Case of the Day – Monday, March 24, 2025

Posted on March 24, 2025 by TLRoot tagged.

IF A TREE FALLS ON A CAR, AND THERE’S NOBODY TO SUE, DOES IT STILL MAKE A NOISE?

After the Virginia Supreme Court decided in Fancher v. Fagella that Linda Landowner has a duty to ensure her trees don’t become a nuisance to her neighbor Arnie Adjacency, you could be forgiven for reasoning that she also has a duty to be sure that her trees don’t fall on Mortimer and Mildred Motorist. After all, a duty to protect others from physical harm ought to rank higher on the hierarchy of social good than keeping Arnie’s retaining wall from collapsing.

One of the beauties of the law, however, is that it often does not make sense. The Virginia Supreme Court had an opportunity to underscore that unsurprising phenomenon when it ruled that Fancher’s departure from the old Virginia Rule of Smith v. Holt didn’t extend to a landowner’s duty to the passing public. When a tree in the front yard dies, decays, and falls on the road, let the driver beware …

Cline v. Dunlora South, LLC, 726 S.E.2d 14 (Supreme Ct. Virginia, 2012). Cline was driving on a public road when a tree fell and crushed the roof of his car. Cline suffered severe and permanent injuries, including fractures of his cervical spine.

The tree was located about 16 feet from the edge of the road, on land owned by Dunlora South. At the time of the mishap, the road was traveled by about 25,000 vehicles per day. The tree, about 25 inches wide, was “dying, dead, and/or rotten” at the time it fell. It had been in this condition for “many years,” the Court said, “and exhibited visible signs of decay, which were open, visible and/or obvious.” According to Cline, the tree’s condition was or should have been known by Dunlora, just as the company should have been aware of the hazards presented by trees being next to the public highway. Cline sued, but the trial court held that Virginia law did not provide for recovery of personal injury damages caused by a private tree falling on a public highway. Cline appealed, and the case reached the Virginia Supreme Court.

Another Latin phrase … this one more familiar ...

Held: The Court held that, even after Fancher v. Fagella, a private landowner was not responsible for damages to a person using a public highway, when that damage was caused by a tree located on the landowner’s property. At common law – that is, the law imposed and changed incrementally by judicial decisions handed down over the years – a landowner owed no duty to those outside the land with respect to natural conditions existing on the land, regardless of the danger posed by such dangerous conditions. Although Virginia courts had never recognized that principles of ordinary negligence apply to natural conditions on land, in Smith v. Holt, an adjoining landowner was held to have a nuisance cause of action if an injury was inflicted by the protrusion of roots from a noxious tree or plant on the property of such adjoining landowner. The Court observed that the duty it recognized in Smith v. Holt was “in accord with the broad common law maxim: ‘sic utere tuo ut alienum non laedas’ – one must so use his own rights as not to infringe upon the rights of another … The principle of sic utere precludes use of land so as to injure the property of another.”

It was this principle that gave birth to the “Virginia Rule,” a splitting of the difference between the Massachusetts Rule and the Hawaii Rule.

Fancher changed a lot, the Court admitted. It modified Smith’s “Virginia rule” by discarding the subjective requirement of “noxious” nature and imposing a limited duty on owners of adjoining residential lots to protect against actual or imminent injury to property caused by intruding branches and roots. Fancher established a rule allowing relief where trees encroaching onto the land of another begin to constitute a nuisance, that is, when they encroach upon the property of another such that they cause actual harm or the imminent danger of actual harm. Fancher recognized that a trial court must determine whether circumstances are sufficient to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots.

We bet the driver heard this one …

The Court held here that the Fancher rule imposing a duty on a tree owner to protect a neighbor’s land from damage caused by the tree, only “addresses a narrow category of actions arising from nuisance caused by the encroachment of vegetation onto adjoining improved lands.” The Fancher and Smith duties are dramatically different than imposing a duty on a landowner to monitor the natural decline of his or her trees adjacent to a roadway. Fancher does not impose a duty on a landowner to inspect and cut down sickly trees that have the possibility of falling on a public roadway and inflicting injury.

Instead, the duty owed by adjoining property owners is to not do anything to make the highway more dangerous than it would be in its natural state. In this case, no one suggested that Dunlora engaged in any affirmative act that made its property adjoining the highway different than it had been in its natural state. Cline’s complaint was that Dunlora failed to act, and Virginia common law tort principles do not hold that a landowner owes a duty to take affirmative acts to protect travelers on an adjoining public roadway from natural conditions on his or her land.

– Tom Root

Case of the Day – Friday, March 21, 2025

Posted on March 21, 2025 by TLRoot tagged.

BRANCHING OUT

Crunch. And after the tree falls, the insurance company adds insult to injury.

Crunch. After the tree falls, the insurance company adds insult to injury.

An unhappy homeowner from urban Cincinnati, Ohio – we’ll call her Sylvia Glade – wrote to us about her neighbor’s oak tree. It seems that one of the oak’s branches was overhanging Sylvia’s home. The branch constantly dropped sticks, and the tree itself has been shedding branches regularly. As far back as the late 1990s, Sylvia thought the tree was dangerous and began asking her neighbor, whom we’ll call Elouise, to do something about it. A tree expert whom Sylvia hired five years ago to inspect her own trees agreed, saying the big oak should go.

The elderly Elouise was unmoved. She gave Sylvia permission to cut down the tree (as long as Sylvia paid for it), but then denied her the right to enter the property to do so. With the property line hard up against Sylvia’s house, Sylvia couldn’t even get a ladder under the branch to cut it away without Elouise’s cooperation (which, it is obvious by now, was not to be forthcoming).

But there’s good news: Sylvia doesn’t have to worry about that branch anymore. Sadly, there’s bad news, too: the branch is no longer a hazard because it fell on a windy day, crushing two floors of Sylvia’s house. Her neighbor’s insurance carrier said, “Oops, looks like an act of God! Not our responsibility.” Sylvia thinks God should be left out of things because the branch — which broke right at the trunk — looked very decayed.

Elouise’s insurance company says Elouise had no idea the tree wasn’t healthy. “She didn’t know, so we don’t owe,” the company’s mantra seems to be. Sylvia complains she told the neighbor on many occasions, and even the neighbor admits she saw decayed branches that had fallen from the tree. Once, Elouise even hired Sylvia’s son to haul away some large branches that the old oak shed in a windstorm. Sylvia asked us what duty of care Elouise owed her under Ohio law.

We start with the evolution of the Massachusetts Rule. Originally, the Rule held that a homeowner usually had no remedy against overhanging branches, other than his or her right to trim the branch back to the boundary line. That Rule has been limited in the last score of years or so, notably in the Virginia Supreme Court case of Fancher v. Faglia (2007) and the North Dakota Supreme Court holding in Herring v. Lisbon Partners Credit Fund, Ltd. (2012). Both of those courts ruled that while a property owner might be limited to self-help where an encroaching tree was only doing what trees do – that is, dropping leaves, nuts, berries, seedpods and twigs – where a tree becomes a nuisance, the owner of the tree is liable for removing it.

The relevant Ohio case is Nationwide Insurance Co. v. Jordan. In that case, Mrs. Jordan’s big maple tree fell, damaging the neighbors’ place. They sued Mrs. Jordan, claiming the tree trespassed.

No dice, the Court said. The trespass claim would only work if the tree were an absolute nuisance, and that isn’t the case. Mrs. Jordan would be liable, the Court held, if she actually knew the tree was dangerous or if she reasonably should have known the tree was dangerous. The Court decided Mrs. Jordan had neither kind of knowledge. The neighbor, although vociferous in her condemnation of the tree to anyone else in earshot, admitted that she never complained to Mrs. Jordan about it.

In Sylvia’s case, the insurance company is wrong. It’s not enough that the neighbor says she didn’t know the branch was dangerous. The other half of the question is this “should have known” business. Was Elouise on constructive notice that the tree was dangerous, that is, should she reasonably have known the decay was making the tree unsafe? If Sylvia is right, the evidence will show the neighbor was told many times the tree was a hazard. Elouise had witnessed the tree drop a number of large branches in the previous years. She had to hire Sylvia’s brawny son to clean up the mess. And Sylvia told her about the danger, even agreeing to pay for the removal of the tree herself.

Several Ohio cases (such as Wertz v. Cooper) suggest that neighbor Elouise – being an urban dweller – has a greater duty to inspect her trees than would a country squire. The evidence suggests Elouise had every reason to be concerned about the tree, and thus had a duty to inspect it to be sure it wasn’t about to collapse Sylvia’s house.

Elouise’s insurance company may want to rethink its position… and start looking for its checkbook.

Nationwide Insurance Company, et al. v. Jordan, 639 N.E.2d 536 (1994). This action arose between adjoining landowners as a result of the falling of a mammoth maple tree. The insurance company, which had paid the damages to its insured’s place, sued for trespass and negligence. The defendant tree owner testified that she had no notice the tree was susceptible to falling. Her tenant likewise testified that she had no notice of the tree’s danger. The defendant’s tree service manager testified that he worked on the property’s trees every two years and that the tree in question was not unsafe less than two years before it fell. The only person to testify to notice that the tree was rotten and likely to fall was the plaintiff’s insured.

The trespass claim arose because the plaintiff maintained that the falling tree trespassed on the insured’s property. The trial court made short work of this, holding that the only way liability could be imposed on Mrs. Jordan without proof of fault would be if the tree were an absolute nuisance. Healthy trees growing on real property, even urban real property, are not absolute nuisances, the trial judge said. Thus, the insurance company had to prove that Mrs. Jordan either knew or had constructive knowledge that the tree was likely to fall. The insurance company couldn’t prove that, so the trial court found for Mrs. Jordan. The insurance company appealed.

A diagram of one modern method of measuring a tree’s decay. Elouise had any number of options – some cheap, some costly, some old school, some high-tech – for verifying the health of her big old oak.

Held: Mrs. Jordan was not liable. The Court said that there was no evidence that Mrs. Jordan actually knew or had any reason to know that the maple tree was in danger of falling. The neighbor complained that the tree’s propensity to fall was obvious to her, but she admitted he never told Mrs. Jordan. The Court observed that “[h]ad the plaintiff conveyed this knowledge to her neighboring landowner, the danger might well have been obviated, or, alternatively, the plaintiff’s hands would be clean and the defendant would have been on notice and resultantly liable for the fall.”

The Court further held that a tree on an owner’s property was not an “absolute nuisance,” and thus the adjoining landowner could not proceed merely upon strict liability against the owner. Instead, the neighbor was required to prove negligence. To recover on a theory of negligence arising out of a falling tree, a plaintiff’s evidence must establish that the defendant had actual or constructive notice of patent danger that the tree would fall. Here, Mrs. Jordan had neither actual notice nor constructive notice of the tree’s dangerous condition. Both Mrs. Jordan and her tenant testified that they had no notice of the tree’s danger, Mrs. Jordan’s regular tree trimming contractor worked on the property’s trees every two years and found that the tree in question was not unsafe not more than 24 months before it fell.

The Court ruled in favor of Mrs. Jordan.

– Tom Root

Case of the Day – Thursday, March 6, 2025

Posted on March 6, 2025 by TLRoot tagged.

A DUTY TO HECTOR?

Today, we continue our consideration of the problem posed by Tracy from Pinebark, New York.

You recall Tracy’s problem from yesterday: the neighbor’s arguably dead tree fell on her car, crushing it. She and her husband are tenants, and her landlady’s insurance carrier won’t cover the damage because it says the tree was dead. The neighbors’ insurance company won’t cover the damage because it says the tree was alive. Tracy’s arborist agrees with her landlady that the tree was quite dead, and the neighbors appear to have had actual knowledge (from work done by a previous arborist they had hired) that the tree was a hazard.

Yesterday, we discussed why Tracy’s local lawyer should argue that the neighbors are liable no matter what their skinflint insurance carrier may say. But Tracy, who understandably is looking for as many deep pockets as she can find, has asked whether her landlady is liable as well because she knew the neighbor’s tree was a hazard, but she never informed the neighbor of that fact. And that raises a very interesting (and rather creative) question.

Once again, we warn Tracy that we are not New York lawyers, and we are not rendering legal advice. She should see her local attorney for that. That being said, there’s not much guidance in New York law for her problem. A landlord who holds her land open to the public is under a legal duty to exercise reasonable care under the circumstances to maintain the premises in a reasonably safe condition. This duty is usually discussed in the context of landlords who don’t keep their premises secure against reasonably foreseeable criminal acts by third parties (locked doors, security cameras, and the like). The duty “imposes a minimum level of care on landlords who ‘know or have reason to know that there is a likelihood that third parties may endanger the safety of those lawfully on the premises’.”

A landlord must anticipate the risk of harmful acts of third persons, adopting the duty of care set out in the Restatement (Second) of Torts § 344. That is, a landlord must exercise reasonable care to discover that such harmful acts are being done or are likely to be done, give an adequate warning, or otherwise protect the visitors against it.

Most of these principles address the landlord’s duty to warn tenants and invitees of harmful conditions. Even if this created a duty on the part of the landlord to warn Tracy and her husband that the neighbor’s tree might fall, it doesn’t necessarily mean that the landlady had a duty to Tracy that required her to tell the neighbors that they had a dangerous tree on their hands. We just can’t find any holdings that create such a duty.

One part of the reason might be the futility of it. Telling the neighbor that he has a “danger tree” on his land that might someday injure the landlord’s tenant doesn’t really get anyone anywhere because the landlord is without any power to remove or trim the tree herself (it was well within the neighbor’s property boundaries). The landlord might have sued the neighbor for maintaining a private nuisance and might even have won a judgment against the neighbor — especially after limbs fell from other trees last summer, causing damage to the landlord and the tenant — but the likelihood that the suit would have been successful is problematic.

Another part of the reason might be Palsgrafian causation. Just like Mrs. Palsgraf in the famous Long Island Railroad case, the causation link — the landlady’s failure to warn the neighbors led to the tree falling and the injury — is pretty tenuous.

A third problem lies in Tracy’s analysis of her status as a tenant. As a tenant, she has the exclusive right to possession of the property. If the landlady had a duty to tell the neighbor about a “danger tree” on the neighbor’s property, we would be very surprised if Tracy didn’t have as much of a right and duty as did the landlady to tell the neighbor about the tree. Likewise, we would be surprised if Tracy herself couldn’t have maintained the private nuisance action against the neighbor to force removal of the tree. Generally speaking, having the right of possession of a piece of real estate is a powerful club, one which lets the possessor wield nearly as much power as does the titleholder. In this case, we suspect that Tracy herself had the power to do what she complains her landlady didn’t. And clearly, she had as much knowledge of the tree’s condition as her landlady did.

And that brings us to the final point. Tracy makes a compelling case that the neighbors knew all about the condition of the dead tree. Their agent, the tree surgeon, certainly knew as well because he had removed a diseased bough, and that knowledge is imputed to the neighbors. If the neighbors had gotten a report from the arborist on which they refused to act, it’s pretty hard to argue convincingly that things would have changed if the landlady or Tracy had also told the neighbors what they already knew: the tree was dangerous and should be removed.

Causation and foreseeability are often wrapped in the same package. In a New York case we’ll consider today, Mr. Fleury knew that his big ol’ apple tree was pretty close to the power line running to his house. Well, nature’s bounty — a really good apple crop — caused the tree to fall over partially, and the tree touched the wires. Mr. Fleury called the power company and said, “You need to fix this!” The power company said, “Nope, it’s your wiring from the transformer to the house. You fix it.” Mr. Fleury didn’t, and within about 10 days, the tree on the wires caused a short circuit.

But, electricity being the capricious thing it is, it didn’t hurt Mr. Fleury. Instead, a “backfeed” went through the transformer and down his neighbor’s lines, setting fire to the neighbor’s place 165 yards away. Should Mr. Fleury be liable? He would have been if it had burned down his own house. The Court said it all depended on whether Mr. Fleury could reasonably foresee that his procrastination at getting the tree trimmed might have the effect it had.

How likely is it that a court would find that the landlady’s failure to hector her neighbor about a tree the neighbor already knew was a hazard would foreseeably lead to Tracy’s car being crushed? Probably not very. Such a holding would open the floodgates, making homeowners everywhere liable to their invitees if they were deemed not to have nagged their neighbors sufficiently over conditions that the homeowner had no power to correct. For example, we live on a side street where a neighbor has a testosterone-driven teenage son. He recklessly speeds his old junker of a car up and down the street. If our houseguest gets run down by the lad, would we be liable on a claim that we had been negligent because we never complained to the boy’s mother about the kid’s speed? It seems an awful lot like “blame the victim.”

Certainly, Tracy should ask her local lawyer about her claim against the landlady. But we think it’s a stretch the courts won’t buy.

Allstate Ins. Co. v. Fleury, Case No. 5:99-CV-1261, 2007 U.S. Dist. LEXIS 29354, 2007 WL 1200137 (N.D.N.Y. Apr. 20, 2007). A fire caused substantial damage to the Thaddeus Jastrzab residence. Allstate Insurance paid the Jastrzab claim and then sued Niagara Mohawk Power Corporation and Jim Fleury, the next-door neighbor. It seems the fire started at the Jastrzab home, but it was caused by a “backfeed” from the NiMo transformer that fed both the Jastrzab and Fleury homes.

Fleury had an apple tree that had grown near the lines for years without trimming. About 10 days before the fire, a large apple crop on the tree partially uprooted it and caused a limb to contact the electric wires feeding Fleury’s house. Fleury asked NiMo to fix it, but NiMo said Fleury owned the electric wires and was responsible for their upkeep. Fleury said he was concerned that the tree limbs touching the wires might cause a fire, but he did nothing more after NiMo passed the buck.

After the Jastrzab fire, an investigation found that the backfeed was caused by a tree limb that touched the old-style two-wire system, forcing the wires into mutual contact. The contact energized the neutral line owned by NiMo, which dumped excess current through its transformer and down the electric lines supplying the Jastrzab home. The electricity caused the grounding wire to overheat and arc onto Jastrzab’s roof. The fire was intensified by the fact that Jim Fleury’s home was not adequately grounded at the time, sending the electricity to look for a ground at the Jastrzab’s place. The trial court found that neither Fleury nor NiMo liable for the damages caused by the Jastrzab fire. Allstate moved for reconsideration.

Held: Allstate loses. Allstate complained that the Court inaccurately applied the law of negligence and foreseeability to the facts in this case. It argued that the Court was wrong when it found that the fire at the Jastrzab residence was not a reasonably foreseeable consequence of Fleury’s failure to remove the apple tree limb from his power lines. Allstate argued that the “precise occurrence” did not have to be foreseeable in order for liability to be imposed on Fleury. Fleury would have been liable if the fire had started at his house, Allstate said, and therefore, liability should be imposed for the fire that started 165 yards away.

The Court disagreed. The proper focus of the inquiry is on the foreseeability of the risk. This is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could reasonably have been anticipated. Although virtually every untoward consequence can theoretically be foreseen “with the wisdom born of the event,” the Court said, the law draws a line between remote possibilities. No person can be expected to guard against harm from events that are so unlikely to occur that the risk would commonly be disregarded.

The precise manner in which the harm occurred need not be foreseeable, but still, the Court held, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty requires one to try to prevent. Here, no fire took place on the Fleury property. Instead, it started 165 yards away. No one reasonably foresaw that happening.

The law draws a line between remote possibilities and those that are reasonably foreseeable. Here, the likelihood that Defendant Fleury could have foreseen the chain of events – that the tree limb touching his power lines might create an electric backfeed fire that damaged the Jastrzab residence – was too tenuous and remote to permit recovery under a negligence cause of action.

– Tom Root

Case of the Day – Tuesday, March 4, 2025

Posted on March 4, 2025 by TLRoot tagged.

TEACH YOUR CHILDREN WELL

Mrs. Dahlquist and her evil spawn, Jeff Zube, lived in pretty close proximity to several neighbors, including the Careys. The constant obscenities, threats, spitting from balconies onto the neighbors, rotten eggs and lit cigarette butts got a little wearing on the Careys. They finally sought an anti-harrassment order under a California statute — Section 527.6 of the Code of Civil Procedure — to get Ma Dahlquist’s gang of two to stop.

Common law provides no remedy to restrain a neighbor who, unfortunately, has a sewer for a mouth and a tar pit for a soul, sad to say. Statutes like the California’s CCP § 527.6 are not all that common, but they are becoming more and more so, because – and here we can all bemoan the erosion of the Republic – neighbors like Joe and Dorothy (who’ll mow your lawn for you and deliver warm brownies from time to time) are getting to be scarcer, and next-door harridans like Ms. D and her whelp are becoming more common.

The lesson in today’s case is that if you’re going to be nasty to one neighbor, be sweet to the others. If you’re a jerk to everyone, expect some piling on. Not surprisingly, that happened here: complainants against Ms. Dahlquist and fil came out of the woodwork, with everyone on the block more than happy to cite the constant bird-flipping, the obscene insults, and general squalor that surrounded the harpie and her mordant boy.

Dahlquist and Zube, of course, denied everything. Movie fans will remember the memorable Blues Brothers scene with Jake Blue (John Belishi) telling a gun-totin’ Mystery Woman (Carrie Fisher) that “it wasn’t my fault!” In the face of rather detailed, graphic even, descriptions of the Dahlquist/Zube misconduct by the neighborhood, the trial court didn’t believe a word of it.

The Dahlquist/Zube gang appealed. Appellate courts expect that – winner or loser – a party will give the court a reasonably complete and balanced assessment of the record below. Not Dahlquist and Zube. If the fact didn’t fit with their worldview, they just left it out. That didn’t leave much in their recitation of the “facts.” The Court of Appeals wasn’t detained long by this creative pleading: it held that the record below amply made out a pattern of harassment that was such that it would cause a reasonable person to suffer substantial emotional distress. It certainly did for the Careys, and the Court found that under the circumstances, a three-year order was fully justified.

Carey v. Dahlquist, 2007 Cal. App. Unpub. LEXIS 10631, 2007 WL 4555793 (Cal.App. 1 Dist.) Dahlquist and Carey live next door to each other in Sausalito, California. Dahlquisht’s 19-year-old son, Zube, lives with her. Carey filed a § 527.6 petition alleging that, among other things, her neighbor Dahlquist screamed obscenities at her and used “constant foul language, verbal comments (‘this is war’) and written threats.” Dahlquist had also “ordered tree people onto my property and cut down (removed two 30 ft high trees).” Carey requested an order that Dahlquist stay away from her and that “she not be able to come out on her deck and scream obsenities [sic] at me or my husband as I go up and down my stairs.” In addition, Carey asked the court to order that Dahlquist “not hire workmen to come onto my property and destroy my property” and that she “pay for the survey and replace the trees she removed.”

The same day, Carey filed an application for a temporary restraining order against young Zube, alleging that in a two-page list of “confrontations” with Zube, he had thrown eggs from his balcony, shouted obscenities at her husband as he came up the stairs, threw poppers onto the stairs while Carey and her husband were walking up the stairs, and made “exceptional noise” emanate from his stereo. On multiple occasion, lighted cigarette butts were found on the wooden stairs at Carey’s house. Neighbors provided affidavits complaining of similar acts.

The record also contained a declaration from Jeff Zube’s father claiming that Carey was a chronic complainer, and anyway, young Zube would be leaving soon for Santa Barbara to attend college. Nevertheless, the trial court granted the petition as to both Zube and Dahlquist, holding Zube had “an out-of-control and extremely disrespectful side of you and I’ve seen it in court, and I’ve heard it from the testimony.” The court found that Carey and her witnesses were credible and Dahlquist and Zube were not. It issued a 3-year restraining order, and Dahlquist and Zube appealed.

Held: The order was upheld. Section 527.6 provides that a person who has suffered harassment as defined in the statute may seek an injunction prohibiting harassment as provided in this section. “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the plaintiff. A “course of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail.

The Court decided that Carey had provided clear and convincing evidence of a knowing and willful course of conduct by Dahlquist. She described confrontations with Dahlquist in which Dahlquist threatened legal action against her and shouted obscenities at her husband as he came up the stairs. Carey found Dahlquist’s behavior threatening. Carey’s neighbor testified that he, too, had been on the receiving end of threatening and harassing behavior from Dahlquist, including her falsely accusing his wife of leaving an obscene message on her voicemail. The Court held that the trial judge had found substantial evidence on which the base the issuance of a permanent injunction.

As for Zube, the evidence established that he had thrown lighted cigarettes on the wooden stairs leading to Carey’s home, that he had spit on the deck, and had thrown poppers on the stairs while Carey was walking up them and also shouted obscenities at Carey. Neighbors confirmed that this sort of behavior had been directed at them as well. Substantial evidence, therefore, supports the trial court’s issuance of the permanent injunction. The continuing course of harassing conduct by Zube and Dahlquist left both Carey and her husband fearful and distressed. This showing was sufficient to indicate a reasonable probability that the course of conduct would continue into the future. It didn’t matter that Zube was leaving for college (think John Belushi in Animal House). The trial court found his other testimony lacked credibility, and the Court of Appeals said it was entitled to disregard his representation that he was leaving.

Even if he did, like a bad penny, he’d probably return.

– Tom Root

Case of the Day – Friday, February 28, 2025

Posted on February 28, 2025 by TLRoot tagged.

Toga, Toga!!

So you heard about the sweethearts of Sigma Chi? The story broke about eight years ago about how the Sigma Chi frat brothers at Southern Methodist University – who lived off-campus in an upscale place called Maison des Animaux – harassed the O’Connells, their next-door neighbors, for sport. Oh, the high jinx of these fun-loving rascals! Among other pranks, they liked to urinate on the O’Connells’ fence, write obscenities in the snow in their yard, spit on the O’Connell house, and throw raw meat onto the patio (prime cuts of beef, we hope).

It all started with a noise complaint, something to do with the brothers’ 24/7 partying. As the Grinch might have said, “The noise, noise, noise, noise, noise!” Mr. O’Connell said he “brought it to their attention and said ‘you can’t do that.’ They told me they pay rent and they can do whatever they want. It’s their right.”

The O’Connells now, after a year of abuse, had the media worked into a righteous froth. So that should take care of that. But were the brothers right? Can they do whatever they want until you’re finally able to get a crew from Action News to show up with cameras and a scowling investigative reporter?

Consider the poor aggrieved neighbors, the Rileys, in today’s case. They didn’t have an Eyewitness News crew. But they did have a lawyer. The house next door to the Rileys was owned by a landlord who rented it to some dopers. But not just any dopers. This wasn’t just boom boxes blasting the Grateful Dead and the wafting smell of freshly decriminalized marijuana. Nope, the neighbors here were good capitalists, appearing to run a brisk retail operation, with traffic at all hours of the night and unsavory customers. Imagine a 24-hour McDonald’s drive-thru window, but handing out nickel bags instead of Big Macs and Eggs McMuffin. [Editor’s note – we had a lively debate over how to pluralize McDonald’s famous breakfast sandwich. The Editor won.]

The traffic was accompanied by the screeching of tires, the occasional and casual vandalism toward the Rileys’ property, cursing and shouting, and the discharge of firearms. Someone even shot the Rileys’ dog.

Now we’ll put up with a lot, but we won’t put up with that. You shouldn’t shoot a dog. (See this post for more details). The Rileys felt the same. They complained in winter 1999, but nothing changed. The police raided the place, but all they found was some personal-use marijuana. The Rileys complained to landlord Richard Whybrew again. The Attorney General complained to Mr. Whybrew. Nothing happened. Mr. Whybrew said the tenants were paying their rent, so he wasn’t going to do anything. Apparently, he believed that money talks but neighbors walk.

Riley v. Whybrew, 185 S.W.3d 393 (Ct.App.Tenn. 2005). The Rileys lived in a house in a subdivision next to a house Richard Whybrew leased to the Parkers. Problems ensued.

Shortly after the Parkers moved in, the Rileys began experiencing problems with their tenant neighbors. A high number of unknown persons would come to the Parkers’ house at all hours of the day and night, honking horns, squealing tires, and shouting people. They would drive up, engage in a brief conversation or transaction with a resident at the Parkers’ home, and leave after a few minutes. The Rileys overheard many conversations about the sale of drugs, as well as frequent profane and abusive language. On several occasions, firearms were discharged at the Parkers’ residence at various times during the day and night. Some activities were directed toward the Rileys: chemicals were put in their gas tanks, a laser pointer was aimed at Timothy Riley, personal property was stolen from the Rileys’ home, and when the Rileys were seen by the Parkers or their visitors, they were taunted, cursed at, or stared at menacingly. The Rileys’ dog was even shot by a visitor to the Parkers’ home.

Of course, sometimes your neighbor’s harassment is a little more subtle …

A month later, the police conducted a raid on the Parkers’ residence, and Marina Parker was arrested for possession of marijuana. Despite the arrest, the disturbing activities at the Parkers’ home continued. As a result, the Rileys employed an attorney to notify Whybrew of the problems. In February 2000, the attorney sent Whybrew a letter informing him that his rental property was “being used for illegal activities, in violation of the housing and zoning codes, and probably in violation of the terms of [the] lease.” Later that month, Whybrew received a letter from the director of the Narcotics Prosecution Unit of the Office of the Shelby County Attorney General about the drug trafficking. The letter noted that the amount of controlled substance found at the Parkers’ home was not enough to compel Whybrew to evict the Parkers, but stated that Carter wanted Whybrew to be aware of the situation. A year later, the Rileys again complained to Whybrew, who said the Parkers had a lease and paid their rent on time, and he did not plan to take action against them.

The Rileys sued Whybrew, the Parkers, and ten “John or Jane Doe” defendants, seeking damages for infliction of emotional distress and asking for abatement of the nuisance. Whybrew asserted that the other defendants were the sole cause of any injuries suffered by the Rileys. Whybrew maintained that the Rileys failed to state a claim upon which relief could be granted and asked the trial court to dismiss the complaint. The trial court granted summary judgment to Whybrew.

Held: The case was reinstated, and the Rileys were entitled to a trial. The Court of Appeals found that a material question of fact existed as to whether Whybrew negligently allowed the tenants’ illegal behavior to continue, and that issue precluded summary judgment against the Rileys on their nuisance claim. The Court agreed that even if Whybrew had had knowledge of his tenants’ illegal activities – including drug use, discharging firearms, and harassment – his failure to stop the Parkers’ activities could only be characterized as negligence. Thus, as a matter of law, it could not constitute the intentional infliction of emotional distress.

However, the claim of negligent infliction of emotional distress was related to the claim of negligence for landlord’s failure to abate the nuisance caused by the Parkers’ illegal activities, and as such, the Rileys’ claim for damages for emotional distress was not a stand-alone claim, and could be heard even absent expert medical testimony as to their damages. Most importantly, the Court ruled, while Whybrew argued that there was no breach of any duty to the Rileys because there was no proof that he was aware of the Parkers’ illegal activities until February 2000 (and the Parkers moved from the residence after being served with this lawsuit two months later), it disagreed and held that the Rileys had established a genuine issue of material fact on the claims of maintaining a nuisance and negligent infliction of emotional distress, sufficient to withstand a motion for summary judgment.

The case went back to trial.

– Tom Root

Case of the Day – Wednesday, January 29, 2025

Posted on January 29, 2025 by TLRoot tagged.

BELLYACHING

When I was a kid, we had a magnolia in the backyard that my father would fume about at least twice annually. He called it “the mess tree.”

When I finally owned a backyard with a magnolia of my own, I understood. The tree is a thing of beauty every spring… for about 24 hours. Then the petals fall in a slimy, stinky mess. In the fall, the magnolia’s leaves turn from green straight to a uniform, blah brown, and then fall in a thick blanket that is resistant to most leaf rakes and machines of any size.

At least I bellyache about my own trees. What happens when your neighbors start to complain about your trees, which – while remaining on your property – mess their yards with leaves, twigs and general mess?

We all know at least the first prong of the Massachusetts Rule. A property owner has the right to trim back overhanging branches and encroaching roots of a tree standing on his or her neighbors’ yards, at least back to the property line. The second prong of the Rule, of course, is where all the variations arise. In Massachusetts, the neighbor cannot sue. In other places, the neighbor can. And even where nuisance actions are contemplated – think Mr. Houlton’s banyan tree in the famous case that begat the Hawaii Rule – at what point does a tree’s general messiness (leaves, pine cones, fruit, twigs and the such) cross the line from unremedied annoyance to actionable nuisance?

The Massachusetts Rule’s self-help provisions do not do a neighbor much good if the tree stands wholly on the next-door property. There is no trimming or root-hogging that will keep wind-blown twigs, leaves, fruit and other debris from raining onto your property.

Is there nothing that can be done? How many times have we noted that hard cases make bad law? Today’s case provides yet another illustration of the truth of this old saw.

John Leech apparently took Dorothy’s mantra to heart, believing there was no place like home. So when he and his wife had the chance, they moved into John’s boyhood home. There they lived, happy and proud (especially of the majestic coastal redwood tree in the sideyard, already 80 years old or so).

John remembered the tree from when he was a boy. He nurtured it as an adult. But about 18 years after he and Brenda returned to reside in the house in which John had grown up, the Boyles moved in next door.

The Boyles never said a word to John or Brenda about the coastal redwood. But they were plenty agitated that the tree dropped pine cones and other debris on their yard, and in the process stained everything a sticky, unappealing brown. You would think that the neighbors might engage the tree’s owners in pleasant conversation, looking for a mutually acceptable solution to the problem. If so, you would be thinking wrong.

Terri and Kent Boyle might be great people, but their conduct as neighbors was as puzzling as those people who buy a house a quarter mile from the threshold of the primary runway at O’Hare and then complain about the noise. And puzzling not just to me, either. It is hard to read the Court’s opinion that John’s and Brenda’s tree was not a nuisance without concluding that the Court was a little put out that the Boyles never bothered to discuss the problem with their neighbors, but rather hired an expert and then ran for the courtroom.

Besides, there is something vaguely unjust that a couple of Johnnies-come-lately can move in, and within a couple years demand that a tree that had stood for 80 years on land inhabited by the same people for over 20 years (and more, when the lord of the manor was a mere stripling), be chopped down, all because they did not like it.

I have the sense that if the Boyles had sought a collegial solution, resorting to litigation as a last resort, their petition might have been greeted with less skepticism.

Ah well… hard cases make bad law.

Boyle v. Leech, 2019 Wash. App. LEXIS 224 (Ct.App. Washington, Jan. 28, 2019). John Leech lived at his current residence as a child in the 1950s. He and his wife, Brenda, moved back to the property in 1995 and have lived there for the past 24 years.

From the time John was a child, a large coastal redwood tree has grown on the property, about 70 feet from the boundary line the Leeches share with their neighbors Theresa and Kent Boyle. The branches of the stately tree do not come closer to the property line than about 50 feet.

The Boyles moved into their home in July 2013. Soon enough, Terri and Kent noticed that the wind was blowing debris from the Leeches’ tree onto their property. Sometimes, the debris, which contains tannic acid, causes staining. The staining does not remove easily, requiring power washing or strong cleaning products to remove.

The Boyles hired Brian Allen, a certified arborist, to inspect the coastal redwood. Brian determined that the tree “is dying slowly,” causing excessive sap and cone production. Despite this diagnosis, the tree is not currently considered high risk. On a one-to-ten health scale (one being the highest risk, with the potential for critical failure at any moment), Brian ranked the health of the tree as close to seven. Brian recommended that “due to client’s motivations, and the potential for continued and worsening damage to surrounding property, removal is recommended.”

Inexplicably, Terri and Kent never complained to the Leeches about the coastal redwood. Rather, they filed a nuisance action against the Leeches, asking for $5,000 in damages and for a court order that the Leeches abate the nuisance by cutting down the tree. When the Leeches recovered from their shock at being sued, they moved for summary judgment, arguing the Boyles failed to establish a prima facie case of nuisance. The trial court agreed, throwing out the Boyles’ lawsuit.

The Boyles appealed.

Held: The Leeches have acted reasonably by keeping the tree, which is entirely on their property, without complaint from anyone before the Boyles. The Boyles’ claim of nuisance thus fails as a matter of law.

RCW 7.48.010 defines “actionable nuisance” as including a number of specific events, such as obstructing a highway or clogging a stream with floating timber, and includes a “catch-all” provision that holds “whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance.”

In Washington, the Court said, “an unreasonable interference with another’s use and enjoyment of property” constitutes a nuisance. Thus, in nuisance cases, the trial court mainly considers whether a party reasonably uses his or her property, balancing the rights, interests, and convenience unique to the case and considering all the surrounding facts and circumstances.

Here, the Court observed, the tree was growing entirely on the Leeches’ property, without any branches overhanging roots encroaching on the Boyles’ yard. The tree is about 80 years old, or any underground Leech believes the tree has been on the property for 80 years. Aside from the Boyles, no neighbor has ever complained to John or Brenda about the tree.

The Boyles described the tree as “a dying tree shedding toxic debris,” but their expert evidence only opined that the tree was dying slowly but remained relatively healthy. The tree’s debris may have been “excessive,” but it was in no way toxic. Arborist Brian Allen only explained there was a “potential” for continued damage. He recommended the tree be cut down only because that was what his clients, the Boyles, wanted.

The Court of Appeals concluded that the Leeches did not act unreasonably with regard to the tree, especially given the redwood was located entirely on their property. Thus, there was no nuisance, and the Leeches would not be required to remove the tree to prevent staining from occurring on the Boyles’ property.

The Court admitted that no case it could find in Washington or any other state addressed a nuisance action regarding a tree situated wholly on someone else’s property. In Gostina v. Ryland, the Washington Supreme Court ruled that overhanging tree branches or encroaching roots onto a neighboring property constitute nuisances, and that the offended party was entitled to cut back any tree branches or roots that intrude onto his or her property. But in dictum, the Gostina court noted, “[t]he remainder of the trees will doubtless shed their leaves and needles upon the [plaintiff’s] premises; but this they must endure positively without remedy.” As well the Court of Appeals said, in Whitesell v. Houlton – the case that adopted the Hawaii Rule – that court was careful to exclude from the definition of nuisance a tree that only was “casting shade or dropping leaves, flowers, or fruit.”

Certainly, the Court of Appeals ruled, “If natural debris from an overhanging tree should not constitute a nuisance, neither should such debris from a tree that does not encroach onto neighboring property… Wind blowing natural debris from the Leeches’ tree causes staining on the Boyles’ property. We decide that this – debris from a tree wholly on another’s property – does not constitute a nuisance.”

– Tom Root

Case of the Day – Thursday, January 2, 2025

Posted on January 2, 2025 by TLRoot tagged.

SURE IT’S A NUISANCE, BUT WHOSE NUISANCE?

I live near enough to Cleveland to be aware of the blight of homes abandoned there during the Great Recession. The owners leave, the banks foreclose, the homes decay, the taxes are no longer paid, and the city tries to sell them for tax debts. Many times, the city ends up owning them.

Yet, Cleveland is an enclave of plenty compared to Detroit, where the blight covered mile after mile. A third of all homes in that bankrupt city had been foreclosed on by 2015.

Out of fairness, Detroit has made a real comeback. The Motor City has stabilized its financial condition, improved city services, reversed population losses that saw more than a million people leave since the 1950s and made progress cleaning up blight across its 139 square miles.

In October 2024, Donald Trump told the Detroit Economic Forum that “[t]he whole country will be like — you want to know the truth? It’ll be like Detroit. Our whole country will end up being like Detroit if [Kamala Harris is] your president.” He caught a lot of grief from Detroiters for that. Detroit Mayor Mike Duggan said, “Lots of cities should be like Detroit. And we did it all without Trump’s help.”

So who is responsible for the nuisances that these decaying homes (and untrimmed foliage) create? Generally, it’s the owner or the entity with the right to control the property. In today’s case, decided when I was not yet a teen, a city argued that it owned and controlled an abandoned property for some purposes, but not where abating a nuisance was concerned.

Neighbor Harry Homeowner, who was beaned on the noggin by a branch from a dead tree on the neighboring lot, disagreed. “Hey,” Harry huffed, “if you own it, you own it.”

Kurtigian v. Worcester, 203 N.E.2d 692 (Supreme Jud. Ct., Mass. 1965). Harry Kurtigian was working in his yard one windy October day in 1959 when he was struck by a limb blown from a decayed tree on adjoining property.

A large elm tree was situated in the southeast corner of the lot next to Harry’s, one which had been owned by Beatrice R. Norling. By 1954, Beatrice was dead, and the tree was soon to follow, having been afflicted with Dutch elm disease. By 1956, there were no leaves on the 35-foot tall tree at all, and the bark was peeling from the trunk by year’s end.

Two years later, a large branch fell during a summer thunderstorm, crushing Harry’s fence. He called the City, who sent an inspector to look at the tree. About 15 months later, the tree still standing undisturbed, Harry was walking in his yard when he heard a cracking sound, looked up, and saw a heavy limb falling toward him. He was knocked unconscious, suffering a skull, arm and wrist fracture.

The lot next door was undeveloped and wooded, having been acquired by the City of Worcester in 1950 for nonpayment of taxes. Harry sued the City for negligence and for maintaining a nuisance tree,

The lower court found the City was negligent, but that the tree was not a nuisance. The City appealed.

Held: The tree was a nuisance, and the City was liable to Harry.

Liability for damage caused by the defective condition of premises turns upon whether a defendant was in control, either through ownership or otherwise. The City argued that it did not have title to and control of the real estate. But the records showed that the City recorded in the registry of deeds an instrument of taking in August 1950, pursuant to law for nonpayment of taxes. Three years later, the City recorded a notice of foreclosure, and seven years after that, a “Notice of Disposal in Tax Lien Case” executed by the Land Court was recorded in the registry of deeds, noting that there had been entered in the Land Court a decree foreclosing and barring rights of redemption by the prior owners to the lot. That was enough for the Court to rule that “at all material times the city… to the extent permitted by that chapter, engaged in the operation, maintenance, control, and sale of tax title property

The City said its taking of the property pursuant to vested title, subject only to the right of the owners to redeem the property by paying the taxes, is really more in the nature of security until the right of redemption was foreclosed. In other words, the City complained it did not have absolute title, but rather would have been able to keep only the amount of its lien in the event of a taking by eminent domain. Before the right of redemption was foreclosed, the City said, it could not have collected any rents.

Harry, on the other hand, argued that G. L. c. 60, § 54 grants the City the right to possession as soon as a tax title is issued, as opposed to another statute not letting a private buyer from getting possession for two years after buying at a sale.

The Court said that dispute was irrelevant because the City acquired a tax title nine years before the branch fell so even if the two-year period applied, it had long since passed. “In any event,” the Court said, “the city’s right to possession long preceded the date of injury.”

The City, however, contended that held the property in its “governmental capacity” rather than in its “proprietary capacity.” The collection of taxes is a governmental function, the City argued, and it is not liable for the tortious acts of its officers in fulfilling a governmental function. The Court made short work of that argument. The City was maintaining a nuisance on the vacant lot, the Court ruled and “there is no such immunity, however, where there is a nuisance maintained on real estate owned or controlled by a municipality, and this principle obtains ‘even where the nuisance arises out of the performance by the municipality of a governmental duty in the interests of the general public’.”

The liability of a municipality as the owner of land for a private nuisance on the land is no different than the liability of a natural person, the Court said. Trees can be a nuisance as much as a dilapidated building. “As the limb did not overhang the plaintiff’s land,” the Court said, “we have no occasion to examine the question whether the plaintiff is limited to self-help as in Michalson v. Nutting.” What’s more, the Court said, no one has argued that there should be a distinction between trees naturally on land and those that have been planted, “even assuming it is possible to ascertain the origin of this particular tree.”

The Court held that the evidence showed that there was, as early as 1956, when the tree died, a private nuisance to Harry and his property. While not a public shade tree, the elm was on land owned by and subject to the control of the city. It was obviously decayed. A nuisance came into existence while the City was in control of the land. “Public policy in a civilized community requires that there be someone to be held responsible for a private nuisance on each piece of real estate, and, particularly in an urban area, that there be no oases of nonliability where a private nuisance may be maintained with impunity.”

– Tom Root