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Welcome on this Saturday afternoon here during the noontime hour.
The Catbird seat here on KXEL to Iowa Law Talk, Iowa Law Talk with Messers, Joseph Piper and business legal strategies out of Hiawatha, Marion Cedar Rapids, America's first English barrister in 150 years, Nicholas
Cretalli J.D.
Aspire from Des Moines, also with offices in New York and London.
Joe is an Iowa Hawkeye Law alum.
Nick is a proud Drake Bulldog.
John Jacobson here, your moderator, and we are so glad to be with you again today.
A change of season.
This is our post Labor Day inaugural voyage.
The weather is changing.
The gridiron is chock full of activity.
Kids are back in school and we are well into our fourth month here of programming on this very popular weekend show.
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We're so glad to be with you today.
Jeff Stein in a near future show, a news director for KXEL, also a JD.
from Iowa.
We'll join us, talk a little bit about the listenership and who all plugs into the show.
Well guys, they teased us beautifully last week with a triple option threat of fantastic subject matters.
We might even have a special guest with us.
So I'm going to kick this over here to Nicholas Cratelli.
Nick, welcome, take it away.
Okay,
well thank you, John.
I'm out here in Adaire, Iowa, on assignment meeting with my friend and co-counsel Marty Fisher, the official offer working on the case.
I love Marty.
I love Marty.
He's the best.
Good morning, John.
Marty, you're the best.
It's so great to hear your voice again.
I want you to know that my young one-year-old grandson, when he comes to the Jacobson home,
He goes to my den to look up my knickknacks.
He sees a yellow-smiling water tower, and that's what he grabs and takes home.
You're famous everywhere, Marty.
Well, thank you, and we
have more water towers for you.
Well, actually, there's no one for it, it's a little smiley-faced water tower, thanks to Marty.
And yeah, so let me tell you what we're going to talk about today, John.
We're going to talk
about...
kids, dogs, and trees, not in any particular order.
But at our last show, we were talking about important matters like estates and trust and do you need a will and concern or ship and all that stuff.
And I thought, you know, we kind of beat that to death.
And there's really no right answer.
Marty's sitting here laughing, going, yeah, I know you guys.
I think of even some real serious issues here that maybe our people need to know about.
What brought it to attention was my dog.
Now, I got a wonderful little Boston Terrier by the name of Rumpole.
Now, Rumpole was named after a TV show Rumpole of the Bailey.
It was an old barrister.
And somehow or another, this dog shows up and my daughter says, you need to name him Rumpole.
So I have Rumpole the Barrister who's a dog.
The problem is my dog loves everybody, Marty.
I mean, you walk in, yeah, he'd jump and he'd lick you, and he's just happy to see you, except the next-door neighbor, Bill.
Now, I don't know, Bill is a world's nicest guy.
I don't know what the deal is, but every time he sees Bill, he just growls, and we can't quite figure out what.
So I got to wonder, well, if all of a sudden, Mumple gets out and chomps on Bill, what's my responsibility?
I've always heard that a dog gets two bites.
The first bite's free, let's put it like that.
Have you ever heard of the dog gets the first bite free rule in Iowa?
Well?
I haven't dealt with that other than the fact that I've been bitter a few times.
And I haven't sued anybody over it.
Fortunately, I wasn't hurt too badly.
So I thought it better take a look at this and say, is it true that the dog gets one by three?
And where that comes from, and by the way, if you don't, by the way, is the concept that, well, if you don't know that your cute little puppy is vicious or has a vicious streak in him, how can you be responsible?
I mean, now, obviously, if I know that the room pole is barking at Bill, I've got knowledge of this.
Well, it turns out
that dogs in Iowa don't get the first bite free.
They don't.
It's strict liability.
If I own this dog and it goes bite somebody who has never bit anyone in his life, I'm responsible for it.
And I thought, well, I wonder if there's other things like that.
Strict liability.
Uh, so then I got thinking about, well, what's kind of like dogs?
Well, a kid.
Well, kids are me calling, you know?
Yeah.
You know, what's, you know, modern little dog, modern little boys in a situation.
Do they get a free pass?
What is the liability of a parent or the acts of their children?
This is something we'll all probably
be aware of.
Not just the bike
stick.
Not just the bike.
So what do you think, Joe?
You had a bunch of kids.
What's your liability for the, the torts of your child?
I think it's the same as the dog.
Well, apparently the Iowa legislature thinks highly of children, but not so highly of dogs, which doesn't surprise me.
Do you know, I didn't know it's like research.
There's a $2,000 cap in Iowa on the parent's liability for the unlawful acts of their children.
I know that.
California's got a $25,000 cap, but apparently here that we favor children again.
So there's a $25,000.
a $2,000 cap on the liability.
That's by statute, by the way, with your kid.
So now this doesn't make a lot of sense to me because I just got through settling a lawsuit for a million and a half by the negligence driving by a kid of his dad's car.
So you go, oh, wait a minute, what happened to that $2,000 cap?
It doesn't say in lawful, it just says negligent.
Well, there's also a statute.
called the owner's liability statute that says the owner of a vehicle is liable for the negligent acts of its consent driver, which apparently is an exception to the $2,000 unlawful activity cap based on by a kid.
I didn't know any of this.
Okay,
Nick.
Yeah.
Yeah, so if the kid uses a parent's vehicle without the parents' permission with the $2,000 cap set,
Ah, that's why we call you loophole.
You may have found a loophole, Joe.
I think the statute of owner's liability.
However, it's a consent driver.
We all know that.
Oh, wait.
What if dad's got a new Porsche and he hasn't given consent for the kid to drive the Porsche?
He gives him consent to drive the old F-150.
You know, that's a good
question.
Then the owner's liability, basically what you're saying is,
is the consent a prerequisite to trigger the owner's liability policy.
So if a thief comes and steals your car, all right, I didn't give him permission and goes out and interests somebody, that's a non-consensual driver.
And do I or my insurance company have to cover that?
Maybe not.
However, Joe, what if you leave the keys in your car and your negligence?
And that's how the non-consensual driver got access to the car.
I could see an insurance company.
You're arguing this.
What do you
think?
What if they hotwired?
Yeah.
There's nothing you could do with it.
Didn't foresee it.
Luckily, we didn't have that happen in this case.
I'm sure we would have got such a large settlement.
But I can see these issues being raised.
So I think that's what the issue is on the car.
One of the promises, there's been a lot of stuff in the news about
you know, children, meaning people under 18, going out and committing horrific sacks, unlawful acts and so forth, and you go, wait a minute, where are the parents?
Why aren't they monitoring their kids, that type of thing?
Or how about this, you entrust your kid with a dangerous weapon, like a gun or that type of thing.
What's the liability there, Joe?
Well, you're talking about Iowa or Michigan, and can the criminal liability if the kid goes out and has a school shooting?
and dad's provided the gun.
Think of Michigan, the guy went to jail for that.
You know, so in Iowa, would the $2,000 limitation protect the parent?
Wrongful acts of the kid?
I don't think it would, because we're not talking the wrongful acts of the kid here, we're talking the wrongful acts of the parent.
So by giving the kid the gun, the parent has perhaps condoned whatever the kid does with the gun, so it's dad's fault, not the kid's fault.
You're right.
It could very well be.
Also, you can look at it and say, okay, it's the parent's own negligence.
Is it exercise of doing reasonable care to give a child a gun?
I'm not a gun owner.
Marty, you're a gun owner.
So what's your thoughts on this?
Well, the parent has the responsibility to properly train the child.
And if that's not accomplished in the...
child goes ahead and receives the gun, in my, in my thoughts, as a gift without training, um, parents got problems.
Okay,
Marty, what if the parent takes the kid out to the shooting range, show me how to properly shoot the gun properly, and then he takes it into school?
I think the parent is still, like in Michigan, gonna be responsible.
Well, is that kind of like a negligent and trust-ment thing, Joe?
That's where I'm going with that.
You negligently entrusted that gun to a kid.
Now, once again, and listeners, you're going to say, I'm not a gun person.
I handle a lot of criminal cases.
Every gun I ever saw had an exhibit sticker hanging off of it.
So I don't want my fingerprints on the damn thing.
So I don't even have a gun.
So I have come from a different perspective on this.
But at what point, I mean, should you give a minor a gun?
on their own, so they have 24-7 access to it.
What's normal for how many students?
I was gonna say, when I was in school, I used to have a gun in the back of the car, and I'd drive to school, and if I felt like hunting on the way home from school, I went hunting, and now you can't have a gun in a vehicle on a car around a school.
Not lawful, but back, you know, 55 years ago, it wasn't a problem.
I routinely had a gun when I went to school.
Really?
I don't even think of putting a gun anywhere near a kid in their car or in their back of their pickup.
Too many bad things are happening with the guns.
Joe, this might be a country mouse, city mouse thing.
Because the city mouse here, I wouldn't, I've known nobody, no kid that ever had a gun in their car in the city, but this was even part of our culture.
But Marty, you live in the country, was this a country?
Sure.
Is that common?
I agree with Joe.
It
depends upon what hunting season it was.
What gun you
have.
Yeah, pin it up on the firearm you had in your car.
That's the season, you had a 12 gauge.
The rabbit season, pick your caliber.
Oh yeah, there were guns in the cars back then, but the times have changed and you gotta have, you know, at a minimum a concealed carry just to have the gun up front with you.
Wait a
minute, I'll put my city mouse out.
Let me get this straight.
You guys would have a gun in your car.
Country mouse, you drive around, you find a pheasant and you shoot it.
No, we'd follow the law.
Didn't we, Joe?
Yeah, of course you follow the law, but you'd shoot this bird, right?
Sure.
Then what'd you do with it?
I ate it.
Well, I mean, you'd bring it home and say, hey, mom, look what I got for you.
Clean it, give it to mom, and she'd make the best pheasant dish going.
And what was it?
Teenagers shooting squirrel.
Correct.
22
was
great for shooting squirrels.
Absolutely.
Folks, listeners, there's a whole different culture in this city.
If I brought my mother home with dead birds and said, ma, make this with a little pasta, she'd say it would not go over well.
Probably your father would be upset with a buckshot.
You'd have to be keen.
The only thing that would work well in our house, guys, is if it was a wild pepperoni.
Then she might have allowed it.
You've got to watch them pepperoni.
They're terrible.
But the time is, the culture has changed regarding guns in the rural area too.
Now it's safety focused all the time.
You want to make sure that you're carrying your gun in your vehicle legally at all times now, where in the past, when I was growing up, you could have a shotgun in the back rack of your pickup, or 22 or something larger, and it's about what you're needing.
But this day and age change, Joe?
No way I want...
Any kid having any gun anywhere near a school, nothing good will happen.
Of course.
How about anywhere, any time for anything except with you there.
I
routinely went hunting on my own from about age 14 on.
I'd go hunting if I felt like it.
I'd just say, hey dad, I'm going hunting and I'd go hunt.
Had my license, had the gun, worked
beautifully.
Different cultures, different cultures being quite different zip codes.
Okay, Marty, you were a magistrate up there.
You were a judge.
Did you see any gun cases when you were on the bench?
It was a regular occurrence.
Really?
Yes.
Can you tell, Sherry, that with us?
Well, the...
Violating any confidences or anything?
You know, the magistrate level of the judiciary in Iowa handles the simple misdemeanors for the gun and game violation charge.
And they came in on a regular basis, and it was always from
the lack of safety in a sense, handling the gun.
It was carried wrong in the car, it was carried wrong outside hunting, or there's something that brought the game board's attention to it.
But this is a regular occurrence, but there was never anything associated close to a school or close to a dangerous situation.
That changed over the time.
That changed over culture.
Because what Joe's explaining about with
Early on, you know, 50 years ago, being able to go hunting when you wanted, even after school, that culture has changed because the fishing game are not really taking a strong look at that right now with the juveniles, not having the gun safety training on the hunter safety course.
You know, you have to have those in order to participate in the activity.
Marty, magistrate emeritus Marty Fisher, great point.
And I would tell you,
that from my own experience, these hunter safety programs are magnificent.
I've seen so many of our young people in Southwest Iowa matriculate through those, through the Boy Scouts of America, and the Boy Scouts of America teams up with the NRA, and that hunter safety program is splendid.
The late Jim Kirby was a master of that, then the late Tom Schnapple,
at those various different ranges on both sides of the Missouri River.
Countless young people have benefited from that, from a safety standpoint.
Safety is always at the forefront.
And before we do station ID, I just want to say, you know, the whole idea, it just keeps coming back how indebted we are to our ag community.
A friend of mine
and an Iowa legend, Ray Gasser passed away last a week ago Saturday in a tragic farm accident.
And Ray was a legend in the Iowa ag community, such a great advocate proponent for Iowa corn and soy all the way to Washington DC, very well respected.
And just a tragic and the loss is dismaying.
It was a farm accident and Joe, before I go to station identification, you do a lot of rural ag law.
You know, farming is dangerous.
We cannot emphasize these overall safety issues enough, whether it's firearms or whether it's machinery and equipment on the farm, which is what
What was the nexus of what what took Array's life?
You can
never be too careful about the farm equipment.
You've got power takeoffs.
You've got hydraulics.
You might be looking at lifting up a loader.
You've got so many things that can happen to you.
Always important to be very careful, especially when you're listening to the Psyhawk game that's coming up this Saturday night.
Indeed, we are your pregame.
We're your pregame to the Psyhawk guys.
We are your pregame expertise here on KXEL.
What better pregame show for the Psyhawk game?
Nationally televised, 630.
The whole world again will be looking at Iowa versus Iowa State.
And of course, the wave at Kinnock.
That's salute to the ill children there.
They have the best press box in the world, Joe Piper.
They've got the luxury suites overlooking the stadium.
And they all wish that they weren't having to be there, but they're glad they're there because they can get the help they need.
It's
been called out the greatest tradition in college sports.
The Iowa Wave, what a recent addition to the lore of college football.
It's mystique, Joe.
Absolutely.
Now, tell you what, I got a question for you there, John.
Hey, Joe, before we do that, Joe, you did such a great job with the disclaimer and station ID last week.
I want you to do an encore.
You can do it.
Okay.
You're listening to Iowa Law Talk on KXEL 1540 and 105.5 FM.
Enjoy us.
We're enjoying having you all out there.
Way to go, Joe.
Now Sally Forth in part two of our program here.
Before we do that, we need predictions on the Seinhawk game.
Nick?
Well, I'm a University of Iowa Hawkeye fan.
Is that your daughter went to law
school there?
Yeah, daughter went to law school there.
My other daughter went to undergrad there.
So we come down on the sides of the
of the Hawkeyes when we're not duty for the Bulldogs.
Ah, gotcha.
And the Hawkeyes and Bulldogs have a quick football in forever.
We're
very thankful for that.
I'm sure you are.
You know, I'm the most diehard of all Hawkeyes, having grown up with parents who went to school with Alex Karris and Kenny Plain, with a father who almost cried with me.
When Jacksonville tipped that in against Miller's six pack, the greatest Iowa basketball team ever this day.
I still hold to that.
Uh, somebody who, uh, you guys didn't know I got offered a scholarship by Hayden Fry to play football.
Did you?
I know.
He said, John, I want your play.
Wait
a minute.
Hold
on here
folks.
I
can't let this go.
Get this straight.
Yes.
You got a football scholarship.
It was amazing, you know, because I was very, very thin then.
And I said, Coach Fry, I can't believe it.
You want me to play on your team?
What do you have in vision for me?
He says, in that great laconic Texas access, John, I want you to play and guard and tackle.
I says, and guard and tackle three positions, coach.
How's that work?
He says, John, I'd like you to sit there.
End of the bench, guard the water, tackle anybody who gets near
it.
And went to law school out in San Diego.
So yeah, that's where you're in a rock and roll band.
Yeah.
Well, that
was in Iowa
too.
So.
Martin's in the Rock and Roll Hall of Fame.
Right.
Right.
Couple
of
Rock
and
Roll fans.
Martin was
in the Rocking Crew, but not that Rocking Crew.
Ah, got it.
Well, I'm going to cheer for the Clones and I'm going to party with the winner.
I've got diplomas from both and the winner's party is always better.
Good idea.
All right.
Well,
back to law.
Back to law.
The third issue that we wanted to discuss has to do with not kids and not dogs, but trees.
So we'll have trees on our property and every now and then those trees leave our property and end up on our neighbor's house or whatever it is.
So looking at this, because we just got through to Winston, I don't know, what's the responsibility
of a tree owner.
Joe, you know, in the farming world, trees are kind of important to you guys.
They're boundary trees.
They're windbreakers and that type of thing.
You know, brief us on it.
You're right.
Especially windbreaks.
I can imagine John would attest to that being in the plains of Kansas and the wind will not go over.
So windbreak makes it a lot easier around the house.
And I think the question you're more referring to here though, Nick, is what about those trees in town?
and you've got this big old oak tree.
It's been there 150 years and you've got branches that are looking like they're starting to crack away and it's starting to die off and you don't take care of your tree.
You don't have it trimmed and you've got a lot of old branches on it.
You know it must be decaying and then it falls on your neighbor's house.
If that happens, who's liable for it?
The base of the tree is on my lot and the tree
loads over and lands on Nick's house and I didn't take good care of that tree ever.
I just let it grow and neglected it and neglected it and neglected it.
Nick, do you have a claim or is it too bad if it lands on your house?
Does your insurance company pay for the house or does mine?
Nick, I want to know this because I had a neighbor's limb literally fall on my roof several weeks ago and a tree
On the city easement side near the curb, on the outside of my fencing fell and crushed part of my fence.
Would I have, in theory, a claim against either of those?
Let's talk about this.
This is great stuff, guys.
No, wait a minute.
You just want free legal advice, John.
I don't recognize that.
I want to bet it is for Fisher.
Well, okay, so there's many different concepts involved here.
Let's take the scenario where we look at the tree and we go, okay, what kind of tree is it?
I don't mean the nature of it.
Is it a boundary line tree or is it a tree wholly within your own property?
Because there are different rules that apply.
Yeah, there are different rules that apply to boundary line trees.
If the tree is a boundary line, it's joint responsibility for both parties.
If the tree is holy within one person's property, that's that person's personal, even though it's attached to the land, you're going to be personally responsible for it.
The question is not strict liability as it is with the dog or even the unlawful kid.
The question is, as Joe had on it, what did you know, when did you know it, and what did you do about it with respect to the tree itself, the nature of the tree?
There's a couple answers to that.
One is, I don't pay attention to it.
It's a tree.
It's a tree.
It gives me shade and I got to break it that we use in the fall.
You know, it looked fine to me.
I don't know anything about a tree.
Or, yeah, it's a little old, been there forever.
You know, we really rely on it.
It looks healthy.
I know if there's been some dead branches falling off of it every now and then, part of it's dead.
And then the third is, well, it's been dead for a long time.
So what's the difference?
If you don't know or a reasonable prudent person would not recognize that there's a problem there, then there may not be any responsibility that you have for your neighbor's house.
On the other hand, if the thing's been dead forever and you just don't want to take it down or have a car doing some nice totem pole and it crashes on the neighbor's house, you might have some responsibility.
Those are the two poles.
You know nothing or ignored everything.
It's the middle ground that causes the fight.
This is where it looks fine to me, you know.
And then you get into the fight about, well, yeah, it looks fine to you, but not everybody else.
So, big's the question, do you have an annual tree checkup to ensure what you should look?
You should see it looks on Marty's face when I said they could go, gosh.
You know, do you have somebody come out and look at it?
What do you do?
Assuming that you do care for your tree.
What does an ordinary, reasonable, prudent person do with the care of their trees?
Martin, what do you do out here in Adair with respect to all the trees on your property?
I live on an acreage.
They don't want to fall anywhere.
You don't care, right?
When they fall, they know where they're going.
Yeah, unless my car's under it, and my car insurance company's going to be knocking on your door.
That's going to be true.
One has to do, as a reasonable prudent person, review your property, particularly that which is accessible to the public or close to public access.
If there you have an interior tree, you know, substantially different.
But what we're taking a look at, and we just had the county government come up and take a look at our trees, right?
On the interior, like I said, no issues as far as liability.
unless you're allowing somebody to be out there.
You know, it's the same thing.
So are you saying you got to do two things, number one, access the potential for risk?
Correct.
Okay.
We'll use your place, for example.
Exactly.
Okay.
The driveway, they're going up your house.
Right.
They have trees there.
Right.
Do you say that you could proceed there would be some risks to people using the driveway from the tree?
Well, as you gave the example, the thing would be dead, and it's been dead for years.
and then creates damage.
That's one issue, but if there is, you know, nothing wrong with the tree, storm, something of that nature,
I don't believe there's... What if that old tree is located out in the back of your place, out by the pond?
There's no people there.
Then it can fall when it can, and I don't perceive any liability.
What if I'm
fishing in the pond, Marty, and as I'm walking to go with the fish, and it falls on me?
Yeah, but poor fisherman.
Oh my gosh, no, you fell in the pond?
No, the tree hit me as it was headed for the pond.
You've got
me on that one,
Joe.
I'll refer that one to Nick.
So you see how this can work, folks.
But the dead tree everyone gets, okay?
Now you're going to assess risk, okay?
What's the chances of it harming somebody?
So why are you doing all this?
Because I don't spend the money to take it down or turn it into a totem pole.
Right.
Okay, I get it.
But what if there's a road near us, like a driveway?
or the neighbor's property.
Now the risk goes up.
So we're doing a risk analysis.
In our property, those trees that extend over the right of way, as the county came and took care of it.
So things are branching out over the roadway, over the right of way.
They would take care of those branches.
It's the inside
trees.
So even though the tree
is on totally on your property but the branches extend over to the easement area.
Right and it creates a safety issue
and the county will take
care of it.
Because they're just they're just generally good people or they're
free?
No, they don't want any liability either for some obstruction of vision.
Okay.
On the roadway.
Do they then charge you for that?
No, they
want to they want to preserve and reduce their risk.
Joe, what do you see from the farming community?
Well, the farmer's going to be looking at it and saying, hey, it's going to be much like Marty from the standpoint of if the trees on the inside of the farm that probably aren't going to care about except for might fall in a combine going by.
So they're going to think about that.
That's just practicality.
If they're going to be driving by with their equipment and perhaps that will be the time to choose to fall.
They're probably going to take it down.
It's not worth the risk.
If it's out on the road and close the road area, unless they're worried about it hurting themselves, they're not going to worry about it.
Now, let's go back here a little bit, Nick.
He said, what would a reasonably prudent person do in looking at the tree to determine whether it needed to be trimmed or taken out?
And when I was in law school,
and taking torts class, I always was looking for that hypothetical reasonable person because I wanted that reasonable person to sit beside me and tell me, how should I answer this question?
Have you found that hypothetical reasonable person?
How do you determine what's reasonable
next?
Folks, what he's talking about is most civil law.
The law, whether we call it torts, T-O-R-E-S, not contracts, but torts, has at its core a standard.
And the standard is not what I would do, or Marty would do, or Joe would do, claiming to be reasonable people, but by a certain guy would do.
The guy is named Orpman.
Now, Orpman, what are you laughing at?
It's true.
Orpman.
Orkman is a guy that wears a cape, okay?
The cape of protection.
And when I was taught at the law school, I would draw a cartoon character called Orkman to the rescue.
Orkman stands for ordinary, reasonable, and prudent person.
Now, you asked the ultimate question, Joe.
Who is Orkman?
Correct.
Well, if we can't agree on what Orkman does, then we've got to go ask Orkman.
And when you ask Orkman,
Marty, why are you laughing?
Marty's rolling off the chair here, buddy.
So you got to ask Orp Man, what would you do, Orp Man?
And you're going to find that Orp Man lives in courtrooms.
And Marty, there's not just one Orp Man.
There's eight Orp Men.
They're called a jury.
Everybody on that jury, if they all agree, then Orp Man will do this and Orp Man will do that.
But if they don't agree, then Orkman doesn't do anything, right?
So Orkman is what ultimately what a jury would do.
That's the Orkman rule.
We spend all of our careers trying to forecast what an ordinary reasonable person would or would not do.
And over the many, many decades that I've been practicing law, it sounds to me that Orkman gets kind of biased by who he likes and who he doesn't like.
I wouldn't take that tree down.
There's nobody there that's going to get hurt.
Because you're an Orkman.
On the other hand, if it lands on my car, I'm telling the Orkman it's going to get ticked off about that.
So you see, it's a fluid standard.
But truthfully, folks, it's really one that works.
What an ordinary regional person.
Nick and Marty, quick sidebar.
Let's say a guy like Marty theoretically has this beautiful line of trees, a long line of trees, using as a wind buffer.
Let's say that Cedar Rapids ratio rolls through and mows down all of his trees.
Is the insurance company liable for any, not liable, but do they owe if Marty purchased those trees, put in a specific line to guard his residence, and somehow had those
involved in the policy.
Are trees recoverable under insurance, Marty, under any circumstances?
That's a
contract.
What does the insurance policy say?
That's correct, Joe.
After the Jarray show, our policy changed a lot.
Well, tell us about it, Joe.
Well, what happened is that State Farm
change things and it specifically doesn't include the tree damage to the trees themselves.
If the tree damages my house by falling on it, State Farm has to pay.
But if the tree, uh, I want to get replacement value for the tree, this big 150 year old oak tree, there's no way they're paying me a dime for that.
Not anymore.
Not anymore.
Yeah.
I don't think
they paid much for it back in.
the very show days six years ago either.
Well, you can see it all boils down to if it's an insurance situation, it's contract law.
If it's an injury situation, injured property, or the neighbor's house, it's tort law.
Tort law revolves around the orc man rule.
The insurance policy revolves around the contract rule, reading if it's not in there, it doesn't occur.
So we talked about the two
Issues with regard to trees those that are dead those that it looked okay, but there's that middle ground here Where what should you do looked okay to me?
All right, so then if I'm if I'm going to sue you for your tree or damage caused by your tree I gotta prove that you should have done something
get
all kinds of wood Yeah, gotta bring all kinds of neighbors and witnesses to say we all knew that thing was dead
Yeah,
Nick, I want to know how to approach this middle ground, because on the one hand, I don't want to be a sap, but on the other hand, I don't want my bark to be worse than my bite.
And on that happy note, that's time for a station ID, just bark and sap.
All right, it's
been a long after that.
But
I'll be back to you, Nick.
OK, so we have tree in our front yard, and I thought the thing looked good.
It was fine, but I could tell it was getting older.
So I exercised the Orkman judgment, and I thought, well, we probably ought to have that taken down.
It just didn't look healthy, OK?
So we had to think taken down.
I was shocked when they came and took it down.
The whole inside of that tree was gone.
Literally, I mean, it was like an empty cell, like a pipe.
I had no idea that it was rotting from within.
I mean, that literally could have gone down and hurt somebody.
but I had no idea what it was.
Now, on the back of our house, on neighbor's tree, they got a whole tree that seemed better days, and a group of raccoons are living in it.
Now, I love watching these raccoons, because they come out of this hole way up at the top, and, you know, they watch their feet, and they're just cute.
I really love seeing them.
But I'm wondering, I bet you that whole tree's holler.
So would that give you cause to believe, okay, this tree could be dangerous?
No, in that situation, if it falls anywhere, nobody cares, there's nothing there.
If it was on a border or something, you might, that fact of the raccoon living in it may indicate there's problems.
So you see, if it's on your property folks, you got to exercise due diligence to look at it, to assess it and do, and then take actions consistent with due and reasonable care.
That's too professorial.
It's
like a law school.
Sorry about that.
Well, no, this is great because it goes along the earlier rhetorical question.
If a tree falls in the forest and no one sees it, does it still make for a legal claim?
And the answer is possibly.
It depends on who would
like to find the words
wrong.
If the tree falls
in the forest and nobody hears it, did it make a sound?
Well, if you're talking about the animals that are in the forest, yes, it does.
It scares them and they ran away.
All right, so what are we going to talk about next week, Joe?
I have a question for you.
What's
that?
How come farmers get special tax treatment?
Because Congress always is going
crazy.
Okay, now here's why you're going with this, okay?
You guys get, you have trucks, and the cost of the license plate for the truck and so forth is cheaper than my car.
Well, it provides a valuable service of hauling grain.
I don't think you do that in your car.
Well, all to me.
the grain eater.
So I mean, okay, so in the end, when it comes to licensing, farm vehicles and stuff, you get a break,
right?
Likewise with respect to that choice.
Likewise with respect to taxes.
I live in the city.
Okay, the taxes are outrageous.
Okay, on this little, little.
a chunk of land that I got that a goat would die on because he couldn't get enough food to eat on it.
And if I had the goat, which I wouldn't mind having, the neighbors would throw a fit and the city would say they're illegal, okay?
But the taxes are outrageous, but out here in God's country, some of them have any taxes at all,
correct?
Nick, you're forgetting a few things.
Think of all the services that you get from your big, beautiful city that Marty doesn't get.
Oh,
I'm sorry, Marty.
You don't have a skateboard park.
Sorry about that.
That's great that I don't.
You wouldn't really want to pay for it, would you, Marty?
No, not at all.
Not at all.
Joe, I'm wondering, tell me about them services I'm supposed to be getting.
Where are the police when I need them?
You got to take that up to the city council and the mayor.
Right.
Welcome to New York.
Well, Nick, you do steer into a great
uh public policy question that has been there uh since forever and that is obviously tax policy is often crafted uh as a public policy vehicle to indeed incentivize certain behaviors or to do protections uh for certain groups and industries and the truth of the matter is our tax code both at the federal and state local levels is very much
drawn for risk, reward, and incentivization.
But Nick, you also point to something, whether it is currently, I've been selling this very intently, whether it is Nebraska, it's a huge issue, Iowa, huge issue, Kansas, huge issue right now are the property tax rates.
And the Venn diagrams overlap perfectly because both are basically, comparatively speaking, lower population
super agricultural states.
And so you've got a conundrum going of how do you finance a state and how do you do it without no pun intended overtaxing agriculture?
And so right now the conundrum is that that burden according to the zeitgeist in all three states among the voice of the people is that the burden right now is inordinately shifted to residential home owners.
and it comes down to the issue of what if you are a senior on fixed income you've had your mortgage paid possibly for two decades and now you can no longer afford to live in the house that you've owned and paid off because you've got maybe $12,000 a year of
property taxes to pay.
This is a huge issue bubbling up.
I can tell you, in the Kansas area right now, in Nebraska, it's a huge issue.
In Iowa, it's been an ongoing issue.
In Iowa legislature, I had sponsored some earlier legislation to exempt any over 65-year-old residential homeowners to exempt them from being de facto evicted from their homes for inability
to pay property taxes.
I'd like to touch on this for just a minute.
It seems like none of the three states has had the willpower to make a difficult decision with respect to this issue.
It's like the third rail in local politics, as the equivalent to Social Security is on the national scene.
Joe, any thoughts?
Because you're there in a beautiful
growing residential area.
I mean I think Marion Hiawatha are absolutely beautiful and yet it's the heart of agriculture and yet the heart of great commerce, beautiful homes, school districts that have incredible infrastructure.
My goodness that that Lindmar High football stadium looks better than most NAIA college athletic fields.
Joe, I'd like you to just weigh in a little bit on that.
The Iowa legislature recently has taken some pretty affirmative steps with respect to overring property taxes and then limiting the amount that they can be increased in any given year, which right now is leading to a lot of cutback and services.
One thing we're going to see the University of Iowa just announced that it's not going to put up that $2 billion new patient tower that they planned on because funding is being cut.
We're seeing
All of the school districts of Denmark specifically has made a change in what it was going to be doing.
It was going to be adding some additional facilities for the athletes, uh, for, you know, strength and conditioning and a new wrestling room.
And it was many millions of dollars and it's being taken off the table for right now.
It may be added later if they can figure out how they're going to do it.
And you haven't even delved into the impact on city and county services.
Oh, yeah.
And so our programs that they put on.
Right.
And so what's going to happen is that all government at all levels that were previously relying upon property taxes are being caused to re-examine their budget priorities.
What services are we going to provide?
And if we can't get them for property taxes, can we legitimately get them anywhere else?
I expect we're going to see cutbacks in services.
I expect we're going to see more city, county,
government cooperation on doing things so that they can spread out, you know, provide services, but not each one's going to be parochial and say, well, this is my small town.
I'm doing everything my own way because they won't be able to afford it.
I won't be surprised that if we start seeing more inner county cooperation and sharing county attorneys, sharing county engineers, some of that's already going on.
And I
Don't know, but we might go back to, I think it's 2006, Justice Laborado proposed six regional court sites in Iowa saying we don't need to have courthouses in all 99 counties.
Let's have regional court centers, regional ones instead of doing it all on the county level.
I think we're going to see a lot of changes because of what's happened because the state legislature has said we're going to haul in the property taxes and
We're not going to let them continue to increase at the rate they were increasing.
Joe, that's brilliant.
And I would go further and say, sometimes it's not a war between country mouse and city mouse.
Sometimes there's a conflicting, even within the citizenry of contradictions.
For instance, out in rural Kansas, outside of Kansas City, you have people decrying their residential property tax rates.
they're just they're just apoplectic about it and yet these same people are dead set against any development of industrial solar any wind turbines and any data centers so you know you can't have your cake and eat it too and Joe it seems like they're in a conundrum against themselves we want our property taxes lower but
No solar panels or wind turbines or data centers in my backyard.
How do we resolve that type of thing, Joe?
I'm not sure how you're going to resolve it.
I think, you know, and let's go one further one.
There's no data centers right now on the west edge of Cedar Rapids, rather than the Morgan Valley fight.
The people in the Morgan Valley don't want to put up a line to put up a new power station.
It's going to be natural gas-fired power stations.
It's going to take 160 acres of
beautiful productive eye of a farmland out of production to provide additional energy.
And there's a lot of protests on that going on.
So NIMBY, not in my backyard, has been a problem for development for a very long time.
Yes, we like the fruits of the development, but we don't want it in my backyard.
It's the same problem we're going to have when the landfill fills in Marion.
It's getting close and they're trying to say, well, can we cut back the how far it's away from the highway?
which increases capacity for maybe another 10 or 15 years?
Or do we have to start shipping it out?
Or do we find another place that we can put it because nobody wants a landfill in the backyard?
Right,
right.
Well said.
Nick, I'll kick it back to you.
Nick, I know you've got law offices in New York.
I remember when the folks either in Kate Codd or Martha's Vineyard, all who were very progressive,
on energy, once they were going to put wind turbines up in that area, all of a sudden they called Nimby, Nimby, Nimby, not my backyard.
Nick, it's not just Country Mouse, City Mouse, sometimes even the rural folks are conflicted between among themselves about how to approach development vis-a-vis taxation.
Well, if you ask this question, I'm out here in Adair, which happens to, but I think that you guys grow more turbines here than you do corn.
Right.
We are the best wind producing state for consistent wind.
Yeah.
Right here, as a matter of fact.
Yeah.
Yeah, Schwarzenegger.
Arnold Schwarzenegger was the terminator.
Marty Fisher is the Turbanator, the Turbanator.
It's a serious problem, John.
And as you know, I'm a general counsel for the Iowa Stored Energy product.
Yes.
And then also the power from which morphed into power from the prairie.
And the project there is to take the energy generated by those wind turbines and somehow get that into the commerce.
The thought being that on your farm, you grow corn, you take that corn, you sell it into the marketplace.
On your farm, you also have wind if you're generating and you sell that into the marketplace.
And my question was, well, how come my farmer's not getting a cut of that action?
They get a cut of the farm, they get a cut of the corn.
How come I'm not getting a cut of that action?
Okay, so if we're going to put this project together and we're going to build this interstate transmission line because you gotta have some highway to get them out, which is either a transmission line or they're getting part of it instead of just getting an easement rent or that type of thing.
You got my land, you're using
the earth, I own the land, I own the air above it and the ground below it.
Therefore, I'm producing energy just like I produce corn and you're going to pay.
So let's get together a private public partnership where the farmer is at the table as an equal, not as a victim.
That's too strong a victim, I understand that.
Okay, uh, someone to be dealt with.
I want them there.
But getting them organized to see that they've got a valuable empty.
There's been difficult.
Nick, yeah.
Nick, you're a genius.
The public-private partnership is a great paradigm.
That was done in Omaha in the late great Tim Moylan, working with the city.
Tim was part of the private investment group, took an old Omaha landfill.
They covered it with a lot of dirt, made it very safe.
And voila, there was now, to this day, a 80,000 square foot dual plex ice arena with both an NHL and figure skating ice rinks, Zamboni machines, public skating, instructions, lessons.
hockey games, the city provided the land, which they had, the landfill, the parking.
They had a parking crew that wasn't busy with extra concrete and the utility hookups.
They were right along the infrastructure utility hookups and the private investors provided everything else.
The city got a piece of the action and it worked out marvelously and took care of a
landfill issue.
Guys, it's time for final arguments already.
Reminder, every Saturday here on KXEL, over your noon hour, Iowa Law Talk with Piper and Critelli, Critelli and Piper, and sometimes Fisher, like today, on 1540, 100.5 FM.
Get this on your podcast, tell your friends, just on your browser, type in Iowa Law Talk, KXEL.
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Final arguments, Mr.
Piper.
the damage their kids do unless, uh, Nick or other attorneys can figure a way around it and configure a different way that they be responsible, conceivably the vehicle ownership.
Third one, you got a tree, take care of it.
That's just good prudent business.
And if you don't care about your tree, hope it doesn't fall and hurt anybody.
Uh, that's brilliant.
Uh, prune it or prude it.
Prudent is prudent.
So, um, hey, Marty Fisher, before I give Critella the last word, I want to bring you back for a show to talk about the role of magistrate.
I always get that question all the time.
What's this magistrate thing?
Marty, are you willing to come back and talk about that in a future episode?
I would love to.
Thank you, John.
All right, consider yourself invited.
We'll bring the great Marty Fisher back.
And Marty Fisher, famously known for being married to Linda.
That's major general in it.
Yes, it is.
Yeah, I'll tell you what I want to talk about next week, folks.
I want to talk to you farmers about the importance of not only what you do, but what you own, and that you need to take another look at how you interact with the business community.
You may very well be the boss.
Uh, well, it's true, Marty, and we're laughing, but reality, everyone wants to come across your property to do that for their own economic benefit.
We have economic, we have, you know, I'm in a domain, et cetera, which is all another issue, but there's a better way to do this.
And I want to talk more about the public-private partnership, John, the problems that we ran into with power from the prairie, both here and in South Dakota, Marty, with the Indian tribes, getting them at the table, because I think there's a better way to do this.
where the farmers are primitive.
They control it.
They own the land.
So that's what I want to talk about next week, John.
Well, this is great, guys.
You know, Jeff Stein, the wonderful news director of this station, pointed out to me in our conversations that KXEL now is the only local news talk station in the eastern half of the state with local, often live commentators and guests.
And you know, it's important to care enough to have your people living in
Iowa and Eastern Central Iowa as Messers, Piper, and Critelli do.
And we're so delighted to have had Marty Fisher, a Western Iowa, join us today on the program.
We'll be back again next week.
Safe travels to all of you.
They're in your cars as we speak, heading to Iowa City, to Tailgate, and to enjoy that great battle, the Psyhawk battle.
For everybody here, it's John Jacobson saying, be safe, be smart, be good, be strong.
God bless America.
And God bless us, everyone.
And we are grateful to Divine Providence that Iowa can help to feed the world.
After all, as Headhawk Hayden Fry launched over a quarter century ago, close to half a century ago, A-N-F, America Needs Farmers.
This is Iowa Law Talk with Cartelian Piper.
Bye-bye.
