One week after Shirley and David Finch purchased a home in Parkersburg, West Virginia, they discovered defects in the basement—defects they hadn’t noticed before because the area was blocked from view by the previous owner’s workbench. The couple had hired InspecTech to complete an inspection and report prior to the purchase of the home, so they contacted them for an explanation. The company’s inspector reinspected the home and reported water damage, prior efforts to fix it, water infiltration, and structural issues with the foundation. InspecTech refused to pay for any costs incurred because the agreement they had with the Finches included unconditional release for damages.

The Finches sued the company for negligence and $39,000 to cover the cost of repairs.

InspecTech maintained the Finches had no right to collect, citing the contract which stated “The CLIENT (Finches) hereby releases and exempts the COMPANY and its agents and employees of and from all liability and responsibility for the cost of repairing or replacing an unreported defect or deficiency.” It argued the couple freely entered into the contract; the language about unconditional release was unambiguous; and the contract should be enforced citing precedence that “when an express agreement is freely and fairly made, between parties who are in an equal bargaining position, and there is no public interest with which the agreement interferes, it generally will be upheld.”

The Finches countered that unconditional release of liability was against public interest because Flanagan presented himself as a certified home inspector in West Virginia, yet failed to meet state standards. Contractual release would give them no recourse against negligence and provide disincentive for experts to adequately perform services. InspecTech said its contracts and services were based on business policy, not public policy, and maintained the right to enter into contracts with any other party, as they did with the Finches.

Decision:
The Circuit Court of Wood County found the Finches had contractually released InspecTech from all liability and responsibility for costs of repair and granted a summary judgment in favor of InspecTech. The Finches appealed.

The Supreme Court of Appeals of West Virginia reversed the decision, finding there was a public interest because home inspectors are governed by the State of West Virginia and required to comply with guidelines regulating the home inspection industry for the protection of the consumers. The Finches are entitled to receive the protections afforded by such regulations and should not be expected to relinquish such safeguards as a condition to receive home inspection services.

Water Log The Saturday Evening Post

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

The transition can be traced to the 1970s when Monsanto developed and patented glyphosate, a broad-spectrum herbicide dubbed Roundup. The herbicide was super effective and widely used by commercial farmers.
In the 1980s Monsanto scientists also developed a genetically modified soybean seed to render it resistant to its Roundup herbicide. The company patented and marketed the seed under the brand name Roundup Ready. It was sold to farmers in combination with Roundup so the crop could be planted directly into untilled soil with no follow-up cultivation. The “no till” seed eliminated the need for pre-emergent herbicides, ploughs, and tillers. Weed control was accomplished in one fell swoop.

Farmers loved it. Adoption of the new system purportedly outpaced that of any other technology in modern farming history—including the tractor, fertilizer, and hybrid corn.

To control its patented technology Monsanto required growers to sign a contract that restricted use of the patented seed to a single crop season, prohibited growers from saving seeds for replanting, and allowed Monsanto to inspect fields for violations. To ensure compliance Monsanto hired investigators to “root-out” seed-saving farms, even using radio ads and telephone “tip lines” to identify culprits who might save or re-use its patented seed. In 2007 Monsanto received a tip that Vernon Bowman, an Indiana soybean farmer, was saving his seeds. The “seed police” were dispatched to gather plant samples from his fields. The move surprised Bowman, a loyal Monsanto customer. He had planted Roundup Ready seeds as his first crop each season from 1999-2007 and hadn’t saved the seeds.

But Bowman did not use Roundup Ready seeds for his late-season planting. To economize, he purchased and used “commodity seeds”—a mixed bag that included some Roundup Ready seeds. This mix did not require a licensing agreement. After planting the commody mix, Bowman sprayed this crop with Roundup herbicide to weed out the non-resistant plants. He understood the survivors were the progeny of Roundup Ready seeds but believed they were no longer patented. Therefore, he saved and planted them the following year without a license. Monsanto took exception to Bowman’s use of its genetic property and sued him for patent infringement.

In his defense Bowman cited the doctrine of patent exhaustion, claiming that Monsanto lost its rights when the patented seeds were sold in the commodity mix. He pointed out that Monsanto’s domination of the soybean seed market in the area created an abundance of regenerated seeds after harvest, making it virtually impossible to avoid Roundup Ready seeds blending into the commodity mix. He argued that buyers purchasing commodity seeds from grain dealers had no choice: They received the special seeds whether they wanted them or not.

Bowman’s point was that Monsanto knew its regenerated crop would be sold to grain dealers for resale, so the license agreement to do so should have included a provision requiring segregation of patented seeds from other seeds if the conglomerate wanted to protect them.

Monsanto countered that its patent was not exhausted when sold in a commodity mix, arguing that growers can purchase seeds in the commodity mix and plant crops but have no right to use their progeny.

In Monsanto’s argument, Bowman did not infringe on Monsanto’s rights by planting the seeds; infringement occurred when he chose to selectively save the Roundup Ready seeds and use them the following season.

Decision:

Bowman’s argument did not overrule the patent law precedent. The fact that a patented technology can replicate itself does not give a purchaser the right to use those copies. The court found for Monsanto and affirmed the award of damages to Monsanto that a lower court had set at $84,456.
—The U.S. Court of Appeals for the Federal Circuit in Washington, 2011

Bean Counter The Saturday Evening Post

Unfortunately, the finish line turned out to be a 15-foot yellow gate at the entrance to the reservoirs. Although the steel gate had been there for decades, Maribeth had never seen it closed. When she finally looked up, it was too late to avoid impact; her bike skidded under the gate, her head smashed into the barrier, and she broke several vertebrae in her neck.

The Metropolitan District Commission (MDC), a nonprofit water utility company, owns the West Hartford Reservoirs. Although they are used for water filtration, many joggers, walkers, and cyclists also enjoy the 3,000 acres of wooded trails.

Maribeth sued the MDC for negligence, claiming that it had failed to protect mountain bikers by not warning them that the gate, which was usually open, was now closed.

The MDC, a municipal corporation, argued that it was immune from liability under the common law and statutory doctrine of government. It also claimed that the Recreational Land Use Act barred Blonski recovering for injuries incurred while engaged in the dangerous adventure sport of mountain biking. Finally, the MDC maintained that even if the utility was not immune from liability, Blonski’s negligence had caused her injuries.

The utility said that after the 9/11 attacks it had decided to close the gate as a security measure against terrorists and contamination. Despite the change in policy, the MDC maintained that the gate was clearly visible—and that, in this case, Blonski wasn’t paying enough attention as she rode the well-marked trails.

At the trial witnesses stated that when they first saw the closed gate they had no difficulty going around it. A police report stated that the trail was straight and level for 500 feet away and that the gate was clearly visible.

Decision:
Blonski was awarded $2.9 million, less 30 percent. The jury found her 30 percent responsible for the collision, with the MDC primarily negligent for not posting a sign declaring the gate closed.

Taken for a Ride 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