Case of the Day – Friday, October 31, 2104

MEASURING HARM

oopsMr. Harper accidentally cut down 70 trees on Ms. Dumas’ property, thus markedly improving his view. Oops!

The more skeptical among us think that cutting one Dumas tree would have been an accident, cutting down a few would be tragedy. But cutting down 70 of ‘em, and coincidentally achieving the better view Mr. Harper coveted … well, that sounds like enemy action.

The Connecticut court is considerably more credulous than we are. The judge bought the notion that Mr. Harper and his woodsmen goofed, but pondered long and hard about how to figure the damages. In a weird inversion of schadenfreude, Ms. Dumas argued her damages should be measured by the value that Mr. Harper derived from his better view. The Court rejected that.

Instead, it held, the measure of damages is either the value of the timber or the diminution in value of Ms. Dumas’ place. Harper said that the trees he accidently lopped weren’t ornamental, so the only damage is about $1,000 worth of debris (thus proving that while he couldn’t identify a property line, old Mr. Harper didn’t lack for chutzpah).

schaden141031The Court disagreed. The trees weren’t strictly ornamental, but that was their purpose, regardless of Mr. Harper’s sad attempt at speciesism. The damages should be measured by the cost of repair, the Court said, and the repair will cost $16,000.

Careful testimony by Ms. Dumas’ expert was crucial to establishing her damages, and arborists and landscape professionals should consider how plenty of detail can persuade a court to side with an expert’s report. For the same reason play-by-play people keep a color commentator near at hand, an expert should tell a story that’s not only accurate and complete, but interesting as well.

Dumas v. Harper, Not Reported in A.2d, 2008 WL 496558 (Conn.Super.Ct., Feb. 6, 2008). Yvon Dumas claims that Emery Harper and his agents entered on her land without permission and cut down about seventy trees. Dumas claimed trespass, and sought damages and treble damages pursuant to Connecticut law, and other equitable relief. The matter was tried to the court.

Based on the evidence, including a site inspection, the court found that Harper and his minions cut down about 70 trees, resulting in the area looking unsightly, with tree stumps and branches and debris strewn about. The Court found that Harper’s trespass was the result of a mistake.

Nothing left but a stump field ...

Nothing left but a stump field …

Dumas introduced evidence of the value of the “view” to Harper with the trees on her property cut down. But the Court ruled that the value of any view to Harper was not the measure of damages, but rather the damages were either the market value of the tree once cut down, or the diminution in the market value of Dumas’ property caused by the cutting. Harper argued that the only measure of damages the court can award pursuant to Connecticut General Statute § 52-560 was the market value of the 70 trees as severed from the soil, because the trees in question were neither ornamental nor shade trees. The Court disagreed, holding that while the trees were not ornamental trees as such, the evidence was that they had ornamental value insofar as their removal rendered that portion of Dumas’ property unsightly. It would make no sense, the Court said, for the damages to be limited to the value of the trees as severed from the realty. The damages to be awarded to Dumas should be based on the reduction in the pecuniary value of the land because of the cutting.

The Court found that the diminution in value to the Dumas property should be measured by the cost of cleanup and screening the area with new trees. The Court accepted the expert opinion of Dumas’ landscape consultant, who testified that the work would take a week or more and would cost $9,180 for labor and $6,000 for new trees.

TNLBGray140407

 

Commies win141030

And Now The News …

Typewriter

 

Albany, New York, Times Union, October 30, 2014: Vermont woman chains self to tree in protest

A 63-year-old Vermont woman who describes herself as “an old hippie” has chained herself to a big old tree in Burlington to call attention to its plight. Ann Taylor says she wants to alert those who pass by to Burlington’s plan to cut down the tree to widen an existing bike path. She chained herself to the tree Wednesday afternoon, her dog — Bode Miller — at her feet …

badtreetrim141031Bay Nature, October 30, 2014: San Francisco’s street trees in poor shape as City shifts upkeep to residents

The city of San Francisco is planning to shift more street trees into the hands of private property owners, despite evidence that the city’s tree canopy has suffered since the transfer policy began three years ago. San Francisco’s Department of Public Works (DPW) explained its controversial plans on Monday at a packed room in San Francisco’s City Hall at a hearing of the Land Use and Economic Development Committee. “DPW is unable to take care of all the trees,” said Carla Short, an urban forester at DPW. After major budget cuts in 2007, the city’s 11 arborists couldn’t keep up with the normal pruning cycle of every 3 to 5 years, and instead dropped the frequency to once every seven-plus years. Then, in 2011, amidst a continually dropping budget, DPW announced it couldn’t afford to maintain the city’s 105,000 street trees anymore and laid out a so-called “relinquishment plan” to transfer responsibility for an initial 22,000 trees to adjacent private property owners…

Houston, Texas, KTRK-TV, October 30, 2014: Developer cuts down large oak trees in dark of night

To cut down six large oak trees on one of the most traveled streets inside Houston’s inner loop is unusual. To take them dowOctober 30, 2014: n after dark is even more so. So it was Tuesday night, at the intersection of Kirby and North Blvd. Had it not been for the closure of the Greenbriar freeway exit, Mary Nugent might have missed it. But as she drove down what she said was a familiar street, “it took my breath away,” she says. The oaks were planted a generation ago, more than 20 years, by the Boulevard Oaks Civic Association, and Trees for Houston, which aims to green up the city in the face of ongoing demolition and development. Nugent and others tried to reason with the landscapers, but without success. Eventually, the trees were reduced to mulch. What makes this more than the downing of trees, is that the trees were public property, donated to the city and planted on the city easement. Now it’s become a matter for the city legal department, which is investigating the matter …

Lebanon, Pennsylvania, Daily News, October 30, 2014: East Hanover man dies in tree-cutting accident

A 70-year-old East Hanover Township man was killed in a tree-cutting accident Thursday afternoon, state police at Lickdale said. Turner L. Newburn of 46 Swatara Drive was cutting down a large tree for firewood when it fell on him at 2:30 p.m., state police said …

Brunswick, Georgia, News, October 30, 2014: TPC Sawgrass tree removed

One of the more strategic trees on The Players Stadium Course at TPC Sawgrass is no longer in play. The overhanging Live Oak to the right of the No. 6 tee box, which has impacted tee shots over the years, recently developed a large crack in its trunk due to old age and disease and became a safety concern due to the weight of its overhanging limb, thus necessitating removal of the tree today …

beaverton141030Portland, Oregon, KPTV, October 29, 2014: Ash trees make neighborhood susceptible to storm damage, residents say

Ashwood Downs lived up to its name. At least ten ash trees fell in the Beaverton subdivision during Saturday’s storm, damaging a house, a car, sidewalks and a mailbox. Neighbors say the type of tree, a flame ash, is susceptible to heavy rains and strong wind because of its shallow root system …

Dallas, Texas, KTVT-TV, October 29, 2014: Construction crews mistakenly cut down trees

The thick strand of trees behind her house was one of the best points about her home for McKinney resident Nikki Henderson. It was a buffer between their neighborhood and the busy Hardin Blvd. about 100 yards away. “You wouldn’t see any cars,” Henderson said. “You wouldn’t see any power lines. It was a beautiful canopy of 40 and 50 foot trees.” But the McKinney homeowner said it’s now nothing more than a gaping hole that can’t be fixed. Nikki Henderson cried when she saw the lush trees behind her home being ripped down by a construction crew. Cell phone video captured by her neighbor shows a bulldozer knocking over towering trees …

Staten Island, New York, Advance, October 29, 2014: Can trees be identified by their fall colors?

When it comes to identifying trees, the leaves are often the first clue. Of course, other characteristics such as the bark and overall shape of the tree can be used to recognize a tree’s species at other times of the year. But for a brief period during autumn, the colors of the changing foliage can also be helpful in identification …

Somerville, New Jersey, Courier News, October 28, 2014: Jersey’s trees still vulnerable two years after Hurricane Sandy

Two years ago this week, Hurricane Sandy ravaged New Jersey with a force not experienced here in a century, and the devastation it caused to coastal areas was the subject of local and national news for weeks and months after. “It was some of the worst storm surge flooding we’ve ever seen,” confirmed arborist Chris Padot, owner of Bridgewater-based Green Tree Surgeons. “But while coastal towns received much of the media attention, the extremely high wind gusts experienced in interior sections of the state wreaked incredible havoc on our area’s trees and created what seemed like a third world country here for a few weeks …”

treedamage141029San Francisco, California, KPIX-TV, October 28, 2014: San Francisco’s tree maintenance program has been a death-sentence for some trees

San Francisco’s Board of Supervisors are trying to figure out how to stop a tree-maintenance program that virtually everyone agrees is a horrible idea. For some street trees it’s been a death sentence. A hearing was called by Supervisor Scott Wiener who’s been trying to get the city’s Public Works department to back peddle on its program to force private property owners to maintain city-owned street trees …

Palm Beach, Florida, WPTV, October 28, 2014: Boynton Beach takes out hundreds of trees in neighborhood during construction

Residents in Boynton Beach said a multi-million dollar project is hurting a neighborhood instead of helping. To improve water lines and drainage, the city has to rip out hundreds of trees. “We all enjoy the fruit from it, but it won’t be here anymore,” said Lilly Mayhew standing next to a sugar apple bush. 
The 29-year resident of this Boynton Beach neighborhood west of downtown cringes at the future of her neighborhood …

Bemedji, Minnesota, Pioneer, October 28, 2014: Protecting deciduous trees, shrubs from winter damage

Winter sun and wind can damage bark, branches and flower buds and prolonged cold can damage roots. One common injury is “sun scald,” which is characterized by elongated and cracked areas of dead bark, usually on the southern side of the tree. On cold winter days, the sun can heat the bark to the point where cell activity is stimulated. When the sun goes down, temperatures plummet and kill the active tissue. Young, newly planted and thin-barked trees (crab apple, maples, mountain ash) are most susceptible. Also, those trees that have been limbed up to increase light or trees transplanted from shade to a sunnier location are more at risk. Older trees usually are not bothered by sun scald because their bark is thicker and can insulate dormant tissue from the sun. Sun scald can be prevented by wrapping the tree trunk with a commercial tree wrap or something similar to reflect the sunlight. Put the wrap on in the fall and leave on until the last frost in spring. Newly planted trees should be wrapped for at least two winters and the thin-barked species for five winters or more …

Calistoga, California, The Weekly Calistogian, October 28, 2014: Let’s help trees survive the drought

Throughout Calistoga, our homes and streets are graced by many different species of trees. City streets and homes are shaded by sycamores, oaks, Chinese pistaches, crepe myrtles and other beautiful varieties. Water is in short supply, and the drought may continue for another year (or more). What will happen to these trees if we stop watering? And what are the best trees to plant for drought conditions? There is no simple answer, since we have to consider the kind of tree, the soil, the root conditions and the location …

Akron, Ohio, News-Reporter, October 29, 2014: Editorial – Autumn’s colorful reminder – the importance of investing in our street trees

Autumn is upon us. This time of year, we experience the arrival of fall, and we take comfort in the crisp evenings and enjoy the splendor of autumn color. Walking or driving through town is a delight for the senses. This benefit of trees – this experience – provides warm feelings and emotions, and creates fond memories that are priceless. We all have fond memories of traveling along a boulevard lined with grand street trees that formed a welcoming natural archway of tree canopy above. As the leaves begin to show glorious color, let’s pause to ask ourselves: Are we investing enough time and money in our street trees? Street trees – those trees planted between the sidewalk and the road – are perhaps the most valuable city trees, and it is vitally important that local communities manage them well …

droughttree141028Santa Barbara, California, KEYT-TV, October 27, 2014: 400 Santa Barbara Trees Could Die in the Drought

Four Italian Stone Pine trees, each more than 100 years old, will be cut down this week in Santa Barbara. They could not survive the drought and an attack by bark beetles. It’s not a surprise to the Santa Barbara Urban Forest Superintendent, Tim Downey. “We are seeing more than normal trees die. And it’s mostly a result of the drought. We planned for that. We knew this was going to happen  …”

New York City, New York Daily News, October 27, 2014: Parks Department charging MTA $520,550 to remove trees for construction project

Maybe these trees are made of gold. The city Parks Department is charging the MTA $520,550 to remove and replace 16 large trees now located on city property. That breaks down to $32,534 per tree. “Is that a typo?” shocked Metropolitan Transportation Authority board member Jonathan Ballan said Monday at the MTA Finance Committee meeting. It wasn’t …

Portland, Oregon, KOIN-TV, October 27, 2014: Ash trees causing issues for Beaverton residents

Beaverton neighborhood is dealing with a significant expense after the wind over the weekend took down nearly a dozen trees, and some residents are blaming the city. Ashwood Downs Homeowners Association President Greg Machacek said the ash trees in the Beaverton subdivision have become a hazard. “When it was build, this was one of the types of trees that they wanted. This is what they wanted. That’s my understanding,” said Machacek …

Dublin, The Irish Times, October 28, 2014: Jurassic bark: ancient Irish trees brought back to life

Down towards Gougán Barra, where the remote wilds of west Cork meet the gentle slopes of the Lee valley, Ted Cook’s home seems like a relic from a forgotten era. A pheasant keeps sentry out front, unperturbed by visitors. Behind the gate, the grassy driveway looks like it hasn’t seen a car in a generation, if ever. It’s a sylvan idyll, nestling snugly in about an acre of mixed woodland. Yet this quiet corner of Kilbarry, Co Cork, so rustic that you half expect Hansel and Gretel to come bounding down with cookies (five kittens do emerge), is at the cutting edge of an international campaign to help save Ireland’s forests. At Cook’s house, in unprepossessing boxes, lie no ordinary trees. They are oaks. Moreover, these are no ordinary oaks. They contain the precise DNA of the last remaining aboriginal native sessile and common oaks around Ireland. In the US, where they were grown, they were grafted on to root stalks before being sent on to Holland and imported back home …

twigg141028Hutchinson, Kansas, News, October 27, 2014: Pests make mess but won’t kill host trees

It seemed to Lanny Lankford that within days of removing a pickup load of dropped tree branches from his yard, the place was more heavily littered than before. “At first I thought it was a porcupine,” said the rural Reno County resident, having dealt with the rodent before. “But I couldn’t figure out how they got to the end of the branch. It was just the last 1 1/2 to 2 feet of the limb dropping off.” So he took a branch into the Reno County Extension Office in South Hutchinson and learned the bad news: twig girdlers. Entomologists named the grayish-brown long-horned beetle, Oncideres cingulata, for what it does to the branch, using its mandibles to chew a channel or “girdle” around the branch, while leaving the twig core intact …

ash141016Detroit, Michigan, Free Press, October 26, 2014: Search on for survivor ash trees in Ohio, Michigan

Researchers studying a tree-killing beetle are asking residents in northwestern Ohio and southeastern Michigan to help them with a scavenger hunt of sorts. Scientists think there are few ash trees in the wild that have been able to withstand the emerald ash borer and are hoping that they could provide some clues about how they were able to fend off the destructive beetle …

Fond du Lac, Wisconsin, Reporter, October 27, 2014: Ask a master gardener: Some trees hang tight to their leaves

It’s that time of year when the leaves are changing color and dropping onto our lawns. Even though it may seem like all the trees are losing their leaves, there are a few deciduous trees that hold onto their dried leaves throughout the winter. Marcescent is the term used to describe this type of leaf retention which is common among many species of oaks American beech, witch hazel , musclewood, and ironwood. These leaves are dry, but yet springy — they don’t crumble into pieces. Rumor has it some early settlers used marcescent leaves, instead of straw, to stuff their mattresses. The leaves will stay on the tree until wind or snow break them off, spring’s expanding buds push the leaves off the branch, or there may be some leaves that stay attached …

Lawrence, Kansas, KTKA-TV, October 26, 2014: Trees lost outpace trees planted at KU

A tree-planting catch-up effort has taken root at the University of Kansas. The Lawrence Journal-World reports that the number of trees planted in recent years has fallen short of the number lost to damage, disease, construction and age. Last year alone, the university removed 71 trees and planted 52. The tree-planting effort has been dubbed Replant Mount Oread …

Atlanta, Georgia, Atlanta Journal-Constitution, October 25, 2014: At Issue: Old trees or new development

A year ago Decatur began revising its 1988 tree ordinance, a process that took seven months and underscored the diversity of opinion regarding urban forests including the government’s role in maintaining them. Fundamentally the new ordinance sought the very difficult balance between the rights of individual property owners and collective community goals. A new ordinance was deemed essential because studies revealed Decatur had lost roughly 700 trees, or 4.1 percent of its canopy — that is, the foliage spread over the city — in the last 27 years. But a huge factor driving the new ordinance was escalating tension between Decatur’s old neighborhood sensibility and contemporary construction …

Norwalk, Ohio, Reflector, October 26, 2014: Norwalk residents upset about ‘butchered’ trees

Local residents have expressed recent concerns regarding the trimming of trees near electrical power lines. “We do receive some complaints,” said Josh Snyder, public works director. “The trees are trimmed near the power lines to prevent power outages. That’s the gist of the program. Historically, we’ve had trees located near the power lines.” During a severe storm, limbs and branches from those trees or the entire tree has fallen on to the power line, knocking out service. Snyder said when residents call city hall, they claim the trees are “butchered.” “That has been the complaint since day one,” he said. “That is the concern of the residents …”

falltrees141024Portsmouth, New Hampshire, Herald, October 24, 2014: Stratham may trim trees to improve view of Great Bay

The view to Great Bay from Stratham Hill could soon become more clear. The possibility of trimming trees that have blocked the view from the top of Stratham Hill Park to Great Bay over the past 20 years was discussed during a public hearing before the Board of Selectmen on Monday. Members of the public and the town’s Conservation Commission turned out to speak their minds …

Baltimore, Maryland, WMAR-TV, October 22, 2014: Woman killed after tree falls on their vehicle along Falls Road

One person is dead after a tree fell on top of their car along Falls Road in Baltimore. Baltimore County police report that Falls Road was shut down between Ruxton Road and Old Pimlico Road for five hours due to the accident. The victim, identified as Rebecca Lowry, 52, of Joppa, Md., was driving her 2007 Toyota FJ Cruiser south on Falls Road Wednesday morning …

Winona, Minnesota, Winona Daily News, October 24, 2014: Minnesota tree trimmer survives 60-foot fall

A Minnesota tree trimmer is recovering after falling about 60 feet out of an oak in Ham Lake. Twenty three year-old Eden Hanson of Pierz broke his arm, six ribs and his sternum and lacerated his liver and spleen in the fall this week. Doctors at the Hennepin County Medical Center tell him he likely wouldn’t have survived if he hadn’t been wearing a helmet. Hanson was in the tree Tuesday when its top broke under the weight of his rope. He says the tree limbs he had already cut softened his fall …

Rochester, New York, Democrat & Chronicle: Planting trees in fall has advantages

You’ve heard about the benefits of planting trees in the fall. Prices are lower, the air is cool but the soil is warm, and roots get a jump-start on spring. Inexperienced tree planters might find the prospect intimidating, but it’s fairly straightforward. First, expose the root flare. Nursery-grown trees sometimes will have a “false” root flare …

Redlands, California, Daily Facts, October 23, 2014: It’s best to keep ground cover away from trees

Ground cover will compete for water and minerals and, even more problematic, will keep the base of the trunk and the root zone constantly moist, inviting soil-borne fungus. This fungus will enter water-conducting vessels in roots and block movement of water up the tree, resulting in desiccated shoots and leaves …

berm141023Medicine Hat, Alberta, News, October 23, 2014: 1,000 trees will fall victim to berming

City officials moved quickly Wednesday to assure residents that the removal of about 1,000 trees for berm construction in city parks isn’t being done without consideration, but is needed to safeguard residential areas from future flooding. “Certainly the landscape is going to change significantly and we’re certainly sensitive to the issue,” said Todd Sharpe, general manager of parks and recreation. “The majority of the tree cover along the river will remain …”

Lacrosse, Wisconsin, Tribune, October 22, 2014: Each fall, trees offer homeowners a bounty of free mulch

As an adult, I now see the bounty of leaves the trees are heaping on my street through a gardener’s eyes. These leaves are a gift. Trees, it turns out, are strategic in their leaf shedding. Fallen leaves decompose to feed fungi that in turn nourish tree roots. So our trees are, in effect, making their own mulch and dumping it all over the very spot most beneficial to them: their root zones. Unfortunately, to a suburban homeowner eager to get a head start on next summer’s manicured lawn, mounds of dead leaves are unsightly. Mulch is a bagged product you might buy, or have delivered in a pickup, and it must stay within a garden bed lined with plastic or bordered with bricks. It’s not something some tree ought to dump all over your yard …

Mobile, Alabama, WKRG-TV, October 22, 2014: Daphne businessman wants oak trees cut down

In the late 1980’s, the city of Daphne planted dozens of oak trees on Highway 98. Since then, the oaks have become so popular, Daphne was named and identified as an official “tree city.” But gas station owner Kevin Spriggs says the oaks are bad for business. Spriggs says drivers on I-10 can’t see any businesses on Highway 98 because the oaks block the view …

USDA, October 21, 2014: Scientists work to protect trees in Southeast Alaska from non-native Longhorned Beetles

Non-native longhorned beetles are easily transported around the world in solid wood packing material, arriving in a new location with no natural enemies to control their populations. Across the country, many of these non-native beetles, particularly the Asian longhorned beetle, have killed tens of thousands of hardwood trees, especially in eastern states. Will these pests ravage trees in Southeast Alaska? U.S. Forest Service specialists are working to determine ways to prevent the kind of devastation they’ve had elsewhere …

Bend, Oregon, KTVZ-TV, October 22, 2014: McKay Park trees rotting, dying, coming down

For many years, McKay Park has featured several large cottonwood trees providing shade and beauty to park users. During planning for upcoming park construction which is part of the Colorado Dam Safe Passage project, the trees were evaluated by a certified arborist. The arborist found that most of the large cottonwoods are diseased and/or rotting and pose a hazard to park users from potential falling of large branches or entire trees, the Bend Park and Recreation District said Tuesday. As a result, these cottonwoods and other dead or dying trees in the park will be removed. The tree removal is planned over the next eight days, starting Wednesday …

EAB141022Public Radio International, October 21, 2014: The invasive emerald ash borer has killed millions of trees, but researchers hope a wasp can save some of the survivors

A swampy forest in the floodplain of the Merrimack River is one of the first places in New Hampshire where the dreaded emerald ash borer was discovered. These days, Molly Heuss of the New Hampshire Division of Forestry and Lands knows just how to find the tree-munching beetles lurking in green and black ash …

St. Louis, Missouri, KMOV-TV, October 21, 2014: Ash trees on arch grounds to be removed in coming weeks

As the arch grounds renovation project continues, 800 ash trees are targeted to be removed and replaced with London Plane trees. The removal of the ash trees is a proactive measure against the Emerald Ash Borer, a beetle that can be deadly to the trees. Crews plan on removing the trees within the coming weeks. The London Plane trees that will replace the ash trees were shipped from New Jersey, but will not be planted until 2016 when the park construction will be finished. By that point, the trees will be near 25 feet tall and six inches in diameter …

Bangor, Maine, Bangor Daily News, October 21, 2014: Plan to harvest trees from Falmouth town forests called ‘outrageous’

After hearing about a plan for harvesting trees at the Blackstrap Hill Community Forest and Woods Road Community Forest, the Falmouth Town Council recently decided that consultation from a forest ecologist is necessary before any decision can be made. However, the council cannot deny harvesting in the forests, because the Department of Inland Fisheries and Wildlife mandates harvesting every 10 years. The council discussed the issue at its Oct. 15 meeting. The plan, as explained by town forester Paul Larrivee, would draw from the individual 2013 open space management plans for both properties. A selective cut in both properties would “take out less desirable trees and encourage new species to exist there,” Larrivee said. The Woods Road plan would call for harvesting likely up to one-third of the trees in a 36-acre zone, to create an area where deer can find food. A 100-acre zone in the forest would be left alone, so the deer could have shelter. “I just think that’s outrageous,” Anderson said with regard to the number of trees being harvested …

Sammamish, Washington, Sammamish Review, October 21, 2014: Temporary law makes it more difficult to cut down trees

Residential developers could have a more difficult time building homes in Sammamish — at least for the next few months — after the City Council took action last week. In a unanimous vote Oct. 14, the council passed an interim ordinance regarding tree retention standards. The laws could change again after the council holds a public hearing in December — about the same time the city’s planning commission finishes studying the issue — but for now, developers will have more restrictions to deal with. City officials said they’re looking to balance state-mandated growth targets with the wishes of residents who say too many trees are being cut down. “This is not intended to impose a moratorium,” City Manager Ben Yazici said. “It is not intended to discourage development. It is intended to save more trees …”

redpinescale141021Northampton, Massachusetts, Daily Gazette, October 20, 2014: Red pine insect the size of fleck of pepper killing trees in Northamptons

A tiny insect the size of a fleck of pepper is wreaking havoc on red pine trees in the city’s watershed lands, forcing the Department of Public Works to hire a forester to survey the trees and develop a harvesting plan for early next year. Known as red pine scale, the non-native insect has been present in the state for some time but was only recently detected in the city’s water supply property located in six communities, including highly visible spots off major roads. “Within a year or two, all of the red pines will be dead. Many are already dead,” said City Engineer James Laurila, referring to the red pines on city property…

Tulsa, Oklahoma, KOTV, October 20, 2014: Landscaping ‘A Gathering Place’: Over 4,000 new trees to be planted

Officials behind A Gathering Place for Tulsa say more than 80 different species of trees will be planted as the plans for a world-class park are realized. They’re using a Tulsa company – Preaus Landscape – to oversee the planting of more than 4,380 trees during the park’s construction. Brothers Bill and Ken Preaus have more than 35 years of experience in landscaping, a news release states. “Preserving these existing trees and combining them with the amount and variety of new trees to be planted, is going to make A Gathering Place one of the most unique and beautifully forested areas in Oklahoma and the region,” Bill Preaus said …

dragontree141021Amman, Jordan, greenprophet.com, October 20, 2014: Haunting dragon trees from Yemen bleed when cut

If I were in charge of promoting tourism in Yemen, I’d be using the native dragon tree, or Socotra tree, as my mascot. Native to the Socotra Island these unusual trees have evolved in isolation over millions of years. The Latin name of the endangered Socotra dragon tree or dragon blood tree is Dracaena cinnabari and it is native to the Socotra archipelago of islands in Yemen in the Indian Ocean. It is called a dragon tree due to the red sap that the trees produce …

Biloxi, Mississippi, WLOX-TV, October 21, 2014: State ag officials surveying citrus trees

The Louisiana Department of Agriculture and Forestry is checking Plaquemines Parish citrus trees for 13 pests and diseases. Commissioner Mike Strain says two inspectors began door-to-door surveys on Monday to check all commercial and residential property. The survey will continue through next summer, starting in the south and moving northward toward Belle Chasse. The main focus will be citrus canker, citrus greening and the insect that carries citrus greening …

caldrought141020NBC News, October 19, 2014: Trees vs humans: In California drought, nature gets water first

It seems like a sin of nature that trees may be adding to the misery of California’s extreme drought. But that may be the case, according to researchers from the University of California. The problem is with forests that have grown denser with trees and brush over time in California’s Sierra Nevada mountains. What’s good for the trees may be bad for people. That’s because the trees are soaking up a lot more water that would normally be filling up many of the state’s reservoirs, which are at very low levels because of three years of severe drought …

Toledo, Ohio, Toledo Blade, October 20, 2014: Scientists seek odds-defying ash trees

Federal scientists now believe there are a few extra hardy ash trees out in nature that have — for reasons unknown — defied the odds and held up against the highly destructive, green metallic beetle from China known as the emerald ash borer. They want the public’s help in finding those “survivor” trees — and are starting their research in seven northwest Ohio counties and 10 southeast Michigan counties …

Goshen, Indiana, The Goshen News, October 19, 2014: Prune trees at the right time in the right way

This past week I spent some time with the mowing crew, limbing up young trees in a couple of parks. It’s kind of a hard job to keep up with since we’ve planted so many young trees in the past several years. But it’s necessary. The machines begin to skin up branches as they grow out from the tree, and the mowers have told me that from time to time one of those branches will place a well-aimed slap right on their face if they’re not watching.So we worked on some of the trees in Mullet Park, which I last pruned two winters ago, and then moved over to Hay Park, which was also pruned two winters ago. It is really remarkable and gratifying to see how these young trees respond to some thoughtful care. In most cases the prune wounds have healed over entirely in that time, and only a small scar is visible. In another year or two, even the scars will disappear beneath bark and new cambial growth. The pruning from two years ago also helped these trees to form good growing habits, with dominant central leaders — or trunks — and good branching structure …

Columbus, Ohio, Dispatch, October 19, 2014: Trees wearing better colors this fall

Mother Nature is blinding us with science as trees in Ohio put on their best fall colors in several years.  “It’s definitely better than last year,” said Casey Burdick, forester for the Ohio Department of Natural Resources.   “Last year, every time we started to get color, we had really strong rain and wind, which knocked the leaves down,” Burdick said. But this year, the weather in September “was absolutely perfect for what we needed for the most vibrant colors …”

startrees141017Salem, Oregon, Willamette University, October 16, 2014: Star Trees lighting hiatus intended to give trees time to recover from stress

To ensure the continuing health of the Star Treesespecially those on the windward north side — Willamette University will take a hiatus from the traditional Star Trees lighting. According to the Office of the President, the trees are healthy but showing signs of stress. The grounds team has expressed concerns about the cumulative effects of light installation and the use of heavy cabling, which may cause damage to the trees during winter storms. The hiatus is intended to give the trees a respite and time to recover …

Columbus, Indiana, The Republic, October 16, 2014: State, federal agencies plan treatments to prevent spread of disease that kills red oak trees

State and federal agencies are teaming up in northern Michigan forests to fight oak wilt, a disease that kills red oak trees. It has shown up across much of the state. It spreads when root systems of infected trees graft with those of healthy trees …

Green Bay, Wisconsin, WFRV-TV, October 16, 2014: Chemically damaged trees will be removed from local golf course

At near peak time for fall foliage in Door County, Peninsula State Park Golf Course offers a fantastic view of the colors. But over the next few weeks, dozens of trees will disappear. According to park leaders, 139 conifer trees are marked for removal. They were damaged by the herbicide, Imprelis, manufactured by DuPont. It was used at the course back in 2011. At the time, the chemical was approved by the EPA, but later, they learned of its damaging effects …

Youngstown, Ohio, Vindicator, October 16, 2014: Stink bugs can damage trees, shrubs and much more

Stink bugs are true bugs meaning they go through incomplete metamorphosis. When the eggs hatch, they are nymphs, resembling the adult bug, unlike bugs that go through complete metamorphosis such as beetles, moths and butterflies. They are about 1/2- to 2/3-inch long, and have the ability to release a chemical with a foul odor when they feel they’re in danger. They have the ability to cause significant damage to fruit trees, citrus, persimmon, raspberries, grapes, sweet corn and more. They will also feed on various perennials, trees and shrubs, such as honeysuckle, lilac, linden, maple, oak, rose and sycamore, to name a few …

Portland, Oregon, Tribune, October 16, 2014: Street trees under scrutiny in St. Helens planning

The St. Helens City Council and St. Helens Planning Commission met Wednesday evening to discuss the draft version of the city’s corridor master plan, a document intended to lay out how the city hopes to improve main thoroughfares and key intersections in the Houlton and Old Town districts through future projects … Some officials expressed concerns Wednesday about parts of the plan calling for street trees in certain areas. Planning Commission Chairman Al Petersen said any trees that are planted will have to be proven “suitable for poor soil,” due to the high basalt bedrock underlying most of St. Helens …

jailyard141016Lenoir City, Tennessee, Associated Press, October 16, 2014: Woman sent to jail over neglected trees and bushes in overgrown yard

A Tennessee woman who fell behind on her yard work was cited by code enforcers and has served a stint in jail over her overgrown yard. Karen Holloway tells WVLT that the issue started in the summer, when the city sent a citation. She admits she didn’t properly maintain her yard in Lenoir City in East Tennessee and says it had overgrown trees and bushes, but she says she didn’t deserve jail time. She says she fell behind because of personal family issues …

West Union, Ohio, People’s Defender, October 15, 2014: How to tell good trees from bad trees

Counting sheep to relax yourself isn’t nearly as effective as plowing your way through the American Nursery & Landscape Association (ANLA) American Standard for Nursery Stock, a 129-page book that explains in detail how woody plants should be priced and graded. As dull as this book may be, it’s full of charts and diagrams detailing exactly how to classify each type of woody plant and then grade it. Understanding these standards is essential for nurserymen who buy and sell trees sight-unseen …

Des Moines, Iowa, WHO-TV, October 15, 2014: Eldora area trees on the comeback

In 2009 a hailstorm came through Hardin County damaging windows, buildings, and trees. Property damage has been repaired for the most part, but the trees will take longer to fix. At Pine Lake State Park crews have had to cut down and remove 500 trees which were damaged by the storm. In 2012, a new effort was announced to save the park. “For the most part the park has fared well since Iowa Parks Foundation we put together a plan to bring Pine Lake back from the Hailstorm,” said Park Manager Don Primus. “During that time 7,000 trees various ages and heights were planted here …”

Boulder, Colorado, Daily Camera, October 16, 2014: Trees plant hope in Boulder County

If you’ve been wringing your hands over the onslaught of thugs attacking our trees and wondering how you can help, the time has arrived for you to take action. One simple act will go a long way to keeping our urban forest thriving: plant a tree. The warm weather is giving us a gentle end to the season, one that gardeners should take advantage of if they would like to put a young tree in the landscape. The soil still is easy to turn, and roots will find their way easily through the ground to establish saplings before the cold of winter …

urbanforestdetroit141015Lansing, Michigan, State Journal, October 14, 2014: Trees hauled to Detroit to jump-start urban forest

Trees are being trucked to Detroit as part of an effort to create an instant, forest-like setting in one neighborhood. The work aims to show what trees planted for the Hantz Woodlands project might look like a decade from now. In May, hundreds of people planted 15,000 saplings on land bordered by burned-out homes and abandoned apartments for the larger project …

Washington, D.C., Post, October 14, 2014: Champion trees have their fans in Montgomery County

Joe Howard and Carole Bergmann are tree huggers. Literally. Hang out with them long enough, you will be a tree hugger, too.“We always make them hug the trees,” Carole tells me as we stand under an Osage orange at Woodlawn Manor, a historic property in Silver Spring. She means people who take the Montgomery County Champion Tree tour the pair offer twice a year. Carole, a botanist with the county’s parks department, and Joe, a member of the county’s forestry board, oversee Montgomery’s efforts to find and recognize its largest examples of nearly 200 species of trees, from red alder to Japanese zelkova …

Vancouver, B.C., Sun, October 14, 2014: Researchers urge public to help find B.C.’s biggest trees

There’s a good chance that the province’s largest trees still haven’t been identified, and researchers are inviting the public to join the search. The B.C. Big Tree Registry has moved online with the goal of making information about big trees more accessible. “In just the past six months, the second-largest Douglas fir has been identified [near Port Renfrew] and the third-largest Sitka spruce was just found and measured on Haida Gwaii,” said Sally Aitken, professor of forests and conservation sciences at the University of British Columbia. “So there are big trees out there …”

io9.com, October 14, 2014: This experiment teaches us to fear trees

Here’s a terrifying experiment that will haunt your dreams, especially as winter comes on. You know those picturesque holiday cards that show pine trees in the snow? Those trees conceal literal death traps. The heavy branches around the tree shelter the trunk from snow, and make what’s known as a “tree well.” Duck under the branches of a pine tree and there’s a little hollow where the snow level drops. Because the branches have diverted the snow around the tree, the snow forms a gentle slope downwards. At the trunk of the tree, the ground can be totally bare …

Southern Maryland Online, October 14, 2014: Want clean rivers? Plant trees

Streams with tree-lined banks are two to eight times more capable of processing nutrients and organic matter than streams without a healthy fringe of trees. That’s what scientists at the Stroud Water Research Center in Pennsylvania tell us. It doesn’t matter if that organic matter comes from a sewage treatment plant or the back end of a cow. Why? Streams flowing through woods have a thriving aquatic ecosystem full of microbes and insects that consume nutrients and organic matter. Forested streamsides, at least in the temperate Eastern United States, are a necessary component of healthy riverine systems …

motorcycle141014Salt Lake City, Utah, KSTU-TV, October 12, 2014: Motorcyclist killed by tree cut down by boy scouts who were away from group

A man from Colorado was killed while driving a motorcycle on State Route 12 in Utah Saturday when he collided with a falling tree that was felled by a group of Boy Scouts, and on Monday more details relating to the crash emerged …

Toledo, Ohio, Blade, October 14, 2014: Commentary: Metroparks battle threat to oak trees

Oaks are prized everywhere they are present — in parks, forests, or front yards. Symbols of strength, beauty, and longevity, oaks are more than just trees. So when something threatens the oaks, it is serious business. Pockets of the fatal scourge oak wilt have shown up in Wildwood Preserve Metropark, where about 60 trees are infected with the fungal disease. To defend the rest of the Wildwood stock from oak wilt, the parks have gone on the offensive. An aggressive program is in motion to halt the spread …

Mumbai, India, Times, October 14, 2014: Money grows on trees with great walnuts of China

Grinning with pride, a Chinese farmer held out two precious walnuts — globes so precisely symmetrical that consumers in search of hand massages value them more highly than gold. “Prices have skyrocketed,” said Li Zhanhua, standing in the shade of the leafy green walnut trees which have made him a small fortune. “Years ago, we could never have imagined this.” Rolling a pair of walnuts between palm and fingers — believed to improve circulation — has been a Chinese pastime for centuries …

Ann Arbor, Michigan, mLive.com, October 13, 2014: U-M sets date for $400,000 transplantation of 200-year-old burr oak tree

The costly, months-long process of uprooting a 65-foot-tall, 250-year-old tree will culminate later this month as the University of Michigan has set a move day for the history burr oak at the Ross School of Business. Officials announced today that the relocation of the tree is scheduled to take place Saturday, Oct. 25, weather permitting. A crew began the $400,000 process of excavating and moving the legacy burr oak tree in July in order to make way for the school’s $135 million, donor-funded expansion at the school. The cost was factored into the overall cost of the project before it was approved by the Board of Regents …

birch141013Anchorage, Alaska, Alaska Dispatch News, October 11, 2014: Summer trees, invasive insects take toll on interior Alaska birch trees

Interior Alaska’s hot and dry summer of 2013, coupled with an invasion of insect pests that proliferated in number this year, has taken a steep toll on the region’s birch trees, experts say. Had it not been for the heavy rains that swept in during the second half of this summer, a large number of the trees might have been doomed, said Glenn Juday, a professor of forest ecology at the University of Alaska Fairbanks …

Ringgold, Georgia, Times-Free Press, October 13, 2014: Ringgold mayor asks council to protect his old trees

After seeing the Japanese ginkgo tree in Toyko 33 years ago, Joe Barger planted one in the center of town. It was later joined by a second one. The beautiful trees are now 18 inches in diameter, but they are slated to be destroyed for downtown renovation

Salt Lake City, Utah, Tribune, October 11, 2014: Trees ‘retrofit our cities for happiness,’ forester says

Trees play a special, though somewhat contradictory role in the human psyche. Among the first thing Mormon pioneers did upon reaching the treeless Salt Lake Valley in 1847 was plant crops, but also the trees that became Utah’s first urban forest. “This is an impressive story of how a forest city can be developed. It shows how the relationship between forest and city doesn’t have to be a negative one,” and Cecil Konijnendijk, a Dutch forester addressing an international research conference Saturday at the Salt Palace convention center …

Buffalo, New York, WGRZ-TV, October 12, 2014: Many trees did survive October surprise 8 years ago

It was eight years ago that Western New York came under the assault of the surprise October storm which dumped inches of wet, heavy snow and took down numerous trees and power lines across the area. It took days to restore the power, but the trees really suffered the most damage. But, as Paul Maurer of the Re-Tree Western New York program points out, some did survive the onslaught and have since recovered …

New York City, Wall Street Journal, October 11, 2014: Ancient trees: A new book from photographer Beth Moon showcases trees that are up to 4,800 years old

The biggest challenge in photographing ancient trees can be finding them. When the California-based photographer Beth Moon set out to capture some of the Earth’s oldest trees, she found herself hiking up steep mountains, scrambling over rocks and walking hours down roads where cars couldn’t go. She showcases her findings from the past 14 years in a new book, “Ancient Trees …”

graffiti141010Kalamazoo, Michigan, Western Herald, October 9, 2014: Vandals strike Western Michigan University construction site to draw attention to trees

Sometime in the night of Oct. 9 or early morning hours of Oct. 10, vandals broke into the construction site of East Campus Hall and wrote “I miss the Trees” in a blocky, graffiti style text on the large concrete retaining wall. “I think whoever wrote this was missing what is being accomplished,” Cheryl Roland, Executive Director of University Relations said. Roland stated that before the renovations began arborists and landscape specialists were brought in to analyze the terrain and make recommendations based on the historical landscaping and original trees that were on site. Roland stated that they found that many of the trees and bushes on the hill did not belong there and had grown up over time …

Public Radio International, October 9, 2014: Here’s how cutting down West African trees made us vulnerable to Ebola

Scientists say that more than six out of 10 infectious diseases in humans were transmitted from animals. And that transmission, or “disease spillover,” gets worse the more humans alter the environment and disturb animal populations — like, say, when they cut down trees that house Ebola-carrying fruit bats. “The situation in West Africa is that there has been intensive deforestation,” says Jonathan Epstein, a veterinarian and epidemiologist with EcoHealth Alliance, a New York-based conservation group “With deforestation, there’s more exposure between people and wildlife, more opportunity for contact …”

Tecumseh, Oklahoma, Countrywide News & Sun, October 9, 2014: Memorial trees cut down in oversight; Apologetic school official ‘Hates it happened’

Within days of the horrific Oklahoma City Murrah Building bombing on April 19, 1995, students at Tecumseh Middle School were out on their school’s lawn trying to do something positive in the midst of tragedy and grief. They planted young trees, mostly redbuds, along Hwy. 9 and the creek that flows through the school property. Each year, as the unique pinkish-purple blooms appear, many Tecumsehans remember why the trees are there. But unfortunately, not everyone remembered. Early this week, outraged former students contacted metro television stations after at least two of the memorial trees were cut down with no notice and no discussion. A chagrined Superintendent Tom Wilsie said Tuesday that he was “not aware they were planted for the bombing … We wouldn’t have done it if we’d known.” It has been almost two decades since the trees were planted, and Wilsie was superintendent of another school district at the time. There was another principal at the middle school. Teachers have retired. “I hate that it happened,” Wilsie said. “I take responsibility … We were trying to work with the new electronic sign. A couple of the trees were too large, and some smaller ones weren’t in good shape due to the drought …”

Corpus Christi, Texas, Caller, October 9, 2014: Invasive trees deceptively beautiful

Fall is tree planting season. Unfortunately, several trees that have spectacular color are some of the worst invasive species. Don’t let their good looks deceive you. These trees need to be avoided and removed and replaced with a noninvasive species if planted in your yard. The five biggest threats in the Coastal Bend include golden rain tree, Chinese tallow, Chinaberry, Brazilian pepper tree and salt cedar …

Miami, Florida, Herald, October 9, 2014: Doral residents blast Trump over wall of trees

More than 250 angry residents flooded Doral City Hall Wednesday night to complain about billionaire Donald Trump’s decision to block their golf views with a wall of leafy trees. The new areca palms have been stumping more than 2,500 homeowners since the beginning of Trump’s beautification project early last year. Former views of green, curvy hills or glassy waters are now blocked by trees that grow dozens of feet high …

Chicago, Illinois, University of Chicago Maroon, October 9, 2014: Midway trees ambushed by ash borer beetles

The Midway Plaisance retains a quiet air of significance—as the longest stretch of green space within the University, it serves as a community space for students. While the grass on the Midway is here to stay, the emerald ash borer beetle is ravaging the Plaisance perimeter and killing off the ash trees lining the lawn …

A face only a mother could love ...

A face only a mother could love …

Honolulu, Hawaii, October 8, 2014: Incinerators to burn beetle-infested trees You could call it a beetle burner. An incinerator is the latest weapon in the war on the invasive pest. Millions of federal and state dollars are being spent to eradicate the coconut rhinoceros beetle. A low-emission air curtain incinerator is one of five the navy will be using to burn the infested trees. 120 palms that have been chopped down at Pearl Harbor …

Lakeland, Florida, Ledger, October 8, 2014: New citrus trees resist greening The U.S. Department of Agriculture has released five new citrus varieties that appear to tolerate the fatal bacterial disease citrus greening better than existing varieties. All five new releases are rootstocks, or citrus varieties bred primarily for specific soil conditions. The canopy of a commercial citrus tree comes from other varieties of oranges, grapefruit or tangerines grafted onto the rootstock just above ground level. However, all five new rootstocks show superior tolerance to greening only on flatwood soils in the Indian River and Gulf Coast growing regions along the Florida coasts, according to USDA documents. Results of field tests showed no advantages over existing rootstocks grown in the sandier soils along the Central Florida Ridge …

Davenport, Iowa, Quad City Times, October 8, 2014: MidAmerican pruning of oak trees raises questions about timing Although there are conflicting recommendations as to when the best time to prune oak trees is, a plant pathologist at Iowa State University says it probably is OK to do so anytime after mid-September. Timing is an issue because pruning leaves open wounds that, in oak trees, attract a sap-feeding beetle that can spread the often-deadly oak wilt fungus. Iowa State University Extension and Outreach recommends that, to be completely safe, one should prune only in December, January and February. That is why Moline resident Kurt Meyer was upset Tuesday to find a contractor for MidAmerican Energy Co. pruning oaks on his property. Meyer also is an owner of Meyer Landscape & Design …

Accra, Ghana, October 8, 2014: Ghana to start electronic tagging of trees to check illegal logging Ghana is to begin the electronic tagging of trees in its forests as part of measures to check illegal logging. The Minister of Lands and Natural Resources, Nii Osah Mills, who disclosed this to Radio Ghana, said the project involves satellite mapping that works by scanning bar codes stamped unto trees creating an electronic paper trail that helps to track trees whether in the forests or out for exports …

canker141007Associated Press, October 7, 2014: Jury: Department of Ag must pay Orange County homeowners $20 million for lost citrus trees Florida’s agriculture department must pay Orlando area homeowners more than $20 million in compensation for cutting down healthy citrus trees during an effort to eradicate citrus canker. An Orange County jury on Monday determined that about 60,000 citrus trees cut down were worth almost $345 each …

San Diego, California, KNSD(TV), October 7, 2014: New Trees to Replace Beloved Chopped Ones in Coronado New green will grow from the Coronado site where four sugar gum eucalyptus trees are being uprooted, much to the chagrin of residents who call the trees “old friends.” The Coronado City Council voted Tuesday to replace the trees along E Avenue with lemon-scented or sugar gum eucalyptuses …

Time Magazine, October 8, 2014: Garlic Is Being Used in the U.K. to Cure Trees of Deadly Diseases It might not be great for vampires, but it turns out garlic can be very good for trees. Trees in the U.K. are being injected with a garlic extract to cure them of deadly diseases, the BBC reports. The garlic bulbs contain the compound allicin, which can fight bacterial and fungal infections …

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Case of the Day – Thursday, October 30, 2014

THE LOG WAS TOO BIG

The first rule of plaintiffs advocacy ... look for the deep pockets.

The first rule of plaintiffs advocacy … look for the deep pockets.

Mr. Spano was a municipal employee, detailed to haul away debris left by a tree trimming company that had been hired by the village government. A fellow employee using a village front-end loader dropped a log on Spano, injuring him.

Quick, legal scholars – whose fault was it Spano was hurt? Not the village worker whose ham-handed running of the loader had caused the log to fall on Spano.  Not the village manager, who had let an unqualified worker run some dangerous heavy equipment.  No, the real culpable party, according to Spano’s lawyers, was the tree-trimming company.  Of course!  It cut the log too large, so large that it was too hard for the front-end loader to handle.

The back story here, of course, is that a patchwork of well-intended New York laws (and may God save us from well-intended laws) made it impossible for Spano to  successfully sue his employer or, for that matter, his fellow workers.  It wasn’t that Northwood Tree Service was negligent. Rather, it was that Northwood was the sole party at the scene that wasn’t immune to a lawsuit. It wasn’t the deepest pocket, it was the only pocket.

Of course, Spano also could have sued the front-end loader manufacturer for making a machine that couldn’t safely pick up a big log, or the chainsaw manufacturer for negligently making chainsaws that cut big pieces instead of small pieces, or even Starbucks for putting too much caffeine in the front-end loader operator’s latte. With lawyers this creative, the list could be endless.

lawyer-cartoon140402The court thought so, too.  It held that Northwood owed no duty to Mr. Spano simply because it had a contract with the Town.  Even if it did, it was hired to cut down a tree, and that’s what it did.  Spano’s attorney could see where the case was heading and tried to amend his way out of it, but the Court said where the complaint was palpably without merit and the amendment not sufficient to fix the problem, pulling the plug on the whole case was the only humane thing to do.

Spano v. Northwood Tree Care, Inc., 852 N.Y.S.2d 289, 48 A.D.3d 667 (N.Y.A.D. 2 Dept., 2008). Spano was injured while performing tree debris removal for his employer, the Town of Mount Pleasant, which contracted with Northwood Tree Care to cut down a tree. The Town provided its own employees to haul the logs away. When one of Spano’s coworkers attempted to pick up a particular log with a front-end loader, the log — which was too big for the bucket — fell on Spano’s ankle.

And just how big was the log?

And just how big was the log?

Spano said Northwood Tree Care’s employees negligently created unreasonably large and unmanageable logs for Town employees to haul away. He sued Northwood Tree Care, seeking to recover damages for injuries suffered as a result of the accident. The trial court granted summary judgment for Northwood Tree Care, and Spano appealed.

Held: The suit was properly dismissed. Northwood Tree Care established that it did not owe a duty of care to Spano by virtue of its contract with the Town, and in any event, the Town properly performed its obligations. The trial court also correctly denied Spano’s cross motion for leave to amend the complaint. While leave to amend a complaint shall be freely given under the rules, the Court said leave may be denied where, as here, the proposed amendment was palpably insufficient or patently devoid of merit.

 

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Case of the Day – Wednesday, October 29, 2014

THE WORTH OF A HUMAN LIFE

CBS News reported recently on the continuing controversy over General Motors’ failure to recall cars with ignition switch effects. The news story included the obligatory appearance from the mother of a teenager killed in a Chevy Cobalt. Although GM maintains that no confirmed deaths are linked to the defect, the mother alleges that GM’s desire to save money by not repairing the defect resulted in her daughter’s death. She asked the reporter, “How can you place a value on human life?”

Is your PBJ sandwich worth the risk to some peanut-adverse kid somewhere?   C'mon ... let's be socially responsible.

Is your PBJ sandwich worth the risk to some peanut-adverse kid somewhere? C’mon … let’s be socially responsible.

Today’s case seems rather a rather prosaic springboard into that debate, but the hard fact is that the dollar value on human life is set every day. People are always making demands on government or industry that are objectively unreasonable, but that they believe with all their hearts are absolutely necessary because of our own experiences.

It’s the old “cost of a human life” argument, as in “how can you place a price tag on a human life?” We do, of course, all the time. If we didn’t balance lives against costs to society, we’d have no cars, airplanes, or even peanut butter. Think of the lives that would be saved! Without cars, over 34,000 lives would be saved annually in the U.S. alone. Hundreds of people a year die in aviation-related mishaps. And how about peanut butter? Is your guilty pleasure of peanut butter-banana sandwiches before bedtime worth the horrendous risk to countless children with peanut allergies? Tough policy questions, to be sure …

In today’s case, Mrs. Lacasto didn’t lose her life, but she was a mite inconvenienced (and a bit injured) in her run-in with gravity in beautiful Santa Barbara, California. A piece of city sidewalk had been pushed up by the roots of a ficus tree, also a piece of city property. Mrs. Lacasto tripped on the 1-inch rise and injured herself.

In the inevitable lawsuit — this was California, after all — she argued that the City’s tree maintenance program was deficient, and if it hadn’t been so defective she wouldn’t have fallen. The deficient maintenance program meant that the City had “constructive notice” of the damaged sidewalk, and it thus owed her a lot of money for her fall. The defect? Why, she argued, Santa Barbara only inspected trees once every five years! Horrors! If it had inspected more often, she complained, the defective sidewalk caused by the ficus tree would have been discovered.

The numbers tell the story: the City employed four tree trimmers, who had responsibility for maintaining some 32,000 city trees along some 500 miles of sidewalks. The trimmers trimmed 5,500 trees a year, and tried to get to each tree in town once every five years. The Court didn’t use a calculator, but it reckoned that the cost of inspecting sidewalks and trees every two years, as Mrs. Lacasto thought would be prudent, would have been “an onerous burden” on the City.

What’s more, the Court wisely observed, even if the ficus tree had been inspected every two years, it was sheer speculation that sidewalk rise would have been found to be a dangerous condition two years before appellant’s fall.

Of course, the City could just replace the 500 miles of concrete sidewalk with rubber. The taxpayers clearly wouldn’t mind shouldering the cost: after all, who can put a price on Mrs. Lacasto’s shins?

cracked_sidewalk140401Lacasto v. City of Santa Barbara, Case No. 1188148, 2007 WL 3203036 (Cal.App., Nov. 1, 2007). On a sunny morning in September 2005, appellant tripped on a rise in a sidewalk maintained by City. The one and a quarter-inch rise occurred at the expansion joint between two adjoining concrete panels. One foot to the south of the maximum rise, the elevation diminished to one inch. Appellant tripped at a point between the one and a quarter-inch rise and the one-inch rise. Her toe caught on the sidewalk rise and she fell, breaking her left hip.

A search of the records of the City Division of Public Works showed that, before Lacasto’s trip and fall, the division had never received any complaints or information regarding the condition of the area of sidewalk in question. A search of the records of the City Risk Management Division also failed to disclose any reports, but the City’s Street Maintenance Manager said the sidewalk defect was a hazard and should have been repaired. Near the rise in the sidewalk, a ficus tree had been planted, and a city expert opined that the rise was caused by the tree root lifting the sidewalk. The lifting had also caused a crack in the sidewalk that ran perpendicular to the rise. Mrs. Lacasto’s expert said that ‘[r]aising of hardscape does not happen overnight but over a period of time …” The City admitted it “would have taken several years” for the tree root to grow to the point where it would cause a one and a quarter-inch rise in the sidewalk.

The only sidewalk inspection the City had was to charge all City employees to be on the lookout for hazards. No City employees were responsible for inspecting sidewalks for defects. The only way the City would know about a sidewalk hazard would for a citizen or City employee reporting it to the City. The City has over 500 miles of sidewalk area. About five years before Mrs. Lacasto’s fall, City tree trimmers performed maintenance on the ficus tree in question. The City employed four tree trimmers to maintain over 5,500 of the 32,000 City trees. The City’s current system for pruning trees was based on elapsed time, with every City street and park tree receive some type of maintenance over five years. Lacasto’s expert said the City’s trees should have been inspected at least every two years. The trial court found for the City on summary judgment. Mrs. Lacasto appealed.

Held: Mrs. Lacasto’s case was thrown out. She had based her complaint on the California Tort Claims Act, that provided that a public entity is liable for injury caused by a dangerous condition on its property if the entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. A public entity had constructive notice of a dangerous condition only if the plaintiff established that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

scalelife140401Mrs. Lacasto conceded that there was no evidence that the City had actual notice of the defective condition. Therefore, the City’s liability had to be predicated on constructive notice, which would be found to exist only that have existed for such a length of time and are of such a conspicuous character that a reasonable inspection would have disclosed them. In order to charge the city with constructive notice, Mrs. Lacasto had to show some element of notoriety to put the city authorities on notice as to the existence of the defect or condition and its dangerous character. An inch and a half-inch rise in the sidewalk, the Court said, simply wasn’t sufficiently conspicuous to put the city on constructive notice of the defect.

In view of the City’s more than five hundred miles of sidewalks and approximately 32,000 street and park trees, the Court said it would not have been reasonably practicable to impose such an onerous burden upon the City. Even if the ficus tree had been inspected every two years, as recommended by Mrs. Lacasto’s expert, the Court said it would be speculative whether the sidewalk rise constituted a dangerous condition two years before appellant’s fall.

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Case of the Day – Tuesday, October 28, 2014

DIVING INTO THE SHALLOW END

diving140330There’s nothing funny about it: there are about 800 spinal cord injuries a year from swimmers — mostly young people — diving into shallow water. The idea that you ought to check the depth of the water before diving in is a pellucid as Bahamian waters. Yet diving accident victims often litigate the issue anyway. Today’s case is an interesting application of the “open and obvious” doctrine.

The Koops, who were the property owners, weren’t recreational users, because their property was open only to invited guests, not the public. So they had no immunity under Ohio’s recreational user statute. As invitees, their guests were owed ordinary care by the Koops – which included a warning of any dangers that weren’t open and obvious. When one guest ran across the dock and dove into 18-inch water — rendering himself a quadriplegic — he sued the Koops for negligence. The Court ruled that the danger was open and obvious.

Not to be deterred, Galinari argued he had been distracted by “attendant circumstances.” Not a bad argument: “attendant circumstances” can defeat the “open and obvious” doctrine. But such circumstances must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of injured party. Attendant circumstances in the past have included such circumstances as time of day, lack of familiarity with the route taken, lighting conditions, and accumulation of ice. But here, the best the plaintiff could muster was that the water was inviting, other people were swimming in the lake, and there were no posted warnings. Not enough, the Court ruled, to excuse the young man from the simple precaution of checking water depth first.

Not all shallow water is so well labeled ...

Not all shallow water is so well labeled …

Galinari v. Koop, Slip Copy, 2007 WL 2482673 (Ct.App. Ohio, Sept. 4, 2007). In a tragic July 4 accident, 21-year old Nick Galinari dove off a dock into a shallow lake owned by Koop, severely injuring his spinal cord and rendering him a quadriplegic. Galinari was invited by his girlfriend, Kristin Bounds, to attend a family party hosted by Koops on their property.

The property included a small, man-made lake on which guests are permitted to swim, canoe, fish, and generally use for recreational purposes. On the shore of the lake, there was a ramp connected to a floating dock, all of which extends about 28 feet into the water. The water near the shoreline is quite shallow, fluctuating between approximately ankle-deep and knee-deep. Galinari and his girlfriend pitched a tent and then mingled with guests at the party for about 45 minutes. Galinari, Kristin, and Kristin’s sister then decided to go swimming. Kristin went into the lake while Galinari changed clothes. He then headed down the stairs to the ramp and floating dock to enter the water. He saw Kristin in the water near the end of the dock, but could not recall later if she was standing or swimming. Without stopping to check the depth of the water at the end of the dock, Galinari jogged to the end of the dock and attempted a “shallow dive” to the right of Kristin. The water where he dove was about 18 inches deep. He struck the bottom of the lake, severely injuring his spinal cord. There was no sign on the property, nor did anyone give any verbal warnings, about diving off of the dock due to the depth of the water.

Galinari sued the property owners for negligence for failure to warn him about a dangerous condition on their property. The owners moved for summary judgment, arguing that they were under no duty to warn Galinari of something as open and obvious as the shallow lake. The trial court granted the Koops summary judgment, agreeing that the shallow water was an open and obvious condition and that theytherefore had no duty to warn Galinari about a danger which he could have discovered through ordinary inspection. Galinari appealed.

Held: Galinari lost. he contended that despite the known dangers involved in diving, the question of the Koops’ negligence in failing to warn him of the shallow water required jury evaluation. He argued that he was a social guest on Koops’ property and that they breached a duty of care in failing to warn him of the dangers of diving off of the dock into their lake.

No-DivingThe Court disagreed, holding that in order to establish a cause of action for negligence, Galinari had to first show the existence of a duty. A social host owes his invited guest the duty to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises. This includes warning the guest of any condition of the premises known to the host and which a person of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover the dangerous condition.

However, a property owner owes no duty to warn invitees of dangers which are open and obvious. The rationale for this “open and obvious” doctrine is that the nature of the hazard serves as its own warning, and invitees then have a corresponding duty to take reasonable precautions to avoid dangers that are patent or obvious. In determining whether a condition is open and obvious, the determinative question is whether the condition is discoverable or discernible by one who is acting with ordinary care under the circumstances. This determination is an objective one: a dangerous condition does not actually have to be observed by the claimant to be an open-and-obvious condition under the law.

Here, the Court held, it is clear that the depth of water at the end of the Koops’ dock was a discoverable condition. Kristin was standing in the water near the end of the dock when Galinari dove in. The water on that day was at or below her knees. The lake bottom was clearly visible from the floating dock where Galinari dove. Galinari presented no evidence justifying any reason to believe that the water may have been deeper where he dove. He hadn’t been told he could dive from the dock and that he hadn’t seen anyone dive from that dock before him. Kristin was the only person he recalled seeing in the water as he jogged forward along the ramp and dove off of the dock. Based on this evidence, the Court said, the water was a discoverable condition by someone exercising reasonable care under the circumstances. Sadly, the Court said, if Galinari had merely looked at the water at the end of the dock, or stepped into the water to determine its depth, he would have easily determined that the lake was too shallow for diving. However, he took no precautionary measures prior to diving into the lake.

But Galinari argued that despite the open and obvious danger created by the shallow water, the doctrine of attendant circumstances precluded summary judgment. Attendant circumstances are an exception to the open and obvious doctrine and refer to distractions that contribute to an injury by diverting the attention of the injured party and reduce the degree of care an ordinary person would exercise at the time. An attendant circumstance must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of injured party. The phrase refers to all facts relating to the event, including such circumstances as time of day, lack of familiarity with the route taken, lighting conditions, and accumulation of ice. Galinari argued the “inviting nature of the water,” “other water activity” and the “lack of warnings” were circumstances contributing to his belief that the water was safe for diving.

The Court noted that while the nature of the cool water may have been inviting on a hot Fourth of July, it could not consider that to be an attendant circumstance distracting appellant from the ordinary use of care. Certainly, the Court said, inviting water did not prevent appellant from being able to discover its depth. Nor did the existence of other docks and slides, the length of the dock from which he dove, and the presence of people and canoes in the water create a visual appearance that diving from the end of the dock was safe. It was clear from this testimony that the “attendant circumstances” which Galinari asserted were not distracting him from exercising due care because he did not even notice them. These circumstances in no way prevented him from exercising the ordinary amount of care or led him to believe that the water was safe for diving.

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Case of the Day – Monday, October 27, 2014

ADVERSE POSSESSION BY COMMITTEE

Weyerhaeuser Co. bought a big old farm in southeastern Oklahoma for timber operations back in the 1980s. No sooner had it harvested its last tree but next-door neighbor Brantley started taking advantage of the absentee owner.

Not so fast, Mr. Brantley ... it's not quite that easy.

Not so fast, Mr. Brantley … it’s not quite as easy as all that.

Over a 20-year period, Brantley claimed, he had grazed his cattle on the place, even running off hunters authorized to hunt there and denying access to Oklahoma Wildlife officers who had a deal with Weyerhaeuser to open the place as a recreation area. But the farm was a big place and there were a lot of players.  Brantley’s father grazed his cattle on the place, too, for awhile, but unlike his boy, Père Brantley had a lease from Weyerhaeuser. Brantley’s brother — cut from the same cloth as Brantley himself — grazed his cattle on the place and claimed a piece of it, too. Even Oklahoma State University had a lease from Weyerhaeuser to use part of the farm as a research facility.

Finally, the time came that Weyerhaeuser was ready to resume timber and gravel operations.  it found Brantley to be underfoot, so  the company sued him in trespass to remove him from the place. Brantley claimed he owned the place under the doctrine of adverse possession.

No, the Court said, he did not. Adverse possession requires, among other things, that the possession of the land be exclusive. Brantley’s possession of the place was more communal, the Court observed, with other actors coming and going all the time. You just can’t have a committee of people commonly possessing a place adversely. Where two people have entered on land, the one who has the better title is the one in possession. And in this case, that was the guy who occupied the land as lessee.  Brantley’s Dad, who had leased the land from Weyerhauser, was the one in possession. Not his piratical son.

Weyerhaeuser Co. v. Brantley, 510 F.3d 1256 (Ct. App. 10th Cir., 2007). Sherrill Farm is located in a scenic portion of southeastern Oklahoma, along the Mountain Fork River and near the Arkansas border. Weyerhaeuser had owned the farm since the early 1980s at least, the entire period of the dispute.  Young Carl Brantley claimed he had began grazing livestock on Sherrill Farm as early as 1980-81, although he had never had permission to use it. Since then, Brantley said he had built corrals, feed troughs, and fences on the property. He also removed brush, applied fertilizer, harvested wheat, and maintained roads. Although he installed a locked gate on the farm in the early 1980s, he never paid property taxes on the land. Brantley claimed his adverse possession of Sherrill Farm began in the winter of 1987-88, after Weyerhaeuser last harvested a stand of trees on the property.

During the years Weyerhaeuser used the area for its timber operations, it permitted others to use on Sherrill Farm. Brantley’s father had a license agreement to graze on Sherrill Farm beginning in 1983 until 1992. In 1987, Weyerhaeuser leased parts of Sherrill Farm to Oklahoma State University. OSU planted two research sites in the southern part of Sherrill Farm but made no use of the northern half. OSU complained to Weyerhaeuser about damage to its research plantations from livestock and built a fence to protect the plantations, but it did not seek to have Brantley’s cattle removed from Sherrill Farm entirely. OSU asked Brantley to cease grazing in the leased area, but Brantley was uncooperative. OSU also maintained its own locked gate to Sherrill Farm. Because of this alternative access, Brantley’s gate never prevented OSU or Weyerhaeuser from accessing Sherrill Farm.

In 1998, Weyerhaeuser and the Oklahoma Department of Wildlife Conservation included Sherrill Farm in the Three Rivers Wildlife Management Area. According to the agreement, the general public could access Sherrill Farm for hunting, fishing, and other recreation. Brantley’s locked gate prevented a state wildlife officer from accessing Sherrill Farm during some visits. Brantley testified he saw hunters on the property during this time and asked them to leave. In 2003, Weyerhaeuser granted an easement to another landowner to access her property across Sherrill Farm, but Brantley refused to allow access to the easement through his gate.

You can't adversely possess by committee ...

You can’t adversely possess by committee …

Oklahoma State’s lease terminated in 2004. Weyerhaeuser had to resume timber production and begin gravel mining, but Weyerhaeuser said Brantley’s presence delayed these activities, resulting in monetary damages. In 2006, Weyerhaeuser sued Brantley for trespass.

Brantley asserted adverse possession or prescriptive easement as affirmative defenses. After a trial, the district court entered judgment in favor of Weyerhaeuser. Both the parties appealed. Brantley argued he possessed the land adversely, and Weyerhaeuser complained it should have been awarded $200,000 in lost profits.

Held: Weyerhaeuser’s judgment was upheld, but not the lost profits. Under Oklahoma law, to establish adverse possession, Brantley had to show that his possession was hostile; under a claim of right or color of title; actual; open; notorious; exclusive; and continuous for the full 15-year statutory period.

Weyerhauser owns or controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum's rush.

Weyerhauser controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum’s rush.

The Court found that Brantley did not have exclusive use of property for 15 years – that length of time being the Oklahoma standard (your home state’s period may vary), and thus failed to establish adverse possession of the land. During the 15-year period, Brantley’s father held a grazing lease on property, Oklahoma State conducted activities on the property, Weyerhaeuser conducted activities such as road maintenance and gravel sampling on property, the land was part of a wildlife area managed by the State, it was open to the public, horses not belonging to Brantley grazed on the property and Brantley’s own brother also claimed grazing rights to property by adverse possession. To show exclusive possession, Brantley had to show an exclusive dominion over the land and an appropriation of it to his own use and benefit. Two persons cannot hold one piece of property adversely to each other at the same time, the Court said, and where two persons have entered upon land, the one who has the better title will be deemed to be in possession.

However, Brantley did not have to pay the $200,000 special damages for trespass. A forest manager’s testimony that, but for the presence of Brantley’s cattle, the property owner would have netted $200,000 in profits from gravel mining — based on 150,000 tons during first year and 300,000 tons during second year — was held by the Court to be too uncertain and speculative to support damages award for lost profits. But the award of $10,000 against Brantley based on Weyerhaeuser’s lost timber sales, was reasonable: Weyerhaeuser had previously used the property for timber harvesting, and the property was currently suitable for planting and harvesting. Weyerhaeuser’s witness was a certified forester who had submitted an affidavit identifying methodology for his damage calculations.


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Case of the Day – Friday, October 24, 2014

CRY ME A RIVER

lawjoke140326Law students learn in first-year civil procedure that it’s entirely proper to file utterly inconsistent pleadings. For example, if a complaint is that the defendant borrowed plaintiff’s bucket and broke it, the defendant can answer that (1) he never borrowed it; (2) when he returned it, it wasn’t broken; and (3) it was broken when he borrowed it. And lawyers wonder why there are so many attorney all jokes …

But there are limits, and complaints in civil actions should not be completely mindless in their allegations.  In today’s case, landowner Fischer changed the slope of his land, rebuilt a driveway and installed a retaining wall. His neighbor Christiana complained that the effect of his neighbor’s construction project was to send unwanted drainage onto his property.  Fischer was unimpressed.  “Cry me a river,” you can imagine him saying.  Christiana’s lawyer – who perhaps was charging his client by the word – obliged, tearfully filing a four-count complaint claiming negligence, recklessness, nuisance and trespass.

crymeariver140326Fischer filed a motion to strike the recklessness and trespass counts. He argued that the complaint — even assuming everything Christiana has alleged was true — simply didn’t state a claim.  Christiana depended on pretty much the same facts for recklessness as he did for negligence, except in the recklessness count, he charged that on top of everything else, Fischer hadn’t gotten permits from the town for the project.  Well, maybe that was a little sloppy, at least as far as paperwork goes, but the Court held that Fischer’s lack of a few permits didn’t constitute recklessness towards Christiana.  The recklessness count was bounced.

Fischer argued that the trespass count should be dismissed, because there was no allegation that he intended for the water to flow onto Christiana’s land.  The Court disagreed with Fisher’s novel interpretation of trespass, holding that  Fischer didn’t have to intend that the water trespass on Fischer’s land, just intend the act  – that is, the diversion of the water – that resulted in the trespass.  The distinction is subtle but crucial.

Thus, the trespass count remained, an important holding: the Court said in essence that without ever stepping foot on Christiana’s property, Fischer could have trespassed, just by being negligent in the way he altered water flow.

Christiana was upset because Fischer's retaining wall left his place a little soggier than it had been before ,,,

Christiana was upset because Fischer’s retaining wall left his place a little soggier than it had been before …

Christiana v. Fischer, Not Reported in A.2d, 2007 WL 3173949 (Conn. Super.Ct., Oct. 17, 2007). Christiana sued Fischer after Fischer altered the slope of his land and built a retaining wall. Christiana sued for negligence, recklessness, nuisance, and trespass. Fischer moved to strike the recklessness and trespass counts as insufficient to state a cause of action.

Held: The court split its holding, striking the count for recklessness but not the trespass count. Recklessness is a state of consciousness with reference to the consequences of someone’s acts, more than negligence, more than gross negligence. While the actor’s state of mind amounting to recklessness may be inferred from conduct, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

In Count 2, Christiana repeated his allegations of negligence and additionally alleged that Fischer rebuilt a driveway without a building permit and in violation of the town’s zoning regulations. Christiana, however, made no allegation that Fischer was made aware prior to completion of the alteration and construction work of any problems that he was causing that would drain water onto Christiana’s property. The Court found that the allegations failed to support a cause of action for recklessness.

As for the trespass count, Fischer argued that Christiana failed to allege any intentional conduct essential to state a cause of action for trespass, pointing out that there was no allegation that the defendants intended to direct water or other debris onto the plaintiffs’ property or that they acted with knowledge to a substantial certainty that the water or other debris would enter the plaintiffs’ property. But the Court held that to make out a trespass, a plaintiff had to have ownership or possessory interest in the land; there had to be an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; the act had to be done intentionally; and the act had to cause direct injury.

trespass140326However, a trespass need not be inflicted directly on another’s land, but may be committed by discharging water at a point beyond the boundary of such land. In determining “intent” for trespass purposes, the issue was not whether Fischer had intended the water to enter the Christiana’s land, but whether he had intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect that subterranean and other conditions would cause the flow.

Christiana alleged in his complaint that he had notified Fischer that he was having severe drainage problems as a result of the land alteration and construction on several occasions, and that Fischer failed to take corrective action. The Court found that Christiana’s allegations were sufficient to establish a cause of action for trespass.

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