Case of the Day – Thursday, December 5, 2024

Posted on December 5, 2024 by TLRoot tagged.

MAKIN’ BACON

Running a swine farm is a smelly but serious business. When a tree fell onto a power line on his neighbor’s land and interrupted his electricity, farmer Timmerman was glad that Northern States Power came out to his neighbor’s place and promptly trimmed the tree and fixed the lines.

But his relief turned to dismay when 10 minutes after the trimmer left, the remainder of the same tree collapsed onto the power line. It turned out the tree that had caused the first outage was completely rotten and even after being trimmed, it remained a hazard.

The first power failure was an inconvenience. The second power failure was a catastrophe: it cut off the ventilation to Timmerman’s hog barn, and 160 pigs met an untimely demise.

Timmerman sued both his neighbor for not having inspected the tree — which had been rotten for at least five years — and the power company for being grossly negligent in trimming the tree. He claimed gross negligence because Northern States Power’s tariffs excluded it from liability except for gross negligence. The trial court turned him down.

The Court of Appeals agreed. It noted that gross negligence is a pretty serious dereliction of duty, and Timmerman’s saying it didn’t necessarily make it so. The neighbors didn’t have a duty to Timmerman, the Court held, because he wasn’t an invitee (or even a trespasser) onto its land. It noted that NSP had trimmed the tree to the national code, and meeting a national standard was performance enough.

It’s fairly well established that an owner has a duty to inspect trees (with a degree of care that varies according to whether the land is urban or rural). If Timmerman had been driving by and the tree had fallen onto his truck, there might have been liability. Why not when the damage isn’t an F-150, but instead 160 hogs’ worth of bacon?

Hard to believe the trees can interfere with the wires.

It’s hard to believe the trees can interfere with wires …

Timmerman v. Manguson, 1996 Minn. App. LEXIS 599, 1996 WL 266404 (Minn.App. 1996). Timmerman owned and operated a hog farm, to which Northern States Power provides electrical power. The power lines run north across the Mangusons’ farmland and continue onto Timmerman’s land. One afternoon, limbs on a willow tree located on the Mangusons’ land broke, striking the power line and causing a power outage on Timmerman’s farm.

NSP investigated the site, found the burned tree limb that had struck the power line, and trimmed some branches back. The tree trimmer investigated the trunk of the tree from his position on the power pole, but he did not see any signs of cracking or damage to the tree trunk. Ten minutes after he left the area, the power went out a second time. The trimmer returned to the site and trimmed back the tree sufficiently so that, if it continued to topple over, the tree would not hit the power lines again. The next morning, he called another NSP representative to report the outages and suggested that they send in the tree trimming crew to clean up the area.

The second power outage left about 160 pigs in Timmerman’s barn without ventilation, and despite Timmerman’s efforts, nearly all of the pigs in two of the five rooms in the barn died. The tree turned out to be rotten and, according to Timmerman’s expert witness, “undergrown … or there was a lot of trees in that area.” The expert determined that the tree had been rotting for at least the past five years and posed a significant hazard to the power lines.

Timmerman sued NSP for gross negligence and the Mangusons for negligent maintenance and inspection. Both NSP and the Mangusons moved for summary judgment. The district court granted both motions, finding, as a matter of law, that NSP had not been grossly negligent and that the Mangusons owed Timmerman no legal duty.

Timmerman appealed.

Held: The decision in favor of the Mangusons and NSP was upheld. The Court held that gross negligence was substantially and appreciably higher in magnitude than ordinary negligence. It was materially more want of care than constitutes simple inadvertence, an act or omission respecting the legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.

Timmerman presented evidence that the tree and power lines at issue could not be viewed properly from the road, but required an on-site, on-foot inspection. He also presented evidence that NSP failed to trim the tree near the lines and allowed them to become overgrown with vines and vegetation.- But the Court said that this evidence did not rise to the level of gross negligence. NSP did not demonstrate an “indifference to present legal duty” nor did it act without “scant care” or “slight diligence.”

NSP had most recently trimmed this tree within NSP’s policy of trimming every four years. Since 1990, NSP had routinely checked the power lines at issue here in accordance with the National Electric Safety Code (NESC). NSP representatives have viewed the power lines and trees from the road when driving through the area. NSP also trimmed portions of the tree after the first power outage to restore service. Although the evidence suggests that NSP could have more diligently exercised its duties, the Court ruled, that evidence only raises the question of ordinary negligence, for which NSP is not liable under its own tariffs.

As for the Mangusons, the Court held that they had no legal duty to protect Timmerman because they did not have a “special relationship” in which Timmerman had entrusted his safety to the Mangusons. The parties’ relationship as neighboring farmers does not fall into any of the limited numbers of “special relationships” that the Minnesota Supreme Court has recognized. Although Timmerman contended the Mangusons had a duty to inspect and repair the tree or else warn him of the dangers on their land, the Court held that the theories of duty and liability don’t apply here because Timmerman was not an “invitee” or “licensee” on the Mangusons’ property. Furthermore, the Court said that even if the Mangusons knew the old tree was near the power lines, knowledge of a dangerous condition, by itself, without a duty to protect, was not sufficient to establish liability for negligence.

Given that no legal duty existed, Timmerman’s negligence claim against the Mangusons could not stand.

– Tom Root

Case of the Day – Monday, November 25, 2024

Posted on November 25, 2024 by TLRoot tagged.

LINES OF AUTHORITY

Oldsters with droopy pants – not pleasant to contemplate.

A county park had a contract with Green View — a nonprofit company with the goal of putting our shiftless senior citizens to work cleaning up parks — to maintain the grounds. This is a good thing. Otherwise, retirees with their pants drooping to show their underwear and their “tatts” and funny flat-brimmed baseball caps worn sideways on their heads just hang around and ride their little electric carts up and down streets and… you know what trouble they can be.

Green View’s people were busy staying out of trouble when a tree branch broke off a tree and struck a park patron during a summer storm. Aware that a branch would never break off in the middle of a storm unless someone was negligent, the injured woman sued the county and, for good measure, went after the old people, too. She argued that the elderly working for Green Tree had a duty to inspect the park for branches that might fall off in storms. They had been too preoccupied with talking about their regularity to carry out their obligations.

In depositions, the Green View people admitted that they had looked for dead trees, but they explained that the county employees were responsible for removing hazards like that. At least one deponent might have even denounced the plaintiff as a “young whippersnapper.”

The young whippersnapper was, to use an obscure legal term, whippersnapped. The Court ruled that neither Green View’s contract with the county nor the job descriptions for its workers included any duty to inspect the trees or warn of their dangers. The county employees — who were immune from suit (just in case you are wondering why the old folks at Green View were being picked on to begin with) — all agreed that it was the county’s duty to inspect trees and warn of dangers.

The injured plaintiff couldn’t find any duty that Green View or its senior citizen workers owed her. Without the duty, there could be no negligence.

Senior citizen humor aside, it is this kind of litigation — and the legal fees Green View undoubtedly had to shoulder to defend an action for which there was no factual basis — that drives beneficial programs like this one (intended to provide meaningful work and activity for seniors) out of business. While an injury like the one the plaintiff suffered was lamentable, the reason branches fall in summer storms is fairly well understood.

Sometimes stuff happens, and suing anyone who happened to be nearby when the stuff happens seldom makes anything better.

Rolfhus v. County of Wright, 2001 Minn. App. LEXIS 319, 2001 WL 290525 (Minn.App. 2001). Dawn Rolfhus was seriously injured at a Wright County park in 1997 after a tree branch broke and struck her head during a summer storm. She and her husband sued the county and respondent Green View, Inc., a nonprofit organization that provides senior citizens with maintenance and custodial work at state and county parks. Green View had a contract with the county to maintain the park at which Rolfhus was injured.

The county park manager testified that the Green View employees, without discussion, undertook to remove the tree that had fallen on Ms. Rolfhus. Harold Johnson, a Green View employee, admitted to looking for dead trees in the park but stated that it “isn’t our job to chop down trees or anything like that.” Another employee, Frank Duncan, conceded that he never saw any county employees in the park inspect trees but that he “knew they did it.” The county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. The district court granted summary judgment to the county based on immunity and to Green View based on a determination that Green View had no duty to inspect trees or warn park patrons of dangerous trees. Rolfhus appealed the grant of summary judgment to Green View.

Held: The grant of summary judgment was upheld. The elements of a negligence claim include a duty, a breach of that duty, proximate cause, and injury in fact. Even where no duty otherwise exists, a person who voluntarily assumes a duty may be liable for failing to exercise reasonable care in performing the duty. One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.

The Court ruled that neither the language of the contract between the county and Green View nor the pertinent job descriptions created a duty for Green View employees to inspect trees or warn of their dangers. Furthermore, the county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. No issue of fact remained, and judgment was appropriately entered for Green View.

– Tom Root

Case of the Day – Friday, November 22, 2024

Posted on November 22, 2024 by TLRoot tagged.

THOU SHALT NOT COVET THY NEIGHBOR’S TREES

Kee Nee Moo Sha, Inc., had a tract of wooded land on a lake, next to a Bible camp owned by the Baptist Church. What could be wrong with that? No loud music, no dancing all hours of the night, no boozing or riotous living… right?

The minister in charge of the Bible camp knew where the boundaries between the Baptists’ and the company’s lands lay. But he had a problem. How could he build more cabins for the pittance that had appeared in his collection plate? The Lord turned seven small loaves and a few fishes into a feast for 4,000 people. But the preacher, a lesser mortal, couldn’t stretch what little he had into more lodging.

And verily, he began to covet his neighbor’s trees.

The minister had a logger cut down about a hundred of Kee Nee Moo Sha’s pine trees. Surely this was manna from heaven — free timber! Except it wasn’t free, as the Baptists soon found out.

Kee Nee Moo Sha reacted much like a modern, more restrained version of the angry vineyard owner. It sued. The Baptists failed to heed the Lord’s admonition to make peace with the plaintiff before you get to court.

Too bad, too. The court found that the minister’s trespass was willful, and in fact, it appeared to be rather irked with the fact that – once on the witness stand – the man of the cloth wasn’t very familiar with the 9th Commandment, you know, the one about bearing false witness and all.

Kee Nee Moo Sha wanted the Baptists to pay for the enhanced value of the timber — that is, the value of the timber after being milled — and the court agreed that the measure of damages is acceptable where the trespass is willful. But the court can’t guess what that value might be, and where Kee Nee Moo Sha failed to introduce any evidence of the enhanced value, it missed its opportunity.

The Baptists introduced evidence of the stumpage value of the timber, that is, the value at the point it had been cut down, but before it was hauled and milled. Stumpage value is always lower because the owner of the timber has to deliver it to the sawmill and pay for the milling before having a product to sell. Because the stumpage value was the best evidence of value in the record, the Baptists were charged for the lower figure.

The trial court assessed punitive damages against the church camp instead of the treble damages for wrongful cutting which the statute permits. The Court of Appeals noted that this was entirely permissible because sometimes trebling the damages just isn’t good enough to deter such conduct. Where the trespass is wanton but the damage only amounts to $100, $300 might just not get an errant preacher’s attention nearly so effectively as a whopping punitive award. The Court said that either trebling or punitive damages may be applied, at the trial court’s discretion.

And thus, the Baptists rendered unto Kee Nee Moo Sha …

Kee Nee Moo Sha, Inc., v. Baptist Missions of Minnesota-Plymouth Point Bible Camp, 1990 Minn. App. LEXIS 1305, 1990 WL 212222 (Minn.App. 1990). Kee Nee Moo Sha, Inc., is a family-owned corporation organized for the purpose of holding more than 100 acres of forested land near Hackensack, Minnesota, with a resort on the southern end of the property. The resort belongs to the Baptist Church.

In late 1976, in connection with the transfer of the Baptist’s church property to another church unit, a surveyor was hired to survey and mark the boundary between the Baptists’ land and the Kee Nee Moo Sha property. Shortly after the survey was completed, and while the brush was all cleared and orange flags marked the line, the surveyor walked the boundary line with one of the church’s pastors, pointing out in detail the location of the boundary.

About four years later, the pastor wanted to build more camp buildings as cheaply as possible. Looking for some do-it-yourself financing, he arranged for a local logger to cut about 100 pine trees in and near the main camp buildings. While most of the timber was cut on church property, 26 pines were cut on Kee Nee Moo Sha land. In addition, the pastor had the logger clear-cut nearly 100 birches and aspen from the same area of the Kee Nee Moo Sha property, along with 1,600 cubic yards of sand which were used in a drain field near the Baptist building project. Kee Nee Moo Sha was unamused.

A lawsuit inevitably followed. The trial court granted Kee Nee Moo Sha damages for trespass and an injunction against further trespass by the Baptists. Unhappy with the paltry damages awarded, Kee Nee Moo Sha appealed, seeking a higher measure of compensation, a more extensive permanent injunction, and costs, disbursements and attorney fees.

Held: The appellate court upheld the trial court decision.

The Court observed that there were several possible measures of damages that could be used when trespass to property involves the taking of timber. One of the oldest is the “enhanced value” of the timber after being sawed and transported to the place of sale or transfer, to be used when the trespass is willful. The presumption in trespass cases where timber is cut is that the trespass is willful, and the burden of proof falls to the trespasser to show otherwise.

Here, the trial court found it couldn’t use the “enhanced value” measure, because no evidence was introduced to permit the Court to determine the value of the processed lumber. Consequently, the trial court used the stumpage value presented by the Baptists to set compensatory damages, and awarded punitive damages, in addition, to arriving at a fair number. The trial court, passing up treble damages that were authorized but not required by statute, awarded punitive damages instead. The trial court found that “even an award of treble damages for that taking would not adequately punish [the Baptists] or compensate [Kee Nee Moo Sha] for the willful trespass which has occurred.”

The Court agreed that the trial judge’s approach was justifiable under Rector v. C.S. McCrossan, Inc., and the treble damage statute. It observed that Rector, while referring to various measures of damages, does not refer directly to punitive damages. Punitive damages may be awarded, however, when “the acts of the defendant show a willful indifference to the rights or safety of others.” The trial court found that the Baptists’ behavior was willful, and the evidence supported it.

Minnesota law provides that any award of punitive damages will be “measured by those factors which justly bear upon the purpose of punitive damages, including… the profitability of the misconduct to the defendant… the attitude and conduct of the defendant upon discovery of the misconduct… and the total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct, including compensatory and punitive damage awards.” In this case, the Court didn’t think much of the Baptists’ attitude. First, the defendant cut the timber and removed the sand in order to line its own pocket, that is, to obtain cheap building materials for the camp. Second, the pastor continued to deny any willful misconduct throughout the trial, a denial that flew in the face of proof to the contrary and his own admission that he had been shown a clearly marked boundary prior to these takings. The appellate court dryly called the jury’s awarding of compensatory and punitive damages a “just” result.

Kee Nee Moo Sha argued for the use of the “replacement value” measure of damages also authorized by Rector, but the Court noted that in instances where the cost of replacement is unreasonable or excessive in relation to the damage to the land itself, the trial court may, in its discretion, allow the jury to consider more than one measure of damages in order to permit flexibility and achieve a just and reasonable result.

– Tom Root

Case of the Day – Wednesday, November 13, 2024

Posted on November 13, 2024 by TLRoot tagged.

I FEEL PRETTY, OH SO PRETTY …

Hawkins v. McGee – the case of the hairy hand

There’s always a tension between the value that a lover of the land places on his or her trees and the price tag affixed to those same trees by the green-eyeshade crowd of financial experts testifying in some cold courtroom.

The general rule is that the measure of damages when trees are wrongfully cut should be the difference between the value of the property before the trees were removed and the value after the trees are taken down. Fans of the old case of the hairy hand (Hawkins v. McGee) from law school remember the general diminution of value concept. Notwithstanding this staple of first-year contracts class, courts in many states have carved out exceptions to the rule for situations just like today’s case.

The problem usually arises when only a relatively few trees of limited commercial value are removed or destroyed. In today’s case, an Episcopal Church lost 22 small trees when a contractor dumped too much fill dirt – taken from a road construction project – around their bases. The Church proved in court that replacing the trees — a couple cherry trees and a score of red oaks — would cost just over $17,000. But the trial court threw the case out because it believed that the replacement costs weren’t relevant. Rather, the trial court said, the Church was obligated to prove how much less its land was worth with the trees gone.

The “tree volcano” … pile dirt around the base, and suffocate the sapling. The Church lost 22 trees this way.

Holy birch bark! The problem was that the worth of the property hadn’t fallen much, it being close to a road and of limited use (there’s not that much of a market for church properties). But the Church didn’t want the diminution in property’s value for its collection plate: it wanted its trees back. The Minnesota Supreme Court had mercy on the Church, holding that where the trees served a function that was primarily aesthetic, replacement cost was a fair calculation.

Sometimes justice can’t be done by using the cold, analytical diminution-of-value approach. Occasionally, the wronged owner just plain likes the trees that had been taken, and who’s to say that because the loss may be measured psychologically rather than economically, the damaged party shouldn’t be compensated. We always thought that in such cases, the wrongdoer should be held to lose much of his or her moral standing to complain about how injured the injured party is. In this case, the Court said, that the owner’s enjoyment of the trees might not be quantifiable in a real-estate-value analysis just didn’t matter. (The second case we studied in law school, Peevyhouse v. Garland Coal & Mining Co., has always illustrated the mischief that can be done when a court ignores the aesthetic expectations of the wronged party).

The decision is necessary in the world of tree law because otherwise, too many cases would founder on the rocks of damages: too many malefactors could cut down too many trees, and the likely penalties, even with treble damages available, would not deter the conduct.

Rector, Wardens & Vestry of St. Christopher’s Episcopal Church v. C.S. McCrossan, Inc., 306 Minn. 143, 235 N.W.2d 609 (Sup.Ct. Minn. 1975). When the Minnesota Department of Highways took about 8/10ths of an acre from St. Christopher’s to enlarge the intersection, the church lost its existing access and part of its parking area. The Rector hired C.S. McCrossan to construct a new parking space and access road.

A grove of trees was located at the north end of the lot. In the process of grading, McCrossan dumped fill around the base of the trees, which the church argued caused the trees — two black cherry trees and twenty red oaks — to suffocate and die. The church’s expert testified that because of the variety, size, and condition of the trees, they had a total value of $17,267.

The church asserted that the grove of trees not only acted to screen the area from heavy traffic on two sides but also gave the area a natural, pleasing, aesthetic, wooded atmosphere. The trial court directed a verdict for C.S. McCrossan on the ground that the church failed to prove damage based on the diminution in value of the real estate.

The church appealed.

Held: The decision was reversed. The Minnesota Supreme Court ruled that the proper measure of damages for negligence in suffocating the trees was the replacement cost of trees rather than merely the loss of value of the real estate, notwithstanding the inability of the church to prove that the destruction of trees diminished the value of the property as a whole. The replacement cost of trees that have an aesthetic value to the owner as ornamental and shade trees or for purposes of screening sound and providing privacy may be considered in determining damage incurred from the destruction of the trees to the extent that the cost is reasonable and practical.

Although the evidence may be presented in rebuttal that the effect on the value of land as a whole is minimal, it is for the jury to balance elements of damage in arriving at a just and reasonable award.

– Tom Root

Case of the Day – Thursday, September 5, 2024

Posted on September 5, 2024 by TLRoot tagged.

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

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

Do you remember Flap Your Wings? It’s a great children’s book by P.D. Eastman, a favorite of my 6-year-old grandson Ezra, a story in which Mr. and Mrs. Bird suddenly find an oversize egg in their nest, placed there by a well-meaning stranger who found the orb on the ground and wrongly deduced it had fallen from the tree. They love and care for the egg, but it hatches into something that unexpectedly becomes a real nuisance in their nest. A great book with a happy ending… but no spoiler alert is needed here. We won’t tell you what hatched.

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

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

The Court disagreed with the Bergins’ defense, ultimately adopting the rationale of the Colorado case of Rhodig v. Keck. The intent of the parties, the Court ruled, rather than the location of the tree that governed whether the tree was a boundary tree.

Little trees don’t stay little…

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

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

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

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

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

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

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

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

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

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

– Tom Root

Case of the Day – Wednesday, July 31, 2024

Posted on July 31, 2024 by TLRoot tagged.

TRAGEDY AND CLEVER LAWYERING

When a late summer storm blew up in Minneapolis, Chauncey Moua and his wife decided to retreat to the safety of their home to await its passing. They pulled up at home to take shelter. That’s when Mr. Moua decided to park in front of the neighbors’ house, because the neighbors’ tree, the branches of which were overhanging the Moua homestead, was swaying dangerously in the high winds. As he parked the car, a branch fell, killing him.

What do you do after the funeral? After a suitable period of mourning – maybe a few hours or so – you could hire a really dedicated lawyer. Like maybe Doug Crawford. According to the California Court of Appeals, Mr. Crawford appeared at a deposition with pepper spray and a stun gun. Before the questioning began, Crawford held the can of pepper spray about 3 feet from the face of the opposing lawyer, Walter Traver, and warned him: “I will pepper-spray you if you get out of hand.”

Way to be an advocate, Doug! We’ve sat through countless droning hours of depositions ourselves, and we can fairly predict that we’d have paid cash money to see Doug yell, “Objection!” and fry his learned opponent’s butt. Any plaintiff wants a lawyer who won’t mess around.

Objection! Counsel is tasing the witness.

Mrs. Moua couldn’t line up barrister Crawford, but she found herself a shark nonetheless. Her attorney sued her neighbors, the Hastings, for negligence. That was hardly a surprise, but the count for trespass he added on Mrs. Moua’s behalf made the case somewhat unusual. The claim was novel: the complaint alleged that branches from the Hastings’ tree fell on the Moua property, creating a trespass. The damage from the trespass, Mrs. Moua claimed, was the death of Mr. Moua.

Credit her lawyer with a creative argument, but the Court of Appeals said “no cigar.” Mr. Moua had pulled up in front of the neighbors’ house and was standing in the street next to his car when he was struck. In other words, the tree branch that caused the damage – that is, struck Mr. Moua – was not trespassing on Moua property. As for the claim that the trespassing branches on Moua property forced Mr. Moua to move his car elsewhere, and while doing so he was killed, the Court found the injury to Mr. Moua was too remote to the trespass for a causal link to have been shown. Shades of Mrs. Palsgraf!

The original “reasonable foreseeability” negligence action … a Rube Goldberg tort if ever there was one.

What, you might wonder, was to be gained from adding a trespass count to the lawsuit? Mrs. Moua had already claimed the neighbors were negligent in not taking care of their tree. The answer lies in fault finding. To win a negligence count, Mrs. Moua had to show the neighbors had actual or constructive notice that the tree was dangerous. Trespass is much simpler. All Mrs. Moua had to show there was that the branches fell onto the Moua property. A trespass cause of action would make collecting big bucks from the Hastings much easier.

The Court left for another day the interesting question of whether a falling branch belonging to another that strikes a landowner on his land might be a trespass.

Moua v. Hastings, 2008 Minn. App. Unpub. LEXIS 465, 2008 WL 933422 (Minn.App., April 8, 2008). Blia Moua and her husband, Chauncey Moua, left their home in Minneapolis to pick up their daughter from work. After driving a few blocks, they noticed that the weather suddenly worsened. Moua and her husband became fearful and decided to return home after they saw tree branches falling due to the heavy rain and wind. When they got there, they stopped their vehicle in front of their own home, but Chauncey decided to move the car because he was worried that the storm would blow branches of trees belonging to their neighbors, the Hastings, onto the car. The Hastings lived next door to the Mouas, and some branches of a tree in their front yard hung over the Mouas’ yard. Mr. Moua parked the vehicle in front of the Hastings’ home — where he parked often — and got out of the car when a branch fell from a tree, killing him.

Mrs. Moua admitted that she saw the Hastings’ trees on a daily basis and had never noticed any dead branches. Neither she nor her husband had ever asked the Hastings to trim the trees.

After the Mouas sued for trespass and negligence, the Hastings moved for summary judgment. As for Mrs. Moua’s claim that the branches that had fallen were a trespass on her land by the Hastings, the trial court held that Mrs. Moua had not established how the branches interfered with her use and enjoyment of her property, and the only danger caused by the tree’s branches was due to a severe storm that was noted as one of the worst in several years. Mrs. Moua appealed.

Mrs. Moua's lawyer was pretty sharp - just a little ahead of his or her time.

Mrs. Moua’s lawyer was pretty sharp – just a little ahead of the wave.

Held: Summary judgment was affirmed. The Court of Appeals held that in Minnesota, a cause of action for wrongful death is purely a legislative remedy. A cause of action for wrongful death exists when death is caused by the wrongful act or omission of any person. Although causation is generally a question of fact for the jury, where reasonable minds can arrive at only one conclusion, causation becomes a question of law, and it may be disposed of by summary judgment. Trespass encompasses any unlawful interference with one’s person, property, or rights, and requires only two essential elements: a right of possession in the plaintiff and unlawful entry upon such possession by the defendant.

Here, the Court said, the trial judge correctly concluded that even if there had been a trespass, there was no causal link between that trespass and the injury that occurred. The undisputed facts showed that the injury to Mr. Moua occurred on the public street in front of Hastings’ house. Even looking at the evidence in the light most favorable to Mrs. Moua, the Court said, as a matter of law she failed to present a causal link between the alleged trespass by the Hastings’ tree branches and Mr. Moua’s death in the street.

The Court thus concluded that summary judgment in favor of the Hastings on the wrongful death claim was proper.

– Tom Root