nuisance

I CAN SEE FOR MILES

In the land of pleasant living, we can and often do sue for almost anything. Even so, today’s case is especially egregious.

Today’s plaintiff, Betsy Stibler – whom the court of appeals suggests just may be hypersensitive – apparently had gotten used to seeing for miles and miles from her kitchen window. Or at least to the 18th hole of the golf course next door. When the owner of the country club next door planted a number of additional trees on its golf course – trees that neither hung over nor grew under Betsy’s property – she sued. Sued for no better reason than the trees interfered with her seeing goings-on on the golf course.

OK, the world is full of people like Betsy (who should be named Karen). Not only do such people claim a right to the air they breathe, they claim the air we’re breathing, too. And everything is personal. Note that Betsy did not just sue because the golf course’s trees accidentally or even negligently blocked her view of its property; she claimed the trees were planted maliciously for the purpose of annoying her.

There are a lot of Betsies in this world who think it’s all about them. But most of those other Betsies don’t have the spare change to hire a lawyer to sue the offending tree planters. Those who do have the money usually have better sense than to fritter it away in a foolish lawsuit, and even then, those who don’t have that good sense usually cannot find a lawyer with the same reckless approach to litigation as they do. They enter their attorney’s office full of rage, and then he or she patiently talks them off the ledge.

As my famed relative (so we Roots like to think he’s our relative, at least) Elihu Root once said, “About half the practice of a decent lawyer is telling would-be clients that they are damned fools and should shut up.”

But occasionally we hit the frivolous litigation trifecta, and that happened in this case. Betsy convinced herself that God or the subdivision or someone had decreed that she should always be able to see the golf course (although why she wanted to see it puzzles us), and she apparently had the excess money to pay a lawyer to tilt at her windmill for her. Unsurprisingly, the magic combination of wealth, entitlement and stupidity enabled Betsy to find a lawyer hungry or foolish enough to take the case.

Now, all that was missing was a compliant judge. Fortunately for the defendants, Betsy could not find one of those. It turns out that for trees to be declared a nuisance in Tennessee requires a less sensible judge than the one she found, not to mention more sensible harm than some cranky lady who does not like the neighbors’ new landscaping is able to claim.

Stibler v. The Country Club, Inc., Case No. E2014-00743-COA-R3-CV (Ct.App. Tenn., Mar. 9, 2015). Betsy Stibler owned a residence next door to The Country Club’s eponymous golf course. In 2013, The Club planted trees all over its gold course, including Green Giant and Skip Laurel trees planted on the portion of the course that lies behind Betsy’s house. The trees do not encroach on Betsy’s land and cause no physical damage to her place. But what they do do is obstruct Betsy’s view of the course.

Betsy sued, claiming The Club had created a nuisance by planting the trees and thereby obstructing her view of the golf course. In fact, she claimed the trees were planted “for the purpose of annoying Plaintiff and decreasing the property value of Plaintiff,” and that she was “being deprived of her right/easement appurtenance of enjoyment of all persons owning lots in said sub-division of the park space (i.e. [sic] golf course) as provided by the [subdivision restrictions].”

The applicable subdivision restrictions state that “no noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood,” and “any park spaces as shown upon the plat, will not be built upon but preserved as ornamental park spaces for the enjoyment of all persons owning lots in said sub-division.”

The Club filed a motion for summary judgment, which the trial court granted on the grounds that Betsy could not prove that the trees constituted a nuisance.

Betsy appealed.

Held: The trees are not a nuisance.

Betsy argued that the subdivision restrictions meant that The Club should be prohibited from interfering with her enjoyment of her property “by changing the very character and nature of her home as a golf course view property.” Betsy asserted that because the trees are a nuisance, they are prohibited by the subdivision restrictions. She also contended that the requirement that park spaces, which Betsy asserted included the golf course, must be preserved for the “enjoyment of all persons owning lots in said subdivision” meant her view of the course had to be maintained.

The Court disagreed with Betsy’s premise. The subdivision plat designated park spaces as “park spaces.” The golf course was labeled “golf course.” The Court said that Betsy’s “desire that the golf course be treated as a park space even though it is not designated as such on the plat is contrary to the very paragraph 7 that Plaintiff relies upon. Further, nothing within the subdivision restrictions guarantees Plaintiff an unobstructed view of the golf course. Nor is there any provision within the subdivision restrictions that prohibits Defendant from planting trees on its own property. This issue is without merit.”

The Court observed that under Tennessee law, a nuisance is anything that annoys or disturbs the free use of one’s property or renders the property’s ordinary use or physical occupation uncomfortable. “It extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of the property… As long as an interference with the use or enjoyment of property is substantial and unreasonable enough to be offensive or inconvenient, virtually any disturbance of the use or enjoyment of the property may amount to a nuisance.”

However, a use of property that constitutes a nuisance in one context does not necessarily constitute a nuisance in another context. Whether an activity or use of property amounts to an unreasonable invasion of another’s legally protected interests depends on the circumstances of each case, including “the character of the surroundings, the nature, utility, and social value of the use, and the nature and extent of the harm involved.” Whether a particular activity or use of property is a nuisance is measured by its effect on a normal person, not by its effect on the “hypersensitive.” The standard for determining whether a particular activity or use of property is a nuisance is “its effect upon persons of ordinary health and sensibilities, and ordinary modes of living, and not upon those who, on the one hand, are morbid or fastidious or peculiarly susceptible to the thing complained of, or, on the other hand, are unusually insensible thereto.”

When trees are involved, Tennessee law holds that “encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.”

Here, the only damage Betsy can cite is that she thinks her property is worth less because she can no longer see the golf course. The Court held that her claims “are simply insufficient to give rise to a claim for nuisance. Plaintiff has directed us to nothing which would give her a protected legal right entitling her to a view of Defendant’s property.”

The Court cautions that it was not suggesting that trees could never constitute a nuisance, but just that “given all of the facts and circumstances in the case now before us at this time, Defendant has shown that Plaintiff cannot prove that the trees at issue in this case constitute a nuisance.”

– Tom Root

CECIDERIT LIGNUM IDEO DEBITUM

Emily Bernges, my sainted high school Latin teacher, would have been proud. We all recall René Descartes and his famous “Cogito ergo sum,” the philosophical proposition “I think, therefore I am.” For today’s case, I have coined a new maxim: “Ceciderit lignum ideo debitum.”

Today’s case, a fairly pedestrian fallen-tree situation, features a plaintiff that everyone will love to hate, an insurance company. When a tree fell on the neighbor’s garage, the victims, alliteratively named Robert and Roberta, called their local insurance agent. The insurance company paid off. Under the agreement (hidden in everyone’s policy) that gives the insurer the right to step into the insured’s shoes – called subrogation – the insurance company sued the neighbor whose tree fell.

One has to wonder why the insurance company even bothered. It agreed before trial that the neighbor had no idea – nor should he have had – that there was anything wrong with the hackberry tree.

Descartes was arguably right when he said, “Cogito ergo sum.” ‘I think, therefore I am.’ But the Latin maxim, “Ceciderit lignum ideo debitum,” which Mrs. Bernges would have translated, “A tree falls, therefore, I pay?” That’s not so catchy, and, as we will see, it’s just plain wrong.

Not so, but sometimes they’re rather obtuse…

American Family Insurance v. Anderson, 107 P.3d 1262 (Kan.App. 2005). Dean Anderson owned property next door to a place belonging to Robert and Roberta Stenfors. One summer evening, a hackberry tree on Dean’s property blew over onto Bob and Bobette’s garage. The Bobs called their insurance carrier, American Family Insurance, which paid to remove the tree and fix the garage, at a cost of $24,837.47.

American Family then sued Dean, claiming he had been negligent in letting the tree fall on the Bobs’ garage. Bob moved to have the claim thrown out, and the trial court obliged.

American appealed.

Held: Dean owed nothing for the fallen hackberry. A directed verdict is appropriate where no evidence is presented on an issue or where the evidence is undisputed and is such that the minds of reasonable persons may not draw differing inferences or arrive at opposing conclusions.

In this case, American Family had to establish that Dean had a duty to the Bobs, that he breached the duty, and that the breach caused the damage to the garage. The Court said that in order for Dean to have had a duty to remove the hackberry tree before it fell, he first had to have actual knowledge that the tree was defective, or there had to be evidence that any reasonable person would have understood meant the tree was defective (which is known as “constructive knowledge”).

Before the trial ever began, American Family stipulated that Dean lacked actual or constructive knowledge the tree was defective. But American Family urged the appeals court to look at the evidence presented at trial. Bob and Bobette, joined by Roy, the guy they hired to remove the fallen hackberry, recalled an incident a decade before in which Roy told Dean he should remove the hackberry along with an adjacent rotten tree. Roy admitted, however, that the hackberry seemed to have gotten healthier in the ensuing 10 years. Roy testified he saw no outward signs of disease or decay on the tree and did not believe the average non-tree person could have seen any indications of internal rotting. The appeals court concluded that based on this record, the testimony presented at trial also failed to establish that Dean had actual or constructive knowledge of the tree’s defects.

American Family also argued the tree was a nuisance. Under Kansas law, “[a] person is liable in damages for the creation or maintenance of anything that unreasonably interferes with the rights of another, whether in person, or property, and thereby causes [him or her] harm, inconvenience, or damage.” The court of appeals said a nuisance is not a separate type of tortious conduct. Rather, in this case, American Family’s nuisance claim was a “sub-variant” of its negligence claim.

A hackberry tree.

The trial court threw out American Family’s nuisance claim because the insurance carrier did not prove Dean had knowledge of the tree’s defective nature. The tree appeared healthy and contained no outwardly visible signs of decay or disease. Further, the trial court noted the tree has withstood 90-mile per hour wind gusts two months before it fell. A reasonable person, the trial court concluded, would not, under these circumstances, have removed the tree.

The appellate court held that American Family’s failure to prevail on its negligence claim doomed its ability to establish that the tree was a nuisance. Knowledge that the tree presented a danger to Bob and Bobette’s property was crucial, and American Family did not show that Dean knew or should have known of the tree’s defective condition.

American Family’s ‘Hail Mary’ argument was that the fallen tree presented a strict liability situation. The appellate court made short work of the claim, noting that the insurance company never raised strict liability at trial, and it could not do so for the first time on appeal.

– Tom Root 

Case of the Day – Wednesday, March 27, 2024

I CAN SEE FOR MILES

Case of the Day – Monday, March 25, 2024

CECIDERIT LIGNUM IDEO DEBITUM