure of damages should have been the decrease in value of Coldsnow’s land, and anyway, he wasn’t reckless. He had just made a mistake, and regular negligence did not support treble damages under Ohio’s timber trespass statute.

The Court of Appeals didn’t buy it. Coldsnow’s successful conflation of a few isolated border issues over an eight-year period convinced the Court that Hartshorne — knowing of Coldsnow’s prior aggressiveness in enforcing the boundary — should have gotten a survey. Frankly, we suspect that Mr. Hartshorne must not have cleaned up very well for court, because there’s very little in the written decision that supports a conclusion that he acted recklessly.

work_for_freeWe don’t think a lot of this decision. The Court is saying in essence that the more unreasonable your neighbor is, the more careful you’re required to be. It certainly makes it hard to define a community-wide standard of care. Because I live next to a sweet old lady who would let me sell her front door if I wanted to, I should be held to a lower standard of reasonableness? That simply does not make sense.

Knowing that your neighbor’s a curmudgeon is hardly a basis for saying that your failure to take his cantankerousness into account is reckless conduct.

Coldsnow v. Hartshorne, Not Reported in N.E.2d, 2003 WL 1194099 (Ohio App. 7 Dist.), 2003-Ohio-1233. Coldsnow sued Hartshorne for cutting down some of the trees on Coldsnow’s property. Hartshorne began to cut down some trees, one of which was near the fence line between his and Coldsnow’s property, in 1991. At the time, Coldsnow complained to Hartshorne about cutting down that tree and Hartshorne stopped cutting down trees near the fence line. In 1995, Hartshorne had problems with people trespassing on his land to hunt. In response, Hartshorne bought some “no trespassing” signs and placed them all around his property. He also spray-painted orange circles on trees near the signs to bring them to people’s attention. Some of the trees he spray painted were on Coldsnow’s property. Coldsnow complained about the signs and the spray paint to the Hartshornes. In 1997, Hartshorne’s wife died, and to pay the bills from her illness, Hartshorne decided to log and sell some of the trees on his property. He hired a forester, to do the logging and agreed to evenly split the profits with the forester.

Lawyers always advise their clients to dress well for court. Maybe Mr. Hartshorne ignored his attorney's advice. What else would account for this whacked decision?

Lawyers always warn their clients to dress well for court. Maybe Mr. Hartshorne ignored his attorney’s advice. What else would account for this whacked decision?

Hartshorne asked the forester to selectively harvest the forest, in order to thin out the canopy to allow smaller trees to grow more quickly. He also showed the forester the property lines and asked him to only log trees more than 15-20 feet away from those lines. He did not have his property surveyed before hiring the forester, instead just showing him an old fence line which Hartshorne believed was the property line. Coldsnow became aware of the tree harvesting when Hartshorne’s property was being surveyed so a portion of it could be sold as another means of paying off his wife’s debt. Coldsnow hired a surveyor, who found that some of the stumps from trees which had been harvested were on Coldsnow’s property. Coldsnow sued, claiming trespass and a violation of §901.51 of the Ohio Revised Code, and Hartshorne claimed adverse possession, a claim that was dismissed before the end of trial. The jury returned a verdict in favor of Coldsnow in the amount of $11,500 as the cost of restoration or replacement, and found Hartshorne had acted recklessly. Accordingly, the trial court granted judgment in the amount of $34,500. Hartshorne appealed.

Held: The jury verdict was upheld. The Court found the jury’s damages award was reasonable and its conclusion that Hartshorne acted recklessly was not against the manifest weight of the evidence. Hartshorne argued that the proper measure of damages was the diminution of value of the real estate because of the logging. But in a case involving a violation of O.R.C. § 901.51, the Court said, the restoration/replacement cost of the trees is a proper measure of damages when the injured party intended to use the property for residential and/or recreational purposes, according to their personal tastes and wishes. As Coldsnow used his property in this way, the Court held, he did not first need to show a diminution in value of the land before receiving restoration damages. The Court found that the jury’s conclusion that Hartshorne acted recklessly was not against the manifest weight of the evidence, because the evidence showed that Hartshorne had a history of ignoring the boundary line between the properties.


Case of the Day – Wednesday, October 28, 2015


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

Not so fast, Mr. Brantley ... it's not quite that easy.

Not so fast, Mr. Brantley … it’s not quite as easy as all that.

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

Finally, the time came that Weyerhaeuser was ready to resume timber and gravel operations.  it found Brantley to be underfoot, so  the company sued him in trespass to remove him from the place. Brantley claimed he owned the place under the doctrine of adverse possession.

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

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

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

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

You can't adversely possess by committee ...

You can’t adversely possess by committee …

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

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

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

Weyerhauser owns or controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum's rush.

Weyerhauser controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum’s rush.

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

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


Case of the Day – Thursday, October 29, 2015


diving140330The better half of our writing team is off tonight for her annual swim officials’ preseason clinic. For the next few months, she’ll spend hours on her feet pacing the length of high school pools throughout the state, the rules scourge of swimmers everywhere.

The advent of the swim season got us thinking about swimming, and – what else? – liability. Nationally, there are about 800 spinal cord injuries a year from swimmers — mostly young people — diving into shallow water. The idea that you ought to check the depth of the water before diving in is a pellucid as Bahamian waters. Yet diving accident victims and their families often litigate the issue anyway. Today’s case is an interesting application of the “open and obvious” doctrine.

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

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

Not all shallow water is so well labeled ...

Not all shallow water is so well labeled …

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

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

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

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

No-DivingThe Court disagreed, holding that in order to establish a cause of action for negligence, Galinari had to first show the existence of a duty. A social host owes his invited guest the duty to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises. This includes warning the guest of any condition of the premises known to the host and which a person of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover the dangerous condition.

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

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

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

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


Case of the Day – Friday, October 30, 2015


Tip O’Neill famously said that “all politics is local.” And he was right. We spent a number of years in the Washington, D.C., metro area, where what happens on Capitol Hill makes the local news. But the Nation’s Capital and all of its intrigue doesn’t begin to match the politics in a small town smack in the center of a small county in the Corn Belt.

When we would no longer

When we would no longer “pay any price,” we beat feet out of town.

It’s election time, including in the fair city of Norwalk, Ohio (a place in which we are quite interested because some of us live here. The incumbent mayor and his challenger debated the other day, and the wannabe, a fresh face named Ryan McDonnell, embarked on his usual riff about crime (which is not an especially serious problem around the Maple City).  The local paper reported that Mr. McDonnell asserted that

“there should be no limits when it comes to achieving a safe city. ‘I’m not worried about budgets,’ he said with regarding the way he would address the drug epidemic.”

Our hometown’s mayoral challenger is way too young to remember John Kennedy’s inaugural address in January 1961. JFK intoned that “we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.”

JFK wasn’t around to see the end game in Saigon when the North Vietnamese tanks rolled into town.  Come to think of it, we weren’t around for it either, as we hightailed it out of town on the last chopper. Uncle Ho drove a stake into the Kennedy Doctrine’s heart that day. It turned out that no matter what the late President had said, we wouldn’t pay any price, meet any hardship,, and so on.  Guess what?  There are limits to how much we’re willing to pay for anything.

Norwalk’s young Mr. McDonnell doesn’t know this.  He’ll give $10,000 extra to the police gets ten more drug dealers arrested.  In fact, that sounds like a bargain. So how about $100,000 for 15 more? Or $1 million for 20 more? Or $10 million for 30 more?  You get the idea – there comes a point when the price you’re paying for an incremental increase in city safety is just too much to justify for the benefit your extra money buys you.  Mr. McDonnell’s inexperience shows:  there are limits to what Norwalkians will pay for a safe city.  There are always limits.

Is your PBJ sandwich worth the risk to some peanut-adverse kid somewhere? C'mon ... let's be socially responsible.

Is your PBJ sandwich worth the risk to some peanut-adverse kid somewhere?  C’mon … let’s be socially responsible.  Eat Vegemite instead.

All of which leads us to today’s case. A tree-related case may seem rather a prosaic illustration of this limiting principle, but the hard fact is that a dollar value on safety is set every day. People are always making demands on government or industry that are objectively unreasonable, but that they believe with all their hearts are absolutely necessary because of our own experiences.

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

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

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

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

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

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

cracked_sidewalk140401Lacasto v. City of Santa Barbara, Case No. 1188148, 2007 WL 3203036 (Cal.App., Nov. 1, 2007). On a sunny morning in September 2005, appellant tripped on a rise in a sidewalk maintained by City. The one and a quarter-inch rise occurred at the expansion joint between two adjoining concrete panels. One foot to the south of the maximum rise, the elevation diminished to one inch. Appellant tripped at a point between the one and a quarter-inch rise and the one-inch rise. Her toe caught on the sidewalk rise and she fell, breaking her left hip.

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

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

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

scalelife140401Mrs. Lacasto conceded that there was no evidence that the City had actual notice of the defective condition. Therefore, the City’s liability had to be predicated on constructive notice, which would be found to exist only that have existed for such a length of time and are of such a conspicuous character that a reasonable inspection would have disclosed them. In order to charge the city with constructive notice, Mrs. Lacasto had to show some element of notoriety to put the city authorities on notice as to the existence of the defect or condition and its dangerous character. An inch and a half-inch rise in the sidewalk, the Court said, simply wasn’t sufficiently conspicuous to put the city on constructive notice of the defect.

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