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 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).