Civil Liabilities Annotations (Agricultural Law and Tax)

This page contains summaries of significant recent court opinions involving tort liability cases of importance to agricultural producers and rural landowners.

Posted April 18, 2023

Farmer Sues Crop Salesman for Ruining Relationship with Landowner the Farmer Rented From. The plaintiff, a farm tenant, sued the defendant landlord and a third-party ag salesman. The plaintiff claimed that the salesman wrongly advised the landlord and encouraged the landlord to complain about the plaintiff’s farming practices. Specifically, the plaintiff’s claims against the salesman were for interference with contract, interference with business relationship, and fraud. The salesman moved to dismiss each claim, but the trial court denied the motion with respect to the contract interference and interference with business relationship claims. The trial court, however, dismissed the fraud claim involving the efficacy of corn seed. Walt Goodman Farms, Inc. v. Hogan Farms, LLC, No. 1:22-cv-01004-JDB-jay, 2022 U.S. Dist. LEXIS 134192 (W.D. Tenn. July 28, 2022).

Posted April 18, 2023

Farming Operation Entitled to Costs and Fees of Dismissed Nuisance Claims. The plaintiff township filed a civil infraction citation against the defendant for the building of a “junkyard” on his property without a permit and for an insufficient fence. The defendant claimed he was immune from nuisance claims under the Michigan Right-to-Farm law (RTF). The trial court determined that the defendant was using his property as a farm and was therefore immune from nuisance claims and dismissed the case The district court denied both parties award of costs and expenses, and the defendant appealed on that issue, claiming that he should recover reasonably incurred costs and expenses. The appellate court agreed and remanded the case for a determination of the appropriate amount of costs and fees to be awarded. James Township. v. Rice, No. 163053, 2022 Mich. LEXIS 1179 (Mich. Sup. Ct. Jun. 22, 2022).

Posted April 18, 2023

CAFO Not in Violation of State Law. The plaintiff claimed that the defendant’s neighboring confined animal feeding operation (CAFO) violated federal law due to manure runoff that caused excessive nitrate levels in the plaintiff’s water sources. The federal court dismissed the suit on summary judgment for lack of expert testimony to establish the plaintiff’s claim. The federal court also declined supplemental jurisdiction over the plaintiff’s state law claims. The plaintiff then sued the defendant in state court for nuisance, trespass and violation of state drainage law. The defendant moved for summary judgment based on statutory immunity of Iowa Code § 657.11 and the plaintiff’s lack of evidence or expert testimony. Iowa Code §657.11 provides nuisance immunity to a CAFO if the CAFO is following all applicable regulations and is using accepted management practices. The plaintiff, relying on Gacke v. Pork XTRA, L.L.C., 684 N.W. 2d 168 (Iowa 2004) claimed that Iowa Code §657.11 as applied to him was unconstitutional under Iowa’s inalienable rights clause. The trial court, noting that the plaintiff’s own CAFO had benefited from immunity, rejected the plaintiff’s constitutional challenge for failure to satisfy the three-part test in Gacke. The trial court then granted the defendant’s summary judgment motion based on the plaintiff’s failure to provide any expert testimony (the plaintiff’s ag engineering degree from Iowa State University was insufficient to qualify himself personally as an expert) or other evidence to support any exception to the statutory immunity defense or to prove causation or damages. On further review, the Iowa Supreme Court affirmed and applied rational basis review to reject the plaintiff’s constitutional challenge to Iowa Code §657.11. The Iowa Supreme Court concluded that the plaintiff failed to preserve error on his takings claim under article I, section 18 of the Iowa Constitution and failed to generate a question of fact precluding summary judgment on statutory nuisance immunity or causation for his trespass and drainage claims. The Court did not address the plaintiff’s constitutional challenge to the damages limitations in Iowa Code §657.11A(3). Garrison v. New Fashion Pork LLP, No. 21-0652, 2022 Iowa Sup. LEXIS 86 (Iowa Sup. Ct. Jun. 30, 2022).

Posted April 18, 2023

Fact Issues Remain in Auto/Livestock Accident. The plaintiffs, a married couple from Indiana, were westbound on I-70 when the Ford F-150 pickup they were driving hit the defendant’s deceased bull in the roadway. The pickup rolled numerous times injuring the plaintiffs. The plaintiffs sued the defendant in federal court for negligence in allowing the bull to escape its enclosure. The defendant claimed there were three other responsible parties: the Kansas Department of Transportation (KDOT), the pickup driver (who was speeding at the time of the accident) and an unknown trespasser who allegedly released the bull. The defendant moved for summary judgment on the plaintiff’s negligence claim. The defendant claimed he checked the pens that contained the bull multiple times daily and always ensured the gates were properly closed. The defendant claimed his fence was a legal fence under state law but admitted there was a portion of the fence that was inadequate for holding a bull. However, the defendant asserted that he locked the bull into a section where the bull would not be able to exit from the unsecured section. The plaintiffs’ livestock fencing expert testified that the defendant failed to exercise due care in enclosing the bull by not fixing the broken panel and not posting “No Trespassing” signs. Ultimately, the court determined that facts remained in dispute on the negligence issue. On the defendant’s comparative fault claim, the court found that KDOT had no duty to build and maintain a fence to keep livestock off of the Interstate and did not fail to remove the bull in a reasonable time after notification. But the court determined that fact issues remained concerning the speed of the plaintiffs’ pickup at the time of the accident, and that a reasonable jury could find that a trespasser did entered the premises and allowed the bull to escape without fault to the defendants. The motion for summary judgment was granted in part as to KDOT but denied otherwise. Lee v. Kaup Kattle Co., No. 19-2600-JAR-ADM, 2022 U.S. Dist. LEXIS 93306 (D. Kan. May 24, 2022).

Posted April 18, 2023

Appellant’s Claims Against Dog Food Producer Held to be Wrongfully Dismissed. A veterinarian prescribed Hill’s Pet Nutrition dog food for the appellant’s dog. The plaintiff sued Hill’s Pet Nutrition upon discovering that the dog food did not contain medicine or drugs, had not been tested and approved for medicinal purposes by the FDA, but was priced higher than “normal” dog food. The plaintiff claimed the defendant and other pet food manufacturers had conspired to monopolize the prescription pet food market and they had artificially inflated the prices by claiming the food required a prescription. No federal or state law required pet food to be sold with a prescription from a vet. The plaintiff claimed the defendant had violated the Kansas Restraint of Trade Act (KRTA) and the Kansas Consumers Protection Act (KCPA) and brought an unjust enrichment claim. The trial court dismissed the case for failure to state a claim under KCPA, the plaintiff had to allege that the defendant was engaged in a deceptive act or practice involving the plaintiff that caused the plaintiff damages. The plaintiff claimed that the defendant had misrepresented that the dog food required a prescription so as to sell at a premium price. The appellate court determined that the plaintiff had clearly alleged sufficient facts to put the defendant on notice of the allegations under the KCPA. The defendant claimed that the plaintiff failed to show a causal connection between the prescription practices and the injury, but the appellate court noted that the plaintiff did not need to show she was misled, only that the defendant’s actions were deceptive. On that point, the appellate court noted that the plaintiff had provided enough detail in the complaint to show that the prescription requirement could be deceptive and was the cause of her spending more money (the injury). As such, the plaintiff’s KCPA claims should not have been dismissed. With respect to the KRTA claim, the court noted that the plaintiff was required to allege that the defendant was creating a restriction in trade, increasing, or reducing the price of merchandise to prevent competition, and had entered into an agreement establishing a set price for a good in the market. The plaintiff alleged the defendant had entered a contract with other dog food producers to set prices higher for prescription dog food, which violated KRTA. The plaintiff also claimed that the defendant had entered a conspiracy to monopolize the prescription dog food market. As such, the appellate court held that the plaintiff had properly presented the KRTA claims. The appellate court reversed the trial court’s dismissal and remanded the case for furthering proceedings. Kucharski-Berger v. Hill's Pet Nutrition, Inc., 60 Kan. App. 2d 510, 494 P.3d 283 (Kan, Ct. App. 2021).

Posted April 18, 2023

Small Claims Court Case Gets New Trial. The defendant sold a vehicle to the plaintiff for $2,292.75, that was advertised as being in good condition and reliable. The plaintiff drove the vehicle only 20 miles before the vehicle overheated and had to be towed 90 miles to the plaintiff’s home. A mechanic inspected the car, and repairs were estimated to be between $2,000 and $3,000. The plaintiff sued in Small Claims Court for false advertising and was awarded the damages in the amount paid for the car plus interest. The defendant sought a new trial in the local trial court, which affirmed based on the record without conducting a new trial. On further review, the appellate court concluded that the trial court should have conducted a new trial based on Kan. Stat. Ann. §61-2709(a) and remanded the case. Brown v. Zimmerman, 61 Kan. App. 2d 537, 506 P.3d 300 (2022).

Posted January 23, 2022

Honey Farm Makes Various Claims Arising From Dicamba Drift. The plaintiff is a honey farm that sued the defendant based on 12 claims associated with damages to the honey crop allegedly arising from the defendant’s sale of Dicamba and use by nearby farmers from whose crops Dicamba drifted. The defendant moved to dismiss the claims. The court allowed the plaintiffs Lanham Act claim to proceed based on the plaintiff’s claim that the defendant knew that it was making false statements that caused farmers to purchase and use dicamba herbicides when the defendant knew or should have knows that Dicamba would move off-target and damage non-tolerant plants. The court determined that the plaintiff had standing to bring a Lanham Act claim and adequately alleged a Lanham Act claim for the purpose of a motion to dismiss. The court dismissed the plaintiff’s claims for breach of implied warranty of merchantability (by plaintiff’s concession); nuisance (for failure to allege that the defendant owned land in the state where the nuisance was alleged, and failure to allege that the nuisance-conduct occurred on land the defendant owned); trespass (for failure to allege the defendant new the off-target movement was directed at plaintiff’s bee-keeping operation, and because the Dicamba was not in the defendant’s control after being sold); strict liability – ultrahazardous activity (because this “repackages” the Lanham Act claim); violation of Arkansas Deceptive Trade Practices Act (because Dicamba use had been federally approved, and no allegation made of fraudulent intent); statute of limitations (because state law does not recognize a continuing-tort theory of tolling the statute of limitations). Coy’s Honey Farm v. Bayer Corp., No. 1:18md2820 SNLJ, 2022 U.S. Dist. LEXIS 10514 (E.D. Mo. Jan. 20, 2022).

Posted December 29, 2021

State Law Imposes Corporate Liability for Employee Wrongdoing. A fire started on the plaintiff’s property and eventually consumed about 7,500 acres. The fire was started by one of the plaintiff’s employees who was responsible for maintaining a camp and conference cent that the plaintiff owned and operated. A chimney malfunctioned in one of the cabins on the property which caused the cabin to fill with smoke. The employee moved a smoldering log for the fireplace in the cabin and put it in the outdoor fire pit. Unfortunately, sparks from the log caught the nearby dry vegetation on fire and started the fire. The California Department of Forestry and Fire Protection incurred $12 million in fighting the fire. An investigation by the State revealed numerous fire safety violations on the premises such as kindling a fire in a malfunctioning fireplace; lack of fire extinguishers or water source; and failure to clear dry vegetation. The State sought reimbursement for the cost of fighting the fire and investigating the source of the fire from the employee and the employee’s employer. The plaintiff claimed that state law eliminated respondeat superior and asserted that a corporation can only be held directly liable by its own failure to act or when it authorizes its employees or agents to act a certain way. The state Supreme Court disagreed, noting that respondeat superior was part of the common law and that the state’s Health and Safety Code incorporated the common law theory of respondeat superior to allow the State to recover the taxpayer dollars it spends on fighting and investigating wildfires caused by human negligence. Presbyterian Camp & Conference Centers, Inc. v. Superior Court, No. S259850, 2021 Cal. LEXIS 8914 (Cal. Sup. Ct. Dec. 27, 2021).

Posted December 28, 2021

Landlords Not Liable for Death Caused by Tenants’ Dogs. The plaintiffs, family members of the decedent sued the defendants (a married couple) for the decedent’s death. The decedent died when he fell backwards and hit his head while out walking and dogs barked and approached him. The dog was owned by the defendants’ son-in-law and daughter and resided with them at the home they leased from the plaintiffs. The defendants moved for summary judgment on the basis that they didn’t owe any duty to the plaintiffs because they did not own or keep the dogs, and had no actual or constructive knowledge of any dangerous of vicious propensities of the dogs, and no actual or constructive knowledge of any dangerous condition on their property. The trial court agreed with the defendants and granted their summary judgment motion. On appeal, the appellate court affirmed. The appellate court noted that state (CA) law did not base liability solely on knowledge that the tenants had dogs which may not be restrained or leashed at all times. There is no vicarious liability for alleged negligent acts of tenants. The injury (here, death) was not reasonably foreseeable to the defendants and, as such, the defendants had no duty to terminate the lease because of unleashed, non-dangerous dogs on the leased premises. Kim v. Vivas, No. D078843, 2021 Cal. App. Unpub. LEXIS 8125 (Cal. Ct. App. Dec. 27, 2021).

Right-To-Farm Law Upheld. The plaintiffs challenged the state (North Carolina) Right-to-Farm (RTF) law. The RTF law was originally enacted in 1979 with the state policy goal to: "[R]educe the loss to the State of its agricultural and forestry resources by limiting the circumstances under which an agricultural or forestry operation may be deemed a nuisance." After many nuisance suits were filed against confinement hog operations, the legislature amended the RTF in 2013. The amendment specified that an ag operation that has been in business for at least a year and has not fundamentally changed is protected from a nuisance action as a result of changed conditions surrounding it if the ag operation was not a nuisance at the time it began. The plaintiffs refiled their suits in 2014 in federal district court based on the amended law. The federal court held that the RTF law did not apply to shield hog producers and five juries rendered verdicts for the plaintiffs. The legislature again amended the RTF in 2017 and 2018 to expand its protection for agricultural operations. The plaintiffs sued in 2019 challenging the constitutionality of the RTF law on its face because they claimed the law exceeded the scope of the state’s police power. The defendants moved to dismiss the case and the trial court granted the defendants motion to dismiss and denied the plaintiffs’ motion for summary judgment. On appeal, the appellate court affirmed. The appellate court agreed with the trial court that limiting the potential nuisance liability from ag, forestry, and related operations furthered the state’s goal of protecting ag activities and encouraging the availability and continued production of agricultural products. The appellate court also determined that the RTF law amendments were a valid exercise of legislative and state police powers and did not violate the state Constitution’s Law of the Land Clause or the Due Process Clause. The appellate court also determined that the amendments were not a special or private law, and didn’t deprive any prospective plaintiff of the right to a jury trial. Rural Empowerment Association for Community Help v. State, No. COA21-175, 2021 N.C. App. LEXIS 733 (N.C. Ct. App. Dec. 21, 2021).

Posted November 26, 2021

Farmers Detrimentally Relied on Crop Supply Salesman to Check Crops. The plaintiff corporation is a tenant farmer. Over a period of at least 25 years, a close friend would check the corporation’s crops for stinkbugs. The friend became employed by the defendant and continued checking the plaintiff’s crops for stinkbugs. Eventually, confusion over the corporation’s credit account arose and the defendant’s location manager told the friend that he should tell the plaintiff’s owner and his father that they probably needed to find somewhere else to do business. The manager also told the friend that the friend might not need to go back to the plaintiff’s fields. The friend never communicated this to farmers, and neither did anyone with the defendant. The manager did have a phone conversation with the farmers and thought they knew what he meant, but never told the farmers that the friend would no longer be checking their fields. In late summer, the farmers discovered that their soybean fields had not been checked and that, by then, stinkbugs had caused major damage to the crop. Upon harvest, yield was dramatically reduced. The plaintiff sued the defendants after harvest for lost profit and also alleged that a different crop consultant could have been found if the friend and/or the defendants had given timely notice that crop consulting services had stopped. The plaintiff’s petition was later amended to add an allegation that the reduced soybean yield caused a premature sale of a cattle herd in order to compensate for the lack of revenue from the sale of harvested crops. The trial court heard testimony from various experts as to economic loss, and concluded that the plaintiff justifiably relied to its detriment on the defendants to advise concerning the products to use on the plaintiff’s fields and when to apply them. That justifiable reliance, the trial court concluded, caused the plaintiff to change position to its detriment. The trial court also determined that the defendants owed a duty to the plaintiff and failed to conform to that duty resulting in substantial crop damage which could have been avoided if the defendants had inspected the crops. As to damages, the trial court accepted the methodology of a CPA that examined yield on nearby farms and concluded that the plaintiff sustained damages of $246,334, The trial court rejected the defendants’ argument that the plaintiff failed to mitigate damages by waiting at least two weeks to spray for stinkbugs after discovering the infestation. At the time of discovery of the stinkbug problem, the trial court determined, the crop damage had already occurred and the second wave of bugs didn’t arrive until two weeks later. However, the trial court, rejected the plaintiff’s claim that it was forced to sell 600 head of cattle to pay down debt because of the lost crop revenue. The trial court also rejected an emotional distress claim. On appeal, the appellate court upheld the trial court’s finding of causation of damages to the soybean crop by the defendants. On the damages issue, the appellate court reduced the award to $148,946 based on the best historical yields over a five-year span rather than the yield from nearby field in 2016 (the year of the crop loss) based on the standard for calculating damages set forth in Aultman v. Rinicker, 416 So. 2d 641 (La. Ct. App. 1982). The appellate court also determined that, based on the evidence, the plaintiff failed to mitigate damages and, as a result, reduced the damage award further to $134,051. Dettenhaim Farms, Inc. v. Greenpoint Ag, LLC, et al., No. 54,162-CA, 2021 La. App. LEXIS 1729 (La. Ct. App. Nov. 17, 2021).

Posted November 18, 2021

Egg Stacker Not Entitled to Workers’ Comp. Egg stacking involves repetitive lifting, twisting, and carrying packed cases to stack on pallets. Throughout his employment the plaintiff, an egg stacker, saw a doctor multiple times to discuss his back pain, a lumbar spine herniation from years prior, and pain treatment. Also, during his employment, the plaintiff told his supervisor that he was experiencing significant pain, but that it was due to him sleeping wrong. On another occasion, the plaintiff told a workplace administrator that he injured his back when he fell while mowing the lawn. For this he supplied a doctor’s note. However, when the note expired the plaintiff failed to provide another one and failed to return to work. The plaintiff’s employment was terminated. About a month after his termination, the plaintiff resumed seeing a doctor. Each doctor visit after his termination referenced a work injury. The plaintiff brought a workers’ compensation claim, but the workers’ compensation commissioner found that the plaintiff failed to establish that his injury ‘arose out of” or “in the course of” his employment. The plaintiff appealed the commissioner’s determination to the court. The court noted that an injury “arises out of” the employment if a causal connection exists between the employment and the injury. An injury occurs “in the course” of employment when the injury and employment coincide as to time, place, and circumstances. Both tests must be satisfied for the injury to be deemed compensable. While the plaintiff’s back injury could be the result of or aggravation from his work activities, the court determined that his testimony was inconsistent and that he failed to prove by a preponderance of the evidence that the injury arose out of his employment. Thus, the court upheld the commissioner’s finding. Tew v. Sparboe Farms, Inc., No. 20-1202, 2021 Iowa App. LEXIS 867 (Iowa Ct. App. Oct. 6, 2021).

Posted August 29, 2021

Private Zoo Deemed a Public Nuisance. The plaintiffs visited the defendant’s drive-by zoo where the defendants exhibited exotic animals such as a cougar, a lion, and “the world’s ugliest llama.” The defendants obtained their license to operate a zoo and exhibit wild animals from the USDA in 2002. The USDA would periodically inspect the premises. The plaintiffs visited the zoo on at least one occasion and subsequently sued the defendants claiming animal neglect under state law. The plaintiffs also alleged the zoo was a public nuisance and sought an injunction to prohibit the defendants from confining animals in inhumane and unsafe conditions. The plaintiffs also sought to divest the defendants of ownership in the animals and requested the animals be seized. The trial court allowed the plaintiffs to proceed with their animal neglect cause of action and found the defendants’ conduct constituted a public nuisance. The trial court also granted the injunction and divested the defendants of their ownership in the animals. On appeal, the defendants argued that the trial court incorrectly allowed the plaintiffs to pursue their animal neglect claim, because state law did not provide a private remedy. The plaintiffs alternatively argued that the defendants’ appeal was moot. The plaintiffs pointed to the defendants’ agreement with the USDA to refrain from exhibiting wild animals in the zoo. The USDA and the defendants had come to an agreement whereby the defendants admitted to willfully violating federal regulations under the Animal Welfare Act and the USDA revoked the defendants’ license to operate a zoo exhibiting wild and exotic animals. The appellate court noted that the relief granted by the trial court was broader, as the defendants were divested of all ownership of exotic animals and wildlife, some of which were used in their livestock operation. The appellate court also noted that while ruling in favor of the defendants would not result in the return of the seized animals, doing so would allow the defendants to reaffirm ownership in the livestock they maintained for their livestock operation. As a result, the appellate court determined the appeal was not moot. However, the appellate court noted that the defendants failed to preserve the error on the issue. At trial, the defendants did not present the affirmative defense that the state animal neglect law did not provide for a private remedy. Therefore, the appellate court declined to consider the issue on appeal. On the defendants’ challenge to the public nuisance ruling, the appellate court again noted the defendants failed to preserve error on the issue. The appellate court also noted that even if error had been preserved, the plaintiffs’ failure to provide a legal description of the land did not void the public nuisance claim. Lastly, the defendants claimed they did not receive a fair trial as the judge made a site visit and acted as an advocate for the plaintiffs. The trial court judge made several comments regarding the poor conditions of the zoo during the trial and to some of the witnesses. The appellate court noted that although it is best for a trial court judge to exercise restraint and avoid questioning witnesses, the trial court judge was allowed greater leeway to comment during the bench trial than he would be during a jury trial, and therefore the trial court judge did not deprive the defendants of a fair trial. Kuehl v. Sellner, No. 19-1980, 2021 Iowa App. LEXIS 669 (Iowa Ct. App. Aug. 4, 2021).

Posted April 30, 2021

Defendant’s Removal of Trees Within Conservation Easement Deemed Not a Nuisance. The developers of a subdivision agreed to record a conservation easement twenty feet wide along two boundaries of the subdivision after complaints by local farmers. The conservation easement’s purpose was to preserve the visual aesthetic for residents who enjoyed the rural setting. Although the restrictive covenants that were recorded did not reference the conservation easement, the developer recorded a final plat that explicitly referred to the conservation easement. The defendant purchased a lot in the subdivision and proceeded to remove some trees and brush from within the conservation easement. The defendant had reviewed the restrictive covenants, which had not been updated after the final plat was recorded. The defendant also had met with a representative of the subdivision’s homeowner’s association, who advised the defendant that he could clear the trees and brush so long as he did not change the grade of the land. The plaintiff was an adjoining neighbor outside the subdivision who sought damages for the loss of quiet enjoyment of his property. The trial court found that the plaintiff lacked standing to challenge the activity within the conservation easement. Further, the trial court noted that the plaintiff failed to demonstrate that he had been denied a property right. On appeal, the plaintiff argued that although he lacked standing to enforce the conservation easement, he was entitled to damages to address a nuisance. The plaintiff noted that the developers had set aside a conservation easement pursuant to state law and that the defendant’s conduct amounted to nuisance per se. The appellate court noted that the conservation easement enabling statute did not provide the plaintiff with a private right of enforcement. Alternatively, the plaintiff argued that the defendant’s conduct created a nuisance per accidens as the right to the quiet enjoyment of his property had been destroyed. The appellate court noted that whether the defendant’s conduct qualified as a nuisance per accidens depended on whether his conduct would cause actual physical discomfort to a person of ordinary sensibilities. The appellate court found that the plaintiff failed to show any such evidence, and as a result, affirmed the trial court’s decision and denied the nuisance damages sought by the plaintiff. Cergnul v. Bradfield, 2021 Ind. App. Unpub. LEXIS 295 (Ind. Ct. App. Apr. 9, 2021).

Posted March 27, 2021

Measure of Damages for Destroyed Trees at Issue. The plaintiff owned a ranch used for commercial hunting purposes that was adjacent to the defendant’s property. The ranch had a row of hedge trees approximately 20 yards wide and 300 yards long adjacent to the defendant’s property. The hedge trees were mature trees. The defendant’s tenant contacted the plaintiff requesting permission to cut down the hedgerow and install a fence. The plaintiff told the tenant to not cut down the trees or disturb the vegetation. However, the tenant proceeded to cut down the hedgerow and installed a fence. In the process about 156 mature trees were destroyed. The plaintiff sued alleging negligence, conversion and trespass claiming that that the loss of the trees decreased the value of the property for hunting purposes. The defendant filed a motion in limine seeking to bar the plaintiff from presenting evidence about the trees’ replacement value, claiming that Kansas law did not recognize replacement value as a proper measure of damages for tree destruction. The defendant specifically referred to the plaintiff’s two experts, arborists that were prepared to testify that the replacement cost of the trees was $1,092,361. The trial court granted the motion. The defendant then moved for summary judgment, claiming that the trial court’s grant of the motion in limine established that the plaintiff could not establish that damages existed and, thus, had no claim. The trial court granted the summary judgment motion on the negligence issue, finding that the plaintiff did not know the market value of the ranch before and after the trees were removed and, thus, could not prove damages. In its response to the summary judgment motion, the plaintiff claimed that the ranch was damaged by virtue of the tree removal reducing the quality of hunting on the ranch. However, the trial court viewed this assertion did not convert any of the defendant’s statement of facts. The plaintiff appealed. On appeal, the issue was whether the plaintiff had presented sufficient evidence of damages to present its case to a jury. The appellate court first determined that the plaintiff had not abandoned its claims for conversion and trespass because the defendant didn’t specifically address the conversion and trespass claims in the defendant’s trial court motions focusing solely on negligence. The appellate court also determined that the trial court did not err in granting the defendant’s motion in limine. The appellate court noted that damages must be calculated in a manner that is reasonable, citing the fact that replacement cost of the trees with mature trees would exceed three times the value of the ranch. Thus, it was proper for the trial court to exclude the plaintiff’s proposed evidence on replacement cost of the hedgerow with mature trees. On review of the grant of summary judgment on the negligence claims, the appellate court noted that the general rule that the measure of damages for negligent destruction of trees is difference in market value of the land immediately before and after the damage. However, the appellate court noted that this rule is not inflexible, and the parties may present evidence supporting alternative measures of damages – trees having value independent of the land; loss of income from fruit trees; sentimental value of a tree, etc. On this point, the appellate court concluded that the plaintiff had submitted sufficient evidence of damages to overcome the defendant’s summary judgment motion. The appellate court noted that the plaintiff had provided sufficient evidence to overcome the motion by showing that the removal of the trees impacted the quality of hunting on the ranch which justified reasonable replacement costs as a measure of damages. The appellate court also determined that the plaintiff had provided sufficient evidence of damages on the conversion and trespass claims. The case was remanded to the trial court for further proceedings. Ringneck Farms, LLC v. Steuwe, 471 P.3d 33 (Kan. Ct. App. 2020).

Nuisance Case Against Hog CAFO Continues. The plaintiff sued the defendant for trespass, negligence, civil conspiracy and unjust enrichment arising from odor, dust, feces, urine and flies from a neighboring hog facility that housed 20,000-head of the defendant’s hogs. The plaintiff sought compensatory and punitive damages. The defendant sought to dismiss the complaint for failure to join to the lawsuit the farmer that operated the hog facility via a contact with the defendant as an indispensable party. The court disagreed as the farmer’s conduct was likely irrelevant to the outcome of the litigation and any impact that an adverse judgment against the defendant might have on the farmer’s interests at the farm was speculative. The defendant also sought dismissal on the basis that the plaintiff’s complaint failed to state a claim for relief that was other than speculative. The defendant cited the state (NC) right-to-farm (RTF) law as barring all of the plaintiff’s claims. However, the court disagreed noting that conditions that constitute a nuisance can also constitute a trespass (and other causes of action). Thus, the plaintiff’s complaint was not restricted to allegations of a nuisance cause of action which the RTF law would bar. The court noted that the NC RTF law was different from other state RTF laws that covered non-nuisance tort claims related to farming operations along with nuisance claims. The NC RTF law only covered nuisance-related claims and had no application to non-nuisance claims. As to whether the plaintiff adequately alleged the non-nuisance claims, the court concluded that the plaintiff sufficiently alleged, at a minimum, a claim for unintentional trespass by not consenting to dust, urine and fecal matter from entering its property. On the plaintiff’s negligence claim, the court determined that it was reasonably foreseeable that if the defendant did not act reasonably in managing the facility that dust and animal waste would be present on the plaintiff’s property. As such, the defendant owed the plaintiff a duty and there was a causal link with any potential breach of that duty. Thus, the plaintiff properly stated a claim for negligence. The plaintiff also alleged that the defendant conspired with its corporate parent to mislead the public about the science of hog manure removal and various constitutional violations. The court rejected this claim because any conspiracy was between the defendant and its corporate parent and not with any independent party. The plaintiff also claimed that the defendant unjustly enriched itself by using the plaintiff’s property for a de facto easement without paying for it. The court rejected the claim because the plaintiff had conferred no benefit on the plaintiff which gave rise to any legal or equitable obligation on the defendant’s part to account for the benefit received. However, the court refused to strike the plaintiff’s allegations relating to the defendant’s Chinese ownership, influence and exploitation as well as the defendant’s financial resources. The court determined that such allegations had a bearing on the defendant’s motivation, extent of harm and ability to implement alternative technology. Barden v. Murphy-Brown, LLC, No. 7:20-CV-85-BR, 2021 U.S. Dist. LEXIS 47809 (E.D. N.C. Mar. 15, 2021).

Posted February 27, 2021

Animals Running At-Large Result in Criminal Citations; Deemed Nuisance. The plaintiffs owned a farm where they resided along with various farm animals. The defendants lived to the west and north of the plaintiffs. The county animal control officer had visited the plaintiffs’ farm on several occasions in response to complaints of animals running at-large. After receiving more complaints about the plaintiffs’ horses and cattle running unrestricted, the officer issued civil citations to the plaintiffs. The civil citations were eventually dismissed because the county ordinance only applied to dogs running at-large. The officer then issued criminal citations, which made it a misdemeanor to permit any animal to run at large, when complaints continued. The plaintiffs claimed that the defendants were tampering with the fence and letting the animals loose in a neighborhood-wide conspiracy to get the plaintiffs to move away. At trial, the plaintiffs argued the defendants committed malicious destruction of property by tampering with the electric fence and causing it to short out. The plaintiffs also argued that the officer had maliciously issued civil and criminal citations. The defendants counterclaimed that the plaintiffs’ animals habitually being at large constituted a nuisance. The trial court concluded that summary judgment was appropriate on the issue of the whether the officer had maliciously issued the civil and criminal citations because the plaintiffs failed to allege they suffered a special injury. At trial, the jury found that the defendants had not maliciously destroyed the plaintiffs’ fence and that the plaintiffs’ animals habitually being at large constituted a nuisance. On appeal, the plaintiffs argued that the trial court erred in dismissing their claim of malicious prosecution against the officer. The appellate court determined that although the officer may have acted with malice in making threatening statements to the plaintiffs, the officer had more than probable cause in issuing the citations. The appellate court noted that the officer had made numerous complaints and made several trips to the plaintiffs’ farm over a two-year span to help return animals to the farm. Additionally, the appellate court held that the plaintiffs failed to preserve their claims for appeal by not filing for a new trial. The appellate court did note that even if the plaintiffs had preserved their claims, the evidence was overwhelmingly not in their favor. Zlatkin v. Roggow, No. 346247, 2020 Mich. App. LEXIS 2144 (Mich. Ct. App. Mar. 19, 2020).

Posted February 12, 2021

No Liability for Escaped Prescribed Burn. An individual owned a 15-acre property to provide a place for his brothers and other family members to hunt. The defendant, a retired USDA employee, managed the property and planned to burn the 15-acres to burn off crop residue and a small of pine stumps. The defendant had many years of experience with conducting prescribed burns. The purpose of the burn was to replant it as a food plot for deer hunting. In preparation for the burn, the defendant cut firebreaks on three sides of the property with a harrow The Georgia Forestry Commission (GFC) cut a firebreak on the fourth side of the field. The defendant acquired a fire permit for the day of the burn from the GFC. The defendant’s brother assisted with the burn and a GFC employee was nearby to assist if needed. On the day of the burn the defendant tested the wind and started the fire, stringing a line of fire along the four sides with the intent that the fire lines would meet in the middle of the field. The fire jumped the firebreak and the defendant called for the GFC employee made two other firebreaks that doubled the size of on of the existing firebreaks. The fire jumped the widened firebreak, escaping to the plaintiffs’ property. The fire destroyed the plaintiffs’ garage, workshop and various tools and car part contained in the workshop. The plaintiffs sued and the defendant moved for summary judgment based on the Georgia Prescribed Burning Act (OCGA) §§ 12-6-145 – 12-6-149. The trial court granted the motion, finding that the OCGA protected the defendant from liability. On appeal, the plaintiffs claimed that the OCGA didn’t apply because the fire was not a prescribed burn. The appellate court disagreed, noting that the fire met the statutory definition of “prescribed burn” and that the plaintiff bore the burden to prove that the defendant conducted the burn with gross negligence. The appellate court noted that the OCGA also protected the defendant from liability to damages from smoke, drifting, ashes or heat as well as damages or injury caused by fire. Thus, the appellate court concluded that the OCGA liability protection applies even if the fire which was intended to be confined to a predetermined area escapes the predetermined area. The appellate court also rejected the plaintiffs’ argument that the OCGA didn’t apply because the burn was no conducted in accordance with the permit. The appellate court rejected this argument, finding that the property burned was “’agricultural land,” a permitted property type specified in the permit. While the permit noted that the burn could begin at 9:30 a.m., the appellate court determined that did not mean that the burn had to begin at that time. The appellate court noted that the defendant was experienced in conducting prescribed burns; had cut firebreaks completely around the property; checked the wind before starting the fire; carefully selected the ignition point; and had assistance to help with the burn. Accordingly, the appellate court determined that the defendant did not conduct the burn with gross negligence and upheld the trial court’s grant of summary judgment for the defendant. Newton v. Jacobs, No. A20A1787, 2021 Ga. App. LEXIS 28 (Ga. Ct. App. Jan. 27, 2021).

Posted January 16, 2021

Employee Refurbishing Property to Make Horse Farm Subjected Employer To Workers’ Compensation. The defendant employed the plaintiff to clean and maintain structures on the defendant’s property which was zoned for agricultural use. Part of the plaintiff’s job was to also mow certain areas of the property. The defendant intended to operate a horse farm on the property after it was refurbished. While working on the property, the plaintiff severely injured her right foot. The plaintiff suffered various complications which lead to her foot being amputated. As a result of the injury, the plaintiff sought workers’ compensation benefits. The defendant argued that it was a business engaged solely in agriculture exempt from state (KY) workers’ compensation and, alternatively, the plaintiff was engaged in an exempt agricultural activity. The administrative law judge found that the defendant was solely engaged in agriculture as the defendant had purchased the property for no other purpose than to operate a horse farm. The administrative law judge also found that the plaintiff was a person employed in agriculture under state law because her activities qualified as “work performed as an incident to or in conjunction with the farm operations.” The plaintiff appealed to the Workers’ Compensation Board. The Board agreed that the defendant was engaged solely in an agricultural activity at the time of the injury, but determined the plaintiff was a domestic employee who engaged primarily in tasks not typically associated with agriculture. As such, the defendant was not exempt from the state workers’ compensation law. The defendant appealed, arguing that an employee of an entity engaged solely in agriculture should be automatically exempted from workers’ compensation coverage because they are also engaged in agriculture. The appellate court held that the plaintiff was hired in a non-agricultural capacity and that her tasks consisted of activities not normally associated with agriculture. The appellate court noted that the fact that the defendant was engaged solely in agriculture did not necessarily mean the plaintiff’s work was primarily agricultural. The appellate court also noted that although the plaintiff engaged in some agricultural activities, such as mowing, the bulk of the plaintiff’s duties were considered non-agricultural. Therefore, the appellate court affirmed the Board’s decision that the defendant was not exempt from paying workers’ compensation benefits to the plaintiff. Brownwood Property, LLC v. Thornton, 2020 Ky. App. Unpub. LEXIS 250 (Ky. Ct. App. 2020).

Posted December 30, 2020

Court Reduces Dicamba Drift Damage Award; Case Continues on Appeal. The plaintiff claimed that his peach orchard was destroyed after the defendants (Monsanto and BASF) conspired to develop and market dicamba-tolerant seeds and dicamba-based herbicides. The plaintiff claimed that the damage to the peaches occurred when dicamba drifted from application to neighboring fields. The plaintiff claimed that the defendants released its dicamba-tolerant seed with no corresponding dicamba herbicide that could be safely applied. As a result, farmers illegally sprayed an old formulation of dicamba herbicide that was unapproved for in-crop, over-the-top, use and was "volatile," or prone to drift. While many cases had previously been filed on the dicamba drift issue, the plaintiff did not join the other litigation because it focused on damages to soybean crops. Monsanto moved to dismiss the claims for failure to warn; negligent training; violation of the Missouri Crop Protection Act; civil conspiracy; and joint liability for punitive damages. BASF moved to dismiss those same counts except the claims for failure to warn. The trial court granted the motion to dismiss in part. Monsanto argued that the failure to warn claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), but the plaintiff claimed that no warning would have prevented the damage to the peaches. The trial court determined that the plaintiff had adequately plead the claim and denied the motion to dismiss this claim. Both Monsanto and BASF moved to dismiss the negligent training claim, but the trial court refused to do so. However, the trial court did dismiss the claims based on the Missouri Crop Protection Act, noting that civil actions under this act are limited to “field crops” which did not include peaches. The trial court did not dismiss the civil conspiracy claim based on concerted action by agreement, but did dismiss the aiding and abetting portion of the claim because that cause of action is no recognized under Missouri tort law. The parties agreed to a separate jury determination of punitive damages for each defendant. Bader Farms, Inc. v. Monsanto Co., et al., No. MDL No. 1:18md2820-SNLJ, 2019 U.S. Dist. LEXIS 114302 (E.D. Mo. July 10, 2019). At the jury trial, the jury found that Monsanto had negligently designed or failed to warn for 2015 and 2016 and the both defendants had done so for 2017 to the present. The jury awarded the plaintiff $15 million in compensatory damages and $250 million in punitive damages against Monsanto for 2015 and 2016. The jury also found that the defendants were acting in a joint venture and in a conspiracy. The plaintiff submitted a proposed judgment that both defendants are responsible for the $250 million punitive damages award. BASF objected, but the trial court found the defendants jointly liable for the full verdict in light of the jury’s finding that the defendants were in a joint venture. Bader Farms, Inc. v. Monsanto Co., et al., MDL No. 1:18-md-02820-SNJL, 2020 U.S. Dist. LEXIS 34340 (E.D. Mo. Feb. 28, 2020). BASF then moved for a judgment as a matter of law on punitive damages or motion for a new trial or remittitur (e.g., asking the court to reduce the damage award), and Monsanto moved for a judgment as a matter of law or a new trial. The trial court, however, found both defendants jointly liable, although the court lowered the punitive damages to $60 million after determining a lack of actual malice. The trial court did uphold the $15 million compensatory damage award upon finding that the correct standard under Missouri law was applied to the farm’s damages. Bader Farms, Inc. v. Monsanto Co, et al., MDL No. 1:18md2820-SNLJ, 2020 U.S. Dist. LEXIS 221420 (E.D. Mo. Nov. 25, 2020). The defendants filed a notice of appeal on December 22, 2020.

Posted December 16, 2020

Right-to-Farm-Act Defense Deemed Frivolous. The plaintiff township sued the defendants for operating a commercial contractor’s business on property that was zoned as agricultural land under the local zoning ordinance. The defendants had previously owned land in another area of town, where they ran their commercial landscaping business, before moving to the agriculturally zoned land. The defendants stored commercial vehicles and equipment on the land, which also violated the zoning ordinance. The defendants argued that they were operating a tree farm and nursery, and the vehicles were being used to prepare the land to conduct tree farming operations. Specifically, the defendants argued that the local zoning ordinances were preempted by the Right to Farm Act. The trial court determined that the defendants use of the property was not protected under the Right to Farm Act. The plaintiff then sought court costs and attorney fees, contending that the defendants’ defense was frivolous. The trial court awarded the plaintiff costs and fees against the defendants, but not the defendants’ attorney. On appeal, the defendants argued that the trial court erred in finding that their defense under the Right to Farm Act was frivolous. The appellate court held that the defendants provided little to no evidence to show that they were operating a tree farm as opposed to an excavation and gravel business. The defendants argued that their improvements and alterations to the land were necessary to prepare the property for a tree farm. The appellate court found that the scale of the improvements coupled with the number of trucks and heavy equipment strongly implied the land was being used in furtherance of the defendants’ commercial landscaping business. Therefore, the appellate court held that the defendants’ assertion of a defense under the Right to Farm Act had no merit and was frivolous. The plaintiff appealed the trial court’s decision to not order costs and fees against the defendants’ attorney. The appellate court held that under state law, a court is required to sanction an attorney who asserts a frivolous claim. The appellate court then remanded the issue of determining the reasonable amount of costs and fees the plaintiff incurred from the frivolous Right to Farm Act defense. Lima Township v. Bateson, 2019 Mich. App. LEXIS 8179 (Mich. Ct. App. Dec. 19. 2019).

Posted November 25, 2020

Appellate Court Upholds $750,000 Compensatory Damage Award in Hog Nuisance Suit. The plaintiffs were pre-existing neighbors to the defendant’s large-scale confinement hog feeding facility conducted by a third-party farming operation via contract. The facility annually maintained nearly 15,000 of the defendant’s hogs that generated about 153,000 pounds of feces and urine every day. The waste was disposed of via lagoons and by spreading it over open “sprayfields” on the farm. The plaintiffs sued in state court in 2013 for nuisance violations, but later dismissed that action and refiled in federal court after learning of the defendant’s control over the hog feeding facility naming the defendant as the sole defendant. The trial court coordinated 26 related cases against similar hog production operations brought by nearly 500 plaintiffs into a master case docket and proceeded with trials in 2017. In the instant case, the jury awarded $75,000 in compensatory damages to each of 10 plaintiffs and $5 million in punitive damages to each plaintiff. The punitive damage award was later reduced to $2.5 million per plaintiff after applying a state law cap on punitive damages. On appeal, the appellate court determined that the trial court had properly allowed the plaintiffs’ expert testimony to establish the presence of fecal material on the plaintiffs’ homes and had properly limited the expert witness testimony of the defendant concerning odor monitoring she conducted at the hog facility. The appellate court also rejected the defendant’s claim that the third party farming operation should be included in the case as a necessary and indispensable party. The appellate court also affirmed the trial court’s holding concerning the availability of compensatory damages beyond the rental value of the property and the jury instruction on nuisance. The appellate court also concluded that the trial court properly submitted the question of punitive damages to the jury. The appellate court reversed the trial court’s admission of financial information of the defendant’s corporate grandfather and combining the punitive damages portion of the trial with the liability portion, but held that such errors did not require a new trial. However, the appellate court remanded the case for a consideration of the proper award of punitive damages without consideration of the grandparent’s company’s financial information (such as compensation amounts to corporate executives). As a result of this litigation several states, including Nebraska and Oklahoma, have recently amended the state Right-To-Farm law with the intent of strengthening the protections afforded farming operations). McKiver v. Murphy-Brown, LLC, No. 19-1019, 2020 U.S. App. LEXIS 36416 (4th Cir. Nov. 19, 2020).

Note:  Shortly after the appellate court reached its decision, the defendant's parent company (China-based WH Group Ltd and its U.S.-based pork producer Smithfiled Foods, Inc.) announced that it settled the nuiscance suits brought by hundreds of plaintiffs.  Smithfield Foods, Inc. said that the settlement, "takes into account the divided decision of the court."  

Posted October 1, 2020

Farmer Omitted From New Trial After Jury’s No Liability Finding. The plaintiff was a passenger on her fiancé’s motorcycle when he collided with a farm tractor. The defendant was driving the tractor on a county road and was attempting to turn left while the motorcyclist was attempting to pass the tractor. The collision resulted in injuries to the plaintiff and she sued the defendant for negligently operating the tractor. The defendant filed a claim against the motorcyclist, alleging that the motorcyclist’s negligence caused the plaintiff’s injuries. The plaintiff subsequently amended her claim to allege her own direct negligence claim against her fiancé. At trial, the jury returned a verdict finding the defendant was not negligent. The jury verdict form instructed the jurors to leave questions pertaining to the motorcyclist’s fault and damages unanswered if they found the defendant was not at fault. The plaintiff sought a new trial against the defendant and motorcyclist based on the flawed verdict form. The trial court granted a new trial as to the motorcyclist alone and concluded the verdict was complete as to the defendant because he had been exonerated of all fault. On appeal, the appellate court reversed and remanded for a new trial on all issues as to both the defendant and motorcyclist. The appellate court held that a complete retrial was necessary because the question of the fault of the two drivers was intertwined. The defendant appealed to the Iowa Supreme Court, arguing he had been found not negligent in the original trial. The Supreme Court held that the jury’s finding that the defendant was not negligent was untainted by the erroneous instructions on the verdict form. Further, the Supreme Court held that the error on the verdict form only prejudiced the plaintiff’s claim against the motorcyclist. The plaintiff argued that both drivers must be on the verdict form to compare their fault in the retrial. The Supreme Court held that the jury had exonerated the defendant, which only left the plaintiff’s claims against the motorcyclist to be determined in the retrial. Whitlow v. McConnaha, 935 N.W.2d 565 (Iowa Sup. Ct. 2019).

Posted September 9, 2020

Bulk of Property Damage Claims Fail. The parties resided on adjacent properties. The plaintiffs claimed that the defendant was responsible for damages arising from the removal of trees from within a natural buffer zone; removal of a 30-year old drainage pipe on the defendant’s property; intentionally altering the natural grade of the property so as to interfere with the natural flow of water; and trimming a maple tree located along the boundary line. Additionally, the plaintiffs alleged that the defendant installed an underground storage tank (UST) on the defendant’s property without a permit. As a result, the plaintiffs sued for both public and private nuisance and property destruction. The plaintiffs claimed that they suffered mental anguish; flooding caused by the removal of trees; invasion of privacy; residing adjacent to a hazardous condition due to the UST; and other potential damages to their property’s foundation as a result of the defendant’s actions. The plaintiffs also claimed that the defendant trespassed multiple times to alter the natural drainage flow of water and cut the plaintiffs’ trees. The defendant claimed that the plaintiffs did not have standing to challenge the tree removal, as the land where the tree removal occurred was owned by the City. Additionally, the defendant argued that the plaintiffs failed to provide expert evidence and that the defendant was entitled to summary judgment. The state trial court held that the plaintiffs did not have standing to sue under a public nuisance claim and that there was no private right of action for an ordinance violation. As for private nuisance, the court held that the plaintiffs failed to provide sufficient facts to support the nuisance claim, had not submitted expert reports to show necessary elements of their claims, and had not submitted expert reports to prove they suffered damages. Although the plaintiffs alleged the defendant’s UST was an abnormally hazardous activity, the trial court noted the plaintiffs failed to provide an expert witness and report that could explain the hazardous nature of the activity. The court also held that the plaintiffs needed to submit expert witness reports to show how they suffered damages from the defendant’s action. The plaintiffs claimed they were able to give an opinion as to the value of the real estate, but the trial court noted that plaintiffs may only do so in condemnation proceedings. As for the other claimed damages (and potential damages) the court held that the plaintiffs failed to causally connect the defendant’s actions to any property damage. The trial court also noted that the plaintiffs failed to identify an expert witness and submit an expert report to show how the defendant’s actions caused the destruction of the plaintiffs’ property. The court granted summary judgment to the defendant on all claims, except for the trespass claim and the claim for damage to a maple tree. On those claims, fact issues remained to be resolved. Dayton v. Collison, No. N17C-08-100 CLS, 2019 Del. Super. LEXIS 446 (Del. Super. Ct. Sept. 24, 2019).

Posted September 6, 2020

Plaintiff Unable to Establish Solar Farm as Nuisance. The plaintiff owned land zoned as “Exclusive Farm Use.” The plaintiff alleged that construction of a collection of solar panels (solar array) built on an adjacent property constituted a nuisance by interfering with her use and enjoyment of her property. The plaintiff’s suit was against the adjacent landowner; a company that held a conditional use permit for the solar array; and the construction company. The plaintiff alleged that all three defendants were responsible for the nuisance and trespass claims. The trial court granted summary judgment to all three defendants, finding that the plaintiff failed to offer any material evidence to establish either her nuisance or trespass claim. The court held that the defendant landowner did not engage in any activity constituting a nuisance or trespass. Landowners are generally not responsible for nuisances occurring after the execution of the lease, unless the landowner knew the activity being carried on would involve an unreasonable risk causing the nuisance or had control over the activities on the land. The trial court also noted that merely because the solar company obtained the permit that ultimately allowed construction to happen did not show they had any control over the construction workers’ actions. As for the actions of the construction company, the trial court held the plaintiff failed to allege evidence of an unreasonable interference with her private use or enjoyment of her land. Although the plaintiff complained of increased traffic and leftover debris, she was unable to establish that she had to adjust any daily habits or the manner in which she enjoyed her property as a result of the construction company’s conduct. The plaintiff alleged that a ditch built between the array and her property caused flooding on her property. However, the trial court noted the plaintiff could not show that the defendant construction company built the ditch or that the ditch directly diverted water onto her property. Yates v. United States Environmental Protection Agency, No. 6:17-cv-1819-AA, 2019 U.S. Dist. LEXIS 160799 (D. Or. Sept. 20, 2019).

Posted September 4, 2020

Landowner Owes No Greater Duty of Care Under Recreational Use Statute. The plaintiff is the administrator of the estate of a three-year-old who drowned in a brook on the defendants’ property. The defendants are the parents of the owners of the daycare where the decedent had been attending when the accident occurred. The defendants’ land was connected to the daycare property, and the daycare would regularly use a small area of the defendants' land to access a brook beach. The daycare used the defendants’ land for various outdoor activities. The defendants did not profit from the daycare and were not involved in any of the daycare’s business activities. The defendants' land was not posted, and they had always held it open to the public for recreational use. The plaintiff sued the defendants alleging their negligence was the direct and proximate cause of the incident. The state recreational use law encourages owners to make their land and water available to the public for no consideration for recreational uses without increasing liability potential for the owner. Under the statute, a recreational user is treated as an adult trespasser. The defendants claimed that they merely had to avoid willful or wanton misconduct for the statutory protection to apply. The trial court found that the activities engaged in by the daycare on defendants’ land were both recreational and educational, therefore qualifying as a recreational use. However, the trial court dismissed the defendants' motion for summary judgment because questions remained as to whether the defendants’ property was open and undeveloped land that qualified for protection under the statute. On appeal, the appellate court reversed the trial court and held that the statute applied. The appellate court held that the daycare’s use of the defendants’ property was without consideration, as the defendants received no benefit from the daycare’s use of their land. Additionally, the appellate court agreed with the trial court that the daycare’s use of the defendants’ land qualified as a recreational use. The appellate court further held that the defendants’ land was open and undeveloped. The general public was freely permitted to use defendants’ land, along with the daycare. Although the defendants had placed a sandbox and brook bridge on their land, the appellate court noted that the legislature had expressly stated that the presence of such objects on land would not, by itself, preclude land from being open and undeveloped. Therefore, the defendants were covered under the recreational use statute and were needed to only avoid willful or wanton misconduct to recreational users. Nolan v. Fishman, 218 A.3d 1034 (Vt. 2019).

Posted August 30, 2020

Railroad Responsible For Faulty Railroad Fence. The plaintiffs collided with a cow on a public highway. The defendant was responsible for building and maintaining the adjacent fence along a ranch that it had a right-of-way through. The plaintiffs alleged that the railroad company negligently maintained the fence, which allowed a cow to escape onto the highway. The defendant claimed that it did not own the cow that escaped, and that the plaintiff’s theory for recovery hinged on the defendant first being found liable in an action against the owner of the livestock. The defendant removed the action from New Mexico state court to federal court and sought a judgment with respect to both of the plaintiffs’ negligence claims. The court interpreted the New Mexico legislature’s intent of whether the plaintiffs were a protected class under the state’s fence law and determined that the plaintiff failed to establish a negligence per se claim requiring railroads to build fence lines. The purpose of the railroad fencing portion of the fence law, the court determined, was to protect owners of livestock rather than the motoring public. The plaintiffs’ second claim was that the defendant was per se negligent by permitting the cow to wander upon the road. The statute at issue stated that it was unlawful for “any person” to “negligently permit” livestock to wander upon any unfenced highway. The defendant argued that the term “permit” required that the negligence of the owner of the livestock must be established before liability would attach. Although the court determined that the phrase “any person” had not been construed to mean persons other than owners of livestock, it concluded that the New Mexico legislature had limited the application of similar statutes and failed to do so in this instance. According to the court, the failure to limit the statute by the state legislature meant the statute was intended to be interpreted broadly in order to protect a broader class of people. The court held that the plaintiffs had established themselves as members of the class sought to be protected by the fence law and that the defendant had permitted the cow to wander on the road. Upon further consideration, the plaintiff must establish whether the defendant had negligently permitted the cow to wander upon the road. Leslie v. BNSF Ry. Co., No. Civ. 1:16-cv-1208-JCH-JHR, 2019 U.S. Dist. LEXIS 154460 (D. N.M. Sept. 10, 2019).

Posted April 12, 2020

No Liability For Damages to Cattle in Quarantine. The plaintiff sought monetary damages against the federal government for cattle sale losses due to a state declared temporary fever tick quarantine that placed restriction on the movement and sale of the cattle and required that they be submitted for inspection and treatment. The plaintiff claimed that its cattle were injured and died as a result of the quarantine. The plaintiff claimed that the government personnel negligently rounded up the cattle for treatment. At least 14 cattle died and more were injured. The trial court dismissed the case due to lack of jurisdiction under the quarantine exception to the Federal Tort Claims Act (FTCA). The appellate court affirmed. The appellate court noted that the quarantine exception applies when the plaintiff’s damages are reasonably foreseeable. Because the damages were caused by the implementation of the quarantine, the defendant’s action fell within the quarantine exception to the FCTA. Cascabel Cattle Co., LLC v. U.S., No. 19-40077, 2020 U.S. App. LEXIS 10712 (5th Cir. Apr. 6, 2020).

Posted April 7, 2020

Petition to Quiet Title Over Disputed Boundary Denied. The parties had been adjoining rural landowners since 1988. When the defendant bought his tract, a survey and that survey was relied on in litigation between the parties concerning a dispute over logged timber on a five-acre parcel where ownership between the parties was not clear via the respective deeds. A few years later the plaintiff sued to quiet title to the disputed area claiming that the true boundary was the existing fence line based on either the theory of adverse possession or boundary by acquiescence. The trial court determined that the plaintiff had failed to establish the requirements for either theory and refused to quiet title in the plaintiff. On appeal, the appellate court agreed. Based on the evidence, the appellate court determined that the plaintiff failed to establish exclusive use of the disputed area for the statutory period and did not substantially maintain or improve the area, all elements of adverse possession and did not bring the quiet title action for six years after the initial dispute over timber. The appellate court also determined that the defendant did not treat the fence line as the boundary. Thus, no boundary by acquiescence was established because both parties did not assume the fence line was the boundary. Liddiard v. Mikesh, No. 19-0143, 2020 Iowa App. LEXIS 267 (Iowa Ct. App. March 18, 2020).

Posted March 22, 2020

Watermelon Pollinator Not Proven As Cause of Hollow Heart. The defendant, a commercial watermelon grower, bought a pollinizer plant (SP-6) and other seeds from the plaintiff. The SP-6 was used to pollinate seedless watermelons. The defendant instructed the plaintiff to plant the SP-6 with seedless watermelons at a 1:3 ratio. The plaintiff did so for the 2015 season and experienced unprecedented amount of hollow heart (cracks and hollow spaces inside the watermelon) in their watermelon crop. The defendant refused to pay on part of the invoices because of the hollow heart issue. The plaintiff filed suit seeking payment of the outstanding balance. The defendant filed a counter claim, claiming breach of express and implied warranties and breach of contract on the basis that SP-6, used as recommended by the plaintiff, caused the hollow-heart issues. The trial court granted summary to the plaintiff finding that the defendant failed to present enough causation evidence to support its theory that SP-6 caused hollow heart and that contractual disclaimers and limitations on liability precluded the defendant’s claims. The trial court awarded the plaintiffs $53,413.36 including interest. On appeal, the appellate court affirmed. On the causation issue, the appellate court was not persuaded that the evidence supported the defendant’s theory that SP-6 caused the hollow heart problem. While the maker of SP-6 had released a new product (SP-7) that improved upon SP-6, that fact was insufficient to establish that the maker knew SP-6 was a faulty product. In addition, the appellate court noted that the defendant’s own expert referenced numerous factors that could have caused the problem such as overfertilization; nutritional deficiencies; high temperature; excessive moisture; and other pesticides. The appellate court also upheld the award of interest. Rispens Seeds v. Bailey Farms, No. 347079, 2020 Mich. App. LEXIS 1901 (Mich. Ct. App. Mar. 12, 2020).

Nuisance Case Fails To Be Made. The plaintiff sued the defendant on nuisance and negligence theories concerning the defendant’s hog operation on an adjacent tract. The plaintiff claimed that before the defendant’s hogs arrived in 1995, the plaintiff’s property was “quiet and peaceful.” After the arrival of the hogs, the plaintiff claimed it was impossible to enjoy being outdoors. The plaintiff also claimed that the hogs negatively impacted his health and contaminated his drinking water. The defendant moved to dismiss the case and the court agreed. The court noted that under the state (North Carolina) Right-to-Farm Act, to bring a nuisance claim, the plaintiff must be the legal owner of property affected by the conditions alleged in the complaint; the property affected by the conditions must be located no more than a half mile away from the agricultural operation; and the claim must be brought within one year of the agricultural operation being established or undergoing some fundamental change. The defendant argued that the plaintiff violated all three of these mandatory provisions and had therefore alleged insufficient facts to bring his case. The court agreed and ordered the plaintiff’s complaint to be dismissed, and the case closed. Lewis v. Murphy-Brown, LLC, No. 7:19-CV-127-BR, 2020 U.S. Dist. LEXIS 44997 (E.D. N.C. Mar. 16, 2020).

Posted March 12, 2020

Contractor Liability and Workers’ Compensation. The defendant farmer had a production contract with the defendant chicken company to grow chickens on the farm. The chicken company hired the defendant chicken catchers and a trucking company to load and remove the chickens from the farm. The decedent drove truck for the trucking company and was at the farm to have chickens loaded into the truck. One of the employees of the chicken catchers turned on a forklift and left it running while he left to go to the bathroom. Another employee of the trucking company got on the forklift and began loading chicken cages on the decedent’s truck. This employee was not authorized to operate the forklift and was reprimanded for forklift operations in the past. While operating the forklift, the employee ran over the decedent and killed him. The decedent’s estate file a worker’s compensation claim against the trucking company for the accident. The estate also sued the defendant farmer, chicken company, and the chicken catchers. All of the defendants moved for summary judgment and the trial court granted each motion. On further review, the appellate court affirmed in part and reversed in part. The appellate court affirmed summary judgment for the chicken company on the basis that it was the decedent’s statutory employer and, as such, immune from liability under state workers’ compensation law. However, the appellate court reversed the award of summary judgment to the chicken catchers because fact issues remained concerning immunity under the workers’ compensation law and the catchers’ duty to the decedent. The appellate court also reversed the award of summary judgment for the farmer. The farmer failed to raise at trial the affirmative defense of assumption of risk and a question remained concerning whether the farmer was in a joint venture with the chicken company that is relevant for purposes of the workers’ compensation statute. Mullinax v. Pilgrim's Pride Corp., Nos. A19A1899, A19A1900, A19A1901, 2020 Ga. App. LEXIS 143 (Ga. Ct. App. Mar. 9, 2020).

Posted March 1, 2020

Suit To Recover Fire Damage on Federal Land Continues. A wildfire started on private land at the base of the defendant’s power pole. A jumper cable at the top of the pole between two of the service drop transformers failed, sparked and discharged a piece of molten wire into combustible material at the base of the power pole. The fire burned for a month, burning 49,600 acres, most of which was federal land. The fire cost the federal government $17.7 million, including $15.8 million fighting the fire and nearly $2 million in rehabilitation costs. The government claimed that the defendant improperly installed the jumper cable and installed undersized equipment, which caused the fire. The government claimed that the landowners were at fault for failure to inform the defendant of increases in their electrical load at the ice plant, which aggravated the problem with the undersized equipment. The private landowners also didn’t install electricity-regulating equipment and didn’t remove combustible material near the power pole. The government filed suit based on theories of negligence, res ipsa loquitor, trespass, and nuisance against the defendant. The defendant moved for summary judgment. The court allowed the case to proceed on the negligence, nuisance and trespass theories (provided there was a single recovery), but not the res ipsa loquitor theory. On the res ipsa loquitor theory, the court could not conclude that, based on common knowledge and experience alone, a layperson could infer that the fire would not have happened without negligence on the defendant’s part. Accordingly, the court denied the defendant’s motion for summary judgment with respect to negligence, nuisance and trespass theories, but granted it with respect to res ipsa loquitor. United States v. Idaho County Light & Power Cooperative Association, No. 3:17-cv-00391-CWD, 2020 U.S. Dist. LEXIS 30437 (D. Idaho Feb. 21, 2020).

Family Farming Operation Generates Multiple Legal Issues. The family farm was transferred from the mother to four of her eight children in 1977. Many of the children also bought land together. In 1980 a farm partnership was formed by three of the children, with each of them having a one-third interest in the partnership. Land was transferred to the partnership. In 1990 the partnership assets, except the land, were transferred to a corporation. Each sibling maintained one-third interest in the corporation. Two siblings later died, and a surviving sibling (a brother) maintained the interests in the partnership and corporation that passed to him. In 2011 a barn on the partnership property was damaged in a fire, with insurance proceeds being placed in the corporate account. The land that the partnership owned was logged with the proceeds from the timber placed in the corporate account. In 2013 the plaintiff filed suit against the brother, partnership and corporation seeking partnership dissolution, partition, and breach of fiduciary duty. The defendant brother countered with breach of fiduciary duty, offset, and unjust enrichment. A referee was subsequently appointed to provide a report to the trial court regarding the partition claim. The trial court jury found that the defendant breached his fiduciary duty, but that the plaintiff did not, and awarded the $10,500 to the plaintiff. The jury also found the plaintiff had been unjustly enriched and awarded the defendant $15,106. The plaintiff filed a post-verdict motion asking the court to change the jury's answer to Question 10 on the special verdict, regarding whether the plaintiff had been unjustly enriched—from "Yes" to "No" and to change the jury's answer to Question 11 — regarding damages for the unjust enrichment — to zero. The court granted this motion. At the bench trial, the court divided the property into thirds, one third to the plaintiff and two thirds to the defendant. A survey needed to be completed and the court ordered that the parties pay for it according to their new ownership amount. The court found that the insurance proceeds were not to be included in this division but the income from the timber was. Ultimately, the land was partitioned, the partnership dissolved, and the plaintiff awarded income from the sale of timber. Both parties appealed. The appellate court affirmed in part and reversed in part. The appellate court reversed and remanded on the adverse possession issue because the trial court did not require the partnership to prove that the partnership’s possession was hostile, open and notorious, and exclusive. However, the court upheld the trial court’s finding of a breach of fiduciary duty and that the trial court properly denied an award of attorney fees to the plaintiff. Springer v. Springer Bros., No. 2019AP249, 2020 Wisc. App. LEXIS 77 (Wisc. Ct. App. Feb. 25, 2020).

Livestock Trespass Law Applies In Both “Fence-In” and “Fence-Out” Counties. Texas is a “fence-out” jurisdiction unless state law specifies that a particular area utilizes the “fence-in” rule with respect to livestock that escape their enclosure. All livestock owners owning land adjacent to a State or U.S. highway in Texas are to fence-in their livestock. In addition, voters in counties may approve a change from utilizing the fence-out theory to using the fence-in theory unless otherwise barred by statute. Some counties are also statutorily barred from changing the rule in the particular county from fence-out to a fence-in. For escaped livestock, state law provides that a landowner owning land on which escaped livestock have been found is to call the local sheriff to report the escaped animal(s). The sheriff is to search for the owner and may impound the livestock if the owner isn’t found within five days. If the owner cannot be found after giving notice, the sheriff can sell the livestock at public auction. On the question from a county statutorily barred from using the fence-out theory, the State Attorney General opined that a local county sheriff must follow the rules for handling escaped livestock regardless of whether the sheriff presides in a fence-in or fence out jurisdiction. This is the case even though the livestock owner may not have any obligation to prevent the livestock from running at large (as is the case in a fence-out jurisdiction). Texas Att’y. Gen. Op. No. KP-0278 (Dec. 4, 2019).

Posted February 21, 2020

Livestock Owner Not Liable For Collision With Bull. The plaintiff was injured when the vehicle he was driving collided with a bull on a state highway. The plaintiff filed sued the defendant, the owner of the bull and the land from which the bull escaped, alleging the defendant was negligent in various ways. The trial court granted the defendant’s motion for summary judgment. The plaintiff appealed, claiming that the defendant had a statutory duty under two provisions of Chapter 143 of the Texas Agriculture Code: §143.071 and §143.102. The primary dispute on appeal was whether defendant also owed the plaintiff a statutory duty under the stock law provisions of Chapter 143. The stock law provisions refer to the provisions of Chapter 143, subchapter D, that authorize a county to adopt a stock law and opt into additional statutory regulations regarding certain classes of animals roaming at large. If a county adopts a stock law, then "a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held." The defendant argued that the statutory duty imposed by the stock law provisions did not apply for two reasons: (1) the plaintiff did not properly prove that Wilson County actually adopted a stock law; and (2) the stock law provisions conflict with §143.102 and Chapter 143 provides that §143.102 prevails in case of a conflict. In his summary judgment response, plaintiff produced a 2010 Proclamation by the County Judge of Wilson County. The 2010 Proclamation contained the County Judge's order showing the results of the election to adopt a local stock law prohibiting cattle from running at large throughout Wilson County. The appellate court determined that this order is prima facie evidence that the requirements of this chapter have been complied with in relation to presenting the petition, ordering the election by the commissioner’s court, giving notice, holding the election, counting and returning votes, and declaring the results. As such, the appellate court held that plaintiff properly proved that Wilson County adopted the stock law. In addition, the appellate court held that the stock law provisions and §143.102, when their meanings are ascertained from a plain language reading of their statutory terms, do not conflict. Section 143.102 prohibits individuals from knowingly permitting an animal to traverse or roam at large, unattended, on the right-of-way of a highway. The stock law provisions authorize counties to adopt a stock law and opt into an additional set of statutory regulations. No part of the stock law provisions authorize individuals to knowingly permit an animal to traverse or roam at large, unattended, on the right-of-way of a highway. They also do not allow a county to authorize individuals to knowingly permit an animal to traverse or roam at large, unattended, on the right-of-way of a highway. Consequently, the court held that, facially, there was no conflict between the stock law provisions and §143.102. The appellate court also concluded that "knowingly" in §143.102 is not violated if a person who is responsible for controlling a bull merely should have known the bull had been permitted to traverse or roam at large, unattended, on a highway's right-of-way. The plaintiff relied on the fact that the defendant knew cattle had escaped on a previous occasion when the gate was left open; and that the defendant always kept the gate locked because he believed cattle would get out if the gate was not locked but used a latch, and did not use the lock, on the date of the accident. However, the appellate court determined that this evidence did not support a reasonable inference that the defendant was aware his bull had broken the latch and wandered onto the highway. Therefore, the court held that plaintiff failed to produce summary judgment evidence sufficient to raise a genuine issue of material fact that the defendant knowingly permitted the bull to traverse or roam at large, unattended on a highway. Consequently, the appellate court affirmed the trial court’s judgment as it related to the plaintiff’s allegation that the defendant was negligent by violating §143.102. However, the appellate court also determined that the statutory duty in the stock law provisions of chapter 143 is that "a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held." The appellate court held that this provision, which did not include a knowing requirement, may be breached by evidence showing the person was at fault in allowing any mentioned animal to run at large. Therefore, because the plaintiff produced evidence showing the defendant failed to take reasonable measures to ensure his cattle would not escape, such as locking the gate and using a cattle guard, the plaintiff’s evidence showed that there was a sufficient risk of cattle escaping that the defendant believed it necessary to keep the gate locked. As such, the appellate court reversed the remainder of the trial court’s decision. On further review, the Texas Supreme Court dismissed all claims against the bull owner. The Texas Supreme Court held that when a livestock/auto collision occurs on a state or U.S. highway in a county with a stock law, the applicable standard is “knowingly permit.” The plaintiff failed to satisfy the heightened standard. Garcia v. Pruski, No. 04-17-00632-CV 2018 Tex. App. LEXIS 6974 (Tex. Ct. App. Aug. 29, 2018), rev’d., Pruski v. Garcia, No. 18-0953, 2020 Tex. LEXIS 50 (Tex. Sup. Ct. Jan. 31, 2020).

Posted February 9, 2020

Right to Maintain Road Creek-Bed Eliminates Erosion Claim. The plaintiff purchased his 199-acre farm in 1979. The defendant purchased his adjacent and upstream farm in 1999. The county road is the only access to both farms, which was allegedly impassable when the defendant purchased his farm. The parties had to drive in the creek bed to get to their farms. The defendant filled in the existing road, added concrete walls to maintain the creek bed, and dredged the creek to help with the flow of water. The defendant claimed that he never moved the location of the road or creek, but merely fixed each of them. The plaintiff admitted that the defendant had the right to maintain and repair the road and the erosion to his land from the repairs were tolerable. In April 2015, 4 inches of rain fell in a brief period which caused flooding. In response to the flooding the defendant added a third wall to the creek edge. The plaintiff argues that this wall is now causing erosion to his land. The plaintiff also stated that he has not spent money maintaining the road and likes driving in the creek. There is also an underlying boundary dispute with this cause of action as well, but neither party disputes the trial court order on appeal. The plaintiff sued to settle the boundary dispute and for damages caused by erosion. Before trial, the judge went to the site twice. The plaintiff testified that the defendant had moved the road and the creek with the work that the defendant had done. On cross examination, the plaintiff admitted that the defendant had returned the creek to its original channel. There was also testimony from engineers, contractors, surveyors, realtors and neighbors. The defendant moved for directed verdict on the causation and damages issue. The trial court granted the motion and then heard arguments on the boundary dispute which included other defendants. The trial court agreed with the defendants’ surveyor who utilized deeds, rather than an old fence which was partially in the dirt, to make their suggestion to the court. The plaintiff appealed on the erosion issue and the appellate court affirmed. The appellate court pointed out that entering a directed verdict on the causation in the boundary dispute was an error, but that the issuance of an early dismissal was the correct procedure and would achieve the same result. However, the appellate court did not grant an early dismissal. On the motion for directed verdict, the appellate court determined that the evidence supported the defendant’s arguments. The appellate court also concluded that the site visits had not unduly influenced the trial court judge. Thompson v. McCoy, No. 2018-CA-000527-MR, 2019 Ky. App. LEXIS 157 (Ky. Ct. App. Aug. 23, 2019).

Owner Not Liable in Negligence or Strict Liability For Butting Lamb. The defendant owned a farm with many animals. He kept a sheep named “Lamby” in his home as a "guard sheep" because of prior break-ins. Lamby is friendly, but territorial and would head butt the defendant and his girlfriend when agitated. In 2013 the defendant called the company that employed the plaintiff to schedule an appointment at the farm. The plaintiff and her co-worker were told to call before the appointment because the defendant was not always home and keeps a guard sheep. At the appointment, Lamby was penned up with the other sheep and the plaintiff and coworker petted him. The defendant had to see another specialist before getting fitted for a hearing aid, so the defendant said to call before coming to his home for another appointment. The defendant never received another call. In August 2013 the plaintiff and co-worker returned to the defendant’s home when he was at his other residence. The plaintiff and co-worker went past the gate which had a no trespassing sign and up to the house. Lamby headbutted the co-worker while unloading things from the truck. After realizing the defendant wasn’t there the plaintiff offered to “handle” Lamby so that the co-worker could get back to the truck. According to the plaintiff, Lamby butted her several times with enough force that she "went airborne" and "everything went black." According to the co-worker, when Lamby caught up with the plaintiff, Lamby butted one time, and she "hit the license plate a little bit." The plaintiff’s sunglasses and flip-flops "fell off," and she suffered a scrape on her foot. The plaintiff and co-workers laughed about the incident back at the office, and the plaintiff did not seem to be in distress. The plaintiff sought medical assistance the day after the incident. According to the plaintiff, she suffered a traumatic brain injury, underwent shoulder and back surgeries, and would require additional surgeries as a result of the incident. The defendant did not know about the incident until he got a letter from the plaintiff’s lawyer months later. The plaintiff sued claiming strict liability and negligence. The trial court found for the defendant and ordered that the plaintiff take nothing against the defendant. No party filed a post-judgment motion or requested findings of fact and conclusions of law. On appeal, the appellate court affirmed. The plaintiff claimed that the trial court’s implied findings on the strict liability claim was not supported by sufficient facts or law. To prove strict liability the plaintiff had to prove that the defendant was the owner or possessor of the sheep; that the sheep had dangerous propensities abnormal to its class; that the defendant knew or had reason to know the sheep had dangerous propensities; and that those propensities were a producing cause of her injury. The court held that the record did not establish that the defendant knew or had reason to know the sheep had a dangerous propensity. The defendant testified that all sheep "will butt you to a certain extent" because "it's their nature." Further the defendant contended Lamby sometimes butted him and his girlfriend, but such behavior was not "vicious" or "the kind of aggression that a guard dog would have where they [sic] continually attack . . . and try and really put you down"—Lamby "just butts you." The defendant and his girlfriend had never been injured by the headbutting and compared it to running in to something. Further the defendant had no knowledge of anyone being hurt by Lamby when he was gone. Gonzalez v. Ahrens, No. 14-18-00417-CV, 2019 Tex. App. LEXIS 7936 (Tex. App. Aug. 29, 2019).

January 14, 2020

Aerial Application of Ag Chemical Not Inherently Dangerous Activity. This case involves a dispute involving alleged damage to the plaintiffs’ trees caused by chemicals that allegedly drifted during aerial application. The plaintiffs attempted to hold liable both the aerial applicator and the landowner that hired the applicator. The plaintiffs claimed the landowner was vicariously liable for the applicator’s actions because aerial spraying of burndown chemicals is an "inherently dangerous activity." The trial court granted the defendants’ motion for Judgment as a Matter of Law on the plaintiff's trespass claim, but the remaining issues were left for the jury to resolve. The rest of the issues were left to a jury. The jury returned a verdict in favor of the defendants on the negligence and negligence per se claims. The plaintiffs filed a motion for a new trial, arguing the verdict was against the weight of the evidence; that the trial court erred in excluding evidence; and that the trial court erred in granting the defendants’ Motion for Judgment as a Matter of Law. The trial court, however, denied the plaintiff’s motion for a new trial. On appeal, the appellate court affirmed. The appellate court determined that the jury’s verdict was not against the weight of the evidence, and that the aerial application of herbicides was commonplace and not inherently dangerous. In addition, the appellate court noted that the defendants’ evidence was that the herbicides did not actually drift onto the plaintiffs’ property and that the applicator complied with all label requirements and sprayed during optimal conditions. The appellate court also determined that the trial court had ruled properly on evidentiary matters and that the plaintiff had not proven the alleged monetary damages to the trees properly. The appellate court also upheld the trial court’s denial of the plaintiff’s motion for a new trial. Keller Farms, Inc. v. Stewart, No. 1:16 CV 265 ACL, 2018 U.S. Dist. LEXIS 210209 (E.D. Mo. Dec. 13, 2018), aff’d. sub. nom., Keller Farms, Inc. v. McGarity Flying Service, LLC, No. 18-3755, 2019 U.S. App. LEXIS 36664 (8th Cir. Dec. 11, 2019).

January 11, 2020

Cattle Feedlot Permanent Nuisance, But Each Manure Runoff Was a Temporary Nuisance – Case Not Time-Barred. The plaintiffs owned property adjacent to the defendants’ cattle feedlot. The feedlot began operating in 2006 and was investigated in 2009 and 2013 by the Iowa Department of Natural Resources (IDNR) due to manure run-off issues. The IDNR required that the defendants take remedial action. In 2016 the plaintiffs sued for negligence, trespass, and nuisance. The plaintiffs claimed, "from approximately 2009 to the present there have been multiple occasions when manure from [the defendant’s] cattle lot has entered upon, and traversed over, [the plaintiffs’] property." The defendants countered with defamation, arguing that the plaintiffs made false statements about the feed lot and published it to third parties. The defendants moved for summary judgment arguing that the nuisance cause of action was barred by the five-year statute of limitations. The trial court granted the motion for summary judgment. The trial court determined that the plaintiffs were claiming that the feedlot was a permanent nuisance from its inception in 2006. The plaintiffs did not make separate nuisance claims for each instance of runoff which would make their claims an intermittent nuisance. On further review, the appellate court reversed and remanded. The only issue on appeal concerned the statute of limitations. The parties agreed that a five-year statute of limitations applied. Thus, the statute of limitation issue turned on whether the manure runoff is a permanent issue or a continuing issue. If the manure runoff constituted a permanent nuisance, the statute of limitations was tolled in 2006 and would have expired in 2011. Conversely, If the manure runoff amounted to an intermittent nuisance, the statute of limitations would be tolled upon each occurrence. The appellate court determined that the defendants failed to meet their burden of proof that the runoff was a permanent nuisance in order to sustain their motion for summary judgment. Permanence of a nuisance, the appellate court held, goes to the injury itself and the defendants did not show that the damage to the plaintiffs’ property could not be cleaned up or abated. Instead, the defendants relied upon the contention that the runoff from the feed lot was not temporary. The appellate court determined that he feedlot itself is a permanent nuisance but the runoff itself is a temporary nuisance. Thus, the plaintiffs’ suit was not time barred. Dvorak v. Oak Grove Cattle, L.L.C., No. 18-1624, 2019 Iowa App. LEXIS 743 (Iowa Ct. App. Aug. 7, 2019).

November 23, 2019

Some Dicamba Drift Claims Proceed. The plaintiff claimed that his peach orchard was destroyed after the defendants (Monsanto and BASF) conspired to develop and market dicamba-tolerant seeds and dicamba-based herbicides. The plaintiff claimed that the damage to the peaches occurred when dicamba drifted from application to neighboring fields. The plaintiff claimed that the defendants released its dicamba-tolerant seed with no corresponding dicamba herbicide that could be safely applied. As a result, farmers illegally sprayed an old formulation of dicamba herbicide that was unapproved for in-crop, over-the-top, use and was "volatile," or prone to drift. While many cases had previously been filed on the dicamba drift issue, the plaintiff did not join the other litigation because it focused on damages to soybean crops. Monsanto moved to dismiss the claims for failure to warn; negligent training; violation of the Missouri Crop Protection Act; civil conspiracy; and joint liability for punitive damages. BASF moved to dismiss those same counts except the claims for failure to warn. The trial court granted the motion to dismiss in part. Monsanto argued that the failure to warn claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), but the plaintiff claimed that no warning would have prevented the damage to the peaches. The trial court determined that the plaintiff had adequately plead the claim and denied the motion to dismiss this claim. Both Monsanto and BASF moved to dismiss the negligent training claim, but the trial court refused to do so. However, the trial court did dismiss the claims based on the Missouri Crop Protection Act, noting that civil actions under this act are limited to “field crops” which did not include peaches. The trial court did not dismiss the civil conspiracy claim based on concerted action by agreement, but did dismiss the aiding and abetting portion of the claim because that cause of action is no recognized under Missouri tort law. The parties agreed to a separate jury determination of punitive damages for each defendant. Bader Farms, Inc. v. Monsanto Co., No. MDL No. 1:18md2820-SNLJ, 2019 U.S. Dist. LEXIS 114302 (E.D. Mo. Jul. 10, 2019).

October 19, 2019

Ordinance Enforced Against Smelly Milk Drying Facility Constitutional and Proper. The plaintiffs own and operate a milk drying facility. Allegations arose that the facility made the defendant town smell like “rotten eggs, dried blood, rotten animal carcasses (boiling, burning and decomposing), vomit, human waste and dead bodies.” The defendant enacted an odor ordinance in 2013 which prohibited "[t]he creation or maintenance of a nuisance," and defined nuisance to include "offensive smells": “The erecting, continuing or using of any building or other place for the exercise of any trade, employment or manufacture which, by occasioning noxious exhalations, offensive smells or other annoyances, becomes injurious and dangerous to the health, comfort or property of individuals or the public.” In 2015 the town increased the penalties from $100 per offense to $750 for a "first offense," and $1,000 for repeated violations. In 2016 the ordinance was amended to read: "[N]uisance" shall mean whatever is injurious to health, indecent, or unreasonably offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere unreasonably with the comfortable enjoyment of life or property. *** Offensive Smells: The erecting, continuing or using of any building or other place for the exercise of any trade, employment or manufacture which, by occasioning unreasonably noxious exhalations, unreasonably offensive smells or other unreasonable annoyances, becomes injurious and dangerous to the health, comfort or property of individuals or the public.” (emphasis added). From 2012 to 2016 the plaintiffs did not receive any citations under the odor ordinance. In 2016 the plaintiffs began receiving citations but didn’t pay or appeal the associated fines. Abatement of the nuisance was negotiated, but the odors problems persisted. The plaintiffs received 36 citations in 2016 (16 before the abatement hearing and 20 after), four citations in 2017 and one citation in 2018. The plaintiffs chose to reduce odors by drying less product. The plaintiffs sued on the basis that the ordinance violated their due process by causing them to lose business and become unable to sell the business due to bad publicity. The plaintiffs also alleged a constitutional taking had occurred and that the town had tortuously interfered with business operations. The defendant moved for summary judgment and the court agreed. The court noted that the plaintiffs did not build the plant on the defendant’s promise that such an ordinance would not be enacted, and it was within the defendant’s jurisdiction to enact such an ordinance for a facility within the defendant’s limits. The court also determined that the ordinance did not rise to a regulatory taking because economic use of the plaintiffs’ property remained. The court also concluded that the defendant did not act improperly in enforcing the ordinance or in speaking to potential buyers. Chemsol, LLC, et al. v. City of Sibley, 386 F. Supp. 3d 1000 (N.D. Iowa 2019).

September 21, 2019

Lay Witness Testimony Insufficient To Establish Damages From Water Drainage. In 2014, the defendant installed a drainf pipe that discharged water from the defendant’s land to the plaintiffs’ land. The plaintiff sued alleging that the pipe caused an unnatural flow of water which damaged the plaintiff’s farmland. The plaintiff sought damages and removal of the pipe. The defendant counterclaimed arguing the plaintiff’s prior acts and/or inaction regarding the flow of the water caused damage to the defendant’s property. The trial court determined that neither party had established their claims and dismissed each claim with prejudice. The appellate court affirmed. As for the sufficiency of the evidence, the appellate court noted that the defendant owned the dominant estate and the plaintiff owned the servient estate. As such, if the plaintiff could prove that the installation of the pipe considerably increased the volume of water flowing onto the plaintiff’s land or substantially changed the drainage and actual damage resulted, the plaintiff would be entitled to relief. However, most of the evidence presented to the court was the observations of witnesses rather than measured water flow. Accordingly, the appellate court agreed with the trial court that the plaintiff did not prove by a preponderance of the evidence that installation of the pipe caused the increased water flow. The appellate court noted that a “reasonable factfinder” could attribute the additional water on the plaintiffs’ property to the increased rain fall during the years at issue. The appellate court also determined that the plaintiffs did not prove by preponderance of the evidence that installation of the pipe substantially changed the drainage. The water did not flow in a different direction on the plaintiff’s property. Rather the defendant altered the flow of water across his property in a natural direction towards the plaintiff’s drainage, which is permissible under state (IA) law. Thus, the plaintiff did not prove harm by a preponderance of the evidence. The appellate court also concluded that the trial court did not abuse its discretion excluding some of the plaintiff’s evidence. Kellen v. Pottebaum, 928 N.W.2d 874 (Iowa Ct. App. 2019).

Recreational Use Statute Inapplicable to Wedding Ceremony. The plaintiff was attending his son’s graduation from the Marine Corps when a tree branch fell on him. The plaintiff sued the federal government under the Federal Torts Claim Act, alleging that his injury was caused by the government's negligent maintenance of its property. The trial court dismissed the action reasoning that recovery would be barred by the state recreational use statue if a similar situation happened on private land. The state recreational use statute specifies that a landowner "owes no duty of care to keep [a] premises safe for entry or use by others for any recreational purpose." On appeal, the appellate court vacated the trial court’s decision and remanded the case. The appellate court determined that a graduation ceremony is not recreational. As such the ceremony at issue was not within the immunity of the state statute. The appellate court noted that recreation is an activity done to pass time; for education; for physical improvement or for amusement. A graduation, conversely, is commemorative or ceremonial. Pangelinan v. United States, 771 Fed. Appx. 452 (9th Cir. 2019).

August 6, 2019

No Intentional Harm From Ditch Work That Triggered Flooding. The defendant’s property lies north of the plaintiff’s tract. There is a river on the south and west of the plaintiffs’ property. This river does not touch the defendant’s property, but their southwest corner is near the river. There is also a road to the north of the defendant’s property. The plaintiff’s property is in a flood plain. In 2011, the defendant noticed pooling of water on the west side of the property. The defendant hired a third party to do some ditch work so as to repair the problem. The ditch project was a half mile of work from the road to the river on the defendants’ property. The excess soil was built up around the edge of the ditch. It was disputed weather this project involved clearing out an existing ditch or creating a new ditch. The defendant’s goal was to fix the pooling on the property. The parties presumed that the ditch would control water for the neighbors as well, but they did not consider the actual changes that the work would create. The plaintiff planted soybeans in 2013, and in July and August of that year the river flooded. During harvest the plaintiff noticed that some of the beans were knocked over and covered in mud. Some of the topsoil had washed away as well. Prior floods never moved fast enough to wash away soil or damage plants, and the river would slowly rise and fall. The state claimed that the defendant had an unpermitted channel change and floodplain on the property - a change in a designated stream's direction or volume. The defendant lowered some of the berms around the ditch to a foot. For the portions not lowered, the defendant received an after-the-fact permit for the placement of 2-foot berms alongside the ditch in 2015. The Army Corps of Engineers also did inspections of the ditch and determined that the ditch work was authorized by Nationwide Permit 41, which allows for reshaping existing drainage ditches. The Army Corps of Engineers also determined that Nationwide Permit 7 authorized the outflow construction. In May 2014, the plaintiff sued for damages to the 2013 soybean crop, loss of topsoil, and devaluation of the plaintiff’s farm caused by the threat of future flooding. The plaintiff claimed that the defendant’s action "constitute[s] a trespass and nuisance." Before trial, the defendant argued that the plaintiff did not prove the intent elements of the claims. After a four-day jury trial, the jury found for the plaintiff. The defendant renewed the argument that the plaintiff did not prove the intent elements of the claims and appealed. The appellate court reversed and remanded with directions to grant the defendant’s motion for judgment as a matter of law. The defendant claimed that the plaintiff failed to show the necessary element of intent to prove both nuisance and trespass, but the plaintiff claimed that it had pled alternative theories of nuisance. The plaintiffs further claimed that, in addition to intentional nuisance, it had also made a claim for "regular ordinary nuisance." The plaintiff, however, failed to cross appeal the district court's adverse ruling that the plaintiff had brought a private nuisance claim as an intentional tort. The appellate court held that no reasonable jury could conclude the defendant acted with the purpose of causing the trespass or nuisance, or know it was substantially certain to result from the defendant’s conduct in constructing the ditch and berm. The testimony of the defendant and the people who did the work showed that they only intended to improve their own land and possibly the neighbors. The evidence may show the defendant’s ditch project unduly harmed other, this is not enough to prove intentional nuisance and trespass, "which limits liability to egregious circumstances." Thorpe v. Ryan E. Kraft Tr., 440 P.3d 633 (Kan. Ct. App. 2019).

July 13, 2019

Farm Not Liable For Drunk’s Injuries. The defendant is a farm property located in a National Recreation Area in northeast Ohio. Various public events and weddings are held at the farm. In the fall of 2015, the plaintiff attended a wedding reception at the farm. The plaintiff changed from the high heels that she had worn to the wedding into cowboy boots for the reception which was held at a barn on the farm premises. At this particular wedding reception, alcoholic beverages were served, and dancing was engaged in. The supper was served in a barn, but the appetizers and bar were set-up on a deck under an awning. Guests had to go through a buffet line on the deck before returning to their seat in the barn. The plaintiff testified to having two alcoholic drinks before supper, but denied having any more that evening. After the meal, dancing was engaged in on the deck. The deck was constructed of wood and it had been raining off and on throughout the evening with occasional heavy downpours. The plaintiff engaged in dancing after sunset with the deck dimly lit. After about 10-15 minutes of engaging in dancing, the plaintiff fell and broke her ankle. The plaintiff was transported to a local emergency room. The triage notes from the emergency room that were composed upon the plaintiff’s examination stated that the plaintiff was “severely intoxicated” upon arrival. In mid-2016, the plaintiff sued the farm for her injuries claiming that she fell because of the improper maintenance and/or construction of the deck floor and that the farm was negligent in maintaining the property. The farm moved for summary judgment, but the trial court denied the motion. The trial court jury rendered a verdict of for the plaintiff of $57,345.50, but apportioned fault 49 percent to the plaintiff which reduced the plaintiff’s award to $29,248.78. The farm moved for judgment notwithstanding the verdict on the basis that the plaintiff failed to prove by a preponderance of the evidence that the farm’s negligence was the proximate cause of the plaintiff’s fall and injuries. The trial court denied the motion. The appellate court reversed on the basis that the plaintiff failed to provide evidence of the cause of her fall, did not identify what caused her fall and guest eyewitness testimony was on speculative as to causation. The appellate court also determined that the evidence at trial was insufficient to establish that the farm breached any duty of care that it owed to the plaintiff. Accordingly, the appellate court held that the trial court erred in not granting the farm’s motion for judgment notwithstanding the verdict. The appellate court reversed the appellate court’s judgment and remanded to the trial court for entry of judgment in the farm’s favor. Tyrrell v. Conrad Botzum Farmstead, No. 29063, 2019 Ohio App. LEXIS 1943 (Ohio Ct. App. May 15, 2019).

Cow Owner Not Liable For Injuries From Cow/Car Collision. The plaintiff collided with the defendant’s cows on a public roadway. A nearby gate to the cefendant’s pasture was found open. The plaintiff sued, and the defendant stated in a deposition that the cows had been out in the past due to hurricanes; hunters; felled trees on fences; neighbors; and vandals, among other causes. None of the previous escapes were the result of the defendant leaving a gate unlocked or unlatched. In the present case, the defendant testified that a hunter’s dogs on an adjacent property scared the cows and caused them to run through the fence and onto the road. The defendant moved for a motion in limine on this evidence and the trial court granted the motion. The plaintiff appealed, claiming that evidence of the prior escapes was inadmissible. The appellate court affirmed, noting that the parties only discussed one of the prior incidents after the defendant moved to limit the introduction of evidence. Carnahan v. Norvell, 270 So. 3d 414 (Fla. Dist. Ct. App. 2019).

June 29, 2019

Crop Adjuster’s Loss Computation Determines Damage Award. In June 2015, the plaintiff made a $3,553.77 purchase of fertilizer and glyphosate from the defendant on credit. As part of the purchase, the defendant allowed the plaintiff the use of a fertilizer spreader at no additional cost to be used on about 83 acres of corn. However, the fertilizer spreader malfunction during the plaintiff’s use. Later that summer, the plaintiff noticed uneven plant growth. The plaintiff contacted the defendant and made a claim on his crop insurance. The crop insurance adjuster calculated the financial impact of the unevenly fertilized portions of the plaintiff’s fields at a total loss of $4,251.67. The plaintiff sued for the crop damage of $7,676.67, plus costs. The defendant countered with nonpayment of the plaintiff’s credit account and sought damages of $4,022.32 plus costs. The conciliation court awarded the plaintiff $4,251.67 and the defendant $620. The defendant moved the case to district court alleging breach of contract and unjust enrichment and seeking damages of $4,154.68 plus interest. The plaintiff now sought $23,237.10 in damages, an amount he argued was based on his projected yield goal of 130 bushels of corn per acre. The trial court found that the spreader malfunction caused crop loss and breach of credit-account agreement. The trial court awarded the plaintiff $4,326.67 in damages, including costs, a figure that was based on the adjuster's calculation of damages. The trial court also awarded the defendant $4,447.84 in damages and determined that the defendant was the prevailing party entitled to an award of costs and disbursements. The plaintiff filed a motion to reconsider so as to add more fields to the damages. The court granted this motion and used the same calculation as the crop insurance adjuster on the additional fields. The plaintiff’s damages were then claimed to be $5,633.92. The trial court's damages award to the defendant and its prevailing-party determination remained unchanged. The appellate court affirmed, determining that the trial court properly computed damages as "actual damages" or an amount that compensates a complainant for a proven injury or loss. The plaintiff asserted that his damages should be calculated based on the difference between his projected yield goal of 130 bushels per acre and his actual yield, resulting in a figure of $23,237.10. The trial court based damages off the crop adjuster’s calculations: “(1) measuring the bushel-per-acre yield in the highest production areas; (2) measuring the yield in the lowest production areas of those fields; (3) calculating the difference between the high-yield and low-yield areas; (4) multiplying the result by the number of affected acres; and (5) multiplying the bushels per acre lost through insufficient fertilizer by the fixed price [of $4.15] per bushel.” The appellate court agreed. The appellate court also determined that the plaintiff had an opened-ended credit agreement and that the defendant, an agricultural cooperative, charged a finance charge of 18 percent that was within the rate that state law prescribed. Olean v. Moose Lake Co-OPerative Ass'n, No. A18-1328, 2019 Minn. App. Unpub. LEXIS 340 (Minn. Ct. App. Apr. 22, 2019).

Dog Bite Not Foreseeable. A co-worker informed the plaintiff, a seasonal UPS worker, of the multiple dogs on the defendant’s property. The plaintiff was told to leave the packages outside the property’s cattle gate. The gate had chicken wire at the bottom to keep the little dogs from getting out underneath. While the plaintiff was setting a package down, one of the dogs (a mixed -breed Boxer/German Shephard) managed to stick its head through the gate and bite the plaintiff on the neck. The defendant had owned the dog since when it was a puppy without prior any prior incidents. The plaintiff sued for negligence and gross negligence on the basis that the defendant owed the plaintiff a high duty of care based on the dog’s breed. The trial court granted the defendant motion for summary judgment and the appellate court affirmed. The appellate court determined that the defendant didn’t have either actual or constructive knowledge of any vicious tendencies of the dog and, thus the biting event was not foreseeable. The plaintiff submitted evidence of the dog’s DNA which showed its breed type, as well as internet articles stating that, "[t]here have been reported incidents of German Shepherd dogs being aggressive with other pets or people" and Boxers have a "[t]endency to jump up on people." The defendant testified concerning the dog’s nature and detailed that the dog had never bitten anyone. The court concluded, however, that foreseeability is based on common experience applied to human conduct and person of ordinary intelligence could have predicted the injury, and upheld the trial court’s determination that the internet articles were hearsay. The appellate court determined that the DNA evidence and articles did not show foreseeability of the injury. Because the dog bite was not foreseeable, the defendant had no duty to cover the entire gate in chicken wire. Next the court turned to the evidence issue. Smith v. Province, No. 07-18-00026-CV, 2019 Tex. App. LEXIS 3368 (Tex. Ct. App. Apr. 25, 2019).

May 29, 2019

Poor Business Projections Not Basis for Damage Award. The plaintiff is an LLC owned by the defendant and two others. The business was formed with the intent to lease commercial equipment used to pump and spread hog manure as fertilizer on Midwestern farm fields. The operation began in spring of 2013. In the summer of that year the defendant suggested that the company pursue an additional line of business of providing the actual pumping and transfer services associated with moving hog manure from holding ponds and spreading it onto the fields. Over a million dollars of equipment was purchased for this line of business. The defendant had created a list of potential customers with promising projections of income. One estimate was that seven customers would bring in annual revenue of $907,200. By 2015 the LLC had a cash flow problem. There were many outstanding invoices, equipment repair bills, and loans. The other member of the LLC testified that the defendant’s promise to pay down the company debt and increase his ownership percentage did not materialize. The other member also testified that the plaintiff LLC never "actually hit [the] numbers" the defendant had forecasted, although the company was "kind of moving in the right direction." During trial it became evident that the defendant’s projections were “overly optimistic.” Three valuations of the LLC were presented at trial. The S&P Methodology valued the LLC at $2.073 million, the Comparable Methodology valued it at $1.131 million, and the Discounted Cash Flow Methodology valued it at $1.713 million. The LLC (the other member) asserted damages based on the average of the three values. The trial court found that the defendant had breached the Management and Consulting Agreement and breached his fiduciary duties. However, his conduct did not constitute fraud or conversion. The other LLC member did not fully prove it was owed damages for the defendant’s breaches. On appeal, the other member claimed that there was sufficient evidence to show they suffered $1.639 million in damages resulting from the defendant’s conduct. The appellate court affirmed, noting that the other member only showed evidence of the defendant’s “overly optimistic” projections. These projections just show lost business or lost gross revenue, they did not constitute a concrete calculation of lost net profits. The appellate court also determined that there was no clear evidence that the failure of the business was solely because of the defendant’s actions or lack of actions (i.e., making capital contributions). Other arguments concerning the defendant’s conduct were not preserved for appeal. MJAH Holdings, LLC v. Henson, No. 03-18-00012-CV, 2019 Tex. App. LEXIS 2494 (Tex. App. Mar. 29, 2019).

Experienced Farmhands Can Be Expert Witnesses In Ag Negligence Case. The parties are brothers. The plaintiff leases farm ground from their mother, and the defendant stores grain in a bin on the mother’s land. On October 15, 2017 they were both at the mother’s property. The defendant’s pickup was parked over some dried corn stocks in the field. The stocks caught fire. The defendant’s son called 911. The defendant alerted the plaintiff and his farmhand. The plaintiff started to make a fire break with his tractor and chisel plow attachment. While creating the fire break the fire reached the tractor several times. At one point the front right tire caught fire. The plaintiff attempted to wave down a passerby thinking it was a firefighter, but the passerby drove away. The plaintiff’s tractor was destroyed, and the chisel was damaged. The plaintiff sued the defendant for negligence. The trial court found the defendant negligent and awarded the plaintiff $198,100 in damages. The defendant moved for a new trial, but the motion was denied. The plaintiff petitioned for costs associated with the proceedings and moved to amend the judgment to accrue interest from the date of the fire rather than the date the action commenced. The trial court ordered the judgment to include costs, but denied the motion to amend the judgment. The defendant appealed the denial of a new trial, and the plaintiff cross-appealed the denial of amending the judgment to accrue interest starting at the time of the fire. On appeal, the defendant claimed that the trial court erred by allowing two farmhands to testify as experts. The appellate court, however, determined that no error occurred given the experience of the farmhands and that their testimony was allowed to establish the defendant’s standard of care and did not form a legal conclusion. The trial court also did not err in excluding testimony that the passerby did not assist the plaintiff, noting that the damage to the farming equipment given its location near the parked pickup was a reasonably foreseeable consequence to parking over dried corn stalks. In addition, the appellate court concluded that sufficient evidence had been presented to support the forms of negligence submitted to the jury. Thus, the appellate court affirmed the trial court’s denial of a new trial. As for the plaintiff’s cross-appeal, the appellate court noted that the applicable statute states that, “Interest . . . shall accrue from the date of the commencement of the action." But, the case law allows for an exception to this. "One such exception has been stated to be that . . . [i]nterest is allowable on unliquidated claims wherever it appears that the damage was complete at a particular time . . . ." This issue, the appellate court concluded, falls into the exception. Thus, the appellate court granted the cross-appeal and orderered that the interest begin accruing from the date of the fire. Naber v. Naber, No. 18-0574, 2019 Iowa App. LEXIS 402 (Iowa Ct. App. Apr. 17, 2019).

May 4, 2019

Plaintiff “Came to the Nuisance” By Staying on the Farm. The defendants in this case are three individuals, their farming operation and a hog supplier. In 2013, the individual defendants petitioned the County Area Plan Commission to rezone a 58.42-acre tract from agricultural/residential to agricultural/intense. The land had been in the family for over 20 years and had been used for ag purposes since at lease 1941. From 1994-2013, the property was cropland. The zoning change would allow for the operation of a Concentrated Animal Feeding Operation (CAFO). The plaintiffs were two married couples, one of whom built their non-farm residence in 1971 and the other who started using their home as a non-farming residence in 2000 after deciding to retire from farming and sell most of the farmland. The plaintiffs attended the hearing and opposed the petition. The retired farmer plaintiff had raised about 200 head of hogs and 200 head of cattle in an area directly adjacent to his home. There also was a confinement building about 700 feet from the plaintiff’s home that contained up to 400 hogs that was used for two years until it burnt down. The area around the plaintiffs’ homes is predominated by agriculture uses, and there are other hog barns near the plaintiff’s property. The Commission approved the zoning change and the defendant obtained the necessary permits to build an 8,000-head CAFO one quarter of a mile from the retired farmer plaintiff’s home. In late 2015, the plaintiff sued the defendant (the retired farmer plaintiff’s cousin and two nephews) for nuisance and negligence and challenged the state’s Right-to-Farm Act (RTFA) as unconstitutional. The plaintiff also claimed that another part of state law (known as the “Agricultural Canon”) which requires state law to be construed to “protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever-changing technology,” was unconstitutional. The defendant asserted the RTFA as a defense, and the state joined the suit to defend the constitutionality of the Agricultural Canon. The trial court granted summary judgment for the defendant. On appeal, the appellate court affirmed, holding that the plaintiff’s nuisance, negligence, and trespass claims were barred by the RTFA. The appellate court also determined that the plaintiff’s various claims that the RTFA was unconstitutional were futile. As to the RTFA, the appellate court determined that the retired farmer plaintiff essentially “came to the nuisance” when they retired and switched their farming and livestock operation to purely residential with full knowledge of the surrounding ag uses. As to the rural residential plaintiff (as well as the retired farmer plaintiff), the court noted that a 2005 amendment to the RTFA meant that the change in the nature of the individual defendants’ farming operation from crops to a large-scale confinement hog operation was not a significant change that would make the RTFA inapplicable. The appellate court also determined that the defendant was not operating the confinement facility negligently which would have eliminated the RTFA as a defense. The defendant also had obtained all necessary permits to operate the CAFO. The appellate court also upheld the constitutionality of the RTFA, finding that it was within the legislature's legitimate constitutional authority. The appellate court also determined that the RTFA had not “taken” the plaintiffs property. While the plaintiff may have experienced a reduction in value due to the presence of the nearby CAFO, existing caselaw did not indicate that this amounted to a taking. In addition, on this point, the court noted that the plaintiff continued to live in his home and alleged no distinct, investment-backed expectations that the CAFO had frustrated. The plaintiff also claimed that the RTFA unconstitutionally separated rural dwellers into those engaged in ag operations on land that has been consistently farmed for at least the prior year, and those living in rural areas that don’t farm. Under the RTFA, farmers can sue either other farmers or non-farmers for nuisance, but non-farmers can only sue other non-farmers for nuisance. The appellate court determined that the distinction was not unconstitutional because the state had a rational basis for the distinction in terms of conserving, protecting, and encouraging the development and improvement of agricultural land for the production of food and other agricultural products, and that the distinction was applied uniformly. The appellate court did not rule on the constitutionality of the Agricultural Canon for lack of jurisdiction. Himsel v. Himsel, No. 18A-PL-645, 2019 Ind. App. LEXIS 181 (Ind. Ct. App. Apr. 22, 2019).

Posted April 14, 2019

Horse Rider Assumed Risks, But Not Unreasonably Increased Risks. The plaintiff was a minor who fell from a horse while at the defendant’s dude ranch. The plaintiff was injured when she attempted to dismount the horse, and the horse moved during the dismount causing her to fall. Specifically, the plaintiff claimed that during the dismount the wrangler moved away from her and towards the horse’s head to calm it down and that it was this movement that caused the fall because the plaintiff was left suspended in mid-air with nothing to hold on to. The plaintiff brought sued, and the defendant moved for summary judgment dismissing the complaint based on a theory of assumption of the risk. The trial court denied the motion, and the defendant appealed. On appeal, the appellate court analyzed the defendant’s evidence proffered in support of the argument that the plaintiff had assumed the risk of horseback riding. That evidence included testimony of an employee who was a certified horse wrangler who assisted the plaintiff at the time. The wrangler provided testimony to show that the employee exercised care in ensuring that the riding conditions were safe. In addition, the plaintiff was provided a safety helmet, instructions before the ride, was provided an appropriate horse for a beginner, and the wrangler accompanied the plaintiff on the ride and assisted in dismounting. The plaintiff also testified that she was aware that there were risks involved with horseback riding, since she had been on horseback riding trails before. The appellate court found that this evidence showed that the defendant had established its prima facie entitlement to judgment as a matter of law, meaning that the plaintiff, being aware of the risks associated with horseback riding, assumed the risk of her injuries when she fell from the horse following the animals “sudden and unintended” movements. However, the court then went on to establish that under the doctrine of assumption of risk, although “participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked…participants will not be deemed to have assumed unreasonably increased risks.” Thus, while the defendant made out a prima facie case for assumption of risk, the court then turned to decide whether the plaintiff had raised a triable issue of fact as to whether the defendant’s conduct unreasonably increased the risk assumed. Analyzing whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant’s skill and experience, as well as his conduct under the circumstances and the nature of the defendant’s conduct. Using this standard, the court found that the plaintiff had indeed raised a triable issue of fact of whether the plaintiff had assumed an unreasonably increased risk. The appellate court considered the fact that the description of the incident as described by the wrangler and the incident as described by the plaintiff differed on several important aspects including what actually caused the horse to move which caused the fall. Thus, although it was undisputed that the wrangler assisted the plaintiff during the dismount and attempted to provide adequate assistance, there was still a question of fact as to whether the wrangler’s response to the situation, in light of evidence that the plaintiff was a novice and the horse was jittery and jumpy heightened the risk of her fall, thereby unreasonably increasing the risks of horseback riding. Accordingly, the appellate court affirmed the dismissal of the motion for summary judgment. Sara W. v. Rocking Horse Ranch Corp., 169 A.D. 3d 1342 (N.Y. Ct. App. 2019).

Posted April 6, 2019

Expert Testimony Not Required To Determine Fault in Livestock Handling Case. The defendant farm and defendant veterinarian transacted much business with each other. The farm asked the veterinarian if he had any students that would like to vaccinate calves, the veterinarian was an approved supervisor for University of Missouri veterinarian program. The veterinarian reached out to the veterinarian college and the plaintiff veterinarian student (and another student) volunteered to help. The first day of vaccinating and pregnancy checking went well. A squeeze chute was utilized, restraining each calf fully, and only one at a time. The defendant veterinarian was present to supervise the entire time. The second day did not go as well. The students were sent to the farm with the vaccines for the calves, and the defendant veterinarian did not show up until later to pregnancy test the cows. Rather than catching each calf individually, the students and the farm employee did more of a crowding technique. They would put multiple calves in the chute using the “side squeeze” to limit their movements. The plaintiff’s request to catch only one calf at a time was dismissed because it was more efficient to catch two calves at a time and the large full cattle sized chutes are difficult to fully restrain a single calf. With this approach, calves tend to slip out of the cow-sized chutes when they are caught one at a time. When vaccinating the calf restrained by the head catch, another calf jumped and smashed the plaintiff’s hand. The defendant veterinarian was not there at the time of the accident. The plaintiff returned to work that day but a few days later got an x-ray that was inconclusive. It was not until much later that the plaintiff was diagnosed with a fracture, and development of complex regional pain syndrome and thoracic outlet syndrome. The plaintiff also required the placement of a spinal cord stimulator. At trial, the jury awarded the plaintiff $5,000,000 in damages. The jury assessed fault 60 percent to the defendant farm, 24 percent to the defendant veterinarian, and 16 percent to the plaintiff. The defendant veterinarian filed a Motion for Judgment Notwithstanding the Verdict and in the Alternative a Motion for New Trial. The trial court denied the motions. The veterinarian defendant appealed on the basis that the plaintiff failed to make a viable negligent supervision claim pursuant to state law and also failed to make a viable negligent supervision claim under common law tort principles. The defendant veterinarian specifically claimed that the plaintiff failed to offer any "expert testimony establishing the applicable standard of care used by members of [the defendant’s] profession under the same or similar circumstances [and whether he had breached that standard of care."] The appellate court affirmed on the basis that the defendant veterinarian failed to establish why expert testimony was required to establish standard of care or duty. The case involved the handling of livestock and supervision while handling livestock. It was not about complex veterinarian practices. Accordingly, the appellate court did not see any need for expert veterinarian testimony to testify about handling livestock. Further, the appellate court noted that the defendant veterinarian admitted to having a duty to create a safe work environment and there was evidence that there was proper use of the chute had not occurred. Wodohodsky v. Hall, No. SD35228, 2019 Mo. App. LEXIS 322 (Mo. Ct. App. Mar. 7, 2019).

Farm Owner Potentially Liable to Neighbor For Head-Butting Ram. The defendant owns a small farm where she keeps various animals including sheep and goats. The defendant spends roughly half her time at the farm and half her time in Florida. In 2016, the defendant was in Florida and left her half-brother (Slate) in charge of caring for her animals while she was gone, including feeding and watering them. While the defendant was in Florida, one of the goats (a ram) got sick, and because Slate had little experience with farm animals, he contacted a neighbor, the plaintiff, to come and help with the sick goat. As the plaintiff bent over the ill goat head-butted her, causing her to fall and break her arm/wrist. The plaintiff then sued the defendant on three theories of negligence; premises liability, negligent entrustment and/or supervision, and vicarious liability. Under Indiana law, tort liability based on negligence requires three elements be met: a duty owed by the defendant to the plaintiff; a breach of that duty and; injury to the plaintiff resulting from the defendant’s breach. The main elements at issue were whether a duty existed and whether the defendant had violated that duty. The plaintiff presented expert testimony to show that rams are generally territorial and tend to defend themselves, their territory, and females perceived to be in their herd by headbutting unfamiliar animals or persons, and that tendency is generally known by farmers. The plaintiff claimed that when she went into the pen to care for the sick goat, she did not realize it was a ram because it had no horns, and she had never been warned that a ram might be protective and territorial. Both parties moved for summary judgment on the liability question, and the trial court found in favor of the defendant because, in part, there was a lack of evidence indicating that the defendant knew the plaintiff would be on her real estate and, in particular, inside the pen where the defendant kept the ram. There was also no evidence that the ram had been aggressive toward anyone in the past. Accordingly, the trial court found that the defendant had not violated a duty of care to the plaintiff. The plaintiff appealed. On the premises liability question, the appellate court found that a duty to protect against harm caused by domestic animals could be established by either (1) a defendant’s knowledge that a particular animal has a propensity for violence and/or (2) a defendant’s ownership of a member of a class of animals that are known to have dangerous propensities, as the owner of such an animal is bound to have knowledge of that potential danger. The appellate court held that the plaintiff had presented sufficient evidence to establish that rams have dangerous tendencies as a class of animals, and the defendant was bound to have knowledge of that propensity. This evidence was enough to create a genuine issue of fact as to whether the defendant took reasonable measures to prevent the ram from causing harm to invitees, such as the plaintiff. Based on this standard, the appellate court held that the trial court had erred in granting summary judgment on the premise liability issue. However, the plaintiff did not present sufficient evidence to create a genuine issue of material fact as to the remaining theories of negligence, and therefore the appellate court did not reverse on those rulings. Accordingly, the appellate court remanded to the trial court for further proceedings on the issue of premises liability. Perkins v. Fillio, No. 18A-PL-2278, 2019 Ind. App. LEXIS 73 (Ind. Ct. App. Feb. 19, 2019).

Posted March 23, 2019

Grazing Permittee on Federal Land Owes Duty of Care When Erecting Improvements. The defendant owned a grazing allotment and was permitted to graze cattle on the allotted Forest Service land in Arizona. Consistent with the grazing permit, the defendant erected an electric fence on the allotment. In June 2011, the plaintiff collided with the fence while riding an off-road motorcycle, when he turned off a Forest Service road onto an unmarked, unimproved “two-track route” which the fence crossed. The plaintiff brought sued for negligence and the defendant moved for summary judgment on the basis that it owed no duty of care to the plaintiff. The trial court granted the motion, agreeing that there was no duty of care under the Restatement (Second) of Torts. On appeal, the appellate court determined that the issue was whether a federal permittee owes a duty of care to the public with respect to construction of improvements on the land. Determination of that issue, the appellate court reasoned, was dependent on state law. On that point, the appellate court found that a criminal statute will establish a tort duty if the statute is designed to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation, regardless of whether the statute mentions civil liability. The relevant AZ criminal statute held that a person commits a misdemeanor of public nuisance if that person knowingly and unlawfully obstructs a “public highway,” “public thoroughfare,” “roadway” or “highway.” The appellate court held that this public nuisance statute prohibiting the obstruction of certain types of pathways, also created a tort duty in those who erect improvements that impact those paths. Based on this interpretation, the court held that AZ law establishes a public policy giving rise to a tort duty with respect to the obstruction of certain types of public pathways. Consequently, a permittee on federal land owes a duty of care to the public when it erects an improvement across a publicly accessible route. However, the appellate court held that the facts were insufficient to determine, as a matter of law, whether the route at issue qualified as a “public highway,” “public thoroughfare,” “roadway” or “highway.” Consequently, the appellate court reversed on the duty of care issue and remanded to determine if the route fell within the scope of the relevant statutes. Johnson v. Almida Land & Cattle Co., LLC, 2019 Ariz. App. Unpub. LEXIS 140 (Ariz. App. Ct. Jan. 31, 2019).

Posted March 13, 2019

Dangerous Dog Statute Inapplicable To Injured Ranch Hand. The plaintiff was an employee of the defendant ranch and was working cattle at the time of the incident. The plaintiff was working a cattle crowding tub when a cow trampled him. The accident itself occurred in the alley attached to the tub. Allegedly, the cow came at the plaintiff while he was looking down the alley to see how many cows were in there. The plaintiff claimed that the cow ran at him because it was spooked by the defendant’s cattle dog, Gunner, that was nipping at it from under a gate at the other end of the tub. The defendant and other employees testified that the cattle dogs were not allowed in the enclosed areas and Gunner always laid down in the “chute house” away from the tub when they worked cattle. The defendant also pointed out that the plaintiff should not have been down by the alley if he was in the tub and, as such, it would have been easy for him to escape an agitated cow. In addition, the defendant maintained that the cow could not have gained enough speed in the tub to cause the accident and the cow was not agitated after the accident. The plaintiff’s girlfriend testified that the night before the accident they were "getting high on methamphetamine" and that the plaintiff "smoked another bowl of meth" on his lunch break the day of the accident. The trial court granted the defendants’ motion for a directed verdict on the plaintiff’s strict liability claim, and the jury returned a verdict for the defendant on the plaintiff’s negligence claim. On appeal of the strict liability issue, the state Supreme Court affirmed. The issue was whether the state dog liability statute applied. That statute provides that, “Dogs are hereby declared to be personal property for all intents and purposes, and, except as provided in subsection (2) of this section, the owner or owners of any dog or dogs shall be liable for any and all damages that may accrue (a) to any person, other than a trespasser, by reason of having been bitten by any such dog or dogs and (b) to any person, firm, or corporation by reason of such dog or dogs killing, wounding, injuring, worrying, or chasing any person or persons or any sheep or other domestic animals belonging to such person, firm, or corporation. Such damage may be recovered in any court having jurisdiction of the amount claimed.” The plaintiff claimed that the statute applied and also asserted that the cow’s flight response was not a superseding cause in the chain of causation. The Court disagreed and reasoned that the statutory list of “…killing, wounding, injuring, worrying, or chasing…” must be read with the common law understanding for enactment of the statute. This statute was meant, the Court determined, to clarify the common law strict liability for harms done by a dog with a “vicious propensity.” The list of harms in this statute only eliminates the common law requirement that the owner knew of such propensity. Thus, the statute was to be read with the implicit element of the dog being vicious or dangerous. The plaintiff’s interpretation of the statute, the Court concluded, would broaden the statute’s scope beyond its intent, and completely scrap the common law basis. Thus, the statute was not meant to be read to include accidents caused by non-dangerous dogs or actions not directed towards a particular human. Here, Gunner was not vicious or dangerous and even though he was near the tub he was acting in accord with his breed characteristics and training. In addition, the plaintiff was not injured directly by Gunner and there was no evidence that Gunner was acting dangerously towards the plaintiff. The Court also determined that the foreseeability of Gunner being in an enclosed area and injuring employees was properly presented to a jury. Smith v. Meyring Cattle Co., LLC, 302 Neb. 116, 921 N.W.2d 820 (2019).

Posted March 4, 2019

Fence Statute Applies to City. The plaintiffs and their predecessor have been grazing the property at issue since 1839. The area has become residential, but the plaintiffs have continued to graze their property. State law provides that the plaintiffs and adjoining landowners must maintain fences and share in the cost of doing so. There cost issue came into dispute, invoking the statutory procedure for resolving such disputes. Accordingly, the plaintiffs requested that the defendant city allocate costs. The city refused, and the plaintiffs sued. The plaintiffs claimed that they have the right to have the appropriate governing body determine the costs of the fence. The defendant moved to dismiss claiming that the statute does not give them authority to enforce the cost allocation procedures. The trial court denied the motion to dismiss and granted declaratory relief to the plaintiffs. On appeal, the appellate court determined that the legislature inadvertently eliminated a city's authority to administer fence cost allocation procedures under the statue. On further review, at the state Supreme Court, the city claimed that the statute only allows towns, not cities to execute enforcement procedures. The Supreme Court noted that the statute only refers to “town” but that the legislature never eliminated a city’s authority under the statute. Instead, the legislature merely restructured the way it expressed the authorization. This structure, the Court reasoned, carried through to other pertinent statutes. Thus, reading the statutes together, the plain language of the statute in question unambiguously authorized the defendants to administer the cost-allocation procedures of the fence law. White v. City of Watertown, No. 2016AP2259, 2019 Wisc. LEXIS 11 (Wis. Sup. Ct. Jan. 31, 2019), aff’g., 378 Wis. 2d 592, 904 N.W.2d 374 (Wis. Ct. App. 2017).

Posted March 3, 2019

Independent Contractor Owes No Duty To Maintain Safe Trail. The plaintiff was riding a mountain bike on a trail in a city park when he was injured. A tree had fallen across the trail at head level. The plaintiff did not see the tree and was clotheslined. The plaintiff initially sued the city, the owner of the park and the operator of the trail asserting claims of general and gross negligence. In its answer, the city identified the defendants as the responsible third party. The city and the defendant were in an "Adopt-A-Park Agreement" (Contract) that left the defendant "responsible for constructing and maintaining the bike trail in question." The petition was amended, and the defendant was added to the suit. The plaintiff claimed that the defendant agreed to "assume responsibility for maintenance, construction and safety of the trails," and as such owed "a duty to protect the general public from dangerous conditions such as falling trees." The contract stated that the defendant "shall perform all work and services hereunder as an independent contractor . . . . [and] shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder[.]" The contract also stated that the defendant "shall, at its sole cost and expense, construct and maintain the Trails in accordance with [the] Agreement." Trail maintenance was defined as including, but not limited to, "repairing, replacing, and rebuilding trails or sections of trails that are eroding or in disrepair; pruning of trees; [and] removal of brush[.]" However another part of the contract states that the defendant is prohibited from "trimming and pruning, until written approval is obtained from the Director [of the Parks and Community services Department]," and from "remov[ing] any tree without prior written permission from the City Forester." The contract also explicitly stated that the city reserved the right of access and control of the trail. The defendant moved for summary judgment challenging, asserting that it had no legal duty to the plaintiff. The defendant also alleged that the plaintiff’s claim was actually a premises liability claim rather than the general liability claim that was in the petition. The court granted the defendant’s motion for summary judgment on the negligence and gross negligence claims. The appellate court affirmed, finding that the defendant owed no legal duty to the plaintiff. The defendant did not cause the tree to fall and it had not been down for more than a day before the accident. In addition, the appellate court noted that the defendant did not have the authority to remove the tree. DeLamar v. Fort Worth Mountain Biker’s Association, No. 02-17-00404-CV, 2019 Tex. App. LEXIS 466 (Tex. Ct. App. Jan. 24, 2019).

Posted February 16, 2019

No Recovery For Injuries From Olive Pit in Olive. The plaintiff purchased several cans of the defendant’s "Lindsay's Large Pitted Olives." When eating an olive the plaintiff bit into a pit and cracked a tooth. The plaintiff sued based on strict liability, negligence, and breach of express written warranty theories. During discovery, the plaintiff testified that she had never encountered an olive pit. Also, during discovery, the defendant explained the pitting process and produced evidence that "[e]ach of the cans of the Lindsay Large Pitted Olives is sold with a label that states[] 'Caution, Look out for Pits!'" The defendant moved for summary judgment and the trial court granted the motion. The trial court reasoned that when injury occurs as a result of a natural food product, the plaintiff may not recover based on either strict liability or breach of warranty. On appeal, the appellate court affirmed. The appellate court noted that the pit in an olive is a natural substance and not a foreign object. Thus, the plaintiff’s strict liability and express warranty theories failed. As for the express warranty claim, the appellate court noted that while the olives were advertised as “pitted,” there was also a warning that pits could be present. Steele v. Bell-Carter Foods, No. A151952, 2019 Cal. App. Unpub. LEXIS 551 (Jan. 24, 2019).

Posted February 3, 2019

Landowner Fails to Establish Proximate Causation of Water Drainage Damage. The plaintiff’s four-foot wide drainage ditch ran from her driveway to the property line and onto the defendant’s property. The ditch dimensions remained fairly constant from 1973 t0 2000, when the defendant “changed the driveway” on his property by filling in a portion of the ditch and building a driveway on top of it. Over the years, the plaintiff and defendant had multiple conversations about the new driveway, with the plaintiff complaining that the culvert underneath the defendant’s new driveway was too small and was causing water to back-up onto the plaintiff. In 2016, the plaintiff filed a nuisance claim against the defendant, claiming that the culvert obstructed a natural waterway, creating a wetland area on her property and resulting in devaluation of her property. At trial, experts on both sides gave conflicting opinions as to the reason of the excess water on the plaintiff’s property. The plaintiff’s expert testified that the placement of the culvert under the defendant’s driveway and the level of the defendant’s connected retention pond, caused a backflow of water onto the plaintiff’s property. He also testified that when the defendant moved the driveway, he also moved the culvert further north, which prevented the sediment from properly flowing from the plaintiff’s ditch. The defendant’s expert testified that the area at issue had been a wetland since the 1930’s. He also testified that the wetland was caused as the direct result of an adjacent groundwater spring-fed stream, and was exacerbated by the fact that the plaintiffs had removed “several large trees” which significantly reduced the groundwater uptake, which led to more groundwater seepage onto the surface. Lastly, the defendant’s expert testified that the plaintiff had never engaged in measures to maintain the integrity of the ditch on her property, such as cleaning it out, removing vegetation or installing a tile. The trial court found in favor of the defendant concluding that the plaintiff had failed to meet her burden of proof. On appeal, the appellate court agreed that the plaintiff had failed to meet that burden of proof, and that the plaintiff’s evidence presented simply failed to show that either the culvert or the retention pond on the defendant’s property was the proximate cause of the wetland conditions on the plaintiffs property. The appellate court found the defendant’s expert’s opinion to be more credible than the plaintiff’s expert’s opinion, in light of all the evidence presented. Based on that evidence, the court found it more likely than not that the wetland conditions resulted from the historical existence of a natural spring, topographical makeup of the plaintiff’s property, removal of several trees, and lack of maintenance or improvements as to the drainage ditch. Therefore, the appellate court upheld the trial court’s finding that the plaintiff had failed to meet her burden of proof, and affirmed the trial courts judgment. Brockman v. Ruby, No. 18-0170, 2018 Iowa App. LEXIS 1095 (Iowa Ct. App. Dec. 5, 2018).

Posted January 27, 2019

Missing Safety Guard Could Be Dangerous Condition. The plaintiff was injured when her finger got caught in the unguarded chain of a hay conveyor while loading hay onto it. The defendant owned the conveyor and the farm at which it was being used. At the time the hay conveyor and farm were owned by the defendant. However, the plaintiff was at the farm as were others that were also helping to put up hay. The plaintiff and the others had a verbal agreement to put the hay up for a percentage of the income. The plaintiff sued to recover damages, but the trial court denied the plaintiff’s motion to compel for inspection of the hay conveyor. In addition, the trial court granted the defendant’s motion for summary judgment, effectively dismissing the case. On appeal, the appellate court reversed and also granted the plaintiff’s motion to compel inspection of the hay conveyor. The appellate court determined that the defendant failed to establish that the plaintiff's presence on the farm to perform haying work was not reasonably foreseeable. The appellate court also concluded that the defendant failed to prove as a matter of law that the lack of a safety guard around the hay conveyor’s chain did not constitute a dangerous condition or that the defendant lacked actual or constructive notice of the allegedly dangerous condition. In addition, the appellate court also held that the defendant failed to prove as a matter of law that his alleged negligence was not a proximate cause of plaintiff's injuries. The defendant claimed that loading was a superseding intervening action, but the appellate court rejected that argument. The Court rejects this as the defendant farm owner failed to meet his burden of proving that the accident was not a normal or foreseeable consequence of his actions. Thus, the appellate court reversed the grant of summary judgment and reinstated the original complaint against the defendant Breau v. Burdick, 166 A.D.3d 1545, 87 N.Y.S.3d 786 (2018).

Posted January 26, 2019

Dispute Over Crop Services Ends Up in Court. The parties had agreements for the sale chemicals, fertilizer, and application services. In 2012 the plaintiff applied chemicals and fertilizer on the all of the defendant’s “home place” and leased ground. The plaintiff misapplied dry fertilizer on one of the fields, and the plaintiff credited the defendant for that error. The plaintiff sent the defendant 39 invoices with dates ranging from March through July, documenting the sale of chemicals and fertilizer and the application charges. The corn crop on the home place rose to an even height and was a "healthy green" color, but the leased ground had strips of corn that were shorter compared to other strips of corn in the same field and some rows were yellow. The defendant notified the plaintiff, but also believed that it was too late for the plaintiff to address the problem given the drought conditions. However, the plaintiff attempted to address the issue on the leased ground with an additional application and billed the defendant $7,511.20. After the application, the defendant bailed a portion of the corn crop. The leased ground produced about .73 bales per acre and the home place produced 3.76 bales per acre. The defendant did not make any payments for the services until April of 2013 (the following year), despite being given notice of overdue bills and accumulation of interest. On May 1, 2013, the defendant was billed for a total of $120,892.23. The plaintiff filed a claim for the last billed amount a month later. The defendant counterclaimed for damages of $99,990 attributable to "lost forage/bales for the 2012 crop season" and $7,600 to subsequently plant rye seed as a "cover crop," which also either did not grow "in any capacity" or grew "in an irregular pattern." At trial, the parties presented conflicting expert witnesses as to the reasons for the lower production on the leased ground. The plaintiff’s witness emphasized the defendant’s farming practices and the drought conditions. The defendant’s witness emphasized the misapplication of chemicals. The jury returned a verdict of $104,180.27 in favor of the plaintiff and a verdict of $7,511.20 in favor of the defendant on his counterclaim. The defendant moved for new trial on his counterclaim, but the trial court denied the motion. The plaintiff filed a motion for an award of prejudgment interest on the judgment it received in accordance with state law and the trial court awarded $46,089.27. On appeal, the defendant claimed that the trial court erred by allowing the testimony of the plaintiff’s expert witness; and by awarding prejudgment interest. The defendant also claimed that the verdict on the counterclaim did not respond to the issues submitted to the jury and was contrary to law and the evidence of damages. In addition, the defendant claimed that the trial court erred by denying his motion for a new trial the counterclaim. The appellate court affirmed, determining that the plaintiff’s expert witness testimony was based on based on sufficient non-speculative grounds. As to the award of prejudgment interest, the appellate court determined that the underlying claim was a determinable claim that was not in dispute and that prejudgment interest was appropriate. The counterclaim award for the defendant was also appropriate as reasonable and based on sufficient evidence. The appellate court also held that the trial court’s denial of a new trial was correct as not clearly incorrect and that the award of prejudgment interest was also appropriate. Farm & Garden Ctr., L.L.C. v. Kennedy, 26 Neb. App. 576 (Neb. Ct. App. 2018).

Court Upholds Denial of Workers’ Compensation Benefits. The petitioner was employed by a dairy farm. During a break from working at the dairy, the petitioner rode one of the dairy’s all-terrain vehicles (ATVs) to his residence. Before heading back to work, the claimant’s girlfriend testified that the claimant "grab[bed] a beer from the refrigerator.” While crossing the road between the residence and the farm, the petitioner was hit by on-coming traffic. A first responder testified to smelling alcohol on the petitioner’s breath and a beer bottle was observed on the scene of the accident. Before the accident, the dairy had warned the petitioner about drinking on the job. The petitioner later filed for worker’s compensation which the dairy opposed. At the administrative hearing, a Workers' Compensation Law Judge denied the claim and the trial court affirmed. On appeal, the appellate court affirmed. The appellate court determined that the petitioner was engaged in an impermissible deviation from his employment at the time of his accident, and that his resulting injuries did not arise out of and in the course of his employment. The dairy had made it clear that drinking was not permitted while the petitioner was working and the evidence was conclusive that the petitioner had been drinking before the accident. In re Button, 166 A.D.3d 1258, 86 N.Y.S.3d 805 (N.Y. Ct. App. 2018)

Farming To Cultivation Line Constituted Adverse Possession. The parties in this dispute gained each title to their respective properties from the same predecessor. In 1972, the plaintiff purchased his tract and believed that he purchased up to the fence where his predecessor had farmed. However, the deed did not include a strip of land up to the fence. Since the 1980’s, the plaintiff farmed up to where the fence was in 1972 believing that to be the property line. Sometime during the 1980’s the defendant received title to the other portion of the predecessor’s original property. The plaintiff sued claiming adverse possession of the strip of land not in the 1972 deed. The trial court agreed. On appeal, the appellate court affirmed. The appellate court held that the plaintiff’s farming of the disputed strip for several decades was sufficient to establish an intent to hold against the true owner’s rights. The appellate court also determined that the plaintiff’s possession was also hostile because it was greater than the deed anticipated and was without permission of the true owner. While the strip had never been enclosed by a fence or other enclosure, the property line was the cultivation line which had been clearly identified for decades via the plaintiff’s conduct. Collier v. Gilmore, 2018 Ark. App. 549 (Ark. Ct. App. 2018).

Posted January 3, 2019

Question of Dairy Farm’s Liability At Issue For Worker Involved in Accident. The defendant dairy employed a worker to be on call around the clock to repair equipment on the defendant’s various farms as needed. The worker was involved in his work vehicle when he was involved in a single vehicle accident. The plaintiff was riding with the worker at the time of the accident. The plaintiff was employed by a third party to perform various services at the dairy and other local farms. On the night of the accident, the worker and third party attended a family function (they were related) not located on farm property. On the way home after the function, the vehicle they were in left the road and rolled over. The plaintiff was not wearing a seatbelt and was seriously injured. The plaintiff sued the driver, dairy farm and the auto manufacturer for negligence. The plaintiff also sued the State and the County based on the dangerous condition of the road where the accident occurred (the road was under construction). The dairy moved for summary judgment on the plaintiff’s respondeat superior claim on the basis that the driver was not acting within the scope of employment when the accident occurred. The trial court granted the motion. The trial court also granted summary judgment for the diary on the issue of liability arising from ownership of the vehicle. The plaintiff was, however, able to recover statutory damages from the driver. On appeal, the appellate court determined that fact issues remained on the respondeat superior claim. Though the worker and the plaintiff were returning from a family function, the driver was on call 24/7 to respond to issues at the dairy farm. In addition, the appellate court determined that a fact issue remained as to whether the worker, was acting within the scope of his employment and benefitting the dairy farm at the time of the accident. The appellate court remanded the case. Moreno v. Visser Ranch, Inc., No. F075822, 2018 Cal. App. LEXIS 1194 (Cal. Ct. App. Dec. 20, 2018).

Posted December 31, 2018

Aerial Application of Ag Chemicals Not Inherently Dangerous Activity. This case involves a dispute involving alleged damage to the plaintiffs’ trees caused by chemicals that allegedly drifted during aerial application. The plaintiffs attempted to hold both the aerial applicator and the landowner that hired the applicator. The plaintiffs claimed the landowner was vicariously liable for the applicator’s actions because aerial spraying of burndown chemicals is an "inherently dangerous activity." The trial court granted the defendants’ motion for Judgment as a Matter of Law on the plaintiff's trespass claim, but the remaining issues were left for the jury to resolve.  The jury returned a verdict in favor of the defendants on the negligence and negligence per se claims. The plaintiffs filed a motion for a new trial, arguing the verdict was against the weight of the evidence; that the trial court erred in excluding evidence; and that the trial court erred in granting the defendants’ Motion for Judgment as a Matter of Law. The trial court, however, denied the plaintiff’s motion for a new trial. On appeal, the appellate court affirmed. The appellate court determined that the jury’s verdict was not against the weight of the evidence, and that the aerial application of herbicides was commonplace and not inherently dangerous. In addition, the appellate court noted that the defendants’ evidence was that the herbicides did not actually drift onto the plaintiffs’ property and that the applicator complied with all label requirements and sprayed during optimal conditions. The appellate court also determined that the trial court had ruled properly on evidentiary matters and that the plaintiff had not proven the alleged monetary damages to the trees properly. The appellate court also upheld the trial court’s denial of the plaintiff’s motion for a new trial. Keller Farms, Inc. v. Stewart, No. 1:16 CV 265 ACL, 2018 U.S. Dist. LEXIS 210209 (E.D. Mo. Dec. 13, 2018).

Posted December 8, 2018

Motorist Fails to Establish Cow Owner Negligent For Escaped Cow. The defendants own and graze cattle on a tract that is partially fenced by both the Colorado Department of Transportation (CDOT) and the defendants. However, there are unfenced areas where cows may exit the property and wander on to other property, including the highway. This unfenced area is located near natural barriers such as steep hill grades. The plaintiff was a passenger in a vehicle traveling southbound on the adjacent highway when the vehicle struck the defendant’s cow. The cow had also recently been hit in a separate, unrelated automobile collision. The plaintiff was severely injured in the accident and sued the defendant for negligence in allowing the cow to escape its enclosure. The trial court jury rendered a verdict for the defendant and the plaintiff motioned for a new trial claiming that no reasonable jury could conclude that the defendant was not negligent. The plaintiff relied on expert testimony of a livestock handling specialist that the containment of the animals was not proper. In addition, the plaintiff relied on lay testimony of other ranchers to bolster the claim that “general ranching industry standards” require complete fencing around cattle pastures, particularly near highways. The defendant countered that he offered more than sufficient, competent evidence from which the jury could have reached its verdict. The defendant also focused on the absence of evidence, pointing out that there was no direct evidence offered establishing where the cow at issue came from or its path to the highway. The defendant pointed out that the jury heard evidence that the plaintiff could not establish how the cow escaped its enclosure, and that the defendant had periodically checked the area to ensure that no cows were escaping, and routinely maintained existing barriers to the extent necessary if they proved insufficient to retain the livestock. The trial court judge agreed with the defendant, noting that there was more than sufficient evidence that a jury could have relied on to determine that the defendant was not negligent. The trial court did concede that the plaintiff correctly pointed out that there was countervailing evidence of negligence and insufficient fencing, but the court pointed out that it may not reweigh the evidence, consider the credibility of the witnesses, or substitute its judgment for the jury's. Regardless of where the cow escaped, the court determined that there was sufficient evidence that the defendant’s actions, even if ultimately unsuccessful in containing the cow, were reasonable. Thus, the plaintiff’s motion for a new trial was denied. Bryant v. Reams, No. 16-cv-01638-NYW 2018 U.S. Dist. LEXIS 192192 (D. Colo. Nov. 9, 2018).

Posted November 25, 2018

Shrubbery On Property Line Does Not Constitute A “Spite Fence.”  The defendants planted some plants and shrubs in the front yard of their home. Their neighbors, the plaintiffs, sued on the basis that the plants and shrubs caused them “mental pain and suffering.” Their complaint sought damages and preliminary and permanent injunctive relief requiring the removal of the plants and shrubs or to restrict their growth and height so that the plaintiffs’ view of the ocean and surrounding areas was not blocked. The defendants motioned to dismiss the case on the basis that the complaint failed to allege a violation of any legally cognizable right. The trial court dismissed the case. The appellate court noted that the plaintiffs’ only allegation of harm was that, if allowed to grow, the plants and shrubs will obstruct their view across the defendants’ property at some undetermined future date. The plaintiffs claimed that this potential future “harm” gave them a viable cause of action for a “spite fence” or nuisance. The appellate court stated that the plaintiffs had no common law or statutory right to an unobstructed view across their neighbors’ property. Nor did they have a right to dictate the type or placement of the defendants’ shrubs. In support of their claim, the plaintiffs cited the only reported Mississippi case concerning a “spite fence.” In that case, the court ordered the removal of a fourteen-foot-high "spite fence." That court relied on a treatise that defined a "spite fence" as "a structure of no beneficial use to the erecting owner or occupant of the premises but erected or maintained by him solely for the purpose of annoying the owner or occupier of adjoining property.” In this case, however, the appellate court pointed out that because that case was a 5-5 decision there remained no precedent for a “spite fence” claim under Mississippi law. Moreover, the appellate court declined to recognize a new cause of action for a “spite fence” in a case that did not even involve a fence. The appellate court also pointed out that the plaintiffs’ complaint failed to state a claim for the additional reason that it failed to allege that the “plants and shrubs” actually obstructed their view. The complaint merely asserted that, if allowed to grow, the shrubbery will obstruct their view at some unspecified point in the future. Thus, the appellate court held that the plaintiffs’ complaint failed to state a claim upon which relief could be granted and affirmed the trial court decision. Blackwell v. Lucas, No. 2017-CA-01492-COA, 2018 Miss. App. LEXIS 582 (Miss. Ct. App. Nov. 20, 2018).

Easement Holder Owes Damages For Damages to Crops and Farmland. The plaintiff leased farm ground for sugar cane and soybean production. The land owners of the property entered in to an easement agreement with the defendant power company, so that the power company could build new power lines. The plaintiffs were not a party to this easement agreement between the defendants and the land owners. The defendant power company contracted with the defendant construction company to install the power lines. During the construction of the new power lines, crops were damaged. The plaintiffs sued for economic damages and remediation expenses incurred as a result of the construction operations. The petition relied upon language in the easement agreement where the defendant power company agreed to "pay for any and all damages to property or crops caused [by its] activities." All parties agree that 6.6 acres of planted cane and 1.5 acres of first stubble cane were destroyed within the right-of-way. The plaintiff claimed that 15 acers outside the right-away was damaged but did not specify how that damage was caused. Before trial, the defendants moved for declaratory relief to be entered for the cost or investment (gross value) versus market (net value), for loss of growing crops. This motion was withdrawn when the plaintiff clarified that its complaint was based in negligence rather than on contract law. At trial, the defendants moved for involuntary dismissal claiming that the plaintiffs failed to prove negligence or damages. Each party presented expert witnesses to evaluate the damages. The plaintiff’s witness assessed the damages as, “(1) $63,755.00 for right-of-way mitigation efforts; (2) $36,750.00 for land leveling; (3) $85,121.00 for crop damages on the right-of-way; (4) $82,608.00 for crop damages off the right-of-way; (5) $49,572.00 for tissue culture seed replacement; and (6) $252.00 for soybean losses.” The defendants’ witness stipulated damages at $30,000. The trial court entered a judgment in favor of the plaintiff for $38,000. The plaintiffs appealed the damage award amount and the denial of a new trial, and the defendants claimed that the trial court erred in denying their motion for involuntary dismissal and judgment. The appellate court affirmed the damage award of $38,000, noting that the plaintiffs did not present any evidence to discredit the defendants’ witness and the testimony was not internally inconsistent. The appellate court also determined that the denial of the motion for involuntary dismissal was proper because the defendants agreed to “pay for any and all damages to property or crops.” The appellate court held that here was plenty of factual and legal issues that needed settled, thus a dismissal would not have been appropriate. Lanie Farms, Inc. v. CLECO Power, LLC, 18-285 2197 (La. Ct. App. Nov. 7, 2018).

Posted November 3, 2018

Federal Law Preempts Kansas Train Roadway Blockage Law. Burlington Northern Sante Fe Railway (BNSF) operates trains through Bazaar in Chase County Kansas. At issue were two railroad crossings where the main line and the side lines crossed county and town roads. The side line is used to change crews or let other trains by on the main line. Early one morning, the Chase County Sherriff received a call that a train was blocking both intersections. The Sherriff arrived on scene two hours later and spoke with a BNSF employee. This employee said that he was checking the train but did not state when the train would move. The Sherriff then called BNSF three times. The train remained stopped on both crossings for approximately four hours. The Sherriff issued two citations (one for each engine) under K.S.A. 66-273 for blocking the crossings for four hours and six minutes. K.S.A. 66-273 prohibits railroad companies and corporations operating a railroad in Kansas from allowing trains to stand upon any public roadway near any incorporated or unincorporated city or town in excess of 10 minutes at any one time without leaving an opening on the roadway of at least 30 feet in width. BNSF moved to dismiss the citation, but the trial court rejected the motion. During the trial, many citizens presented evidence that they could not get to work that day and a service technician could not reach a home that did not have hot water and was having heating problems. BNSF presented train logs for one of the engines. These logs showed that one engine was only stopped in Bazaar for 8 minutes to change crews and was not in Bazaar at 9:54 a.m. The Sheriff later conceded that he might have mistaken the numbers on the engines for the citations. There were no train logs for the other engine. BNSF also stated there could be other alternatives from blocking the crossings but uncoupling the middle of the train would be time consuming and unsafe. The trial court ruled against BNSF and entered a fine of $4,200 plus court costs. On appeal, BNSF claimed that the Interstate Commerce Commission Termination Act (ICCTA) and Federal Railroad Safety Act (FRSA) preempted Kansas law, and that the evidence presented was not sufficient to prove a violation of Kansas Law. The appellate court agreed, holding that the ICCTA, by its express terms contained in 49 U.S.C. 10501(b), preempted Kansas law. While the appellate court noted that the Kansas statute served an “admirable purpose,” it was too specific in that it applied only to railroad companies rather than the public at large. Also, the statute had more than a remote or incidental effect on railway transportation. As a result, the Kansas law infringed on the Surface Transportation Board’s exclusive jurisdiction to regulate the railways in the United States. The court noted that the Surface Transportation Board was created by the ICCTA and given exclusive jurisdiction over the construction, acquisition, operation, abandonment, or discontinuance of railroad tracks and facilities. In addition, the appellate court noted that the Congress expressly stated that the remedies with respect to regulation of rail transportation set forth in the ICCTA are exclusive and preempt other remedies provided under federal or state law The appellate court did not consider BNSF’s other arguments. State of Kansas v. Burlington Northern Sante Fe Railway Company, No. 118,095, 2018 Kan. App. LEXIS 63 (Kan. Ct. App. Nov. 2, 2018).

Posted October 14, 2018

Immunity of Equine Activity Act Applied. This case involves two separate incidents, where the plaintiffs assert that their claims are viable under an exception to the general immunity of the state (WI) equine activity statute. One plaintiff sued the defendant, a horse stable, for an accident that occurred on one of the defendant’s trails. On the day of the ride, the stable owner asked the plaintiff if she had ever ridden before. The plaintiff, in her mid-sixties said that she did not remember ever riding. As a result, the defendant gave her a horse usually ridden by children with no experience. The plaintiff was not given a helmet or any additional instructions. During the ride the plaintiff told the defendant that she could not reach the reins and the defendant stated that it was ok, the horse knew his way. Later a horse kicked at the plaintiff’s horse and the plaintiff fell off the horse, sustaining head, back, and rib injuries. The other plaintiff was riding her own horse at a lesson in the defendant’s arena. Another rider came in and was instructed to jump one of the fences in the arena. The other horse instead took off and collided with the plaintiff and her horse. The plaintiff sustained several leg injuries. Both plaintiffs claimed that their accidents fall within the statutory exception in the WI equine activity statue. The statue generally provides immunity for a horse owner, but does not apply when the horse owner “[p]rovides an equine to a person and fails to make a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided based on the person's representations of his or her ability.” The first plaintiff also claimed that her accident was within an exception to the statute where the defendant “[a]cts in a willful or wanton disregard for the safety of the person.” Each plaintiff lost at the trial court, and both appealed. On appeal, the appellate court affirmed the award of summary judgment in one case, and dismissed the other case. With respect to the plaintiff that rented a horse, the appellate court held that the equine activity statute applied to provide immunity to the defendant. The defendant was not required to test the plaintiff’s riding ability, and did not otherwise act in willful or wanton disregard to the plaintiff’s safety. As for the other plaintiff, no exception to the immunity of the equine activity statute applied because the plaintiff supplied her own horse. Dilley v. Holiday Acres Props., Nos. 17-2485, 17-2970, 17-3289 (7th Cir. Sept. 25, 2018).

Posted October 13, 2018

Equine Activity Immunity Statute At Issue. The plaintiff was severely injured in a horseback riding accident. At the time of the accident, she was thirteen years old, had been riding horses for eight years, and had been taking weekly riding lessons from the defendant, an expert equestrian, for almost two years. Approximately once each seek, the plaintiff went for a “free ride”—a ride that did not involve a lesson. On those occasions the defendant was not always present, and no one was assigned to supervise the plaintiff. The day before the accident the plaintiff texted the defendant to arrange a lesson for the following day. The defendant texted the plaintiff that, although she would not be present at the farm on the following day, the plaintiff had permission to take a free ride on a horse that the plaintiff had ridden without incident on at least two occasions. The next day after riding the horse for about 30 minutes the plaintiff fell to the ground as she tried to dismount and was seriously injured when the horse subsequently stepped on her. The plaintiff sued, and the defendant moved for summary judgment on the basis that the equine immunity provisions set forth N.H. Rev. Stat. §508:19 barred the plaintiff’s negligence claim. The plaintiff then filed a cross-motion for partial summary judgment, arguing that the plaintiff’s injuries were not caused by an “inherent risk” of horseback riding and, therefore, that the defendant was not immune from liability. Alternatively, the plaintiff argued that even if the statute applied, a jury trial was necessary to resolve issues of material fact regarding the statutory exceptions in N.H. Rev. Stat. §508:19. The trial court entered summary judgment for the defendant, denied the plaintiff’s cross motion, and also denied the plaintiff’s motion for reconsideration. On further review, the appellate court held that the statute clearly operated “to shield persons involved in an equine activity from liability for negligence claims related to a participant’s injuries resulting from the inherent risks of equine circumstances.” The appellate court also determined that it didn’t have to decide whether the defendant’s physical absence and inability to supervise the plaintiff at the time of the accident placed the accident outside of the risks inherent in equine activities, because under RSA 508:19, I(f)(5) a failure to take “corrective measures” was relevant only when the participant was negligent and that negligence can be reasonably foreseen, which was not present in the case. The court also determined that there was no evidence to support the plaintiff’s argument that the defendant’s failure to supervise the plaintiff amounted to willful or wanton disregard for the plaintiff’s safety. Consequently, the appellate court held that the trial court did not err in holding that the defendant was entitled to immunity under N.H. Rev. Stat. §508:19. As such, the decisions of the trial court were affirmed. Franciosa v. Hidden Pond Farm, Inc., No. 2017-0153 2018 N.H. LEXIS 174 (N. H. Sup. Ct. Sept. 21, 2018).

Posted September 30, 2018

Livestock Owner Not Necessarily Responsible For Injuries In Car/Animal Accident. The plaintiffs sustained injuries as the result of a collision on a county highway. The plaintiffs sued the defendant for negligently letting his horse escape its enclosure, thereby causing the accident. The defendant owned five horses, but claimed it was not his horse that was involved in the accident with the plaintiffs’ vehicle. At trial, the evidence revealed that on the morning of the accident the defendant’s horses were secured in their pasture behind a well-maintained four-strand barbed-wire fence. The evening of the accident, the defendant’s sister called the defendant to notify him that she had a horse in the next-door backyard. In addition, the defendant’s daughter told the defendant that she had put two horses back in their correct pasture. In addition, the defendant’s brother-in-law testified that two horses were outside the gate to the pasture and that he had put them back in. The county Sheriff went to the defendant’s premises that same evening and reported that all of the defendant’s horses were in their proper enclosure. No injured or deceased horse was ever found after the accident, and the Sheriff and a veterinarian testified that had a horse been involved in the accident it would have been seriously injured or killed based on the damage to the plaintiffs’ vehicle. The trial court granted summary judgment to the defendant and dismissed the case. On appeal, the appellate court affirmed, noting that the stock law of the county at issue required the plaintiffs to prove more than the defendant’s ownership of the animal (allegedly) involved in the accident. Such proof, the appellate court noted, needed to be in the form of showing that the defendant had “permitted” his horses to run at large, such as leaving gates open. Dearbonne v. Courville, No. 09-16-00440-CV, 2018 Tex. App. LEXIS 7536 (Tex. Ct. App. Sept. 13, 2018).

Posted September 29, 2018

Cow/Car Accident Case Proceeds to Trial.  The plaintiff and her family were driving on a state highway at night when the vehicle they were riding in struck a bull. As a result of the collision, the car went off the road, flipped over and ended up upside down in a creek. A family member drowned in the creek. The plaintiff sued the bull’s defendant for the “negligent, reckless, and careless control of the bull.” The plaintiff sought economic, non-economic and loss of consortium damages. The defendant claimed that he did not own the bull. The defendant moved for summary judgment on the basis that the plaintiff could not prove ownership or control of the bull. The trial court granted summary judgment and the plaintiff appealed. The appellate court reversed and remanded the case for trial. The appellate court determined that facts remained in question as to whether the defendant owned the bull that was involved in the accident. The appellate court noted that the defendant did not brand, ear-tag, or otherwise specifically identify his livestock. In addition, the appellate court noted that the accident occurred near the defendant’s farm and that the defendant had a reputation for failing to maintain his fences and having livestock escape their enclosure, including the night of the accident. Sherrer, ex rel. Lilly S., v. Cleghorn, No. M-2018-00023, 2018 Tenn. App. LEXIS 554 (Tenn. Ct. App. Sept. 20, 2018).

Posted September 23, 2018

Livestock Owner Liable For Collision With Bull. The plaintiff was injured when the vehicle he was driving collided with a bull on a state highway. The plaintiff filed sued the defendant, the owner of the bull and the land from which the bull escaped, alleging the defendant was negligent in various ways. The trial court granted the defendant’s motion for summary judgment. The plaintiff appealed, claiming that the defendant had a statutory duty under two provisions of Chapter 143 of the Texas Agriculture Code: §143.071 and §143.102. The primary dispute on appeal was whether defendant also owed the plaintiff a statutory duty under the stock law provisions of Chapter 143. The stock law provisions refer to the provisions of Chapter 143, subchapter D, that authorize a county to adopt a stock law and opt into additional statutory regulations regarding certain classes of animals roaming at large. If a county adopts a stock law, then "a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held." The defendant argued that the statutory duty imposed by the stock law provisions did not apply for two reasons: (1) the plaintiff did not properly prove that Wilson County actually adopted a stock law; and (2) the stock law provisions conflict with §143.102 and Chapter 143 provides that §143.102 prevails in case of a conflict. In his summary judgment response, plaintiff produced a 2010 Proclamation by the County Judge of Wilson County. The 2010 Proclamation contained the County Judge's order showing the results of the election to adopt a local stock law prohibiting cattle from running at large throughout Wilson County. The appellate court determined that this order is prima facie evidence that the requirements of this chapter have been complied with in relation to presenting the petition, ordering the election by the commissioner’s court, giving notice, holding the election, counting and returning votes, and declaring the results. As such, the appellate court held that plaintiff properly proved that Wilson County adopted the stock law. In addition, the appellate court held that the stock law provisions and §143.102, when their meanings are ascertained from a plain language reading of their statutory terms, do not conflict. Section 143.102 prohibits individuals from knowingly permitting an animal to traverse or roam at large, unattended, on the right-of-way of a highway. The stock law provisions authorize counties to adopt a stock law and opt into an additional set of statutory regulations. No part of the stock law provisions authorize individuals to knowingly permit an animal to traverse or roam at large, unattended, on the right-of-way of a highway. They also do not allow a county to authorize individuals to knowingly permit an animal to traverse or roam at large, unattended, on the right-of-way of a highway. Consequently, the court held that, facially, there was no conflict between the stock law provisions and §143.102. The appellate court also concluded that "knowingly" in §143.102 is not violated if a person who is responsible for controlling a bull merely should have known the bull had been permitted to traverse or roam at large, unattended, on a highway's right-of-way. The plaintiff relied on the fact that the defendant knew cattle had escaped on a previous occasion when the gate was left open; and that the defendant always kept the gate locked because he believed cattle would get out if the gate was not locked but used a latch, and did not use the lock, on the date of the accident. However, the appellate court determined that this evidence did not support a reasonable inference that the defendant was aware his bull had broken the latch and wandered onto the highway. Therefore, the court held that plaintiff failed to produce summary judgment evidence sufficient to raise a genuine issue of material fact that the defendant knowingly permitted the bull to traverse or roam at large, unattended on a highway. Consequently, the appellate court affirmed the trial court’s judgment as it related to the plaintiff’s allegation that the defendant was negligent by violating §143.102. However, the appellate court also determined that the statutory duty in the stock law provisions of chapter 143 is that "a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held." The appellate court held that this provision, which did not include a knowing requirement, may be breached by evidence showing the person was at fault in allowing any mentioned animal to run at large. Therefore, because the plaintiff produced evidence showing the defendant failed to take reasonable measures to ensure his cattle would not escape, such as locking the gate and using a cattle guard, the plaintiff’s evidence showed that there was a sufficient risk of cattle escaping that the defendant believed it necessary to keep the gate locked. As such, the appellate court reversed the remainder of the trial court’s decision. Garcia v. Pruski, No. 04-17-00632-CV 2018 Tex. App. LEXIS 6974 (Tex. Ct. App. Aug. 29, 2018).

Farm Animal Activity Act Did Not Shield Ranch Owner From Potential Liability For Death of Ranch Hand. The defendants operate a cattle ranch. The decedent had worked on the ranch in some capacity since 2005. In 2007 or 2008, the decedent moved to the ranch to work full time to work and feed the cattle. In late 2013, one of the defendants asked the decedent to move 20 head of cattle to another pasture. A bull had been with these cows for a few months. The decedent had moved all these cattle except a bull, cow, and a calf, before he was found dead. His death was determined to be caused by blunt force trauma from the bull. The defendants did not have workers’ compensation insurance for any of their employees. The family of the decedent sued for wrongful death. The defendants moved for summary judgment and the trial court granted the motion. The plaintiffs appealed, and the appellate court reversed. The appellate court noted that under the Texas Farm Animal Activity Act (FAAA), the defendants would be immune from liability for injuries (or death) to covered persons caused by animals. A covered person is one who is a “participant” in a covered activity. The appellate court held that “participant” meant persons who paid entry fees to engage with livestock in such things as livestock shows, petting zoos, etc. The FAAA, the court held, did not apply to paid ranch hands that are employees on ranches. Thus, the defendants were not immune from suit under the FAAA for the decedent’s death. The appellate court determined that, based on the facts, the decedent was an employee on the ranch rather than an independent contractor. Consequently, the decedent’s family might be entitled to Workers’ Compensation benefits under state law because the defendants employed at least three people to work on the ranch. The appellate court remanded for a determination of the defendants’ duty of care, the scope of the employment and causation. Rodriguez v. Waak, No. 01-17-00755-CV, 2018 Tex. App. LEXIS 6596 (Tex. Ct. App. Aug. 21, 2018).

Posted September 15, 2018

Fact Issues Remain in Case Involving Trail Ride on State Ground. The defendant organized a charity horse ride at a state park. Every participant had to pay an entry fee and sign a waiver to ride. The wavier stated: “[The defendant] is not responsible for any person, horse or your property during the trail ride. Please secure your belongings and trailer. Participate at your own risk. Rider cannot participate unless this form is filled out completely and SIGNED.” The defendant paid the state $125 to hold the event at the state park. The plaintiff and her party checked in for a trail ride, but skipped the photo booth and the second check-in right before the trail. Upon initially checking in, the defendant told the plaintiff to make the subsequent stops. The plaintiff and friend proceeded down the trail until they came upon a group that was blocking the trail because of a difficult horse. The plaintiff and friend waited for the issue to resolve, but the plaintiff’s horse slipped off the trail and onto culvert. Ultimately, the plaintiff fell off of the horse, landing in a stream under the horse. The plaintiff sustained injuries to her shoulder, scapula, and ribs. A park ranger overheard a third party say to the defendant, while awaiting medical treatment, "Now can we get rid of that [expletive] horse?" The plaintiff sued the organizers and the state for her injuries. Both the defendant and the state moved for summary judgment. The court denied the both motions, determining that sufficient issues of fact remained concerning the application of the state recreational use statute, the assumption of risk defense and general negligence. Garvine v. Maryland, Civil Action No. JMC-17-01013, 2018 U.S. Dist. LEXIS 149849 (D. Md. Sept. 4, 2018).

UCC Governs Most Claims For Faulty Grain Bin. The plaintiff entered into a contract with the defendant manufacturer/contractor for installation of the defendant’s grain bin in late 1999-early 2000. The defendant did all of the work, including building the foundation. The defendant engineer was also retained to sign-off on the project as well. By January 2000, cracks were found in the stem walls. Many more issues, such as tears, followed in 2000-2003. The defendant engineer and defendant contractor worked together on making sound repairs. A tear happened again in 2013, which lead to the collapse of the entire grain bin. In 2014 the plaintiffs sued, and all of the parties filed for summary judgment. The court granted summary on a handful of different issues for each of the parties. However, claims remained left against the defendant contractor and defendant contractor for negligent misrepresentation regarding the repairs and violation of the building code. The defendant engineering firm also had a claim of professional negligence against it. In addition, the court granted the plaintiff’s motion for sanctions against the defendant engineering firm. The court first determined that the Uniform Commercial Code governed the dispute which eliminated the plaintiff’s negligence, strict products liability, and post-sale duty to warn claims. The defendants did presumptively establish the affirmative defense from the statute of repose, which had the effect of shifting the burden of proof to the plaintiffs to show material facts that proved an exception to the statute. With the burden on the plaintiffs, they failed to show issues of material fact on the claims of statutory deceit and deceptive trade practices, so these claims were dismissed. But the plaintiffs did meet the burden for the claims of willful and wanton misconduct by the defendant contractor and contractor. Also, the plaintiff did not have the burden under the statute of repose to show issues of fact on claims for professional negligence. Thus, that claim against the defendant engineer remained. The court was quick to point out there were no issues with the warranty between the parties, so the claims under the warranty should be dismissed as well. The court did find that the plaintiff was prejudiced by the spoliation of documents by the defendant engineer. If the claims against the defendant engineer makes it to trial the court should give the jury an adverse inference instruction, which allows the jury to draw inferences about the lost documents not in a light favorable to the defendant. The court may also impose spoliation claims so long as the claims are not dismissed. The negligent misrepresentation, violation of the building code, and professional negligence claims respectively survive for litigation further. South Dakota. Wheat Growers Association v. Chief Industries., No. 1:14-CV-01008-CBK, 2018 U.S. Dist. LEXIS 145914 (D. S.D. Aug. 28, 2018).

Posted September 1, 2018

Injured Driver in Car/Cow Accident Can’t Prove Cow Owner Negligent. The plaintiff sued to recover damages for injuries she sustained in a collision between her car and the defendant’s cow. The defendant obtained a grazing permit from the Bureau of Land Management (BLM) for an area between mileposts 132 and 140 on both sides of a state highway and the cow/car collision occurred on the state highway between those mileposts. In late October 2014, the defendant transported a heard of approximately 450 cows to this grazing area. The defendant claimed that the grazing area is "open range” under state law and that the county had designated the grazing area as a "fence-out" area. The plaintiff disagreed that the grazing area was open range. The defendant inspected the fences, fence posts and gates in the grazing area at the time the cattle arrived and every two to three days thereafter. The fences are 4-line barbed wire with steel posts. Because the grazing area is on BLM land, it is open to public use and the defendant is prohibited from locking the gates. The accident occurred around 8:20 p.m. in dusk conditions. The cow was killed and the plaintiff "suffered severe damages and personal injuries, including ... pain and suffering, emotional distress and mental anguish, scarring and disfigurement, and other non-economic damages ....”. The defendant testified that he last inspected the fences, fence posts and gates between mileposts 132 to 140 around 4:00 p.m. on the day of the accident. Everything was in good condition and no cows were outside of the fenced area at that time. The defendant was called following the accident and arrived at the scene about 8:30 p.m. After arriving, the local county deputy and the defendant inspected the fences, fence posts and gates between mileposts 132 to 140. They found a cut in the fence about 3/4 of a mile north of the accident site. However, there was no verifiable evidence in the record regarding how the fence was cut. The defendant asserted "that someone had cut the fence with wire cutters.” The plaintiff sued based on negligence and res ipsa loquitur theories. The defendant motioned for summary judgment. The court rejected the res ipsa loquitur claim, noting that state law and state common law required the plaintiff to establish a prima facie case for negligence. In addition, the court agreed with the argument made in the defendant’s motion for summary judgment that the plaintiff failed to offer any direct or independent evidence supporting her claim that he was negligent in allowing the cow to stray from the fenced grazing area., The court granted the defendant’s motion for summary judgment. Stockton v. Holyoak, No. 2:17-cv-94 BCW 2018 U.S. Dist. LEXIS 143252 (D. Utah Aug. 21, 2018).

Posted August 28, 2018

Lack of Specifity Dooms Anticipated Nuisance Claim.  Private land owners sued the defendant, an energy company, in an attempt to stop the building of a frac sand mine adjacent to their tracts based on the theory of anticipatory nuisance. The defendant moved to dismiss, and the trial court granted the defendant’s motion to dismiss. On appeal, the appellate court affirmed. The appellate court determined that if the plaintiffs’ claims were true they would not be able to prove any actionable issues of anticipated private nuisance. The claims alleged by the plaintiffs did not provide any specified facts about future harm which would be a result of the defendants proposed mine or actions. The claims were so broad and general, the court noted, that no case could ever be heard properly. Krueger v. Allenergy Hixton, LLC, No. 2017AP1802, 2018 Wisc. App. LEXIS 689 (Wisc. Ct. App. Aug. 9, 2018).

State Can’t Be Sued For Damages By Trespassing Hunters. Private landowners within a state forest owned land completely surrounded by public land. The state manages the hunting on private and public lands. Deer hunting with dogs had been permitted on the state forest ground since the 1950’s. Dogs are used to flush out and trail deer. This practice sometimes took the dogs and hunters from the public land onto the land of the private landowners. The trespasses escalated to destruction of property, arson fires, and physical threats to the private landowners. The state attempted to curtail the trespasses by shortening the hunting season, limiting the hunting area, and installing fences. The state also allowed the game wardens to respond to trespassing calls by the private landowners and required hunting dogs to wear corrective collars as a condition to receive a hunting permit. Ultimately, the landowners sued the state for the trespasses by the hunters and the trial court entered an injunction ordering the state “to abate the nuisance of the deer hunting dogs from trespassing onto the property of the [private landowners], and of the deer dogs and their hunters from interfering with the [private landowners’] right to the quiet enjoyment of their private property.” The state appealed. The appellate court reversed and held that the state was entitled to summary judgment on grounds of sovereign immunity because the private landowners did not plead the necessary elements to allege a valid constitutional takings claim. The appellate court also held that the state was entitled to summary judgment on the private landowners’ nuisance claims because the state did not owe them a duty and because the authority to hunt on state ground was a discretionary function of the state. The appellate court also held that the injunction violated the separation of powers doctrine and was overly broad. Florida Fish & Wildlife Conservation Commission v. Daws, No. 1D16-4839, 2018 Fla. App. LEXIS 11561 (Fla. Ct. App. Aug. 16, 2018).

Posted August 11, 2018

No Duty To Trim or Remove Trees or Vegetation at Rural Intersection. The decedent in a traffic accident with another drive at an uncontrolled rural intersection that the defendant’s property abutted. Trees located on the defendant’s land abutting the southeast corner of the intersection created a blind spot. The defendant had purchased the property about five years before the accident, and the tree growth remained largely unchanged during that timeframe. The plaintiff, as administrator of the decedent’s estate, filed a wrongful death action against the defendants claiming that the overgrowth of trees and vegetation obstructed the view at the intersection and contributed to the accident. The plaintiff claimed that the defendants owed a common-law duty to passing drivers to correct a natural condition on their property that affected road visibility at the rural intersection. The plaintiff settled with the other driver and the county. The defendant moved for summary judgment on the basis that they owed no duty to the plaintiff to remove trees or other vegetation on their property. The trial court agreed and granted the motion. The appellate court affirmed based on Kansas caselaw over the past 100 years. The appellate court also noted that other states had found no landowner duty under similar circumstances. On further review, the Kansas Supreme Court affirmed. The Supreme Court noted the traditional rule that the owner of land is under no affirmative duty to remedy conditions of purely natural origin upon the land. Instead, the Court noted, the duty is upon the motoring public to observe obstructions to view and to exercise reasonable care for their own safety and protection. The Court noted that the Restatement (Second) of Torts §363(1) also recognizes the traditional rule, and that Kansas public policy did not impose tort liability on the landowner in such situations. The Court refused to apply the Restatement (Third) of Torts approach to impose a duty of reasonable care if the owner or possessor knows of the risk created by natural conditions on the land or if the risk is obvious. The Court also noted that sound public policy grounded its decision, noting that in Kansas tall crops and natural conditions often obstruct a driver’s view at a rural intersection, and that rural landowners often have many miles of property to maintain. In addition, the Court noted that statutory law places the responsibility on the state or local government to determine whether a traffic hazard exists. The Court noted that a different rule might be appropriate in urban settings. Also, the Court noted that there was no indication that any part of the trees or overgrowth at issue extended outside the defendant's property bounds. Manley v. Hallbauer, No. 115,531, 2018 Kan. LEXIS 374 (Kan. Sup. Ct. Aug. 10, 2018).

Property Line Dispute Involves Numerous Issues. The defendants built a fence and cut some trees that were on the property boundary. The plaintiffs objected to the location of the fence and the parties engaged in mediation. After mediation, the defendants removed the excess dirt from the plaintiff’s property and portions of the fence footing that were visible above ground. The defendants then proceeded to paint, “PULL YOUR WEEDS!” on one section of the fence that was visible to the plaintiffs. The words were written in white, ten-inch block letters. The plaintiffs then filed a complaint alleging private nuisance, trespass, timber trespass, spite fence, and damages to land and property. The defendants offered to remove the paint if the suit was dropped. But the plaintiff rejected the proffer stating, ‘If you were willing to do so voluntarily, … you could have removed the sign at any time for the past nine months. After enduring nine months of your shenanigans, [we] will not accept that meager proposal.” The plaintiffs moved for summary judgment based on the issues decided upon at the mediation. However, the court denied the motion and reserved the issues of damages and lawyers’ fees and costs for trial. At trial one of the plaintiffs testified that she was “shocked,” “horrified,” and “scared” when the [defendants] painted the “PULL YOUR WEEDS!” message on the fence. She stated that she “had real trouble sleeping that night” and no longer felt that she and her children were safe. She testified that before the painted message appeared, her family spent around 12 hours per week in her yard. After the message appeared, they spent less than an hour a week in the yard. She valued her use of the yard at $40 per day. She testified that the message was visible for 922 days. After the fence incident, the plaintiffs installed a security system that cost slightly over $1,000. There was no evidence submitted on the emotional distress claim. The trial court awarded the plaintiffs’ $10,673.22 on their timber trespass claim, but declined to award damages on any of the other claims. On appeal, the plaintiffs’ challenged the trial court’s ruling on the damages and attorney fees issue, claiming that they should have been awarded damages for loss of enjoyment, emotional distress and private nuisance. They also sought reimbursement for the cost of the installed security system as well as nominal damages to their property. While the appellate court affirmed the trial court, the appellate court determined that reasonable attorney fees should have been awarded based on an applicable statute. Milcic v. Estes, No. 76606-6-I, 2018 Wash. App. LEXIS 1798 (Wash. Ct. App. Aug. 6, 2018).

Dicamba Crop Damage Causation Issue Involved Fact Issues – No Interlocutory Appeal. Monsanto, and agrochemical and ag biotech company has been involved in litigation concerning its broad spectrum herbicide, Dicamba, and resulting drift damage to crops other than what it has been applied to. In the present litigation, Monsanto sought summary judgment by the trial court that Dicamba was not the proximate cause of the plaintiffs’ damages and that third party illegal spraying of Dicamba was an intervening or superseding cause. The trial court rejected Monsanto’s request, and Monsanto filed an interlocutory (interim) appeal on the issue of causation while other aspects of the trial continued. Specifically, Monsanto sought an order for interlocutory appeal “so it can ask the Eighth Circuit to hold as a matter of law . . . either (1) proximate cause must fail or (2) the third-party farmers’ illegal spraying of old dicamba was an intervening and superseding cause.” The appellate court noted that an interlocutory appeal requires three parts "(1) the order involves a controlling question of law; (2) there is substantial ground for difference of opinion; and (3) certification will materially advance the ultimate termination of the litigation." The appellate court held that Monsanto’s motion failed the first requirement. The controlling question of law component has two sub-parts – controlling law and question of law. While Monsanto satisfied the first sub-part as to controlling law because if the spraying was an intervening or superseding cause it would affect two other suits that involved the causation issue. Thus, any order by the court would be a controlling decision. However, as to the question of law sub-part, the court reasoned that questions of law do not require any sort of factual understanding to grant an order. Utilizing that bright line rule, the appellate court determined that Monsanto’s motion sought to have the court examine the facts to ensure the correct application of law. The causation issue could not ever be purely a question of law and the appellate court could not strip away the facts to solely look at the application of the law. Since there is not a pure question of law (e.g., each case had to be decided based on its own facts) to meet the controlling question of law requirement for an interlocutory appeal, the court did not analyze the other requirements for interlocutory appeal. Monsanto’s motion was denied. In re Herbicides, 2018 U.S. Dist. LEXIS 127532 (E.D. Mo. July 30, 2018).

Posted August 5, 2018

Recreational Use Immunity Statutes Apply To Injury In Common Area Of Urban Housing Development. Children were playing in a common area of a subdivision when a rotten tree fell on one of them causing severe injuries. A suit was filed to recover for the child’s injuries in which it was alleged that the subdivision developer, property owners’ association and the property management company were all responsible for failing to maintain and keep in good repair the common areas of the subdivision pursuant to a recorded Dedication of Servitudes, Easements and Restrictive Covenants (Restrictive Covenants). The suit also claimed that the defendants were also responsible for the custody of, and control over the rotten tree and knew or should have known that the rotten tree posed an unreasonable risk of harm to those in the common areas. The suit claimed that quarterly assessments were so that the defendants could meet its maintenance obligation of the common areas, and that quarterly dues paid were for the right to use the common areas for recreational purposes. The defendants filed motions for summary judgment. The trial court denied some of the motions for summary judgment and granted others. On appeal, plaintiff claimed that the design, placement, and maintenance of the common areas were for commercial profit and were limited to homeowners paying quarterly dues such that the immunity provided by the state recreational use statute did not apply. The appellate court disagreed, concluding that the children were engaged in a covered activity at the time of the accident and that the statute applied to areas that were also not open to the public. The court also determined that the collection of dues did not necessarily make a homeowners’ association a “commercial enterprise” under the statute. However, the appellate court reversed the grant of summary judgment to the extent it was granted on contractual claims associated with the maintenance contract between the defendants and the homeowners. Doyle v. Lonesome Development Co., No. 2017 CA 0787, 2018 La. App. LEXIS 1404 (La. Ct. App. Jul. 18, 2018).

Common-Law Negligence Claim Not Allowed In New York Dog Bite Case. The plaintiff sustained injuries when she was bitten by the defendants' dog inside the defendants' house. The plaintiff sued the defendant to recover damages for her injuries, alleging common-law negligence and strict liability. The defendant moved for summary judgment. The trial court denied the defendant’s motion, and the defendant appealed. The appellate court determined that because New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal, the trial court was correct in granting summary judgment to the defendant on the plaintiff’s common-law negligence cause of action. In addition, the appellate court determined that the defendant properly demonstrated that the dog did not have vicious propensities and that they neither would have known or should have known that their dog allegedly had viscous prosperities. Cintorrino v. Roswell, No. 2017-04856 2018 N.Y. App. Div. LEXIS 5355 (Jul. 25, 2018).

Stray Voltage At Issue in Case Involving Dairy Operation. The plaintiff’s dairy cows were experiencing health problems and contacted a veterinarian. In turn, the veterinarian suggested that the plaintiff contact an electrician that investigates stray voltage. The electrician found that the farm had stray voltage exceeding the defendant power company’s standards of one amp. The electrician suggested that the plaintiff request a neutral isolation from the defendant to separate the primary and secondary naturals, preventing any off-farm stray voltage from affecting the livestock. The defendant did so, and the cows’ health improved substantially. The plaintiff’s sued to recover economic losses to their dairy operation and, after a 12-day jury trial, the jury awarded the plaintiff $4.5 million dollars on the plaintiff’s negligence and nuisance claims. The jury also found that the defendant acted in a “… willful, wanton, or reckless manner…” thus activating treble damages under Wisconsin Code §196.64. The plaintiff moved for judgment on the verdict. The defendant made numerous post-trial motions - renewing their motions to dismiss and for directed verdict. In addition, the defendant moved for a new trial based on a jury instruction and the plaintiff’s attorney failing to disclose that one of the juror’s uncles had been hired by the attorney as an expert witness on another stray voltage case. The trial court granted the defendant’s motion for directed verdict on the damages issue, stating that the evidence was insufficient to conclude that the defendant had acted in the manner that the jury found. However, the trial court affirmed the jury’s negligence findings and denied the motion for a new trial. The plaintiff appealed the directed verdict on the damages issue and the defendant cross-appealed the jury verdict on the negligence findings. The appellate court affirmed and also noted that the defendant had failed to move for a mistrial on the conflict issue. Halderson v. N. States Power Co., No. 2017AP2176, 2018 Wisc. App. LEXIS 645 (Wisc. Ct. App. July 24, 2018).

Florida “Ag Gag” Statute At Issue. The defendant was charged with aggravated animal cruelty in violation of Florida Code §§828.12(2) and 777.011. The charges arose after the defendant was filmed while in the process of slaughtering pigs to be sold for meat by members of the animal rights organization Animal Recover Mission (ARM). The defendant and his co-defendants allegedly shot the pigs, and if the pigs did not immediately die, they drowned them in cauldrons. The defendant filed a motion to suppress the videos on the basis that they were obtained in violation of the prohibition against surreptitious recordings contained in Florida Code §934.06. The defendant argued that the events occurred on a private farm where he had a reasonable expectation of privacy. The ARM members, he asserted, lied about their true identities and purpose in order to enter the private property, and did not disclose that they were carrying recording devices. In response to the motion to suppress, the State argued that the pigs were sold and slaughtered on property that was open to the public. According to the State the property was “public” because a sign posted at the entrance of the property read "Animals for Sale," and the public was permitted to walk onto the property to purchase a slaughtered pig. The prosecutor proffered that the video recordings showed the defendants talking to other individuals who were on the property to purchase pigs. At the hearing on the defendant’s motion to supress, no testimony was taken and no evidence was admitted into the record. The trial court heard only arguments from the lawyers for the parties. Nevertheless, the trial court granted the motion to suppress. The State appealed. The appellate court determined that in order to prevail on his motion to suppress, the defendant must not only have had a subjective expectation of privacy, but also his expectation under the circumstances must have been one that society would accept as reasonable. In addition, the court determined that the expectation was not reasonable where the intercepted communication was made in an open, public area rather than an enclosed, private, or secluded area. The appellate court held that the trial court’s grounds for granting the motion to suppress would be acceptable if those grounds were supported by the record. However, the trial court’s key factual findings were not supported by competent substantial evidence simply because no evidence was taken. As such, the appellate court reversed the trial court’s decision and remanded the case for an evidentiary hearing. State v. Garcia, No. 3D16-1807, 2018 Fla. App. LEXIS 10302 (Fla. Ct. App. Jul. 25, 2018).

Posted July 28, 2018

Trespass But Not Waste Claims Allowed In Sale Of Timber By Neighbor. The plaintiff owned a tract of real estate to the east of, and adjacent to the defendant’s property. The land near the property line between the two properties was forested. There was a 60-foot right of way easement located on the western edge of plaintiff’s property, and a road was built on the easement. The plaintiff’s property line extended westward past the road about 8 feet at the north end and about 30 feet at the south end. The parties used the road to access their respective properties. The defendant hired a logging company (G & J) to remove some trees. The defendant told G & J that he owned the property up to the edge of the road and that all of the trees up to the edge of the road were his. Based on that representation, G & J cut and removed the trees up to the edge of the road, including trees on the plaintiff’s property. G & J sold the logs and split the proceeds with the defendant. The plaintiff accused the defendant of cutting trees on the plaintiff’s property and, as a result, the defendant had his property surveyed. The survey confirmed that the plaintiff’s property line extended into the area where the defendant had instructed G & J to cut trees. The plaintiff sued the defendant and G & J alleging timber trespass under the Tort Reform Act (TRA) (RCW 64.12.030) and waste under RCW 4.24.630. Specifically, the plaintiff alleged that the defendant “intentionally, recklessly or negligently trespassed upon [Plaintiff’s property] and cut trees.” The plaintiff and G & J entered into a settlement agreement under which G & J agreed to pay the plaintiff $75,000, assign all of its cross-claims against the defendant to the plaintiff, allow the plaintiff to use G & J's experts, and assist the plaintiff in prosecuting the assigned claims. The Plaintiff then filed a motion for partial summary judgment against the defendant. The defendant filed his own motion for summary judgment. The trial court denied the plaintiff’s partial summary judgment motion, and granted the defendant’s summary judgment motion, and dismissed all of the plaintiff’s claims against the defendant. The plaintiff filed a motion for reconsideration of the trial court's summary judgment dismissal, which was denied. On appeal, the appellate court determined that the TRA did not apply to intentional torts and thus did not apply to timber trespass. As such, the appellate court held that the trial court erred when it granted summary judgment dismissal of the plaintiff’s trespass claim against the defendant. In addition, the appellate court pointed out that the waste statute, RCW 4.24.630(1), did not apply in any case where liability for damages is provided under the timber trespass statute. The plaintiff also argued that the waste statute could apply in cases involving both damage to land and trees. However, the appellate court determined that there was no instance of waste, vandalism, or comprehensive property damage in this case. Thus, although the plaintiff also alleged damage to his landscape, that damage resulted from the same acts that constituted timber trespass. As such, the appellate court affirmed the trial court’s dismissal of the plaintiff’s waste claim. Porter v. Kirkendoll, No. 49819-7-II, 2018 Wash. App. LEXIS 1638 (Wash. Ct. App. Jul. 17, 2018).

Posted July 21, 2018

Right-To-Farm Law Amended. The North Carolina legislature, during its 2018 session, amended its right-to-farm law to bar nuisance actions against agricultural or forestry operations. Statutory exceptions exist for plaintiffs that legally possess the real property affected by the conditions that the plaintiff claims to be a nuisance; and the impacted property is located within one-half mile of the source of the alleged nuisance; and the action is filed within one year of the establishment of the ag or forestry operation, or within one year of the operation being fundamentally changed. “Fundamentally changed” does not include a change in ownership or size; and interruption of farming for a period of no more than three years; participation in a government-sponsored agricultural program; employment of new technology; and any change in the type of agricultural or forestry product produced. N.C. Gen. Stat. §106-701, amended by S.B. 711 (2018).

Fact Issues Remain Concerning Escaped Cattle. The defendant’s cattle escaped their enclosure and were involved in an automobile accident. The defendant claimed that the cattle broke through a closed pasture gate. The defendant testified that the fences were checked weekly and that the cattle had been in that particular pasture for at least a week. In addition, the defendant testified that he had been working the field between the pasture and the road that day, and the cattle were in the pasture the whole time. After returning the cattle to the pasture the defendant fixed a few wires on the gate. The defendant also noted that the cattle were uneasy, like they had been “spooked.” No photos were taken of the broken gate before the fix. There was no dispute that the cattle came though the field from the pasture. The plaintiff claimed that the defendant came to him in the hospital and apologized for leaving the gate between the pasture and the field open. There was also a statement by a passenger in the plaintiff’s vehicle claiming that he saw the cattle in the field and not in the pasture the morning before the accident. The trial court relied heavily on the defendant’s testimony, and granted for summary judgment for the defendant. The court determined that the defendant neither allow the cattle to be on the road nor knew that they were on the road. Also, the court reasoned that it was unforeseeable to the defendant that the cattle would escape because of the weekly fence checks. Thus, the cattle were not running at large and the defendant was not negligent in keeping the cattle fenced in. On appeal, the appellate court determined that there was an issue of genuine fact remaining with respect to where the cattle were before the accident and what was the cause of their escape. Thus, the trial court’s grant of summary judgment was reversed and the case remanded. Reasner v. Goldsmith, No. A17-1989, 2018 Minn. App. Unpub. LEXIS 578 (Minn. Ct. App. Jul. 9, 2018).

Alleged Smear Campaign Associated With Farm Lease Lacks Merit. The plaintiff leased farm land from the defendants and claimed that they willfully breached the agreement and unlawfully deprived him of possession and value of the hay crop he had previously seeded in early 2015. According to the plaintiff, the defendants then "went on a campaign to publicly smear him." This alleged campaign was the basis for the claims asserting conversion; publicity that unreasonably placed the plaintiff in a false light before the public; defamation; tortious interference with business relations; intentional infliction of emotional distress; and conspiracy. In addition, the alleged campaign to publicly smear the plaintiff was the basis for a separate court proceeding in which the plaintiff named others in the alleged conspiracy. The plaintiff also claimed damages for injuries allegedly caused by an October 1, 2015 news report aired by a local television station and a related report that the station published on its website. The story, entitled Comair Crash Victim's Farm At Center of Legal Battle, discussed the conspiracy lawsuit. The defendant stated the following in the news story that aired on WLEX: "I found out the house that once was worth a half-million dollars is worth zero balance right now. It's, completely destroyed.” The defendants moved for summary judgment based on the plaintiff’s failure to reply to discovery requests that resulted in no evidence to support the plaintiff’s claims. Additionally, the defendants claimed that the affidavit and documents attached to the plaintiff’s response to the summary judgment motion, were void of specific facts, contradicted his discovery responses, primarily addressed complaints against other people, and did not address the claims against the defendants. The defendant’s asked the court to deem the matters set forth in its requests for admissions as admitted under Rule 36(a) due to the plaintiff’s failure to respond to those requests. The court agreed, and pointed out that while the plaintiff took issues with how the story was written, the reporter or the news station was not a party to the litigation. In addition, even if the news story could be attributed to the defendants, the only evidence of their involvement with the story was a statement about the value of the house located on the property. It was undisputed that the house was once worth several hundred thousand dollars, but its value had been reduced to nothing. Consequently, the court determined that the plaintiff failed to present evidence from which a jury might return a verdict in his favor. His claims were based on speculation and allegations against persons who were not named as defendants. The plaintiff also had the opportunity to conduct discovery and find evidence of the named defendants' alleged wrongdoing. But the only support that the plaintiff offered for any of his claims was a true statement in a news story and alleged conduct of others. This, the court determined was insufficient to create a genuine issue of fact requiring a trial. Therefore, the defendants’ motion for summary judgment was granted. Lattazio v. Brunacini, No. 5: 16-171-DCR 2018 U.S. Dist. LEXIS 117034 (E.D. Ky. Jul. 13, 2018).

Posted July 14, 2018

Equine Liability Act Shields Owner From Liability. The plaintiff, along with some others, offered to help at the defendant’s farm. An injury occurred to a child as a result of the defendant’s horses and the plaintiff sued, claiming negligent handling of horses. The defendant (in both the corporate capacity and individual capacity) moved for summary judgment based on no evidence, and the trial court granted the motion. The trial court granted the motions for summary judgment. The plaintiff did not appeal the grant of summary judgment for the defendant corporation, but did appeal the granting of summary judgment for the defendant individuals. The appellate court affirmed. The plaintiff conceded that the Texas Equine Activity Limitation of Liability Act applied to the action. That Act protects owners of livestock and horses from liability from incidents stemming from the inherent risk of livestock and horses. However, the plaintiff claimed that the owner failed to make a reasonable effort to gauge the skill level of a participant to ensure safety – an exception to coverage under the Act. Since the no-evidence summary judgment motion is like a directed verdict, the burden is on the non-moving party to show genuine issue of material fact. The plaintiff never produced any evidence that the defendant failed to ask of the child’s riding ability or to prove that the lack of questioning lead to the accident directly. Thus, the appellate court affirmed the grants of summary judgment. James v. Young, No. 10-17-00346-CV, 2018 Tex. App. LEXIS 2406 (Tex. Ct. App. Apr. 4, 2018).

Right-To-Farm Law First Requires Presence of Nuisance Under the Facts. This nuisance litigation originally included 69 different plaintiffs. The courts divided this into three separate divisions. The divisions each dropped different plaintiffs or dismissed a whole division. The present case, division A, involves the defendants as the owners of the two farms, and JBS’s pork division who contracts with the farm owners. The farm owners obtained all of the required permits to build and operate a confined animal feeding operation (CAFO). The farm owners also followed all applicable state and federal laws pertaining to CAFOs, and complied with JBS’ manuals and operating guidelines. The plaintiffs are all nearby landowners, with the closest one residing 0.67 miles from one of the owner’s CAFOs. That distance is almost twice the minimum setback requirements between a CAFO and neighboring residency. The plaintiffs originally claimed the CAFO created a nuisance of odors, pathogens, and flies, entitling them to damages for the loss of use and enjoyment of their property. The defendants countered with a motion for summary judgment based on the affirmative defense of Iowa Code §657.11(2), the Iowa right-to-farm statute. The plaintiffs moved for partial summary judgment against the defendant’s statutory defense. The trial court denied the defendants' motion and granted the plaintiffs’ partial summary judgment without any factfinding. By doing this the court found that the statute was unconstitutional as applied to the plaintiffs because it barred their right to a remedy. Before the trial court’s decision, there was a trial on the division C litigation. This jury determined that there was no nuisance with respect to any of the plaintiffs. In that litigation, the trial court determined that the right-to-farm law rendered the plaintiffs' case frivolous, and awarded JBS costs. On appeal of the present case, the Iowa Supreme Court reversed and remanded. The Supreme Court held that the trial court improperly applied specific factual findings required by Gacke v. Pork Xtra, L.L.C.,684 N.W.2d 168 (Iowa 2004). The appellate court sifted through the three prongs of Gacke and noted the fact-based decisions to which the prongs must be applied. On its face the statute could be constitutional, however factual findings are required. Thus, the appellate court reversed the trial court’s decision and remanded the case for application of the facts to the law established by Gacke. Honomichl v. Valley View Swine, LLC, No. 16-1006, 2018 Iowa Sup. LEXIS 67 (Iowa Sup. Ct. Jun. 22, 2018).

Posted July 7, 2018

Flow of Water From Fields May Be Trespass. The plaintiff owns a tract on the west side of a road. One of the defendants owns a tract on the east side of the road, which is leased out to another defendant. Since the 1900’s the water has flowed from east to west. By the 1950’s drainage tile had been installed on the defendant’s property. In 1951, the plaintiff’s predecessor in interest built a dam to collect water. In the 1970’s, the defendant county installed a culvert on the road. The water was still flowing east to west at this time. In 2005, the defendant county added a new cap on the side of the culvert. The plaintiff sued the defendants for trespass and negligence, and sought an injunction. At trial, the county moved for summary judgment on the basis of immunity. Every other party moved for summary judgment as well. The trial court dismissed the negligence claims, based on the statute of limitation. The court did not grant the county’s motion for summary judgment. Since the water was not surface water flowing through the culvert, the court granted the summary judgment as to the defendant county’s liability to the plaintiff. The county appealed. After the court granted summary judgment on the defendants’ trespass claim, the plaintiff moved for an injunction. The trial court granted the injunction against the defendants. The defendants appealed. All of the appeals were consolidated into one appeal hearing. The appellate court reversed the trial court on all issues. As for the county, the county had claimed that the finding of lack of immunity and liability on the trespass issue was incorrect. The appellate court determined that there was the county could not be held liability for trespass as a public entity. The appellate court also determined that the water drained to the tiles, into the ditch, and through the culvert, and never lost its status as surface water. Thus, the doctrine of reasonable expectations applied. Thus, the other issues on appeal by the defendants were premature. The appellate court also reversed the trial court’s order of injunction. The case was remanded. Bonkoski v. Lorain County, No. 17CA011122, 2018 Ohio App. LEXIS 2766 (Ohio Ct. App. Jun. 29, 2018).

Not Enough Evidence To Support Nuisance Finding for “Urban Gardening.” The plaintiff city sued the defendant on a nuisance theory. The defendant buys abandoned properties and cleans them up to plant gardens. Because the soil on the damaged properties is significantly damaged, the defendant puts down wood chips and compost to organically regenerate the soil. One of the properties at issue produced pumpkins. The defendant issued nuisance letters with respect to three of the defendant’s properties. The letters stated the properties were a public nuisance and should be cleared of “…tall grass, weeds, junk, debris, trash, litter and wood chips, and to maintain the property in a nuisance-free condition…” The letters gave the defendant 72 hours to clean up the properties. The defendant had three days from receipt of the letters or 24 hours from the service date to request a hearing. The defendant did not timely request a hearing, and did not timely clean-up the properties. The plaintiff then brought three criminal nuisance charges against the defendant. At trial, many neighbors served as witnesses, stating that there were rodent, smell, and dust problems coming from the lots. One neighbor claimed that there were egg shells, coffee grounds, wood chips and other organic material in large piles on one of the lots. These witnesses also stated that the lots devalued their homes. Conversely, the defendant’s witnesses testified to organic urban farming practices, and stated that there were no rats in the compost because there was no food and the conditions were not right. The defendant’s witnesses also stated there was not a decrease in property values, and that the properties at issue had been improved from their original state of disrepair. The trial court determined that urban gardening was not prohibited by any of the plaintiff’s ordinances, however the defendant’s practices did create a nuisance. The trial court ordered the defendant to pay court costs and a penalty. On appeal, the appellate court reversed. The only issue on appeal was whether the evidence supported the trial court’s determination. The appellate court determined that many inconsistencies existed in the testimony of the plaintiff’s witnesses. There was also insufficient testimony from the plaintiff’s inspector that the defendant did not abate the nuisance. There were phots that showed before and after pictures of the piles of woodchips being spread out that the court found very instructive on the abatement issue. Based on a review of the factual record, the appellate court held that there was insufficient evidence to support the imposition of court costs and penalty against the defendant. City of Toledo v. Jackson Industries Corporation, No. L-17-1135, 2018 Ohio App. LEXIS 2791 (Ohio Ct. App. Jun. 29, 2018).

Various Activities Constitute “Agritourism.” Plaintiffs landowners filed an application with defendant Board of Zoning Appeals to conduct agritourisum activities on their family farm. The application contained four uses: a pavilion for events; farm-themed weddings; farm-themed non-wedding events; and agricultural workshops. The defendant denied the last three uses, stating that they were not agritourisum under the state (OH) agritourism statute. On judicial review, the trial court reversed. The defendant appealed the trial court’s decision on the basis that there was not a hearing on the case, but the appellate court affirmed, noting that the only issue involved the application of the OH agritourism statute. That made a factual hearing unnecessary. Also, the defendant never objected to the transcript from the first board hearing being submitted, nor supplemented or attempted to seek a hearing at trial. Thus, the defendant was deemed to have waived its argument for a hearing on appeal. Dixon v. Caesarscreek Township. Board of Zoning Appeals, No. 2018-CA-1, 2018 Ohio App. LEXIS 2751 (Ohio Ct. App. Jun. 29, 2018).

Posted July 3, 2018

State Has Affirmative Duty to Maintain Highway Fences. The plaintiff lost her arm when the car she was riding in collided with a dead cow on a public roadway in southwestern Colorado. She sued the defendant cow owner for negligence and the state (CO) Department of Transportation (CDOT) for failing to maintain fences along the state highway, seeking compensatory and punitive damages. The cow had been grazing with a herd of the defendant’s cattle on Bureau of Land Management (BLM) land, and the defendant alleged that the defendant did not have a license to graze cattle on BLM land but was doing so by virtue of a sublease from another rancher that did have a lease to graze cattle on the BLM land. The plaintiff claimed that the CDOT failed to maintain fences along the highway in a manner that was sufficient to bar cattle from wandering onto the road, and that the fence at issue had deteriorated and cattle had previously caused multiple accidents on the roadway. Both the CDOT and the defendant cow owner filed motions for summary judgment. The trial court partially granted the cow owner’s motion by dismissing the claim for exemplary damages on the basis that the evidence clearly showed that the cow owner did not act in a willful and wanton manner toward the plaintiff because they never intentionally grazed cattle alongside the highway, but denied the motion with respect to negligence claim against the cow owner finding sufficient evidence regarding proximate causation to submit the issue to the jury. The trial court also denied the CDOT’s summary judgment motion on the plaintiff’s premises liability claim against the CDOT citing evidence showing that CDOT had been notified that the fence needed to be fixed. Before the case went to trial, the CDOT and the plaintiff settled, but the other defendants moved to designate CDOT as a non-party at fault which would reduce the cow owner’s percentage of fault. At trial, the plaintiff claimed that the jury should be instructed that the CDOT could only be apportioned negligence if the CDOT had actual notice of a deficient fence. If that is true, the cow owner would have a greater percentage of fault leading to a larger damage award. The trial court held that the CDOT had an affirmative duty to maintain fences adjacent to state roads for the safety of motor vehicles irrespective of any actual notice that a fence is in need of repair. Bryant v. Reams, Civil Action No. 16-cv-01638-NYW, 2018 U.S. Dist. LEXIS 99929 (D. Colo. Jun. 14, 2018).

Posted July 1, 2018

Workers’ Compensation Case Brought By Ag Worker Dismissed. The claimant in this case, a farmhand, filed a claim for workers’ compensation benefits in May 2015, asserting that he injured his right shoulder approximately one year earlier while assisting in a “particularly difficult” birth of a calf - one of the multiple births that he claimed occurred on the dairy farm that day. He denied any prior injury to his right arm, asserted that he had been unable to work at all since the date of the incident, and maintained that the employer fired him due to his physical inability to perform the work required. Although the employer's representative acknowledged that the claimant was working on the day in question, he denied that there were any births of calves on the date of claimant's alleged injury. The representative also denied that claimant ever reported any injury attributable to the birthing of a calf at the farm. In this regard, the employer's representative testified that, while the claimant did complain of pain in his shoulder, he attributed the pain to work that he did while hauling concrete in Guatemala and expressly denied being injured by a cow on the farm. As to the circumstances leading to claimant's discharge, the representative testified that he fired the claimant approximately six months after the incident in question because of complaints from coworkers, who indicated that claimant was behaving in a "threatening" manner and "doing bad things" to the employer's cows at night. After the claimant’s evaluating physician was deposed and an independent medical examination of claimant was conducted, a hearing ensued, at the conclusion of which a Workers’ Compensation Law Judge simultaneously established the claim for accident, notice and causal relationship and restored the matter to the calendar for further development and resolution of those issues. Upon administrative review, the Workers’ Compensation Board (Board) modified, finding that the claimant did not sustain an accident in the course of his employment and denied his claim for workers’ compensation benefits. On appeal, the appellate court determined that whether a compensable accident had occurred was a question of fact that was to be resolved by the Board and its determination should not be disturbed when supported by substantial evidence. Thus, court held that regardless of the accuracy of the employer’s birthing records for the day in question, the Board was free to credit the testimony of the employer’s representative that no claves were born on the dairy farm on May 10, 2014 and, in doing so, find that the claimant did not suffer injury to his right shoulder during the course of his employment. In addition, the court perceived no basis upon which to disturb the Board’s finding, which it concluded was supported by substantial evidence. Thus, the Board’s decision was affirmed. Matter of Elias-Gomez v. Balsam View Diary Farm, No. 525466 2018 N.Y. App. Div. LEXIS 4553 (N.Y. Ct. App. Jun 21, 2018).

Recreational Use Statute Applies to Fishing Activity. A landowner gave permission to the defendant to fish on the landowner’s property. The defendant and his son invited the decedent and the son’s girlfriend to join them. Ultimately, the defendant left all of the parties to fish by themselves. The parties used the landowner’s boat, but the boat capsized resulting in the decedent’s death. The decedent’s estate sued. The action against the girlfriend was dismissed. The defendant and his son filled a motion for summary judgment based on the state recreational use immunity statute. The landowner moved to dismiss the case. The trial court granted summary judgment for all of the defendants. The appellate court affirmed in part, reversed and remanded in part. The appellate court upheld the constitutionality of the recreational use immunity statute as to the landowner, and held that it applied to the facts of the case and that the exception for willfulness and maliciousness did not apply. However, the award of summary judgment to the defendant and his son was improper because they did not meet the statutory definition of “occupant” that either leased or managed the property at issue. Rather, they were invited guests. The appellate court remanded the trial court’s determination as to the defendant father and his son. Estate of David v. Pounds, Nos. 2016-CA-000793-MR, 2016-CA-001689-MR, 2018 Ky. App. LEXIS 184 (Ky. Ct. App. Jun. 15, 2018).

Posted June 26, 2018

Apartment At Horse Facility Not Protected by Right-to-Farm Law. The defendants owned and operated a horse boarding and riding facility in the plaintiff township. The property included 26 stalls, pastures, arena, and above the arena was a caretaker’s apartment. The plaintiff sued to enjoin the operation from renting out the apartment, stating it was in violation of the zoning ordinance which barred a second dwelling on a farm and also barred any living quarters in an arena building. The defendants claimed that the apartment was covered by the Right to Farm Act as an essential part of the operation – particularly the need to check on the horses at night. The trial court determined that the Right to Farm Act did not apply to the apartment because it was not part of the “farm operation.” The use of the apartment, the trial court reasoned, was not necessary to the operation of the farm. Thus, the trial court granted the plaintiff’s injunction. On appeal, the appellate court affirmed. The appellate court agreed with the trial court’s application of the Right-to-Farm Act and its determination that the apartment was not an integral part of the farm. The defendant claimed that the trial court misinterpreted the necessity application of the statue. The appellate court noted that there was no controlling law on the issue, but that legislative history did indicate some degree of necessity. However, the appellate court determined that the requirement of necessity was not satisfied due to a lack of evidence showing that the tenants of the apartment actually helped with checking the horses at night. In addition, the appellate court rejected the defendant’s latches and equitable estoppel claims. Township of Williamstown v. Sandalwood Ranch, No. 337469, 2018 Mich. App. LEXIS 2691 (Mich Ct. App. Jun. 19, 2018).

Posted June 16, 2018

No Negligent Entrustment of Tractor. The defendant’s employee was checking on cattle with his girlfriend after drinking throughout the day. After checking cattle, the employee drove a tractor home because his vehicle broke down. The tractor did not have any back lights, and the plaintiff’s son could not see the tractor before colliding with it. The employee had a record for driving under the influence and his license had been permanently revoked. His employment on the farm predated all the DUI convictions. Even though the work on the farm included using equipment, the defendant did not permit the use of the tractor on this particular occasion. After the accident, the plaintiff sued the defendant for the negligent entrustment of a vehicle. The trial court granted the defendant’s motion for summary judgment. The trial court also entered a default judgment for negligence against the employee. The plaintiff appealed the summary judgment decision, but the appellate court affirmed. The appellate court noted that the defendant did not know that the employee was going to operate the tractor that night, and never gave the employee permission to operate the tractor. As a consequence, the defendant did not entrust the employee with the tractor. Though the employee was doing farm work before the incident, at the time of the accident he was not performing farm tasks or acting as the defendant’s agent. These details made the claim fall short of the five standards required for negligent entrustment. The employee’s actions were “unforeseeable” and the use of the tractor was not permissible. Whitman v. Kilby, No. COA17-922, 2018 N.C. App. LEXIS 491 (N.C. Ct. App. May 15, 2018).

Posted June 9, 2018

Wind Energy Company Must Buy Homes of Disaffected Owners. On October 20, 2009, the Minnesota Public Utilities Commission issued a large wind energy conversion system site permit to Wisconsin Power and Light Company (WPL) for the approximately 200-megawatt first phase of the Bent Tree Wind Project, located in Freeborn County, Minnesota. The project commenced commercial operation in February 2011. On August 24, 2016, the Commission issued an order requiring noise monitoring and a noise study at the project site. During the period of September 2016 through February 2018 several landowners in the vicinity filed over 20 letters regarding the health effects that they claim were caused by the project. On September 28, 2017, the Department of Commerce Energy Environmental Review Analysis Unit (EERA) filed a post-construction noise assessment report for the project, identifying 10 hours of non-compliance with Minnesota Pollution Control Agency (MPCA) ambient noise standards during the two-week monitoring period. On February 7, 2018, EERA filed a phase-two post construction noise assessment report concluding that certain project turbines are a significant contributor to the exceedances of MPCA ambient noise standards at certain wind speeds. On February 8, 2018, WPL filed a letter informing the Commission that it would respond to the Phase 2 report at a later date and would immediately curtail three turbines that are part of the project, two of which were identified in the phase 2 report. On February 20, 2018, the landowners filed a Motion for Order to Show Cause and for Hearing, requesting that the Commission issue and Order to Show Cause why the site permit for the project should not be revoked, and requested a contested-case hearing on the matter. On April 19, 2018 WPL filed with the Commission a Notice of Confidential Settlement Agreement and Joint Recommendation and Request, under which WPL entered into a confidential settlement with each landowner, by which the parties agree to the terms of sale of their properties to WPL, execution of easements on the property, and release of all the landowners’ claims against WPL. The agreement also outlines the terms by which the agreement would be executed. The finality of the agreement was conditioned upon the Commission making specific findings on which the parties and the Department agreed. These findings include, among others: dismissal of the landowners’ February 2018 motion and all other noise-related complaints filed in this matter; termination of the required curtailment of turbines; transfer of possession of each property to WPL; and a requirement that compliance filing be filed with commission. The Commission determined that resolving the dispute and the terms of the agreement were in the public interest and would result in a reasonable and prudent resolution of the issues raised in the landowner’s complaints. Therefore, the Commission approved the agreement with the additional requirement that upon the sale of either of the landowners’ property, WPL shall file with the Commission notification of the sale and indicate whether the property will be used as a residence. If the property is intended to be used as a residence after sale or upon lease, the permittee shall file with the Commission: notification of sale or lease; documentation of present compliance with noise standards of turbines; documentation of any written notice to the potential residence of past noise studies alleging noise standards exceedances, and if applicable, allegations of present noise standards exceedances related to the property; and any mitigation plans or other relevant information. In re Wisconsin Power and Light, Co., No. ET-6657/WS-08-573, Minn. Pub. Util. Commission (June 5, 2018).

Injured Basketball Player Assumed the Risk. The plaintiff tripped while playing a basketball game on the defendant’s property. He sued the defendant, to recover damages for the injuries he sustained. The defendant moved for summary judgement but the trial court denied the motion. On appeal, the court of appeals reversed and awarded summary judgment. The court noted that the defendant showed that the plaintiff had played on the court for many years and knew exactly where that crack was. Under state (NY) law, a participant in a sporting event assumes the risks of injuries that naturally flow from participating in such activities that are foreseeable. In addition, the appellate court noted that the participant need not foresee the exact accident, so long as the participant is aware there is a potential for injury. The appellate court held that the plaintiff assumed the risks from participating in the game and knew of the risks that could happen. Understanding such risks on the plaintiff's part shielded the defendant from any liability. Philius v. City of New York, 2018 N.Y. App. Div. LEXIS 3124 (N.Y. Ct. App. May 2, 2018).

Posted June 2, 2018

Monsanto Denied Summary Judgment on Dicamba-Related Claims. Monsanto, the maker of dicamba, moved for partial summary judgment for the claims involving 2015 and 2016 damaged crops. Monsanto sold dicamba-tolerant seed during 2015 and 2016 before releasing the new dicamba herbicide formulation. Without the correct dicamba solution, many farmers resorted to spaying the old dicamba formulation which was not approved for overlay spraying and was also highly prone to drift. To combat this drift problem, neighboring farmers had to purchase dicamba resistant cotton and bean seed. Also, there was reported damages to other varieties of crops from the drift. In the present case, the court determined that that off-label spraying of the old dicamba formulation was foreseeable, but Monsanto's potential liability was balanced by the warning labels on all the seed bags. Thus, the court deferred jugment to allow the plaintiffs to respond to the warnings on the bag. The court also noted the lack of case precedent involving this situation where the spraying was off-label and the label explicitly prohibited such off-label spraying. Monsanto argued that the actions of the farmers were a superseding cause which removed Monsanto from the liability chain. However, the farmers claimed that their conduct was foreseeable upon the defendant releasing the dicamba-resistant seed without the corresponding herbicide. Based on the uncertainty of how the law applied in this situation, the court denied Monsanto’s motion for summary judgment. In re Dicamba Herbicides, Litigation., No. 1:16-cv-299-SNLJ, 2018 U.S. Dist. LEXIS 77958 (E.D. Mo. May 8, 2018).

Posted May 31, 2018

State Premises Liability Act Shields Ski-Lift Owner/Operator From Liability. The plaintiff was injured while getting off the chair at the top of a ski lift owned and operated by the defendant. The plaintiff claimed that she was told to dismount outside the normal area by a staff member. In doing so she was hit by the next chair which pushed her off the platform causing her to injure her ankle and foot. The back of the plaintiff’s ticket contained the defendant’s warnings and liability limitation statements. The plaintiff sued to recover for her injuries and the trial court dismissed the case under the Colorado’s Premises Liability Act (PLA) because of the liability waiver on the plaintiff’s ticket. The plaintiff appealed claiming that the lift ticket waiver was unenforceable. The plaintiff claimed that the waiver did not meet Colorado common law standards; that the PLA estimates liability and does not contain a waiver defense; and that a waiver would contradict the public policy of the PLA. The appellate court rejected all of the plaintiff’s arguments. The court determined that the waiver on the ticket satisfied the common law requirements set forth in Jones v. Dressel, 623 P.2d 370 (Colo. 1981) – primarily that the contract was fairly entered into and that the intent of the parties was expressed in clear and unambiguous language. The appellate court also noted that the waiver was for a recreational activity rather than an essential service. As such, the court determined that participants could simply did not have to agree to the waiver terms. The court also determined that the print on the back of ticket was clear and concise for any person to read and understand. The fact that the plaintiff never read the waiver before riding the lift was moot, as it was reasonably available for her to read. The court also held that the legislature, with the enactment of the PLA, did not intend to completely reject the use of waivers. The court noted that waivers are a standard business practice for recreational companies so that it is economical to offer their services, which the legislature did not reject when enacting the PLA. Raup v. Vail Summit Resorts, Inc., No. 17-1039, 2018 U.S. App. LEXIS 11989 (10th Cir. May 8, 2018).

Posted May 28, 2018

Shooting Range Not Exempt from County Zoning as “Agritourism” Activity. The defendant owns and operates sport hunting businesses on their 12-acre property including shooting ranges, 3-D archery courses, clay targets and pistol pits. Initially, the defendant raised fowl on the property for controlled hunting. Over time, however, the business evolved into a multi-function facility. Adjacent landowners, wrote to the county to inquire if the defendant was exempt from zoning as an “agritourism” business. The county zoning board responded that the ranges and controlled hunting were agritourisum, thus exempting defendant from county zoning. The neighbors appealed to Harnett County Board of Adjustment which upheld the zoning authority’s decision. Over the next several years, litigation ensued involving the issue of which activities on the land constituted agritourism that were exempt from county zoning. Ultimately, the matter came before the appellate court which determined that the various activities on the farm did not constitute “agriculture” and, therefore, were subject to county zoning. Specifically, the appellate court determined that hunting activities were not agritourisum, thus are not exempt from the zoning ordinances. The mere fact that the activities occurred on agricultural land was not enough for the appellate court to conclude that the hunting business qualified as agritourism. The governing statute (N.C. Gen. Stat. § 153A-340(b)(2a)), sets forth the definition of agritourism, mentioning “rural activities” but does not list hunting per se. The appellate court turned to other precedents to determine if rural activities include hunting. Prior case law held that domestically raised animals for controlled hunting qualifies as a rural activity. However, the cases did not extend that rationale to other types of shooting sports. The appellate court determined that activities that are based in agriculture and the natural use of the land qualify as agritourism. Based on that rationale, the appellate court noted that shooting ranges did not produce anything natural from the land. Furthermore, the statute explaining the inherit risk of agritourism provided only “farming and ranching” but did not include hunting at all in the list of dangers. The appellate court noted that the legislature left out any mention of hunting activities in the statute. Thus, shooting ranges and other hunting sports that do not include the harvesting of animals, did not fit squarely within the statute as a rural activity or a natural activity even if operated on farm ground. Jeffries v. Cnty. of Harnett, No. COA17-729, 2018 N.C. App. LEXIS 494 (N.C. Ct. App. May 15, 2018).

Posted May 27, 2018

Workers’ Compensation Is Employee’s Sole Remedy. The plaintiff sued for injuries he allegedly sustained when he fell from the hayloft of a barn located on the defendant’s property. The plaintiff was employed by Fox Run Horse Farms, L.L.C., which leased the property from the defendant and operated a horse farm business on the property. The defendant moved for summary judgment arguing that the defendant and Fox Run were alter egos and, as a result, the plaintiff was an employee in a type of employment covered by the state workers’ compensation law which served as the plaintiff’s exclusive remedy in accordance with Workers Compensation Law §§ 11 and 29(6). The trial court granted the defendant’s motion for summary judgment and the plaintiff appealed. The appellate court determined that the defendant was the alter ego of Fox Run because both were single-member owned LLCs that were created on the same day for a single purpose, to operate a horse stable business. In addition, the defendant had no employees and was formed solely for the purpose of owning the premises on which Fox Run, the plaintiff’s employer, operated its horse farm. Fox Run did not lease property from anyone other than the defendant, there was no written lease agreement, and Fox Run did not pay any rent to the defendant. Finally, Fox Run’s owner paid the defendant’s property taxes as well as the operating expenses of the property. The court held that these facts indicated that the defendant was controlled by the same individual that controlled Fox Run and that the two entities functioned as one company. Accordingly, the plaintiff was an employee working in a covered employment situation and the trial court properly granted the defendant’s motion for summary judgment. Buchwald v. 1307 Porterville Road, L.L.C., No. 495 CA 17-01680 2018 N.Y. App. Div. LEXIS 2906, (N.Y. Ct. App. Apr. 27, 2018).

Posted May 25, 2018

Triable Issues Remain In Horseback Riding Injury Case. The plaintiff sought damages after a riding accident during a ride the defendant conducted at the defendant’s horse farm. Before the riding lesson began, the plaintiff signed the defendant’s standard waiver that stated, in part, that the “[u]ndersigned assumes the unavoidable risks inherent in all horse-related activities, including but not limited to bodily injury and physical harm to horse, rider, employee and spectator." The plaintiff was a novice rider, with no prior experience around horses and claimed that the defendant had not given proper instruction to match the plaintiff’s skill level. The defendant claimed that by signing the waiver, the plaintiff has assumed the risk of riding a horse. The trial court granted summary judgment for the defendant. On appeal, the appellate court determined that summary judgment had been improperly granted because a genuine issue of fact remained concerning whether the defendant took steps to mitigate the risk. The appellate court also determined that the plaintiff had not assumed the risks associated with riding the horse at issue. The appellate court noted that the plaintiff was a novice rider that had never before ridden a horse. On the issue of the release, the court noted that the release was not void, and the plaintiff could not dismiss the defendant’s affirmative defense based on the release. However, the plaintiff had failed to preserve the issue for appeal. A dissenting judge noted that a slipping saddle was an inherent assumed risk of horseback riding irrespective of the rider’s skill level. Jones v. Smoke Tree Farm, No. 1530 CA 17-01222, 2018 N.Y. App. Div. LEXIS 3212 (N.Y. Ct. App. May 4, 2018).

Dairy Can’t Prove Cause of Cow Deaths. The plaintiff, a dairy operation, claimed that the defendant supplied contaminated feed that caused illness in the plaintiff’s milking cows. During April of 2013 the plaintiff fed the cows the plaintiff’s own “green-chop” and the defendant’s custom grain feed blend. The dry cows (not milking/resting) and the bulls were fed only “green-chop.” The “green-chop” had been incorporated in to the rations on April 17, the third grain delivery had been fed as soon as it had been delivered on the 18th. On April 19 the milking cows showed a decreased appetite and developed diarrhea. By April 22, the plaintiff’s veterinarian, had been called to examine and treat the milking cows. The veterinarian initially diagnosed the cows with an ionophore toxicity. Further investigations, however, revealed that the cows with salmonella poisoning. Grain from the calf barn, which the plaintiff stated came from the April 18 feed delivery, tested negative for salmonella. The “green-chop” was never tested as it had all been fed to the herd. The plaintiff’s veterinarian concluded with an eighty percent probability that the milking cows had become ill from the defendant’s grain. Most of the veterinarian’s opinion was based upon the fact that the dry cows and bulls had not become ill because they had not been fed any grain. The plaintiff’s veterinarian did acknowledge that the calves were fed the grain and did not become ill. However, he hypothesized that the milk in their diet kept them from eating the grain or the industry practice of feeding claves the “crumbs” from the cows limited the salmonella. The illness caused the plaintiff loss of twenty to twenty-five head which either died or were culled and another thirty head were sold for beef due to substantial weight loss In addition to claiming damages for the loss of cows, the plaintiff reported a decrease in milk production and loss of fetuses in the infected cows. The plaintiff sued for damages from the salmonella illness, and the defendant countered with claims of breach of contract and unjust enrichment for the outstanding accounts. The defendant also requested a jury trial and moved for summary judgment based on their own veterinarian’s expert opinion. The defendant’s veterinarian stated that the data was insufficient to pinpoint salmonella from the grain as the cause of the illness. Due to the negative teste results, the fact the calves or any other farms experienced the same illness, and low moisture content of the grain, the defendant’s expert believed that no expert could have arrived at the diagnosis that the plaintiff’s veterinarian did. The trial court granted the defendant’s summary judgment motion. The plaintiff moved for reconsideration, and submitted a declaration of an opinion from another veterinarian. This declaration stated that the negative results from the test may not be representative of the entire batch of feed. The trial court denied the motion to reconsider, The appellate affirmed. The appellate court did not give much weight to the hypothetical projections of the initial veterinarian’s diagnosis. Also, the appellate court questioned why the veterinarian ignored the negative test results for salmonella or did not test for non-feed sources of salmonella that the other expert stated could be a cause. In addition, the court found that the expert opinion was abstract evidence rather than an issue of fact that could overcome the motion for summary judgment. White River Feed Co. v. Kruse Family, LP, No. 76562-1-I, 2018 Wash. App. LEXIS 1031(Wash. Ct. App. Apr. 30, 2018).

Posted May 11, 2018

Right-To-Farm Statute Protects CAFO. The defendant and his family have operated a family farm since 1955. The farm was initially a dairy farm, but in the 1990s switched to a beef farm. In 2011, the defendants decided to convert part of their farm to a concentrated animal feeding operation (CAFO) for up to 4,800 pigs where animals owned by a supplier stay for a few months while they grow from about 60 to 270 pounds. Defendants were granted a conditional use to build the CAFO from the township after a public hearing in 2011; had a land development plan conditionally approved by the township in February 2012; and had a nutrient management plan approved by a commission of the Pennsylvania Department of Agriculture on May 15, 2012. The physical facilities were constructed, including a 40,000-square-foot finishing barn and a 1.8-million-gallon storage pit for containing the hog urine and feces. The first shipment of pigs arrived on January 23, 2013. The defendants claimed that they began spreading the liquid swine manure (LSM) collected from the CAFO onto the surrounding fields of their farm in June 2013. Plaintiffs, however, say the LSM did not begin to be spread until April 2014. Separate complaints were filed by the plaintiffs, comprised of two different groups of neighbors. The complaints asserted that the spread of LSM created a private nuisance. The defendants moved for summary judgement based on subsection 954(a) of the Pennsylvania Right to Farm Act (3 P.S. §§951-957). The trial court granted the defendants motion and the plaintiffs appealed. The appellate court determined that subsection 954(a) created a three-prong test to be met in order for the Right to Farm Act to be applicable: (1) the agricultural operation against which the action is brought must have lawfully operated for at least one year before the filing of the complaint; (2) the conditions or circumstances that are the basis for the complaint are normal agricultural operations, and; (3) either the conditions or circumstances that are the basis for the complaint must have existed substantially unchanged since the established date of operation, or if the physical facilities have been substantially expanded or altered such facilities must have: (i) operated for at least one year before the filing of the complaint or (ii) been addressed in a nutrient management plan approved before the commencement of such expanded or altered operation. The trial court determined that the spreading of LSM is a normal agricultural activity, thereby satisfying the second part of the test. However, the plaintiffs claimed for purposes of the first part of the test that the “agricultural operation” was the CAFO and not the dairy/beef farm. Thus, the plaintiffs claimed that the defendants’ obtaining and operating of a CAFO under a nutrient management plan did not extinguish the plaintiff’s nuisance claims because the defendant’s spreading of LSM, which began at some disputed time after the CAFO was commenced operations, was not commensurate with a substantial expansion or alteration of the CAFO’s physical facilities. However, the trial court held that the agricultural operation in question in the first prong of the test was the dairy/beef farm and not the CAFO, because the plaintiffs did not bring actions against the CAFO rather they brought their actions against the owners and operators of the farm. In addition, the LSM is not spread on the CAFO it is spread on the surrounding fields of the family farm which the defendants continued to conduct farming operations on. Thus, the appellate court held that the first and third prongs of the test are also met barring the plaintiffs’ claims and affirmed the trial court’s judgment. Burlingame v. Dagostin, No. 800 MDA 2017, 2018 Pa. Super. LEXIS 286 (Pa. Sup. Ct. Mar. 29, 2018).

Posted April 14, 2018

Statutory Immunity Bars Claims Against City For Flooding From Sewer Pipe. In 1972, the defendant constructed a storm sewer system as part of a comprehensive development plan. A 12-inch storm sewer pipe was installed along 4th Avenue E, with intakes on the North and South curbs. The storm sewer intercepted the natural overland flow of water in the area and day-lighted on the north side of 4th Avenue E. The defendant sized the sewer system to accommodate a two-year recurrence interval storm. It designed and constructed the storm sewer system in accordance with the generally recognized engineering and safety standards of the early 1970s. In 1983, a house was constructed on the parcel that contained the day-lighted storm sewer pipe. The house was positioned on the property so the exposed pipe was located in the front yard and pointed towards the home. The plaintiff purchased the home in 2008. At the time of the purchase, she was informed the basement had flooded one time up the drain, but a sump pump had been installed to address the problem. Between 2009 and 2015, the basement flooded after rainfall on eight or nine occasions. In 2010, frustrated by the repeated flooding, the plaintiff contacted the defendant. However, the defendant never followed up with her about the flooding. The plaintiff subsequently contacted the defendant about the flooding in 2012, 2013, and 2014, but never received any assistance. In 2015, the plaintiff sued, claiming that the flooding constituted a nuisance and that the defendant was negligent in installing the storm sewer pipe. The defendant filed a motion for summary judgment on the basis that the plaintiff’s claims were barred by the immunity given to municipalities under Iowa Code §670.4(1)(h) and the applicable two-year statute of limitations. Iowa Code §670.4(1)(h), referred to as the state-of-the-art defense, alleviates municipalities from responsibility for design or specification defects, when the original designs or specifications were proper at the time of construction, and directs courts to measure a municipality's duty to avoid non-constitutional torts by the “generally recognized engineering or safety standard, criteria, or design theory” in existence at the time of the construction or reconstruction. The trial court granted the defendant’s motion and the plaintiff appealed. The appellate court reversed and the defendant sought further review by the state Supreme Court. The Iowa Supreme Court determined that the statute extends to nuisance actions “based upon or arising out of” one of the enumerated negligence claims. Thus, the statute does not just immunize claims of negligent design, construction, or failure to upgrade, it also immunizes all claims based upon or arising out of claims for the failure to bring the facility up to today’s standards. The plaintiff argued that her nuisance claim was not grounded in any wrongdoing of the defendant and did not otherwise rely on conduct within the immunity statute. Rather, the plaintiff focused only on the intermittent flooding resulting from the storm sewer and claimed it interfered with her interest in the private use and enjoyment of her property. She argued that this claim of pure nuisance did not rely on any negligence connected to the flooding and is therefore not within the claims protected by statutory immunity. However, the Supreme Court pointed out that the plaintiff was required to prove the defendant engaged in conduct responsible for creating a nuisance and that this proof required her to show the defendant was responsible for the sewer pipe. Additionally, the plaintiff made no claim that the defendant engaged in conduct outside the framework of the immunity statute, such as a failure to properly maintain and repair the sewer pipe. Thus, the plaintiff needed to establish evidence that conduct immunized under the statute was the conduct supporting her claim for nuisance. Accordingly, the court held that the plaintiff failed to respond to the defendant’s evidence provided on its summary judgment motion that her claim is nothing more than a claim alleging a failure to upgrade the sewer pipe. Therefore, the decision of the court of appeals was reversed and the trial court decision was affirmed. Kellogg v. City of Albia, No. 15-2143, 2018 Iowa Sup. LEXIS 20 (Iowa Sup. Ct. Mar. 9, 2018).

Posted April 9, 2018

Court Determines Applicable State Law in Trail Ride Case. The parties reside in Illinois and were on a trip with a group of friends to do a horseback trail ride in Missouri. The plaintiff signed certain documents upon her arrival at business location of the firm offering the trail ride. Part of the forms she signed were titled “Release of Liability” and she was instructed to read it before signing. However, the plaintiff testified that she did not read it because she was tired from having driven a long distance to get to the location, and believed the document was merely a registration. At some point during the trial ride the plaintiff and defendant began riding next to one another and were talking. As they were riding together down a hill, the defendant’s horse kicked out with both of its rear legs and struck the plaintiff on her right shin. Neither party knows what caused the horse to kick. Following the kick, the plaintiff had to be helped off her horse and an ambulance was called to the scene. Plaintiff had broken a bone in her shin and eventually underwent two surgeries. The plaintiff filed a complaint in an Illinois state court alleging a violation of the Illinois Animal Control Act, and a negligence claim that the defendant owed her a duty to protect her from being kicked by defendant’s horse. The defendant filed a motion to dismiss the statutory claim, and a motion for summary judgment on the negligence claim. The trial court granted both motions and the plaintiff appealed. On appeal, the plaintiff argued that the trial court improperly determined that Missouri law and not Illinois law applied to the conflict. Missouri does not have an Animal Control Act. Thus, if Illinois law applies the plaintiff may maintain a cause of action for the statutory claim, but if Missouri law applies the statutory claim must be dismissed. The court determined that when making a choice of law decision, the forum court applies choice-of-law rules of its own state. Illinois utilizes the choice of law analysis contained in the Restatement Second of Conflict of Laws, which creates a presumption in favor of applying the law of the state where the injury occurred. The presumption may be overcome by showing a more or greater significant relationship to another state. Once a court chooses a presumptively applicable law it tests its choice against various principles and contacts outlined in the restatement. Because the plaintiff was kicked by the defendant’s horse on a trail ride in Missouri, the appellate court determined that a presumption existed in favor of applying Missouri law. The appellate court then went on to test the contacts outlined in the Restatement. The appellate court determined that because the injury occurred in Missouri and the because the conduct causing the injury occurred in Missouri, those facts favored applying Missouri law to the controversy. However, the court also found that the fact that both parties were domiciled in Illinois and that the interactions of their relationship were centered there were factors weighing in favor of applying Illinois law. Ultimately, however, the appellate court determined that the place where the parties interacted was of less importance than the actual injury occurring in Missouri. Thus, Missouri law would apply to the controversy. The appellate court also noted that both Missouri and Illinois have an Equine Activity Liability Act that recognizes that persons who participate in equine activities may incur injuries as a result of the risks involved in those activities. Thus, the court held that both states have a policy of promoting equine activities and limiting liability associated with those activities. Both states also take into account the assumption of risk principles with respect to horse-related injuries, even in the context of the Illinois Animal Control Act. As such, the appellate court upheld the trial court’s dismissal of the statutory claim. In addition, the appellate court determined as to the negligence claim that the release form the plaintiff signed contained the phrase “other participants” which referred to other individuals at business who were similarly situated to the parties. Thus, the release was clear and unambiguous such that it sufficiently informed the plaintiff that she was releasing other individuals participating in the trail ride activities—including the defendant—from claims arising out of their own negligence. As such the court upheld the trial court’s grant of summary judgement on the plaintiff’s negligence claim. Perkinson v. Courson, No. 4-17-0364, 2018 Ill. App. LEXIS 120 (Mar. 12, 2018).

Posted April 4, 2018

Landowner Not Liable For Adult’s Injury on Premises. The plaintiff and her husband moved in with her husband’s brother, the defendant in this case. The plaintiff did not pay rent but the plaintiff’s husband generally assisted with chores around the defendant’s farm. The plaintiff helped by feeding and watering the miniature horses which were kept inside the barn. However, the plaintiff injured her arm in a fall off of a step-ladder and could not raise her arm above her head. Because she was recovering from surgery, her husband generally did the morning feedings by himself although the plaintiff had begun again to help out some by giving the horses some grain. However, none of the tasks required the plaintiff to go in the hayloft. On the morning of the plaintiff’s fall from the hayloft, her husband left early to start a new job. The defendant fed the horses, but the plaintiff, believing that the horses had not been fed, went to the barn later that morning to feed them. The plaintiff had never fed the horses by herself before. The plaintiff decided to give one of the full-size horses some hay. There was an area on the ground floor where the hay was kept for the miniature horses, but it was empty that morning. As a result, the plaintiff went into the hayloft to retrieve some hay for the horse. In the process of getting the hay, the plaintiff fell from the hayloft, and went through the railing into the riding area below. The plaintiff fractured her right ankle and wrist and sustained other injuries to her head, back and limbs. The plaintiff testified that when she touched the rail it “went swinging out to the right.” Her husband testified that the railing was not attached to anything to keep it from being dislodged. He stated that the defendant told him the rail was just cosmetics in case an insurance company investigated the loft. The plaintiff filed sued the defendant, alleging one count of negligence and one count of willful and wanton misconduct. The trial court granted the defendant’s motion for summary judgment. The plaintiff appealed, challenging the trial court’s determination that the integral issue was whether the defendant should have realized that the plaintiff would be in the hayloft. The plaintiff claimed that the court impermissibly required her to prove an additional element in order to demonstrate that there was a duty owed to her and a breach of that duty. In addition, the plaintiff claimed that she presented a genuine issue of material fact of whether the defendant should have realized she would be in the hayloft. The appellate court determined that a landowner has a duty to warn a licensee of a hazard only if he may be expected to encounter it in the exercise of his license. The appellate court also pointed out that the plaintiff had never taken any of the actions she took that morning, including going to the barn to feed the horses on her own, deciding to give the horse hay, and deciding to retrieve hay from the hayloft upon finding the ground-floor hay receptacle empty. In addition, the defendant stated in his deposition that he was aware of the railing but had not told the plaintiff about it because she had no responsibilities that involved the hayloft and he “wouldn’t assume that she would go up there.” In fact, the plaintiff’s husband agreed that it was “weird” to him that the plaintiff was in the hayloft that day. Thus, the appellate court determined that there was no genuine issue of material fact regarding whether the defendant knew or should have known that the plaintiff would encounter the railing. As such, the decision of the trial court was affirmed. Wrubel v. Big Green Barn, No. 335487, 2018 Mich. App. LEXIS 322 (Feb. 22, 2018).

Posted March 31, 2018

Georgia Right To Farm Statute Protects Paper Mill. Homeowners sued a nearby paper mill for nuisance, negligence and trespass to recover damages associated with the operation of the mill. The mill makes paper products from mixed amounts of recycled fibers recovered from waste paper with smaller amounts of virgin fibers. The mill was in operation before the homeowners built their nearby homes. Approximately 130 acres of the mill’s property are used as a site for “sludge” disposal, a byproduct of the paper recycling process. The separation process washes out inks, ash, clays, calcium carbonate, titanium dioxide, and talc (filler) from waste paper. The filler, short fibers, and water all flow into a treatment plant where the solids settle and become sludge. In order to ensure that this process complies with requirements of the Georgia Environmental Protection Division, the mill adds bacteria to the sludge to reduce the amount of oxygen and sulfates in the sludge. During this process, hydrogen sulfide is created and ultimately released from the sludge. The homeowners claimed that they experienced problems associated with the hydrogen sulfide's foul odor, as well as corrosion of metal components in HVAC units, external and internal metal fixtures of their homes, main panel components, copper piping, and smoke detectors inside their homes. The homeowners also alleged that the mill had damaged their property and interfered with their use and enjoyment of it as a result. The mill filed a motion for summary judgment and the homeowners filed a cross-motion for summary judgment. The trial court denied summary judgment to the mill on the homeowners’ claims for nuisance and negligence, but granted summary judgment to the mill on the homeowners’ trespass claim. Both parties appealed. The appellate court began by analyzing Georgia’s “right to farm” statute which codifies the “coming to the nuisance” defense in some cases. The statute state, in part: “No … agricultural facility, agricultural operation, any agricultural operation at an agricultural facility, agricultural support facility, or any operation at an agricultural support facility shall be or shall become a nuisance, either public or private, as a result of changed conditions in or around the locality of such facility or operation if the facility or operation has been in operation for one year or more.” The statute also defines the term agricultural support facility as “any food processing plant or forest products processing plant together with all related or ancillary activities.” In addition, the statute further defines “forest products processing plant” as “a commercial operation that manufactures, packages, labels, distributes, or stores any forest product.” However, the term forest product is not defined by the statute. The court determined that the term is not a word of art which is universally and consistently defined by the industry and was ambiguous. As a result, the appellate court had to look at the legislature’s intent. The court determined that the legislature explicitly stated that the purpose of the statute was to conserve, protect, and encourage the development and improvement of agricultural and forest land and facilities for the production or distribution of food and other agricultural products, including without limitation forest products by limiting the circumstances under which agricultural facilities and operations or agricultural support facilities may be deemed to be a nuisance. The appellate court determined that encouraging recycling conserves forest land and enables continued development of additional markets for distributing products made from wood fibers was sound public policy. Accordingly, protecting the mill from nuisance liability by finding that it was a “forest products processing plant” squarely aligned with the purpose of the “right to farm” statute. In addition, the court held that the mill was not being operated negligently, illegally or improperly. As such the homeowners did not meet their burden to establish that the mill breached a duty owed to them. Finally, the court held that there was no direct infringement on the homeowner’s property. Rather, any relevant injuries that the homeowners suffered were the natural consequences flowing from an act that is not wrongful in and of itself. Thus, the homeowners’ trespass claims failed. Georgia. Pacific Consumer Products v. Ratner, No. A17A1969, 2018 Ga. App. LEXIS 175 (Ga. Ct. App. Mar. 8, 2018).

Posted March 17, 2018

Horse Spooked by Wildlife is Inherent Risk of Trail Ride. The decedent and his family traveled to Wyoming for a family vacation. The decedent arrived at Roosevelt Corrals for a one-hour horseback ride through Yellowstone National Park, and signed an acknowledgment-of-risk form before starting the ride. At the bottom of the form, a section stated that any rider who signed would “assume full responsibility for him or herself, . . . for bodily injury or death." When the riders approached a narrow bridge, several ducks flew out from underneath the bridge. The lead horse spooked, turned, and ran through the line of horses. This frightened the decedent’s horse, who took off after the lead horse and began running towards a hill at a full gallop. As the horse began galloping down the other side of the hill, the decedent lost his grip on the saddle and fell. The decedent was eventually airlifted to a hospital where he died from his injuries. The decedent’s wife filed a complaint in Wyoming state court, bringing four state-law tort claims against the company that provided the ride: (1) negligent misrepresentation; (2) nondisclosure; (3) negligent supervision and training; and (4) negligence. The defendant removed the suit to the U.S. District Court for the District of Wyoming and subsequently moved for summary judgment. The district court granted summary judgment for the defendant and the plaintiff appealed. On appeal, the plaintiff alleged that the defendant solicited and promoted their horseback rides, and should have known that members of the general public would rely on the information provided in choosing to go on one of the rides. She also alleged that she and the decedent relied on the defendant’s information that the horses were trail broke and that guides were nearby and prepared to help. She claimed the decedent’s death was a direct result of these misrepresentations. However, the court pointed out that the Wyoming statute adopting the negligent misrepresentation standard requires that “the false information be supplied in the course of one’s business.” The court believed that this meant that the information also had to be supplied to someone in the conduct of that person’s business. Thus, because the decedent went to Yellowstone for a family vacation and not a business trip the court held that the plaintiff had no claim for negligent misrepresentation. In addition, the court pointed out that Wyoming does not recognize a tort for nondisclosure. In regards to the plaintiff’s negligence claims, the court determined that the relevant law centered around the Wyoming Recreational Safety Act (Wyo. Stat. Ann. §1-1-122). The first provision of WRSA states that a person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, and that a provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity. The second provision defines "inherent risk" as “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity. The court carefully considered three of its cases decided in the horseback-riding context. Using these cases as guideposts, the court concluded that there were inherent risks that wildlife, including ducks, would be present on the trail ride. The court also concluded that there was an inherent risk that a wild animal might appear suddenly, spooking the lead horse into running away and that the other horses might react similarly and run with the lead horse, and that the runaway horses may travel over downhill portions of the trail at a fast pace when seeking to escape perceived danger. The court also concluded that the decedent’s injuries stemmed from these inherent risks. Thus, the court held that the district court did not err in ruling that the defendant was insulated from possible negligence liability under the WRSA. Dullmaier v. Xanterra Parks & Resorts, No. 16-8017, 2018 U.S. App. LEXIS 4792 (10th Cir. Feb. 27, 2018).

Posted March 12, 2018

Tree-Trimming Service Not An Agent Or Occupier For Immunity Purposes. A church organization owned a 21-acre youth camp and conference center on the shores of a lake. With the exception of a shoreline path, the property was not open to the public. The church organization requested bids to perform tree-trimming work on the property, which included pruning and removing trees along the shoreline path. The defendant was one of the contractors selected to perform the tree trimming services. The board members of the church organization knew that the defendant would be working on the project but they did not know the specific dates of work, nor did they have any knowledge of what was being done to block off the shoreline path or divert pedestrian traffic. No one from the church organization was assigned to check in with the defendant or to provide assistance to the defendant in any way. While the defendant was performing work along the path, the decedent and her son were walking on the path. A tree branch cut by the defendant fell and hit the decedent, causing severe injuries that resulted in her death. The decedent’s husband individually and as special administrator for her estate sued the defendant alleging that its negligence was the cause of the decedent’s death. The plaintiff further alleged that as a result of watching his mother die, the decedent’s son suffered severe and permanent emotional distress. The trial court granted summary judgment in favor of the defendant. The appellate court reversed and the defendant appealed. The defendant claimed that the recreational immunity statute, Wisc. Stat. § 895.52, barred the claims against it. The parties do not dispute that the plaintiffs were engaged in a recreational activity as defined under the statute. In addition, the parties did not dispute that the church organization, a non-profit organization, was properly granted summary judgment as an owner under the statute. However, the defendant argued that it was an agent of the church organization and therefore qualified for immunity under the statute. The appellate court determined that in order to be considered an agent, the governmental agency must have established reasonably precise standards of control for the task at issue and the person who is performing the task must be adhering to those standards at the time of the accident. However, the court held that there were no facts presented supportive of the conclusion that the church organization either controlled or had the right to control the details of the defendant’s work. The written agreement between the defendant and the church organization described the work to be done in general terms and no means or methods were set out in regard to how the trees were to be removed. In addition, the board members of the church organization were not even aware of when the defendant would be working on the property. Accordingly, the defendant was not the church organization’s agent within the meaning of the statute. The defendant also argued that it was an occupier that qualified for statutory immunity under Wisc. Stat. § 895.92(1)(d)(1). However, the appellate court held that the defendant’s presence on the property did not exceed mere use and did not approach a degree of permanence. In addition, the defendant had no effect on whether the property would be open to the public for recreational purposes. Rather, for the few days it was on the property the defendant moved from temporary location to temporary location for the limited purpose of trimming trees. Thus, the court concluded that the defendant was not an occupier of the property and therefore does not receive immunity under Wisc. Stat. § 895.92. Accordingly, the decision of the court of appeals is affirmed. Westmas v. Creekside Tree Serv., No. 2015AP1039, 2018 Wisc. LEXIS 16 (Wisc. Ct. App. Feb. 7, 2018).

Posted March 3, 2018

Subpoenas Need Not Be Fully Complied With; Attorney Fee Award Upheld. Property owners obtained a rezoning of their property so that they could construct a Confined Animal Feeding Operation (CAFO) on their property that would house up to 8,000 hogs. The property owners formed an LLC to operate the CAFO. The plaintiffs, neighboring property owners, sued the property owners and the LLC, claiming that the use and enjoyment of their neighboring properties were ruined by the CAFO’s odors and emissions and sought recovery based on theories of nuisance, negligence and trespass. The plaintiffs subpoenaed the Indiana Pork Producers Association (IPPA) (a non-party) and requested production of documents related to the CAFO, including personal communications with the property owners, studies and copies of IPPA’s testimony in support of the CAFO. In response to the subpoena, IPPA produced some documents regarding the defendant’s CAFO but limited those documents to things it deemed nonprivileged, and only from the timespan that it was helping the plaintiffs in the rezoning process. The IPPA also objected to a subpoena to produce documents related to national air quality studies and odor management. The plaintiffs also subpoenaed Livestock Engineering Solutions (LES) (also a non-party) which provided consultation to the defendant regarding construction of the CAFO and how to obtain approval of the facility from IDEM. LES agreed to provide documents it had produced regarding the CAFO, but asserted there were no documents exchanged between it and the property owner/LLC regarding the CAFO because it had worked with a third party. Both IPPA and LES filed formal petitions with the trial court requesting the plaintiffs to pay attorney fees related to their response to the subpoenas. The plaintiffs filed cross-motions to compel IPPA and LES to fully comply with the subpoenas and requesting the trial court to deny IPPA and LES’s attorney fee petitions. The trial court denied the plaintiffs’ motion to compel. It awarded IPPA $4,980.50 and LES $2,572.75 for time spent evaluating and responding to the subpoenas. The trial court also awarded LES $1,352.29 for “direct expenses incurred responding to the subpoenas.” All of the awards received were less than those requested by both IPPA and LES. The plaintiffs appealed, and IPPA and LES cross-appeal. The plaintiffs generally claimed that they were entitled to seek additional discovery from IPPA and LES to support their negligence claim, to prove that the defendants knew or should have known that locating their CAFO so close to the plaintiffs’ residences would negatively impact their homes because of odors and noxious emissions. However, the appellate court determined that many of the requested documents had no direct relation to the defendants' CAFO or to the defendants at all, for that matter. In addition, the appellate court determined that the record showed that the plaintiffs had already acquired substantial evidence from other sources regarding the readily available knowledge of the potentially harmful effects of CAFOs from many government, academic and scientific studies. Thus, the appellate court found it was unclear how much they truly needed the information sought in the subpoena. Therefore, the court held that the trial court did not abuse its discretion in denying the plaintiffs’ motion to compel IPPA and LES to more completely comply with the subpoenas. In addition, the court held that, while the hourly rate charged by IPPA and LES’s attorneys was at the higher end of the scale, they were not out of line with rates charged by experienced partners at large Indianapolis law firms like the ones used in this case. In addition, the court found that given the sheer volume of information sought by the subpoenas in relation to a case in which IPPA and LES were not parties there was nothing wrong with IPPA and LES utilizing the best attorneys possible to review the subpoenas. Thus, the fees awarded to IPPA and LES by the trial court were not excessive or unreasonable. On the other hand, the appellate court also rejected the cross-appeal by IPPA and LES arguing that they were entitled to the full amount of attorney fees they sought. The court determined that the trial court properly awarded IPPA and LES some of the attorney fees sought but not all of them. Because this result did not directly conflict with any rules, the court determined that the trial court had broad discretion in making that decision and deferred to that discretion in upholding its decision. As such the decisions of the trial court were affirmed. Himsel v. Indiana Pork Producers Association, No. 32A01-1703-PL-612, 2018 Ind. App. LEXIS 61 (Ind. Ct. App. Feb. 14, 2018).

Posted February 27, 2018

Court Says County Can Allow CAFO To Create “Stinky” Summer Bible Camp. A farming operation filed a permit application with the defendant, Rush County Board of Zoning Appeals (BZA) for a special exception to Rush County zoning ordinances in order to obtain local approval for the construction and operation of a new concentrated animal feeding operation (CAFO). Over two public meetings, the BZA heard evidence for and against the farm’s permit request. The evidence established that the defendant sought to maintain 1,400 head of cattle (and 17.4 million gallons of manure in open lagoons) at the proposed CAFO location. The farm presented evidence of mitigation efforts it planned to take to reduce noxious odors from its proposed CAFO, and its plans were approved by both the Indiana Department of Environmental Management and the local drainage board. The plaintiff appeared at those meetings and opposed the farm’s permit request. The plaintiff operates a religious summer youth camp which consists of several multi-day or week long overnight programs for children and teens over eight years old. The summer camp is outdoors on property that is one-half mile, and (typically) downwind, from the farm’s proposed CAFO. The defendant granted the farm’s petition for a special exception. The plaintiff sought judicial review from the defendant’s decision and also sought declaratory judgment. The trial court denied the plaintiff’s petition for judicial review and also denied the request for declaratory judgement. The plaintiff appealed. On appeal the plaintiff argued that the defendant did not properly consider the public interest when it granted the special exception. Specifically, the plaintiff relied on a recent case in which the defendant granted additional set-back requirements in excess of the minimum setback requirements, and argued that additional setback requirements were required in this case. However, the appellate court held that the case the plaintiff relied on merely highlighted the fact that the court give the defendant broad discretion to consider the impact on the property owners in deciding whether and under what conditions to grant a special exception. Thus, the appellate court would not reweigh the evidence and deferred to the defendant’s discretion. The plaintiff also claimed that the zoning ordinance required the CAFO to be located one full mile from the plaintiff’s property. However, because the ordinance only requires a one-mile setback for schools, this argument hinged on the court determining that the plaintiff’s summer camp fits within the meaning of the term “school.” The appellate court held, however, that the lack of definition of the term “school” within the ordinance rendered the language ambiguous. As such, the interpretation of the language rested with the defendant. In addition, the court noted that there are many differences between a week long voluntary summer camp and a full year compulsory school and, as such, it was reasonable for the defendant to conclude that the plaintiff’s summer camp did not constitute a “school.” The plaintiff also argued that the defendant’s grant of special exception violated the plaintiff’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA). However, the court concluded that RLUIPA is not available to the plaintiff because RLUIPA applies to land use regulations applied by the government directly on religious groups. Thus, since the plaintiff did not own the land regulated by the special exception (the land was owned by the farm), the RLUIPA did not apply (this holding is in spite of the fact that the RLUIPA applies to any regulated land in which the plaintiff has a “property interest” – which the plaintiff’s possession clearly gave them). Finally, the plaintiff asserted that the grant of the special exception substantially burdened the plaintiff’s exercise of religion by “imperiling the health of children” at the summer camp. While the court did acknowledge that the plaintiff presented evidence of the negative effects of the CAFO on the children of the summer camp it deferred to the defendant’s decision which was based on all the evidence as a whole. Thus, the court did not reweigh the evidence that was before the defendant to obtain a different result and affirmed the trial court. House of Prayer Ministries v. Rush Cty. Bd. of Zoning Appeals, No. 21A01-1707-MI-1693, 2018 Ind. App. LEXIS 8 (Ind. Ct. App. Jan. 16, 2018).

Posted February 15, 2018

Motion To Reconsider In Train Related Injury Denied. The defendant’s train severed the legs of the plaintiff. The plaintiff sued, alleging that the defendant’s negligent maintenance and operation of its tracks and trains contributed to the plaintiff’s injuries. The defendant moved for summary judgment. A United States magistrate judge issued a report and recommendation denying the motion. The magistrate judge’s decision held that the plaintiff’s claim of negligence under the common law is not preempted as to the defendant’s duty to deter expected trespassers from using the “cut-through.” The federal trial court agreed with the defendant that railroads have no general duty to fence tracks, but found that the defendant had not established, as a matter of law, that there was no duty to use barriers, signs, or other means to discourage trespassers from using a well-known, but unauthorized, spot to cross. The defendant sought reconsideration or an order granting an interlocutory appeal. The defendant argued that the court erred in light of New York Railroad Law section 52 which provides that “no railroad need by fenced, when not necessary to prevent horses, cattle, sheep and hogs from going up its track from the adjoining lands.” According to the defendant, that provision relieves railroads of any duty to deter expected trespassers. While the court noted that there is no duty to fence railroad tracks except to protect livestock, that does not mean that there never is a duty to discourage trespassers from using a well-known cut-through, as was the case here. The court determined that whether or not the defendant fulfilled its duty to expected trespassers is a question of fact which should be resolved by a jury, not on summary judgment. The defendant also claimed that the court committed clear error in deciding that the heightened duty to expected trespassers is not preempted by the Federal Railroad Safety Act (FRSA). The FRSA can preempt common-law negligence claims either expressly or impliedly. However, the court held that the defendant did not demonstrate that its heightened duty to expected trespassers under New York law is either expressly or impliedly preempted by the FRSA. The defendant pointed to 49 U.S.C. § 20153 of the FRSA regarding audible warnings at highway and railgate crossings, and claimed that by limiting the application of those regulations to only authorized crossings, Congress meant to preclude states from enforcing common-law safety measures at unauthorized crossings. However, the court held that there is no reason to believe that by setting standards that apply to authorized crossings, Congress implied that no standards could apply anywhere else. The court also held that the plaintiff’s cross-motion to reconsider did nothing but rehash earlier arguments, and should be denied. Finally, the court held that neither party established the exceptional circumstances required for an interlocutory appeal to be granted. Thus, all the motions by both parties in this case were denied. Rhinehart v. CSX Transp. Inc., No. 10-CV-86, 2018 U.S. Dist. LEXIS 1072 (W.D.N.Y. Jan. 23, 2018).

Posted February 10, 2018

Landlord Not Liable For Tenant’s Harm Caused By Landlord’s Horse. The plaintiff and her husband entered into a verbal lease with the defendant for a lease of the defendant’s property. The plaintiff claimed that the lease covered the entire property, but the defendant asserted that the lease only was for the house and abutting yard. Adjacent to the home, the defendant had a pasture and a barn where the defendant boarded a Tennessee Walking Horse. The horse spent time both in the pasture and in the barn. The defendant claimed that he informed the plaintiffs not to go near the horses and to keep their children out of the barn. Nine days after moving in, the plaintiff and her children went for a walk to see an old graveyard. They cut through the pasture to get to the site. It was disputed whether the plaintiff and the children crossed a fence into the pasture where the horses spend time. The defendant claimed that they crossed onto the pasture, but the plaintiff claimed that they never crossed onto the pasture or traversed the fence. The plaintiff maintained that the horse was running loose, chased her, and stomped her thigh after she fell. The plaintiff filed a complaint against the defendant and the defendant counterclaimed that the plaintiff was contributorily negligent. The defendant moved for summary judgment, which the trial court granted and also denied the plaintiff’s motion to alter, amend, or vacate the summary judgment. The plaintiff appealed. The court held that the number of lengthy depositions in this case provided no certain evidence to indicate whether the plaintiffs rented the house and the yard or the entire property. With this uncertainty and the fact that the lease was verbal the court decided to accept the assertion that the family rented the entire property. The court held that because the plaintiff testified of knowing about the horse, the defendant could not be liable for failure to warn the plaintiffs about a known latent defect. Thus, the trial court’s grant of the motion for summary judgment was appropriate. In addition, the court held that because the horse’s owner did not know or have reason to know that the horse was abnormally dangerous, the defendant would be liable for the horse’s actions only if the defendant intentionally caused the horse to do harm or was negligent in failing to prevent harm. The court held that the plaintiff did not provide proof that the horse’s owner was negligent under this standard. Thus, the decision of the district court granting summary judgment was affirmed. Groves v. Woods, No. 2016-CA-001546-MR 2018 Ky. App. LEXIS 59 (Ky. Ct. App. Jan. 26, 2018).

Case Involving Damages for Injuries in Cow/Vehicle Accident Heads to Jury. The plaintiff was a passenger in a vehicle traveling westbound on a state highway. In the early evening hours, the vehicle struck a cow that another motorist had previously hit and immobilized. The defendant partnership owner the cow. Two brothers were the members of the partnership. The collision caused the vehicle to flip onto its passenger side and skid along the highway at a high velocity, during which the plaintiff’s right arm was pulled out of the passenger window and was ground down to a stump as a result of road friction. The plaintiff sustained additional injuries and sought damages including present and future medical and hospital expenses, past and future lost wages, and loss of enjoyment of life. The plaintiff sued, asserting common law claims against the defendants and the two brothers individually. The plaintiff also sued the Colorado Department of Transportation (CDOT). All of the defendants motioned for CDOT summary judgment. The court determined that the material facts were undisputed: the cow was a partnership asset; the cow had wandered onto the highway from parcel 079 which the brothers owned; both CDOT and the brothers bore responsibility for specific stretches of fencing surrounding parcel 079; there was a section of perimeter of parcel 079 for which no fencing existed; and no one could identify the precise location at which the cow exited parcel 079. The defendants all claimed that insufficient proof existed regarding their involvement in the proximate cause of the accident. However, the court found that because the cow belonged to the defendant partnership and the brothers in the responsibility to maintain the fencing with CDOT, there was sufficient evidence to submit the question of proximate cause to the jury. Consequently, the defendant’s motion for summary judgment was denied. CDOT argued that the plaintiff could not prevail on her premises liability claim because of the lack of proof regarding causation, and because CDOT did not have actual notice of the compromised fencing for which it was responsible. The court determined that the Colorado Fence Law, Colorado Rev. Stat. § 35-46-111(1)(a), as amended in 1994 acts as a waiver of CDOT’s sovereign immunity in this suit. In addition, the court found that the undisputed facts demonstrated that the defendant sent correspondence to CDOT on at least four occasions during 2005, raising concerns regarding the quality of the fencing along the highway and the need for repairs. In addition, the evidence suggested that no repairs were initiated by CDOT from the time the fences were erected. Thus, the record demonstrated that CDOT's fences along the area in question were in disrepair for many years and that CDOT received notice of such. Accordingly, the court held that the issue of causation should be submitted to the jury and denied CDOT's motion for summary judgment. Finally, because the brothers testified that they do not intentionally let their cattle graze along-side the highway and try to promptly remove them if they do escape onto the highway, the court found that there was insufficient evidence to support a claim of willful and wanton conduct on the part of the defendants. Thus, the plaintiff’s claim for exemplary damages was denied. Bryant v. Colorado, No. 16-cv-01638-NYW 2018 U.S. Dist. LEXIS 901 (D. Colo. Jan. 3, 2018).

Posted February 3, 2018

Liability Waivers On Ski Lift Ticket Barred Negligence Suit. The plaintiff visited a Colorado resort with her family in March 2015 that was operated by the defendant. The plaintiff participated in a ski lesson. Ski lesson participants, including the plaintiff, were required to sign a liability waiver before beginning their lessons. In addition, the plaintiff’s husband purchased her a lift ticket, enabling her to ride the ski lifts. She received the ticket from her husband and used it to ride a lift. The lift ticket contained a warning and liability waiver on its backside. After receiving some instruction during her ski lesson on how to load and unload from the chair lift, the plaintiff boarded the lift. As she attempted to unload from the lift, her left ski boot became wedged between the ground and the lift. Although she was able to stand up, she could not disengage the lift because her boot remained squeezed between the ground and the lift. Eventually, the motion of the lift pushed the plaintiff forward, fracturing her femur. The trial court determined that all of the plaintiff’s complaints fell within the scope of the waivers from the ski lift ticket and ski lesson liability waiver and were therefore barred. The plaintiff appealed. The appellate court considered four factors, known as the Jones factors, in determining the enforceability of an exculpatory agreement: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language. The appellate court determined that if any of the four factors was satisfied, an exculpatory agreement (such as the waiver at issue) is unenforceable. The appellate court pointed out that the relevant services provided by the defendant—skiing and ski lessons—were clearly recreational in nature. In addition, skiing and ski lessons were not of great public importance nor matters of practical necessity for even some members of the public. For these reasons the appellate court held that the exculpatory agreement did not satisfy the first or the second Jones factor. The appellate court also determined that the plaintiff did not enter the Ski School Waiver or Lift Ticket Waiver from an unfair bargaining position because she was free to walk away if she did not wish to assume the risks or waive the right to bring certain claims as described in the waivers. Moreover, according to the appellate court, the circumstances surrounding the plaintiff’s entry into the exculpatory agreements indicate that she did so fairly - she provided no evidence that called into question her competency or ability to comprehend the terms of the agreements. For these reasons the appellate court found that the waivers did not satisfy the third Jones factor. Finally, because the appellate court held that neither waiver was unduly long or complicated, unreadable, or overburdened with legal jargon, they did not violate the fourth Jones factor. The plaintiff also argued that the waivers were unenforceable as contrary to Colorado public policy because they conflict with the Colorado Ski Safety Act (SSA), Passenger Tramway Safety Act (PTSA) and the public policies announced therein. She argued that the waivers conflicted with the public policy objectives of the SSA and PTSA because enforcing either waiver would allow the defendant to disregard its statutorily defined responsibilities and duties. However, the appellate court held that those acts did nothing to expressly or implicitly preclude private parties from contractually releasing potential common law negligence claims through the use of an exculpatory agreement. As a result, the decisions of the district court were affirmed and the plaintiff’s claims were barred by the waivers. Brigance v. Vail Summit Resorts, Inc., No. 17-1035, 2018 U.S. App. LEXIS 397 (10th Cir. Jan. 8, 2018).

Posted February 1, 2018

Reckless Roundup Spraying Results in Treble Damages. The plaintiff sued the defendant alleging that the defendant sprayed the bushes located on her property with a pesticide, herbicide, or other vegetation killer causing injury and destruction to the vines, bushes, trees and other vegetation standing or growing on the property. The plaintiff also claimed that the defendant trespassed on her property causing damage in the amount of $3,900. The plaintiff sought treble damages. In addition, the plaintiff alleged a claim for punitive damages. A Magistrate ruled in the plaintiff’s favor, and recommended judgment against the defendant for treble damages, in the amount of $11,989.35 together with interest at the rate of 3% per annum from the date of judgment and costs. The defendant filed initial objections to the Magistrate’s decision. The appellate court held that trial court properly determined the amount of damages sustained that the plaintiff sustained ($2,996.45) because that amount was consistent with the only estimate admitted into evidence of the cost to restore her property. In addition, the appellate court agreed with the plaintiff that the trial court abused its discretion in determining that the defendant did not act recklessly in applying Roundup along the fence line. The defendant testified that he was familiar with Roundup, that he had used the product for 35-40 years, and that he was aware of the damage it could cause to vegetation. The court also determined that the defendant as aware of concerns regarding his use of Roundup and over-spraying of the product beyond his property from previous disagreements with his neighbors. Accordingly, the appellate court found that the plaintiff was entitled to treble damages pursuant to R.C. 901.51. In addition, the appellate court held also dismissed the defendant’s argument that the plaintiff’s own law care provider could have caused the damage to her property because the damage was only to a row of bushes adjacent to the defendant’s fence and the remainder of the plaintiff’s property was “manicured and meticulous.” Finally, the court pointed out that the plaintiff lost 13 large, mature shrubs, and concluded that the extent of that damage was evidence that the defendant with “heedless indifference to the consequences, disregarded a substantial and unjustifiable risk known to him in applying round up.” Accordingly, the plaintiff was entitled to treble damages and the defendant’s assignments of error were overruled. Hoffs v. Batman, No. 2017-CA-5, 2017 Ohio App. LEXIS 5784 (Ohio Ct. App. Dec. 29, 2017).

Posted January 22, 2018

Syngenta Multi-District Litigation - Timing Issues Preclude Federal Lanham Act Claim; Lack Of Contractual Relationship Precludes Economic Loss Doctrine Defense. This case is a part of a multi-district litigation which includes hundreds of different suits filed against Syngenta by corn farmers and others in the corn industry. The suits generally relate to Syngenta's commercialization of genetically-modified corn seed products known as Viptera and Duracade (containing the trait MIR 162) without approval of such corn by China, an export market. The farmer plaintiffs (corn producers), who did not use Syngenta's products, have alleged that Syngenta's commercialization of its products caused the genetically-modified corn to be commingled throughout the corn supply in the United States; that China rejected imports of all corn from the United States because of the presence of MIR 162; that such rejection caused corn prices to drop in the United States; and that corn farmers were harmed by that market effect. The Court certified state-wide classes for tort claims by producers under the law of eight different states. This particular case was brought by the plaintiff - Louis Dreyfus Company Grains Merchandising LLC. The plaintiff operates grain elevators and buys, sells and exports corn. The plaintiff asserted claims against Syngenta under the federal Lanham Act in addition to state law claims for negligence, fraudulent misrepresentations and tortious interference with business expectations. The plaintiff claimed that Syngenta violated the federal Lanham Act by making certain false or misleading representations, beginning in July 2011 and continuing through 2013, regarding Chinese import approval of corn containing MIR 162. The plaintiff argued that Syngenta's representations misled purchasers of Viptera and that if Syngenta had not made such false or misleading representations, "growers could have avoided a trade disruption by refusing to buy or plant Viptera seed. The plaintiff based its claims on representations by Syngenta beginning in July 2011. The plaintiff also claimed that Syngenta commercialized Viptera in time for the 2011 growing season and that farmers would have purchased seed for that season between October 2010 and March 2011, in time for planting in Spring 2011. Thus, Viptera seed had already been planted by the time of the alleged representations beginning in July 2011. Therefore, the court determined that the plaintiff’s stated theory of causation was not plausible given the dates of the alleged representations underlying these claims. Thus, the claims were subject to dismissal. The court also determined that because consistency of results is best achieved by application of the law of a plaintiff’s state of residence, where the plaintiff suffered the alleged financial injury, Connecticut law should apply to the plaintiff’s common-law tort claims. Syngenta argued that the plaintiff’s negligence claim was barred under Connecticut law by the contractual Economic Loss Doctrine (ELD) to the extent that the claim was based on "damages for U.S. corn shipments that were rejected, delayed, or diverted allegedly because of the presence of MIR162 corn in those particular shipments.” The economic loss doctrine bars negligence claims that arise out of and are dependent on breach of contract claims that result only in economic loss. However, in this case the plaintiff did not enter into a contract with Syngenta. Syngenta claimed that the ELD applied because Syngenta supplied an input that it sold to farmers, who used the seed to grow corn that they sold to the plaintiff. Syngenta argued that application of the ELD in such a situation would serve the doctrine's rationale of precluding liability if the plaintiff and other parties within the chain had the opportunity to allocate any risks by contract terms or by price. Because Connecticut’s courts have never recognized application of the ELD to all parties within a chain of contracts or to parties supplying a component part of a good the court refused to accept Syngenta’s argument. Therefore, the court did not extend Connecticut law to preclude the plaintiff’s claim. In re Syngenta Ag Mir 162 Corn Litig., No. 14-md-2591-JWL, 2018 U.S. Dist. LEXIS 8179 (D. Kan. Jan. 19, 2018).

Posted January 20, 2018

State Right-To-Farm Law Not Applicable To Marijuana Production. Police detectives went to the defendant’s residence after a “utility inquiry” showed excessive electricity use consistent with marijuana cultivation. The defendant answered the door and consented to a search. Police discovered more than 300 live marijuana plants. The defendant told police that he was growing marijuana for his personal use and to help pay his step-children’s debts. The defendant was charged with producing a controlled substance in violation of Mo. Stat. Ann. §195.211 (count I), possession of a controlled substance with intent to distribute in violation of Mo. Stat. Ann. §195.211 (count II), and possession of drug paraphernalia in violation of Mo. Stat. Ann. §195.233 (Count III). The defendant filed a motion to dismiss counts I and II arguing that Secs. §§195.211 and 195.017 were unconstitutional, both facially and as applied, because the statues violated the constitutional right to farm guaranteed by article I, section 35 of the Missouri Constitution. The trial court overruled the defendant’s motion to dismiss. The defendant appealed. Article I, section 35 of the Missouri Constitution provides: “That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri’s economy. To protect this vital sector of Missouri’s economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.” The defendant argued on appeal that as a result of this section, his marijuana cultivation and harvest was constitutionally protected. On further review, the Missouri Supreme Court pointed out that article I, section 25 consists of a prefatory sentence and an operative sentence. The prefatory sentence recognizes “agriculture which provides food, energy, health benefits and security is the foundation and stabilizing force of Missouri’s economy.” The operative clause provides “the right of farmers and ranchers to engage in farming and ranching practices shall forever be guaranteed.” The court held that the scope of constitutionally protected farming and ranching practices is therefore, informed by the prefatory clause as including those practices that are part of the agricultural sector of Missouri’s economy. In addition, because the section expressly recognizes that farming and ranching practices are subject to local government regulation, it would be absurd to conclude Missouri voters indented to implicitly nullify or curtail state and federal regulatory authority over the illegal drug trade. Consequently, the trial court’s decision overruling the defendant’s motion to dismiss was affirmed. State v. Shanklin, No. SC96008, 2017 Mo. LEXIS 578 (Mo. Sup. Ct. Dec. 5, 2017).

Posted December 25, 2017

Negligence Action Barred by 15-Year Statute of Repose. The defendant manufactured a pre-engineered metal building and delivered it in an unassembled state to a company in September of 2000. The company the assembly of the building in March of 2001, and the plaintiff bought the property on which the building was located. The building collapsed in December of 2015. In January of 2016, the plaintiff sued the defendant for negligence in design and manufacture of the building. The defendant moved for summary judgment on the basis that the action was barred by the 15-year statute of repose under state (IA) law. The trial court granted the motion and the plaintiff appealed. The appellate court upheld the trial court’s determination, noting that the statute (Iowa Code §614.1(11)) starts the 15-year period upon the design or manufacture of the building that gave rise to the alleged injury. That date was clearly on or before September of 2000. Thus, the statute was tolled no later than September of 2015, and the plaintiff’s suit that was filed in January of 2016 was untimely. Van Wall Equipment, Inc. v. BC Steel Buildings, Inc., No. 17-0685 (Iowa Ct. App. Dec. 20, 2017).

Posted December 23, 2017

State Right-To-Farm Law Negates Village Ordinance As Applied to Defendant’s Calf-Raising Activity. The defendant operated a calf-nursing farm that she purchased with her husband in late 2014 inside the boundaries of the plaintiff, a rural village with a population of 600 in northwest Illinois. The plaintiff claimed that the defendant’s farm violated an ordinance of the plaintiff. The defendant’s farm was operated on a small tract that also contained the defendant’s home. The defendant’s business plan was to raise 4-H club calves and sell them to local youth and businesses. At the time the plaintiff alleged a violation of the ordinance, the defendant had 19 calves in inventory. In the spring of 2016, the plaintiff had changed from raising hay to the calf-raising activity. In the summer of 2016, the plaintiff enacted the ordinance at issue that declared that “the presence of certain animals” in the village to be a nuisance and barred the keeping of cattle (among other animals and foul) in the village. The ordinance established a daily fine of between $100 and $750. A local police officer issued a citation to the defendant 12 days after the ordinance was enacted even though no complaint had been raised concerning the defendant’s farm. The defendant asserted that the ordinance was preempted by the state right-to-farm law (ILCS 70/0.01, et seq.) exempting certain ag property (any parcel of land used for the growing and harvesting of crops; for the feeding, breeding and management of livestock; for dairying or for any other ag or horticultural use or combination thereof) from nuisance actions after it has been operation as a farm for a year. The state law was enacted in 1981 and has remained unchanged. The trial court ruled for the plaintiff on the basis that the defendant had changed the business on the property from a permissible farming operation to an impermissible “feedlot.” The trial court determined that the defendant’s farm began operating upon acquiring the calves in the spring of 2016 and, thus, had not been in operation for at least a year of the date of the ordinance’s enactment. The trial court found the defendant guilty of one violation of the ordinance and imposed a fine of $100/day for every day of violation after the expiration of an eight-week grace period during which time the defendant was to remove the calves from the property. On appeal, the court reversed. While the appellate court noted that the village had the right to enact a nuisance ordinance, state law trumped the ordinance as applied to the defendant based on the plain language of the right-to-farm law which did not limit the type or scope of ag activity that qualified as a “farm” and the legislative history behind the law that indicated that the statute should be interpreted broadly. Under the right-to-farm law, the court noted, it was immaterial that the defendant had changed the ag use of the property because the only requirement of the right-to-farm law was that the use of the property remain agricultural. It had. Because of that, an ag use had been conducted continuously on the property for more than a year before the plaintiff’s enactment of the ordinance. The appellate court reversed the trial court’s decision and vacated the trial court’s decision. Village of Chadwick v. Nelson, No. 2-17-0064, 2017 IL App (2d) 170064 (Ill. Ct. App. Dec. 15, 2017).

Posted November 24, 2017

Recreational Land Use Act Shields Landowner From Liability. The plaintiff, a thirteen-year-old girl, was riding a motorbike on the defendant’s land. The plaintiff and her two adult siblings rode to the plaintiff’s property where they asked for and received permission from the defendant to use the dirt track on his land. The defendant sat on a swing inside the track and watched the plaintiff and her siblings ride. The plaintiff’s brother proposed that she jump two small hills on the track. The defendant heard the conversation, and in his view her brother was encouraging the plaintiff to try the jump. The plaintiff’s testimony was consistent with this description. Twice, the plaintiff and her dirt bike merely rolled over the hills. On her third attempt. She cleared the first hill but crashed into the second, flipping over the handlebars and sustaining a spinal injury resulting in paraplegia. The plaintiff’s mother sued the defendant, claiming that he was grossly negligent or engaged in willful or wanton misconduct by failing to warn the plaintiff of the dangers on the track and by failing to properly supervise her ride. The defendant moved for summary judgment arguing that the state (MI) Recreational Land Use Act (RLUA) barred the plaintiff’s claim because she assumed the risks of riding on the track and because he was not grossly negligent or willfully careless of her safety. The trial court denied the defendant’s motion, ruling that a question of fact existed regarding whether the defendant had been grossly negligent. The defendant appealed. The appellate court determined that that the RLUA had the effect of classifying the plaintiff’s dirt bike as an “ORV” – an off-road recreation vehicle capable of cross-country travel without benefit of a road or trail. As such, the RLUA specified that those “who participate in the sport of ORV riding accept the risks associated with that sport insofar as the dangers are inherent”. The appellate court concluded that, as a matter of law, the plaintiff accepted the risk that she could be injured by attempting to jump the small hills. In addition, the appellate court noted that the Michigan Supreme Court has made clear that the RLUA applies regardless of age, even when minors are injured. Thus, the defendant had no duty to warn the plaintiff of the risks of jumping the hills, and the plaintiff had not presented the court with any authority stating that the defendant had a duty to supervise the plaintiff. Because the plaintiff had ridden on the track twice before and was with her adult stepbrother who encouraged her to try the jump, the appellate court determined that reasonable minds could not differ regarding whether the defendant’s conduct rose to the level of gross negligence. Consequently, the court reversed the trial court’s summary judgment ruling and remanded for entry of judgment in the defendant’s favor. Greenia v. Pfeiffer, No. 332841, 2017 Mich. App. LEXIS 1768 (Mich. Ct. App. Nov. 2, 2017).

Posted November 18, 2017

No Recovery for Bull Attack at Rodeo. The plaintiff attended a bucking bull rodeo that the defendant hosted and managed. At some point during the event the plaintiff left the stands to purchase food and rodeo merchandise with his fiancée from a vendor’s tent located approximately 80-feet from the ring. While standing at the cart, a loose bull struck the plaintiff. The bull hit one other patron before being corralled. The plaintiff was offered medical attention but refused and returned to the arena to watch the rest of the rodeo. The plaintiff suffered bruising and pain from his collision with the bull and eventually sought treatment at the hospital. Between 2012 and 2015 the plaintiff underwent surgical and rehabilitative procedures to treat chronic and persistent pain that he attributed to the collision. During rodeo events, the defendant divides the bulls among fifteen holding pens each of which typically held three to five bulls at a time. Each holding pen is equipped with what the defendant refers to as the “strongest gate on the market,” and each holding pen is surrounded by a secondary fence meant to keep rodeo spectators away from the bulls. The gate for the secondary fence is not supervised. The bull that got loose weighed about 1,300 pounds and escaped from a holding pen where it was waiting its turn in the rodeo. The bull stuck his head between two bars of the gate and pushed it up with his neck until the gates started bending. According to a rodeo manager the bull “pretty much crinkled it up, and then once the weakness of the pipe gave way the bull went right out underneath it”. The plaintiff sued, alleging that the defendant was negligent on for failing to secure the bull to protect business invitees, strict liability for owning a wild animal, and strict liability for owning an abnormally dangerous domestic animal. The trial court found that the plaintiff had satisfied two elements of the negligence claim—duty and damages—but had not proved that the defendant breached a duty of care or that the defendant’s actions caused the plaintiff’s damages. In addition, the court found that the plaintiff failed to provide evidence that the defendant knew or should have known that this particular bull was prone to attack a spectator. On appeal, the appellate court affirmed determining that the plaintiff’s complaint did not allege anything about the behavior or tendencies of bulls in general, or rodeo bulls in particular which purported to distinguish this bull from the broader universe of domestic cattle. Thus, the complaint failed to allege facts on which the trial court could have grounded a ruling that rodeo bulls in general or this bull in particular were abnormally dangerous or had a known dangerous propensity. Consequently, the trial court did not err in granting the defendant’s motion for judgment as to strict liability. Similarly, the appellate court found that the plaintiff had not produced evidence that the defendant was negligent in failing to confine Bull 920, that the holding pen gate might fail, or that the bull would not have escaped but for the defendant’s negligence. The court noted that the holding pen gate failed because the bull bent which could suggest a product failure. The appellate court also noted that there was no evidence that the defendant contributed to the gate failure or acted in a negligent manner that caused the bull to escape. Phillips v. J Bar W, Inc., No. 1167 2017, Md. App. LEXIS 1071 (Md. Ct. App. Oct. 27, 2017).

Posted November 10, 2017

Failure to Prosecute Case Against Wind Energy Company Leads to Dismissal. The plaintiffs, a married couple, sued the defendant for nuisance and sought damages and injunctive relief. They claimed that the defendant’s installation of wind towers near their home constituted a nuisance. The plaintiffs lawyer, however, did nothing to advance the prosecution of the case, did not answer the defendant’s discovery requests and otherwise did nothing to move the case forward. The trial was rescheduled multiple times and the plaintiffs’ lawyer ultimately withdrew from the case. A new lawyer designated witnesses and served the defendant with discovery requests. That lawyer also ceased representation, and a third lawyer took up representation of the plaintiffs. The defendant motioned for partial summary judgment, and the plaintiffs amended their petition to add a claim for negligent construction, placement and operation of the wind towers. The trial was again continued with the defendant again filing more motions to dismiss. Ultimately, the trial court dismissed the case based on the plaintiffs’ failure to obey court orders to provide or permit discovery concerning the calculation of damages. The plaintiffs appealed. The appellate court affirmed, noting that the trial court had imposed a monetary sanction on the plaintiffs’ lawyer for failure to provide discovery and that the plaintiffs had failed to disclose an updated damage calculation as ordered. Those failures, the appellate court noted, delayed witness depositions and delayed the trial. The appellate court noted that their lawyer’s conduct served as the basis for the trial court dismissing the case. The appellate court held that the trial court properly dismissed the case. Reuter v. Osceola Windpower, L.L.C., No. 16-2088, 2017 Iowa App. LEXIS 1123 (Iowa Ct. App. Nov. 8, 2017).

Posted November 9, 2017

Removal Of Fence Constituted Spoliation Of Evidence. The plaintiff was injured in a vehicle accident with black cow on a public roadway. It was undisputed that the cow belonged to the defendant and that the cow escaped its pasture after breaking the top strand of a barbed-wire fence and pushing over a four-foot section of the fence. After the accident, the defendant repaired the broken section of fence by fixing and tightening the broken barbed-wire strand, putting in two new posts, and pulling up the rest of the knocked-over section of the fence. The plaintiff sued the defendant for the negligent failure to have, maintain, inspect and repair safe fencing in order to keep his cattle enclosed. The defendant later used a backhoe to remove the entire fence and replaced it with a new fence. The plaintiff filed a motion for sanctions, arguing that the defendant committed spoliation of evidence by intentionally removing and replacing the fence at issue in this case, and by failing to keep or otherwise preserve the original fence. The defendant then filed a motion for summary judgment, arguing that the court should grant summary judgment in his favor because the plaintiff did not present any evidence that the defendant breached any duty of care with respect to the kind and quality of fence enclosing the defendant’s property. In addition, the plaintiff filed a motion in limine asking the court to allow him to present evidence at trial regarding the defendant’s immediate post-accident repairs to the fence and his subsequent total removal and replacement of the fence. The court held that the defendant had a duty to preserve the fence because he had been put on notice by the complaint that the fence was at issue in the plaintiff’s current lawsuit. The court stated the fact that the defendant did not attempt to replace his fence during the nearly six months that passed between the accident and the filing of this action and instead only did so shortly after being served with the plaintiff’s complaint created a sufficiently strong inference of intent. Thus, the court found that the defendant intentionally destroyed relevant evidence in furtherance of a “desire to suppress the truth.” In addition, the court found that the plaintiff was prejudiced by the defendant’s removal and disposal of the fence because the plaintiff’s negligence claim against the defendant centered around the fence, and the plaintiff was not unable to inspect and evaluate the fence, obtain expert opinions regarding the fence’s condition at the time of the accident, or cross-examine the defendant regarding the fence. Accordingly, the court found that the plaintiff demonstrated prejudice resulting from defendant’s removal of the fence. The trial court also instructed the jury that it could infer that the disposed-of section of fence at issue would have been favorable to the plaintiff and unfavorable to the defendant. Finally, the court held that the defendant’s immediate post-accident repairs to the fence were a subsequent remedial measure, as they were undertaken to make an earlier harm less likely to occur. As such that evidence of his immediate post-accident repairs to the fence was inadmissible to show negligence under the subsequent remedial measure rule. Ragan v. Stafford, No. 4:16-cv-4097, 2017 U.S. Dist. LEXIS 173659 (W.D.Ark. Oct. 20, 2017).

Posted November 7, 2017

Beaver Dam Nuisance Case Dismissed For Lack Of Jurisdiction. In October 2013, the plaintiffs purchased property adjacent to the defendants. After the 2014-2015 winter, a field on the plaintiffs’ property began to flood. The plaintiffs claimed that the excess water came from the defendant’s property. After investigation, the plaintiffs discovered that the U.S. Department of Agriculture held a conservation easement over portions of the defendant’s property and that this portion of the property contained a beaver colony with numerous beaver dams. The plaintiffs claimed that the excessive water coming from the beaver dams constituted a nuisance, established a trespass by nuisance and violated the easement agreement. The plaintiffs sued the defendants and the federal government for trespass, nuisance, constitutional tort, and breach of the easement agreement. The plaintiffs requested compensatory damages, injunctive relief, and attorney’s fees and costs. The court determined that even though the plaintiffs had omitted any express reference to the Constitution’s Takings Clause in their complaint, they nonetheless named the federal government as a necessary party on the basis that, in order to secure the requested relief, it will be necessary to obtain an order enforceable against the federal government for the purpose of preventing the further deprivation of the rights in their property. The court determined that this essentially amounted to a takings claim, and that neither injunctive nor declaratory relief was available. However, because the amount in controversy exceeded $10,000, the court lacked jurisdiction to hear the takings claim. Thus, the federal government’s motion to dismiss was granted and the plaintiffs’ claims were dismissed without prejudice. In addition, the court determined that it lacked subject-matter jurisdiction to hear the plaintiff’s case against the defendant. As a result, the court determined that it must dismiss the action against the defendant and the plaintiffs’ claims were dismissed without prejudice. Schwent v. United States, No. C16-5708 BHS, 2017 U.S. Dist. LEXIS 174480 (W.D. Wash. Oct. 19, 2017).

Posted November 4, 2017

Difficulty In Calculating Damages Does Not Prevent Dairy Owner From Collecting Damages In Nuisance Claim. In October 2013, the plaintiffs sued the defendant claiming that the defendant’s electrical system caused damage to the plaintiff’s dairy operation. The plaintiff alleged that the defendant was negligent in its maintenance of the system, which allowed stray voltage to come into contact with the plaintiff’s dairy herd thereby causing decreased milk production and a reduction in breeding. In addition, the plaintiffs asserted a nuisance claim. The case proceeded to a jury trial and the jury returned a verdict in favor of the plaintiffs concluding that the defendant was 80 percent at fault. The jury awarded damages in the amount of $500,000, and the trial court entered judgment against the defendant for $400,000 on the negligence claim. Thereafter the defendant filed a post-trial motion for judgment notwithstanding the verdict or in the alternative for a new trial. The defendant alleged that the plaintiff failed to offer evidence at trial from which the jury could calculate damages for lost profits. Alternatively, the defendant asserted it was entitled to a new trial. The trial court granted the defendant’s motion concluding that the plaintiff did not present significant evidence of their anticipated revenues, but merely presented an estimate of lost milk and a published figure for the average price of milk per year. The trial court concluded, alternatively that the defendant was entitled to a new trial based on the fact that the jury’s award lacked evidentiary support and indicated “an unaided and uneducated guess at how much profit the dairy was likely to realize out of their lost milk production revenue.” The court then vacated the judgment for the plaintiff and entered a judgment in the defendant’s favor. The plaintiff appealed, claiming that the jury could have determined the expenses based on the evidence submitted, particularly the testimony provided by the defendant’s expert. The expert submitted graphs showing the monthly gross revenue and testified as to the net income of the plaintiff’s dairy operation. The appellate court determined that it must consider all the evidence not just the evidence offered by the plaintiffs when determining whether substantial evidence supported the jury’s verdict. The jury instruction submitted by the court to the jury directed them how to calculate the plaintiff’s damages. In order to calculate the plaintiff’s loss, the jury had to subtract the “variable expenses from revenues.” The plaintiff supplied a single number for lost revenues over a period of five years but he also testified that his lost revenue number did not have anything to do with his cost. The court determined that while the plaintiff did not submit evidence of an expense figure, the jury could have arrived at an expense figure by using the graphs submitted by the defendant’s expert. Thus, no matter how the jury arrived at the verdict award, the court held that the evidence was clearly sufficient in the record that the plaintiff sustained damages. The court admitted that it might be hard to ascertain such a loss with preciseness and certainty, however, it held that the wronged parties should not be penalized because of that difficulty. In addition, the data supplied by the expert provided a basis from which the jury could have approximated the plaintiff’s lost profits. The court found the evidence sufficient to remove the issue of damages from the realm of speculation. Thus, the court reversed the trial court’s grant of the defendant’s motion for judgment notwithstanding the verdict. In addition, the court held that the evidence amply supported the jury’s verdict. Thus, the trial court abused its discretion in granting the defendant’s alternate motion for a new trial and the appellate court reversed the trial court’s decision and remanded the case for judgment consistent with the jury’s verdict. Burdick v. Interstate Power and Light Co., No. 16-0821, 2017 Iowa App. LEXIS 1098 (Iowa Ct. App. Oct. 25, 2017).

Posted November 2, 2017

Damages Available But No Injunction From Effects of Whiskey Fungus. The plaintiff owns property near the defendant’s whiskey warehouses in which are contained barrels of aging bourbon. As it ages, bourbon interacts with the barrel as the liquid expands and contracts based on ambient temperature and air flow. The plaintiff’s complaint centers around fugitive ethanol emissions that escape from the barrels during this aging process. The fugitive emissions promote the growth of the Baudoinia compniacensis fungus, colloquially referred to as “whisky fungus.” The plaintiff alleged that the whiskey fungus caused a black film-like substance to proliferate on his property, covering virtually all outdoor surfaces including wood, vinyl, metal, and concrete. The plaintiff sued, seeking damages based on several state tort theories and also sought injunctive relief. The defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted. The trial court granted the defendant’s motion, determining that the federal Clean Air Act (CAA) preempted the plaintiff’s claims. The plaintiff appealed and the Court of Appeals reversed and remanded holding that the CAA did not preempt the plaintiff’s claims. The plaintiff again appealed. The Supreme Court of Kentucky pointed out that the CAA has a savings clause which reserves to the states the power to adopt and enforce more stringent standards than those that the CAA establishes. In addition, the court reviewed the legislative history of the CAA as well as U.S. Supreme Court precedent construing the provisions of the CAA and the virtually similar Clean Water Act, along with opinions from other federal courts. The court determined that there was a strong presumption against preemption in the field of environmental regulation. Thus, the court agreed with the Court of Appeals that the CAA did not preempt the plaintiff’s state tort causes of actions. However, the court’s limited holding noted that the CAA does not preempt the plaintiff’s state law tort claims seeking damages. The court determined that by seeking an injunction demanding a particular pollution-control technology, the plaintiff was asking the trial court to second-guess the reasonableness of a decision that the CAA specifically entrusted to Metro District and the EPA. The court held that for the trial court to issue the injunction that the plaintiff was seeking would impose a higher standard than the CAA requires. As are result, the Kentucky Supreme Court reversed the appellate court insofar as it allowed injunctive relief. Brown-Forman Corp. v Miller, No. 2014-SC-000717-DG, 2017 Ky. LEXIS 428 (Ky. Sup. Ct. Sept. 28, 2017).

Posted October 27, 2017

Slipping Saddle During Horseback Ride Is Inherent Risk. The defendant offers guest cabins and trail horse rides. The plaintiff was a participant on a trail ride in June 2014. The defendant provided the plaintiff with a supervised equine rental agreement and release form before the trail ride. The agreement stated that saddle girths may loosen during equine activity, which may cause slippage of the saddle and cause the rider to fall. The plaintiff read and signed the agreement. The plaintiff’s horse was saddled before he arrived and consistent with procedure his saddle cinch was checked several times before the plaintiff mounted the horse. The horse was also ridden before the plaintiff arrived and the saddle cinch was checked again after that ride. The plaintiff had a low level of riding experience, and after he mounted the horse, the defendant explained to him how to hold the reins and direct the horse’s movement. The plaintiff then rode the horse around the corral. The defendant’s wife, on horseback, led the riders out of the corral and down the trail at a walking pace. During the ride the plaintiff attempted to re-center the saddle by shifting back and forth in the stirrups. The defendant’s wife became aware that the plaintiff was having a problem when the plaintiff yelled at her. She observed the plaintiff sliding to one side and then attempting to jump off the horse, landing on the ground. The saddle remained affixed on the horse but resting on its side. The horse did not buck or react during the incident. The plaintiff filed a damage action against the defendant asserting negligence generally and specifically mentioning only inaction by the defendant’s wife as the apparent assertion of breach of duty. The defendant moved for summary judgment, arguing that the plaintiff’s accident was caused by a risk inherent in equine activities for which liability is precluded under state (Montana) law - § 27-1-727. The trial court concluded that there were no genuine issues of material fact and granted summary judgment to the defendant reasoning that among the risks inherent to equine activities is the risk that saddle girths may loosen during a ride and cause slippage of the saddle, which may result in a fall. On further review, the MT Supreme Court pointed out that §§ 27-1-725, through 727, referred to as the “Equine Activities Act” provided that if the injury is due to an inherent risk of equine activities and the participant expected that risk, then the equine activity sponsor cannot have been negligent. The plaintiff claimed that the defendant’s failure to inspect the equipment and tack he was using caused the accident and thus his claim fell within the exception stated in § 27-1-727(3)(a)(i) which precludes immunity from liability “if the equine activity sponsor provided the equipment or tack and the equipment or tack caused the injury because the equine activity sponsor failed to reasonably and prudently inspect or maintain the equipment.” However, the Supreme Court concluded that it was an undisputed material fact that the defendant repeatedly checked and inspected the equipment or tack before the trail ride to ensure that they were working properly. The fact that the cinch nonetheless loosened during the ride underscored that this occurrence is an inherent danger or condition of equine activity, about which the plaintiff was expressly advised. As a result, the Supreme Court held that the trial court properly determined that no material facts were in dispute and affirmed the trial court’s judgment. Fishman v. GRBR, Inc., No. DA 17-0214, 2017 Mont. LEXIS 602 (Mont. Sup. Ct. Oct. 5, 2017).

Posted October 26, 2017

In Fence Dispute, “Right-Hand Rule” Deemed “Fair” and Statute Only Set Minimum Requirements. The parties owned adjacent tracts separated by a 600-foot partition fence. The defendant, relying on the “right-hand rule,” maintained the west 300 feet of the fence. In 2010, following several instances of cattle escaping onto his land via the east half of the fence, the defendant verbally advised the plaintiff that the plaintiff needed to repair that portion of the fence. The plaintiff declined to fix the fence stating that “that’s not what the law requires” and that he already had “too many projects.” In April 2011, the defendant repeated his demand in writing but the plaintiff still failed to repair the fence. The defendant requested that the fence viewers view the fence and, in late April, the township trustees, acting in their capacity as fence viewers, viewed the fence. The trustees with advised the defendant that he was only responsible for the west half of the fence under the right-hand rule. The defendant then rebuilt the west-half of the fence. In October 2011, the defendant served the plaintiff with a “notice to adjoining landowner” advising him that the fence dispute would be turned over to the township trustees if the plaintiff’s portion of the fence was not repaired or replaced within thirty days. The plaintiff did nothing within that timeframe, and the defendant filed a complaint with the township trustees. The trustees conducted a fence viewing in March 2012 and observed that the east 300 feet of the fence “was in very poor condition” and could not maintain livestock. The trustees issued a notice of findings which concluded that, pursuant to the right-hand rule, the defendant was responsible for the west half of the fence and the plaintiff was responsible for the east half. The trustees ordered the plaintiff to “erect and maintain the East half of the fence” with “five barbed wires attached to posts, no more than 10 feet apart”. The plaintiff subsequently appealed the trustees’ decision to the district court. The district court concluded that the right-hand rule was “a customary practice” and “fair and equitable,” and ordered the plaintiff to replace the east half of the fence “with a five- stranded barbed wire fence consistent with the historic fence which has been utilized by the parties and their predecessors.” The plaintiff subsequently appealed. On appeal the plaintiff claimed that the district court erred in disallowing evidence of an oral agreement made between the plaintiff and the defendant’s predecessor in interest in which they allegedly agreed that the plaintiff had no obligation to maintain the fence. The appellate court affirmed on all points, first noting that the trial court excluded merely hearsay evidence. In addition, the plaintiff claimed that the district court erred in requiring only him, but not the defendant, to reconstruct and maintain his respective portion of the fence according to certain requirements. The appellate court however, held that the district court’s determination was fair because it was undisputed that the defendant had already reconstructed his portion of the fence and that the plaintiff’s portion of the fence was in disrepair. Finally, the plaintiff claimed that the district court erred in ordering him to build the fence in a manner that didn’t comply with Iowa Code section 359A.18, asserting that the trustees’ order required more of him than the statute required. The appellate court however, held that the term “legal fence” as defined in the statute was not a prescription for how every partition fence must be constructed or what fence viewers must require, but merely established a minimum standard for a “legal fence.” Hopkins v. Dickey, No. 16-1109, 2017 Iowa App. LEXIS 1087 (Iowa Ct. App. Oct. 25, 2017).

Posted October 23, 2017

City Has The Same Fence Viewer Requirements As Town. Wisconsin fence law, Chapter 90 of the Wisconsin Code, regulates partition fences on farming and grazing land. Farming and grazing land is referred to as “qualifying land.” Chapter 90 provides fencing specifications, requires adjoining landowners to share costs, and provides dispute-resolution procedures for adjoining landowners. Chapter 90 makes it clear that when qualifying land is in a town, the town is responsible for administering and enforcing the fence law. However, Chapter 90 is unclear as to whether cities and villages are responsible for administering an enforcing the chapter when adjoining lands are within their boundaries. The plaintiffs own fenced farming land in the City of Watertown, Wisconsin. Chapter 90 requires them to maintain a partition fence between their land and neighboring residential properties. The cost and maintenance of the fence resulted in a dispute between the plaintiffs and their neighbors. The plaintiffs have a right under Chapter 90 to have the appropriate local government entity resolve the dispute and asked the City to assume Chapter 90 duties to resolve the dispute, but the City refused to assume those duties. The plaintiffs sought a court declaration of the parties’ respective rights. The plaintiffs argued that, read most reasonably, Chapter 90 provides that the City must assume Chapter 90 duties for the land located in the City. The City however, contended that the plaintiffs’ complaint against the City must be dismissed because the terms of Chapter 90 apply to towns not cities. The circuit court concluded that Chapter 90 is ambiguous and agreed with the plaintiffs that Chapter 90 is most reasonably read as applying to cities the same as towns. The City appealed. The appellate court noted that most governmental duties under Chapter 90 are discharged by “fence viewers.” The first section of Chapter 90 defines fence viewers as “the supervisors in their respective towns, the alderpersons of cities in their respective aldermanic districts, and the trustees of villages in their respective villages”. However, most of Chapter 90’s references to fence viewers refers expressly only to “town fence viewers”. The appellate court determined that the inconsistency of the use of the terms “cities” and ‘villages” in Chapter 90 lead them to agree with the circuit court that the chapter is ambiguous because well-informed people would have become confused as to whether Chapter 90 requires cities and villages to administer and enforce Chapter 90 the same as towns. The court turned to legislative history to clear up the ambiguity in Chapter 90. The court determined that the omission of language previously in the 1975 statutes from the 1878 revised statutes which stated that fence viewers must “discharge the duties imposed upon fence-viewers of the several towns, as provided by this chapter,” did not intend to significantly change the law. In addition, a revisers’ note indicates that the version pf the fence viewing law published in the 1878 revised statutes was intended to carry the 1875 act forward, with some clarification. As a result, the court determined that § 1389 of the 1878 revised statutes—created from the 1875 act, and containing essentially the same definition of fence viewers that still exists today was meant to carry forward the 1875 act’s provisions requiring the city and village fence viewers in their respective jurisdictions to discharge the same Chapter 90 duties as town fence viewers do in theirs. Consequently, the appellate court affirmed the circuit court’s order declaring that the City must assume Chapter 90 duties with respect to the plaintiff’s land. White v. City of Watertown, No. 2016AP2259, 2017 Wisc. App. LEXIS 802 (Wisc. Ct. App. Oct. 12, 2017).

Posted October 6, 2017

No Evidentiary Errors In Wrongful Death Suit Involving Collision With TerraGator. The plaintiff’s vehicle was struck on a gravel road at an uncontrolled intersection by a TerraGator, a piece of agricultural machinery used to spread manure and having large tires and weighing approximately 20,000 pounds. The TerraGator was operated at the time by the defendant. The defendant was thrown from his vehicle and survived though he suffered a number of injuries and was hospitalized for two weeks. The plaintiff died at the scene as a result of the collision. The executor of plaintiff’s estate (her husband) filed a wrongful death lawsuit. The matter proceeded to a jury trial and the jury determined that the plaintiff was 60 percent at fault and the defendant was 40 percent at fault. As a result, the trial court dismissed the plaintiff’s wrongful death claim. The plaintiff subsequently appealed, claiming that the district court abused its discretion in deciding a number of evidentiary issues. Importantly, before the trial began, the defendant filed a motion in limine asking the court to rule that the plaintiff could not present evidence that the TerraGator had a sticker on the steering wheel that warned against exceeding thirty miles per hour because “tires may overheat and fail causing injury or death”. The trial court granted this motion excluding any evidence of the sticker. The plaintiff claimed that this was error because it showed that the defendant was not exercising reasonable care and the speed was relevant to the element of causation. The appellate court determined that the jury was not being asked to decide generally whether the defendant exercised reasonable care in driving the TerraGator. Instead, the appellate court determined that the jury was instructed to decide if the defendant was negligent in one or more of three ways: 1) failing to maintain a proper lookout; 2) failing to yield his vehicle; and 3) failing to maintain proper control of TerraGator. Because the plaintiff did not explain how a sticker stating that tires may fail at speeds over thirty miles per hour affected the defendant’s exercise of reasonable care in one of the three listed ways the court determined that the trial court did not err in deciding to exclude the evidence of the sticker. In addition, the appellate court pointed out that the evidence of the defendant’s speed at the time of the accident was not excluded, only the evidence about the existence of the sticker. Also, during the defense’s opening statement, defense counsel asked the rhetorical question, “So if Cynthia sees this TerraGator coming and realized that there’s about to be a collision, and she’s only going 20 miles an hour and has steering control, why wouldn’t she have steered away to one ditch or the other?” The plaintiff claimed that this statement was an impermissible form of arguing the defendant’s case because it planted an unanswerable question in the minds of the jury that could only cause the jury to speculate through the entire trial why Cynthia chose one form of danger over another. However, the court determined that even if they found that the trial court abused its discretion in overruling the plaintiff’s objection to the statement, they could not find that the statement was prejudicial as to warrant a new trial because the jury was instructed that the statements made during opening statements were not evidence. Because the appellate court found no reversible error, the decisions of the trial court were affirmed. Fox v. Rechkemmer, No. 16-0849 2017, Iowa App. LEXIS 968 (Iowa Ct. App. Sept. 27, 2017).

Posted October 1, 2017

Recreational Use Statue Barred Liability for Pond-Related Accident. The defendant town owned and maintained a recreation area that contained walking paths and a pond. The area is open to the public free of charge. Since approximately 2012, a rope swing has been attached to a tree overhanging the pond. The town did not construct nor does it maintain the swing. On August 20, 2015, the plaintiff’s son was at the pond and standing in the path of the person using the swing while attempting to touch the feet of the person swinging on the rope. The two-people collided and the plaintiff’s son was seriously injured. The plaintiff filed a complaint against the town on his son’s behalf alleging that the town acted negligently and willfully by failing to remove the rope swing or post warning signs. The town filed a motion to dismiss arguing that the plaintiff’s suit was barred by one or both of the recreational use immunity statutes. The trial court granted the town’s motion to dismiss and denied the plaintiff’s motion to reconsider. The plaintiff subsequently appealed. State (NH) law (R.S.A. 212:34) provides that “a landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions…on such premises to person entering for such purposes”. The plaintiff argued that the trial court erred when it found that his son was engaged in an outdoor recreational activity. R.S.A. 212:34 includes a list of activities which are considered outdoor recreational activities. The appellate court determined that an activity not specifically enumerated in the statue but similar in in nature to the activities listed in the statue may constitute an outdoor recreational activity. One of the activities included in the list is water sports. Because “water sports” is similar in nature to the activity in this case, the appellate court determined that the plaintiff’s son was engaged in an outdoor recreational activity under R.S.A. 212:34. The plaintiff also argued that his son’s conduct did not constitute outdoor recreational activity because in order to qualify as such an activity it must be authorized by the landowner. However, the court determined that the plain language of the statue provided no support for this argument. The plaintiff also argued that because the town knew of the hazard posed by the swing and took no action to remove it or post warning signs the town willfully failed to guard against a dangerous condition which would fall under the exception to R.S.A. 212:34. However, the appellate court determined that the plaintiff failed to establish that the town had actual or constructive knowledge that the injury was probable as opposed to a possible result of the danger. As a result, the court determined that the plaintiff’s allegations were insufficient as a matter of law to establish that the town acted willfully. Consequently, the decision of the trial court granting the town’s motion to dismiss was affirmed. Kurowski v. Town of Chester, No. 2016-0406, 2017 N.H. LEXIS 174 (N.H. Ct. App. Sept. 21, 2017).

Posted September 28, 2017

Trail Building Project Triggered a $70,100 Damage Award. The defendant had a trail constructed along a ravine between his property and adjacent land in rural Boone County, Iowa. The defendant approached the adjacent property owner, the plaintiff in this case, about his plan and she told him she did not want him on her land at all. However, the defendant went forward with the project relying on and old fence, a shed and a roofline to gauge the boundary. After the completion of the project, the plaintiff sued for trespass, loss of lateral support and loss of trees. The jury awarded the plaintiff damages of $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. The defendant appealed. Iowa Code § 658.4 states that for willfully injuring any timber, tree or shrub on the land of another…the perpetrator shall pay treble damages at the suit of any person entitled to protect or enjoy the property.” The defendant argued that the plaintiff failed to show that he willfully destroyed her trees. However, the court determined that the fact that the plaintiff specifically told the defendant not to enter onto her land coupled with the fact that the defendant did not use a surveyor to determine the property line constituted substantial evidence of a finding of willfulness and evidence that he acted without a reasonable excuse. The defendant also argued that the concept of diminution of value also should have been incorporated into the jury instructions for determining the measure of damages. The defendant claimed that it was a dispute whether the land could be restored to its natural condition and if the property could not be restored to its natural state, the measure of damages would be the value of the property before the trespass diminished by its value after the trespass. The court pointed out that the instruction for diminution of value was given separately from the primary damages instruction. In addition, the court pointed out that it is a general rule of Iowa law that damage for repairs to property is the fair and reasonable cost or repair not to exceed the value of the property immediately before the loss or damage. Therefore, because there was undisputed evidence that the embankment was repairable there was no basis for the addition of a diminution-of-value measure of damages in the general damages instruction. As a result, the court determined that the district court did not err in instructing the jury that the proper measure of damages for trespass and loss of lateral support was the cost of repair. The trial court’s decision was affirmed. North v. Van Dyke, No. 16-0165, 2017 Iowa App. LEXIS 885 (Iowa Ct. App. Sept. 13, 2017).

Material Question Of Fact Exists If Grandmother Knew Of Vicious Propensities Of Grandson’s Pit Bull. The plaintiff was bitten by her neighbor’s pit bull while shoveling snow in her own driveway. The dog belonged to the neighbor’s grandson who was also residing with neighbor. The plaintiff’s complaint alleged that she was bitten by a dog that was owned by the defendant (the neighbor), and rather than allege a cause of action for strict liability, the plaintiff’s allegations supported a claim for common law negligence. The complaint also alleged that the dog was known to have vicious propensities. The plaintiff testified at her deposition that defendant’s grandson had three dogs that all resided with him at the defendant’s home and that she had observed the dangerous propensities of these dogs on multiple occasions. In addition, she testified that the dogs were always without a leash running around the neighborhood. The defendant maintained that she did not own the dog but that the dog was owned by her grandson who was only staying temporarily with her. However, she did admit to feeding the dogs and letting them out to relieve themselves on a regular basis. The court pointed out that when common law negligence claims are asserted “owner” is used interchangeable with “harborer” or “keeper” in determining whether there was knowledge of a dog’s viscous propensities and a failure to control the animal. The court determined that it was unreasonable to infer that the defendant did not have knowledge of the fact that the dogs were regularly observed running through the neighborhood unleased and were known to chase neighbors down the street. In addition, the fact that the dogs had resided with the defendant for five months at the time of attack and she cared for the dogs on a regular basis when her grandson was not home created a question of material fact regarding the defendant’s knowledge that the dog had viscous propensities. Therefore, it was an error for the trial court to grant summary judgment to the defendant. As a result, the trial court decision was reversed and remanded. Carabello v. Carpenter, No. A-3751-15T2, 2017 N.J. Super. Unpub. LEXIS 2203 (N.J. Ct. App. Sept. 5, 2017).

Posted September 23, 2017

No Gross Negligence In Horseback Trail Riding Accident. The plaintiff and two of her friends took a guided horseback trail ride at the defendant’s resort. Before participating in the ride, the plaintiff signed a release which advised of the risks associated with horseback riding and released the defendant from liability for ordinary negligence. The guide was riding in the front of the group with the members following behind at varying lengths. Once the gaps in the riders became too large the guide instructed the group to stop at a clearing and turned around in an attempt to go back and take the reins of the horse in back which was lagging too far behind the group. As the guide was in the process of doing this, the plaintiff fell off the back of her horse and was injured. The plaintiff sued the defendant for both ordinary and gross negligence. The district court dismissed the ordinary negligence claims on the basis that the plaintiff had released the defendant from liability for ordinary negligence when she signed the release. The district court also held that no reasonable fact finder could conclude that the guide had shown a conscious disregard or indifference to the safety of her riders and, thus, was not liable for gross negligence. The appellate court affirmed, and the plaintiff sought further review by the state Supreme Court. On further review, the Supreme Court found that some of its case law was conflicting with regards to the standard for granting summary judgment on a gross negligence claim. The court clarified that dismissal of a gross negligence claim may be granted where reasonable minds could not conclude that the defendant demonstrated carelessness or recklessness to a degree that shows utter indifference to the consequences. In addition, the court repudiated the holdings of its prior cases that treated the requirement that the standard of care be “fixed by law” as a prerequisite to summary judgment. The court also concluded that the evidence supported that the guide breached the standard of care by proceeding onward to the clearing when the gaps in the horses had increased to over four horse-lengths. However, the court also determined that the plaintiff failed to point to evidence of the differential between the risk associated with the guide’s decision to proceed to the clearing and the risk associated with taking some other action such as stopping and waiting for the gaps to close. The court held that without such evidence there is nothing that would sustain a jury’s finding that the guide’s decision to proceed to the clearing significantly increased the risk of harm to the riders. Consequently, the Supreme Court affirmed. Penunuri v. Sundance Partners, Ltd., No. 20160683, 2017 Utah LEXIS 130 (Utah Sup. Ct. Aug. 25, 2017).

Posted September 6, 2017

Some Damage Claims Against Pipeline Company Continue. The defendant’s natural gas pipeline leaked condensate that the plaintiffs claimed caused property and personal damage to themselves and their property and the fresh water supply of a local community. The plaintiffs claimed that the release created a black, oily smoke cloud that traveled for over three miles. The defendant estimated that the volume of the release was approximately 1,200 gallons of condensate, and nearby residents saw, smelled, sensed, and physically felt the chemicals and compounds. The plaintiffs were an entity (farming operation), multiple individuals, and one parent suing on behalf of her minor child. The plaintiffs sued for strict liability, private and public nuisance, trespass, negligence per se, intentional infliction of emotional distress and negligent infliction of emotional distress. The defendant motioned to dismiss the case for failure to state a plausible claim for relief. The trial court refused to dismiss the case in its entirety because the plaintiffs had set forth some allegations which, if proved, would entitle at least one of them to damages, and itemization of damages was not required to make out a sufficient pleading. More specifically, the trial court did not dismiss the claim for strict liability arising from an abnormally dangerous activity, giving the plaintiffs the chance to establish the claim based on the facts and a consideration of the factors that constitute abnormally dangerous activities. However, the trial court dismissed the claims of private and public nuisance as well as trespass asserted by the individual plaintiffs because those claims required an allegation that the individual plaintiffs owned the land that was harmed, and no such allegation was made. The trial court also dismissed the nuisance per se claim because the plaintiffs failed to allege a specific statute or regulation that the defendant allegedly violated that was the proximate cause of the plaintiffs’ harm. The trial court likewise dismissed the claims of intentional and negligent infliction of emotional distress because the plaintiffs had abandoned the intentional infliction claim and because they failed to state a plausible claim for negligent infliction of emotional distress. Brown v. Panhandle E. Pipeline Co., L.P., No. 16-2428-JAR-TJJ, 2017 U.S. Dist. LEXIS 141749 (D. Kan. Sept. 1, 2017).

Posted September 1, 2017

Landowner Has No Duty To Protect From Injury From Naturally Fallen Tree. An eleven-year-old boy died when he struck a fallen tree while snow sledding at a city park on land that the city held in trust and managed by trustees that constituted a “Park Board.” The plaintiff filed a suit against the trust and its three trustees alleging both negligence and gross negligence. The trial court determined that the trust was a trust and not a governmental unit of the city that would be immune from liability absent gross negligence or wanton conduct, but granted the plaintiff summary disposition due to the open and obvious nature of the conditions on the property. On appeal, the appellate court noted that state (MI) law, MCL 324.73301(1), provides that “a cause of action shall not arise of injuries to a person who is on the land of another without paying the owner, tenant or lessee of the land a valuable consideration for the purpose of…recreational trail use, with or without permission, against the owner, tenant or lessee of the land unless the injuries were caused by the gross negligence…of the owner, tenant or lessee.” The court of appeals determined that the protections afforded by MCL 324.73301 apply only to the traditional premises possessors identified in the statute: landowners, tenants and lessees. Consequently, the inquiry was not what the trustees should have done to make the activity safer, but whether they willfully disregarded the boy’s safety. In addition, the court determined that it didn’t matter that the trustees knew that children were sledding down a wooded hill. They did nothing to make the forest more dangerous and had no duty to make the forest safer. As a result, the evidence did not create a genuine issue of material fact that the trustees were grossly negligent. Nash v. Duncan Park Commission, No. 331651, 2017 Mich. App. LEXIS 1292 (Mich. Ct. App. Aug. 10, 2017).

Posted August 29, 2017

Trail Immunity Statute Inapplicable To Injury in Public Park. The plaintiff and her boyfriend were walking in a city aquatic park when a tree branch fell on the plaintiff causing extensive injuries. The plaintiff sued the city claiming that the city negligently maintained an eucalyptus tree which caused a dangerous condition. The trial court found that the city was immune from liability under the trail immunity statute (Gov. Code, § 831.4) and granted the city’s motion for summary judgment. The plaintiff appealed. The trail immunity statute provides that “a public entity… is not liable for any injury caused by a condition of any unpaved road which provides access to fishing, hunting, camping, hiking, riding, water sports recreation or scenic area and which is not a public street or highway, county state or federal highway or public street.” However, under that facts of the case, the trail did not provide the only access to the dangerous condition. In other words, the plaintiff did not have to use the trail to find herself near the eucalyptus tree. In addition, the dangerous condition did not require the city to improve the trail or alter its design, but only properly maintain the eucalyptus trees. Finally, the park was man-made and the trees in the park were not naturally occurring. As a result, the court of appeals determined that the trail immunity statute did not apply in this situation. Toeppe v. City of San Diego, 13 Cal. App. 5th 921 (2017).

Dicamba Damage Case Proceeds. The plaintiffs are soybean, corn and cotton farmers in New Madrid County, Missouri. They filed this action on behalf of a class of plaintiffs who farm in Alabama, Arkansas, Illinois, Kentucky, Minnesota, Mississippi, Missouri, North Carolina, Tennessee, and Texas whose crops were affected by the defendant’s dicamba herbicide. Plaintiffs filed this action against the defendant alleging that the defendant’s “Xtend” dicamba resistant seed system coupled with the use of dicamba, a drift prone herbicide, resulted in the loss of hundreds of thousands of crop acres. The plaintiffs also claimed that the defendant’s representatives instructed farmers to illegally spray dicamba on their Xtend seeds. The court noted that even to the extent the third-party farmers’ unlawful conduct in using dicamba was foreseeable, that foreseeability was negated by the seeds’ product warning labels which prominently advised that it was illegal to use dicamba with the seeds. However, the allegation that the defendant’s representatives instructed the farmers to spray dicamba negated the effectiveness of the product use labels and made the defendant’s actions the proximate cause of the injuries. In addition, the instruction to use dicamba by the defendant’s representatives created a special circumstance which created a duty to the plaintiffs. The court determined that the defendant knew that dicamba would cause damage to the neighboring crops and released a seed that invited the dangerous herbicide’s use. As a result, the defendant’s motion to dismiss was denied. Landers v. Monsanto Co., No. 1:17-CV-20-SNLJ, 2017 U.S. Dist. LEXIS 131059 (E.D. Mo. August 17, 2017).

Posted August 22, 2017

No Duty To Prevent Truck Drivers From Getting Injured By Cattle. The plaintiff in this case is the mother and sole heir to the decedent. The decedent was a cattle truck driver who was injured on the defendant’s Kansas property, while delivering a load of cattle. The decedent was experienced at working with cattle. He had been around them since his childhood. He previously worked as the manager of a farm and ranch in Oklahoma that had a large cattle operation. He also previously owned his own herd of about 50 head with a neighbor. On the night of his injury the decedent arrived at the defendant’s facility sometime around 3 am and backed his truck up to a receiving pen that was already full from a previous delivery. The defendant had one employee working to assist in unloading the cattle. The decedent exited his truck and entered the receiving pen. The defendant’s employee did not ask him to assist. The defendant’s employee began moving the cattle around to make room for the decedent to unload his cattle. As the employee was walking back he saw the decedent lying on the ground face down with blood coming from his nose and mouth area. The employee called EMS. The decedent was taken to a hospital and later died from his injuries. The plaintiff (the decedent’s mother and sole heir) sued, claiming that the defendant was negligent. The court noted that, under Kansas premise liability law, the duty owed by an owner or occupier of land is one of reasonable care under the circumstances. A landowner, however is under no duty to remove known and obvious dangers. Kansas courts have adopted the Second Restatement of Torts in applying this rule (§343A). The plaintiff claimed that an exception applied, however. But, the court determined that the facts did not support the application of the exception because the decedent was not required to be in the receiving pen to perform his job and the defendant’s employee did not ask the decedent to help. In fact, the two men never even spoke to each other when the decedent was in the pen. Furthermore, the cattle the decedent was helping to move were not even the ones he delivered, they were the ones already in the pen when he arrived. Because the exception to the known and obvious rule was inapplicable, the court determined that the duty issue remained guided by the principles in §343A of the Second Restatement of Torts. The court held that based on the decedent’s background and experience, he was fully aware of the dangers of working with cattle. As a result, the defendant did not owe the decedent any legal duty to protect him from this known and obvious danger. The court granted the defendant’s summary judgment motion on all of the plaintiff’s negligence claims. Gregory v. Creekstone Farms Premium Beef, L.L.C., No. 15-1207-EFM-JPO, 2017 U.S. Dist. LEXIS 116795 (D. Kan. July 26, 2017).

Posted August 19, 2017

Farm Worker Not Covered Under Worker’s Compensation Act. The plaintiff worked for the defendant, a partnership between three brothers engaged in farming corn and soybeans. The plaintiff performed a variety of duties including washing manure off the farm’s trucks, painting the walls of the farm’s shop, sweeping the granary, servicing the trucks and hauling corn and soybeans. The plaintiff was injured when the hose he was using to fill a tanker with fertilizer blew out of the tanker and knocked the plaintiff off the top of the tanker and causing him to fall thirteen feet to a concrete pit below. After regaining consciousness, the plaintiff reported the accident to the defendant and went to the hospital. The plaintiff later filed an application for worker’s compensation benefits with the asserting that the defendant refused to treat his injuries as work-related and had not provided any benefits or medical care as required by the Worker’s Compensation Act (WCA). A single member of the Worker’s Compensation Board (Board) denied his claim on the basis that the plaintiff was a farm or agricultural employee at the time of his injury and was therefore excluded from relief under the WCA as a farm or agricultural employee. The plaintiff sought review by the full Board and the Board held a hearing on his claim. At the conclusion of this hearing the Board affirmed the single member’s decision. The plaintiff then appealed, arguing that he primarily operated a semi-truck on behalf of the defendant and should therefore be construed as a semi-truck driver rather than an agricultural employee. The appellate court determined that whether a worker is a farm or agricultural employee depends on the whole character of the work the employee performs rather than the work performed at the time of the injury, or the nature and scope of the employer’s business. Based on the facts, the appellate court determined that the whole character of the plaintiff’s work was to complete general tasks required around the defendant’s farm. The plaintiff admitted that although he primarily drove a semi-truck for the defendant, the overall character of his employment was to perform any task that needed to be completed on the farm. In addition, his tasks as a semi-truck driver were integrally related to the work of the farm. Because the whole character of the plaintiff’s employment was agricultural in nature, the appellate court affirmed the Board’s decision that the plaintiff was exempt from coverage under the WCA and could not receive worker’s compensation benefits. O’Keefe v. Top Notch Farms, No. 93A02-1702-EX-386, 2017 Ind. App. LEXIS 312 (Ind. Ct. App. Jul. 27, 2017).

Posted August 18, 2017

Pennsylvania Fence Law Is Applicable Even If Only One Party Owns Livestock. The parties own adjacent tracts. The plaintiffs filed a motion to require the defendants to construct a fence line in accordance with a viewer’s certificate. The trial court ordered the appointment of a fence viewer to view and examine the division fence between the parties’ land for purposes of determining the status of the fence and the costs of repairing or replacing the fence. In accordance with these findings, the plaintiffs were authorized to repair the fence where necessary in order to make the fence sufficient to contain livestock and the defendants were ordered to pay one-half of the cost of repairs less a $579.86 credit for earlier repairs. The defendants appealed on the basis that they should have no responsibility to pay any portion of the erection and maintenance of the fence in accordance with 29 P.S. §41 because they don’t own livestock. The trial court noted that both parties’ farms were had been used to graze cattle, and that when an action commenced in 1991, there clearly was an issue with the division fence in need of repair as well as straying cattle. The trial court concluded that the Fence Law applied and imposed the order of the fence viewers. The trial court noted the plaintiffs’ claim that the fence had existed in one form or another for as long as the parties could recall. The plaintiffs also claimed that the containment of livestock was a genuine concern as the plaintiffs had to stop renting out their pastureland to another farmer to graze cattle because the cattle would travel over to the defendants’ property. On further review, the appellate court affirmed. The appellate court determined that while the defendants did not currently have livestock on their property, there was no requirement in the Fence Law that both parties own livestock in order for a fence to be required under the law. Further, whether or not they own livestock, the defendants would benefit from the installation of a fence that would keep any cattle grazing on the plaintiffs’’ land from coming over onto the defendants’ land. Croner v. Popovich, No. 1595 WDA 2016, 2017 Pa. Super. Unpub. LEXIS 2939 (Pa. Super. Ct. Aug. 1, 2017).

Posted August 16, 2017

Plaintiff’s Allegations Sufficient To Avoid Dismissal in Contaminated Food Case. The plaintiff bought two bags of chopped salad from the defendant that was produced by a farm that the defendant knew had a history of producing contaminated food products. That history included a prior salmonella outbreak caused by the farm’s food products that the defendant sold at its stores, and several years’ worth of outbreaks of deadly illnesses tied to the farm’s food products. The plaintiff tossed the salad and served it in a large bowl. During a second serving, the plaintiff noticed a mouse carcass in the salad that had been severely damaged with the head missing and the “innards” scattered throughout the salad. The plaintiff suffered sickness and recurring flashbacks creating nausea. The plaintiff sued for compensatory and punitive damages alleging willful and wanton negligence as well as gross negligence. The defendant moved to dismiss the claims for lacking sufficient detail to state plausible claims for relief. The court noted that while the plaintiff’s legal conclusions would be disregarded, the plaintiff’s claims had sufficient detail to avoid being dismissed. Specifically, the court held that reasonable people could differ about the defendant’s decision to continue selling products from the farm. As such, dismissal of the plaintiff’s gross negligence (complete neglect of safety of others that would shock fair-minded persons) claim was not appropriate. The court also determined that the plaintiff’s willful and wanton negligence (conscious disregard for the rights of others) claim was not implausible or legally deficient. Barber v. Sam’s Club E., Inc., No. 6:17-CV-00035, 2017 U.S. Dist. LEXIS 127467 (W.D. Va. Aug. 10, 2017).

Posted August 1, 2017

Neighbor Spat Results In Many Claims, But Results in Nothing. At some point in 2014, the plaintiff noticed dead or dying bamboo, grass and shrubs along the portion of his property line abutting the defendant’s property. The plaintiff believed that the defendant had applied toxic herbicide, and the plaintiff reported the matter to the local police. The plaintiff also filed a civil complaint alleging that the plaintiff had applied herbicide to the plaintiff’s property, committing a trespass, nuisance and willful destruction of property. The defendant filed a counterclaim alleging that the plaintiff’s invasive bamboo constituted a trespass and a nuisance. The defendant further alleged that the plaintiff had played loud music, mowed his grass in the early-morning hours, and had thrown limbs and animal carcasses on her property, which constituted a nuisance or trespass. The trial court entered an order in March 2016 determining that each party had committed a trespass and awarded each party $11,000. Both parties appealed. The court of appeals determined that the defendant presented insufficient evidence that the plaintiff acted intentionally with regard to the bamboo encroachment. Thus, the bamboo encroachment did not constitute an intentional trespass. The court also determined that while the plaintiff’s actions had caused the defendant annoyance and discomfort, it did not cause enough annoyance and discomfort to satisfy the nuisance requirements, which require that the nuisance create physical discomfort and real, material and substantial damages. The plaintiff argued that the trial court erred in failing to award treble damages under R.C. 901.51. However, R.C. 901.51 requires a violator to have acted recklessly, meaning that the violator disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. The trial court found that the defendant applied week killer near the same property line that spilled over the line and damaged the plaintiff’s property. However, the court of appeals held that these trial court findings made no mention that the defendant acted recklessly when she applied the weed killer. As a result, the application of the weed killer was not a trespass. In addition, the court of appeals determined that the plaintiff failed to provide sufficient evidence of damages. The plaintiff requested $8,657.43 in economic loss which was represented by an estimate a landscaping business. However, because the plaintiff did not offer any witness from the landscaping company to vouch for the creation of the estimate, the trial court erred in admitting the estimate. In addition, the plaintiff did not offer any evidence of substantial noneconomic loss resulting from the defendant’s alleged trespass. As a result, the court of appeals held that the trial court erred in finding in favor of both parties on their respective trespass claims, and reversed the portion of the trial court’s judgment that awarded damages to each of the parties. Hayes v. Carrigan, No. C-160554, 2017 Ohio App. LEXIS 2967 (Ohio Ct. App. Jul. 19, 2017).

Posted July 31, 2017

Challenge to Constitutionality of Fence Law Fails. The plaintiff filed a complaint for declaratory relief with the local district court, requesting that the court declare Kentucky’s Boundary Line Fence Act unconstitutional. The Kentucky Boundary Line Fence Act (Act) consists of two substantive statutes: KRS 256.030 and KRS 256.042. The Act establishes that the owner of a parcel of real estate used for agricultural purposes may file an action in the local district court to require the initial construction or replacement of a boundary line fence or any portion thereof on the boundary between any parcel of real estate adjacent to the real estate of the plaintiff. The plaintiff claimed that the Act encroached on her rights by requiring her to maintain fences on her land that she does not desire. She further alleged that the Act impermissibly favors landowners who own and keep livestock to the detriment of landowners, like herself, who do not do so, by requiring them to bear the costs of construction and maintaining fences that they do not need or desire. The plaintiff claimed that she reasonably feared that her neighbors may demand or haul her into court and seek a court order requiring that she pay half the costs of constructing a boundary line fence between their properties. The trial court dismissed the plaintiff’s petition on the basis that she failed to present an actual controversy involving a justiciable question. On appeal, the appellate court determined that the plaintiff’s complaint failed to plead an existing actual controversy. The appellate court determined that whether the statute is enforced against the plaintiff is entirely dependent on the activities and desires of the plaintiff’s neighbors, who were not parties to the case. In addition, not all fences between adjoining properties are considered “division fences” under the Act. To constitute a division fence, it must be proven that a division fence exists by agreement, acquiescence or compulsion. The court pointed out that the plaintiff failed to allege that the fences on her land were actually division fences. She also failed to allege that any of her neighbors are actually keeping livestock on the other side of those fences whose escape could subject her to liability. In light of all these facts the court determined that the plaintiff was not being burdened by the Act so as to create an actual, justiciable controversy, nor was she being injured or burdened by the Act. As a result, the court affirmed the trial court’s decision dismissing the plaintiff’s complaint. Sanderson v. Commonwealth, No. 2016-CA-000988-MR, 2017 Ky. App. Unpub. LEXIS 538 (Ky. Ct. App. July 21. 2017).

Kansas Courts Lack Jurisdiction Over Canadian Online Cattle Auction. The plaintiff, a Kansas, attempted to place bids on Ulrich Hereford Ranch bulls through Balog, an online auction website based out of Alberta, Canada. Balog conducts a live video cattle auction on a website owned by Direct Livestock Marketing Services (DLMS). The plaintiff was unsuccessful in making bids through the website and called DLMS on the telephone. The plaintiff then directed the DLMS employee to place bids on the cattle and Peter Ulrich, owner of Ulrich Hereford Ranch, approved these phone bids. Through his phone bids, the plaintiff purchased nine bulls. Nine months after the auction, the plaintiff called Balog to complain about the livestock purchased and ultimately, the plaintiff sued, claiming that Lilybrook Herefords, Andy Schuepbach, and Hans Ulrich (collectively known as “Lilybrook Defendants”) committed fraud and made negligent misrepresentation in making assurances concerning the quality of Ulrich Hereford Ranch cattle when recommending them to the plaintiff. In addition, the plaintiff claimed that Clareshol Veterinary Services (CVS) negligently inspected the cattle and made negligent misrepresentations about their health. Finally, the plaintiff alleged that Balog negligently injured him and made negligent misrepresentation as to the health of the cattle. All three defendants are Canadian citizens without ties to Kansas and, as a result, the court determined that it did not have general jurisdiction over them in this matter. The plaintiff claimed that the Lilybrook defendants worked together with Ulrich Hereford Ranch to persuade him to purchase the cattle. However, the court determined that while the Lilybrook defendants all had specific limited roles in the chain of events that lead to the plaintiff’s purchase of the cattle, their actions were insufficient to establish fraud of any kind, let alone fraud directed at the forum state in Kansas. In addition, the Lilybrook defendants did not receive any money or benefit from the sale of the cattle to the plaintiff. Thus, the court determined that it did not have personal jurisdiction over the Lilybrook defendants. The plaintiff also claimed that when CVS inspected the cattle, it did so negligently knowing the cattle would end up in Kansas. However, the court determined that the possibility that a product may cause an injury in Kansas is not enough to support a finding of personal jurisdiction. Finally, the court determined that it does not have personal jurisdiction over Balog. The court pointed out that an auction seller does not have control over the ultimate winner of the auction, maintenance of the website, or control over the targeted audience. In addition, the plaintiff did not communicate with Balog and instead communicated with DLMS who is a third party retained for the auction. Because the plaintiff could not show that Balog, through its website, purposefully directed electronic activity in Kansas, the court determined that it could not exercise jurisdiction over Balog. Berry v. Ulrich Hereford Ranch, Inc., No. 17-2109-JTM, 2017 U.S. Dist. LEXIS 114777 (D. Kan. Jul. 24, 2017).

Kansas Termite Pesticide Application Regulation Not Preempted By Federal Act. The plaintiff, a licensed pest-control applicator in Kansas, challenged Kan. Admin. Reg. § 4-13-26 (2003)  on the basis that the regulation requires excessive pesticide treatment (both horizonntal and vertical persticide application) in preconstruction areas. The plaintiff sued for declaratory and injunctive relief against the Kansas Secretary of Agriculture, claiming that the regulation is preempted by the Federal Insecticide Fungicide, and Rodenticide Act (FIFRA), because it conflicts with pesticide labels approved by the EPA. The trial court rejected the claim and the plaintiff appealed. According to the plaintiff, pesticide labels approved by the EPA under FIFRA do not require both horizontal and vertical application. The complained that the Kansas regulation endangers humans and the environment because it requires unnecessary use of dangerous pesticides and stifles competition by requiring all applicators to apply too much pesticide when some applicators could reduce their prices by applying only necessary pesticide. The plaintiff raised two preemption arguments with the first one based on the prohibition in § 136v(b) against “any requirement for labeling or packaging in addition to or different from those required under [FIFRA].”  However, the court determined that the provision did not preempt the Kansas regulation because the Kansas regulation governed, not labeling.  In addition, the regulation is addressed to those who apply pesticides not the manufacturers who package or label them. The plaintiff’s second preemption argument was that the regulation was impliedly preempted. State law is impliedly preempted when it conflicts with federal law. The plaintiff argued that the regulation was preempted because it required more pesticide use than the EPA-approved label. However, the court rejected the argument because every use required by the regulation was permitted by the label that the plaintiff relied on. The plaintiff claimed that the regulation conflicted with a label for I Maxx Pro, but the court held that the label did not forbid both vertical and horizontal treatments. Rather, it gave the applicator discretion to conduct either vertical or horizontal or both treatments. As a result, even though the regulation and label are not congruent the applicator can comply with both. For these reasons ,the appellate court affirmed the trial court and rejected the plaintiff’s preemption claims. Schoenhofer v. McClaskey, No. 16-3226, 2017 U.S. App. LEXIS 11798 (10th Cir. Jul. 3, 2017).

Posted July 10, 2017

New Trial Ordered Over Whether Horse Seller Violated Farm Animals Activity Act. The plaintiff sues the defendant, the owner of a horse stable outside of Kentucky and his business partner seeking to recover damages for injuries she sustained while test riding a horse she was interested in buying. There are multiple disputes in material fact about what actually occurred. The plaintiff claimed she represented to the defendant that she was not an experienced rider and that the defendant failed to warn of the dangers of riding that particular horse, in violation of the Farm Animals Activity Act (Act). The A act provides that farm animal activity sponsors and farm animal professionals are deemed to have the duty to reasonably warn participants in a farm animal activity of the inherent risk of farm animal activities, but not the duty to reduce or eliminate the inherent risks associated with farm animal activities. It is undisputed that the plaintiff was a farm animal participant and that the defendant is a farm animal professional as defined by the Act. The trial court granted the defendants’ motion for summary judgment. The plaintiff appealed arguing that when the facts are viewed in a light most favorable to her a reasonable person could find that the defendant’s conduct fell into one of the multiple exceptions to the Act provided in KRS 247.402(2). The court determined that because of the many disputes over material facts, a jury could have found that the defendant’s duty to ascertain the plaintiff’s abilities to manage the particular horse she was riding was breached and that the breached caused her injuries. Thus, the trial court’s grant of summary judgement was reversed and the case remanded for a new trial. Tabor v. Daugherty, No. 2016-CA-000047-MR 2017 KY. App. Unpub. LEXIS 476 (Ky. Ct. App. Jun. 30, 2017).

Posted June 24, 2017

Cow/Truck Accident Occurred in Open Range. The plaintiff struck two of the defendant’s cows with his truck on a U.S. highway near an unincorporated community. The plaintiff sued to recover for personal injuries and property damage. The defendant motioned for summary judgment on the basis that the accident occurred in an “open range” area which barred any recovery for the plaintiff. Under Idaho Code §25-2118, “open range” is defined as “all unenclosed lands outside of cities, villages and herd districts, upon which cattle by custom, license, lease or permit, are grazed or permitted to roam.” The court determined that the accident occurred in an open range area because the unincorporated community near where the accident occurred was not incorporated as a village or city or herd district. Price v. Mike & Tristan Geddes Dairy, LLC, No. 4:16-cv-00015-REB, 2017 U.S. Dist. LEXIS 95311 (D. Idaho Jun. 19, 2017).

Posted June 21, 2017

Right -To-Farm Law Amended. The North Carolina legislature overrode the Governor’s veto of a bill amending the state right-to-farm law by adding a new subsection limiting damages that can be received in a private nuisance action against an ag or forestry operation if the plaintiff has a contract (or business) relationship with the defendant. For a permanent nuisance, damages are to reflect the drop in market value of the plaintiff’s property. For a temporary nuisance, damages are limited to the drop in fair rental value of the plaintiff’s property. For any later action the plaintiff might bring against the defendant, the combined recovery for all actions the plaintiff brings against the defendant or another defendant is limited to the fair market value of the plaintiff’s property. N.C. House Bill 467, amending Section 1, Article 57, Chapter 106 of the North Carolina Code, by adding subsection 106-702.

Posted June 12, 2017

Equine Immunity Statute Bars Suit. The defendant’s business operates a resort and also horse stable on nearby property from which it provides horse-riding tours to its customers using horses leased from a third party. The plaintiff was injured while riding on a tour and sued the defendant for negligence. The plaintiff claimed that the horse she was riding was kicked by another horse, causing it to rare up and cast the plaintiff to the ground. The court found that both aspects of the defendant’s business (the resort and the business giving the tours) were protected under Wisconsin’s equine immunity statute (Wis. Stat. § 895.481) which grants immunity from civil liability for acts related to equine actives if a person is participating in the equine activity and is injured or killed as a result of “an inherent risk of equine actives”. The court held that one horse kicking another is an inherent risk of equine activities. Since the proper equipment was either provided or available, and the stables posted the proper signage, both the resort and the business offering the tours were immune from civil liability. Dilley v. Holiday Acres Properties, Inc., No. 16-cv-91-jdp, 2017 U.S. Dist. LEXIS 82721 (W.D. Wis. May 31, 2017).

Posted June 10, 2017

No Duty Owed To Parties Injured by Falling Bales. The plaintiffs were assisting the loading of large, round hay bales onto the defendant’s trailer. They had loaded 22 bales onto the trailer and, while loading the last eight bales, they noticed several top bales were leaning. While standing next to the trailer observing the bales, two bales fell from the trailer and injured the plaintiffs. The plaintiffs sued, claiming that the defendant’s driver orchestrated the loading of the bales and they worked at his direction. However, the court determined that it was undisputed that the driver did not tell the plaintiffs that they had to load the hay and that it was customary that the seller loads the hay. The court determined that the plaintiffs could have left at any time that they thought the situation was unsafe. The court also determined that not duty to the plaintiffs arose under either the Federal Motor Carrier Safety Regulations or state (AR) law because both of those provisions did not apply in the loading process of a parked trailer. In addition, the court determined that the driver did not assume any duty to the plaintiffs during the loading process. Hoggard v. Arabi Cattle Co., No. 3:15CV00323 JM, 2017 U.S. Dist. LEXIS 88846 (E.D. Ark. Jun. 9, 2017).

Posted May 31, 2017

Grandparents Not Liable For Grandson’s Farm Injury. The defendants owned a farm, but had retired from farming and left the daily farming operations to their son and daughter-in-law. The son asked his son (grandson of the plaintiffs) to climb into a silo to unstick the unloader. The grandson climbed into the silo and told his father to turn on the unloader while he pushed on it. The father turned the unloader on and the grandson stepped over the unloader’s turning shaft. In doing so, the grandson’s boot caught on a bolt sticking out of the shaft which turned the grandson’s right leg underneath it and caused severe injuries to the leg and foot requiring amputation of the leg below the knee. The son and his mother (daughter-in-law of the defendants) sued the defendants for negligence. The trial court determined that the defendants did not owe any duty of care to the grandson and granted the defendants summary judgment. On appeal, the appellate court affirmed. The appellate court noted that landowners generally owe entrants a duty of reasonable care for their safety, including an ongoing duty to inspect and keep the premises free of unreasonable risks of harm and repair dangerous conditions that are discoverable through reasonable efforts. The appellate court noted that the state (MN) had abandoned the common-law distinction between licensees and invitees and that an entrant’s status is only one element to be considered in determining a landowner’s liability under ordinary negligence standards. As such, the appellate court determined that the defendants did owe their grandson a duty even though they were not directly involved in the farming operations. However, the appellate court held that the grandson (and his mother) did not present sufficient evidence to create a genuine issue of material fact that the defendants had breached their duty to inspect, repair or warn. There was no evidence that the silo unloader needed repair or that inspection would have uncovered a dangerous condition. The grandson also testified via deposition that he knew he needed to be careful when doing anything on the farm and that he believed he had enough working knowledge and instruction on how a silo unloader worked. Ristau v. Ristau, No. A16-1981, 2017 Minn. Ct. App. Unpub. LEXIS 489 (Minn. Ct. App. May 30, 2017).

Posted May 29, 2017

Food Supplier Can Be Sued In Negligence. The plaintiff a police officer in uniform, went through the drive-thru at the defendant’s restaurant. Moments after eating his food his mouth and eyes began burning. A doctor’s visit the next morning revealed serious burns to the plaintiff’s throat. Two of the defendant’s employees were allegedly convicted felons and placed his food in packaging that had fallen on the floor and one employee admitted to putting chipotle sauce on the plaintiff’s food which later tested positive for traces of cologne. Less than two weeks later, the plaintiff had surgery for appendicitis that the doctor claimed was caused by the burns. The plaintiff was forced to take more than 127 hours of sick leave and missed 68 hours of extra jobs. The plaintiff sued for products liability, negligence and intentional infliction of emotional distress. The court dismissed the claim for intentional infliction of emotional distress because the plaintiff cannot recover from an employer for an employee’s intentional torts. The court, however, did not dismiss the product liability claim, noting that the plaintiff could sue under theories of negligence, strict liability and breach of warranty. As served, the court determined that the food was defective. The court also upheld the plaintiff’s negligence claim on the basis that the chipotle sauce and cologne could have ended up in the food via the employees’ gross negligence rather than intentionally. The court gave the plaintiff extended time to amend his complaint to add claims for strict liability and breach of implied warranty. Byrne v. Taco Bell of America, Inc., LLC, No. CIV-17-361-R, 2017 U.S. Dist. LEXIS 77823 (W.D. Okla. May 23, 2017).

Posted May 20, 2017

Texas Landowners Can Sue In Court For Issues Associated With Oilfield Contamination. The plaintiff, an oil and gas production company, had a longstanding agreement with the defendant rancher concerning more than 27,000 acres of the defendant’s ranch land. The parties had a dispute in the 1990s that was resolved via a settlement agreement and a surface agreement. The surface agreement barred the plaintiff from bringing hazardous materials onto the defendant’s property or disposing of hazardous materials on the property. The agreement also contained an arbitration provision. The defendant learned, in 2004, that the plaintiff had contaminated the property and that used oilfield tubing was contaminated with naturally occurring radioactive material. The defendant claimed that a cancerous sarcoma in his ankle was caused by the contamination. The defendant sued asserting claims of environmental contamination, improper disposal of hazardous material and the “malicious donation” by the plaintiff of the contaminated tubing. The defendant was awarded in excess of $21 million by an arbitration panel, plus attorney fees and an additional one-half million dollars in exemplary damages and one-half million dollars for personal injury. The plaintiff claimed that the suit should have initially been heard by the Texas Railroad Commission on the basis that the Commission had exclusive or primary jurisdiction. The Texas Court of Appeals disagreed and the Texas Supreme Court affirmed. The Court determined that the Commission did not have primary jurisdiction over claims that are “inherently judicial in nature.” Forest Oil Corp. v. El Rucio Land & Cattle Co., No. 14-0979, 2017 Tex. LEXIS 406 (Tex. Sup. Ct. Apr. 28, 2017).

Posted April 16, 2017

Defective Tractor Gives Rise To Numerous Warranty and Tort Claims. The plaintiff purchased a used tractor from the defendant for use in his manure hauling business to pull the tanks across fields where he spreads it as fertilizer. The plaintiff told the defendant the specific purpose for which he would be using the tractor, and the defendant sold him a 2008 tractor that had previously been used in liquid-manure disposal activities. There was extended warranty coverage on the tractor for specific parts from April 2010 until April 2013. For the warranty to apply, however, any repairs had to be approved by a specific insurance company and performed by someone they authorized. The defendant acquired the tractor on trade in 2010 and informed the plaintiff that the tractor had been serviced and was “ready to go” even though the defendant’s salesman had never seen the tractor. The plaintiff, in late 2012, signed a purchase agreement and paid $1,000 for the transport of the tractor, traded-in his existing tractor and took possession of the replacement tractor. The plaintiff began having mechanical problems on the day he took possession. The defendant’s salesman claimed to have told the plaintiff that there was no warranty on the tractor. Within days, the tractor’s turbo malfunctioned, as did the 19th gear. Also, multiple bolts were rusted and broken, the hydraulic pump exploded, the transmission overheated and the brakes failed. The plaintiff rented another tractor while his was being repaired by an authorized party. After getting his tractor back, the transmission again overheated and the brakes failed and the tractor became unusable. It later turned out that the tractor had a history of problems while it was under the original warranty and owned by the original buyer. The insurance company claimed the tractor was repairable, but the plaintiff filed suit for fraudulent misrepresentation and breach of implied warranties and good faith and fair dealing against the implement dealer, as well as equitable rescission. The plaintiff filed a breach of contract action against the insurance company, negligent design, manufacture, assembly, testing and warning against the manufacturer as well as breach of express and implied warranties and fraudulent concealment and nondisclosure. The trial court granted summary judgment to all of the defendants on all of the claims. On appeal, the appellate court upheld the trial court’s ruling granting summary judgment to the implement dealer on the fraudulent misrepresentation and nondisclosure claims. The court determined that the plaintiff had not shown any knowing misrepresentation that the dealer made about the tractor. The appellate court also upheld the trial court determination granting summary judgment to the implement dealer on the breach of implied warranty of merchantability and fitness for a particular purpose claims, noting that the disclaimer language was conspicuous. However, as for the express warranty the court reversed the trial court, finding that issues remained as to whether the implement dealer provided an express warranty that the tractor was in “good condition” and fit for the immediate use in manure hauling. The appellate court affirmed the trial court’s grant of summary judgment on the breach of the implied covenant of good faith and fair dealing on the basis that the plaintiff failed to provide facts that could support or create a genuine issue of fact regarding the dealer’s alleged knowledge that the tractor was defective. The court also noted that the purchase contract did not require the dealer to inspect the tractor or provide any type of disclosures. The appellate court also agreed with the trial court on the plaintiff’s rescission claim, noting that the plaintiff still had an adequate remedy in the form of a money judgment. As for the claims against the manufacturer, the appellate court noted that state (IA) law does not provide for recovery for economic losses, and that damages were only available under contract or warranty theories, and affirmed the trial court on this point. The court also upheld the award of summary judgment for the manufacturer on the plaintiff’s breach of express warranty, fraudulent concealment and nondisclosure claims. The appellate court determined that the plaintiff had failed to preserve its claim against the insurer for breach of contract. Cannon v. Bodensteiner Implement Company, et al., No. 15-0741, 2017 Iowa App. LEXIS 279 (Iowa Ct. App. Mar. 22, 2017).

Posted April 15, 2017

“Baiting” Regulation Requires State To Prove That Hunting Was Intended Over Baiting Material. The defendant was cited and fined for violating a state (WI) Administrative Code provision providing that “no person may place, use or hunt over bait or feed material for the purpose of hunting wild animals or training dogs…”. The DNR flew over the defendant’s property on the day before the beginning of the gun season for deer and observed deer entering a clearing and three pumpkins and two large piles of shell corn near a dear tree stand. The defendant was fined $544. The provision at issue was promulgated three years earlier to apply in counties (and neighboring counties) where chronic wasting disease was present in deer. The trial court judge ruled against the state, interpreting the regulation to require the state to prove that the defendant had a hunting purpose over the “baiting” material. The trial court judge noted that there was not review of the deer stands and their readiness for hunting, and there was no admission from the defendant that he intended to hunt over the land. On appeal, the court affirmed. The court noted that the definition of “bait” in another provision on which the provision in issue is based evidenced an intent to attract wild animals, suggesting an active participation or cooperation between the hunter and the bait. Thus, the DNR had to show that the purpose of placing bait or feed material was for hunting (or training dogs), and they failed to do so. State v. Walker, No. 2016AP1434, 2017 Wisc. App. LEXIS 255 (Wisc. Ct. App. Apr. 11, 2017).

Utility Company Not Immune From Liability Under Recreational Use Statute. A 12-year old boy was injured when a 75-foot tree fell on the tent he was sleeping in at a county park where he was camping. An electric company owned and maintained an electricity distribution line in the park near the campsite. The utility was sued, and the utility motioned for summary judgment on the basis that the state (CA) recreational use statute (CA Civil Code §846) The trial court denied the utility’s motion for summary judgment. On appeal, the appellate court affirmed. The court noted that the boy had paid a camping fee to the county for access to the camping site at the county park, and that the recreational use statute does not confer on holders of nonpossessory interests absolute immunity from premises liability to paying recreational visitors of property (absent willful and malicious misconduct). The recreational use statute is inapplicable when consideration is paid for entry to a premises for recreational purposes. Pacific Gas & Electric Company v. Superior Court, No. A146495, 2017 Cal. App. LEXIS 310 (Cal. Ct. App. Apr. 5, 2017).

Herbicide Warning Label Adequate as a Matter of Law on Proximate Cause Issue. The plaintiff, Missouri’s largest peach grower, sued the defendant claiming that dicamba drift damaged more than 7,000 of the plaintiff’s peach trees triggering $1.5 million in losses during 2015. In 2016, the plaintiff claimed that it lost more than 30,000 trees with multi-millions in losses. The plaintiff asserted that the defendant knowingly sold dicamba-tolerant cotton and soybean seeds to farmers before securing federal approval for the herbicide designed to go along with it. The cotton seeds became available to growers in 2015 and the soybean seeds became available in early 2016, but the EPA didn’t approve the corresponding herbicide until late 2016. Thus, the plaintiff claimed that the defendant violated industry standards and the foreseeable result of its negligent act was to entice farmers to spray dicamba onto the new seed crops which drifted to the plaintiff’s trees. Before 2015, dicamba was rarely used by farmers as an over-the-top herbicide because of its proneness to drift. The plaintiff’s new dicamba technology remedied the drift problem and was designed as an over-the-top herbicide. The plaintiff also acknowledged that is was illegal under both state and federal law to use the old dicamba during all of the relevant times of the lawsuit and violated the express prohibition printed on the labels of the seed bags. The plaintiffs also acknowledged that the defendant did not manufacture, distribute, sell or apply the dicamba sprayed by the adjacent farmers on their crops that drifted onto the plaintiff’s property. The defendant motioned to dismiss the case and the court agreed, treating the motion as a motion for summary judgment. The court noted that even if the defendant were negligent in its release of the seeds without a corresponding herbicide, that did not establish proximate cause. Instead, the court reasoned, the plaintiff’s injuries resulted directly from conduct by third party farmers who unlawfully sprayed dicamba on their crops. The court pointed out that the dicamba that was sprayed was not the defendant’s product. If there was foreseeability, the court reasoned, it was negated by the product warning label on the seeds which was prominently highlighted on all bags of cotton and soybean seeds. The expressly prohibition on the application of dicamba to the seeds was in bold print and noted that its use was a violation of state and federal law. The court declined making a final ruling until the parties could respond further, giving them an additional 21 days to present any other material pertinent to the adequacy of the warning labels, including additional briefing. Bader Farms, Inc. v. Monsanto Co., No. 1:16-CV-299 SNLJ, 2017 U.S. Dist. LEXIS 54289 (E.D. Mo. Apr. 10, 2017).

Posted April 14, 2017

Recreational Use Act Bars Action for Snowmobiling Injuries. The plaintiff claimed that he and friends were snowmobiling on a Department of Natural Resources (DNR) trail when they crossed the defendant’s unmarked plowed well access road that bisected the trail. The defendant moved for summary disposition on the basis that the claim was barred by the Natural Resources and Environmental Protection Act (NREPA) and the Recreational Land Use Act (RUA). Under, NREPA, the defendant asserted, the plaintiff assumed the normal risks associated with snowmobiling as to obvious and inherent dangers and the plaintiff was traveling too fast and operating off of the groomed portion of the trail. As for the RUA, the defendant claimed it wasn’t liable to non-paying recreational users of its land absent a showing of gross negligence or willful and wanton misconduct. The plaintiff claimed that fact issues existed that precluded summary disposition, and that NREPA did not bar the claim because the risk created by the plowed access road was neither obvious nor inherent because it was not visible from the trail and was an unnatural condition. The trial court held that the NREPA did not bar the suit because the danger was man-made, and that the RUA did not bar the suit because the RUA only applied to land in its natural state. Accordingly, the trial court denied the defendant’s motion. The defendant appealed and the appellate court reversed. The appellate court determined that focusing on the land’s natural state was improper and that an unnatural condition on the land would not preclude application of the RUA. In addition, paying a state license fee to operate a snowmobile on the trail did not amount to valuable consideration under the RUA to preclude its application. As such, the RUA applied to bar the plaintiff’s claim – the plaintiff was engaged in an enumerated recreational activity and did not pay the defendant valuable consideration for that use. In addition, there was no allegation of willful and wanton misconduct. Bugai v. Ward Lake Energy, No. 331551, 2017 Mich. App. LEXIS 561 (Mich. Ct. App. Apr. 11, 2017).

Posted April 3, 2017

No Private Nuisance Based Solely on Aesthetics. The plaintiff is a landowner that sued the defendant, two solar energy companies, when the plaintiff’s neighbors leased property to the defendants for the purpose of constructing commercial solar arrays. The plaintiff claimed that the solar arrays constituted a private nuisance by negatively affecting the surrounding area’s rural aesthetic which also caused local property values to decline. The trial court granted summary judgment to the defendants. On appeal, the state (VT) Supreme Court affirmed. The Court noted that VT law has held, dating back to the late 1800s, that private nuisance actions based on aesthetic disapproval alone are barred. The Court rejected the plaintiff’s argument that the historic VT position should change based on changed society. The Court also rejected the notion that VT private nuisance law was broad enough to apply to aesthetic harm, stating that, “An unattractive sight, without more, is not a substantial interference as a matter of law because the mere appearance of the property of another does not affect a citizen’s ability to use and enjoy his or her neighboring land.” Emotional distress is not an interference with the use or enjoyment of land, the court stated. But, if the solar panels casted reflections, for example, that could be an interference with the use and enjoyment of one’s property. Aesthetic values, the court noted, are inherently subjective and courts don’t, the Court noted, set aesthetic standards. The Court also noted that the plaintiffs had conceded at oral argument that they were not pursuing a claim that diminution in value, by itself, was sufficient to constitute a nuisance. However, the Court went on to state that a nuisance claim based solely on loss in value invites speculation that the Court would not engage in. Myrick v. Peck Electric Co., et al., No. 16-167, 2017 Vt. LEXIS 4 (Vt. Sup. Ct. Jan. 13, 2017).

Posted March 31, 2017

Drone Shooting Not a Matter of Federal Law. The plaintiff flew his unmanned drone over the plaintiff’s property and the plaintiff shot it down with a shotgun. The plaintiff sued in federal court for $1,500 in damages (under state (KY) trespass to chattels law) law and based his federal claim on his assertion that the drone was flying in U.S. airspace and, as a result, the defendant had no right to shoot the drone. The defendant motioned to dismiss the case for lack of subject matter jurisdiction. The court granted the defendant’s motion, noting that the plaintiff’s claim was a “garden-variety state tort claim.” The court further noted that no federal agency was involved in the case and that the plaintiff’s claim did not directly impact the Federal Aviation Authority’s (FAA’s) ability to enforce regulations involving air safety and navigation. Furthermore, the FAA regulations were only ancillary issues in the case because the heart of the plaintiff’s case was a claim for damages to his unmanned drone under KY law. The issue of whether the defendant was privileged to shoot down the plaintiff’s drone was a matter of state law. The plaintiff also sought a declaration that his drone was an “aircraft” under federal law and that he was flying it in federal airspace and, therefore, could not have interfered with the defendant’s reasonable expectation of privacy. The court declined on the grounds that it lacked federal question jurisdiction. Boggs v. Merideth, No. 3:16-CV-00006-TBR, 2017 U.S. Dist. LEXIS 40302 (W.D. Ky. Mar. 21, 2017).

Posted March 30, 2017

Iowa Law Attempts to Limit Damage Awards in Livestock Nuisance Cases. New Iowa Code §657.11A provides that an animal feeding operation (as defined by Iowa Code §459.102) that is found to be a public or private nuisance, or is found to interfere with another person’s comfortable use and enjoyment of the person’s life or property under any other cause of action, is presumed to be a permanent nuisance and subject to compensatory damages. Compensatory damages are not to exceed compensatory damages due to any diminution of the fair market value (determined via a willing-buyer/willing-seller test) of real property proximately caused by the animal feeding operation tied to the owner’s ownership percentage in the real estate via legal or equitable title in fee simple, life estate or leasehold interest. Compensatory damages can also include past, present and future adverse health conditions as determined by objective and documented medical evidence where the animal feeding operation was the proximate cause of the interference with the comfortable use and enjoyment of the person’s life or property. In addition, compensatory damages can include special damages proximately caused by the animal feeding operation such as annoyance damages (up to 150 percent of the total of the damages for loss of fair market value and health-related damages). However, there is no limitation on damages if it is established that the nuisance is caused by a failure to comply with any federal or state law or regulation, or is caused by the failure to use existing prudent generally utilized practices reasonable for the animal feeding operation, or if the operator is classified as a habitual violator under Iowa Code §459.604. S.F. 447, effective Mar. 29, 2017.

Posted March 25, 2017

No Recoupment for Damages Sustained in Escaping Dogs. The plaintiff was in the driveway at his residence when a pit bull ran at him. The plaintiff jumped into the open bed of his pickup truck, but injured himself in doing so. Almost eight years later, the plaintiff sued the defendant in negligence to recover the cost of the medical care for the injuries he sustained. The defendant filed a motion for summary judgment. The trial court granted the motion and the plaintiff appealed. The appellate court determined that the trial court had acted properly in ruling on the defendant’s motion. The appellate court also noted that the plaintiff had failed to raise a genuine issue of material facts that the pit bull was dangerous, vicious, mischievous, or ferocious, or one termed in law a possessing a vicious propensity, and had also failed to establish that the plaintiff (as the keeper of the pit bull) either knew or should have known of the dog’s vicious propensity, character and habits. Lee v. Collins, No. COA16-789, 2017 N.C. App. LEXIS 156 (N.C. Ct. App. Mar. 7, 2017).

Posted March 21, 2017

Landlord not Liable for Death Caused by Escaped Horse. The plaintiff sued a landlord for the alleged wrongful death of her husband who collided with a horse on a roadway with his motorcycle. Four horses were loose on the road. They were being kept on the landlord’s nearby property, and were owned by a third party who rented the pasture from the landlord. The horses had escaped once before and the landlord instructed the third party to fix the fence. The landlord did not provide any feed for the horses, did not check on them and did not go out to the pasture. The landlord moved for summary judgment and the trial court granted the motion on the basis of caselaw holding that, as a matter of public policy, landlords cannot be held liable for harm caused by a tenant’s animal unless the landlord is the animal’s owner or “keeper.” The trial court determined that the landlord was not a “keeper” of the horse. On appeal, the court affirmed. The appellate court noted that the plaintiff’s only argument on appeal was that the landlord had a common law duty to maintain his premises. The appellate court disagreed, noting that landowners who are not owners or keepers of animals should not be forced to fence their animals and that often the only reason a landlord is sued in such circumstances is because they have a “deep pocket.” Drexler v. McMillan Warner Mutual Insurance Company, No. 2015AP2047, 2017 Wisc. App. LEXIS 121 (Wisc. Ct. App. Feb. 22, 2017).

Posted February 17, 2017

Case Involving Person Runover By Cow Heads to Trial. The plaintiff was injured on her property by a cow owned by another person that had escaped its enclosure. The plaintiff filed suit against the cow’s owner for failure to keep the cow fenced-in. The plaintiff claimed that the cow’s owner failed to construct and maintain the fence properly to keep the cow in, failed to notify neighbors that a cow had escaped and negligently startled and provoked the cow “into frenzy” while attempting to retrieve it which caused the cow to charge the plaintiff. However, a tree had fallen on the fence which allowed the cow in issue to get out. The defendant, the cow owner’s insurance company, moved for summary judgment and the trial court granted the motion. On appeal, the appellate court reversed. While the appellate court held that summary judgment was appropriate on the claim that the cow’s owner failed to inspect the fence as well as the claim that the cow’s owner failed to exercise reasonable care in providing and maintain an enclosure. However, genuine issues of material fact remained as to the nature of the cow and the associated herd and the propensity for them to get excited or skittish. Also, the appellate court determined that genuine issues of material fact remained as to the reasonableness of the cow owner’s conduct in reclaiming the cow. Kasem v. State Farm & Casualty Co., No. 2016 CA 0217, 2017 La. App. LEXIS 193 (La. Ct. App. Feb. 10, 2017).

Posted February 13, 2017

Horse Injury May Have Resulted From Veterinarian Negligence. In early 2014, a veterinarian working for the defendant (a horse breeding and raising business that also provided veterinary services) examined the plaintiff’s horse to determine if the horse was pregnant by performing a rectal palpitation. The horse was initially not sedated for the procedure, but later underwent sedation due to being “skittish.” The procedure was completed and the conclusion was that the horse was not pregnant. The horse began showed symptoms of distress over the next few days and the plaintiff notified the defendant. The veterinarian that performed the procedure was out of town and the plaintiff couldn’t obtain contact other veterinarians or obtain additional treatment. In the interim, the defendant treated the horse with antibiotics and anti-inflammatory medication. A week after the initial procedure the veterinarian that performed the initial procedure examined the horse and drew blood. The next day the plaintiff took the horse to the Ohio State University Veterinary Hospital where the horse was diagnosed with a full thickness rectal tear, and was determined to be pregnant. The horse was then euthanized and the colt died also. The plaintiff sued for damages based on negligent veterinary care. The defendant claimed that a partial rectal tear is an inherent risk of a rectal palpitation and that the care given was within the acceptable standard of care, and expert witness testimony was that absent blood on the veterinarian’s glove and lack of death within 24 hours meant that a full tear had not occurred and that the plaintiff should have taken the horse to another animal hospital immediately. The plaintiff’s expert witness testified that the evidence showed mishandling of the horse because the tear occurred in the dorsal aspect of the rectal colon. The defendant moved for summary judgment and the court agreed. The plaintiff appealed and the appellate court reversed on the basis that fact issues remained on the nature of the injury based on the conflicting expert witness testimony relating to observations. The case was remanded for trial. Williams v. Midland Acres, Inc., No. CA2016-06-023, 2017 Ohio App. LEXIS 325 (Ohio Ct. App. Jan. 30, 2017).

Horse Owner Not Liable for Injuries Caused by Escaped Horse. The plaintiff was injured in a car accident on a public roadway with the defendant’s horse that had escaped a stall. The trial court granted summary judgment for the defendant and the plaintiff appealed. The appellate court upheld the award of summary judgment for the defendant on the common law negligence claim because the defendant established that the animal did not escape by means of the defendant’s negligence. But, an inference of negligence did arise under the doctrine of res ipsa loquitur. But, the defendant was not in the exclusive control of the horse or the barn and stalls where the horse was kept. Instead, a trainer was. The defendant was also not strictly liable because the horse did not have any known vicious tendencies. O’Hara v. Holiday Farm, No. CA 16-01142, 2017 N.Y. App. Div. LEXIS 767 (N.Y. Sup. Ct. Feb. 3, 2017).

Posted February 1, 2017

Specific Performance of Partition Fence Agreement Ordered. The parties owned adjacent tracts and entered into a written fence agreement in 2012 in resolution of a previous dispute with respect to the fence on the partition between their tracts. Under the agreement, each party was responsible for maintaining a specific portion of the fence in accordance with the specifics in the agreement. The agreement also stated that each party was responsible for clearing brush and vegetation on their respective side of the fence, and that neither party could sue the other concerning the fence (and to the plaintiff’s livestock) until fence repairs had been made in accordance with the agreement. In late 2014, the plaintiff sued the defendant claiming that the defendant had failed to comply with the agreement. The plaintiff sought specific performance and monetary damages for costs incurred in bringing the defendant’s portion of the fence into compliance with the agreement. In late 2015, the matter went to trial shortly after the plaintiff had been arrested and charged with prostitution. The defendant represented himself and the plaintiff moved to strike four of the defendant’s witnesses and 143 photographs that the plaintiff had requested to see but had not been disclosed via discovery. The trial court sustained the plaintiff’s motion to exclude the witnesses and photos. The plaintiff had a third party inspect the fence and testify as a witness at trial. The trial court determined that the plaintiff was in substantial compliance with the fence agreement and refused to interpret the agreement in a manner that would nullify it if there was just minimal brush in the fence that hadn’t been cleared. The court ordered the defendant to specifically perform his obligations under the agreement after an inspection (which the defendant was to pay for). The defendant objected to having the third party inspect the fence as being biased in the plaintiff’s favor, and that the defendant only agreed to have the third party be a “fence viewer” under pressure. However, the court noted that the defendant had stipulated to the third party as a viewer and also denied admission of more photos taken after the trial allegedly showing the fence in disrepair. The court awarded attorney fees to the plaintiff. On appeal, the appellate court affirmed. The defendant had failed to disclose evidence during discovery, that the equitable remedy of specific performance was appropriate in an action at law because the plaintiff’s petition sought it and the defendant didn’t object. The court also determined that the trial court did not commit error in determining that the evidence substantially showed that the plaintiff was in compliance with the agreement. While the trial court had awarded the plaintiff almost $20,000 in attorney fees, the appellate court remanded on that issue because the plaintiff had not file an application or affidavit with the appellate court to document the amount of appellate fees and costs requested. Garrett v. Colton, No. 16-0031, 2017 Iowa App. LEXIS 78 (Iowa Ct. App. Jan. 25, 2017).

Posted January 22, 2017

Landowner and Intermediary Not Responsible for Escaped Horse Involved in Auto Accident. The plaintiff was injured in an auto accident with two horses on a public roadway. The defendant owned the horses that were pastured on property owned by a third party. The third party’s son-in-law acted as the intermediary between the defendant and the pasture owner. The plaintiff sued the defendant, the property owner and the intermediary as “owners and/or keepers” of the horses within the statutory meaning of Ohio Code §951. The property owner and the intermediary motioned for summary judgment. The trial granted both motions on the basis that neither party was an “owner” or “keeper” of the horses under the statute. The property owner only allowed the defendant to keep the horses in the pasture and never undertook any direct control over or manage the horses and had no involvement in the construction or maintenance of the pasture fences. Merely being a landowner was insufficient to establish liability under the statute. Likewise, the intermediary had no ownership interest in the horses and never undertook any direct action to exert control over or manage the horses. On appeal, the appellate court affirmed. The appellate court noted that the statute at issue placed a duty on animal owners to exercise ordinary care to prevent animals from running at large. An animal running at large creates a rebuttable presumption of negligence which can be rebutted by the animal owner producing evidence of the use of reasonable precautions to prevent the escape of the animal. That duty, the court noted, is imposed only on “owners” and “keepers” of the animals. The mere existence of a lease between the defendant and the pasture owner was insufficient, by itself, to establish dominion and control so as to impose liability as a “keeper.” Furthermore, the court determined that the intermediary was not the agent of the property owner or the defendant so as to impose liability on the intermediary. Hendrickson v. Grider, No. 16CA3537, 2016 Ohio App. LEXIS 5294 (Ohio Ct. App. Dec. 14, 2016).

Posted January 20, 2017

Recreational Use Act Does Not Protect Inn From Guest’s Injury At Beach. The plaintiff, the mother of a 10-year-old girl sued the defendant for burn injuries her daughter suffered while using the defendant’s beach area. The daughter was playing on the beach with friends when she stepped on hot coals that were covered up in the beach’s sand. The defendant had allowed guests in the past to have “fire rings” on the beach, and they had become covered with sand blown by the wind which had not yet been uncovered from the prior fall season. There had also been prior problems with guests not properly extinguishing fires on the beach in the past. The plaintiff sued based in negligence and the defendant moved for summary judgment on the basis that the claim was barred by the state (MI) Recreational Land Use Act (RLUA) (MCL §324.73301). The RLUA bars an action to recover for injuries incurred while on the land of another without paying a fee for the purpose of “fishing, hunting, trapping, camping, hiking sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use with or without permission,…unless the injuries were caused by gross negligence or willful and wanton misconduct of the owner, tenant or lessee. The trial court granted the defendant’s motion, but allowed the plaintiff to amend the complaint to add gross negligence and willful and wanton misconduct claims. The plaintiff did so amend the complaint, claiming that the defendant’s conduct was reckless in letting guests have beach bonfires without properly supervising or providing instructions for putting the fires out, and for not properly warning the public of the possibility of hot fire coals. The defendant claimed that the hot coals were buried and not visible and that a reasonable inspection would not have disclosed them and that staff cleaned embers from fire rings on a weekly basis. The trial court again granted summary judgment for the defendant. On appeal, the appellate court reversed. The court noted that a child’s play on a beach was not the type of activity that was not of the same kind, class, character or nature of the listed activities in the RLUA. In addition, the court determined that the child was not engaged in “any other outdoor recreational use or trail use.” As such, the RULA did not apply and the court reversed the trial court’s determination. Otto v. Inn at Watervale, No. 330214, 2017 Mich. App. LEXIS 68 (Mich. Ct. App. Jan. 17, 2017).

Posted January 16, 2017

Equine Liability Act Protects Horse Farm. The defendant operated a horse farm where riding lessons were offered. The plaintiff owned a horse that was stabled at the farm. Outside the stable, a sign was posted that referred to the state (NJ) Equine Liability Act and noted its liability protections. The plaintiff’s nine-year-old son was at the stable while his mother was cleaning out her horse’s stall and was bitten on the arm by another boarder’s horse that was in an adjacent stall. The plaintiff sued to recover for the son’s injuries on the basis that the biting horse had known aggressive tendencies requiring additional precautions by the defendant, and the defendant raised the Equestrian Activities Liability Act (EALA) as a defense. The trial court granted the defendant’s motion for summary judgment on the basis that the suit was barred by the EALA. The appellate court affirmed on the basis that the EALA defined “participant” to which the EALA applied as “any person” that engaged in an equine animal activity regardless of whether a fee was paid and “any person accompanying the participant, or any person coming onto the property of the provider of equine animal activities or equestrian area” regardless of whether consideration is paid. There was no question that the defendant was a covered “operator” of an “equine facility.” In addition, the court determined that the definition of “equine animal activity” covered what the child was doing at the time of the biting. The court determined that the clear legislative intent of the EALA was to put the burden on “participants” and “spectators” of “equine liability activities” to assume the risks creating by horses in covered activities. The court determined that the plaintiff’s son was a “participant” as defined by the EALA due to accompanying his mother to the stable. Kirkpatrick v. Hidden View Farm, No. 1585-15T3, 2017 N.J. Super. LEXIS 4 (N.J. Superior Ct. App. Div. Jan. 9, 2017).

Posted, November 26, 2016

Court Upholds Monetary Judgment Against Hog Operation on Nuisance Theory. The plaintiffs operated a farm in a rural area. Approximately, forty years after buying their farm property, the defendant built an animal confinement facility (AFO) for approximately 2,500 hogs approximately one-half mile from the plaintiffs’ home. The plaintiffs claimed that the resulting hog odors constituted a nuisance and claimed damages as a result. The defendant claimed immunity based on Iowa Code §657.11(2). The statute provides that, “An animal feeding operation…shall not be found to be a…nuisance under this chapter or under principles of common law, and the animal feeding operation shall not be found to interfere with another person’s comfortable use and enjoyment of the person’s life or property under any other cause of action.” the statutory protection applies irrespective of whether the animal feeding operation was established (or expanded) before or after the complaining party was present in the area. However, the protection of the statute does not apply if the animal feeding operation is not in compliance with all applicable federal and state laws for operation of the facility, or the facility unreasonably and for substantial periods of time interferes with the plaintiff’s comfortable use and enjoyment of the plaintiff’s life or property, and failed to use generally accepted best management practices. The trial court granted the plaintiffs’ motion for summary judgment and determined that Iowa Code §657.11(2) was unconstitutional as applied to the case based on Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168 (Iowa 2004) based on the similarity of the two cases. In Gacke, the Iowa Supreme Court held the right-to-farm law unconstitutional, but only to the extent that it denied the plaintiffs compensation for the decreased value of their property. In essence, the Court held that the statute gave the defendant an easement to produce odors over the plaintiffs’ property, for which compensation had to be paid. Importantly, the Court did not opine that right-to-farm laws are not a legitimate purpose of state government. To the contrary, the Court noted the Iowa legislature’s objective of promoting animal agriculture in the state and that the right-to-farm law bore a reasonable relationship to that legitimate objective. The Court also seemed to indicate that the statute would not be constitutionally defective had the plaintiffs “come to the nuisance” (i.e., moved next door to the defendant’s existing hog operation). In the present case, the Iowa DNR testified that the hog facility was in compliance with all applicable statutes and regulations. Conflicting testimony was offered by the parties concerning whether best management practices were utilized. The trial court jury returned a verdict finding that the defendant had created a nuisance and that the nuisance proximately caused the plaintiffs’ injuries. The jury awarded damages of $100,000 for loss of past enjoyment $300,00 for loss of future enjoyment and $125,000 for diminution of property value based on its finding of unreasonable interference for substantial periods of time with the plaintiffs’ use and enjoyment of their property and failure to use best management practices. The trial court upheld the verdict except for cutting the award for diminution in value to $62,500 because the plaintiffs owned their property as joint tenants. The defendant moved for judgment notwithstanding the verdict or a new trial on the basis that the court found Iowa Code §657.11(2) to be unconstitutional. The trial court denied the motion and the defendant appealed. On appeal, the appellate court affirmed. The appellate court upheld the trial court’s finding that the statute was unconstitutional as applied to the plaintiffs, but didn’t limit damages to the diminution in value, as Gacke provides. The appellate court also upheld that the plaintiffs did not receive any benefit of the statute, thus concluding implicitly that the statute only protects AFOs from nuisance suits brought by other AFOs and not cases brought by farmers not operating an AFO. That determination runs counter to the basic finding of Gacke that the statute creates an easement to produce odors for which compensation must be paid for diminution in value. Interestingly, the appellate court found that having horses and cows does not make an operation an AFO. That is peculiar because this same court, in an earlier 2016 decision (Porter v. Harden, No. 15-0683, 2016 Iowa App. LEXIS 478 (Iowa Ct. App. May 11, 2016) found that the grazing and feeding of a 38-year old horse by a person who rented rural residential house made the renter a “farmer” entitled to notice of termination applicable to farm leases. McIlrath v. Prestage Farms of Iowa, L.L.C., No. 15-1599, 2016 Iowa App. LEXIS 1236 (Iowa Ct. App. Nov. 23, 2016).

Hauling Grain For Farming Operation Is “Agricultural” Employment. The plaintiff is a farming business that operates 25,000 acres of corn, soybeans and winter wheat that are harvested and sold to grain elevators. The plaintiff employed the defendant as a truck driver and operations laborer for about two weeks at the time he injured his back when moving soybeans from a grain truck to a grain bin away from the farm that he had trucked the grain to. The defendant filed a claim for workers’ compensation benefits. The defendant’s primary job was to haul grain and perform other duties such as cleaning out grain bins, doing building repairs and running a tractor or sprayer during slow times. The plaintiff’s only source of income was the sale of raised grain. An administrative law judge (ALJ) determined that both the plaintiff and the defendant were engaged in agricultural work under state (KY) law and dismissed the defendant’s claim pursuant to the agricultural exemption from workers’ compensation in KRS 342.630(1) and KRS 342.650(5). On reconsideration, the ALJ again determined that the workers’ compensation ag exemption applied. On appeal, the Workers’ Compensation Board reversed, find that at the time of the injury, the defendant was engaged in the commercial drying and storing of grain which was excluded from the definition of agriculture. On review of the Workers’ Compensation Board decision, the court reversed. The court opined that there was “absolutely no evidence to support the Board’s conclusion that [the defendant] was engaged in a commercial drying and storing activity. The defendant was simply preparing the grain for market and performing work incidental to that agricultural activity. The plaintiff did not receive fees for storage and drying activity. Homestead Family Farm v. Perry, No. 2015-CA-001988-WC, 2016 Ky. App. LEXIS 193 (Nov. 23, 2016).

Posted November 5, 2016

No Injunctive Relief in Nuisance Case Involving Wind Farm. The plaintiff is the Oklahoma Wind Action Association, which was formed to address problems related to wind energy development, and several individual landowners. The plaintiff sought to enjoin the defendant from constructing and operating an aerogeneration project (“wind farm”) based on the anticipatory nuisance and anticipatory trespass theories. The plaintiff claimed that the 149 generators would cause adverse health impacts, emit noise, cause shadow flicker, and damage the natural landscape. The plaintiff offered expert witness testimony to support its complaints and also sought a setback of 1.72 miles from the landowners’ privately owned tracts. The plaintiff’s evidence focused heavily on the adverse health effects of the shadow flicker of the blades as well as the sound from the generators and other annoyances. However, the court granted the defendant’s motion for summary judgment on the anticipatory nuisance claim. The court determined that plaintiff did not sufficiently show a reasonable probability that an injury would occur and that the harm was merely speculative. The court also noted the high investment that the defendant had made in the project, which tipped the balance of the hardships in the defendant’s favor. The court also noted that the plaintiff had failed to seek a preliminary injunction before or during construction. Terra Walker et al. v. Kingfisher Wind, LLC, No. CIV-14-914-D, 2016 U.S. Dist. LEXIS 141710 (W.D. Okla. Oct. 13, 2016).

Posted September 25, 2016

Equine Activities Liability Act Bars Suit for Injuries From Horse Bite. The plaintiff, a former jockey, visited a horse race course that the defendant managed. The decision was a spur of the moment decision made along with the plaintiff’s roommate who was a current jockey and had a horse stabled there. As a former jockey, the plaintiff was required to get a guest pass to enter the stables. While walking through the barn to see the roommate’s horse, another horse jumped out of its stall and bit the plaintiff’s chest. The plaintiff sued the defendant for negligence. The defendant asserted immunity based on the state (FL) Equine Activities Liability Act (EALA) on the basis that the plaintiff was a “participant engaged in an equine activity” that was precluded from recovering damages. The EALA immunizes an equine activity sponsor, an equine professional, or any other person or entity from liability to a “participant” from the inherent risks of equine activities. A “participant” need not pay a fee, and engaging in an equine activity includes “visiting or touring…an equine facility as part of an organized event or activity.” The plaintiff claimed that the decision to visit the stables was simply a spur-of-the-moment decision that did not constitute an organized event or activity, the court disagreed. The court focused on the requirement that the plaintiff obtain a guest pass before entering the horse barn. That was sufficient enough of a protocol to amount to “organization” which made the plaintiff’s visit to the stables “an organized activity” under the EALA. Germer v. Churchill Downs Management, No. 3D14-2695, 2016 Fla. App. LEXIS 13398 (Fla. Ct. App. Sept. 7, 2016).

Posted August 27, 2016

No Duty Exists to Routinely Inspect Agricultural Land. The defendant was the controlling owner and president of the defendant, a company that had formerly operated a rock quarry but had phased that business out and presently owned a 500-acres of undeveloped pasture that included a pecan orchard. During the years that it operated a rock quarry, the defendant employed the plaintiff’s husband to supervise excavation, maintaining equipment and blasting activities. The defendant regularly used explosives to excavate rock from the quarry. The defendant also hired the plaintiff’s husband as an independent contractor to serve as a groundskeeper for the pecan orchard and the surrounding land. In that role, he would clear brush and maintain the upkeep of the land. While clearing brush and burning it, an explosion seriously injured the plaintiff’s husband from which he died the next day. Investigators found six empty boxes of a commercial explosive used for rock blasting in a pole barn on the property. They also found used sections of plastic shock tube and additional used tubing in the decedent’s pickup. A neighbor testified that he had never heard explosions on the property and that the decedent used the spent tubing to mark trees to be cleared. Investigators concluded that the heat from the brush fire caused an explosive charge to explode which caused the decedent’s fatal injury. But, they could not determine how the charge ended up on the property. The plaintiff, the decedent’s surviving widow, sued based on a theory that the defendant breached a duty of care, and on a theory that the defendant engaged in an abnormally dangerous activity by having explosives on the premises. The trial court granted summary judgment for the defendant and the plaintiff appealed. The appellate court affirmed, While the court noted that a landowner owes a duty of reasonable care to invitees (the decedent’s status) and licensees, the court noted that the landowner need not insure the entrant’s safety or otherwise take action to protect against known or obvious dangers. In addition, the landowner’s duty of care is intertwined with the foreseeability of harm. Applying those principles, the court determined that the defendant had no duty to routinely inspect undeveloped land that is used for agricultural purposes, such as growing pecans or pasturing cattle. The empty boxes also did not enhance any duty of inspection primarily because they were empty and there was no evidence of explosives ever having been used on the premises. Thus, the trial court had properly granted summary judgment on the negligence theory. On the abnormally dangerous theory, the court also upheld the trial court’s determination because cattle grazing and pecan raising are not abnormally dangerous activities. Thus, strict liability could not apply. Bradshaw v. Smith, et al., No. 113,922, 2016 Kan. App. Unpub. LEXIS 686 (Kan. Ct. App. Aug. 19, 2016).

Posted July 31, 2016

Operating an Oil and Gas Pipeline is Not An Abnormally Dangerous Activity, But Might Be a Nuisance. An operator of a natural gas pipeline in Texas used a tract of land that it owned adjacent to the pipeline as a storage yard and compressor station. One of the engines at the compressor station ran constantly around the clock. A nearby rural landowner complained about the noise and after remedial measures to abate the noise were not successful, the landowner sued for nuisance, negligence and gross negligence, and later amended their claims to include intentional and negligent nuisance. The trial court dismissed the negligence-based claim, but the intentional and negligent nuisance claims were not dismissed and were presented to the jury which returned a verdict of $2 million to the landowner for diminution in the landowner’s property value (an average of $21,000/acre). On appeal, the appellate court agreed with the dismissal of the negligence-based nuisance claim, but reversed on the point that the trial court should have based the case on the notion of nuisance being “abnormal and out of place” rather than on intentional nuisance or negligent nuisance. On further review (sought by both parties), the Texas Supreme Court stated the general definition of nuisance – that it is a substantial interference with the reasonable use and enjoyment of another person’s property. The Court remanded the case to the trial court for a determination of nuisance under the traditional approach to determining whether a nuisance exists. The Court also determined that the operation of an oil and gas pipeline does not constitute an abnormally dangerous activity that would trigger the application of strict liability, agreeing with the trial court on that issue. Crosstex North Texas Pipeline, L.P. v. Gardiner, No. 15-0049, 2016 Tex. LEXIS 580 (Tex. Sup. Ct. Jun. 24, 2016).

Posted July 14, 2016

State Pesticide Label Claims Not Preempted by FIFRA. The plaintiff claimed that she developed cancer as a result of the use of the defendant’s pesticide glyphosate (commonly known as “Roundup”) for agricultural and non-agricultural purposes. She sued the defendant on the basis that the defendant failed to warn of the “carcinogenic nature of glyphosate” and was injured as a result. The plaintiff also sued under theories of strict liability, negligence and breach of implied and express warranties. The Environmental Protection Agency (EPA) had, before plaintiff’s use of pesticide, approved the product and the product label and had found that glyphosate is not carcinogenic to humans. The defendant claimed that the plaintiff’s claims were preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The defendant had registered the pesticide in accordance with FIFRA requirements by submitting a proposed label to the EPA along with supporting data and the EPA approved the label by deciding that the pesticide would perform its intended function without “unreasonable adverse effects” on human health or the environment. However, a registered pesticide can still be found to be misbranded and, as a result, be in violation of FIFRA. Misbranding means the label contains insufficient directions, warnings or cautionary statements to be “adequate to protect health.” The defendant claimed that because the EPA had determined that glyphosate was not carcinogenic, the defendant’s failure to include a warning label about the product’s carcinogenicity cannot constitute misbranding under FIFRA. The court rejected that claim because the documents the defendant relied on to support its position did not involve any final action of the EPA that had the force of law, or were regulations under the Food, Drug and Cosmetic Act and not FIFRA. Thus, the documents did not address the issue of misbranding under FIFRA. As such because FIFRA does not deem a registration of a pesticide to be conclusive as to whether a pesticide is misbranded (7 U.S.C. §136(a)(f)(2)), the defendant did not provide sufficient evidence to establish that glyphosate was not misbranded, and state requirements that a pesticide not be misbranded were not preempted. The court also rejected the defendant’s claim against the plaintiff’s design defect claim. Accordingly, the defendant’s motion to dismiss was denied. Mendoza v. Monsanto Company, No. 1:16-cv-00406-DAD-SMS, 2016 U.S. Dist. LEXIS 89003 (E.D. Cal. Jul. 8, 2016).

Claims Against Pesticide Manufacturer Not Untimely Filed or Preempted. The plaintiffs (a married couple) claimed that agricultural exposure to the defendant’s glyphosate pesticide (commonly referred to as “Roundup”) caused the wife to develop non-Hodgkin lymphoma in 2003. The defendant moved to dismiss the suit, claiming that the wife had a “suspicion of wrongdoing” in 2009 when she wrote an editorial discussing a possible link between glyphosate and her cancer which, according to the defendant, started the two-year statute of limitations running on her claim. The plaintiff asserted that she merely had a suspicion, that wasn’t confirmed until the World Health Organization designated glyphosate as a probably human cancer-causing agent in 2015. The court agreed with the plaintiff, and determined that the suit had been timely filed. The court also determined that the plaintiffs’ “warning-based” claims couched in negligence and strict liability failure to warn were not preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The court noted that state-law labeling claims are not preempted if they don’t impose any requirement that is different or beyond what federal law requires. The court determined that the plaintiffs’ claims were consistent with FIFRA’s labeling requirements, because the plaintiffs’ claim is that the defendant’s existing label (the one used from 1995-2004) was misbranded in that it mispresented the safety of the pesticide and was an inadequate warning. Sheppard v. Monsanto Co., NO. 16-00043 JMS-RLP, 2016 U.S. Dist. LEXIS 84348 (D. Haw. Jun. 29, 2016).

Posted July 4, 2016

Court Obscures Rational Basis Test To Eliminate Ag Exemption From Workers' Compensation Law. In this case, the plaintiffs cases were consolidated on appeal. They claimed that their on-the-job injuries should be covered under the state (NM) workers' compensation law. One plaintiff tripped while picking chile and fractured her left wrist. The other plaintiff was injured while working in a dairy when he was head-butted by a cow and pushed up against a metal door causing him to fall face-first into a concrete floor and sustain neurological damage. The plaintiffs' claims for workers' compensation benefits were dismissed via the exclusion from the workers' compensation system for employers. On appeal, the appellate court reversed. Using rational basis review (the standard most deferential to the constitutionality of the provision at issue), the court interpreted Sec. 52-1-6(A) of the New Mexico Code as applying to the primary job duties of the employees (as opposed to the business of the employer and the predominant type of employees hired) to allow the exclusion of “farm and ranch laborers” from workers’ compensation, but not other employees, such as administrative or sales staff, and concluded the distinction was irrational and lacked any rational purpose. The appellate court noted that the purpose of the law was to provide "quick and efficient delivery" of medical benefits to injured and disabled workers. Thus, the court determined that the exclusion violated the constitutional equal protection guarantee. The court stated that the exclusion circumvented the policy of the Act which was to balance the interests and rights of the worker and the employer. While the court stated that the exclusion "results in expensive drawn out litigation being the only available option to the employee," the court failed to note that New Mexico is one of very few states that has adopted a "pure" comparative fault system whereby the injured party could be 99 percent at fault and still recover damages - although the recovery is reduced by the percentage of the injured party's fault. Such a system would seem to greatly enhance the likelihood of settlement of personal injury cases without protracted and expensive litigation. However, the state tort system went completely unmentioned by the court likely because it undercuts the court's claim that the exclusion results in "drawn out litigation." The court offered no citation to any scholarly research or statistics to back up its claim. The court further believed that the exclusion for workers that cultivate and harvest (pick) crops, but the inclusion of workers that perform tasks associated with the processing of crops was a distinction without a difference. However, the court made no mention (even though it was briefed) that farm laborers are more likely to be illegal immigrants than are workers that are engaged in crop processing activities, and made no mention that NM has at least four sanctuary cities or counties that harbor illegal immigrants. The processing of workers' compensation claims for such persons is not only illegal, it is more difficult due to the lack of documentation. Thus, an argument was provided to the court in briefs that the state had a legitimate interest in the farm laborer/processor distinction. The court did not address the point, holding the exclusion was arbitrary on its face. The court further dismissed the claim that the protection of the NM ag industry from additional overhead cost served a legitimate state interest. The court made no mention of the data indicating that the cost of workers' compensation insurance coverage rates for agriculture is commonly in the 6-8 percent of payroll range, with some states reporting the cost to be approximately 15 percent and, hence, did not address the argument that the exclusion had served a legitimate state interest in keeping food costs to the public down. The court did not address the point that has been made in similar cases that the ag exclusion slows down the mechanization of certain agricultural crop harvesting jobs as being a legitimate state interest. The court also made no mention that the highest court in numerous other states had upheld a similar exclusion for agriculture from an equal protection constitutional challenge. The court stated that its decision was applicable to workers' claims pending as of March 30, 2012. That's the date, because of litigation in a different case, that the Workers' Compensation Administration was on notice that the ag exclusion was unconstitutional. On further review, the state Supreme Court affirmed. The court determined that there was nothing to distinguish farm and ranch laborers from other ag employees and that the government interest of cost savings, administrative convenience and similar interests unique to agriculture were not rationally related to a legitimate government interest. The court determined that the exclusion that it construed as applying to ag laborers was arbitrary discrimination. A dissenting judge pointed out that the legislature’s decision to allow employers of farm and ranch laborers to decide for themselves whether to be subject to workers’ compensation or opt out and face tort liability did not violate any constitutionally-protected right. The dissent noted that such ability to opt out was a legitimate statutory scheme that rationally controlled costs for New Mexico farms and ranches, and that 29 percent of state farms and ranches had elected to be covered by workers’ compensation. The dissent also noted that the majority’s opinion would have a detrimental economic impact on small, economically fragile farms in New Mexico by imposing an additional economic cost of $10.5 million annually (as projected by the state Workers’ Compensation Administration). The On this point, the dissent further pointed out that the average cost of a claim was $16,876 while the average net farm income for the same year studied was $19,373. The dissent further concluded that the exemption for farming operations was legitimately related to insulating New Mexico farm and ranches from additional costs. In addition, the dissent reasoned that the majority misapplied the rational basis analysis to hold the act unconstitutional as many other state courts and the U.S. Supreme Court had held comparable state statutes to satisfy the rational basis test. The dissent pointed out forcefully that the exclusion applied to employers and that the choice to be covered or not resided with employers who predominately hired ag employees. As such there was no disparate treatment between ag laborers and other agricultural workers. Rodriguez, et al. v. Brand West Dairy, et al., No. S-1-Sc-35426, 2016 N.M. LEXIS 150, (N.M. Sup. Ct. Jun. 30, 2016), aff’g., 356 P.3d 546 (N.M. Ct. App. Jun. 2015).

Posted June 13, 2014

Adjoining Neighbors Have Equal Duty to Rebuild Partition Fence. The plaintiff owned cattle and rebuilt half of the fence that he claimed was on the partition between himself and the defendant. He requested the defendant, a grain farmer, to rebuild the other half of the fence. The defendant refused and the township trustees agreed with the defendant on the basis that it was the plaintiff’s cattle that were escaping and causing damage to the defendant’s crops and because the defendant did not graze livestock. The trial court upheld the decision of the township trustees on the basis that that defendant did not “use” the fence, and the appellate court affirmed. The plaintiff sought a rehearing, and the appellate court granted the motion and vacated their earlier decision. On rehearing, the court reversed the trial court, determining that the fences at issue were partition fences and that Ind. Code §32-26-9 requires adjacent owners to share equally the burden of building partition fences if at least one of the tracts is agricultural land that is located outside the limits of a town or city. The statute, the court noted, does not impose any requirement that both property owners either benefit from or use the fence, such as by grazing livestock. One judge dissented on the basis that there were no new issues to consider and that the court should make no attempt to correct its errors in interpreting the statute in its initial decision. Belork v. Latimer, No. 75A04-1503-MI-100, 2016 Ind. App. LEXIS 140 (Ind. Ct. App. May 5, 2016), vacating, 47 N.E.3d 1 (Ind. Ct. App. 2015).

Posted May 14, 2016

Training and Working With Horses At Equestrian Center is an Agricultural Activity for Workers’ Compensation Purposes. The plaintiff worked for an equestrian center where she trained and maintained horses. She also cleaned stalls, retrieved hay for the horses, broke the horses, groomed them, maintained fence lines and other common tasks associated with the care of the horses. While riding a horse to show its owner the progress the horse was making in its training, the plaintiff was thrown from the horse and injured. The plaintiff filed for workers’ compensation benefits, but the employer did not have workers’ compensation insurance. An administrative law judge (ALJ) determined that the plaintiff was not covered under the state (KY) Workers’ Compensation Act because she was employed in agricultural work – the care and maintenance of horses. On review, the Workers’ Compensation Board affirmed. On appeal, the state court of appeals affirmed. On further review, the KY Supreme Court affirmed. The plaintiff claimed that her employer was engaged in an entertainment activity and, thus, her employment was not agricultural. However, the court did not agree. The caring for, feeding, and training of horses had been held on previous occasions to be an agricultural activity. Thus, the court of appeals had not committed error and its decision was upheld. Hanawalt v. Brown, No. 2015-SC-000183-WC, 2016 Ky. Unpub. LEXIS 14 (Ky. Sup. Ct. Mar. 17, 2016).

Livestock Owner Not Liable for Damages Caused By Escaped Livestock. The plaintiff was driving his 30-year old pickup pulling a skidsteer on a trailer at the time he struck some of the defendant’s livestock on the roadway. The plaintiff claimed that the pickup incurred $11,000 in damages (well beyond the “totaled” value of the truck), and a court commissioner awarded the maximum small claims court damages of $10,000 to the plaintiff based on a finding that the defendant was negligent in allowing his cattle to escape. On further review, the trial court reversed on the basis that the defendant’s negligence had not been established and he was not negligent per se. The defendant did not knowingly allow his livestock to be on the roadway. On appeal, the court affirmed. Kurtz v. Marek, No. 2015AP2313, 2016 Wisc. App. LEXIS 124 (Wisc. Ct. App. Mar. 1, 2016).

Posted April 20, 2016

Court Says That Children Under Age Five Can’t Be Found Negligent. The plaintiff was babysitting a four-year old boy when he threw a toy rubber dolphin at her, striking her in an eye in which she had previously had a cornea transplant. The injury rendered her blind in that eye. The plaintiff sued the boy for negligence and the boy’s parents for negligent supervision. The trial court dismissed the negligent supervision claim due to lack of evidence that the parents were negligent, and denied summary judgment for the boy on the negligence claim. On appeal, the court reversed, adopting the Restatement (Third) of Torts rule that states that children under age five, as a matter of law, cannot commit negligence. Children age five and over could be negligent based on a jury determination. The dissent would have established age three as the cut-off such that children under the age of three would be deemed incapable of negligence, and that children aged three to seven would receive a rebuttable presumption that they lack the capacity to commit negligent acts. The dissent also pointed out that the majority’s opinion was short-sighted because it ignored the effect of the decision in cases where the child was a plaintiff. Such children, under the court’s rationale, would be incapable of fault. Nielsen v. Bell, No. 20131047, 2016 Utah LEXIS 36 (Utah Sup. Ct. Mar. 24, 2016).

Posted April 7, 2016

New Trial Ordered in Case Involving Fall on Nature Trail. The plaintiff and a friend were walking on a nature trail when the noticed the defendant’s orange construction fence hanging low to the ground across the trail. They noticed posts on either side of the trail where the fencing had been fastened. The friend crossed over the fence without trouble, but the plaintiff caught her shoe in the webbing of the fence and tripped and fell, injuring her hamstring with required surgery to repair. The fence had been in place for about a year before the incident so that the defendant could build an access road for its equipment to access a work site. The fence was constantly vandalized by the public, requiring constant repair. Orange warning barrels had also been thrown into the river by vandals. The plaintiff sued for negligence, with the plaintiff’s attorney also seeking to have the court abolish the distinction for liability purposes between trespassers and lawful entrants. Apparently, the plaintiff’s attorney was unaware that the state Supreme Court had already done so in 2009. Thus, the court did not address that claim. The trial court directed a verdict for the defendant after the presentation of evidence to the jury. On appeal, the court reversed, noting that even weak cases should be submitted to the jury. The court determined that the evidence did not establish her status as a trespasser as a matter of law insomuch as the defendant could be deemed to have acquiesced in public use of the trail in issue. The court also determined that the plaintiff had presented a jury question as to whether the defendant had exercised reasonable care in monitoring the condition of the fence. The court reversed the trial court directed verdict for the defendant and remanded the case for trial. Robeson v. Veith Construction Corporation, No. 14-2137, 2016 Iowa App. LEXIS 308 (Iowa Ct. App. Apr. 6, 2016).

Posted April 2, 2016

Slaughterhouse Not Protected by Right-To-Farm Law. The defendant operated a slaughterhouse and meat market in the plaintiff town of approximately 1,400 people. In late 2013 and early 2014, the plaintiff issued 10 citations to the defendant for various ordinance violations involving street obstructions, street pollution, harboring noisy animals or fowl, and leaving vehicles unattended. The defendant plead not guilty to all of the citations and the municipal court found the defendant guilty of all 10 ordinance violations. On appeal, the trial court granted the defendant’s motion for summary judgment, dismissing all of the citations on the basis that the state (WI) right-to-farm law applied. On further review, the appellate court reversed. The appellate court reasoned that the right-to-farm law (Wis. Stat. §823.08(3)) concerned only nuisance actions to recover damages or abate a public nuisance involving an “agricultural use” or an “agricultural practice.” The plaintiff only sought to enforce its ordinances and impose forfeitures, thus the right-to-farm law had no application. No nuisance action had been brought against the defendant. The court specifically noted that the right-to-farm law did not strip municipalities from their authority to impose forfeitures, including any authority they have to regulate an agricultural use under their police powers. The court also dismissed one of the traffic related citations and determined that fact issues remained on two others. The court remanded the case to the trial court for further proceedings on the nine remaining citations. Village of Black Earth v. Black Earth Meat Market, LLC, No. 2015AP912, 2016 Wisc. App. LEXIS 170 (Wisc. Ct. App. Mar. 17, 2016).

Recreational Use Statute Protects County Fair From Liability. The plaintiff attended a fireworks display at the defendant’s county fair, a non-profit and tax-exempt corporation under state (ND) law. While looking for a seat, the plaintiff stepped on a rotten board in the grandstand and fell to the ground and injured herself. The plaintiff sued the defendant to recover for her injuries based on the defendant’s alleged negligence and maintenance of the grandstand. The defendant moved to dismiss the complaint on a motion for summary judgment and the trial court ruled for the defendant on the grounds that the defendant was protected from liability by the ND recreational use statute. On appeal the state Supreme Court affirmed. The Court noted that the ND recreational use statute (N.D.C.C. §53-08-03) was substantially modified in 2011 to unambiguously provide immunity for landowners that invite the public onto their land for recreational purposes rather than commercial purposes. While the plaintiff alleged that the defendant was engaged in a commercial purpose and wouldn’t be entitled to the protection of the statute, the Court disagreed. The Court noted that the defendant did not charge for the fireworks display, a prerequisite to being engaged in a commercial activity. The Court rejected the plaintiff’s argument that the plaintiff was subject to a charge because the vendors’ paid one on the plaintiff’s behalf, noting that the charge had to be a direct charge. Also, the court noted that “recreational purposes” was defined to cover all recreational activities, including a fireworks display. The Court also determined that another statute did not require the defendant to ensure that the grounds were safe, but merely imposes a supervision requirement. That requirement, the court held, did not usurp the recreational use immunity provided by the recreational use statute. Woody v. Pembina County Annual Fair and Exhibition Association, No. 20150236, 2016 N.D. LEXIS 62 (N.D. Sup. Ct. Mar. 15, 2016).

Posted April 1, 2016

Outdoor Wood Boiler Leads to Nuisance Claims. The plaintiff moved into their rural home on 2.6 acres in 1995. In 2004, the defendants built a house on their adjacent property. In 2010, the defendants installed an outdoor wood boiler (OWB) which they used to heat their home. In late 2013, the plaintiffs sought preliminary and permanent injunction setting forth counts of trespass, negligence, nuisance and gross negligence. The plaintiffs later sought to enjoin the operation of the OWB during while the litigation played out in court. The defendants moved to dismiss the action. The court refused to grant the preliminary injunction and the defendant’s appealed. The appellate court reversed noting that the plaintiffs established irreparable harm to their property and had consistently alleged such a nuisance. However, the appellate court noted that the trial court had not addressed the underlying nuisance claim. The appellate court also determined that the trial court had not properly assessed the likelihood of the plaintiffs’ success on the merits of their nuisance claim. The appellate court also determined that the trial court had not properly balance the harms to the parties (use and enjoyment of the plaintiffs’ property compared to higher electric bills for the defendants). Instead, the appellate court determined that the trial court had mistakenly determined that the harm to be considered was the actual harm to the property. The appellate court also determined that the trial court erred by finding that the preliminary injunction could not be issued because the defendants’ operation of the OWB didn’t violate any law or regulation. The case was remanded for the trial court to determine the matter again based on the appellate court’s guidance. Bowling v. Nicholson, No. 70A05-1502-CT-72, 2016 Ind. App. LEXIS 52 (Ind. Ct. App. Feb. 25, 2016).

---

Ditch Digging Activity Results in Actionable Trespass. The parties owned adjacent tracts of land and the defendant built an irrigation canal along the common boundary. After the canal was built, the plaintiff sued for trespass on the basis that a portion of the northern embankment of the canal encroached on the plaintiff’s property and caused water to be impounded. The trial court jury determined that a trespass had occurred, but that the plaintiff had consented to the trespass and was, therefore, responsible for 30 percent of the resulting damage. The jury also determined that the defendant did not divert the natural flow of the surface water in a manner that damaged the plaintiff. The trial court entered a judgment in accordance with the jury’s determination and ordered that the plaintiff take nothing. On appeal, the court reversed. The appellate court noted that it was not in dispute that the embankment encroached on the plaintiff’s land, but the court determined that the evidence showed that the plaintiff had not consented to the encroachment. The plaintiff had talked on numerous occasions with the contractor doing the ditching and expressed his concerns about the trespass and the impounding of water. The court also noted that the testimony revealed that discussions with the landowner would have been pointless because the county had received taxpayer “stimulus” funds from the federal government for irrigation projects and the projects were going to be completed once approved. Thus, evidence was legally insufficient to prove consent and the plaintiff was entitled to judgment on the trespass issue. However, the court denied the plaintiff a mandatory injunction, remanding that issue to the trial court for the trial court to enter the injunction. Peter and Camella Scamardo, F.L.P. v. 3D Farms, et al., No. 10-15-00163-CV, 2016 Tex. App. LEXIS 149 (Tex. Ct. App. Jan. 7, 2016).

---

Common Barnyard Act Not Did Not Warrant Protective Order. The parties owned neighboring tracts of agricultural land with a common border and had been engaged in a border dispute. The defendant often worked at his barn positioned about 125 feet from the plaintiff’s property. The plaintiff often worked near the property boundary and both parties are often outside at the same time and within eyesight of each other. The plaintiff sought a protective order because she claimed, among other things, that the defendant committed a sex act against her by urinating outside his barn within her view. At the trial court hearing, the plaintiff claimed that the defendant had urinated in front of her or exposed himself to her at least twelve times. She submitted blurry photographs that she claimed showed the defendant urinating outside. However, she acknowledged that she had to be “a little sneaky” to get the photographs. The defendant testified that the photographs showed him talking on the phone rather than urinating. The trial court issued a form order dismissing the plaintiff’s petition due to lack of evidence that would justify issuing a protective order. The plaintiff appealed and the court affirmed. The appellate court simply could not determine that the plaintiff had been a victim of domestic violence as required by the statute at issue, and the facts were disputed. Thus, the evidence did not lead to a conclusion opposite from what the trial court determined. Costello v. Zollman, No. 10A04-1509-PO-1438, 2016 Ind. App. LEXIS 43 (Ind. Ct. App. Feb. 16, 2016).

---

Liability Reassigned In Horse Accident Case. The plaintiff and another party were riding a horse with another couple on another horse in the middle of the right lane of a public roadway that had no shoulder, but a four-foot ditch. The plaintiff’s horse was a dark-colored horse and the other horse was a white horse. They had been riding since approximately much of the day with cars passing by them frequently. However, they were struck from behind and injured, with the dark horse ultimately shot to be put out of its misery. The accident occurred at approximately 6:30 p.m. in Louisiana in February. The riders sued the driver of the car and the driver’s insurance company, the defendant in the case. The trial court found the driver to be 100 percent at fault and awarded the riders approximately $25,000 in damages. On appeal, the court reversed and remanded the case. The court rejected the driver’s claim that the riders were fully at fault, and also rejected the claim that they should have illuminated the horses because there was no statutory or common law requirement to illuminate a ridden horse. However, the court did opine that it wasn’t the wisest choice to ride a dark horse on a public roadway at dusk while wearing dark clothing. The appellate court, therefore, allocated fault 50 percent to the riders and 50 percent to the driver with the result that the riders received slightly over $12,000 for their injuries. Prejean v. State Farm Mutual Auto Insurance Company, No. 15-499, 2016 La. App. LEXIS 6 (La. Ct. App. Jan. 6, 2016).

---

County Sheriff Not Liable For Injuries Resulting From Accident With Dead Horse on Roadway. A motorist, the defendant in this case, was injured when her vehicle struck a dead horse lying on the roadway and flipped over. Approximately 90 minutes before the accident, the plaintiff’s office (sheriff’s office) received a call about wandering horses along a roadway. A deputy responded to the call and watched as the horses ran up a driveway to towards a residence and appeared to return to their pasture. The deputy made no effort to ensure that the horses were in a secured enclosure and never got out of his car or made any contact with the property owner. One of the horses again got on the roadway where it was struck and killed by a motorist. The defendant later travelled the same roadway and struck the dead horse, flipping her vehicle and sustaining injuries. The defendant sued in negligence claiming that the sheriff owed her a duty of care and that the duty was breached causing her injuries. The trial court jury agreed and awarded her damages. The plaintiff claimed he owed no common law or statutory duty of care to the defendant under the public-duty doctrine, owed no special duty of care and the acts alleged were discretionary for which sovereign immunity applied. The trial court denied the plaintiff’s motion for summary judgment and a motion for directed verdict. The defendant also claimed that the plaintiff owed her a duty under the “undertaker” doctrine. The jury returned a verdict for the defendant and granted the defendant’s motion for additional damages. On appeal, the court reversed. The court held that sovereign immunity would only apply to bar the action if the plaintiff owed a duty of care to the defendant. On that issue, the court determined that no statutory duty was present because the statute at issue was the “fence in” statute that provided a remedy against the owner of livestock if the owner breached a duty of care rather than the Sheriff. The court also held that the plaintiff owed no common law duty of care because the dead horse posed no threat to the public in general as opposed to the defendant personally. Likewise, there was no special duty owed to the defendant because the deputy never took control of the situation or created a zone of risk. Also, the undertaker doctrine did not apply for the same reason. Manfre v. Shinkle, No. 5D14-336B 2016 Fla. App. LEXIS 1534 (Fla. Ct. App. Feb. 5, 2016).

---

Dog Bite Case Dismissed Because Owner Had No Clue Dog Could Be Violent. The plaintiff, while working at a veterinary practice, was attacked and bitten by the defendant’s dog that was being boarded at the practice. The plaintiff sued based on strict liability it tort, and the defendant moved for summary judgment on the basis that the defendant had no knowledge that the dog had any vicious propensities. The trial court denied the motion. On appeal, the court reversed on the basis that state (NY) law does not recognize a common-law negligence cause of action to recover for damages for injuries caused by domestic animals (except for a farm animal that strays from its enclosure), and to recover based on strict liability, the plaintiff must prove that the dog had vicious propensities that the owner knew or should have known of which the plaintiff failed to establish. Thus, no triable issue of fact was raised and the plaintiff’s complaint was dismissed. Bueno v. Seecharan, No. 2014-02298, 2016 N.Y. App. Div. LEXIS 707 (N.Y. Ct. App. Feb. 3, 2016).

---

Milking Control Unit Not Proven To Be Source of Harm to Dairy Cows. The plaintiff, a commercial dairy operation, purchased a milking control unit that the defendant manufactured. The unit allowed the cows to be milked twice daily rather than three times a day. The plaintiff claimed that the unit malfunctioned resulting in mastitis and decreased milk production. Specifically, the plaintiff claimed that the defendant negligently and defectively installed and programmed the unit and that the defendant set parameter settings improperly. The plaintiff’s expert testified that the damage to the cows was “consistent with” milking units detaching under vacuum. The trial court excluded the expert’s testimony in large part and his deposition was not offered at a hearing on a motion for summary judgment. The trial court also excluded the testimony of a veterinarian for the plaintiff to the extent it related to proximate causation of an increased somatic cell count at the dairy during the key timeframe. The trial court granted the defendant’s motion for summary judgment. Evidence existed that the plaintiff had not followed proper hygiene procedures and that the cows’ somatic cell count had been on the rise before the unit was installed. On appeal, the court affirmed on the basis that the plaintiff did not successfully contradict the defendant’s evidence that other causes for the damage existed. Roskop Dairy, L.L.C. v. GEA Farm Technologies, Inc., et al., 292 Neb. 148 (2015).

---

Negligence Principles Apply To Damages Caused By Escaped Bull. The defendant’s bull broke through a lawful partition fence and got into the plaintiff’s heifers. The plaintiff tried to direct the bull to its enclosure by using an ATV when the bull charged, flipped and mounted the ATV, pinning the plaintiff beneath it. The plaintiff sued under Mo. Rev. Stat. §272.030 which requires a livestock owner to pay for damages that their trespassing animals cause as a result of escaping any lawful fence. The trial court jury returned a verdict of $1.8 million against the defendant, allocating fault 65 percent to the defendant and 35 percent to the plaintiff. Thus, the plaintiff’s recovery was $1,170,000. Both parties appealed. The plaintiff claimed that the defendant should be held strictly liable such that the comparative fault rule would not apply and the plaintiff would be entitled to recovery the full $1.8 million judgment. The defendant claimed that Mo. Rev. Stat. §272.030 only applied to exterior fences (highway fences) which were not involved in the case, and that damages for personal injury were not recoverable under the statute. The appellate court disagreed with all of the parties’ arguments. On the defendant’s argument that the statute only applied to exterior fences, the court noted that the Missouri legislature had broadened the statute since an 1882 Missouri Supreme Court case that seemed to support the defendant’s argument such that the statute covered “the premises” rather than just “the enclosure” of another and also applied to “any lawful fence.” The court also rejected the defendant’s second argument that he couldn’t be held liable for personal injuries under the statute on the basis of the statute’s language that says that the “animal owner” is liable for the value of the damages sustained by the injured party. The court also rejected the plaintiff’s comparative fault argument by noting that strict liability only applied in product liability cases and that the plaintiff’s argument did not comport with the Uniform Comparative Fault Act that Missouri had adopted by virtue of a 1983 Missouri Supreme Court decision. Thus, the plaintiff was entitled to a recovery of $1,170,000. Coble v. Taylor, No. SD 33713, 2016 Mo. App. LEXIS 64 (Mo. Ct. App. Feb. 1, 2016).

---

Company Conducting Seismic Survey Not Responsible For Land Damage. The defendant performed a seismic survey for a third party that owned the mineral rights beneath land where the plaintiff owned the surface. The third party contracted with the defendant to perform the survey. The plaintiff purchased the surface estate in 2007 for hunting and cattle grazing purposes. The survey was performed in the spring of 2010, and when the plaintiff returned to the land, ruts were discovered on the surface. The defendant offered the plaintiff the industry standard of $5 per acre in damages, but the plaintiff rejected that amount and brought a general (as opposed to professional) negligence suit against the defendant. The plaintiff did not present any expert witness testimony as to industry standards for seismic surveys or industry standards with respect to ruts after a survey was performed, but argued that the land was too wet when the survey was conducted. The defendant presented evidence that the survey was conducted in accordance with industry standards. On the damage calculation, the plaintiff presented evidence from a dirt contractor and farmer that it would cost $1 per foot to remediate the land and that the plaintiff’s caretaker had fixed the ruts on the roads for $70 per foot. The defendant presented evidence that the land was not damaged based on its intended use for hunting and cattle grazing. The jury awarded the plaintiff damages of $88,000 apparently on the basis did not act in a reasonable manner in conducting the survey. On appeal, the defendant challenged the sufficiency of the evidence and the court reversed on the basis that the evidence actually showed that the defendant acted reasonably when it performed the survey. In 2009, the defendant sent a permit to the plaintiff that stated that its operations would be conducted in accordance with industry standards and in a prudent and careful manner. However, the plaintiff did not sign and return the permit. As a result, the defendant was not bound by the permit. While Kansas appellate courts had never addressed whether seismic surveyors owe a duty to the surface rights owners absent a contract, the court noted that liability has been imposed under an oil and gas lease when the use of the surface has been “overreached and becomes injurious to the lessors’ agricultural pursuits” even without an express lease provision. The court determined, that absent a contractual or statutory provision, the defendant would be held to the duty set forth in Restatement (Second) of Torts §302 – a general duty to exercise the standard of care that a reasonably prudent seismic surveyor would have exercised in a similar situation. On that issue, the court held that the plaintiff presented insufficient evidence of a breach of general negligence at trial. In addition, there was no evidence that a reasonable seismic surveyor would have fixed the ruts, but only that the surveyor would have offered the industry standard of $5 per acre which they did. Thus, there was no breach of a duty under the Restatement standard, and the court reversed the jury verdict and award of damages. Alford Ranches, LLC v. TGC Industries, Inc., No. 112, 375, 2015 Kan. App. Unpub. LEXIS 1147 (Kan. Ct. App. Dec. 31, 2015).

---

Provision of Electrical Power to Oil and Gas Operations Via Public Easement Not a Trespass. The plaintiff is the trustee of a trust that owns a surface estate that is a single drilling and spacing unit. A public electrical utility company constructed an electrical highline across the east boundary of the trust’s property within the public road right-of-way which provided power to the defendant’s nearby oil and gas operations. The plaintiff claimed that the defendant’s obtaining of power in this manner without obtaining the plaintiff’s consent before the highline was constructed amounted to a continuing trespass and a servitude on the trust’s property. The plaintiff sought injunctive relief that would cause the highline to be removed, damages, and attorney fees and costs, basing its position largely on a state law that it claimed required permission from the highway authority or county commission before poles and wires can be erected, etc. The defendant moved for judgment as a matter of law. The defendant pointed out that it did not have any control over the highline, and also claimed that the state law at issue did not apply to a public utility. The trial court granted the defendant’s motion for judgment as a matter of law. On appeal, the appellate court affirmed. The court found that caselaw the plaintiff cited provided no support for the proposition that a customer of a public utility is liable as an aider and abettor simply by requesting the provision of electrical service by a public utility. The court also noted that the plaintiff failed to present evidence that any state rule or statute was violated that could serve as a basis of liability for the defendant. Buckles v. Triad Energy, Inc., No. 112530, 2015 Okla. Civ. App. LEXIS 102 (Okla. Civ. App. Dec. 14, 2015).

---

Working Dog Exception to Dog Bite Statute Inapplicable. The petitioners were sheep ranchers who held a grazing permit on federal land. A recreational district had been granted a permit to access and hold events on the same land. Petitioners owned several Great Pyrenees dogs to protect their sheep from predators. The respondent was attacked and seriously injured by the petitioners’ dogs while participating in a mountain bike race sponsored by the district. She and her husband filed an action against the petitioners, alleging negligence and strict liability under the Colorado dog bite statute (C.R.S. § 13-21-124). The trial court granted summary judgment for the petitioners on the grounds that the Colorado Premises Liability Act preempted the common law claims and that the "working dog exemption" in the dog bite statute granted them immunity to strict liability. The court of appeals affirmed as to the common law claims, but reversed as to the dog bite statutory immunity, ruling that the "working dog exemption" required the dog owner to be in control of the property where the bite occurred such that the owner could exclude others. However, the court remanded the case for further proceedings. On appeal by the petitioners, the Colorado Supreme Court disagreed with the court of appeals’ interpretation of the dog bite statute, finding that the “working dog exemption” in the dog bite statute applied if the bite occurred while the dog was on its owner’s property or while the dog was working under the control of its owner. Nevertheless, the Court affirmed on other grounds, finding that the court of appeals properly remanded for further factual findings. On remand, the defendants argued that the CO Recreational Use Statute applied such that the plaintiff was a trespasser or that the plaintiff was an agricultural invitee under the premises liability act. The plaintiff claimed that she was an invitee under the premises liability act and that the recreational use statute did not apply. The trial court determined that the recreational use statute was inapplicable and that the plaintiff was a trespasser under the premises liability act. The trial court also determined that the working dog exception in the dog bite statute barred the plaintiff’s strict liability because the defendant’s grazing permit created a sufficient property interest to satisfy the exemption. The appellate court, however, determined that the defendant’s consented to the plaintiff’s entry on the property via their grazing permit and that the plaintiff was a licensee. The court also held that the working dog exception in the dog bite statute did not apply because the dogs were not working on the property of their owner at the time of the attack on the plaintiff. On this point, the grazing permit only conferred a revocable license and not ownership. Thus, the trial court’s order was reversed. Legro v. Robinson, No. 15CA0486, 2015 Colo. App. LEXIS 2041 (Colo. Ct. App. Dec. 31, 2015), on remand from Robinson v. Legro, No. 12SC1002, 2014 Colo. LEXIS 414 (Colo. Sup. Ct. May 27, 2014).

---

Case Involving Class Action Against Accused Oil and Gas Lease Trespassers Sent Back to Federal Court. The plaintiff proposed a class action against the defendant and other parties on the basis that they had trespassed on foreclosed oil and gas leases. The trial court remanded the case to state court. On appeal, the court remanded the case to federal court on the basis that the class definition required federal jurisdiction. The court held that the plaintiff’s complaint did not clearly define a class that fit within the exception for local controversies contained in the Class Action Fairness Act. The court noted that the plaintiff’s complaint described the class as current property owners in Texas where the mineral interests were located, but another paragraph of the complaint defined the class as those “who are, or were, since 2004” buyers of the property. The latter definition did not satisfy the Class Action Fairness Act exception, according to the court, because the plaintiff had not identified the residency of owners who bought the subleased property after foreclosure and had since sold it. Arbuckle Mountain Ranch of Texas, Inc. v. Chesapeake Energy Corp., et al., No 15-10955 (5th Cir. Jan. 7, 2016).

---

Fence Agreement Breached. The parties executed a partition line fence agreement and recorded it in the fall of 2013. Under the agreement, the plaintiff was responsible for a portion of the fence between their farms and the defendant was also responsible for a specific portion. The newly constructed fence was to be a "tight fence" and specifics were provided as to how the fence was to meet that requirement. As for the defendant, the agreement not only specified the portion of fence the defendant was responsible for, but set deadlines for having the fence built to those specifications. The defendant hired a fence builder, but never showed the agreement to the builder before leaving to winter in Arizona. The defendant's portion of the fence was not built to specification and was not built in a timely manner. The plaintiff sued and the trial court awarded damages for work done to bring the fence into compliance, for repair of a tile line, for reseeding and for lost rent in 2014. On appeal, the court affirmed. Brookview Farms, LLC v. Wennes, No. 14-1318, 2015 Iowa App. LEXIS 1159 (Iowa Ct. App. Dec. 9, 2015).

---

Court Finds Private Right of Action for Mislabeled Organic Products. The defendant is a large herb grower that became the subject of a class action accusing the defendant of mixing organic and conventionally grown herbs in the same package and selling the package at a premium as "fresh organic." The class sued under state (CA) unfair competition and false advertising laws. The trial court held that the class action was preempted by federal law governing organic labeling. On appeal, the CA Supreme Court reversed. The court noted that the federal Organic Foods Act displaced state law concerning organic standards and thereby created a federal definition of "organic" and created a federal organic certification procedure. The court, however, determined that federal law did not either explicitly or implicitly preempt state rules for mislabeling. Likewise, the court held that state consumer protection law furthered the Congressional objective of ensuring reliable organic standards. Quesada v. Herb Thyme Farms, No. S216305, 2015 Cal. LEXIS 9481 (Cal. Sup. Ct. Dec. 3, 2015).

---

Gratuitous Bailee Did Not Convert Bailed Property. The plaintiff was friends with the defendant's father and stored property on the father's acreage. The plaintiff stored items on the property, including cars, an old motor home and other automotive and recreational vehicle parts. The father died, and the executor allowed the plaintiff to continue to store his property there. Ultimately, the defendant acquired title to the property and advised the plaintiff that he needed to remove his items from the property or buy the acreage for $50,000. The plaintiff declined the purchase offer, and the plaintiff did not get his items removed before the winter. In the spring of the following year (more than a year after the father died), the defendant notified the plaintiff that he owed $350 for the storage of the items ($50/month for seven months) to be paid to the defendant's lawyer within a week and that he should make arrangements to remove the items. The storage fee wasn't paid and the items weren't removed. Five months later, the plaintiff sued for conversion after seeing that at least some of his items were no longer on the acreage. The defendant claimed that the plaintiff had abandoned the items, and sought damages for a reasonable storage fee and costs incurred in removing the property. The trial court determined that the defendant removed the property in violation of Iowa Code Sec. 556B.1 for failure to give the proper notice, and entered judgment for the plaintiff of $10,800 (the value of the property less the reasonable storage fee and an adjustment for a skid loader). On appeal, the court reversed. The court noted that the defendant was a constructive or gratuitous bailee of the plaintiff's property and, as such, was only liable to the plaintiff if the property was lost or damaged through the defendant's gross negligence. Here, the court noted, the defendant had stored the items for almost a year and stored them for more than six months after asking the plaintiff to remove the items, and didn't dispose of them until receiving a court order from the estate that any items on the property were property of the estate that he inherited. Accordingly, the defendant did not illegally convert the plaintiff's property. Theis v. Kalvelage, No. 14-1568 (Iowa Ct. App. Nov. 25, 2015).

---

"Fix and Flip" Cow Operation Not Entitled To Business Interruption Damages or Punitive Damages for Defective Feed. The plaintiffs buy bred heifers sell the cows as soon as possible after calving and then feed the calves for a while before selling the calves, hopefully at a profit. The calves were not kept for breeding purposes, and the plaintiffs would simply start the process over the next year. The plaintiffs ordered "creep feed" mixed with Rumensin from the defendant that was placed in creep feeders with the calves. The calves showed signs of respiratory distress with numerous calves eventually dying. The toxicology report on two of the calves showed toxic levels of Rumensin. In total, 23 calves died. The plaintiffs weaned and fed out the remaining 170 calves and sold them at auction with a disclaimer that they had been fed excess Rumensin and were sold "as is." The plaintiffs then sued the defendant for negligence, breach of implied warranty of fitness for a particular purpose, and breach of a voluntarily assumed duty. The plaintiffs also claimed that the defendant was strictly liable for the resulting damages from a hazardous and dangerous feed condition. The trial court rejected all of the plaintiffs' claims except that based on breach of implied warranty and awarded damages of $164,072.54. The court also denied the plaintiffs an award of attorney fees. The plaintiffs appealed on the basis that the award was insufficient to make them whole for failure to award business interruption damages based on lost profits. However, the appellate court refused to award such damages, noting that in order to recover lost profits on such a theory, there must first be an on-going business with an established sales record and a proven ability to realize profits at the established rate with proof of actual profits for a reasonable time before the breach. Here, the appellate court determined that the plaintiffs were merely speculating in the calf market and did not have a cattle operation analogous to the swine operation in Ballard v. Amana Society, 526 N.W.2d 558 (Iowa 1995). The appellate court also denied punitive damages on the basis that the defendant's conduct was not willful and wanton and was without malice, but that errors occurred due to extenuating, non-malicious factors. The appellate court also upheld the trial court's denial of attorney fees for lack of wanton conduct on the defendant's part. The court also denied additional damages based on an alleged mistake in the damages calculation because the claim was not raised in the plaintiffs' post-trial motion. Swanson v. R & B Feeds, L.L.C., No. 14-1823 (Iowa Ct. App. Nov. 25, 2015).

---

Court Refuses To Impose Liability For Gender-Based Dangerousness of Ram. The parties are friends and neighbors and are both farmers. The plaintiff has raised various types of livestock, but the summer of 2012 was his first time raising sheep. The defendant had bred sheep for over 30 years. On occasion, the plaintiff allowed the defendant to keep livestock on the plaintiff's property. In the summer of 2012, the parties went together to a livestock yard where the defendant bought a lamb ram to replace his existing ram. The ram showed no vicious tendencies. After ewes had been put in the pasture with the ram, the plaintiff was butted repeatedly by the ram as he attempted to turn on sprinklers in the pasture. At the time of the incident, the plaintiff was 82 years old. He suffered a concussion, five broken ribs, a broken sternum and a broken shoulder. The plaintiff was hospitalized for 16 days. The plaintiff sued based solely on a theory of gender based strict liability irrespective of whether or not the defendant knew the ram was abnormally dangerous. The trial court granted summary judgment for the defendant. On appeal, the court affirmed. The appellate court noted that the standard of care under state (WA) law is ordinary care if the animal is not inclined to commit mischief, unless it is shown that the animal's owner knew that the animal had vicious tendencies. In that event, strict liability is the rule. The court noted that this approach was consistent with Restatement (Second) of Torts Secs. 509 and 518. Under Restatement (Second) of Torts Sec. 509 comment e, rams have not historically been regarded as being inherently dangerous animals, but comment 23 of the Restatement (Third) of Torts propose a possible gender-or-breed-based modification of the general rule treating domestic animals as not excessively dangerous. The court, however, referenced the policy reasons for not holding owners of male domestic livestock to a strict liability standard. In addition, the court noted that the legislature could modify the law and had already done so with respect to dogs in certain situations. Rhodes v. MacHugh, No. 32509-1-III, 2015 Wash. App. LEXIS 2687 (Wash. Ct. App. Nov. 3, 2015).

---

Treatment of Line Between Properties as Border Establishes Legal Boundary. Owners of adjacent tracts, for decades, had treated an invisible line between their properties as the boundary. A new owner of one of the adjacent tracts had a survey taken which showed that the line was six-feet onto their tract and that the swimming pool on the adjacent tract was partially on their side of the surveyed line. An existing split-rail fence was on the line between the properties, but had not been there the statutorily required 10-years to establish a boundary by acquiescence (IA Code §650.14). The new owner removed the fence and the plaintiffs (owners of the adjacent tract) sued to quiet title to establish the line as the boundary between the properties via acquiescence. The trial court determined that the elements for boundary by acquiescence had been satisfied. Testimony at trial revealed that the adjacent owners had always mowed up to the line and maintained their respective tracts up to the line. That was sufficient evidence of a physical division between the tracts that had been recognized for at least 10 years. Mapes v. U.S. Bank National Association, N.D., et al., No. 14-1770, 2015 Iowa App. LEXIS 993 (Iowa Ct. App. Oct. 28, 2015).