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Vermont Land Trust Prevails in Negligence Claim

July 16, 2008 | Vermont

Neighbors to a property conserved by the Vermont Land Trust claimed that the successor owner of the conserved land wrongly cut valuable veneer maple trees on their land, and argued that the land trust was liable for the damages to them. The neighbor claimed the land trust negligently failed to determine the property boundaries prior to providing the successor owner with copies of maps that showed incorrect property lines and that others relied on those maps which caused damage to the neighbors.

Background

A State of Vermont superior court on a summary judgment motion by Vermont Land Trust found that it did not owe the neighbors any duty of care and therefore did not act negligently. In its opinion, the court stated that in Vermont a plaintiff must show four elements to prevail on a claim of common law negligence:

  1. the defendant must owe a legal duty to conform to a certain standard to protect the plaintiff from unreasonable risk of harm;
  2. the defendant must have breached this duty by failing to conform to the standard;
  3. the defendant’s conduct must be a cause of damage to the plaintiff; and
  4. the plaintiff must suffer actual loss or damage.

The neighbors claimed that failing to determine the correct property boundaries as part of the land trust’s conservation project breached a duty owed to them and all adjacent landowners. The land trust argued that it owed no legal duty to the neighbors and even if it did, that it had not breached that duty in preparing conservation maps.

Superior Court Decision

The court quoted the Law of Torts to the effect that “whether a duty exists is a question of fairness that depends on, among other factors, the relationship of the parties, the nature of the risk and the public interest at stake.”

The court also quoted the disclaimers contained on the land trust map which state: “This map is not a survey and must not be construed as one.

The information imparted with this map is meant to assist the Vermont Land Trust, Inc. in their efforts to clearly depict property boundaries, describe the placement of certain retained, reserved or excluded rights and to calculate acreage figures. Property boundaries, while approximate, were established using the best available information which may include: surveys, tax maps, and field mapping using G.P.S. and/or orthophotos.”

The court also cited that the conserving landowner signed the map and indicated that he agreed with the depiction of the property boundaries. Finally the court found that no special relationship existed between the land trust and the neighbors, and that no link existed to connect the land trust to the timber trespass or to the neighbors.

The neighbors pressed their claim to an equitable resolution of the undeniable damage done to them by the undisputed timber trespass of the successor owner of the conserved land. Despite the fact that the successor owner of the conserved land apparently is judgment proof and had lost the conserved land to mortgage foreclosure prior to the summary judgment motions, the court did not construe this as a sufficient equity argument to impose payment of damages on the land trust.

The court granted the land trust summary judgment and dismissed the case against it.

Damages Against the Successor Owner

The court also entered judgment against the successor owner of the conserved land in the amount of $30,479.75. This amount represented loss of timber value of almost $12,000 calculated using “mill value” or the value of the trees generally paid by a mill at the time they were taken. It also represented a loss of sugaring value of more than $4,000 since the trees were sugar maples. The remaining $14,000 were attorney fees and expert costs.

Because the neighbors sued the land trust for negligence, the organization’s general liability insurance policy covered the attorney and other costs in defending the case. The attorney selected by the insurance company to represent the land trust was competent and responsive to the land trust and its desire to set good precedent. If the land trust had funded the litigation from their Legal Defense Fund, Rick estimates that it would have cost in excess of $10,000. This case was underway at the same time that it was involved in Right of First Refusal litigation (to be covered in a future eNews), putting additional strain on the land trust’s resources and staff.

Lessons Learned

This case also involved many Vermont Land Trust staff in the discovery process. Although plaintiff’s counsel ultimately did not take any depositions, he did pursue written discovery and initiated the deposition process and identified at least 5 staff to be deposed. Discovery and deposition preparation disrupted the ordinary course of business at the organization and further disruptions would have occurred if the plaintiffs took depositions.

The land trust does not customarily obtain surveys for its conservation projects. The disclaimer on the map is critical because the organization relies on landowner descriptions of the boundary lines, title research, field work, GPS coordinates and orthophotos to create a compilation representation of the boundary lines. Since these maps are not surveys, the land trust has long had the practice of so noting in bold type on the face of the map.

Another lesson learned from this case was that the disclaimer needed to be on all maps even those contained in the Baseline Documentation Report showing features of the conserved land such as agricultural soils. Apparently the discovery process in this case revealed that the forester for the original owner of the conserved land might have used some of the BDR maps without the disclaimer to prepare his forest harvest map, although the forester did not exactly follow the land trust’s drawn lines.

As a general matter, land trusts need to understand and plan for minimizing the disruptive effect of litigation on their conservation efforts, and to educate staff, board members and volunteers about the basics of litigation procedures in order to allay concerns. Managing community perception of the land trust and assisting board members and staff to refrain from comment on litigation also are critical components of any land trust litigation. Experts strongly recommend that part of any land trust litigation procedures include appointment of a single spokesperson for the land trust. This allows for one clear message that has been approved by the board and the lawyers to be communicated without confusion from other sources and reduces the chance for damaging errors.

Additonal Documents

Superior Court decisions, motions and pleadings:

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