October 29, 2020

Property Damages to Trees

It happens every day between neighbors. Oak trees on private property get cut down. The diminution in the value of the property is the loss of the trees. Plaintiff wants to recover the cost of replacing the trees. Such a recovery would cost more money than the property’s value.

Are damages in the form of restoration of the trees reasonable if the cost of replacement would be worth more than what the whole property is worth?

If it is determined that Plaintiff had personal reasons for restoring the property to its original condition, and such restoration could be achieved at a cost that is not unreasonable in relation to the damage inflicted and the value of the land prior to damages, Plaintiff may be awarded restoration costs for the trees cut down.

The measure of damages for tortious injury to property is the amount which will compensate for all the detriment proximately caused thereby. There are two ways to determine such damages. The general measure of damages is the difference between the value of the property before and after the injury. An alternative measure is the cost of restoring the property to its condition prior to the injury.

As to restoration awards, courts will normally not allow costs of restoration if they exceed the diminution in the value of the property prior to the injury. This is because the basic objective of compensatory damages is to make an injured party whole, but no more than that. The Plaintiff may be awarded the lesser of the two amounts.

An exception to the general rule is that restoration costs may be awarded even though they exceed the decrease in market value if the owner has personal reason for restoring the original condition, or there is reason to believe that the owner has a bona fide desire to repair or restore. The personal reason exception has been invoked in cases involving destruction of shade or ornamental trees that were of personal value to the owner, but of little commercial value. Though, courts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered. These cases have also allowed recovery of the value of the trees or shrubbery without regard to the diminution of the value of the land, if restoration of the land to its former condition was impossible or impracticable.

If the trespass is found to be willful and malicious, the court may impose more damages. If the trespass is found to be causal and involuntary or under a mistake of fact, the court must impose fewer damages.

Premises Liability

A personal injury case is usually based on strict liability, negligence, or intent. A case based on negligence is one where injuries happen by accident. An action in negligence requires a showing that a defendant owed a plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of the injuries plaintiff suffered.

When persons or businesses own property, landowners are required to maintain land in their possession and control in a reasonably safe condition. This maintenance duty, owed to patrons, includes the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of precautionary measures. There is persuasive case law that the existence of a defendant’s duty to keep premises safe is not precluded by the defendant’s lack of control over the exterior premises where the crime occurred. For example, if a mugging happens in a parking lot, the defendant may still be liable to the plaintiff even though the defendant does not own the parking lot. The question is whether the crime would have occurred in premises the defendant did not control, had the defendant provided security patrols in the common areas.

A duty to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. Foreseeability is a crucial factor in determining the existence of duty. For example, a landlord may have a duty to take reasonable precautions to safeguard common areas against crimes which it had notice and which were likely to recur if the common areas were not secure. Without foreseeability as a factor, an unfair burden would be imposed on landowners and, in effect, would force landownersto become the insurers of public safety.

Foreseeability is determined in light of the totality of the circumstances, including such factors as the nature, condition, and location of the premises. Random, violent crimes are endemic in today’s society. Because no one really knows why people commit crimes, no one knows what adequate deterrence is in any given situation. The scope of a defendant’s duty is determined by balancing the foreseeability of harm against the burdensomeness, vagueness, and efficacy of proposed security measures.

Because the monetary cost of security guards is significant, the hiring of security guards required to satisfy a landowner’s duty of care will rarely be a minimal burden. A high degree of foreseeability is required in order to find that a landowner’s duty of care includes the hiring of security guards. In other words, for there to be a duty imposed on a defendant to provide security guards, a plaintiff has to show that the presence of guards could have prevented the criminal incident.

Often the legal aspects of premises liability cases require prepared Chicago personal injury attorneys who do not surrender to the negatives.

When Does a General Contractor Have “Control” of the Project Site

The Illinois Appellate Court recently affirmed the granting of summary judgment to a defendant in a case that could be enlightening for construction managers in Illinois. In O’Connell v. Turner, a personal injury suit was brought by plaintiff Lawrence O’Connell, a construction worker who suffered injuries on the construction site, against Turner Construction, a construction manager hired by the school district. Plaintiff alleged liability under Section 414 of the Restatement (Second) of Torts, stemming from defendant’s “significant operational and/or supervisor control over the trade contractors.”

As a rule, general contractors will not be held liable for the acts or omissions of its independent contractor. However, Section 414 creates an exception, providing that “one who entrusts work to an independent contract, but who retains the control of any part of work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” It is important for construction defendants to keep in mind that the precondition and fundamental requirement of imposing vicarious liability on defendants under Section 414 is for the defendant to have entrusted work to an independent contractor. Entrustment is a necessary finding for liability to attach under Section 414.

In the present case, the appellate court held that the question of whether the defendant exercised control at the construction site was irrelevant, since control alone does not trigger liability under Section 414. The plaintiff was employed by a subcontractor that was hired by an independent contractor, who in turn was hired directly by the school district, not the defendant. The court noted that unless the defendant actually selected the contractors or subcontractors, the defendant had not entrusted them with any work.

Defendants to a claim arising from construction site negligence should pay careful attention to Section 414(c). Any evidence that the owner, general contractor lacked authority to direct the plaintiff’s employer in the means and methods of its work, can be used to support the argument that there are not sufficient grounds to impose liability. Given the trend in recent case law, including O’Connell v. Turner, it will likely be more difficult to impose liability for construction managers who lack control on the job site, and for construction managers that do not directly hire their own contractors.

Employers Limiting Liability Through Cell Phone Policies

As an employer, you give your employee a Blackberry with the intent that their availability be a phone call or text away. But what happens when your employee is driving, her supervisor calls her, she feels obligated to answer, and in the process of doing so, hits the car in front of her? 4 out of every 5 accidents (80%) are attributed to distracted drivers.

This is yet another way respondeat superior or vicarious liability may implicate employers; negligence by employees that will be passed onto the employers, unless the employer communicates a cell phone policy to its employees. If not, the employee or their family may file a negligence lawsuit against the employer for their injuries, and they might win. A compelling case can be made that the employee felt that they had to answer the phone based on something their boss said. To get around this, a clear cell phone policy, whether the company has provided the cell phones or not, will in effect, allow the employers to escape liability. The following is an example of such a policy:

Due to research that indicates that cell phone use while driving is dangerous, and may even approach the equivalent danger of driving while drunk, according to some studies, your company prohibits employee use of personal cellular phones, either hands on or hands free, or similar devices, for business purposes related in any way to our company, while driving.

We recognize that other distractions occur during driving, however curbing the use of cell phones, while driving, is one way to minimize the risk, for our employees, of accidents. Therefore, you are required to stop your vehicle in a safe location so that you can safely use your cell phone or similar device. Engaging in your company business using a cell phone or similar device while driving is prohibited. Engaging in your company business using a cell phone or similar device that is supplied by the company, or while driving a company-supplied vehicle, while driving, is prohibited.

Employees who violate this policy will be subject to disciplinary actions, up to and including employment termination. (available at humanresources.about.com/)

LaCoste v. Pendleton Methodist Hospital: Understanding Premises Liability

LaCoste v. Pendleton Methodist Hospital, a New Orleans, LA case that eventually settled involved a 73-year-old who died when she was recovering from pneumonia. She needed a ventilator when the defendant Pendleton Methodist Hospital lost power during Hurricane Katrina, and its backup generator failed from flooding.

LaCoste v. Pendleton Methodist Hospital may be persuasive precedent for a personal injury case in Chicago, IL when evaluating the standard of care medical providers must apply during emergency situations. With natural catastrophes like fires, earthquakes, blizzards commonplace, courts will be looking at what kind of care a hospital needs to apply during unanticipated crises.

The plaintiffs in LaCoste sued based on premises liability, rather than professional negligence. They claimed business decisions not related to medical care were to blame for the death. A plaintiff basing a claim on general negligence rather malpractice increases the liability risk for a hospital by opening the door to more lawsuits by other patients who die from the same emergency non-preparedness rather than the mistreatment of a few healthcare professionals.

Professional negligence by a healthcare provider occurs when the provider deviates from the reasonable standard of care in the medical community and causes injury or death to the patient. Some rules of care in the medical profession include: doctors have a duty to follow up on patients, nurses have a duty to keep accurate records, and hospitals have a duty to keep facilities free from infections. In a malpractice action, the standard of care is based on expert testimony. For example, with hospitals dealing with infections, there have been expert studies on systems for monitoring bacterial resistance, institutional guidelines to control the use of antibiotics, and contact precautions to patients suspected to be infected with microorganisms.

Premises liability laws require property owners, including business owners, to keep property in a reasonably safe condition. A duty is owed to all persons within the foreseeable zone of danger. Property owners must warn visitors of any hazards when they create a dangerous condition on property, or allow a condition to persist for a long time. An unreasonably long period of time for a property owner to allow a defective or dangerous condition to exist depends on the type of property and the time another property owner in the same position would recognize and repair or remove the hazard. In LaCoste, a memo documented the generator deficiencies. This memo showed the hospital knew there was a problem, but did not address it. The hospital might have been in a better position to prove it was not negligent if it was able to show it considered possibilities, justified decisions based on budgets, consulted with risk management like insurance coverage, and dealt with the problem rather than doing nothing.

If you have been carelessly treated by a healthcare provider, contact us today.