By 1990 Skyline Woods was well established with 90 homes built around the country club, and Circo thought the time was right to sell the club to a golf course management company. Unfortunately, the golf pros ran into financial hazards. They ran out of “green,” and the only course of action was for Skyline Woods Country Club to file for bankruptcy in 2004. To pay off debt, the bankruptcy trustee auctioned off the property in 2005. A group of Skyline Woods homeowners tried to buy the club, but were outbid by Liberty Building Corporation, a development company owned by David Broekemeier.

Here’s where things got sticky. The federal bankruptcy court transferred property to Liberty, free and clear of all obligations. Shortly after, Broekemeier met with homeowners and club members to inform them he had no obligation to honor memberships, offering the option to play the course if they paid fees like anyone else.

If that was bad, what happened next was worse. In spring 2006, Broekemeier closed the club, posted “no trespassing” signs, and began cutting down trees to clear land where he planned to build a condominium complex and water park. Teed off homeowners sued Broekemeier in Nebraska State Court, requesting a restraining order to prevent further damage to the land. They claimed implied covenants as homeowners in the golf community guaranteed the only use of land was as a golf course.

They reasoned Broekemeier might own the golf course free and clear, but only free to use it as a golf course. Homeowners added that no matter how you slice it, Broekemeier was well aware of their covenants, as he had also built a golf community adjacent to Skyline Woods. And, like Circo, he marketed the course’s proximity and views to sell lots. And there were rumors that he was going to redirect the golf course toward his neighborhood, leaving Skyline Woods homeowners with views of condos and a water park.

In response, Broekemeier came out swinging with a motion to dismiss the case. His first argument was that the state court had no jurisdiction to interfere with the federal bankruptcy order. Second, even if the State court did have skin in the game, the covenants were unenforceable because they were never recorded. Finally, he said Nebraska law protects bona fide purchasers from restrictive covenants when there is no notice.

District Court Decision—2008:

Round one was won by homeowners. A Nebraska court found that they did indeed have implied restrictive covenants; Broekemeier was aware of the covenants; and finally, the bankruptcy sale of the property did not discharge the covenants because they belonged to homeowners, not the golf course. The court ordered Broekemeier to either reopen the golf course or maintain it in a fashion that would not devalue the property of homeowners. Brokemeier chose the latter.

Round two: After six years of legal turf wars, the golf course never reopened, eventually becoming an eyesore due to lack of maintenance.

Aftermath—2012:

Game over. The land was sold. New owner is spending $7 million to build a premier golf course.

Looking For a Fair-Way The Saturday Evening Post

What is the value of a lovely oak tree that brings beauty and nature to a man’s front yard? For decades the tree stood strong, and the Fisher family enjoyed it season 
after season—until a reckless driver hit 
it, resulting in extensive damage that 
eventually killed the mighty oak.

For Mr. Fisher, the value was incalculable. There was no way for him to replace the magnificent oak, but in an effort to seek justice, he filed a tort action against Ms. Lowe, who was operating the car, and Mr. Moffett who owned the car. Mr. Fisher also sued their insurance company.

The accident occurred in Michigan 
where there is “no-fault” insurance. And tort liability for “noneconomic loss” caused by the “ownership, maintenance, or use 
of a motor vehicle” is allowed when “the 
injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.”

But what about “permanent serious 
disfigurement” suffered by a beloved tree?

The trial court ruled in favor of the defendants, pursuant to Michigan’s No-Fault 
Insurance Law. Unfortunately for Mr. Fisher, the statute makes it poetically clear:

There was no liability,

Since No-Fault grants immunity.

Mr. Fisher refused to be felled by the lower court, so he appealed to a higher branch. Judge Gillis wrote the opinion for the Michigan Court of Appeals, with a nod to Joyce Kilmer’s famous poem, “Trees”:

We thought that we would never see

A suit to compensate a tree.

A suit whose claim in tort is prest

Upon a mangled tree’s behest;

A tree whose battered trunk was prest

Against a Chevy’s crumpled crest;

A tree that faces each new day

With bark and limb in disarray;

A tree that may forever bear

A lasting need for tender care.

Flora lovers though we three,

We must uphold the court’s decree.

Fisher v. Lowe, 333 N.W. 2d 67

(Mich.Ct.App.1983)

Only God Can Make a Tree The Saturday Evening Post

We’ve all been there—out in some unfamiliar town or place and suddenly in need of a restroom. And if you gotta go, you gotta GO.

This was the situation for Mrs. Elliott when she was shopping at a Dollar General store in Chattanooga, Tennessee. When nature called, a store employee directed her to the restroom—in the back storage area of an old, rundown building.

The latrine was unlit (probably a good thing under the circumstances), but she noticed an electric light cord hanging down from the ceiling. She couldn’t reach it, so she stepped up on the toilet to pull the cord. That’s when the toilet lid slipped to one side, causing her right foot to plunge into the toilet while her other foot and the rest of her body fell backward onto the floor, resulting in serious injury.

Mrs. Elliott sued Dollar General, claiming the defective seat and lid caused her fall. The store blamed the accident on Mrs. Elliott’s heavy load, not the commode, explaining that the toilet seat was designed to “conform generally to the contours of the human posterior” and in the ordinary course of business, “when the commode seat is in use by a member of the feminine gender that the usual method of approach to it is to draw near, to then turn to face away from it, and to assume a sitting position with a portion of the user’s weight on the user’s feet.”

Dollar General even brought in an expert witness with a mathematical formula to measure what percentage of the user’s weight rested on the posterior as compared to the feet. (There was no calculation for hovering posteriors.)

Mrs. Elliott’s attorney argued that it was common for people to stand on toilets, using personal experience as his No. 1 example. “I weigh 185 pounds, and instead of going to the basement to get a step ladder, I let down the commode seat and the commode lid and step upon it and unscrew the light shade with a screwdriver. I know of my own knowledge that it has never broken or even cracked.”

Mrs. Elliott pleaded the store was negligent in its duty to provide a safe commode, and Dollar General claimed it was Mrs. Elliott’s duty and responsibility to use the toilet properly.

Whose duty was it?

Decision:

The court found in favor of Dollar General, holding that Mrs. Elliott did not exercise ordinary care for her own safety, and any resulting injury was due to her own negligence.

Nothing in the record shows that the toilet seat or commode was unsafe to sit on or use in the conventional manner, so the court concluded that Mrs. Elliott was putting the toilet to a use that the defendants could not foresee when she took her fateful plunge.

Supreme Court of Tennessee, 1971

Where Do You Think You Are? The Saturday Evening Post