Difficulty with tort hypo today...see if you can help

[yupster567]

Okay, well, basically a daughter gets injured because of her own father's negligence while he is driving.  Can she bring a cause of action against him based on negligence?  What if she is on her dad's homeowner/liability insurance?  Would the damages recovered by the daughter be covered by the insurance?

Also, quick question:  If some branches of a tree are hanging over into someone's yard, is that trespass to property?

[Jumboshrimps]

Of course she can sue dad. Why not?

The insurance policy's terms probably do not say "unless it's your daughter that gets hurt." So the policy will do what it says it does.

Tree branches.. yes that's trespass since land ownership entails a reasonable distance above and below the surface of the Earth, and causeing an object to enter the land of another is trespass.

More interesting question is, if landowner trims branches so they are not hanging over his property, and this causes tree to die, can trespasser recover damages for destruction of property?

[yupster567]

I just didn't think that kids could sue their parents unless they divorced them first. 

With the tree, doesn't there have to be some sort of intent involved with Trespass to Land.  If the owner of the tree never intended for the tree to grow in the way it did, is this tort still satisfied.  I can see where he may have a duty to cut the overhanging branches and thus he may be liable for negligence.

[JohnnyAwesome]

I think your better option would be to file a nuisance action against the land owner stating that the tree branches interfer with the use and enjoyment of the land, therefore you would be able to obtain an injunction requiring the tree owner cut back the tree at their expense.

[Jumboshrimps]

I just didn't think that kids could sue their parents unless they divorced them first. 

With the tree, doesn't there have to be some sort of intent involved with Trespass to Land.  If the owner of the tree never intended for the tree to grow in the way it did, is this tort still satisfied.  I can see where he may have a duty to cut the overhanging branches and thus he may be liable for negligence.

Well... only intent to enter is needed, and substantial certainty will do it. The tree owner was substantially certain the branches would enter the neighbor's land. Yes, nuisance law might do it, too. How about negligence? Problem would be showing actual injury. But... maybe. (might be neg. per se if ordinance violated.) Let's plead all of them in the alternative and see what sticks!

[J D]

Uh, doesn't nuisance require "substantial interference" with the landowner's property rights to be actionable?  I don't know, but it seems to me that this owner would be hard pressed to prove that this trivial invasion into his air rights on the edge of his property (probably within the setback requirement where he can't even build anyway) was a substantial interference.  He'd have a problem similar to that of residential suburban owners in regulatory takings who try to get compensation based on zoning ordinances forbidding them from building above a certain height: conceptual severance.  People in Peoria and places like it normally don't buy and sell their air rights apart from the surface rights, and so courts generally conclude in such cases that only "all of a (maybe very small) part" has been "taken."

I agree on the substantial certainty (we all know how trees grow) and intentional trespass argument; the owner should at least be able to get nominal damages and/or an injunction.

[drbuff123]

From my understanding, there are some intra-family bars against negligence tort actions. The rational behind this is to stop fraud in insurance claims between family members and also so that the court won't disturb "family harmony."  In most states, husband-wife intrafamily tort immunity has been abolished.  I won't give you the full out exam answer about all the rational behind parent-child tort immunity, but generally parents are liable to their children if their liability stems from an action outside the scope of their parental duties.  I can't remember the exact case, but the case in our caseboook that covered this issue had a similar fact pattern to your hypo.  Applying the general rule, the court found that driving a automobile is not something in the scope of parental duty, therefore the child could sue his mother for injuries. 

[yupster567]

Well, let's say the dad was driving his daughter to the hospital after she was injured on a hunting trip that he took her on.  Would that fall inside the scope of his parental duties?

[drbuff123]

There is also a "reasonable parent" standard that some states use, I forgot to mention it in my earlier post because the court in the case I read adopted a different approach. If you want to look up the case that should answer all your questions and outlines all the different theories that approach parent-child immunity try Broadwell v. Holmes 871 S.W.2d 471 (Tenn. 1994).