A CAUTIONARY TALE FOR JULY 4TH — July 3

As millions of dollars worth of largely-illegal fireworks are detonated in honor of America’s birthday , it’s a pretty good idea to consider the precautions people need to take to remain safe. 

Today’s case reminds us of potential legal ramifications.  The incident happened on New Year’s Day, not July 4th, but the risks are similar.  A young kid in someone else’s yard with their permission … A bottle rocket detonated … an eye lost. 

The adult who lit the bottle rocket was liable, but inasmuch as she let a default judgment be entered against her, she probably had nothing.  So the injured boy’s mother began prowling for a deep pocket.   She claimed the homeowner was liable for several reasons, the most interesting of which was the doctrine of attractive nuisance. 

Attractive nuisance balances two competing societal interests, that of protecting children (recognizing that most children will trespass on occasion and sometimes are injured when they do so) and landowners' interest in not being unreasonably burdened to ensure that their property is safe for those children who trespass.  Under the doctrine, a landowner who maintains dangerous instrumentalities on the premises easily accessible to children and likely to attract them in play, or permits dangerous conditions knowing that children are in the habit of using such things for play and who fails to exercise ordinary care to prevent children from playing with them, is liable for injuries to the children. 

Here, the landowner escaped liability because he had exercised ordinary care.  But amidst the picnic food and beer and adults playing with fireworks, some kids are going to get hurt on the Fourth, and some landowners who let it go on knowing that kids might be attracted — even without permission — may be liable. 

Have a safe Fourth of July.

  Keith v. Peterson, 922 So.2d 4 (Sup.Ct. Miss. 2005).  Young Brandon Keith was struck in the eye by a bottle rocket while playing with friends in the Petersons' back yard.  The Petersons had held a New Years Eve party the night before, and some of the Petersons’ friends were picking up unused fireworks — which some of the partygoers had brought with them the night before — which were strewn around the yard.  Brandon, who had attended the party because he was visiting his grandmother across the street, had been given permission to play in the Petersons’ yard by his grandmother as well as by Mrs. Peterson.   While the children were playing hide and seek (and Brandon was hidden in the bushes), one of the people cleaning up the yard lit a bottle rocket and threw it into the air.  The rocket ignited, flew across the yard and put Brandon’s eye out.  Mr. Peterson was on his way home from an errand at the time, and didn’t know Brandon was in the yard.  The woman who had lit the rocket had no idea Brandon was hidden in the bushes.  Brandon’s mother sued Mae Langston, who had lit the rocket, and the Petersons.  Mrs. Keith obtained a default judgment against Mae for $350,000, but the trial court granted summary judgment for the Petersons and dismissed the case against them.

  Held:   The trial court was upheld.  The Court of Appeals first considered whether Brandon was an “invitee” — one who enters the property of another in response to an express or implied invitation of the owner or occupant for their mutual benefit — or a “licensee” — who enters another's property for his own benefit or pleasure — or a mere trespasser.  A landowner owes the highest duty to an invitee, the duty to maintain his property in a reasonably safe condition, and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view.  For a licensee or trespasser, on the other hand, a landowner owes only the duty to have refrain from willfully or wantonly injuring him or her.  Normally, the status of the plaintiff is a jury question, the Court said, but where the facts aren’t in dispute, the court can make the determination as a matter of law.  In this case, young Brandon was on the Peterson property as a “licensee,” because he had the Petersons’ permission to be there and he was there for his own pleasure — to play with other children — rather than for the Petersons’ benefit.  Because Brandon was a licensee, the Petersons only owed him a duty to refrain from willfully or wantonly injuring him.  To breach that duty, the Court said, required more than mere inadvertence or lack of attention.  Instead, the conduct must constitute a conscious disregard of a known serious danger.  Here, the Court ruled, the undisputed evidence showed the Petersons didn’t engage in wanton or willful conduct.  The property owner was riding his bicycle towards his property when he saw children playing in his yard and two adults cleaning up fireworks, and it was at this time that Mr. Peterson saw one of the adults ignite the bottle rocket.  He didn’t know that Brandon was one of the children playing on his property until he heard his scream, and Brandon testified that Mae Langston didn’t know that he was hiding behind hedges.  And because the guests cleaning the yard weren’t paid employees, the doctrine of respondeat superior did not apply to make the Petersons liable. 

  Brandon’s mother argued that the doctrine of attractive nuisance applied to this action.  The Court noted that the theory of attractive nuisance was that a landowner was subject to liability for physical harm to children trespassing thereon if the property owner failed to exercise ordinary care in maintaining the dangerous instrumentality which attracted the children.  That didn’t apply here, the Court said, because the record showed that Mr. Peterson exercised ordinary care, he was not liable.  There was no testimony that he had allowed children to detonate the remaining fireworks without supervision, he had two adults removing fireworks from his yard, and he was not on his property at time of incident and was unaware of licensee's presence on his property.

THE BIKE RIDER “QUACKED” UP — July 2

Note to Mr. Quackenbush: President Bush didn't sue anyone when he fell off his mountain bike. But you, Mr. Quackenbush, are no President Bush. 

You sued the City of Buffalo because while you were riding your bike on one of Buffalo’s park trails when you hit a hole and fell off.  But then Buffalo tried to trample you.  The City argued that the recreational user statute immunized it from liability, but the Court ruled that where a government entity is involved — rather than a private landowner — it had to figure out whether the recreational user statute was intended by the legislature to induce the City to open the park, or to increase the use and enjoyment of the particular park by the public. 

The City argued the trail was really kind of like a sidewalk, and the state’s sidewalk injury immunity statute applied.  No dice, the Court said.  Well, Quackenbush kind of assumed the risk, the City said.  Not necessarily, the Court countered.  Through it all, the City hadn’t shown it wasn't responsible for creating the hole, or that it didn’t know it was there.  

Now you’d think that hitting a hole on an unimproved trail on a mountain bike was kind of an unsurprising risk. But unsurprising or not, this case is going to trial.

Quackenbush v. City of Buffalo, --- N.Y.S.2d ----, 2007 WL 2812632 (N.Y.A.D. Sept. 28, 2007).  Quackenbush was riding a mountain bike on a trail located in a park owned by the City of Buffalo when he hit a large hole, fell and was injured.   He sued for negligence, and the City of Buffalo moved for summary judgment under several theories, chief among them being the New York recreational use statute.  The trial court denied summary judgment, and the City appealed.

Held: Quackenbush could not be buffaloed by Buffalo.  The appellate court concluded that the recreational use statute did not confer immunity upon the City.  Although the statute generally provides immunity to landowners who permit others to use their property for certain recreational activities, the Court said, when the landowner is a government entity a different standard is applied.  Then, the appropriate inquiry is the role of the landowner in relation to the public's use of the property, and from there a determination is made whether it is appropriate to apply the limited liability provision of the statute.  Here, the Court concluded that the park was actively operated, supervised and maintained in such a manner that recreational use immunity would not create an additional inducement to keep the property open to the public for the recreational activities set out in the law.  Additionally, state law immunizing the City for damages caused by bad sidewalks didn’t apply, inasmuch as the law was limited to streets, highways, bridges, culverts, sidewalks or crosswalks.  Under the facts of this case, the Court held, the statute must be construed as a flat prohibition “of defect enactment pertaining to locations beyond the six specified.”  The Court rejected the City’s argument that an unimproved trail such as the one on which Quackenbush was injured was the functional equivalent of a sidewalk.  The Court also ruled that Quackenbush had not assumed the risk of injury. Although the risk of striking a hole and falling is inherent in riding a bicycle on most outdoor surfaces, the Court said, there was an issue of fact whether the hole at issue in this case was open and obvious.  Finally, just so the City could go 0 for 4 here, the Court observed that the City was required to establish as a matter of law that it hadn’t created the dangerous condition and didn’t have actual or constructive notice of it.  The City hadn’t done either.

AN INCREDIBLE STORY? — July 1

Judges actually go to judges school to learn neat, judge-related things.  Not the law … they already know about the law, or they know how to look it up.  Instead, judges learn really practical things — such as how to tell when a witness is lying.

And how can you tell when a witness is lying?  No, not when his or her lips move.  That’s too easy.  But judges learn how to watch for signs — and they don’t tell us in the great unwashed what those signs are — that a witness may be dissembling.  Dissembling: a great euphemism for lying.

In today’s case, two New York neighbors had a common fence.  On the Zeltsers’ side of the fence was a one-foot wide strip of land between the fence and the driveway.  It had been there for a long time.  The Zeltsers took care of the strip, planted trees and shrubs, enclosed it from the street and even paved part of it.  But in 2003, the Sacerdotes had a survey done and found, lo and behold, the strip belonged to them.  They tore down the fence and cut down the trees.  The Zeltsers sued.

The trial court found, on the crucial issue, that the Zeltsers had used the one-foot wide strip openly, continuously and exclusively from 1987 to 2003.  The Sacerdotes argued that there had been evidence — testimony from the Sacerdotes — that showed otherwise.  But the Court of Appeals noted that the trial court — which had been in “a unique position to assess the evidence and the credibility of the witnesses” — resolved that issue in favor of the Zeltsers. 

Generally, appellate courts will not disturb credibility findings of a trial court.  The trial judge, after all, with his keen eye for prevaricators (a euphemism for dissemblers, see above), can smell testimony that gives off the reek of tergiversation — and the appellate court wasn’t about to question what the trial court had decided.

There is undoubtedly a good back story here, one we’ll never know.   But the Zeltsers were awarded the one-foot strip by adverse possession, so it’s a cinch the judge didn’t disbelieve them.  It’s also a cinch they won’t be dinner guests at the Sacerdotes any time soon.

Zeltser v. Sacerdote, --- N.Y.S.2d ----, 2008 WL 2521255 (N.Y.A.D. 2 Dept., June 24, 2008), 2008 N.Y. Slip Op. 05925.  The Zeltsers and the Sacerdotes owned adjoining residential properties. When the Sacerdotes purchased their property in 1987, an existing fence — covered in rose bushes and vines — ran parallel with their property line from the street to a garage in the rear for about 100 feet. A small strip of dirt, about a foot wide was sandwiched between the fence and the Zeltsers' driveway. The Zeltsers believed that the strip — which was on their side of the fence — belonged to them.  They planted trees on the strip, trimmed the bushes and vines on the fence, and installed a row of bricks as an edging. They installed a fence that enclosed the front portion of the srip, making it inaccessible from the street, and they laid asphalt on the strip between their garage and the Sacerdotes' garage, both of which were on the back portion of the respective properties.

However, title to the one-foot strip was held by the Sacerdotes, but they never told the Zeltsers that until they had a property survey done in 2003.  Then, they removed the fence and the trees. The Zeltsers sued to quiet title to the disputed strip, based on their claim of adverse possession.

Held: The Zeltsers had obtained the strip by adverse possession.  The Court observed that a party claiming title by adverse possession, not based upon a written instrument, must show that the parcel was either usually cultivated or improved or protected by a substantial enclosure.  Additionally, the party must satisfy the common-law requirements demonstrating by clear and convincing evidence that the possession of the parcel was hostile, under claim of right, open and notorious, exclusive, and continuous for the statutory period of 10 years. 

Here, the trial court properly found that the Zeltsers had established that they met both the statutory and common-law requirements of adverse possession.  The trial court’s findings relied substantially on its perception of the credibility of the witnesses, and the appellate court was not willing to disturb those findings.  The Court said that the evidence established that the Zeltsers openly used and maintained the disputed strip from 1987 until 2003. The Sacerdotes argued that there was conflicting evidence as to whether the Zeltsers' possession of the disputed property was exclusive.  However, the trial court — which, the Court observed, “was in a unique position to assess the evidence and the credibility of the witnesses” — resolved that issue in favor of the Zeltsers, and the appellate court wasn’t about to disturb the finding.

WIRED-UP TREES — June 30

We’ve all seen those spindly trees that cities and towns plant by the hundreds, skinny things supported by one or more posts and guy wires, standing on tree lawns and in medians with not much more than a pathetic possibility that thy might someday be majestic shade trees.

One of these staked and wired sentinels fell in high winds one night, and the City of Kenner, Louisiana, sent one of its crews to repair it.  They replanted it in the same home and rewired it with the same guy wires — hardly a prescription for a tree with a future.  And it turned out that the tree’s future at that point could have been measured on a stopwatch.  Within hours, it fell again in high winds, this time onto Mrs. Sampedro’s car.

The Sampedros sued, claiming that the City had negligently placed guy wires on the tree, and that anyway, the City should be strictly liable whenever one of its trees fall.  The trial court granted summary judgment for the City.

Strict liability’s a great thing for a plaintiff.  A plaintiff is generally relieved from proving any more than that something injured him or her, and that the defendant owned or controlled it.  But in 1995, the Louisiana legislature gutted strict liability where a municipality was a defendant.  Even in strict liability cases, the lawmakers said, the plaintiff had to prove that the municipality had notice of the defect.

The Court here ruled that it didn’t matter that the Sampedros had an expert who testified that the guy wires should have been placed differently.  There were no published guidelines on how to guy a tree, and anyway, the City had planted hundreds of trees in the year before the accident, with only about a dozen of them falling.  That’s about a 4% failure rate for those math whizzes among us.  Not bad: imagine if the airline industry only had 2,000 crashes per day out of its 49,000 flights.

But the numbers seemed right to the Court.  High winds had knocked over the tree, it said, not bad guy wires.  Of course, this begs the question of why guy wires were there to begin with, if not to keep trees from falling in high winds.  But Mrs. Sampedro had to repair her own car.  The City was not liable.

Sampedro v. City of Kenner, --- So.2d ----, 2008 WL 2468493 (La.App. 5 Cir., June 19, 2008).  Rosa Sampedro was driving past the intersection of Williams Boulevard and Granada Street when a tall, slender oak tree fell into the path of her vehicle. Mrs. Sampedro, who was wearing her seat belt, braked quickly and struck her knees on the dashboard of her vehicle.  The tree damaged her vehicle but no other vehicles were involved.  A police officer opined that high winds caused the tree to fall.  The Sampedros sued the City of Kenner and its insurer. After defendants filed their answer, they moved for summary judgment, which was denied. 

Trial testimony showed that the day before the accident, a driver lost control of his pickup truck at the same intersection and knocked down the oak tree in question.  The next day, a maintenance crew from Kenner's Department of Public Works re-planted the tree, securing it with guy wires on three sides as it had been prior to the accident. The Public Works crew used the same guy wires attached to the tree and placed them close to the base so as not to interfere with the mowing of the grass on the median. A witness from the city admitted the alternative would have been to put the guy wires farther out and instruct the mowers to be careful.  The Public Works Department had planted 200 to 300 trees in Kenner in the prior year, and the department had received about a dozen complaints of leaning or fallen trees since that time. It had never received a complaint regarding the tree in question.

The court found for the defendants, concluding they did not have notice of a defect before the accident so they were not strictly liable for plaintiffs' damages, and they were not negligent under for the placement of the tree in question.  The Sampedros appealed.

Held: The City was not negligent.  Louisiana law provided two theories under which the City might be held liable for damages: negligence under Louisiana Civil Code §2315 and strict liability under Civil Code §2317.  Under strict liability, a plaintiff was relieved of proving that the owner of a thing which caused damage knew or should have known of the risk involved. In 1985, however, the Louisiana Legislature eviscerated this distinction in claims against public entities by requiring proof of actual notice of the defect which causes damage, thus making the burden of proof the same under either theory.

The Sampedros argued the City of Kenner was negligent because of its “want of skill” in replanting the tree that had been struck by a car the previous night. They claimed the City was negligent because the Public Works Department improperly erected the tree by placing the guy wires too near the base of the tree and too low on the trunk of the tree.  They presented an affidavit from a horticulturist stating that the City “improperly tied the guy wires too low on the trunk to provide adequate stability.”  The record, however, contained no guidelines for guy-wire placement that were not followed by the City of Kenner or procedures that were lacking in its installation of trees.  By 2003, the City had planted between 200 and 300 trees since 2000 in the same manner as the tree in question under the direction of a landscape architect and had received only a dozen complaints of leaning or falling trees. 

The Court ruled that the Sampedros had not met their burden by merely stating that the placement of the guy wires was improper and, thus, negligent because the tree fell over in high winds.

But the plaintiffs also argued the City was strictly liable for their damages because it knew of the defective guy wires and failed to correct the defect before Mrs. Sampedro's accident. In claims against a public entity based upon strict liability imposed under the Civil Code “no person shall have a cause of action against the public entity for damages caused by a condition under its control absent a showing of actual or constructive notice of the particular condition and a reasonable opportunity to remedy the defective condition.” Therefore, the Sampedros had to establish that the thing which caused the damage was in the custody of the defendant, that it was defective, and that the defendant had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time. The law defines constructive notice as the “existence of facts which infer actual knowledge.”  The Sampedros contended that the City of Kenner was aware that the tree had been knocked downed the night before this accident so it was aware that “the defective guy wire locations ... had failed the night before the accident.”

The Court didn’t buy it.  The record supported the theory that the tree fell because of high winds the night before.  The fact that a tree was knocked down then re-planted “securely” did not constitute constructive notice of a defect in the guy wire or the tree's placement.

IT JUST WASN’T HER DAY — June 27

Some days not much goes right.  Heidi Cordeiro had a day like that.  First, she hears a crash in her driveway, and looked out to see that a tree belonging to the hospital next door had fallen, crushing her car.  Then, she hurried out to assess the damage, only fall over the branches of the downed tree, spraining her ankle. At least she didn’t have to hobble far to the emergency room.

She of course sued the hospital — who doesn’t like suing hospitals? — for the damage to her car and her ankle, arguing that the tree fell, meaning that of course the hospital was negligent.  The Superior Court made short work of her suggestion that landowners were strictly liable for falling trees, pointing out that in Connecticut, a plaintiff must plead (and of course later prove) that the landowner knew or should have known that the tree was diseased, decayed or otherwise dangerous. 

Heidi couldn’t do that, and her case was dismissed, so we’ll never know whether liability would have extended to paying for Heidi not being careful where she stepped.

Cordeiro v.  Rockville General Hospital, Inc., Not Reported in A.2d, 2007 WL 2570406 (Conn.Super., Aug. 21, 2007).   A tree belonging to the Rockville General Hospital fell into the yard and driveway of the premises Heidi Cordeiro was renting, damaging her car.   When she went out to look at the damage, Heidi tripped and fell on the branches of the tree.   She sued her landlord and the Hospital, alleging negligence and asking for damages for her personal injury and for damage to her car.   Rockville Hospital moved to strike the count against it arguing that the plaintiff has failed to state a claim. 

Held:   Rockville Hospital was dismissed as a plaintiff.  The Hospital argued the facts alleged in Heidi’s complaint did not give rise to any duty owed by the Hospital to the plaintiff, the falling tree was caused by an “act of God” for which the Hospital was not liable, and the falling tree was an open and obvious defect that the plaintiff should have avoided. 

The Court observed that the essential elements of a negligence action were duty, breach of duty, causation and actual injury.  Here, Heidi Cordeiro alleged that “a tree ... belonging to the defendant ... fell upon the yard and driveway area of the premises where the [plaintiff] resided [as a tenant], and when the plaintiff went out to look at the damage to the vehicle parked in her driveway, she was caused to trip and fall over the branches of said tree, causing her to sustain ... injuries.”   In early times, there was generally no liability for trees falling on neighboring lands, an obvious practical necessity when land holdings were very large and in a primitive state, but the rule made little sense in urban settings.   In urban areas like the City of Rockville, there is generally found to be a “duty of reasonable care, including inspection to make sure that the tree is safe.”  It is now generally recognized, particularly in urban areas, that a tree owner has a duty to an adjoining landowner to exercise reasonable care to prevent an unreasonable risk of harm presented by an overhanging dead branch in a residential area.   Thus, an invitee of commercial premises may recover for injuries sustained from the fall of a defective or unsound tree growing on adjoining premises, including trees of a purely natural origin.  

However, the owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition.   A landowner who knows that a tree on his property is decayed and may fall and damage the property of an adjoining landowner is under a duty to eliminate the danger.   But a landowner does not have a duty to consistently and constantly check all trees on his property for non-visible rot.  Instead, the manifestation of decay must be visible and apparent.  In Connecticut, if the tree condition is one of which the defendant would become aware through reasonable exercise of its faculties, the defendant is chargeable with notice. 

In this case, Cordeiro had to plead and prove facts showing that the Hospital knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition, or other such proof of actual or constructive notice, in order to state a claim.  But she made no such allegation here.  Instead, she only alleged that the Hospital “was responsible for the proper maintenance of its trees and was responsible to assure that its trees did not fall into adjoining properties, causing injury.”   The law does not require landowners to continuously examine their trees for invisible decay to assure they do not fall.  Instead, it requires them to take action when there is actual or constructive notice of a dangerous natural condition.

HEY, IT WAS AN HONEST MISTAKE — June 27

Anyone can make a mistake, right?  That’s what Mr. and Mrs. Peters claimed.  They bought a lot next to the Kriegs, who undoubtedly were elated to have such devil-may-care neighbors.

The Peters didn’t know where the lot lines were.  Their real estate agent didn’t, either.  That didn’t stop them from starting to hack down trees on the property as soon as the ink was dry on the deed, in order to build their dream house.  You probably know where this is going.  Yup, fun-lovin’ Harry Peters, acting as his own tree service, cut down 29 trees on the Kriegs’ land.

The Peters admitted the honest error, but they weren’t too happy about the treble damages.  C’mon, they said.  There wasn’t any evidence they knew they were cutting Kriegs’ trees.    But the Court pointed out that the state of the evidence was precisely the problem.  It was up to the Peterses to prove that they thought the land was theirs.  The wife’s testimony was all they had offered, and it didn’t help: she explained they didn’t really know where the boundaries were, and never bothered to find out. 

But the biggest problem was what Mr. Peters testified to: nothing.  He was the one who cut the trees down, and the Court seemed to expect that he would have material testimony to offer.  But he didn’t testify.  There’s a fairly standard principle in evidence known generally as the “missing witness instruction.” It holds, as the legendary Professor Wigmore put it, that “the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause.” The Court didn’t say it, but it strongly implies that the absence of testimony from Harry Peters led it to conclude that if he had taken the stand, he wouldn’t have helped his cause any.

Krieg v. Peters, --- N.Y.S.2d ----, 2007 WL 4441077, 2007 N.Y. Slip Op. 10012 (N.Y.A.D. 3 Dept., Dec. 20, 2007).   In May 2004, the parties became adjoining property owners when the Peters family purchased the vacant lot next to the Kriegs. The Peterses intended to construct a house on their property, so Mr. Peters began clearing land without consulting the map referenced in their deed or having a survey conducted. He removed 29 trees from Krieg’s property. Following a jury trial, the Kriegs were awarded damages, including treble damages under New York statute for the removal of this timber.  On appeal, the Peterses only contest the treble damages award.

Held:  The treble damages were upheld.   Under RPAPL §861[2], the New York treble damage statute, in order to avoid treble damages, the Peterses had the burden of proving by clear and convincing evidence that when they removed the trees from the Kriegs' property, they “had cause to believe the land was [their] own.”   Their proof in this regard was woefully inadequate. Mrs. Peters was the only defense witness to testify on this critical issue, and the appellate court found that her testimony had been more damning than helpful in sustaining their burden.  She said that, before she and her husband purchased the property, she walked it on one occasion with their realtor.  At that time, she specifically asked about the boundary lines but the realtor couldn’t answer her question with any certainty. She said she told her husband of the realtor's uncertainty when they later walked the property together. She also candidly admitted that no steps were taken to obtain a survey or consult the map referenced in their deed before clearing the land. The Court found it significant that, although he had logged the property, Mr. Peters never testified.  It found plenty of evidence that the defendants had no cause to know whether the land Mr. Peters was logging belonged to them or not.

The Peterses also argued that the legislature never intended for RPAPL §861 to apply to individuals such as themselves who make “honest” mistakes about boundary lines.  The Court disagreed, holding that on its face, the statutory scheme clearly applied to the facts and circumstances of the case and, in the absence of sufficient proof on defendants' part to avoid treble damages, it didn’t find the treble damage award to be inconsistent with the law’s purpose or intent.

“SURVIVOR – LAWSUIT ISLAND” — June 25

Life (and law practice) sometimes imitates art.  Just like contestants are voted off the island in Survivor, weak cases are many times voted off the docket, so to speak, by summary judgment.  Summary judgment is a mechanism for a judge to decide cases where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 

In this case, Stack was trimming Hernandez’s trees at Hernandez’s invitation.  While working on a lawn with spotty and bumpy grass, Stack tripped on a small depression and broke his leg.  He sued, of course, claiming that Hernandez should have been aware of the depression and should have warned him of it. 

He didn’t have any proof that Hernandez was aware of the depression, and the Court very nearly granted summary judgment for Hernandez.  But it concluded that a reasonable juror conceivably could — after hearing witnesses and cross-examination — conclude that Hernandez should have known about the depression, and should have either warned Stack or filled it in himself. 

So after the summary judgment challenge, Stack remained a “survivor” — leaving it to a jury to vote his case off the island later.

Stack v. Hernandez, Not Reported in A.2d, 2007 WL 1893617 (Conn.Super., June 12, 2007).  Stack was trimming trees at the defendant's property at the invitation and permission of the defendant. While doing so, he stepped in a depression in the front lawn and broke his leg. The depression was about 4 inches wide and 3 or 4 inches deep.  Stack’s right toe went into the depression and stopped. The lawn was grass which was bumpy and had yellow patches in it. Stack did not see the depression before he stepped into it. Hernandez had no actual knowledge of the depression. He performed normal maintenance on the lawn himself but had never noticed it. Stack sued Hernandez for negligence, alleging that Hernandez failed to remedy the depression in the lawn or to warn him of it, even though he knew or should have known of its presence.  Hernandez filed for summary judgment on the grounds that there was no genuine issue of material fact on the issue of notice.

Held:  Summary judgment was denied.  The Court observed that summary judgment is ill-adapted to negligence cases, where, as here, the ultimate issue in contention involved a mixed question of fact and law.  The conclusion of negligence is necessarily one of fact.   A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe.  In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.  The existence of actual or constructive notice is a question of fact.  Although Hernandez argued there was no evidence from which a judge or jury could conclude that he had actual or constructive notice of the depression or that it was a danger of which Stack was entitled to be warned, the Court found it strong enough to survive a summary judgment motion.  The Court characterized Stack’s claim as weak, but conceded that a reasonable person could conclude that the depression in the lawn was a “danger” which Hernandez should have discovered and remedied with a reasonable inspection.  The Court observed that a party has the same right to submit a weak case as he has to submit a strong one, and gave him his day in court to submit it.

HEY, RODNEY, THIS IS WHY WE CAN’T JUST GET ALONG — June 24

Once again from California, the land of pleasant living …  This time, it’s the City of Rolling Hills, California, where poverty appears to have been eradicated.  It’s unlikely Rodney King would have lived here. 

But he was right to wonder “can we all get along?”   Apparently, amid the 23 miles of horse trails, the 690 homes and the 26 miles of roads, the people in Rolling Hills cannot.  The Fullers made it a habit to complain about the Murrells’ trees because it spoiled their view (probably something people on Rodney’s side of town didn’t worry much about).  The Murrells kept trying to get along, acceding to trim job after trim job, until they had finally had enough.  But they didn’t sue the Fullers.  Instead, they sued the Rolling Hills board of directors, and specifically Donald Crocker, for having caved in to all of the Fullers’ fulminating about the trees. 

Naturally, Mr. Crocker, who was a volunteer board member, didn’t much like being sued.  After all, he was just doing his job.   And the Court agreed.  Director of corporations, for-profit and not-for-profit alike, are protected by a “business judgment rule,” which protects them from liability when they have acted in good faith, haven’t engaged in self-dealing and acted on an informed basis.  (Note:  the “business judgment rule” varies by state, and you should not assume that this case represents what would happen in your own state).  Besides, the Court said, the Murrells couldn’t benefit after leading the Board and everyone else to believe they were agreeing, however reluctantly, to the tree trimming for year after year, and only when they reached the breaking point, then sue for everything that had ever happened. 

The moral is that if you just try to get along, that can be held against you.  Sorry, Rodney.

   Murrell v. Crocker, Not Reported in Cal.Rptr.3d, 2007 WL 1839478 (Cal. App. 2 Dist., June 28, 2007). The Murrells and Fullers are neighbors in Rolling Hills, California. They are members of the Rolling Hills Community Association, a nonprofit cooperative corporation governed by a five-member board of directors, one of whom is Mr. Crocker.  A governing document called the CC & R sets out the rights and obligations among the RHCA, the Murrells and the Fullers. According to the CC & R, in order to improve the view and to protect adjoining property, the RHCA has the authority to cut back or trim trees and shrubs on a member's property.  The RHCA also has a 10-foot wide easement along the boundary of each lot in which it has the right to remove trees or shrubs. In 1997, the RHCA passed a resolution establishing procedures for maintaining and improving views. At that time, the Fullers demanded that the Murrells remove foliage to create a view for the Fullers. To be good neighbors and to avoid a dispute, the Murrells did so. In 2000, the Fullers brought a view complaint to the RHCA, which “caused the removal” of five trees and the trimming of an additional 12 trees on the Murrell property. 

In 2002, the Board adopted another resolution, which contained more detailed procedures to maintain and improve views. In 2003, the Fullers submitted a second view complaint to the RHCA, which recommended that two of the Murrells' trees be trimmed.  The Murrells did so, but the Fullers complained that the trees were not trimmed enough, and in 2004 the Board ordered that a pine in the RHCA easement be removed and that other trees not on the easement be severely trimmed. 

Finally the Murrells had had enough.  They sued Crocker and the RHCA Board for taking actions inconsistent with their fiduciary duties and the CC & Rs, such as failing or refusing to inform other Board members that the CC & R's did not permit the removal of trees or other plantings from the portion of the Murrells' property not encumbered with the easement; adopting resolutions inconsistent with the powers granted to the RHCA under the CC & Rs; letting the Fullers pretty much call the shots, and trimming of trees so that the trees would not grow back for three or four years.  Crocker moved for summary judgment on the grounds that he had no individual liability to the Murrells, and that the claims in the complaint were specious.   He complained that the first view complaint was resolved by an agreement between the Murrells and the Fullers after meetings with the Committee and an arborist.  He argued the Murrells had agreed or acquiesced to almost all of the trimming.  Although George Murrell denied any such agreement, he felt that because the Committee and the Board had a negative attitude toward him and his wife, he “had no choice but to play along with the concept that some agreement had been reached as the Association Board and View Committee were claiming.”  His wife said she had been trying to “avoid a confrontation in the hope that the ... Board would, in the end, make some effort to protect some aspect of our privacy.” The trial court dismissed Crocker as a party.  The Murrells appealed.

  Held:  Crocker was dismissed as a party. The Court noted that under California law, directors of nonprofit corporations such as a homeowners association, are fiduciaries who are required to exercise their powers in accordance with the duties imposed by the Corporations Code. A director fulfills his duty to a member of the association by strictly enforcing the provisions of the CC & R's but has no fiduciary duty to exercise his discretion one way or the other with regard to a member so long as the director's conduct conforms to the standard set out in §7231 of the Corporations Code.  That section sets out the standard of care for directors of nonprofit corporations, known as “California's statutory business judgment rule.” It provides in relevant part that a “director shall perform the duties of a director ... in good faith, in a manner such director believes to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use in similar circumstances.” In performing such duties, a director “shall be entitled to rely on information, opinions, reports or statements ... prepared or presented by … one or more officers or employees of the corporation whom the director believes to be reliable and competent in the matters presented;  counsel ... or a committee of the board upon which the director does not serve ... so long as, in any such case, the director acts in good faith, after reasonable inquiry when the need therefore is indicated by the circumstances and without knowledge that would cause such reliance to be unwarranted.”  A person who performs the duties of a director according to the rule has no liability based upon any alleged failure to discharge his or her obligations as a director. 

Here, Crocker provided a declaration that he performed his duties in connection with both view complaints in good faith and with due care within the meaning of the rule, and the Murrells had no evidence to the contrary.  The Court found that Crocker’s only involvement with the Murrells or the Fullers has been in public meetings of the RHCA or in officially sanctioned trips to their property, that he has no personal relationship with either the Murrells or the Fullers and had no personal interest in the outcome of their dispute, that Crocker was not the “primary driving force” behind the alleged improper treatment of the Murrells, that the votes were unanimous in all Board actions regarding the Murrells and the Fullers, and that he did not knowingly or with reckless disregard for the truth take any action, or encourage any other Board member, to take any action inconsistent with a Board member's fiduciary duties or the CC & R's.  The Court also noted that the Murrells admitted that they engaged in conduct leading Crocker and the RHCA to believe that the Fullers and the Murrells had come to agreements involving the removal and trimming of the trees.  The Court held that because there was no reason for Crocker to suspect that the Murrells were laboring under any mistake as to their legal rights, there was no duty for him to make any disclosures on the point. Any unexpressed position on the part of the Murrells concerning the view complaints did not, the Court said, create a triable issue of fact as to Crocker's good faith compliance with his duties.

SUPPORTING THE BUSHES — Jun. 23

Today, we’re considering how best to support the Bushes. No, not George W. and Laura ... rather, the bushes Mr. Doelle wanted to plant around an unsightly telephone substation. 

When the phone company built a substation on Mr. Doelle’s land, he sued for trespass.  The phone company replied that it wanted 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.  But the trial court then granted Mr. Doelle an extra $400 for “shrubbery support.”  Sounds more like a divorce, doesn’t it?  The idea was that 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.  Doelle 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, 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), 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 Doelle’s property in order to build and maintain a substation.  Mountain Bell sued to have the Doelle evicted from his property.  The trial court upheld the trespass but found that Doelle hadn’t been damaged.  It also awarded Mountain Bell the claim the property for the common good, awarding Doelle $300 for the value of the land that was taken.  The Court then awarded Doelle an additional $400 to install shrubbery to screen his view of the substation, thereby making the intrusion less onerous.  Doelle appealed the eminent domain ruling, and Mountain Bell appealed the $400 in “shrubbery support.”

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 Doelle.  The Court noted that the Utah 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, 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 sympathy.  While damages cannot be fixed with desired certainty, the proof must be reasonable under the circumstances.  This damage award was not reasonable.

EXTREME SPORTS — June 20

            Young Michael Rivera and his buddies were riding around, when one of them decided to cut off the sidewalk onto what could charitably be called a “beaten path” through some woods in the large Glen Oaks Village residential cooperative.  Young Rivera was said to be an experienced rider, but this young BMX’er was no match for the big hole in the trail.  He fell and was hurt. 

That’s when the extreme lawyering commenced.  The co-op argued it was protected by the New York recreational user statute, because bicycling was one of the activities specifically mentioned in the law, and the trial was suitable as a bike trail.  Not so, young Rivera’s mouthpiece claimed.  The trail was just a path in the middle of a large residential community not designed for cycling. 

The trial court, perhaps sympathetic to the young man’s crash found the recreational user statute didn’t apply.  But in an impressive piece of circular reasoning, the Appellate Division said that the trail was suitable for bicycling chiefly because Rivera and his buds were biking on it and other people had, too. 

This reminds us somewhat of our mothers’ asking us whether we’d jump off a cliff just because our friends did, too.  Anyway, shaky reasoning or not, the Appellate Division did justice to the intent of the recreational use statute: to protect landowners from liability when they make unimproved land available for the use of, as the Court put it, “recreationists.”   The dictionary says it’s a good word, and the outcome in this case is probably a good result.

Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.3d 817, 839 N.Y.S.2d 183, 2007 N.Y. Slip Op. 05718 (N.Y.A.D., 2007).   Rivera and two of his friends went bicycling on a dirt trail located in a two-acre wooded area, which was part of a large residential cooperative community.   The trail was 500 feet long and 10 feet wide, and “bumpy.”   After traveling about 30 to 40 feet on the trail, Rivera came upon a 2 x 3’ hole in the ground.   Rivera was unable to avoid the hole, and his front wheel went into the hole, causing him to be thrown over the bicycle's handlebars and into the hole.   He only saw the hole “maybe a second” before he fell into it.   As a result of his fall, Rivera was injured.  His family sued the owner of Glen Oaks Village Owners, Inc., the residential cooperative community, to recover damages.  The trial court denied Glen Oaks’ motion for summary judgment, made on the basis that the New York recreational use statute applied and that the youth had assumed the risk of injury. Glen Oaks appealed.

Held:  The case was reversed.  The appellate court found that New York’s General Obligations Law §9-103, commonly known as the recreational use statute, applied to this case.  The Court said that the sole purpose of the statute was to induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities.  In return for opening up their lands for public use, property owners are provided immunity from liability.  The statute applies whenever a user engaged in one of activities identified in statute, and he or she is recreating on land suitable for that activity.  The requirement that property be physically conducive to a particular recreational activity — for purposes of determining whether a landowner is protected by the statute against claims of ordinary negligence — is satisfied when the property is the type which is not only physically conducive to a particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation. 

The Court ruled that this so-called suitability test was a question of statutory interpretation and, therefore, a question of law for the court. The Court said that a substantial indicator that the property is physically conducive to a particular recreational activity is whether recreationists have used the property for that activity in the past.  Such past use by participants in the sport manifests the fact that the property is physically conducive to it.  Here, the recreational use statute applied to Rivera’s bicycle riding on dirt trail in large residential cooperative community because bicycling was an activity included in statute, and the trail was physically conducive to bicycling.  Rivera’s use of the dirt trail — as well as the use by his friends — and the physical characteristics of the trial, established that it was physically conducive for bicycling.  The Court rejected Rivera’s claim that the fact that the trail was in the middle of a a large private residential cooperative community rendered it unsuitable for bicycling.  It held instead that the recreational use statute should be applied liberally to public and private land, to rural or urban property, whether developed or undeveloped.

THE LIMITS OF CAUSATION -- June 19

Georgia Power was building a new transmission line through some swampland. The utility mapped out an area in which, due to environmental considerations, trees had to be cut by hand instead of machine. The area was larger than the minimum required by law. While an employee of one of its contractors was cutting down trees, a branch fell from behind him and paralyzed him.

So what caused the injury, Mrs. Palsgraf? The fact the worker didn't watch the trajectory of what he was cutting? Just bad luck? His employer's lousy safety program? Another failure of the Bush Administration? Or was it the fact -- as he argued at trial -- that Georgia Power insisted more trees be cut by hand than the law mandated? Or maybe it was the fault of the consumers whose need for more electricity caused the building of the power line? Or maybe mainstream religion, for rejecting an Amish lifestyle that would eschew electricity?

You get the idea ... when someone is badly hurt, it's natural to look around for someone to blame, someone with deep pockets. But here, the Court refused to stretch the limits of causation unreasonably. And while not conceding that tree cutting was inherently dangerous, the Court nevertheless said in essence that the Plaintiff was a consenting adult, and he freely agreed to assume the risks. The lesson, kiddies — and we don't care what the slick lawyer's ad on the back of your phone book says — is that someone else doesn't have to pay every time you get hurt.

Rayburn v. Georgia Power Co., 284 Ga.App. 131, 643 S.E.2d 385 (Ct.App. Ga., 2007). Georgia Power set out to build a new transmission line. The coastal plain on which the power line was being built included wetlands and rivers.  Because of Army Corps of Engineers concerns with destruction of wetlands, Georgia Power maintained a policy of clearing wetland buffers of trees by hand rather than with machines, which tended to tear up root mats and the ground.  As well, the Georgia Erosion and Sedimentation Act required at least a 25-foot buffer to be cleared by hand on each side of a warm water stream, and at least a 50-foot buffer for trout streams, within which vegetation must be cleared by hand.  In one case, a Georgia Power environmental supervisor specified a 50-foot buffer because the area was especially sensitive, but his assistant, an environmental analyst, marked in her notebook that they put 100-foot buffers on the stream.  She set out flags showing the buffers. At some point, Georgia Power staff moved the wetland buffer to the edge of the right of way.

Caffrey Construction won a contract to clear timber, having taken into account that several areas in the project had to be hand-cleared.  While working in a buffer zone, Rayburn was struck from behind by a limb from another tree.  Rayburn sued Georgia Power, contending that the company's negligence caused his injury. The trial court granted summary judgment for Georgia Power, holding that Rayburn's injury was “the product of a normal risk faced by persons employed to cut down trees.” The court held that the decision to extend the buffer did not cause Rayburn's injury, the cause of which was either his decision to cut down the tree in the circumstance presented, or else an unforeseen occurrence for which no one was responsible. The court also declined to find that tree-cutting is an “inherently dangerous” occupation or that Georgia Power directed the time and manner of Caffrey's work.  Rayburn appealed.

Held: Georgia Power was not responsible for Rayburn’s injury.   The Court noted that the employer of an independent contractor owes the contractor's employees the duty of not imperiling their lives by the employer’s own affirmative acts of negligence.  However, the employer is under no duty to take affirmative steps to guard or protect the contractor's employees against the consequences of the contractor's negligence or to provide for their safety.  This is especially true where a plaintiff has assumed the risk.   An injured party has assumed the risk where he or she (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself or herself to those risks. Here, Rayburn argued that Georgia Power owed him a legal duty not to expose him to unreasonable risks of harm by requiring hand-clearing in an area that could have been more safely cleared by machine, and that it breached this duty. He submitted evidence that clearing timber by hand is more dangerous than clearing it by machine.  While state regulations only required a 25-foot buffer to be hand-cleared on each side of a creek, Georgia Power marked a buffer line more than 100 feet from the stream. Rayburn complained that, despite the option of a safer means of tree cutting, Georgia Power “directed that the work be performed by inherently dangerous methods in extremely hazardous conditions contrary to accepted construction industry standards.” Therefore, he argued, Georgia Power's decision to hand-clear this section of property regardless of the danger to Caffrey's employees should make it liable for his injury.  But the Court held that notwithstanding all of this, Georgia Power could not have appreciated the dangers better than he did.  The Court held that exposing someone to harm generates liability only when the person exposed does not appreciate the harm or is helpless to avoid it, which was not the case here. While Rayburn's experts concluded that the working conditions were “abhorrent,” the Court said, none of the witnesses said that the conditions were out of the ordinary for that part of the state. If the contractor's employees can ascertain the hazard known to the entity hiring the contractor, the contractor need not warn the employees of the hazard. Rayburn argued that, even if he knew the general risk involved in felling trees with a chain saw, he did not assume the specific risk that the particular branch that hit him would do so. 

Rayburn was hired to cut trees. He had experience cutting trees. He testified that he observed the conditions and would have spoken to his supervisor if he thought they were unsafe. He already knew that cutting trees with a chain saw was hazardous, and therefore Georgia Power had no duty to warn him that he could get hurt by doing the job which presented hazards that he fully understood. He had actual knowledge of the danger associated with the activity and appreciated the risk involved.

Rayburn also argued that OCGA §51-2-5 made Georgia Power was liable for Caffrey's negligence because the work was “inherently dangerous,” and because it controlled and interfered with Caffrey's method of performing the job.  But the Court said the statute only makes an employer liable for the contractor's negligence, and here, Rayburn has not established that Caffrey's negligence led to his injury. Even if he had, Rayburn had not shown that Georgia Power retained the right to direct or control the time and manner of clearing the timber. Georgia Power's on-site supervisor visited the property once or twice a week, but did not direct the Caffrey employees in how or when to do their jobs. The Court observed that merely taking steps to see that the contractor carries out his agreement by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable.

TREBLE DAMAGES FOR TRESPASS TO TREES — June 18

Most states have statutes that require people who trespass on land and remove trees to pay multiple damages, most commonly three times the value of the timber but in some states double damages.  Usually, the statute requires that the person trespassing and removing trees have some culpability more than mere negligence.  The notion is that people who recklessly or intentionally cut down someone else’s trees need a disincentive to their conduct, and awarding a multiple of damages is intended to discourage them from their nefarious deeds.

But like any good statute (look at the federal RICO statute for proof of this) the opportunity for misuse of the law is rife.  In today’s case, we start with your garden variety adverse possession case.  And it turns out the plaintiff really had taken his neighbor’s property by adverse possession over a period of more than 20 years.  But when the record owner of the land cut down some trees on land his title said was his, the adverse possessor not only sued to quiet title, but wanted treble damages for the timber his neighbor had cut. 

The Massachusetts Land Court wisely declined the plaintiff’s invitation, ruling that if your title still, says the land is yours, you hardly have have “good reason to believe that the land on which the trespass was committed” wasn’t yours.  The adverse possessor already was getting title to land he had never bought, a judicial act some would call unjust enrichment.  Giving him treble damages for the cutting down of some trees by the record owner would really be “piling on.”

Mendes v. Bachant, Not Reported in N.E.2d, 2007 WL 1874768 (Mass.Land Ct., June 29, 2007).  George Mendes bought land in 1969.  At that time, a shed stood at the rear of the parcel, and in fact intruded on land owned by a man named Gleason.  Neither Mendes nor the prior owner had permission to locate a shed on Gleason’s land, and apparently no one was aware that the shed was in the wrong place.  Gleason sold the land in 1969 to the Bachants.  In the 1970s, Mendes installed a garden and trellis on the disputed land.  1981, Mendes replaced the shed with a larger shed which further encroached, and built a stockade fence from behind the shed which enclosed the area in dispute.  Again, he did this with permission and apparently without knowledge that he was intruding.  Somehow, the Bachants figured out that they held title to the disputed land, and in 2005, they tore down the fence, tore up the garden, and cut down and removed trees in the disputed area.  Mendes sued, claiming the land by adverse possession and asking damages for trespass to trees.  He demanded treble damages under Massachusetts G.L. c. 242, §7 for the destroyed timber.  The Bachants unsurprisingly said that Mendes was full of beans,  that he had failed to establish what portion of their property he adversely possessed, and had not proven the elements of dominion and control or open and notorious possession sufficient to establish his claim of adverse possession.  The trial issued a temporary restraining order enjoining the Bachants from undertaking any construction or related activities on the disputed land.  After trial, the court made findings.

Held:   The land belonged to Mendes by adverse possession.  The Court ruled that he his possession had been actual, exclusive, and nonpermissive, exercising dominion and control for a continuous period of at least 20 years.  The Bachants argued that because the land was undeveloped woods, a stricter rule applied, and Mendes was required to have enclosed the area he possessed.  The Court agreed that where a party claims adverse possession of woodlands, it must also demonstrate that the land at issue was either enclosed or reduced to cultivation and, in contrast, title by adverse possession cannot be shown to wild or woodland that has always been, and remains, open and unenclosed. But, the Court said, Mendes had shown that he enclosed the area by a stockade fence since approximately 1981, that he has cultivated a vegetable garden within that enclosure, that he has placed a shed and trellis upon the land in the disputed area, built a barbeque pit, and that he has planted trees and shrubs in various locations. Aside from the enclosure or cultivation, the Court said, Mendes’ remaining activities upon the land constitute dominion and control over the area in that the shed, trellis and barbeque pit are “permanent improvements on the lot” and that the planting of trees and shrubs coupled with the clearing of the land are “significant changes to the land itself.” Furthermore, Mendes met the stricter standard imposed upon woodland parcels in the enclosure of a substantial portion of the disputed area with a stockade fence and the cultivation of a vegetable garden within the same enclosure, coupled with the aforementioned additional activities.  That didn’t apply to the non-enclosed areas, however.  Mendes did not get title to those portions of the disputed area where the activities engaged in did not amount to cultivation or where those activities were not enclosed by the stockade fence sufficient to demonstrate the requisite dominion and control of a woodland parcel.

As for the trespass to trees, the Court observed that under G.L. c. 242, §7, a person who without right to do so cuts down and removes another's trees and timber is liable for treble damages.  Mendes contended the Bachants unlawfully entered his land, and removed all of the trees and brush up to but not beyond his shed. The Barchants argued that they were entitled to enter upon the land pursuant to their record title. The Court didn’t buy either argument, but it observed that the statute permitted treble damages only where the trespasser did not have “good reason to believe that the land on which the trespass was committed was his own.”  Here, the Court said, the Barchants record title indicated they owned the disputed area. Thus, even if damages were appropriate, treble damages wouldn’t apply.  Anyway, the Court said, the trees were cut from the non-enclosed area of the disputed land, and because the Court concluded that Mendes did not possess the non-enclosed area adversely, the Barchants weren’t required to pay any damages.  All that had done was to cut trees from land that remained theirs.

YOU CAN ALWAYS BE SAFER — June 17

No matter how safe you try to be, there is always something else you could have done to be safer.  We all make compromises when the utility of what we are doing to be safer becomes more burdensome than the incremental increase in safety our act attains.  It’s safer to wear seat belts than not to wear them, and the cost of wearing them is slight compared to the benefit derived.  It would be much safer for all traffic not to exceed 15 mph, but the cost of such an act far outweighs the benefits derived from enforcing such a rule. 

A similar situation applied in this landmark municipal liability case from Omaha.  During a windstorm, a motorist pulled over because he couldn’t see to go on.  A tree belonging to the City fell, hitting his car and paralyzing him.  The tree, a silver maple, was badly decayed.   The motorist sued the City, arguing that for a tree owner to permit a danger tree to stand violated the City’s own ordinances.   At trial, the disabled plaintiff was awarded $5 million. 

But on appeal, the Supreme Court of Nebraska was more persuaded by the City’s argument that if every person in its arborist crew spent an entire work year inspecting silver maple trees, each tree would only receive a 12-minute inspection.  The City had a tree inspection program, and the Court found it reasonably conceived and discharged.  Could the City have done more?  Certainly.  Had it done so, would the damaged tree have been found?  No one could say.  The City’s tree inspection program was reasonable, and that was all that was required.  The verdict was reversed.

McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545 (S.Ct. Neb., 1984). This is an action McGinn was driving in the City of Omaha on a rainy, blustery afternoon, when the inclement weather made him pull over to park.   As he was doing so, a silver maple tree fell in front of him, and a branch struck his car, rendering him a quadriplegic.   Photographs taken after the accident revealed that the trunk of the tree was extensively decayed.  McGinn sued the City, arguing it was negligent in failing to inspect the tree for disease, decay, and structural defects, and in violating a city ordinance making it unlawful for a landowner to permit a dangerous tree to stand.   The City countered that McGinn was contributorily negligent and that the storm, which could not have been reasonably anticipated, caused the tree to fall.   The trial court rendered judgment in favor of McGinn and awarded $5 million in damages.  The City appealed.

Held:  The judgment was reversed. The Supreme Court held that city was not negligent in having failed to remove the tree where there was no evidence that inspection program conducted by city was negligently designed or carried out or that the tree had been found to be hazardous as a result of any inspection made by the city.  Normally, governmental units are liable under ordinary negligence principles for injuries or damages which result from a tree falling onto a public road from land in possession of a governmental unit.  In this case, while McGinn was correct that the City had violated an ordinance rendering it unlawful for any property owner to permit diseased or structurally weak tree from standing upon his property, the violation was at most evidence of negligence, and did not impose strict liability upon the City.  Rather, negligence must be measured against particular set of facts and circumstances present in each case, and the utility of the defendant’s conduct has to be measured against the magnitude of the risk.   

Here, the City had established an annual inspection program to check for hazardous trees.  The program was not negligently designed or carried out.  Alternatives might have reduced the risk, such as cutting down any silver maple older than a certain ago or conducting lengthy, individual tree inspections, but these remedies were expensive unreasonable.  Here, there was no indication that the tree which fell on McGinn’s car during the severe storm had been found to be hazardous during any inspection made by the city.  Thus, the Court said, the city was not negligent in not having had the tree removed, and thus was not liable for personal injuries sustained by plaintiff.

MEAN WHAT YOU SAY -- June 16

A well-known former president and husband of a former presidential candidate was described by an admiring aide as having "kept all of the promises he meant to keep." The defendants in today's case apparently planned to do the same.

In order to get a zoning variance in the fancy-dan village of Centre Island, New York (where you can buy Billy Joel's 14.6-acre estate for the just-reduced price of $32.5 million), the Comacks promised not to let the shrubs and trees obstruct anyone's view of Oyster Bay if they could only add on to their newly-purchased home. Believing their sincere pledge, the Village OK'd the proposal. A few years later, the bushes were high and the trees were leafy, and the Comacks said, "What promise? Oh, that promise? It's ... uh ... kind of unclear what we promised in that 'Declaration'. Let's just forget the whole thing." (Editor's approximation -- not a real quotation).

The Village didn't forget it. And while the trial court went for the Comacks, the court of appeals reversed and required the Comacks to keep their word. The appellate judges apparently could figure out what the meaning of "is" is.

Incorporated Village of Centre Island v. Comack, --- N.Y.S.2d ----, 2007 WL 1149377, 2007 N.Y. Slip Op. 03273 (N.Y.A.D. 2 Dept., Apr. 17, 2007).  In 1999 the Comacks purchased the property in the Centre Island and sought a variance to maintain and enlarge a pre-existing, nonconforming home on the property. Specifically, they sought to build a second story addition over the existing garage and to change the roof line. The proposed expansion and changes would have necessarily affected the neighboring properties’ existing views of the waters of Oyster Bay.

In consideration for the granting of the variance, the Comacks signed a “Declaration” that provided “[a]ll open views from points off the premises to Oyster Bay shall remain in their present unobstructed state …  [n]o trees or major shrubs shall be planted on lots 85 and 86 with the exception of minor shrubs and bushes which if allowed to grow to full height would not impede the aforesaid open views. Any shrubs or plants which if allowed to grow to maturity would exceed three feet in height will require the approval of the village building inspector for compliance with the intent of the declaration …” The variance was granted, but a few years later, shrubs and trees planted by the Comacks began obstructing neighbors’ views of the Bay.  The Village sued.  The trial court agreed with the Comacks that the “Declaration” was vague, and the case should be dismissed.  The Village appealed.

Held: The trial court was wrong.  It was the Village’s complaint that should be granted, not the Comack’s request that it be dismissed.  Contrary to the trial court’s determination, the language of the “Declaration” and, in particular, the first provision thereof, was not “imprecise and vague” so as to render it unenforceable.  Instead, the “Declaration” — read as a whole to determine its purpose and intent — is clear that the Comacks made a deal.  In consideration for the granting of the variance, the Comacks agreed to maintain “[a]ll open views from points off the premises to Oyster Bay ... in their present unobstructed state.  Because there is no ambiguity, the “Declaration” must be enforced according to the plain meaning of its terms.  The Court held that to the extent that certain shrubs and trees planted by the Comacks obstructed “open views from points off the premises to Oyster Bay,” these violate the “Declaration.”  The Court sent the case back to the trial court to determine whether the Village was entitled to damages, and whether the Comacks should be ordered to cut down the certain shrubs and trees from the subject property that obstruct “open views from points off the premises to Oyster Bay.”

DOUBLE DIPPING, KENTUCKY STYLE — June 13

It’s hard to feel too much sympathy for Mr. Chaney (Dave Chaney, not Lon Chaney) in today’s case.  He lived down in the hollow on the Ohio River, downhill from the Wilsons.  He sued the hilltop Wilsons, complaining that Wilson had trespassed and cut down a number of his trees, and the removal of the trees — insulting enough on its own — led to a landslide that damaged his Chaney homestead. 

The trial court got the two sides to agree that their surveyors would decide on the proper boundary.  The surveyors did so, and concluded that Mr. Wilson had cut down his own trees, not Chaney’s trees.  The Chaneys had meanwhile lost or fired their attorney — we’re unclear which happened — and proceeded to lose on summary judgment.  They appealed, arguing for the first time that they hadn’t agreed to having their surveyor work with the other side’s surveyor. 

The Court said the allegation was too little too late.  Because it hadn’t been raised in the trial court (where it could have been corrected), it could not be raised on appeal.  Besides, their lawyer had agreed to the two-surveyor mechanism, and that was binding on the parties.  Through it all, the Court was clearly a little put off that the Chaney had already told their insurance company that the landslide was caused by rain, and collected $200,000 for the damage.  Now, their version being told in this court that the landslide was because of the Wilsons didn’t especially smack of sincerity. 

It is considered poor form to collect twice.

Chaney v. Wilson, Not Reported in S.W.3d, 2007 WL 2019673 (Ct.App. Ky., July 13, 2007).  Philip and Michaelynn Wilson owned property adjacent to David Chaney’s property in Maysville, Kentucky.  The Chaneys lived at the bottom of a steep hill near the banks of the Ohio River. The Wilsons lived at the top of the hill, overlooking the river.  The Chaneys charged that the Wilsons caused timber to be cut and removed from the Chaneys' property, and that such actions caused the removal of lateral and subjacent support, either causing or aggravating a landslide that damaged their property.  At the behest of the trial court, two surveyors surveyed and agreed on boundary line between the parcels, and they concluded that any trees that had been cut were in fact on the Wilsons' property.  The trial court entered a final order, incorporating by reference the surveyors' agreed description as the disputed boundary line and granting the Wilsons' motion for summary judgment. Regarding the Chaneys' claim that some 400 trees had been cut, the trial court found that the physical evidence on the site did not support the claims of the Plaintiffs, and, “based upon the boundary line as agreed and established by the parties two independent surveyors, any minimal cutting of trees occurred on the defendant's side of the established boundary line, effectively negating any claims of improper ‘cutting of timber’ as alleged in the Complaint.”  The court also took judicial notice of a separate legal proceeding filed by the Chaneys against their insurance company in which they also alleged that their home was damaged by a landslide, but claimed that it was caused by heavy rains and occurred in March of 1997, some nine months before the alleged actions of the Wilsons. The court noted that the Chaneys had received a settlement of $200,000 from their insurer for damages to their property from this landslide. The trial court dismissed the Chaneys' complaint, and this appeal followed.

Held:  The summary judgment was upheld.  On appeal, the Chaneys — who had lost their attorney during the proceedings — only made one argument, that they did not authorize him to agree to the surveyors' collaborating on the legal description of the disputed boundary line.  But the Court held that while an attorney cannot substantively settle a case without his client's express authority, a party is nonetheless bound by the procedural agreements and stipulations of its attorney in the conduct of the litigation for which that attorney was hired.  The agreement entered to have the surveyors conduct a joint survey was such a procedural agreement, and was within the attorney's authority.  What’s more, the Chaneys never complained in the trial court that their attorney lacked the authority to make such an agreement.  The Court noted that an issue not timely presented to the trial court may not be considered for the first time on appeal.

INJUNCTION JUNCTION — June 12

Sometimes you wonder when you read a decision, “What were they thinking?”  Today’s case is something like that.  Smith sold a gas station-restaurant-bar to Mendonsa, but carefully got an agreement that Mendonsa wouldn’t let the trees on the plot get so high that they shaded Smith’s adjacent orchard. 

Well, Mendonsa at some point decided he liked tall trees, or he didn’t like trimming them, or he couldn’t find his clippers, or something.  He let the trees grow, they shaded four of Smith’s something-berry trees (we have no idea what he was raising in the orchard, but this being California, they probably weren’t plantain trees). 

Anyway, Smith sued, and Mendonsa, for some foolish reason, fought the action.  The trial court of course found for Smith, and then worked some rump math, figuring the past damages were about $140.00 a year (this was 1952, when a dollar was worth a bit more than now), and multiplied over three years, the damages were $420.00.  The Court also enjoined Mendonsa from maintaining trees over 15 feet or branches which were hanging over on Smith’s land.

On appeal, Mendonsa complained that the damage calculations were too imprecise, and that the injunction was unduly burdensome on him.  The Court of Appeals disagreed, finding the calculations pretty good for an uncertain case, and anyway complaining that “[t]he wrong was that of the appellants and they are not in a favored position to urge the technical rules governing awards of damages.” 

Huh?  In the words of South Park’s parody of Johnnie Cochran in the legendary Chewbacca defense: “that does not make sense.” If the wrongdoer isn’t entitled to argue that the court has to follow the “technical rules” of assessing damages, then who is?  It’s a cinch the plaintiff isn’t going to do anything to restrain the court in calculating damages.  This is probably one of those “hard cases make bad law” kind of decisions … but even so, it’s hard to feel much sorrow for Mr. Mendonsa, who should have been enjoined and been made to pay damages. 

A deal’s a deal, after all.

Smith v Mendonsa, 108 Cal.App.2d 540, 238 P.2d 1039 (Ct.App. Cal. 1952). Smith entered into an agreement with Mendonsa concerning the use of a gas station, restaurant and bar he had sold to him.  Mendonsa agreed that he would permit no trees to remain on the site which exceeded a height of 15 feet;, and that if any tree got taller than that height, Smith would have the right to remove the same.  The purpose of the agreement was to prevent the shading of Smith’s orchard next door.  land and to prevent trees on the appellants' property from overhanging it.  Mendonsa let the trees get too tall, and Smith sued to enforce the deal. The trial court agreed with Smith, and awarded him money damages for past violation as well as an injunction prohibiting Mendonsa from maintaining any tree in excess of 15 feet in height or from permitting branches of any tree to overhang the orchard. Mensonda appealed, complaining that the damages awarded weren’t supported by the record and that the injunction was too harsh.

Held:  The damages and injunction were upheld.  The Court observed that the record showed that the shading of the orchard trees near the appellants' property line was detrimental to the growth of the trees themselves and would, during some seasons, decrease the yield of fruit on the affected trees.  Four trees were affected, the evidence showed, the Court found, and while the proof of damage was not exact, it nonetheless gave some fairly definite basis for computation.  With respect to growing crops, the measure of damages is the market value of the probable yield without detriment, minus the cost of producing and marketing, and minus the return actually received.  The damages awarded amounted to about $140 per year, and the period of the damage was three years.  Additionally, there was damage in that the trees themselves were retarded in growth by the shade.  The Court concluded that the record furnished adequate support for the award made.  Anyway, the Court said, Mendonsa was in the wrong, and thus he was not in any position to demand application of the technical rules governing awards of damages.  Where a party has suffered damage, the Court held, a liberal rule should be applied in allowing a court or jury to determine the amount, and that, given proof of damage, uncertainty as to the exact amount is no reason for denying all recovery.  As for the injunction, the Court held, in cases involving promises as to use of property, injunctive relief — depending upon inadequacy of damages — may be granted.  A deal is a deal, the Court seemed to say, and where Mendonsa made the promise to keep the trees trimmed back and then violated it, the award of a perpetual injunction from maintaining any tree in excess of the agreed-upon height and from permitting branches to overhang was not an abuse of the trial court's discretion.  It is, after all, the duty of the court to encourage the keeping of agreements properly made and to give adequate remedy for breach thereof when it occurs, particularly where breach is deliberate and wrong is willful.

WE DON’T KNOW NUTHIN’ — June 11

When the Santiagos parked on a side street in Vineland, New Jersey, to attend the christening of their god-daughter, they had no idea that Mrs. Santiago was about to get christened with a 60-foot tall maple tree.  It seems that the tree’s roots had girdled — which is what happens when the roots grow back around themselves and essentially strangle the tree.  Girdling is a problem with city trees, the roots of which may grow in confined places.  When it happens, trees have no subsurface support, and often fall in conditions that wouldn’t affect normal trees. 

That’s what happened to the tree that struck Mrs. Santiago, and her lawyer and expert witness arborist did an excellent job of explaining the problem to the court.  But the City won on summary judgment anyway.  It seems that the city workers responsible for the trees all testified that they were pretty much glorified leaf-rakers — one of them, when asked what he knew about trees, responded “[t]rees have leaves, that's about it” — and none of them knew how to inspect a tree to determine whether it might have girdled roots. 

Now you’d think that because city owned the urban tree and its tree people had no idea how to care for them ought to make this case a dunker for the injured Mrs. Santiago.  But in New Jersey, the Tort Claims Act requires that a plaintiff show that the city’s failure to act was “palpably unreasonable.”  But the fact that city’s tree workers couldn’t find the business end of a chain saw turned out to be a fact that favored the city.  The Court of Appeals agreed that the city’s decision not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality was not “palpably unreasonable.” 

Compare this decision to holdings in other jurisdictions that an urban owner has a heightened duty to inspect his or her trees (premium users, read Conine v County of Snohomish, a Washington State decision).  Seems if you’re a New Jersey city worker, the less you know, the better off you are.  We don’t know much about girdling, but we know nonsense when we read it.

Santiago v. City of Vineland, Not Reported in A.2d, 2007 WL 2935035 (N.J.Super. A.D., Oct. 10, 2007).  The Santiagos drove to 8th Street to attend the christening of their god-daughter. As they crossed the street, a 60-foot maple tree fell and struck Mrs. Santiago.  She sued the City, claiming it was responsible for the care and maintenance of trees on its property, and was negligent, careless and reckless in permitting a dangerous condition to exist. Mrs. Santiago submitted a report prepared by Russell E. Carlson, a master arborist, saying that the tree broke at its base, a few inches below the surface of the ground, because it lacked a root system sufficient to support the tree.  He found that girdling roots had effectively strangled the tree, resulting in decay of the base of the trunk and inadequate development of the root system.  Girdling roots form when a root grows in a direction that crosses the trunk of the tree.  Ordinarily, roots will grow away from the trunk of the tree but when a root meets an obstruction, it will change direction, and may grow around the edges of the planting pit. Carlson said that eventually, circling roots will come in contact with the growing tree trunk. The cells of the bark of both trunk and root are compressed.  Symptoms of this are a thinning of foliage and reduction of twig growth in the crown, followed by twig and branch dieback.  The tree may eventually die above the area of contact.  When this girdling condition persists for many years, the roots that normally extend away from the tree may atrophy and eventually decay.  While healthy trees usually withstand winds over 70 mph, trees that have lost their structural support at the base can topple in much lower winds, and in some cases when there is no wind at all.  Even when the roots are underground, the expert said there are signs that girdling roots may be present. The trunk of the tree goes straight into the ground, without the normal flare from trunk to roots.  Carlson stated that excavation of the soil at the base of the tree is “sometimes necessary” to determine the extent of the girdling. This process could take a few minutes, or several hours, depending on the size of the tree, soil conditions, and the extent and depth of the girdling roots. One of three city employees deposed knew anything about trees, but he had no experience identifying diseased or dying trees.  The general supervisor of streets and roads for the City said it would be a hardship both economically and logistically for the City's Department of Public Works to inspect every tree within the City's borders, or even within the City's right of way and on City property, for the multitude of diseases that are capable of causing damage to any or all of the varieties of trees within the City's borders.  The City moved for summary judgment, arguing that Santiago had not presented sufficient evidence to support a claim under the Tort Claims Act because she did not establish that the City had actual or constructive notice of a dangerous condition. The judge concluded that the City's actions respecting the tree were not palpably unreasonable. Santiago appealed. 

Held: The suit was properly dismissed.  The Tort Claims Act provides that a public entity may be liable for an injury caused by a condition of its property if a plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or a public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.  A public entity is deemed to have “actual notice of a dangerous condition” when it had “actual knowledge of the existence of the condition and knew or should have known of its dangerous character.”  In addition, a public entity is deemed to have “constructive notice” of a dangerous condition if a plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.  Plaintiffs have the burden of showing that the City's action or failure to act was palpably unreasonable.  Although the term “palpably unreasonable” is not defined in the TCA, it has been interpreted to mean “more than ordinary negligence, and imposes a steep burden on a plaintiff.” For a public entity to have acted or failed to act in a manner that is palpably unreasonable, it must be obvious that no prudent person would approve of its course of action or inaction.  Here, the trial judge correctly determined that the Santiago had not presented sufficient evidence to raise a genuine issue of material fact as to whether the City's actions in this matter were palpably unreasonable. The City's public works employees were not trained to identify girdling roots or whether a tree was in danger of imminent failure as a result of such condition. The judge also pointed out that the City had not retained an arborist to “go around and inspect trees for girdling roots and perhaps a myriad of other types of similar problems, which would make a tree unsafe.”  Based on the evidence, the judge correctly found that a jury could not find that the City's failure to have such an inspection program was “patently unacceptable under any given circumstance.”  The evidence showed it is obvious that a regular program to inspect the City's trees for imminent failure due to girdling roots would require additional manpower and resources.  In this case, the City elected not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality. Such a determination is not palpably unreasonable.

A TRAGEDY WITHOUT COMPENSATION — June 10

The story always stuns and saddens — someone is drowning, and a rescuer tries to help, only to die as well.  On a stormy summer day in 2002, that happened four times over at a public beach along Lake Erie.  A woman was in trouble in the pounding surf.   She was rescued, but not before four young men entered the water to save her, but perished.

Afterwards, families of the men sued the City, arguing that despite Ohio’s recreational user statute, the City was not immune from liability for the men’s deaths.  The trial court disagreed, and dismissed the suit.  An appellate court agreed.  The City ran the beach, but there was no evidence that it controlled or tried to control the waters of Lake Erie, which belonged to the State of Ohio.  The men drowned in Lake Erie, not on the grounds of the city park.  Thus, even if Lake Erie constituted a nuisance, it wasn’t the City’s nuisance, but rather the State’s.

Smith v. Huron, Slip Copy, 2007 WL 4216133, 2007 -Ohio- 6370 (Ohio App. 6 Dist., Nov. 30, 2007).  Four people died at Nickel Plate Beach on July 10, 2002, when another person screamed for help from the water. The four entered the water to save her, but although she survived, the four would-be rescuers drowned in the windswept waters of Lake Erie.  Their survivors sued the City of Huron, seeking recovery for the drowning deaths from the city and entities that controlled the beach.  They claimed that the city failed to maintain the swimming area which it owned in a safe manner and failed to warn the general public of hazardous defects on the premises. The complaint also alleged the city maintained or abetted the creation of a nuisance at the beach and in the water; that the deceased men had reasonably relied upon representations that the beach and waters were safe, and that the city voluntarily assumed a duty of controlling and maintaining the waters adjacent to the beach.  The City of Huron filed for summary judgment arguing that it was entitled to immunity as a political subdivision pursuant to O.R.C. Chapter 2744, that it was not liable because it had satisfied the requirements of Ohio's recreational user statute, that the men engaged in recreational pursuits prior to their deaths, and that the decedents assumed the risk by voluntarily exposing themselves to the waters of Lake Erie even though they were warned of the dangerous conditions. The trial court granted the City summary judgment.  The survivors appealed.

Held: The City of Huron was immune from liability.  The survivors claimed that O.R.C. §2744, Ohio's Political Subdivision Tort Liability Act, did not confer immunity on Huron.  Under O.R.C. 2744.02(B), in some situations, a political subdivision can be held liable for damages in a civil suit arising from injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or its employees in connection with a governmental or proprietary function. The survivors claimed the City was liable under the exception that a political subdivision can be held liable for damages in a civil suit arising from injury, death, or loss to persons or property caused by its failure to keep the public grounds within their political subdivision open, in repair, and free from nuisance.  They argued that Nickel Plate Beach and the waters of Lake Erie adjacent to the shoreline are public grounds within the city of Huron.  However, the Court said, the city didn’t maintain any actual control over Lake Erie itself by placing buoys in the lake or at times posting “no swimming” signs on the beach. The city didn’t actively keep swimmers from going beyond the buoys or boaters from going inside the marked area; nor did the city take overt actions to prevent swimmers from going in the water when the beach was “closed” due to rough conditions.   More importantly, the Court said, title to Lake Erie clearly belongs to the state of Ohio, which holds it in trust for the benefit of the people of Ohio.  The victims in this case drowned in Lake Erie, not on grounds within Nickel Plate Beach or Huron.  The City didn’t maintain any actual control of Lake Erie.  Based on that, the Court found that the trial court correctly granted summary judgment in favor of the City of Huron.

HOW DRY … UNTIL EVERYTHING TURNS ON THE ISSUE — June 9

The whole issue of “conflict of laws” is about as dry as toast, at least until someone’s injury will go uncompensated because the tortfeasor is immune from liability.  In today’s case, Mr. Cain — a Mississippian — worked for a Mississippi tree-trimming company.  The company signed on with a Louisiana public utility to trim trees along a right-of-way in Louisiana.  Mr. Cain was hurt when his bucket truck came into contact with an electric line, and he collected on workers’ comp from the Mississippi company.  But he sued the utility — and at this time, we have no basis for saying that the utility was negligent or not negligent — for his injuries. 

The utility and Cain’s employer had entered into a agreement which made Cain a “statutory employee” of the utility while he was working on the job, although he was really an employee of the tree-trimming service.  So under Louisiana law, the utility was immune from Cain’s suit.  But under Mississippi law, companies couldn’t use the “statutory employee” dodge to avoid liability.  The trial court said that Louisiana law applied, but the U.S. Court of Appeals for the Fifth Circuit in New Orleans disagreed.

It said that while normally that would be the case, Louisiana state law provided an exception where not to apply the other state’s policies would be seriously harmed by applying Louisiana law.  Mississippi had a strong policy in favor of protecting the subcontractor’s worker — and that policy carried the day.  The lesson here for companies working across state lines — or hiring out-of-state companies to work in their home states — is to check carefully beforehand to be sure that protective measures like “statutory employees” really will work.

  Cain v. Altec Industries, Inc., Slip Copy, 2007 WL 1814130 (5th Cir., Jun. 22, 2007). Francis Cain, a Mississippi resident, worked for Carson Line Service, Inc., a Mississippi corporation. Carson signed a contract with Washington – St. Tammany Electrical Co-operative (“WST”), a Louisiana corporation, in which Carson agreed to clear rights-of-way for WST’s power lines. Working on this project, Cain was trimming trees along a power line in St. Tammany Parish, Louisiana, when his aerial into contact with an energized WST power line, causing Cain severe injuries. Cain got workers' compensation benefits under Mississippi's workers' compensation law through Carson's insurance carrier.  Cain and his wife sued WST. WST filed a third party claim against Carson for defense and indemnity. WST filed a motion for summary judgment claiming tort immunity based on the “statutory employer doctrine” in Louisiana's workers' compensation law.  That law lets contractors agree that a subcontractor’s employees are “statutory employees,” which makes the contractor immune from liability to them. Cain argued that their case was an “exceptional case,” pursuant to La. Civil Code Article 3547, and that Mississippi law — under which no “statutory employee” doctrine existed — governed the claim. The trial court granted WST's motion, concluding that Louisiana law applied. The Cains appealed.

  Held: Mississippi law, not Louisiana law, governed, and the case was reinstated. The Court  first determined that the laws of Louisiana and Mississippi conflicted, finding that under Louisiana law, a written contract between a principal and contractor recognizing the principal as the statutory employer of the contractor's employees is valid and enforceable, making WST immune from civil tort liability.  Mississippi law, on the other hand, doesn’t recognize and won’t enforce contracts giving tort immunity to a principal sued by a contractor's employees unless the principal has the legal obligation under the Mississippi Workers' Compensation Act to secure compensation for that contractor's employees, and WST had no obligation under the Act.  So there was a substantive difference between Louisiana and Mississippi law, requiring a choice-of-laws determination.  The Court said that the issue of whether WST was immune from tort liability was an issue of loss distribution and financial protection governed by La. Civ.Code article 3544.  Under its mechanical rule, Louisiana law would apply because, at the time of the injury, Cain, who lived in Mississippi, and WST, a Louisiana corporation, were domiciled in different states, and both the injury and the conduct that caused it occurred in one of those states, that is, Louisiana. Thus, the Court said, WST would be entitled to the statutory employer tort immunity afforded it under Louisiana law.  However, article 3547 holds that where “from the totality of the circumstances of an exceptional case, it is clearly evident under the principles of Article 3542, that the policies of another state would be more seriously impaired if its law were not applied to the particular issue …” the law of the other state will apply.  Here, the Court ruled, after comparing the policies and interests of both Louisiana and Mississippi, it was clear the policies of Mississippi would be more seriously impaired if Louisiana law were applied to this dispute than would Louisiana's if Mississippi law were applied. Consequently, the Court said, it would apply Mississippi law to this dispute.  Thus, WST was not immune from suit.

EXPERT TESTIMONY — June 6

Mark Twain once said, “An expert is just somebody from out of town.”   In the eyes of the law, it’s a little more.  Certified arborists, operators of tree trimming services, even just guys from out of town, can be qualified by courts as expert witnesses.  And what for?  Primarily, experts may give opinions. 

In a tree case like today’s from Arkansas, a frolicking bulldozer operator wiped out a bunch of a neighbor’s trees.  Clearly, she was entitled to damages.  But how much would the damages be?  She hired the county extension agent to testify as to the value of the trees that had been cut down.  The defendant complained that the expert relied on timber sales reports written by others, but the Court of Appeals accepted his opinion, and in the process explained what type of research process it wanted to see as a basis for an expert opinion. 

Of course, the state’s treble damages statute, which multiplied the value of the lost timber by threefold, made the expert’s opinion all that more important to both sides.  Incidentally, the defendant tried to argue that there was no proof that the bulldozer operator was his agent, but that was a mere sideshow: the evidence was overwhelming on that point.

  Jackson v. Pitts, 93 Ark.App. 466, 220 S.W.3d 265 (Ct.App. Ark. 2005).  Richard Jackson owns land just north of land owned by Nora Pitts.   Pitts claimed that Jackson or people acting for him bulldozed trees on her land where it borders that of the Jackson. Lloyd Pitts, Nora’s son, saw John Moore operating a bulldozer in the area of the destroyed timber, which was located on Pitts's property line with Jackson’s land.  Lloyd said he walked along his mother's land shortly afterward and saw holes where trees had been removed from the bulldozed ground.  Another witness saw the bulldozer activity on Pitts’ property, and said that the bulldozer operator told him that he had been directed by Jackson to perform the work.  The trial court found that the Jackson and Moore trespassed Pitts’ land and destroyed marketable timber, setting the value of the destroyed timber at $1,157.20.   Treble damages allowed under §18-60-102 of the Arkansas Code increased the judgment of $3,471.60. Jackson appealed.

  Held: The trial court judgment was upheld.  Jackson claimed that treble damages were unjustified, but the Court disagreed.  The imposition of treble damages in a trespass action for trees damaged, broken, destroyed, or carried away requires a showing of intentional wrongdoing, although intent may be inferred from the carelessness, recklessness, or negligence of the offending party. Here, the Court said, the evidence was sufficient to support a finding that an agency relationship existed between Jackson and the bulldozer operator such that Jackson was liable for the operator's damage to Pitts’ timber.  Lloyd Pitts saw the bulldozer on his mother’s property operating in the area of the damaged timber, and saw Moore operating it.  Another witness said Moore said he was working for Jackson.  Jackson admitted he had hired Moore to work on his property with a bulldozer, and that if any trees had been removed from Pitts’ property, it would have been done by Moore.  As for the damages, the Court said, the evidence in each trespass case determines what measure of damages is to be used to value trees damaged, broken, destroyed, or carried away.   Timber is generally valued according to its “stumpage value,” which is the value of the timber standing in the tree.  Here, Pitts’ expert witness gave testimony of the estimated number of trees destroyed by Moore, and their market value at the time. The evidence was admissible, the Court said, even though the opinion relied in part on hearsay. The expert described the methodology he used to compute timber value within a specified area, which included diameter measurements of randomly-selected trees, an estimate of the timber volume multiplied by the number of trees within a specified area, and the use of a university timber market report to obtain an estimated market value.  What’s more, the Court observed, the expert testified he personally walked the a