Case of the Day – Wednesday, April 23, 2014

YEAH, LITERALLY

 

literally140423One of the many badges that marks us as curmudgeons, according to a recent book, is our preoccupation with proper language. It irritates us no end when people say “irregardless” when they mean “regardless,” say “affect” when they mean “effect,” or use “like” every third word or so.

But what metaphorically drives us batty is the casual and improper use of the word “literally.” The word means “actually” or “without exaggeration.” Believing as we do that the widespread devaluation of like every corner of the English language is like literally send us to hell in a handcart, we were surprised to see that today’s case ­– well over 50 years old – featured a witness describing “literally thousands of bees inside the trunk” of the decayed tree.

We were fascinating that, with such a swarm pursuing him, the witness took the time to count the bees, at least until he passed 2,000.   That took nerves of steel. Literally.

Beyond our disquiet over the witness’s imprecise and flawed language, we were interested in the application of both Hay v. Norwalk Lodge No. 730, B. P. O. E., 92 Ohio App. 14, 109 N.E.2d 481 (Sup.Ct.Ohio 1951) and Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231 (3rd Cir. 1951). While those decisions, which we’ve discussed in recent posts, related to injury to passing motorists, the court here couldn’t see any practical difference between the landowner’s duty to a motorist and to a parked car.   Furthermore, it found that the tree was so obviously dead and dangerous that the landowner was chargeable with knowing about its condition, although he’d only owned the property for a few weeks.

How many bees?  Literally thousands ...

How many bees? Literally thousands …

The court said that a few weeks was not so legally insufficient a period time for him to have gotten over and inspected the place that the factfinder was wrong for finding him liable.

The trend here is clear: the law was moving toward holding that a property owner had an affirmative duty to inspect the land. Actual or constructive knowledge wasn’t enough. The absentee owner should have done a drive-by, the court decided by implication. And thus, the evolution of a requirement that an owner affirmatively care for his or her property continued.

Turner v. Ridley, 144 A.2d 269 (Ct.App.D.C. 1958). Turner owned a house facing a street on which automobiles were regularly parked. The small front yard featured a single large tree. On a fall evening, Ridley’s friend parked Ridley’s car at the curb in from of Turner’s house. Early the next morning, with no inclement weather to blame for the event, the tree toppled and fell across the sidewalk, striking Ridley’s car.

At the time the tree fell, according to the man who had parked Ridley’s car – a man named Reid ­–the tree ‘was rotten and looked like it was dead and had very few leaves on it.’ and on the night before it fell he had remarked to a friend ‘that tree looks like it is going to fall some day.’ The tree in falling broke off even with the ground, and then it was observed that the tree was hollow and badly decayed with ‘literally thousands of bees inside the trunk.’

Turner testified he had purchased the property through an agent at a foreclosure sale a month before the mishap, that the property had been vacant since he purchased it, that he had never seen the property or the tree, and that he had no notice or knowledge that the tree was in a dangerous or rotten condition. The trial court awarded judgment to Ridley for the damages he sustained.

Turner appealed.

Held:   Turner was liable for the damage to Ridley’s car. While prior cases diverge somewhat, the Court found the Ohio decision in Hay v. Norwalk Lodge No. 730, B. P. O. E., instructive, holding that “an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway.”

Knowledge could either be actual or, as held in Brandywine Hundred Realty Co. v. Cotillo, constructive, “if such condition was known or by the exercise of ordinary care could have been known by the defendant.”

The car was the first casualty ... but not the only one.

The car was the first casualty … but not the only one.

The Court admitted that Hay and Brandywine dealt with personal injuries to travelers on the highway, but it observed that there is “no distinction in principle between the case of personal injury to one lawfully traveling on a highway and the case of property damage to a vehicle lawfully parked on the highway.” The issue was whether the owner – who had only owned the property for a few weeks and who had never seen it before – could be charged with constructive knowledge of the tree’s condition. There was no question that the tree was obviously dangerous and quite dead. The Court acknowledged that “[a] three-week period is no great length of time, but we cannot rule that such period was legally insufficient time for appellant to look over his property and observe the condition of the tree and take steps to prevent its fall. We think the evidence presented a factual question as to notice and lack of care.”

“Hard cases are the quicksands of the law,” as an old maxim put it. Here, the intersection of an absentee owner, an obviously defective tree, a fairly minor damage bill, a colorful witness and lack of any defense by Turner, combined to bring about a holding that imposed additional duties on a landowner.

TNLBGray140407

And Now The News …

Typewriter

 

KTVU-TV, San Francisco, April 22, 2014: Male Mulberry trees stir up pollen problem in Berkeley

Pollen is becoming a problem in a certain part of Berkeley, and it is the sex of the tree producing the pollen in the neighborhood that stands the root of the cause. Allergy sufferers all around the Bay Area were suffering Tuesday because of the pollen borne on the wind …

Agrinews Illinois, April 22, 2014: Silvopasture incorporates trees, grass, livestock

Silvopasture combines agriculture and trees to create a sustainable farming system. “Silvopasture is the intentional combining of timber, livestock and forage production,” said Jay Solomon, University of Illinois Extension environmental and energy stewardship educator. “The trees provide long-term returns, and the livestock and forage generate annual income.” It is not just turning the cows out in the timber to graze uncontrolled and unmanaged, stressed Solomon during a presentation at the Northwest Illinois Grazing Conference. “Don’t think the timber is an unvalued crop,” he said …

WWLP-TV, Springfield, Massachusetts, April 22, 2014: Trees restored to Springfield neighborhood

Western Massachusetts Electric Company joined a community group to plant 30 new trees on Wilmont Street Tuesday. More than two-dozen diseased and dying trees had been removed from that area of the Forest Park neighborhood in recent months as part of a reliability project. “Trees are the number one cause of outages,” a utility spokesman said. “Obviously, trees planted out from underneath the power lines won’t have an impact, but if you have to plant them under there, there are species like these that’ll only grow 20 feet tall and not have an impact on the power lines …”

San Jose, California, Mercury-News, April 22, 2014: PG&E and East Bay cities at standoff over plan to chop down thousands of trees

The $500 million Pipeline Pathways project is a statewide initiative to clear obstructions from the utility company’s 6,750 miles of underground gas lines from Bakersfield to Eureka. PG&E says it needs to remove the trees, shrubs and structures on private and public property to ensure pipeline safety — a top priority after the 2010 San Bruno gas pipeline explosion that killed eight people and destroyed 38 homes. Rules vary from city to city, but permits — and sometimes public hearings — typically are required to remove trees from private property, often depending on their size and species. PG&E insists the trees must go and remains unwilling to comply, so far, with local tree protection ordinances. City leaders also refuse to bend, arguing the company hasn’t demonstrated the need to chop down thousands of trees …

Treeremove140422WCTI-TV, Greenville, N.C., April 21, 2014: Trouble trees spark new city regulations

After a controversy started over the removal of two large Oak trees on Spencer Avenue in New Bern, the City is now making it more apparent to the public which trees are being targeted for removal …

KTVT-TV, Fort Worth, Texas, April 21, 2014: Residents angry sidewalk project cuts down trees

Fort Worth is going from a street widening project, to street narrowing, after contractors cut the roots off trees that residents had worked for years to preserve. The city is hoping it can replace soil and that the trees will survive, but residents said a city arborist had already said it was unlikely. A large pecan tree and two maple trees were damaged in the construction in east Fort Worth. Residents there had successfully used a series of meetings and a petition to stop a plan for sidewalks that would have threatened the trees. They said they were never informed the street widening presented a similar danger …

KRQE-TV, Albuquerque, New Mexico, April 21, 2014: City Forester plans to triage trees

Many of Albuquerque’s trees are getting old and in the past few years, they’ve been hit by drought and storm. The new City Forester says some of the city’s trees will need to come down soon, before they fall down on something or someone. “I think the real issue is, is there a potential for harm?” said Joran Viers, hired as City Forester in March. “Regardless of whether someone sues us over it or not, we don’t want someone to get hurt …”

Charleston, South Carolina, Post and Gazette, April 21, 2014: Cutting trees to cost Dorchester County developers per inch

Businesses cutting trees in Dorchester County will now have the option to pay for the county to replace them rather than doing it themselves. The County will allow businesses an alternative method for mitigating tree removal during the construction process, and it will give the county some leeway in where to replant trees. Previously, if a property developer cut down a protected tree during construction he was required to replant a tree on the property …

ksutree140421WKSU Radio, Kent, Ohio, April 20, 2014: Tracking Ohio’s champion trees

Big trees across the world are threatened, but the list of giants in Ohio is growing …

Washington Post, April 20, 2014: Columnist: It’s bad enough D.C.’s trees were gouged. But why did it take so long for people to notice?

A suspect was arrested last month and charged with carving up more than 100 trees. But he was subsequently released pending a court date and now seems to have vanished. The questions remain: Why were holes and circles cut into so many trees? And why, in this tree-loving city, did it take so long for anyone to notice?

Hazleton, Pennsylvania Standardspeaker, April 21, 2014: Rush Township resident not happy about trees

During the public comment portion of Thursday’s board meeting, township resident William Boyer asked the supervisors what they intended to do about some trees that were damaged on his property. He claimed the trees were damaged by the township. Chairman Shawn Gilbert said the township intends to cut down the trees in question and added that a recent survey by the township showed that the trees were not on Boyer’s property but on township property. “We are going to cut them all down,” Gilbert said. “Cut them down and you’ll see what happens,” Boyer replied. “That sounds like an implied threat,” Gilbert said. “How are you going to stop us?”

The Japan News, April 21, 2014: Matsushima bans gull feeding to protect pine trees in famed islet

Feeding black-tailed gulls has been a popular activity on the sightseeing boats that cruise around the Matsushima islets, considered to be one of the three most beautiful spots in Japan, but local authorities banned the practice this month in a bid to protect the islets’ famous pine trees from withering as a result of nitrogen in the droppings of the gulls, who have bred in large numbers in the area …

The Daily Gazette, Schenectady, New York, April 21, 2014: Editorial: Trees a worthy investment for a city

A 2007 study by New York City and the University of California at Davis estimated that every dollar spent planting trees returns $5.60 worth of benefits — factoring in a tree’s impact on property values, its ability to absorb greenhouse gases and reduce energy consumption. The City needs to do more …

New Castle, Pennsylvania, News, April 20, 2014: Your summer treats – Poor peach crop expected

Local peaches may be scarce in Lawrence County this summer.

 County fruit farmers are watching their peach trees closely, not sure how badly they were damaged by the winter’s extreme cold …

drunkentrees140418National Geographic, April 17, 2014: Drunken trees: dramatic signs of climate change

According to some scientists, as the permafrost melts in the north, forests no longer grow straight …

Philly.com, Philadelphia, April 18, 2014: Chesco reforestation to reach 25,000 trees

The Brandywine Conservancy plans to plant its 25,000th tree Saturday as part of its five-year tree reforestation campaign in Chester County, Pennsylvania. Volunteers will plant 650 trees, including maples, oaks and magnolias, along the East Branch of the Brandywine Creek in East Brandywine Township. More trees in the county mean better air and water quality and less storm water runoff …

Lincoln, Nebraska, Daily Nebraskan, April 18, 2014: UNL objects to 20-foot trees near Innovation Campus greenhouses

New greenhouses at the University of Nebraska-Lincoln’s Innovation Campus will be filled with plant life, but administrators want to keep outdoor trees far away from the structures. University representatives have objected to a city request to plant a 15- to 20-foot tree along the south side of the complex on the old state fair grounds …

Softpedia.com, April 17, 2014: New 3D printing technique inspired by the growth of trees

By mimicking the way trees grow – Instead of going with the seemingly natural tendency of man to stack things on top of each other – a researcher has developed an improved method of 3D printing that eliminates the “stair-stepping” problem in low-end printers …

treesonbeach140417London, U.K., Daily Mail, April 17, 2014: Popular Cornish tourist beach ruined for Easter holidays after council dumps 100 Christmas trees on it in anti-erosion project

The Council said the firs would bind with the sand and form a defense line of new dunes to stop the beach being eroded, but locals fear tourists won’t visit the popular beach over the long Easter weekend. Residents who wanted to remove trees were threatened by the Council with legal action …

Associated Press, April 16, 2014: Freeze leaves Florida Panhandle with dead trees

From airports to hotels to schools and churches, non-native palm and fruit trees are a popular and costly part of landscaping throughout Florida’s Panhandle. Nowadays those trees are mostly brown and withering because of the region’s unusually cold winter …

Yahoo News, April 16, 2014: Complicated roots: The story behind Washington’s iconic cherry blossom trees

Washington’s cherry blossoms have become an iconic image of springtime in the nation’s capital. And while the trees can be appreciated solely for the ethereal beauty they cast on the shores of the Potomac River, the historical roots of the trees are more complicated …

Vancouver, B.C., Sun, April 16, 2014: Vancouver residents no longer allowed to cut down trees

Vancouver city councillors gave the nod this week to plans to plant thousands of new trees and bar residents from cutting any down, taking a literal approach to the municipality’s greenest city initiative … Property owners can now only remove trees that are hazardous, dead, diseased or dying, within a new building footprint, or interfering with drainage systems, sewage systems or utilities …

treefall140416Fairbanks, Alaska, Daily News-Miner, April 13, 2014: When felling trees, it’s all about the angle of the attack

Cutting down birch trees is scary, and not just because they are so much heavier than the dry standing spruce that we cut for heating trapping cabins. Spruce trees project upwards like straight spears, with soft feathery branches that usually brush past surrounding trees as they fall. Birch trees have complicated branches, and the large ones we cut for firewood can be pretty gnarly, with big angular forks and massive limbs. Those limbs grab at other trees as they come down, sometimes getting royally hung up in their neighbors to create a dangerous situation …

KCCI-TV, Des Moines, Iowa, April 15, 2014: ‘High hazard’ trees to be removed from park

Ash trees, at risk because they may be susceptible to the Emerald Ash Borer, are to be removed from high traffic areas of Des Moines’ Water Works Park as a precaution…

Dayton, Ohio, Daily News, April 15, 2014: Utility, property owner dispute removing trees

A natural gas utility says it’s a needed safety measure, but the property owner wants the company to pursue alternatives to chopping down 29 trees on a pipeline right-of-way …

Iambully140416Fox News Latino, April 13, 2014: Ohio court orders man to wear “I AM BULLY” sign for abusing neighbor with disabled kids

A man accused of harassing a neighbor and her disabled children for the past 15 years sat at a suburban Cleveland street corner Sunday morning with a sign declaring he’s a bully, a requirement of the sentence imposed by a Municipal Court judge …

Washington Times, April 13, 2014: Maple trees a quandary for downtown Cottage Grove, Oregon

Overgrown trees, buckled sidewalks and a Main Street that needs repaving have residents discussing what’s next for the historic downtown. “It’s obvious that the trees have buckled the sidewalks,” said a business owner “That’s a problem that has to be addressed.” The trees were originally planted in the 1990s. Eager to green the downtown, the city cut small openings in the sidewalks on a five-block stretch of East Main Street and planted about 40 small maple trees …

Wichita, Kansas, Eagle, April 14, 2014: Deep chill could hurt fruit trees, exposed vegetable plants, more

Cold in mid-April could mean significant loss of fruit but probably won’t hurt the Easter flower show that nature has already begun to put on. Peach and apricot trees that are in full bloom could lose 25 to 50 percent of their blossoms and the resulting fruit at 26 degrees, extension agent Rebecca McMahon said Monday. Sweet cherries in full bloom and apple trees could lose 75 percent of their potential fruit …

plant140415Portland, Oregon, Oregonian, April 14, 2014: Urban trees help protect both water and air quality: Here’s how you can help the trees

Urban trees are so common in these parts you might overlook them, but you shouldn’t. These cool, green fellas are working hard to protect water quality throughout Washington County and they are finally getting the support and recognition they deserve …

Crossville, Tennessee, Chronicle, April 14, 2014: Tree of distinction?

Sometime in February of this year some unknown person topped a sugar maple along Highway 127, virtually destroying it. Topping is not an approved or recommended method of pruning a tree. In fact, topping a tree is not pruning at all …

Glen Rock, New Jersey, Gazette, April 14, 2014: ‘Potentially hazardous’ trees to be removed from Glen Rock neighborhood

Following recent years’ damaging storms, officials have worried that large, unhealthy trees in a wooded tract between a highway and transit tracks could pose hazards to residents and property, given the shallow depth of some residents’ rear yards. Those concerns led to an evaluation of trees on the borough tract by an arborist, who recommended the removal of roughly 30 trees from the land and substantial trimming of 11 trees …

Tacoma News-Tribune, April 13, 2014: Mighty trees from 23 years of twigs

One town’s Arbor Day giveaway continues to bear fruit for city …

palm140414Mother Nature News, April 11, 2014: Ten surprising facts about palm trees

Palm wine, 66-lb seeds, and other interesting facts about the palm family …

Waterbury, Connecticut, Republican-American, April 13, 2014: Ash trees to be treated against emerald ash borer infestation

Town to inject ash trees with insecticide to stop Emerald Ash Borer …

Providence, Rhode Island, Journal, April 12, 2014: Putting a value on Providence’s 415,000 trees

What’s a tree worth? In Providence, about $4.7 million annually. Each year, it’s estimated, trees remove 91 tons of pollution from the environment, sequester 4,030 tons of carbon, capture 31.5 million gallons of runoff. and save a half million in building energy costs …

Naples, Florida, News-Press, April 12, 2014: Local group mad developer demolished historic trees

For decades, a thicket of towering 100-year-old oak trees defined a highly-trafficked corner in Estero. Now, they’re gone. The Estero Council of Community Leaders bashed Sarasota-based developer Neal Communities on Friday for allegedly breaking its promise to save the historic trees, leveling them instead in favor of perimeter wall foundations …

poplar140411Softpedia, April 10, 2014: Genetically engineered trees for biofuel are a bad idea, scientists argue

Earlier this month, a group a researchers announced that it had genetically engineered trees whose makeup made them more suitable for paper and biofuel production. The same trees are now back in the spotlight, but the attention that they are getting is of the negative kind. Several scientists and environmentalists are not in the least happy that specialists at the University of British Columbia have created these genetically engineered trees, and would very much appreciate it if this research project were to be pulled the plug on …

KSDK-TV, St. Louis, Missouri, April 11, 2014: Clearing trees to fight off the threat of terrorism

One reason electric utility Ameren is giving for its plan to cut down a dozen decades-old trees in a suburban St. Louis neighborhood is that the plan fights off the threat of terrorism …

Passaic Valley, N.J., Today, April 11, 2014: To reduce service delays NJ Transit chops down trees in Little Falls

In order to mitigate train service disruptions, NJ Transit workers are taking to the rails this month with chainsaws to clear trees and debris from the path of trains. However, the annual spring project sparked concern in quaint suburban Little Falls this week when, residents say, they saw the workers sawing away precious trees near the historic Great Notch Train Station …

Japan Daily Press, April 11, 2014: ‘Cherry tree from space’ blooms early; Japanese scientists baffled

There a mysterious incident right now in Japan – where it’s currently cherry blossom season – that is baffling scientists and monks alike: a cherry tree grown from a seed that spent time in space has grown and produced flowers a full six years ahead of normal cherry trees. The cherry tree in question is four years old, grown from a group of cherry seeds (stones) that went up to the International Space Station. The question in Japanese scientists’ heads is how the tree, on April 1st of this year, produced blossoms only 4 years into its existence …

New Haven, Connecticut, Register, April 9, 2014: Editorial: Utilities must take care when cutting trees

Two local utilities have come up with a plan to cut nearly half of New Haven’s trees based on two severe, and probably rare, storms that left hundreds of thousands without power, largely because electric lines were brought down by nearby trees. Uninterrupted service and safety are valid concerns. However, a lot more thought needs to be put into the plan, giving the trees some consideration …

redwoods140410New York Times, April 9, 2014: Poachers attack beloved elders of California: its redwoods

Deep in the forest, a rare old-growth coast redwood had been brutally hacked about 15 times by poachers, a chain saw massacre that had exposed the tree’s deep red heartwood. The thieves who butchered this and other 1,000-year-old arboreal giants were after the burls, gnarly protrusions on the trees that are prized for their intricately patterned wood. Although timber theft has long plagued public lands, a recent spate of burl poaching, with 18 known cases in the last year, has forced officials to close part of the park at night to deter criminals …

Contra Costa Times, Walnut Creek, California, April 9, 2014: PG&E agrees to temporarily stop cutting down trees in Concord

Pacific Gas & Electric agreed Tuesday to stop cutting down privately owned trees until it reaches agreement with city leaders on how to proceed with its pipeline safety project. The utility’s previous pledge to suspend a plan to cut down thousands of trees in the East Bay while it works with concerned cities had been largely interpreted as applying to both public and private property. But Concord leaders learned last week that the utility was still removing privately owned trees if it had an agreement in place with the homeowner …

Charlotte, N.C., Observer, April 9, 2o14: Duke Energy suspends use of chemical product that stunts tree growth

In response to public outcry, Duke Energy said Wednesday that it has temporarily stopped using a chemical product that keeps limbs away from power lines by stunting tree growth …

WUSA-TV, Washington, D.C., April 9, 2014: Visitors crowd the Tidal Basin to see the cherry blossom trees

The cherry blossom trees around Washington, D.C.’s Tidal Basin are in their ‘puffy white’ stage, which is nearly peak bloom. Visitors are crowding the Tidal Basin and enjoying the view …

Cleveland Plain Dealer, April 8, 2014: Ash trees in Bay Village coming down after Emerald Ash Borer infestation

Seventy-seven ash trees in Bay Village are being cut down because they’re infested with the Emerald Ash Borer, an invasive pest that has claimed trees throughout the state. The town is using a $16,500 grant from the Ohio Department of Natural Resources to remove the trees …

opentree140409FastCompany, April 8, 2014: Mapping trees to figure out just how good for us they are

OpenTreeMap is helping cities figure out where all the trees are, so they can better judge the environmental and public health impacts of a well-planted city. Here’s a hint: The impacts are huge …

Hawaii News Now, April 9, 2014: Taggers spray paint trees at Ala Moana Park

Taggers have targeted at least 20 trees at a Honolulu park, including two that are considered “exceptional” by the city. Authorities plan to file a police report on Wednesday about the growing graffiti problem …

Wilmington, N.C., Star-News, April 8, 2014: Changes coming to Oak Island’s tree ordinances

Oak Island’s tree ordinances are unenforceable due to the lack of manpower and changes are underway after Tuesday’s town council meeting. In the hopes of preserving trees, the council voted unanimously to allow for code enforcement officers to enforce as much of the ordinances as possible until revised ordinances are created. The possible changes did not sit well with some residents …

TGDaily, April 8, 2014: Trees go high-tech: process turns cellulose into energy storage devices

Based on a fundamental chemical discovery by scientists at Oregon State University, it appears that trees may soon play a major role in making high-tech energy storage devices. Chemists have found that cellulose – the most abundant organic polymer on Earth and a key component of trees – can be heated in a furnace in the presence of ammonia, and turned into the building blocks for supercapacitors …

WCBS-TV, New York, April 7, 2014: Long Island residents stumped over removal of trees

More than a dozen 70-year-old trees were suddenly chopped down in a Long Island neighborhood, and now residents, stuck with unsightly stumps, are demanding answers …

squirrel140408Washington Post, April 7, 2014: One paw washing the other: Oak trees and squirrels have evolved to help each other

If you think the squirrel needs the oak tree more than the oak tree needs the squirrel, Michael Steele has some news for you: They both need each other …

Boston Globe, April 2, 2014: Not everyone impressed by Jamaica Plain resident’s front lawn art display

Jonathan Handy makes a hobby out of turning found trash and stickers in to art, which he displays outside his house at 225 Amory St.  The artwork on Handy’s front lawn draws the attention of passers-by. It has also caught the attention of city inspectors, who have ticketed him because much of the artwork borders the sidewalk. A neighbor of Handy brought the issue to the city’s Inspectional Services Department and Handy had to go to court. Handy said that the attorney from ISD accepted that he had a constitutional right to display art on his own property, and Handy said he was able to get the complaint dismissed …

mlive, Kalamazoo, Michigan, April 4, 2014: Discarded Christmas trees being picked up by Kalamazoo crews this week

It may be April, but this week is Kalamazoo city crews’ first chance to pick up discarded Christmas trees that have been curbside since December or January …

blossoms140407Washington Post, April 4, 2014: Cherry blossom trees progressing, probably just over a week away from peak bloom

Normally by this date, cherry blossoms would have already reached peak bloom in Washington, D.C. (the recent average is March 31). But thanks to a harsh winter and slow spring, this year’s bloom is delayed by about 10 days. Peak bloom within our revised forecast window of April 11-15 seems on track …

IndyBay.org, San Francisco, April 6, 2014: Opinion: UC and Qualcomm make first cuts to redwood grove, police enfence trees

Call to action by environmentalists over UC Berkeley’s tree cutting for new tech design institute …

Japan Daily Press, Tokyo, April 7, 2014: 1,266 trees to be axed in famous Tokyo park due to plum pox

A famous tourist spot in Tokyo known for its plum blossoms will cut down all of its trees after being hit with a plum pox epidemic. The Umeno Koen (Plum Park), a 45-square kilometer park, has announced that 1,266 of its trees will be cut off to prevent the spread of the disease …

Contra Costa Times, Walnut Creek, California, April 4, 2014: Despite ‘pause,’ PG&E still cutting down trees

Despite Pacific Gas and Electric’s pledge last week to suspend a plan to cut down thousands of trees while it works with concerned cities, the utility has been removing some privately owned trees near underground gas lines. This comes as a surprise to many residents and city leaders who believed the utility had temporarily put the entire project, encompassing both private and public property, on hold …

WILX-TV, Lansing, Michigan, April 6, 2014: Harsh winter damages fruit trees and vines

The Michigan Farm Bureau says the late thaw is finally allowing fruit farmers to assess damage from the cold and heavy snow.
 Horticulture and forestry specialist Ken Nye says there’s going to be some bud damage and also “potential damage to the wood …”

rainbowtree140404Honolulu Civil Beat, April 4, 2014: City law bBans planting iconic Honolulu trees, Favoring Native Species

The rainbow shower tree is in trouble because it isn’t native. A new city law bans the iconic tree from being planted on city property. The city must plant indigenous or Polynesian plants, brought over to Oahu prior to western contact, at new or renovated facilities whenever “feasible.” Ordinance 14-6 is intended to help propagate native species that have been devastated, according to the law’s supporters, by the influx of new plants in the centuries since Captain James Cook reached Kauai in 1778 …

Science Daily, April 3, 2014: Researchers design trees that make it easier to produce paper

Researchers have genetically engineered trees that will be easier to break down to produce paper and biofuel, a breakthrough that will mean using fewer chemicals, less energy and creating fewer environmental pollutants …

io9.com, April 3, 2014: How to know where cutting down trees will do the least damage

In the future, we may be able to farm trees in a much more sustainable way — by paying attention to the microbes that grow in forests. A new study reveals which forests can be farmed without the risk of releasing more carbon dioxide into the atmosphere…

Vancouver, B.C., Sun, April 3, 2014: Genetically engineered trees hailed as an environmental boon

Researchers have genetically engineered poplar trees with lignin that breaks down more easily, opening the door to cheaper biofuels and wood pulp that require only a fraction of the energy and chemicals to produce. By inserting a piece of code isolated from a Chinese herb into the DNA of a poplar tree, scientists at the University of British Columbia, Michigan State and University of Wisconsin-Madison have produced a tree designed for easy deconstruction …

Couer d’Alene, Idaho, Statesman-Review, April 3, 2014: Most trees on city’s levees will remain

The U.S. Army Corps of Engineers has changed its policy related to trees on flood-control levees, saying the trees’ presence won’t jeopardize a community’s ability to qualify for disaster relief funds. City officials had planned to apply for a variance to keep many of the trees on what’s known locally as the dike road, a levee separating Lake Coeur d’Alene and the Spokane River from North Idaho College and the Fort Grounds neighborhood. But the corps’ shift in policy simplifies matters for the city …

xraysaw140403

KDKA-TV, Pittsburgh, April 1, 2014: X-ray released of tree trimmer with chainsaw embedded into his neck

A tree trimmer was seriously injured after being cut in the neck with a chainsaw Monday. Police say the 21-year-old James Valentine, from Adler Tree Service in Gibsonia, was in a tree in Ross Township when the accident happened …

New York Times, April 3, 2014: Loving trees, even the messy ones

In 1993 Enzo Enea, a landscape architect, bought out his father’s garden ornament business in Switzerland. Today he has nearly 200 employees who have landscaped corporate headquarters, churchyards, rooftop gardens, vacation homes and condominium projects in Miami …

Los Angeles Times, April 2, 2014: Editorial: South L.A. needs trees

Nowhere in the Los Angeles area are trees more sparse than in South Los Angeles. City and county officials have been working for years in that part of town to create pastoral swaths of parks, greenbelts and even wetlands — fighting against drought, desert climate, urban blight and concrete streets — but it is a long, slow process …

Washington Post, April 1, 2014: In Arlington, a notable way to preserve trees

Under Arlington County’s Notable Trees Program, started in 1987, residents can apply to have their trees designated notable by filling out an application on the county’s Web site. Since the program’s inception, more than 265 trees have been nominated; 150 trees are currently designated notable …

KOVR-TV, Sacramento, California, April 2, 2014: Arborist: Trees Near One That Killed Citrus Heights Driver Also Pose Risk

Days after a large oak tree in the median of a very busy intersection fell on a car and killed the driver, questions remain about how it could have been prevented. Arborist John Spurgin is taking a closer look at what’s left of a tree that fell and killed Chapman as he drove by.
“The overburden of weight, two crotches, protruded bark, the rainwater, it just broke,” he said. “It was hit by a car or something, or construction or something years ago caused it to decay. It’s an old wound. You can see the decay in the stump …”

Oakfungus140402Schenectedy, New York, Daily Gazette, April 2, 2014: Oak trees cut down in hopes of keeping disease in check

Terry Phillips took picture after picture as the trunk of an oak tree next to his house was sawed off and lifted away by crane. It was the last of two giant red oaks to be removed from his backyard as part of the state Department of Environmental Conservation’s latest effort to prevent the spread of the deadly oak wilt fungus, and the sixth to be removed since 2009 …

Cleveland Plain Dealer, April 1, 2004: Lakewood task force calls for city and public to plant more trees, citing environmental benefits

Lakewood’s Tree Task Force is recommending the city double what it spends historically on tree planting and increase the number of trees it plants annually. It suggests homeowners to do the same. The task force wants the city to increase its tree canopy by 10 percent by 2035, citing environmental benefits. That would involve planting about 500 new trees each year …

Anchorage, Alaska, Daily News, April 1, 2004: Even on frozen ground, trees are drinking up spring

Trees swell with water as they prepare to sprout leaves …

Estes Park, Colorado, Trail-Gazette, April 1, 2014: Protection of high value trees and hazard mitigation projects continue at Rocky Mountain National Park

Bark beetles continue to be active within Rocky Mountain National Park, impacting large numbers of conifer trees. The park’s priorities for mitigation of the effects of beetles are focused on removing hazard trees and hazard fuels related to the protection of life and property …

Pasadena, California, Star-News, April 1, 2014: Monterey Park residents petition Southern California Edison to keep trees in Edison Trails Park

Monterey Park may lose a park and hiking trail that it has shared with Southern California Edison for nearly five decades. Edison has doubled its tower setback requirements, which means Monterey Park will have to cut down trees or lose access to Edison Trails Park …

Matsu Valley, Alaska, Frontiersman, March 31, 2014: Trees are awakening from long winter’s nap

Despite the penetrating warmth of the sun at spring equinox, the woods are as quiet as the blue-gray days of midwinter. More than a foot of snow blankets the ground and the temperature is one degree above freezing. This relative warmth — more than 30 degrees warmer than just a few days ago — has silently nudged the trees out of their winter sleep. An ecologist with the International Arctic Research Center at the University of Alaska Fairbanks knows this because she has tapped the trees with instruments. They let her measure what she can’t see …

eatatree140401Vineyard Gazette, Martha’s Vineyard, Massachusetts, March 31, 2014: Trees good enough to eat

Snowdrop clusters and barely-there hyacinth blooms are sprouting off the paths at the Polly Hill Arboretum, but on Saturday afternoon it wasn’t just the flowers that interested the small group walking the grounds. Nancy Weaver, plant recorder and volunteer coordinator at the arboretum, was conducting an edible trees tour throughout the campus. “Our mission isn’t edible plants,” she explained at the start of the tour. “But we do have some …”

LaRaza, Los Angeles, April 1, 2014: Maple trees for health: The next big celebrity craze?

There’s a new reason to love nature, particularly maple trees, and it has everything to do with maple syrup. What is this latest craze? It’s called called Vertical Water, and it’s supposed to be the next beverage of choice for nutrition fanatics …

KTHV, Little Rock, Arkansas, March 31, 2014: City of LR to replace trees, add additional landscape on North Main Street

As part of the Creative Corridor design, construction began recently on improved landscaping and water systems along North Main Street. To improve the existing tree canopies, some trees along the street will be replaced and other more appropriate mature trees will be added along with improved landscaping …

KYW Radio, Philadelphia, March 31, 2014: Advocates urge Delaware Valley to replant trees lost to recent storms

After winter weather wreaked havoc on trees across the region, experts are hoping people won’t be afraid to plant more. The worry is that after so many fallen trees and branches caused all kinds of headaches this winter, homeowners or communities may be hesitant to replant …

Louisville Courier-Journal, March 28, 2014: Killer vines terrorizing Louisville trees

They’re green, aggressive and stealing the life from Louisville’s trees. Invasive vines are slowly killing thousands of oaks, maples, tulip poplars and ashes, along with a host of other varieties, in a city that already is wrestling with a decimated tree canopy, experts say …

Boston Herald, March 31, 2014: In an ice-damaged town, a difficult choice on trees

A vicious storm last December shattered hundreds of trees at Michigan State University, where inch-thick layers of ice snapped thick limbs and trunks of stately towers that had stood for generations. It was a distressing sight for a campus billed as an urban forest where scientists since the 1800s have kept records of every tree, where native oaks and maples coexist with exotic Siberian elms and Japanese pagodas. But amid the destruction, Frank Telewski saw opportunity and jumped into action with his tools of choice — not chain saw or ax, but tape measure and computer …

biolumines140331Huffington Post, March 30, 2014: In the not so distant future, bioluminescent trees could replace street lights

A scientist is hoping to employ biomimicry to transform your average street-side trees into beacons of light for passersby. Like the luminescent abilities of jellyfish, mushrooms or fireflies, the research team is splicing DNA from luminescent marine bacteria with the chloroplast of a houseplant …

 

TNLBGray

Case of the Day – Tuesday, April 22, 2014

DRAFT ME A VERBAL CONTRACT

 

Lesprit140422Ah, l’esprit d’escalier!  Those biting, snappy comebacks we wish we had said at the time.  Today’s case is about something akin to that, not rapier ripostes, but rather one of those rather important contract terms — how long the multi-year agreement would last — that both parties kind of wished they had discussed at the time they first made their deal.

And maybe one of them did. To be sure, each probably had what is today called an “exit strategy” in mind.  But neither brought it up.  And what’s worse, nothing was in writing on the parties’ joint venture to raise and harvest peaches.  Samuel Goldwyn was right when he observed that “a verbal contract isn’t worth the paper it’s printed on.”  What’s surprising is that their verbal deal lasted as long as it did.  Invariably, however, problems ensued.  When Miami Valley Fruit Farm wanted to terminate the deal after about 20 years, Southern Orchards protested that the length of the venture was for the useful life of the trees, meaning that the deal would go on until the trees were worn out. It sort of turns the old Stripes line on its head: you can’t go … until all the plants die.

The Court agreed, because that was the only interpretation that made sense to it.  You see, without a contract in black and white, everything was pretty gray.  Think of how much they saved on lawyers by not writing up a detailed contract.  Probably less than 5% what they spent litigating the issue 20 years later …

verbalk140422Miami Valley Fruit Farm, Inc. v. Southern Orchard Supply Co., 214 Ga.App. 624, 448 S.E.2d 482 (Ga.App., 1994).  Southern Orchard Supply Co. and Miami Valley Fruit Farm entered into an oral agreement whereby Miami Valley, which owned the 295 acres of land, purchased peach trees, and Southern Orchard planted, cultivated and harvested the trees.   Under the agreement, which has been in effect about 20 years, the parties equally divided the net profits from the sale of each year’s peach crop.

After the 1993 peach crop was harvested and sold, Miami Valley told Southern Orchard that it was terminating the oral agreement and that Southern Orchard would not be allowed to cultivate and harvest the 1994 peach crop.   Southern Orchard sued for an injunction, arguing that it had made substantial investments in the planting and cultivation of the peach trees and in equipment and packing facilities based on the mutual understanding of the parties that the agreement would continue for the “economic life” of the peach trees.  

The evidence showed that after a peach tree orchard is planted, the trees have to be cultivated for years before they mature enough to bear fruit and begin to produce profitable, full crops.   Once mature, the trees have an “economic life” for an indefinite period of years, during which they produce profitable crops each year until their fruit production declines to the point where they are no longer profitable and new trees must be planted.   The “economic life” of the trees varies based on factors such as the variety of the peach and cultivation techniques.  The trees at issue still had years of “economic life” remaining. 

Southern Orchard argued the agreement had to last for the “economic life” of the trees in order to provide for recoupment of its expenses.   Miami Valley argued there was no agreement between the parties for any specific duration of the contract, that the parties considered the agreement to run from year-to-year, and that in any event the “economic life” of a peach tree could not provide the agreement with a definite term since the duration of the life cannot be determined with any degree of certainty.   Accordingly, Miami Valley argued it had the right to terminate the agreement. 

The trial court held that there was an enforceable oral contract for Southern Orchard to cultivate and harvest the peach trees on the land at issue for the “economic life” of the trees, and because Southern Orchard had no adequate remedy at law for the breach of the agreement, the trial court could grant injunctive relief, ordering Miami Valley not to interfere with Southern Orchard’s performance of the agreement for the 1994 peach crop.  Miami Valley appealed.

stitch140422Held: The injunction against Miami Valley is upheld.  The Court of Appeals held that the question as to the length of time the contract remains in force is governed by the circumstances of each particular case.  Here, the Court said, evidence showed that the parties intended the employment contract to continue for more than a single crop season.   Considering the particular circumstances and expenses incurred to plant, cultivate and harvest the peach trees, the Court found, the parties agreed that the employment contract would continue for as long as the trees produced reasonably profitable crops, the “economic life” of the peach trees. 

The old aphorism that a “stitch in time saves nine” is worth recalling here. A little consideration to all of the material terms of the agreement at the outset – maybe a few bucks spent on a lawyer whose forte is thinking about all the “what ifs” that the parties aren’t considering ­– would have saved a lot of time and expense two decades down the road.

TNLBGray140407

Case of the Day – Monday, April 21, 2014

UNDER A SPREADING CHESTNUT TREE

newspaper140421The year 1929 ended badly for a lot of people, with the stock market crash wiping out millions. It started just as badly for one Lou Cotillo, when a chestnut tree on suburban land being developed by a real estate firm crashed onto the road. Under the spreading chestnut tree was Mr. Costillo’s car, which, unfortunately enough, contained him and a passenger.

It turned out the chestnut in question, a rather big specimen, had been dead for a few years. However, the Court noted, “beyond its deadness, [it] bore no exterior evidence of decay.” Deadness? Is that even a word?

Maybe not, but the jury had little trouble determining that the tree’s obvious “deadness” made the real estate developer liable for the accident. Brandywine appealed, arguing that the trial court should have taken the case away from the jury and thrown it out. It argued that, as a matter of law, it wasn’t liable for the results of a tree’s natural condition (that is, it’s “deadness”).

Applying what little Delaware law the United States Court of Appeals for the Third Circuit could find, the appellate panel upheld the jury verdict. The Court held that responsibility for an owner’s property is one of the burdens of ownership, and, as a landowner has the right to enjoy his property unhampered by the actions of his neighbor, his neighbor – ­whether a landowner or a highway traveler ­– is similarly entitled. The trial court told the jury that Brandywine had a duty to keep its property from being a source of danger to the travelers on the highway “to the extent that reasonable care can guard against” the danger. The jury decided that Brandywine had breached its duty. Game, set and match.

This case was an early decision in the general trend of imposing a duty of reasonable care on non-rural landowners. The issue in negligence cases such as this one is always the nature of the duty owed by the defendant. Defendants – such as Brandywine Hundred Realty in this case – want the duty to be as minimal as possible – where plaintiffs want the jury charge to describe a duty of the first water. From the “trees will be trees” laissez faire approach of the 19th century, where owners generally had no duty whatsoever to protect passers-by from hazardous trees, to a modern view that while not guarantors of their trees, property owners had a duty to correct problems of which they had actual or constructive knowledge.

chestnutdown140421Brandywine Hundred Realty v. Cotillo, 55 F.2d 231 (3rd Cir. 1931). On a dark winter night in January 1929, Mr. Cotillo and a passenger were driving forested suburban land owned by Brandywine Hundred Realty, Inc. A chestnut tree, standing about 10 feet from the road, fell suddenly, crushing Mr. Cotillo’s car and killing his passenger. The tree had been dead for four years, but, “beyond its deadness, bore no exterior evidence of decay.”

Cotillo sued, and the case went to trial. The real estate company asked the judge to take the case from the jury and find in its favor as a matter of law, because the natural condition of the tree caused the accident, and it had no duty to Mr. Cotillo. The judge disagreed, and instead told the jury that Brandywine had a duty to exercise reasonable care in the use of its property, so as not to harm neighboring landowners or motorists. The jury found for Mr. Cotillo.

Brandywine appealed, arguing that the trial court had misdefined its duty.

Held:   The trial court was correct in its definition of Brandywine’s duty. The appellate court said that “[a]fter all is said and done, this case turns on the application of the time honored principle of law, ‘sic utere tuo ut alienum non laedas’–so use your own as not to injure another.” It held that Mr. Cotillo had a right to use the highway, and that Brandywine had the duty “to so use his property on his own land that it shall not cumber the highway and endanger the safety of those using it …” It agreed with the trial court’s charge to the jury that “ the owner of property abutting on a public highway is under a duty to keep it from being a source of danger to the public or to the travelers on such highway, to the extent that reasonable care on his part can guard against.”

Negligencedef140421The Court of Appeals also concurred that the fact the tree had died of natural causes, rather than because of Brandywine’s conduct, had no effect on the realty company’s duty. Regardless of how the tree ended up in a condition of “deadness,” if its deadness was known by Brandywine or could have been known “by the exercise of ordinary case … then it became the duty of the defendant to exercise reasonable care and diligence to prevent the tree from falling and injuring those who might have occasion to use the public highway.”

Thus, the question of Brandywine’s alleged negligence was for the jury to pass upon. It did so, and found negligence. The Court found no basis for disturbing that finding.

As for “deadness” as a word – the dictionaries give the Court a pass on it, but as far as we’re concerned, the jury’s still out on that one …

TNLBGray140407

 

Case of the Day – Friday, April 18, 2014

DUMB ADULT STUNTS

bikefall140418We have two dumb adult stunts to consider today.  The first was Tom Alexson’s ill-advised decision, when he saw a tree branch laying on his bike path, to ride by and smoothly push it out of the way with his hand as he passed.  Kids, don’t attempt this at home!  Of course, it didn’t work, and he crashed into and over the limb, hurting himself badly.

The second dumb adult trick was Alexson’s unwillingness to accept the blame for his own stupidity.  He didn’t, of course – who does, these days? Instead, he sued the White Memorial Foundation, which owned the land and museum that stood on it.

The Foundation defended under the Connecticut Recreational Use Act, asking that the case be dismissed because no fee for use of the Foundation property, and Alexson was on the land for a recreational purpose.  Alexson’s crafty mouthpiece argued that the Foundation didn’t qualify, because it charged a fee to enter the museum.  But the Court ruled that it didn’t charge Alexson to ride his bike around the grounds, and that was good enough.  After all, he didn’t fall in the museum attic.

Aha140418A-ha, the lawyer cried, riding a bike isn’t listed as a specific recreational activity in the statute.  Horse hockey, the Court said.  The statute clearly doesn’t limit recreational activities to the one listed.  Lance Armstrong, after all, thinks bike riding is very recreational (and for years thought that taking banned drugs was not doping).

Yeah, argued Alexson, but the Foundation’s failure to warn me of the danger was willful or malicious.  Maybe so, the Court said, but Alexson needs to do more than just give the Court his rather slanted opinion that it’s so.

The case was tossed, as it should have been.  Dumb adult stunts, indeed.

Alexson v. White Memorial Foundation, Inc., Not Reported in A.2d, 2008 WL 803423 (Conn.Super., Mar. 5, 2008).  Workmen for the White Memorial Foundation were notified that a tree had fallen across a roadway on Foundation property. The workmen began to cut up fallen tree, but failed to complete the task before Alexson – who was riding his bicycle on the White property – saw some of the tree still blocking the roadway and decided that he could push the obstruction aside as he passed.  Instead, he collided and badly hurt himself.   

Alexson sued, alleging that the Foundation was careless and negligent in only partially removing the branch from a portion of roadway and that the Foundation’s failure to warn or guard against the obstruction was willful and intentional. The Foundation moved for summary judgment on the ground that General Statutes §52-557g, known as the recreational land use statute, made the Foundation immune. 

Held: The Foundation was protected by the Connecticut Recreational Use Act.  The Act provides that a landowner is immune from liability for simple negligence where: (1) the defendant is the owner of the land in question; (2) the defendant has made all or part of the land where the plaintiff was injured available for use to the public free of charge; and (3) the plaintiff, at the time that he was injured, was using the land for a recreational purpose.

Alexson argued that there was a genuine issue of material fact as to whether the Foundation made the land available to the public free of charge.  In addition, Alexson alleged that there was a genuine issue of material fact as to whether the exception to the recreational land use immunity statute, codified in §52-557h, applied to the defendant because, as alleged by the plaintiff, the defendant willfully and maliciously failed to warn against a dangerous and defective condition.

The Foundation said the land on which Alexson was injured was always available for recreational use to the public without charge.  Alexson admitted that on the day he was injured, he was not charged by the Foundation, and conceded that the only time he has been charged a fee was when he went inside the museum. The Court found that there was thus no genuine issue of material fact that the defendant Foundation made the part of the property on which Alexson was injured available, free of charge, to the public.

biketree140418The final prong of the statute required that the land be available for recreational purposes. Section 52-557f(4)(a) provides a list of activities that constitute a “recreational purpose,” and the list doesn’t include bicycle riding.  The Court observed, however, that, the statute clearly stated that “[r]ecreational purpose includes, but is not limited to, any of the following …”  It was evident, the Court held, that the enumerated activities set forth in the statute were not exclusive. 

Riding a bicycle, the Court said, fell within the penumbra of activities considered “recreational” for the purpose of the statute.  Therefore the Foundation satisfied the third prong of the statute. Thus, the defendant is entitled to statutory immunity, unless Alexson could show the Foundation had engaged in a willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.  The Court said the phrase “willful or malicious” meant conduct which must encompass both the physical act proscribed by the statute and its injurious consequences.

Willful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. Its characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Alexson’s conclusory statements in his complaint, coupled with the conclusory statements in his affidavit (the admissibility of which the Court found to be dubious at best) did not raise a genuine issue of material fact. The Court said the complaint was “bereft of the factual predicate necessary to lead a reasonable person to infer that the workmen intended to injure passers by, and this plaintiff in particular, by their actions.”

The dismissal of this ridiculous suit was upheld.

TNLBGray140407

Case of the Day – Thursday, April 17, 2014

IT WAS A DARK AND STORMY NIGHT …

 

Snoopy made the opening line of Paul Clifford one of the most famous in the history of pedestrian writing.

Snoopy made the opening line of Paul Clifford one of the most famous in the history of pedestrian writing.

         Or so begins Edward George Bulwer-Lytton’s 1830 novel, Paul Clifford, the opening line now famous thanks to Snoopy in the comic strip Peanuts and the fiction contest that bears the author’s name.  In today’s case, it really was a dark and stormy night when farmer Hays drove his truck through the Ohio countryside, past the golf course owned by the local lodge of the Benevolent and Protective Order of Elks.

         On this particular dark and stormy summer night, an oak tree by the side of the road, weakened and decayed after a lightning strike several years before, fell on Farmer Hays, bringing to a sudden end his time on this mortal coil. Subsequently, his estate sued the Elks, claiming the Lodge had been negligent in failing to do anything about the hazardous tree, despite the fact that its decrepit state was well known to the duffers.

         Relying on rather thin precedent, the trial court threw out the Hays descendents’ claim, holding that a rural landowner had no duty to protect travelers on the highway from the natural condition of trees on his or her property. The matter reached the Ohio Supreme Court in 1951.

         The Supreme Court started with the observation that the law permitted every landowner to make such use as the person’s property as he or she wishes, provided it is used in such a manner as not to invade the rights of others.  It then added flesh to that general rule, holding that while a rural landowner has no duty to inspect trees adjacent to a highway, when he or she has knowledge – actual or constructive – of a patently defective condition of a tree which may injure a traveler, the landowner must exercise reasonable care to prevent harm to people lawfully using the highway.

While there was little precedent in other states for the duty to act defined by the Hay court, the decision hardly came as a surprise.  The American Law Institute’s Restatement of the Law of Torts had previously held that while “[n]either a possessor of land, nor a lessor, vendor or other transferor thereof, is subject to liability for bodily harm caused to others outside the land by a natural condition of the land other than trees growing near a highway.” But it contained an important caveat. The Restatement – which tried to identify trends in the law – noted that its drafters expressed “no opinion as to whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

The ALI presciently foresaw evolution of the duty defined in Hay and cases in other jurisdictions that followed it. The Hay rule has since become a standard of care imposed by virtually all states.

These things happen ... but the landowner may be liable, depending on what he or she knew and when he or she knew it.

These things happen … but the landowner may be liable, depending on what he  knew and when he  knew it.

Hay v. Norwalk Lodge No. 730, B.P.O.E, 92 Ohio App. 14, 109 N.E.2d 481 (Ohio App. 6 Dist. 1951). Farmer Hay was driving his truck on New State Road when a large limb or limbs fell from a tree located on land owned by the local chapter of the Benevolent and Protective Order of Elks. The limb struck the top of the cab, injuring Mr. Hay so that he lost control of the truck, crashed into a tree, and died as a result of his injuries.

Mr. Hay’s Estate sued, alleging that the tree had been struck by lightning several years before, and was extensively damaged and weakened as a result. The complaint said the damage to the tree was visible and apparent for several years, and that after the tree was struck by lightning, apparent natural processes of decay set in and further weakened the tree and its branches, which extended over and above the traveled portion of the road. Finally, the complaint averred that the Elks knew that portions of the said tree extended over the road, that it had been struck by lightning, and the tree was thus weakened. The complaint concluded that the Elks had neglected to remove or to brace the damaged portions or to do anything to make the tree secure, and failed and neglected to give notice to motorists of the danger.

The trial court held that the Elks had no duty to Mr. Hay to alert him as to the danger tree, or to remove or trim it. It threw out the complaint. The matter ended up before the Ohio Supreme Court:

Held:  The Supreme Court reversed, and sent the case back for trial. It held that every person may make such use as he or she will of real property, provided he or she uses it in such manner as not to invade the rights of others. But in the case of rural landowners, this means that although there is no duty imposed upon the owner of property abutting a rural highway to inspect trees or to ascertain defects which may result in injury to motorists, an owner having actual or constructive knowledge of a patently defective condition of a tree which may result in injury to motorists must exercise reasonable care to prevent harm to people lawfully using the highway.

The Court noted that the only Ohio holding even close to its conclusion in this case was one in which the owner of property upon which a tree was situated was held to have the duty to exercise ordinary care for the safety of pedestrians using the sidewalk. However, the American Law Institute in Restatement of the Law had noted that its members were split, and thus had no opinion on “whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees ... but if the landowner knows there's a problem, he or she should attend to it.

Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees … but if the landowner knows there’s a problem, she should attend to it.

The Ohio Supreme Court observed that the law imposes upon every member of society the duty to refrain from conduct of a character likely to injure a person with whom he comes in contact and to use his own property in such a manner as not to injure that of another.  The justices reviewed cases from other states, which led the Court to the “conclusion that in the absence of knowledge of a defective condition of a branch of a tree which in the course of natural events is likely to fall and injure a person in the highway, no liability attaches to the owner of the tree. On the other hand, where the owner has knowledge of the dangerous condition of the tree or its branches, it is his duty to exercise reasonable care to prevent the fall of the tree or its branches into the highway.” The Court agreed with a Minnesota case that held that it was unreasonable to require the owner of rural land to inspect his property with regard to naturally arising defects, because of the burden thereby imposed upon the owner of large and unsettled tracts of land. But the Court rejected the Minnesota case’s conclusion that the owner was not liable even if he had actual knowledge.

The Ohio Supreme Court instead followed dictum from a Federal court decision that “an owner of property abutting a highway has the obligation to use reasonable care to keep his premises in such condition as not to endanger travelers in their lawful use of the highway. If he fails to do so and thereby renders the way unsafe for travel, he should be liable therefor. It is, therefore, concluded that, although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto to ascertain defects which may result in injury to a traveler on the highway, an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway. If the danger is apparent, which a person can see with his own eyes, and he fails to do so with the result that injury results to a traveler on the way, the owner is responsible because in the management of his property he has not acted as a reasonably prudent landowner would act.”

Because the complaint filed by the Hay Estate alleged that the Elks had actual knowledge of the decayed tree, the complaint made out a claim that, if true, would entitle the Estate to recover. The case was reinstated and sent back to the trial court.
TNLBGray140407

Case of the Day – Wednesday, April 16, 2014

THE GREAT FLOOD

 

The Tree and Neighbor Law crew, ready to get the timber to market.

The Tree and Neighbor Law crew is ready to get our timber to market.  But what if a flood commandeers our logs?

As the spring rains approach us, can the spring floods be far behind?  Many of us have our timber all harvested, awaiting the spring log drive downriver, just like our forefathers and foremothers did.

But what happens if the floods carry our logs away and deposit them on someone else’s property? It’s a concern that must keep countless Americans awake at night.   Fortunately, the question has come up before, and the answer’s not “finders, keepers.”

Back in postwar New York State – post-Civil War, that is – Sherman was just such a logger.   Log driving, now extinct, was the accepted means of delivering cut timber to market.  Back then, New York State a lot of cut timber. But before Sherman could drive his logs downriver, an act of God did it for him, and deposited them on Sheldon’s land.

‘Act of God?’ you say.  What did the Almighty have to do with some misplaced logs?  Well, theologically speaking, probably nothing … but this is the law we’re talking about. And the law had to find some way to define those events that were fortuitous and beyond anyone’s control. So the law did.

The New York Court of Appeals (the state’s highest court) explained acts of God as comprising “a large class of cases, in which injury is suffered by a party, where the law gives no redress … In these cases the injury arises from a fortuitous occurrence beyond the control of man. It is termed ‘the act of God’. The party through whom it occurs is not responsible for it. The party suffering must submit to it, as a providential dispensation.”

Of equal interest is the Court’s explanation of the rights of the owner of the logs (and face it, that’s why you’re reading this, with your pile of timber laying along the riverbank awaiting a race down the flue to a mill).   The Court held that Sherman’s logs were deposited on Sheldon’s land through no fault of the owner.   Because of this, not only was Sherman not liable when the logs ruined Sheldon’s prize vegetable garden, but Sherman had the right to go onto Sheldon’s land to get his logs, if he wanted to do so.

Not always the case, we come to find out ...

Not always the case, we come to find out …

Remember a few months ago, when we pondered whether you could cross the fence to collect the apples that had fallen from your tree onto your neighbor’s land? This decision seems to suggest that, if gravity is an act of God, you may do so.

Sheldon v. Sherman, 42 N.Y. 484 (1870). Sherman’s logs were carried down the river by a flood and deposited upon Sheldon’s land, without fault on Sherman’s part or of those building or having charge of the boom. Sheldon sued for damages due to the trespass of the logs. Sherman wanted his logs back. The trial court held that Sherman could recover his logs if he wanted to, but if he did, he would have to pay for whatever damage they had caused.

Sheldon thought he should be allowed to keep the logs regardless of Sherman’s desires. The case made its way to New York’s highest court, the New York Court of Appeals.

Held:  Sherman was not responsible for any injury arising from the logs being deposited on Sheldon’s land. Furthermore, if Sherman decided to abandon the logs where they lay, Sheldon could not force him to remove them. And if Sherman wanted the logs back, he may lawfully enter upon the premises to recapture his property.

logflow140416If Sherman does recover the logs, he then would be responsible for damages caused by the trespass. The Court said “[b]efore he can reclaim or recapture the property thus astray, justice and equity demand that he should make good the injury caused by its deposit and its continuance.”

The Court cited a prior holding that “[h]e who has found a thing that is lost is bound to preserve it, and to take care of it in order to restore it to its owner … And when he does restore it, he cannot detain any part of it nor demand anything for having found it. But he will recover only what expense he has been at … The proprietor of a ground on which is thrown the rubbish of a building that has fallen down, or that which a flood has carried away from another’s ground, is obliged to suffer him who has had the loss to take away what remains, and to allow him such free access to his grounds as is necessary for that end …”

Citing another earlier case with similar facts, the Court observed that no one there had questioned the authority to remove his logs. When he did so, he “became at once responsible for the payment of the damages. If [the owner] made no express promise to pay them, the law raises the promise and will sustain an action based upon it.”

TNLBGray140407