Case of the Day – Friday, March 6, 2026

Posted on March 6, 2026 by TLRoot tagged.

UTAH SWINGERS ISO PLACE TO PLAY

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

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

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

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

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

An inherently dangerous undertaking?

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

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

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

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

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

De Baritault appealed.

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

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

– Tom Root

Case of the Day – Tuesday, October 21, 2025

Posted on October 21, 2025 by TLRoot tagged.

A MATTER OF LAW

Relatively few lawsuits ever make it to trial. Most often, they are resolved by motions to dismiss – the plaintiff has made some wacky claim that, even if fully believed, would not lead to a judgment – or the undisputed evidence shows that the plaintiff cannot possibly win.

Example 1: My neighbor to the southwest has some very tall oak trees. I sue her because the leaves are falling and the wind is carrying some of them (it seems like all of them) into my yard. She would file a motion to dismiss, arguing that even if everything I say in the lawsuit is true, I am entitled to no damages, because the law does not make her liable for where the wind may carry her falling leaves.

Example 2: I sue my neighbor, claiming that she has used her Turboblast 3000 blower to push all of her leaves into my yard. If that is true, the law would call it a trespass and I could recover the cost of hauling the leaves away. But she provides affidavits of various nosy neighbors and members of her garden club, who state they watched her pile her leaves in the street (where the city wants them put), and the wind later blew the piles into my yard. All I have is my assertion that she owns a Turboblast 3000 blower, and the leaves are in my yard. In that case, the court would grant her summary judgment because no reasonable jury could find any evidence that she, and not the wind, was the culprit.

As Mark Twain was reputed to have once said, nothing spoils a good story like the arrival of an eyewitness.

When no reasonable jury could find evidence enough to believe one side of a lawsuit, we say the other side is entitled to judgment in its favor “as a matter of law.”

In today’s case, the federal district court has to pick through a motion for partial summary judgment – where the plaintiff asks for judgment that resolves some (but not everything) of what it would have to prove at trial. The court splits the baby down the middle, finding the tree trimming company had a duty to little Jimmy, who was burned by a live wire while he was playing on a swing set, but leaving for a jury the question of whether the duty was breached.

Marland v. Asplundh Tree Expert Co., Case No. 1:14-cv-40 (D.Utah, Dec. 14, 2016), 2016 U.S. Dist. LEXIS 173156, 2016 WL 7240139. Since 1997, Asplundh Tree Expert Co. has contracted with Bountiful City Light and Power to provide power line clearance services. Under that contract, Asplundh’s responsibility is limited to providing line clearance so as to prevent interruption of service by trees or tree limbs coming into contact with the lines or other electrical equipment.”

Under the agreement, Asplundh had the right and duty to remove dead, defective or fast-growing trees located so as to be a hazard to BCLP’s lines whenever “practical and permissible.” Any removal required written permission from the property owner and BCLP. Under the agreement, BCLP would provide Asplundh with an area in which to work, called a feeder. Asplundh was then responsible for clearing the lines along that feeder. This would include determining what trees needed to be trimmed or removed, obtaining the necessary approvals, then doing the actual trimming or removing.

On an early fall day in 2005, Asplundh trimmed a large Siberian Elm at Lyle Henderson’s home in Bountiful. Asplundh trimmed the tree but did not remove it and did not recommend to BCLP that it be removed. About 21 months later, a limb from the tree fell onto a power line, knocking the line into a neighboring backyard and onto a swing set where a child, Jimmy Marland (not his real name) was playing. Jimmy was seriously burned. After that mishap, BCLP got Lyle’s permission to remove the tree.

Jimmy’s parents sued on the child’s behalf, claiming Asplundh was negligent in not removing the tree. They asked for summary judgment in their favor on the issues of whether Asplundh owed Jimmy a duty, and whether he breached the duty.

Held: Scott and Jennifer were granted summary judgment on whether the duty, but not on the breach.

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the party asking for summary judgment is entitled to judgment as a matter of law. In considering whether a genuine dispute of material fact exists, a court must determine whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented.

To establish a claim of negligence, the Marlands had to show that Asplundh owed Jimmy a duty, (2) that Asplundh breached that duty, (3) that the breach of duty was the proximate cause of Jimmy’s injury, and (4) that Jimmy in fact suffered injuries. Here, the Marlands sought partial summary judgment, focused on the first two elements only, duty and breach.

Whether Asplundh owed Jimmy a duty of care is a legal issue for the court to decide, but if there is a duty, whether Asplundh breached it is a question of fact for the jury to decide. “Accordingly,” the court said, “summary judgment is inappropriate unless the applicable standard of care is fixed by law and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.”

The Marlands argued that Asplundh’s duty arose under the Restatement (Second) of Torts § 324A, which had been adopted by the Utah Supreme Court. Section 324A holds that when someone agrees to render services for someone else, and when he or she should recognize the service is necessary for the protection of a third person, he or she is liable to the third person for physical harm resulting from his failure to exercise reasonable care in performing the service, if (a) his or her failure to exercise reasonable care increases the risk of such harm, or (b) he or she has agreed to perform a duty owed to the third person, or (c) the harm is suffered because of reliance of the other party or the third person upon the services being performed.

Here, the Court held, there was evidence that Asplundh has agreed to provide services to BCLP which Asplundh should have recognized was necessary to protect third parties like Jimmy. Utah law imposes on utility companies like BCLP the highest degree of care to prevent people from coming in contact with high-voltage electricity. Line clearance is necessary, not only to prevent interruption of service but also to prevent injuries that might result if tree limbs come into contact with electrical wires. Therefore, the court said, Asplundh would be liable to Jimmy for physical harm resulting from its failure to exercise reasonable care if at least one of three subsections in the Restatement are met:

The Court found evidence that subsections (b) and (c) applied. BCLP had a duty to prevent harm to others from its power lines and it delegated part of that duty — line clearance — to Asplundh. Because Asplundh was performing line clearance on the particular feeder, BCLP did not do so itself. Therefore, BCLP relied upon Asplundh to conduct line maintenance so it would not have to. Based upon these facts, the Court said, “There is evidence that Asplundh owed Plaintiffs a duty of care.”

The Marlands argued that “Asplundh breached its duty of care by not removing or recommending to have removed the subject tree in 2005.” Their expert witness provided an affidavit contending that Asplundh had a duty to suggest the removal of the Siberian Elm if the tree was accessible and posed a hazard based on its type, size, and proximity to the power lines. The court agreed that the affidavit stated an applicable standard of care, but even so, summary judgment was not appropriate.

The problem was that before Asplundh could remove a tree, it was required to seek BCLP’s and the homeowner’s permission. The Court agreed that the undisputed evidence showed that BCLP would have given permission to remove the tree because BCLP always gave permission when removal was recommended. But while Lyle Henderson, the homeowner, testified that on other occasions he gave “carte blanche permission” to the utility to trim the tree, there was evidence that he had refused permission to remove or even trim the subject tree in the past and was reluctant to remove the tree even after this accident. Based upon these disputed facts, the court said, the Marlands could not show, “as a matter of law, that removal of the tree would have been permitted by Mr. Henderson.”

Based on the conflicting evidence, the court said, the Marlands had failed to show “as a matter of law” that Asplundh would have received permission from the homeowner to remove the tree “and, therefore, have failed to demonstrate as a matter of law that Asplundh breached its duty of care.” Additionally, the court hints without elaboration, “even if Plaintiffs could demonstrate permissibility, various disputes exist concerning whether removal was required under the relevant standard of care.”

Note: The case went to trial. On February 21, 2017, a jury found Asplundh at fault and awarded Jimmy $3.4 million in damages.

– Tom Root

Case of the Day – Friday, August 15, 2025

Posted on August 15, 2025 by TLRoot tagged.

THANK YOU, CAPT. OBVIOUS

My five grandkids (and their six parents, but with cute grandkid, who cares about the parents?) vacationed with us again this summer.

We had a great time, and now recall why young adults in their 20s and 30s have young children, and not older adults in their 60s and 70s. But I kept up with the kids, despite several mishaps/

One day, I fell into a hole between two rocks while negotiating a trail that followed a mountain stream. I was carrying my older granddaughter, Mabel, at the time, but I set her down safely as I fell. Besides a barked shin, I was unhurt (just embarrassed).

We got to the trail by boat, and on the way back, I hit a submerged rock with the outboard motor. Afterward, I bumped my head on a floating swimming dock as I swam toward it, doing a backstroke.

It was a great (if somewhat misfortune-studded) vacation. (Still, I did not have to go to the emergency room this year, an improvement over our vacation three years ago – but that’s another story). Nevertheless, my mishaps reminded me of a “well, duh,” doctrine in tort law known as the “open and obvious danger” rule. That hole between the rocks? It was rather open and obvious. The swimming dock? Since I was deliberately swimming to it, it was pretty clearly open and obvious. The submerged rock? Not so much.

The “open and obvious danger” rule provides that a possessor of land is not liable to invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them unless the possessor should anticipate they might be harmed despite such knowledge or obviousness. If the open and obvious danger rule applies, then the land possessor owes no duty to invitees with respect to the open and obvious danger, and he or she therefore cannot be held liable for any injury caused thereby.

The hole between the rocks was so open and obvious that the Dept. of Environmental Conservation could not reasonably anticipate that anyone would step into it while carrying a 3-year-old granddaughter. The submerged rock was out near the middle of the lake and was unmarked and in what appeared to be deep water. The swim raft? Well, you couldn’t miss it.

Let’s say I had followed the trail but, just before the rock, had come to two construction barrels with that bright-orange plastic netting construction crews use stretched between them. And, being kind of obtuse, I stepped over the netting (still carrying my granddaughter) and tripped on it, falling. It is fairly open and obvious that the netting was open and obvious, and I had gotten my just desserts trying to cross it.

Ah, but that did not deter Julie Coburn. When she and her husband set off along a trail in the Kays Creek Parkway that was festooned with signs warning that the trail was closed, they thought, “Nah, it can’t mean it’s closed to us.” Later, when they happened upon two orange construction barrels with netting stretched between them, they remained clueless. Julie stepped over the netting, snagged her foot in the plastic, and fell.

Normally, someone pulling such a boneheaded stunt would slink away to the urgent-care facility, chastened and injured and (I hope) a little bit wiser. But this is America, people! We don’t do that here. And Julie didn’t, either. Instead, she sued the construction company for placing the netting across the closed trail.

Happily, common sense prevailed.

Coburn v. Whitaker Construction Co., 2019 UT 24, 445 P.3d 446 (Supreme Ct. Utah, 2019): Whitaker was hired to install a water pipeline in the Kays Creek Parkway, a recreational area in Layton, Utah. The Kays Creek Parkway contains a number of walking trails that are designated for public use, one of which leads to the pipeline construction site. Whitaker placed a “Trail Closed Ahead” sign at the trailhead, indicating that portions of the trail were closed for construction, and strung orange netting across the trail to deter people from walking to the construction site. Despite the warning sign and the orange netting, people consistently ignored the sign and would take down the orange netting.

In the summer of 2018, Julie Coburn and her husband went for a hike at Kays Creek. Despite seeing the “Trail Closed Ahead” sign at the trailhead, the Coburns assumed the trail was open and continued on. A short distance into the trail, they encountered two barrels on either side of the trail with orange netting strung between them, but both had fallen down and were lying across the trail. Julie admitted the orange netting was a hazard, but she stepped over it anyway. She tripped and fell, hurting her arm and shoulder.

Julie sued Whitaker seeking damages for her injuries. Whitaker argued it did not owe Julie a duty of care under the “open and obvious danger rule” found in the Restatement (Second) of Torts, which Utah has adopted.

The district court and court of appeals agreed with the construction company.

Julie appealed.

Held: The Supreme Court held that the “open and obvious danger” rule kept Julie from recovering a dime.

The open and obvious danger rule provides that a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness. In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to use public land indicates that the harm should be anticipated. There is a special reason for the possessor to anticipate harm when the possessor maintains land upon which the public is invited and entitled to enter as a matter of public right.

This is so because defendants may reasonably expect the public, in the course of the entry and use to which they are entitled, to proceed to encounter some known or obvious dangers which are not unduly extreme, rather than to forego the right. However, even these defendants may reasonably assume that members of the public will not be harmed by known or obvious dangers that are not extreme and that any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid. And this is true particularly when a reasonable alternative way is open to the visitor, known or obvious to him, and safe.

Here, Julie chose to ignore a “trail closed” sign and the orange construction netting barrier. What’s more, she recognized that one could easily fall crossing the netting, but did so anyway. The “open and obvious danger” rule was easily applied, and saved Whitaker from any liability.

– Tom Root

Case of the Day – Thursday, May 29, 2025

Posted on May 29, 2025 by TLRoot tagged.

YOU’RE ON YOUR OWN, PAL

From the hatcheck to the parking lot to the dry cleaner to the amusement park, we grant pre-injury waivers of liability all the time. And we’re helpless to stop it. Don’t believe us? Try negotiating that fine print on the back of your parking lot ticket next time you leave your Bugatti Tourbilon in the hands of some teenager named “Kent Steerwell.” You’ll be handed your keys, probably with a suggestion of where to put them (and it won’t involve inserting them in the ignition, either).

With the first meteorological day of summer still a few days away away, it’s a nice escape to think about skiing. Fact is, there are still a few places in the continental United States where you could be skiing today. So here goes: When expert Alpine skiing enthusiast Bill Rothstein parted with his hard-earned cash for a couple of souped-up passes to the Snowbird resort (your basic pass and a special one that let him skip lines and not have to mingle with the great unwashed), he signed the waivers without a second thought. You know, the ones that said the resort wasn’t liable for a ding-dong thing in case he got hurt.

While skiing the “Fluffy Bunny” run (hardly sounds like a double-diamond course, does it?) Bill ran into a poorly-marked retaining wall and messed himself up but good. Fortunately, his favored hand wasn’t injured, so he quickly signed off on a lawsuit against the ski operator. But the trial court was impressed by the breadth of the release Rothstein had signed — as tall as the Wasatch and as wide as the Bonneville Salt Flats — and it threw the case out.

The Utah Supreme Court saved Rothstein’s bacon. It held that, no matter what the pre-injury waivers said, Utah public policy required that ski resorts take responsibility for the results of their negligence. A state statute, the Inherent Risks of Skiing Act, exempted ski resorts from certain risks that are inherent in skiing — such as broken legs, frostbite, and fashion faux pas — so that the operators could buy insurance against actual negligence. The Court held that inasmuch as the legislature exempted ski resorts from certain types of risks so that they could afford insurance to cover the remaining ones, it was contrary to public policy for a ski resort to try to exempt itself from liability for any negligence whatsoever. The Romans had some words for it: expressio unius est exclusio alterius, which means “the expression of one excludes all others.” This means that because the law expressly carved out certain acts from liability – such as the effects of the relentless pull of gravity – it specifically intended not to carve out other unlisted acts: like failing to adequately mark a retaining wall.

Now available – expressio unius coffee mugs!

The waiver was void, and Rothstein was free to sue… if not to ski the “Fluffy Bunny.”

Rothstein v. Snowbird Corp., 175 P.3d 560 (S.Ct. Utah, 2007). “Fast Billy” Rothstein, an expert skier collided with a retaining wall while skiing at Snowbird Ski Resort. The retaining wall was unmarked and no measures had been taken to alert skiers to its presence. Although Snowbird had placed a rope line with orange flagging near the wall, there was a large gap between the end of the rope and a tree, which Mr. Rothstein incorrectly understood indicated an entrance to the Fluffy Bunny run.

No – not this kind of “law suit”

Rothstein sued Snowbird for negligence. Snowbird defended itself by asserting that Mr. Rothstein had waived his ability to sue Snowbird for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence.

Rothstein’s super passes — which let him have faster access to the slopes than mere mortals — required him to sign an agreement that said:

I hereby waive all of my claims, including claims for personal injury, death and property damage, against Alta and Snowbird, their agents and employees. I agree to assume all risks of personal injury, death or property damage associated with skiing… or resulting from the fault of Alta or Snowbird, their agents or employees. I agree to hold harmless and indemnify Alta and Snowbird… from all of my claims, including those caused by the negligence or other fault of Alta or Snowbird, their agents and employees…

If that wasn’t enough, a second agreement he signed said:

In consideration of my use of the Snowbird Corporation (Snowbird) ski area and facilities, I agree to assume and accept all risks of injury to myself and my guests, including the inherent risk of skiing, the risks associated with the operation of the ski area and risks caused by the negligence of Snowbird, its employees, or agents. I release and agree to indemnify Snowbird, all landowners of the ski area, and their employees and agents from all claims for injury or damage arising out of the operation of the ski area or my activities at Snowbird, whether such injury or damage arises from the risks of skiing or from any other cause including the negligence of Snowbird, its employees and agents.

Read the fine print – if your eyes are up to the challenge

The trial court thought these agreements were pretty comprehensive, not to mention dispositive. It granted summary judgment in favor of Snowbird. Quicker than you could say, “Fluffy Bunny,” Rothstein appealed.

Held: The trial court was reversed, and Rothstein was allowed to sue the ski resort. The Court held that releases that offend public policy are unenforceable. Under Utah’s Inherent Risks of Skiing Act, certain hazards inherent in skiing are defined. Resorts aren’t liable for those risks — like breaking a leg on a downhill run — thus clarifying the hazards sufficiently to enable the ski operators to buy insurance against those risks that aren’t excluded.

The Court said that by expressly designating a ski area operator’s ability to acquire insurance at reasonable rates as the sole reason for bringing the Inherent Risks of Skiing Act into being, the Utah legislature “authoritatively put to rest the question of whether ski area operators are at liberty to use pre-injury releases to significantly pare back or even eliminate their need to purchase the very liability insurance the Act was designed to make affordable. They are not.” The premise underlying the passage of a law to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The Court said, “The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.”

Inasmuch as the legislature had determined that resorts should insure themselves against risks not inherent in the sport of skiing, the Court held that it was contrary to public policy to permit an operator to duck liability for negligence that could have been avoided by requiring its patrons to waive claims for negligence as a condition of use.

– Tom Root

Case of the Day – Tuesday, March 25, 2025

Posted on March 25, 2025 by TLRoot tagged.

BEATING AROUND THE BUSHES

When the telephone company built a substation on Mr. Doelle’s land, he didn’t beat around the bush. He sued for trespass.

The phone company replied that it intended to take a corner of his place under the doctrine of eminent domain. The trial court agreed the phone company could do so, upheld Mr. Doelle’s claim of trespass, and awarded $300 for the value of the land taken under eminent domain. In addition, the trial court granted Mr. Doelle an extra $400 for “shrubbery support.”

Sounds more like a divorce, doesn’t it? The idea was that Mr. Doelle could screen the substation from his view with a few strategically placed bushes, and the money was to enable him to plant whatever he wanted.

Despite the trial court’s crafty decision, no one was happy. Mr. D appealed the eminent domain, and the phone company appealed the “shrubbery support” award.

The Court of Appeals cleaned things up. It upheld the trespass and the phone company’s right to take the property for the public good. It approved the $300 value for the land, but it reversed the “shrubbery support.” You see, Mr. Doelle had never asked for trees or shrubs to screen his view of the substation. The trial court has certain inherent powers to fashion an appropriate set of damages for the wrongs brought before it, but the “shrubbery support” award appeared to be based more on the trial court’s sympathy for Mr. Doelle’s visual plight than on any evidence.

Doelle v. Mountain States Tel. & Tel., 872 F.2d 942 (10th Cir. 1989). In this case (which primarily involved questions of easement and eminent domain), Mr. Doelle sued Mountain Bell for trespass, alleging it had put a substation on his property without his permission. Mountain Bell laid claim to a small portion of Mr. Doelle’s property in order to build and maintain a substation. Mountain Bell sued to have him evicted from his property.

The trial court upheld the trespass but found Mr. Doelle hadn’t been damaged. It also awarded Mountain Bell to claim the property for the common good, awarding Mr. Doelle $300 for the value of the land that was taken. The Court then awarded him an additional $400 to install shrubbery to screen his view of the substation, thereby making the intrusion less onerous. Mr. Doelle appealed the eminent domain ruling, and Mountain Bell appealed the $400 in “shrubbery support.”

These are not the Bushes we are talking about.

The Bush family – remember them? They are not related to the bushes involved in today’s case.

Held: The Court of Appeals upheld the trespass and Mountain Bell’s right to claim the property by eminent domain. However, it reversed the $400 shrubbery award to Mr. Doelle.

The Court observed that Utah’s law of eminent domain does not provide for equitable damages. Rather, the trial court found authority to make the award entirely from its inherent power. Even assuming that the trial court had the equitable power to fashion an appropriate remedy, the Court of Appeals said, Mr. Doelle never sought equitable relief in the form of trees to screen his view of the substation nor presented evidence concerning the cost of planting trees.

While a trial court’s award of damages will not be set aside unless it is clearly erroneous, an award must be based on reasonable inferences rather than on mere sympathy. When damages cannot be fixed with the desired certainty, the proof must be reasonable under the circumstances.

This damage award was not reasonable.

– Tom Root

Case of the Day – Tuesday, January 21, 2025

Posted on January 21, 2025 by TLRoot tagged.

THE CONTRACT SAYS WHAT?

Somewhat to my surprise, my snowdrops poked their little green shoots through the cold soil a few weeks ago. But with the arrival of snow last week and an Arctic blast yesterday, they are buried under several inches of white stuff. Which is good, because they are not usually seen until the second week of February here in the Great Lakes Basin just 30 miles south of the Canadian border.

My wonder dog Winnie found this morning’s walk a little nippy, but tomorrow will be worse, with the temp hovering slightly below zero. She’ll still find it fine for chasing deer (she flushed ten of them on Sunday, pursuing them like the 40 lbs. of bad news she can be when chasing game, small and large).

So I walk my dog on a cold day. Who cares? Landscaper Superior Property Management Services, Inc., sure did when Colleen Hill decided to do that. Utah-based Superior had been hired by the Waterbury Homeowners Association to landscape and maintain the grounds at beautiful Shanty Acres. The parties had a standard contract, one that – among other things – called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season.” Elsewhere, the contract directs the landscapers to “trim . . . small and lower branches” on trees.

The contract was just a formality. Superior has been in business since the bristlecones were seedlings, and its crews thus knew exactly what needed to be done. They often went beyond the literal terms of the contract, which – as was typical for landscaping contracts – were not especially detailed. Over the seasons, Superior maintained Shanty Acres very well, and the contract was repeatedly renewed. The Happy Homeowners Association was indeed happy.

Then condominium resident Colleen Hill ventured outside to walk her dog one cold day. When she followed the cavorting canine onto the lawn, she tripped over a basal shoot growing from a tree root, fell, and hurt herself. She sued both Superior and the Association, claiming that Superior owed her a duty of care because of what it agreed to do in the contract. Superior, she alleged, was negligent in not trimming the basal shoots.

But how could Superior owe Colleen Hill a duty? Its contract was with the Association, and the Association thought Superior had done a superior job. True, Superior prided itself on doing more than the contract called for, but that was what a good landscaper did. Thus, Superior’s crews normally trimmed basal roots … but if Colleen’s complaint was to be believed, it appears Superior’s workers may have overlooked the shoots that proved a snare to her feet.

Superior should have trimmed the exposed roots, Colleen said, whether the contract said it should or not …

The courts finally concluded that Superior owed Colleen no duty. Its obligations were to the Association, and those obligations were those spelled out in the contract, not what additional services Superior might gratuitously provide. The landscaper won in the end, but only after four years of expensive litigation.

So what does the professional arborist or landscaper learn from Superior’s legal travails? The first lesson is to read the contract form he or she is using. Does it adequately define the services being provided? If the arborist will be performing more services than those described in the contract, those probably should be described in the contract.

At a minimum, the contract should clearly provide that any services provided beyond those required by the contract are being provided as a courtesy only and that the contract does not establish a duty between the arborist and anyone other than the client.

Will this be enough to save the arborist from frivolous lawsuits? Probably not in this society. But an ounce of careful contract drafting now may be worth a pound of lawyers later.

Hill v. Superior Property Management, Inc., 2013 UT 60 (Utah Supreme Ct., 2013). Superior Property Management had held the contract to maintain premises for the Waterbury Homeowners Association for years. The form contract called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season” and to “trim . . . small and lower branches” on trees. After resident Colleen Hill, while walking her dog one early spring day, tripped on a growth from a tree root, she sued Superior for negligence because it had not trimmed the root.

Held: The landscaper didn’t owe Colleen a duty of care. As the Supreme Court of Utah observed, the “law draws a critical distinction between affirmative acts and omissions. As a general rule, we all have a duty to act reasonably in our affirmative acts; but no such duty attaches with regard to omissions except in cases of a special relationship.”

The Court agreed that sometimes, such a special relationship might be rooted in a contract. But it held that neither specific obligation in the contract – the obligation to mow the grass weekly and edge bi-weekly “throughout the normal growing season,” or the obligation to “trim . . . small and lower branches” on trees – created a duty flowing from the landscaping company and the injured property owner.

Lesson: No contract is the ultimate contract, but that doesn't mean you shouldn't try for comprehensiveness in drafting ...

Lesson: No contract can plan for every contingency, but that doesn’t mean you shouldn’t try for comprehensiveness in drafting whenever possible …

The Court noted that “in the first place, it is not at all clear that mere failure to perform would sustain liability in tort. A breach of contract, after all, typically gives rise to liability in contract … Even assuming that Superior’s maintenance contract could sustain a tort duty, moreover, there is still no basis for liability here, as neither of the provisions required Superior to perform the acts it is now charged with omitting.” The Justices analyzed the contract provisions, pointing out that the accident happened in early spring, outside of the “normal growing season.” What’s more, the dictionary definition of “branch” is “a stem growing from the trunk or from a limb of a tree” or a “shoot or secondary stem growing from the main stem.” Therefore, the Court reasoned, “the ‘branches’ to be trimmed under Superior’s maintenance contract are protrusions from the main trunk only, not separate shoots stemming from the tree’s roots. Superior could not be in breach for failing to trim back those shoots.”

Maybe so, argued the homeowner, but regardless of what the contract may have said, the landscaper’s obligations “were not comprehensively detailed in its maintenance contract, but encompassed acts that it habitually engaged in over time.” The Court rejected this dangerous notion, declaring that there “is no room in our law for a tort duty arising from course-of-performance acts that are nowhere provided by contract.” The Justices reasoned that “where a duty is rooted in the express language of a written contract, the parties are on notice of their obligations, and are in a good position to plan their activities around them. That is not at all true for … extracontractual, course-of-performance acts relied on” by Ms. Hill. “If we were to impose a duty in connection with those acts,” the Court said, “we would establish a troubling perverse incentive. A party facing a tort duty in connection with any undertaking not required by contract would be discouraged from such undertaking. And a disincentive for gratuitous service benefiting another is not the sort of conduct that our tort law ought to countenance. In any event, to the extent injuries ensue from negligence in the performance of such activities, liability would properly be governed by a different branch of our tort law – by the standards governing liability for a voluntary undertaking, a theory we … find unavailing.”

– Tom Root

Case of the Day – Friday, December 27, 2024

Posted on December 27, 2024 by TLRoot tagged.

RUNAWAY TRAIN NEVER GOING BACK …

Mr. Elder drove his dump truck onto the Union Pacific tracks in Nephi, Utah — a town, not a soft drink — where he was promptly hit by what the Utah Supreme Court described as a “ninety-one car train.” It’s unlikely 78 cars or 23 cars or even just a set of GE diesel-electric locomotives would have caused a less deadly result.

Mr. Elder was killed, and his widow set off trying to find someone to pay for it. She sued Union Pacific and the City, suggesting that someone should have trimmed the trees near the tracks so her husband could have seen the train. The UP, which was quite adept in its own right in blaming others for grade-crossing mishaps, had a great excuse: the railroad didn’t own the offending trees to begin with.

It seems that no one ever remembered to give the Union Pacific title to its right-of-way, due to — what else? — a federal government screw-up back in the 19th century. It almost makes you wish Uncle Sam had shut down again However, the ever-resourceful Mrs. Elder argued, the Railroad had acquired all of the land under and around the tracks by prescriptive easement. She was thus in the unusual position of arguing in the lawsuit that UP was entitled to own a big piece of land on which it had been squatting for a hundred years — and was therefore liable for not keeping up the land it had never claimed to own — all at the same time.

Pretty creative lawyering! But the Utah Supreme Court held Mrs. Elder had no standing to claim the UP’s prescriptive easement on its behalf, probably because the Court suspected she didn’t have the Railroad’s best interests at heart. Imagine! As for the City, the Court agreed it had no duty under any statute to trim the trees, but it did observe the City did have a common law duty to Mr. Elder. The case was sent back to figure out whether that duty required it to trim the trees obscuring the crossing.

Elder v. Nephi City ex rel. Brough, 164 P.3d 1238 (S.Ct. Utah, 2007). Shelley Elder was killed on a Union Pacific Railroad railway track in Nephi City, Utah when the dump truck he was driving was struck by a freight train. His widow sued, contending that her husband’s death was caused by the negligence of Union Pacific Railroad and the City of Nephi.

The tracks may have been a little obscured by trees, but not quite like this.

According to Mrs. Elder, her husband would not have lost his life had a line of trees located parallel to the railroad tracks not obscured his vision of the train. The trees were situated on land owned by the City of Nephi, but Union Pacific owned the tracks and operated the train. The Railroad had no recorded property interest in the ground where the trees were located. The trial court summarily dismissed Mrs. Elder’s wrongful death claim, ruling as a matter of law that neither Nephi nor the Railroad owed a duty to Mr. Elder to ensure that the trees did not impair motorists’ ability to observe approaching trains. She appealed.

Held: The Railroad had no property interest in the trees and was under no duty to remove them. While the City of Nephi owed no statutory duty to Mr. Elder, it did owe a common-law duty to him, and the case had to be reversed on that point.

As for the Railroad’s right-of-way through Nephi, the UP route was acquired by prescriptive easement rather than by statute, and thus did not extend to land bordering tracks, including the land on which the offending trees stood. Under the Federal Townsite Act of 1867, the United States conveyed by patent to a probate judge the land within the city limits, including the railroad crossing area. Because this conveyance occurred before Congress passed the Railroad Rights of Way Acts granting railways rights-of-way through public lands, the statute could not have conveyed the right-of-way through Nephi.

Mrs. Elder claimed that the Railroad’s prescriptive easement extended not only to the railbed, however, but also to the land on which the trees stood. The Court ruled that while it wouldn’t rule that out, Mrs. Elder lacked standing to make a prescriptive easement claim on behalf of the Railroad. Standing to bring a quiet title action to perfect title is limited to parties who could acquire an interest in the property created by the court’s judgment or decree. What Mrs. Elder sought to do was to stick Union Pacific with the prescriptive easement as a way-station on the road to making the Railroad liable for her husband’s death.

As for the City of Nephi, the Court said, municipalities owe a duty of reasonable care to ordinary people, and this duty extends to travelers on their highways. The scope of a governmental entity’s common-law duty to persons using roadways under its control extends beyond the boundaries of the thoroughfare. A governmental entity does not undertake a duty to remove vegetation from private land that may obstruct the vision of motorists utilizing its roadways; nor does a private party bear a common-law duty to keep roadways free of visual obstructions caused by vegetation growing on his land.

The Court ruled that the Utah statute requiring landowners to remove vegetation “which, by obstructing the view of any operator, constitutes a traffic hazard,” did not impose a duty on the City to monitor railroad crossings for visual obstructions. U.C.A. § 41-6-19. Rather, the City’s statutory obligation to remove the trees would have been triggered by receipt of notice from the department of transportation or a local authority that an investigation had deemed the trees to be a traffic hazard. The City did not undertake any such investigation itself.

Nevertheless, the Court said, a genuine issue of material fact remained as to the allocation of duties between the City — which owned land near railroad tracks that contained irrigation ditch and trees which sprouted from the ditch embankment — and the irrigation company, which maintained irrigation ditch along the land pursuant to an irrigation easement. The common-law duty of a governmental entity to safeguard those who travel its roads may extend to visual hazards located on its land outside the bounds of the roadway itself, and the mere fact that an easement existed did not automatically assign that common-law duty to the servient estate. The issue of whether the City or the irrigation company was responsible for tree trimming, and whether the City breached its duty to the late Mr. Elder, precluded summary judgment.

– Tom Root