Case of the Day – Tuesday, March 31, 2015

SHOOTING THE MESSENGER

celltree150330Today’s case has nothing to do with trees, unless you count those awful faux-tree cellphone towers many cities are requiring cellphone carriers to erect. While not arboriculture related, today’s decision illustrates the danger of stretching causation, a risk that has reared its ugly head in tree liability cases before (as well shall see tomorrow).

Captain Robert Johnson was a jailer at the Lee Correctional Institution in South Carolina. As a correctional officer, Mr. Johnson was responsible for seizing cell phones and other contraband from inmates.

In March 2010, an assailant entered Mr. Johnson’s home and shot him six times in the chest and stomach. His wife, Mary Johnson, witnessed the attack. Mr. Johnson survived but underwent many surgeries and months of rehabilitation.

The U.S. Attorney for the District of South Carolina concluded after a thorough investigation that a group of inmates ordered the attack in retaliation for Mr. Johnson’s confiscation of their contraband cellphones and other goods. The U.S. Attorney found that an unnamed inmate had used a cellphone to communicate with the shooter, Sean Echols. That inmate also paid Echols. Echols eventually pled guilty to conspiracy to use interstate facilities in murder-for-hire under federal law.

This is where the case begins to provide a lesson for those of us interested in negligence. One would think that the wrongdoers would be sued – the conspirators, the shooter – but the Johnsons knew full well that the inmates didn’t have anything, and the shooter, who’s now serving 20 years, was unlikely to have much of a pocketbook, either. The challenge for the Johnsons’ attorney was to find someone with a deep pocket.

palsgraf150330He found someone (or several someones). Let’s shoot the messenger, or – in this case – the people who owned the medium used to delivered the conspirators’ messages. Using a “but for” analysis that would have impressed Mrs. Palsgraf, the Johnsons’ lawyer figured that but for the fact that cellphone towers were located near the prison, there wouldn’t have been any cellphone calls from the prison, and thus, no one could have called the shooter to importune him to shoot Capt. Johnson. For that matter, without cellphones, the prisoners wouldn’t have been stirred up to begin with.  So who should we sue?  The cellphone companies, of course, as well as the guy who owns the land the cell towers are sitting on, just for good measure.

Of course, this kind of attenuated reasoning is what makes fat people sue McDonalds for selling Big Macs (no Big Macs, no temptation, no overeating, no fat people), or why a man sued Walmart because a plastic bag of groceries split in the parking lot, a can of LaChoy fell on his wife’s foot, the foot became infected and she died. Really.

It’s too bad Capt. Johnson got shot, and we’re glad he recovered. But to conclude that cell carriers should pay is to stretch causation to the absurd. We blame the Johnson’s lawyer, who should have known better.

Johnson v. American Towers, LLC, Case No 13-1872 (4th Cir., Mar. 25, 2015).  Robert Johnson, a prison guard in Bishopville, South Carolina, was shot multiple times in his home. The ensuing investigation revealed that the attack was ordered by an inmate at the prison where Mr. Johnson worked, using a contraband cell phone. Mr. Johnson survived the attack and, with his wife, later brought suit. The Johnsons did not, however, sue the typical defendants – the shooter, a prison inmate or an employee. Rather, the Johnsons sued several cellular phone service providers and owners of cell phone towers, seeking to recover under state-law negligence and loss of consortium theories. The Johnsons alleged that the cell providers “were aware of the illegal use of cellphones by inmates using signals emitted and received at the defendants’ towers” and that “this use created an unreasonable risk of harm.” According to the Johnsons, the defendants failed to take steps to curb illegal cellphone use.

In the district court’s view, “the Johnsons’ argument suggests only a desire to conduct a fishing expedition to determine if there is any factual basis for asserting claims against any Defendants … This is not enough.”  Thus, the trial court dismissed the case on several technical issues, the most significant of which was that the complaint, even if true, could not make the cellphone companies liable.

The Johnsons appealed.

messenger150330Held:  The Johnsons’ claims fail due to the “speculative nature of their allegations.”

The Court of Appeals reviews rulings on motions to dismiss de novo, accepting all the factual allegations in the complaint as true, and drawing all reasonable inferences in the Johnsons’ favor.

Even reviewing the lower court’s decision according to this relaxed standard, the Court concluded that “the Johnsons have failed to allege sufficient facts to set forth a plausible claim for relief.” A complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face. A properly pleaded complaint must offer more than “’naked assertions’ devoid of ‘further factual enhancement.’” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. In other words, a complaint must include “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

The Johnsons’ complaint contained the bare assertion that “an inmate at the prison using a cellphone ordered a coconspirator outside of the prison to kill Captain Johnson.” The Fourth Circuit held that the Johnsons had failed to offer “any further factual enhancement to support their claims against the Defendants. For example, the Johnsons’ complaint does not identify the wireless service provider who carried the alleged call or when the alleged call occurred. Without more factual allegations, it is impossible for a district court to assess the Johnsons’ claims.”

The Court said that the complaint would leave the cellphone carriers unable to determine whether it carried the alleged call without more identifying information.

The appellate court said that the Johnsons were free to file a new lawsuit if they could come up with additional information, because the district court dismissed the complaint without prejudice. However, “as currently drafted … the complaint resembles a prohibited fishing expedition rather than a properly pleaded complaint.”

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And Now The News …

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hackberry150331Des Moines, Iowa, Register, March 30, 2015: Two nearly 200-year-old trees face the ax of ISU growth

There’s an unusual serenity created by a pair of giant trees that tower over a shady lawn on the Iowa State University campus. All around them are busy residence halls, fraternity and sorority houses, and new construction tucked into nearly every available space of the growing campus. The trees were here long before them all, likely planted by a landowner prior to the inception of Iowa State College in 1858. The 192-year-old hackberry and 171-year-old black walnut are Iowa native trees, the oldest of their species on campus, and both are Iowa State Champion trees of excellent health. They will be cut down this spring to make room for a new college dormitory …

Ogden, Utah, Standard Examiner, March 30, 2015: What do old trees tell us about future water?

When it’s wet, the trees flourish. When it’s dry, they’re stressed. All those responses show up in a tree’s rings. Using those ring records, dendrochronologists have been able to take a look back in time and get a sense of water and drought in the West. Last month, scientists at Utah State University, Brigham Young University and The U.S. Forest Service announced they’d traced the Bear River’s stream flow back 1,200 years. That’s long before Mormon pioneers started building the first towns and cities in the area, and longer than any other tree-ring record in northern Utah to date. “One of the key messages is there is no ‘normal,’” said Roger Kjelgren, a professor and plant scientist at USU. “(Northern Utah) really is like a grandfather clock. It oscillates back and forth, moving between orbiting around a dry period and then shifting and oscillating back to a wet period …”

oakinroad150331Lady Lake, Florida, Villages News, March 30, 2015: Trees at center of emotional battle being removed on County Road 121

A pair of 100-year-old oak trees that had been at the center of an emotional battle last year, are being removed. The trees on County Road 121 near Lake Miona had their limbs removed last week. The trunks and stumps will be removed soon. Last year, residents of the area persuaded the Sumter County Board of Commissioners to temporarily spare the trees, calling them part of their heritage. But now the pavement improvement program is marching forward. The road is narrow, there is no shoulder and the pavement is crumbling. “Safety concerns have overruled the preservation of those trees,” said County Administrator Bradley Arnold …

Mother Nature Network, March 30, 2015: The meaning of trees in a changing world

Nearly 15 years ago I wrote a story for the New York Times science section about the Champion Tree Project, an effort by a Michigan shade tree farmer and his sons to clone the largest tree of every species in the United States. A year later that farmer, David Milarch, showed up at my office in Helena, Montana, and told me the backstory. The genesis of his tree project was a near-death experience or NDE he’d had, and that light beings on the “other side” had told him that life on the planet was in trouble and that trees, especially old growth trees, were more important than we know. I was dumbfounded. I’d never heard of an NDE before and wasn’t sure what to think …Since my first story on Milarch he has continued his project, now called the Archangel Ancient Tree Archive. It’s a quest to make copies of old growth trees, especially redwoods and sequoias, and plant the offspring of those proven survivors, all to create living libraries of their DNA and new old growth forests, he says. He’s also cloned the living parts of stumps of some of the largest redwoods that ever lived. Last week he planted 10 of those redwoods at a place called the Lost Gardens of Heligan in the United Kingdom, owned by Sir Tim Smit, a renowned record producer …

London, UK, Mobot.com, March 30, 2015: Nature is fighting back as trees begin affecting mobile network reception

In wonderfully ironic news, it turns out that trees planted by network providers, to offset the construction of mobile masts back in the 90’s, have now grown so tall that they are hindering reception for customers. A survey by EE has discovered that almost a third of their 36,000 mobile masts are currently affected by trees overtaking them in height, and it appears there’s nothing they can do about it. This is because they aren’t allowed to chop the trees down or increase the height of the masts themselves …

oldtree150330London, UK, Independent, March 30, 2015: Reborn – the giant tree felled as a result of a bar-room wager

It would have been the biggest tree alive today had it not been so ignominiously felled in 1890 – reputedly to satisfy a drunken bet about making a table big enough to seat 40 guests from a single slice of tree-trunk. But after a century of being left for dead, a giant redwood that grew as tall as a 30-storey building over the course of nearly 4,000 years in northern California is about to be reborn as a clone planted on the coast of Cornwall, possibly as early as this spring. Scientists have managed to cultivate cuttings from the Fieldbrook Redwood Stump, which is 35ft (10.7m) in diameter, and 10 of its clones are now growing as knee-high saplings in the plant nursery at the Eden Project, near St Austell, as part of an ambitious plan to propagate and replant some of the oldest trees in America and Britain …

Western Springs, Illinois, Patch, March 30, 2015: ComEd to trim trees in Old Town North between April and May

ComEd is planning to trim trees in Old Town North, west of Central Avenue between Ogden Avenue and Willow Street, between April and May, according to the village. The tree trimming is part of ComEd’s vegetation management activities. ComEd will give notice to area residents when tree trimming is planned …

celltower150330London, UK, Daily Mail, March 30, 2015: Can’t get a phone signal? Maybe it’s because a third of Britain’s mobile masts are obscured by trees – and phone firms were ordered to plant them

Almost a third of Britain’s mobile phone masts are obscured by trees that phone firms were ordered to plant in the first place. Around 10,000 of the country’s 36,000 mobile phone towers struggle to pick up signals because they are surrounded by trees that operators were told to plant as they set up their networks during the 1990s. Planners ordered phone companies to screen their unsightly equipment with trees in rural areas, however they have since grown and are now blocking reception …

Charleston, South Carolina, Post and Courier, March 28, 2015: Trees and fungus that stink up your yard

Bradford pears stink. They smell bad but, horticulturally speaking, they stink in general. Some homeowners love the tree because it grows fast and provides a wonderful show of snowy flowers. Provided you don’t get close to the tree, the flowers are no problem. However, your yard might smell like fish. If that doesn’t bother you, here are some more reasons to dislike Bradford pears: They are inherently short-lived. The branching structure is flawed and there’s nothing you can do about it. In 20 years or so, a large limb will fall or the entire tree will split in half. And it gets worse. Bradford pear is a thornless, sterile tree. However, it has cross-pollinated with other nonsterile varieties of pear trees, such as the Cleveland callery pear, and resulted in the widespread dissemination of seeds via birds. As a result, the viable seed produces scrubby trees with thorns capable of puncturing tractor tires. Consider alternatives such as tupelo, pistache or willow oak …

Allentown, Pennsylvania, Morning Call, March 28, 2015: Allentown residents say city marked trees without warning

Allentonians have had a long love affair with their street trees. From towering sycamores to shady oaks, the trees spruce up the gray, urban landscape, especially in center city, where row homes leave little room for gardens. So it’s understandable why Bonnie Strunk Brasted and her husband, Jim Brasted, were upset to hear the city planned to uproot the tree in front of their North 11th Street home along with 38 others on a stretch from Hamilton Street to Chew Street. What is harder to believe is how the city failed to see that only trouble could come from initiating a project without first informing the neighborhood. And in the case of North 11th Street, that lack of wisdom is more perplexing since it’s where Mayor Ed Pawlowski lives, which means the concerned residents are his neighbors …

coaster150327Asbury Park, New Jersey, Press, March 26, 2015: Six Flags to cut down 18,000 trees to build NJ’s largest solar farm

Six Flags Great Adventure plans to clear more than 18,000 trees to build a 90-acre solar farm capable of meeting virtually all of the theme park’s electrical needs. At 21.9 megawatts, the facility would be the largest of its kind in New Jersey, generating enough energy to power about 3,100 homes. The ambitious project, which Bedminster-based KDC Solar LLC will construct, operate and own, is aimed at making Great Adventure the largest self-powered theme park in the U.S…

Juneau, Alaska, Empire, March 27, 2015: City’s citizens save the trees

Locals have embarked on a campaign for the salvation of forty Mountain Ash trees in Douglas. The City and Borough of Juneau streets division quietly recommended removing the trees in the Blueberry Hills subdivision late last year to make snow removal easier in the winter. Residents said they weren’t aware at first of the plan to remove the trees. Once they were, they made their voices heard …

trim150327Toronto, Ontario, Sun, March 26, 2015: The time to trim your trees is now

Believe it or not, now might be the ideal time to consider trimming the trees around your house. The milder temperatures make it bearable to be outside and new growth hasn’t quite started. You shouldn’t leave it too much longer especially if warmer than usual weather persists and tree leaves begin to sprout. Though trees are generally a desirable feature of home landscaping, they can pose a threat to people and buildings in a number of different ways …

Myall Lake, New South Wales, Austraila, Myall Coast News, March 27, 2015: Arborist report says Tea Gardens Coral Trees must go

An independent arborist report to the Great Lakes Council has ruled that the 60-year-old coral trees along Marine Drive, Tea Gardens should be removed. The council had previously announced its plans to remove the “unstable” trees, which were classified “noxious weeds” and known for dropping their limbs. Further to this the trees’ root systems were damaged during the road works making them even more unstable.  However, a strong community stand against the tree removal took place last year, but Deputy Mayor Len Roberts said it was time for the community to accept the fate of the trees. “The decision is clear – these trees need to be retired,” Roberts said …

Tulsa, Oklahoma, KRMG Radio, March 26, 2015: How to deal with storm-damaged trees

Several trees took damage in the strong storms that moved through the Tulsa area Wednesday evening. Some trees lost limbs, others completely fell down. Todd Rickert of Rickert Landscaping and Tree Service told KRMG the storm knocked down many dead trees that probably needed to be cut down anyway. Rickert said we’d have seen a lot more tree damage if the storm had in two weeks later. “It’s almost like holding a 2×4 up in the air versus holding a piece of plywood.” Rickert said …

branches150326Longview, Washington, Daily News, March 25, 2015: Damage caused by city trees rarely covered by city’s insurance

If a tree branch falls in the city and your car is there to catch it, will the city pay for it? Probably not. Anita Osorio learned that the hard way in October when she returned to her car after class at Lower Columbia College. She found the roof and hood of her 2013 Toyota Corrola were dented and part of her windshield smashed. But there was no branch or limb nearby — just a card left by the city of Longview. Osorio called, filed a claim and later had it denied, with the city’s insurance finding the damage no fault of the city …

Whistler, British Columbia, Pique Magazine, March 26, 2015: The champion trees of Congaree: South Carolina’s only national park

Surprisingly few people seem to know that South Carolina is home to a U.S. National Park. Even more surprising is that many South Carolina residents are unaware of the existence of this arbor jewelled swampland. Nevertheless, it is there in all its green glory — a park that harbours the largest intact expanse of old growth bottomland hardwood forest in North America, with a larger concentration of champion trees than anywhere else in the nation. Within this tract of incredible biodiversity are national and state champion trees such as the laurel oak, swamp tupelo, loblolly pine, sweetgum, and water tupelo. It has been said that Congaree National Park ranks as having some of the tallest trees in the world. According to the U.S. National Park Service, “…only the conifer forests of the Western U.S. coastal region are substantially taller. East of the Mississippi, just a few patches of white pine and some cove forests in Great Smoky Mountains NP are taller. When compared to all of the world’s forests, Congaree is among the tallest …”

New Orleans, Louisiana, NOLA Defender, March 26, 2015: Justice of the Trees: Group to file suit against city golf course

After letters to the editor, public meetings, and protestors in trees, the controversy over the new gold course in City Park is heading to the courts. Anti-course activists, the City Park for Everyone Coalition (CPEC) issued a release announcing their intention to seek an injunction halting construction on Thursday (3.26) morning. Represented by Galen Hair of Varadi, Hair & Checki, the CPEC says that they will file suit against Federal Emergency Management Agency (FEMA) and the City Park Improvement Association (CPMIA) in the Eastern District of Louisiana, at 8:30 a.m. In a statement, the group posited, “The Coalition regrets filing this lawsuit, but we can no longer watch this construction go forward. We believe that the planned golf course is likely to be an economic failure, is not wanted by a majority of the people of New Orleans, and has not been properly vetted with full public comment. The space that is being developed has been public wild space for almost 10 years. In that time, it has become a de-facto multi-use nature preserve …”

Saginaw, Michigan, WNEM-TV, March 25, 2015: Trees fall as construction project moves forward

The Michigan Department of Transportation has just started a major construction project on I-75 between Dixie Highway and Hess in Saginaw County. The plan includes adding a fourth lane to the interstate. But in order to do that, several trees need to be removed along the stretch. Many people are concerned about the environment, but also about the cost of hiring a tree removal company to take down the trees (Video report) …

Regina, Saskatchewan, CJME Radio, March 26, 2015: No pruning your elm trees this summer, Province reminds

The province is reminding people that elm trees cannot be pruned over the summer. The warning aims to stop the spread of the elm bark beetles which cause dutch elm disease. They’re most active in the summer and fresh cuts from pruning can attract them and infect the tree with the disease …

napa150325Napa Valley, California, Register, March 25, 2015: Input sought on plan to remove trees from elm tunnel

The St. Helena Tree Committee and Beringer Vineyards want more public input on Beringer’s plan to remove as many as four trees from the Highway 29 elm tunnel. Instead of taking a position on the plan during a special Tuesday meeting, the committee advised Debra Dommen, Beringer’s vice president for government and industry affairs, to take the matter to the City Council. “We really need more public input before we can take a position,” said committee member Kacey Stotesbery. Dommen said she hopes to get on the agenda for the council’s April 28 meeting, where she would explain how removing a few trees north of the Beringer driveway would create better sight lines and make it safer for drivers to exit Beringer.  Dommen said Beringer supports the elm tunnel, which is “part of what makes Beringer Beringer.” But drivers who have exited the property agree that safety is a concern, she said …

Stockton, California, Record, March 24, 2015: Fitzgerald: Saving trees in a fallen city

Stockton’s municipal forest is 100,000 trees in decline. City Manager Kurt Wilson was recently asked if the city can give them much-needed care now that it is out of bankruptcy. “The honest answer on this one is no,” Wilson said. “Just because we’re emerging from the bankruptcy process does not mean we can return to the pre-bankruptcy days as far as spending.” By way of further deflating comment, city spokesperson Connie Cochran added, “It’s important to understand we don’t have any additional funding. The bankruptcy exit plan that we have going forward is very fiscally conservative. It isn’t going to add new services. Or add services back.” Achieving total disenchantment lacks only Caltrans. The state highway outfit started its I-5 widening project in 2011 by mowing down 1,025 trees. It budgeted no money to replace them …

Gaithersburg, Maryland, Gazette, March 25, 2015: How PEPCO decides to trim or remove trees

On a cold, clear February morning, arborist Emily Fricke wore a hard hat and walked down Charles Road in Silver Spring, looking up at the trees. A geographic information system-enabled tablet was strapped to her hand. On her back was a pack with utility handouts, a can of blue spray paint for marking trees for removal and a GPS antenna. At each tree, Fricke stopped, put a marker on her tablet and considered the tree’s age, species, condition and how close its branches are to Pepco’s power lines. Fricke is one of 17 utility arborists paid to walk Pepco’s lines, plotting the location of trees and determining which should be trimmed, removed or left alone …

stump150325Topeka, Kansas, Capirtal-Journal, March 24, 2015: Decay, power line issues prompt city to remove 14 trees from near Holliday Building

“The wrong tree in the wrong place.” City of Topeka forester Adam Moser used that term Tuesday to describe trees the city had removed Monday from a parking lot just south of its Holliday Building. The city removed 14 trees — seven Silver Maples located just west of the 700 block of S.E. Jefferson, five Silver Maples located just north of the 400 block of S.E. 8th and two Bradford pears inside the lot. The city also was pruning 15 more trees located along S.E. Jefferson and Madison near the Holliday Building. Moser said they all were in decline and four were dead. “All of the trees were under the power lines and Westar did some significant line clearance to them this winter,” Moser said. “Once Westar had removed more than half of the canopy on each Silver Maple tree for line clearance purposes, the trees were no longer serving any use for shading the sidewalk or parking lot, the only half that was left on each tree hung over the roadway.” The major pruning cuts — along with the poor compartmentalization of decay in the Silver Maples — led the city to opt to remove all of them at the same time, Moser said …

Charleston, South Carolina, City Paper, March 24, 2015: I don’t believe the state’s explanation for cutting down trees

I very much like The Princess Bride, both the movie and novel. After all, what’s not to love about a story that’s got fencing, fighting, torture, revenge, giants, monsters, chases, escapes, true love, and miracles? But as much as I adore The Princess Bride, I still find flaws in it, and for me, the clearing of the Thieves Forest by Prince Humperdinck’s forces has always seemed the tiniest bit off. I suppose this is mostly because of the rather clumsy story Humperdinck gives his chief enforcer, Yellin, for wanting the forest cleared: a tale about foreign killers hiding in the forest. Yet Yellin buys the story, even after telling the prince he has no idea what he’s talking about. And we accept Humperdinck’s rationale because it sounds somewhat plausible. It just so happens that there are two similarly clumsy stories right now concerning forests in Charleston. Neither of these sit well with me either because I suspect that, like Yellin, we’re being told one thing so that something else can happen. On the one hand, there is the S.C. Department of Transportation’s much-discussed, much-delayed, and much-contested clearing of trees from the I-26 median between Summerville and I-95. Most of what we were told about the rationale — it was for “safety” reasons — hasn’t made much sense …

Hamilton, Ontario, Spectator, March 25, 2015: Pruning know-how can save your fruit trees

Men love doing it. Women worry about the repercussions. I’m talking, believe it or not, about pruning. It usually goes something like this: “I’m going to cut out all those excess branches,” he announces, waving the loppers at an overgrown tree (or shrub). “No! Don’t. Please,” she wails. “You might kill it.” As my colleague Mark Cullen pointed out a couple of weeks ago, in the marital dust-up department, finding common ground about this contentious task is as fraught with hazards as hanging wallpaper. But Cullen also pointed out that fruit trees should be pruned now while they’re dormant. If we don’t, he warns that they will be prone to disease, won’t grow properly and may not produce fruit …

walnut150323Salem, Oregon, Statesman-Journal, March 23, 2015: State hospital’s century-old black walnuts coming down

Fourteen hundred-year-old black walnut trees at the Oregon State Hospital campus are being cut down this week because they are infected with a newly discovered fungus called thousand cankers disease. “They were deemed to be diseased to the point they were dangerous there was so much dead wood,” said Amy Williams, spokeswoman for the Oregon Department of Administrative Services. Another 38 black walnuts on the campus are infected but are being pruned to save them as long as possible. The fungus that causes thousand cankers disease is spread by tiny twig beetles native to the Southwest. There, the beetles live on the Arizona walnut without causing any damage …

Dallas, Texas, KTVT-TV, March 23, 2015: Bill would allow businesses to cut down trees around billboards

A Texas lawmaker is proposing a bill that would establish a TxDOT-run tree trimming program so that billboards and other business signs would be more visible. Rep. Chris Paddie (R) from Marshall has introduced the legislation that would allow for businesses to petition to TxDOT for approval to trim or remove “seedlings, saplings, trees, and vegetation on the state highway” to provide “suitable visibility to adjacent businesses.” HB 1863 would require businesses to get permission before taking action, and businesses would be required to replace the vegetation removed or reimburse the department for its value …

protest150323Duluth, Minnesota, News Tribune, March 23, 2015: Despite pleas for trees, Duluth City Council backs 4th Street plan

Five speakers made impassioned pleas that Duluth send engineers back to the drawing board with the county’s plans to reconstruct East Fourth Street, but city councilors voted 8-1 Monday night in support of the project. As envisioned, efforts to rebuild the failing road could lead to the removal of about 200 mature shade trees, mostly silver maples. On Monday night, the council passed a resolution in support of a general design for the reconstructed road as proposed by St. Louis County, which owns the street. But the project will return to the council in finer detail for a final vote in the fall. At that time, the council will weigh in not only on the road but also on the plan to replant boulevard trees. “It is absolutely vital that the replanting be done properly,” said 2nd District Councilor Joel Sipress, adding that the city will also require a plan for the continued care of any newly planted replacement trees …

USA Today, March 23, 2015: Study: Beetle-killed trees don’t increase fire danger

The devastation wrought on Western forests by the tiny mountain pine beetle appears to have little impact on the size and severity of wildfires, a new study concludes. The study refutes fears by firefighters that the millions of acres of beetle-killed trees are a tinderbox waiting to explode with usually ferocious fires. The University of Colorado-Boulder study instead suggested that wildfires burn equally in live and dead forests, and said drought and climate change are more significant factors. “The bottom line is that forests infested by the mountain pine beetle are not more likely to burn at a regional scale,” Sarah Hart, the lead study author and a postdoctoral researcher, said in a statement. “We found that alterations in the forest infested by the mountain pine beetle are not as important in fires as overriding drivers like climate and topography …”

hammock150318New Orleans, Louisiana, Times Picayune, March 20, 2015: OK for hammocks to hang around Mandeville trees, mayor says

Those who enjoy attaching hammocks to the trees on the Mandeville lakefront will apparently be allowed to hang around. After concerns were raised recently about the popular tree hammocks, Mayor Donald Villere said he consulted with two arborists who said the practice would not hurt the giant lakefront oaks so long as the devices were properly affixed to the trees. The arborists inspected the trees after citizens questioned whether the hammocks could damage the iconic oaks that line Lake Pontchartrain. Councilman Ernest Burguieres also said he would consider offering legislation to ban the hammocks if it was determined they were causing damage to the trees. On Thursday (March 19), Villere said he met with arborists Malcolm Guidry and Maggie Gleason to examine the trees and determine if they were being harmed by the hammocks, which are designed with wide fabric straps purportedly to ensure no damage occurs to the trees to which they are fastened. “Their investigation concluded that no harm has come to any trees as a result of hammocks,” Villere said in a news release. “This is good news for those who enjoy relaxing by the water …”

Billings, Montana, KULR-TV, March 22, 2015: Are trees in your yard turning brown?

If you’ve been enjoying the nice weather, you might have noticed trees and bushes that are usually evergreen, have turned a rusty brown color. Back in November, there were several cold days that these plants weren’t ready for. Amy Grandpre, a horticulturist, said if you have any of these trees in your yard, you’re just going to have to wait it out. She said if the branches don’t break when you bend them, your tree is fine. “It could take a couple years or so for the needles to replace themselves back to that green color,” Grandpre said. She also said Junipers and Arbor Vitae are the trees most heavily impacted by this browning …

redwood150323London, UK, Guardian, March 22, 2015: Eden Project scheme will preserve coast redwood trees for future generations

At the moment they are whippy saplings needing the support of canes to stand straight. Over hundreds – and hopefully thousands – of years, they will soar high into the Cornish sky. Clones of some of the oldest and biggest coast redwoods have been flown in from the western seaboard of the USA to the Eden Project in the far south-west of Britain as part of a hugely ambitious scheme to preserve the magnificent trees for future generations …

Savannah, Georgia, Morning News, March 21, 2015: Doomed trees raise questions about planned sidewalks

When bright pink survey tape appeared recently on seven live oaks on Johnny Mercer Boulevard, alarm bells sounded at the Wilmington Island Garden Club. “I think it’s senseless to cut those trees down and put in a sidewalk,” said club president Jan Lynes. The oaks dot the stretch of Johnny Mercer from Bradley Point Road to Bryan Woods Road. If they’re removed for a path, Garden Club members say it would be a “sidewalk to nowhere …”

Tacoma, Washington, News Tribune, March 22, 2015: Hundreds of trees removed from Oakbrook Country Club to improve turf health

Massive fir branches strewn across sections of the Oakbrook Golf and Country Club last week made it look like a hurricane ripped through the course that’s nestled in Lakewood’s Oakbrook community. An act of nature didn’t take down the more than 400 giant trees from the 124-acre public course. Course owner RMG Club did. “We’re simply harvesting and getting them out of the way to improve the golf course itself and the playing conditions,” said RMG chief executive officer Mike Moore. He spent the last two weeks monitoring the removal and fielding questions from passersby …

debra150320Phys.org, March 19, 2015: Researchers create fast-growing trees that are easier to turn into fuel

Researchers at the University of Georgia have discovered that manipulation of a specific gene in a hardwood tree species not only makes it easier to break down the wood into fuel, but also significantly increases tree growth. In a paper published recently in Biotechnology for Biofuels, the researchers describe how decreasing the expression of a gene called GAUT12.1 leads to a reduction in xylan and pectin, two major components of plant cell walls that make them resistant to the enzymes and chemicals used to extract the fermentable sugars used to create biofuels. “This research gives us important clues about the genes that control plant structures and how we can manipulate them to our advantage,” said study co-author Debra Mohnen, a professor of biochemistry and molecular biology in the Franklin College of Arts and Sciences. “The difficulty of breaking down the complicated plant cell wall is a major obstacle to the cost-effective production of biofuels, and this discovery may pave the way for new techniques that make that process more economically viable …”

Sacramento, California, KXTV, March 19, 2015: Farmer removes non-native trees to save water

A Solano County farmer is removing eucalyptus trees from areas surrounding his walnut orchard to conserve water for his crops. Video report …

Wilmington, North Carolina, Star News, March 19. 2015: Wrightsville Beach residents keep Duke Energy from cutting trees

It’s no surprise the residents on Live Oak Drive hold the trees in high regard. Disappointed in the way Duke Energy contractors were slicing and dicing trees earlier this week, residents successfully prevented crews from touching some live oaks. The reprieve was for trees that have stood longer than the homes have been there, said David Cignotti, the town’s former mayor and 28-year resident of the lush residential street. Duke previously announced it would be trimming trees on the New Hanover County island. The utility said the work is necessary for line worker safety and to limit storm-related power failures. Before crews rolled down Live Oak Drive Tuesday, Duke dispatched a representative to speak with residents. Initially, the crews trimmed trees appropriately on about two-third of the street, Cignotti said. Then it all went downhill …

hanoi150320Bangkok, Thailand, Post, March 20, 2015: Protests halt Hanoi plan to fell 6,700 trees

Mayor Nguyen The Thao has halted a plan to cut down 6,700 trees following criticism voiced by the capital’s residents, according to local media. A Facebook page titled “6,700 people for 6,700 trees” protesting the plan has already attracted more than 41,000 “likes” since being set up on Tuesday. The chairman of Hanoi’s People’s Committee, the top official in the city, told officials from the construction department Thursday to revise the plan, the Dan Tri newspaper reported. Officials said the $3.4-million landscaping project would replace rotten and “ugly” trees as well as make way for construction projects, but these projects were not defined, newspaper Thanh Nien reported. Critics have slammed it as wasteful and concerns have been raised over a reduction in the city’s green space …

Edmonton, Alberta, Journal, March 19, 2015: Should Edmonton save the trees?

It feels good to save a tree. It’s a home for the birds, it’s a carbon sink, it likely makes you feel less stressed when you see its green leaves (or needles) out your window. But should the city regulate this? Does city hall need a new policy to force home owners to consider the trees and take steps to protect them when they tear down a house and build new in mature neighborhoods? After all, some say, isn’t that tree-lined street one of the reasons the homeowner bought there to begin with? Coun. Michael Walters has a motion in the works to ask the city to do just that …

Huffington Post, March 20, 2015: How city trees, related vegetation reduce pollution, improve health

The National Arbor Day Foundation has a simple app on its website that allows visitors to see how a city changes as it adds tree cover and other vegetation. Using a little sliding tool, one can gradually change the illustration from one with few trees to one with abundant trees. The difference is striking: everyone I know would prefer to live in the greener city …

amazon150319New York City, Wall Street Journal, March 18, 2015: Amazon absorbs less carbon dioxide as trees die off, study says

The Amazon rain forest has long absorbed more carbon than it releases and acted as a vital brake on climate change. An extensive study now suggests that it is losing its ability to suck up the excess carbon dioxide being emitted into the atmosphere by human activities. The main reason: the large-scale death of trees in the rain forest, according to the study. Mortality rates of trees in the region have increased by more than a third since the mid-1980s. As a result, the amount of new carbon stored each year — in the form of growing tree stems, new leaves, roots and organic matter in the soil — is diminishing, the study says …

London, UK, Daily Mail, March 18, 2015: Olive oil price to soar as bug kills trees: EU orders felling of 11 million trees in Southern Italy that are infected with deadly microbe

The price of olive oil is expected to rocket after the EU ordered the felling of millions of trees infected with a deadly microbe. Brussels has recommended that about 11million olive trees in southern Italy, many centuries old, be chopped down. They have been infected with Xylella fastidiosa, a bacterium spread by an aphid. The disease, first identified in the Americas has already wiped out a million trees in Salento, southern Puglia. It is feared that unless drastic action is taken to fell the groves, the bacterium will spread to other olive-producing regions of Italy such as Tuscany and Umbria, and even to other Mediterranean countries …

South Bend, Indiana, Tribune, March 18, 2015: Trees felled in Central Park

treecut150319When Ron DeWinter took a casual, midday walk Monday from his house to Central Park, he was shocked — and heartbroken — to see four towering cottonwood trees that were being chopped down. “They’re not hurting anybody,” he said of what appeared to be healthy trees in the park, along the Riverwalk at downtown’s northern edge. The city had originally planned to keep the cottonwoods. But, as workers set new concrete paths and dug out the former softball fields in the park’s $4.8 million makeover, limbs fell on or near the paths, City Planner Ken Prince said. “We wrestled with this issue as part of the design,” Prince said. “We originally had identified these trees to be saved. … Although very old, they have soft wood. We have branches fall constantly. In this case, our new restroom building is in the fall zone of the grouping that is coming out now …”

Matawan, New Jersey, Patch, March 18, 2015: Energy company to trim trees in Matawan this month

Jersey Central Power & Light (JCP&L) plans to trim trees in 60 municipalities, including Matawan, this month to help maintain proper clearances around electrical equipment and help prevent tree-related damage, the company said in a news release. The work is part of a roughly $24 million tree trimming program this year. Trees will be trimmed along more than 3,300 miles of lines in 13 counties. “Our tree trimming program is one of the proactive steps we take to help reduce the number of outages our customers might experience,” Anthony Hurley, JCP&L vice president of operations said in a prepared statement. “Tree trimming work makes a difference. In 2014, we saw a 22 percent decrease in tree-related outages compared to the previous year, which we attribute mainly to the tree maintenance work we have done in the past …”

Windsor, Ontario, Star, March 18, 2015: Province investigating after South Windsor trees begin to fall

Enforcement officers with Ontario’s Ministry of Natural Resources and Forestry are investigating after a contractor began clear-cutting one of Windsor’s largest remaining woodlots. Area residents and their city councillor are demanding answers after heavy equipment and chainsaw-wielding workers moved in last Friday to begin clearing trees in a large undeveloped parcel of land south off Totten Street and west of Dominion Boulevard. The work was continuing this week. South Windsor’s “hole of the doughnut” is being cleared of trees and natural vegetation in preparation for development, but that is not sitting well with neighbours concerned the work is being carried out without proper government oversight …

logs150318Ocala, Florida, Star-Banner, March 17, 2015: Ocala failed to get approval before cutting trees in park

The Florida Department of Environmental Protection has told the city of Ocala to stop any more land clearing or alterations at the Heritage Nature Conservancy park, at 2005 NE Third St., until the state can access what agreements the city violated by taking down trees when it expanded a drainage retention pond to alleviate area flooding. At the very least, the city failed to get the written permission needed from the Florida Communities Trust, which is administered by the FDEP, in advance of any changes it was making to the 11-acre property …

Bethesda, Maryland, Bethesda Now, March 17, 2015: New middle school would take out too many trees, planners say

The design for a new Bethesda-Chevy Chase cluster middle school would take out too many trees, according to Montgomery County planners. The Planning Board is set to review the school system’s preferred design for the yet-to-be-named Bethesda-Chevy Chase Middle School No. 2 next week. In their report, planning staff says they’re working with MCPS on a new entrance and parent drop-off loop that will mean fewer trees are removed for the project ...

hammock150318New Orleans, Louisiana, Times-Picayune, March 17, 2015: Hammocks might be banned from trees on Mandeville waterfront

The giant oak trees that grace the Mandeville lakefront are among the city’s most cherished natural assets and there appears to be growing concerns that hanging hammocks from them might not be a good idea. City Councilman Ernest Burguieres, who represents the lakefront area, said he is considering proposing a law to prevent the practice of allowing people to hang out in the ageless trees. Burguieres said he’s aware of some residents’ concerns that the suddenly popular hammocks, which are designed to hang from trees, could do harm to the oaks that line Lake Pontchartrain. The city’s lakefront has become a popular location for people – mostly teenagers – to install hammocks on trees …

Aurora, Ohio, Advocate, March 18, 2015: Proper pruning is important for street and lawn trees

Street trees are typically located within the street right-of-way which may be between the road and the sidewalk commonly called the “tree lawn.” The trees are almost exclusively dependent on humans for their survival. They are planted in the most intolerable sites and conditions with everything from sterile soils to salt spray waiting to cause their demise. Street trees are typically solitary trees due to spacing codes and ordinances. These spacing restrictions are necessary for safety, health and beauty of the tree …

Merced, California, Sun Star, March 17, 2015: City to add trees to south Merced park, but residents say it’s not enough

The city of Merced expects to add 10 new trees to a south Merced park beginning this week, replacing those removed in late 2013, but it’ll be several years before the saplings will provide the shade residents are looking for. Those trees, which were already purchased for McNamara Park, cost the Parks and Recreation budget about $1,100. To make up for the little shade the 24-inch trees will provide, the Merced City Council also approved three to five shade structures at $1,000 each …

citrus150317Palm Beach, Florida, Post, March 13, 2015: Unique verdict: State must pay for citrus it cut based on tree height

The state should pay an estimated $16.1 million to reimburse more than 26,000 Palm Beach County residents for cutting down their cit-rus trees as part of a failed $1 billion canker eradication program, a jury decided Friday. The verdict, which came after roughly seven hours of deliberation over two days, was stunning in both its amount and its detail, attorneys representing homeowners in the long-running class-action lawsuit said …

KCVR-TV, Sacramento, California, March 16, 2015: Davis Man’s solution for allergy problems? Ask city to break out chain saw for trees

A line of trees is in jeopardy of being chopped down in Davis, all because of one homeowner’s allergies. The Chinese tallow trees have been on Davis streets since 1976, but now one homeowner says the three in front of his home are a hazard to his health. The trees leave a layer of powdery pollen that Ricardo Amon says cause him health problems. Amon did not want to be interviewed. His request to the Davis City Council included a note from his doctor saying he needs allergy shots and suffers from shortness of breath. “So what? Take a little allergy medicine, don’t worry about it,” said Evelyn Healy. Last year, the Davis Tree Commission listed the trees in good health, and denied the homeowners’ request to remove them …

ZME Science, March 17, 2015: Trees store water in their ‘food tubes’, surpris-ing research finds

In the first study of its kind, scientists from the Hawkesbury Institute for the Environment at the University of Western Sydney in Australia have used fluorescent dyes to map the flow of water through trees and see how the liquid circulates through the plants. They found that the direction is not only vertical, as was previously thought, but also horizontal. This process supports the observations on how trees shrink and expand each day (ex-cluding growth) …

Santa Maria, Florida, Times, March 16, 2015: Removal of trees sparks complaints

Workers began removing several palm trees along East Pine Avenue on Monday to make way for a new sidewalk, leaving some residents displeased with the forced eradication. County resident Clifford Leyva, who works in the city, said he was outraged when he witnessed some of the trees being re-moved Monday morning. Leyva said that, if not for work, he would have con-sidered chaining himself to a tree to stop the process. “I’m not a tree hug-ger, but these are beautiful trees and I just think they could’ve taken them out and moved them,” he said …

cherry150316Examiner.com, March 15, 2015: The trees will be blooming at D.C.’s National Cherry Blossom Festival

You know that Spring is finally arriving when Washington D.C.’s more than 3,000 cherry trees start to blossom. Between March 20 and April 12 visitors can watch the thousands of delicate pink-white blossoms burst into bloom at the Tidal Basin in West Potomac Park, at Hains Point in East Potomac Park and around the grounds of the Washington Monument at Washington D.C.’s 103rd annual National Cherry Blossom Festival …

Bethlehem, Pennsylvania, Morning Call, March 15, 2015: Burnside’s apple trees get a trim

The apple orchard in Bethlehem’s historic Burnside Plantation looks angry at winter’s end. If they are left alone, the trees will put much of their energy toward growing branches, diverting energy from the mature ones that can bear fruit.  The result? Mostly small, sour fruit that tastes good only to the police horses stabled nearby. So, an effort is underway to sweeten up the trees by spring. A team of professional pruners has taken to the orchard for a five-day rescue plan. Perched in the thick of the trees, they began sawing off half of the non-fruit bearing branches. The cuts they make will open up the trees, allowing air and sunlight to circulate so that one day they will bear big, delicious fruit …

The Conversation, March 15, 2015: You don’t have to be barking to think trees are like us

Trees’ lives span of hundreds – and in some instances thousands – of years, and they will die at exactly the same location they were born. It looks to us like trees have no eyes, ears, heart, voice, nerves, lungs, intestines, blood or brain. But that’s not entirely true. Trees are more like us than we might think. Just not in a way we might expect. It’s just that trees operate at very different timescales to ours. To fully grasp how active these organisms are it is worth readjusting our anthropocentric view on them …

peach150316Augusta, Georgia, Chronicle, March 15, 2015: Peach trees begin blooming in Edgefield County

Jason Rodgers doesn’t mind comparing the tendencies of peach trees to humans. “When it’s warm outside, they want to come out,” said Rodgers, the vice president of operations at Titan Peach Farms. “And similar to us, when it’s cold, they’ll do their best to stay inside.” This week, thousands of acres of peach trees began showing pink blossoms as spring-like temperatures hit Edgefield County. Farmers are hoping to keep the warm weather, as peach trees normally bloom between March 10 and 25. A late freeze could cause severe crop damage. “Weather can change at any moment, but right now the long-term forecast looks very positive,” said peach farmer Sonny Yonce III, of J.W. Yonce & Sons Inc., in Johnston, S.C. “We have to hope an unexpected freeze doesn’t happen or there won’t be many peaches this season …

Watertown, New York, Daily Times, March 16, 2015: Ash trees across the U.S. being removed due to emerald ash borer

Since she was a child, the giant ash tree that towered over Rebecca Robinson’s small home offered a cool refuge during sultry Midwest summer days in Waterloo, a leafy Iowa city that’s home to about 4,000 ashes.  But work crews have toppled Robinson’s tree. Soon, nearly all of Waterloo’s ash trees will be gone too — though many are perfectly healthy — as big cities and small towns from Pennsylvania to Colorado surrender to a small, shiny bug by preemptively eliminating a big part of their urban foliage …

citrus150313Palm Beach, Florida, Post, March 12, 2015: Jury deciding if PBC residents will get millions for destroyed trees

A jury is deliberating whether the state should pay as much as $27 million to roughly 26,000 Palm Beach County residents whose citrus trees were destroyed under a failed $1 billion program designed to eradicate citrus canker.  The 12 jurors began deliberating this afternoon after listening to wildly different views about how much the trees were worth. To attorneys representing the homeowners in the class-action lawsuit, the state should pay top dollar for the trees that were taken from private property. During closing arguments, attorney Robert Gilbert gave jurors a range of prices to consider. At most, there is justification for them to order the state to pay homeowners $27 million – or roughly $409 a tree. But at a minimum, he said, the state should pay $17 million – or $259 a tree – for the 66,491 trees that were cut down from roughly 2000 to 2006 …

Jacksonville, Florida, WJAX-TV, March 12, 2015: 120 local trees waiting to be removed by city

Four years after a Jacksonville teen was paralyzed by a falling tree limb, Action News is looking into how quickly the city is removing reported dead trees. Aubrey Stewart was 15 when a tree limb fell and crushed him in 2011. Four hundred and five trees were slated for removal that year. We checked and found there are about 120 on the current list, some with estimated completion date of a year after it was reported …

Columbus, Nebraska, Banner-Press, March 13, 2015: Urban trees face “Survivor” style challenges

They might best be compared to contestants on reality shows like “Survivor” where an average American, happy in the life they lead, is plucked out of a life of comfort, companionship and opportunity. For our viewing pleasure they are moved to a deserted island, along with a handful of strangers, and forced to scrape out an existence far away from the civilization they are accustomed to. In a similar manner, urban trees also are taken away from their usual circumstances and placed in an unfamiliar and challenging environment. Recent studies have been undertaken with the hope that understanding that disparity, and incorporating as much of their natural habitat as possible in this new environment, might help us more successfully integrate trees into heavily populated areas …

whittier150313Whittier, California, San Gabriel Valley Tribune, March 13, 2015: Diamond Bar residents win fight to save trees on Morning Canyon Road

Concerned about a city plan to remove 16 towering Italian Stone Pine trees, residents of Morning Canyon Road forced a compromise with city hall. Most of the 50-year-old trees will stay, and the street will be narrowed to accommodate their massive root systems. “These trees are very important to us,” said Frank Warner. “Everyone comments on how beautiful these trees are. They bring a lot of value to the residents.” In March of 2004, the city spent more than $100,000 to trim roots and repour the sidewalk. And as recently as September, the city spent another $10,000 to fix a bad section. City staff said West Coast Arborists warned them that cutting any more of the roots may compromise the stability of the towering trees …

Gainesville, Georgia, Times, March 12, 2015: How to save your trees damaged by winter weather

This past ice storm proved to be very interesting for a lot of people. I know spending a few days without power was a challenge for many. No heat or water for those who are on a well make us all appreciative of the convenience of having power. The trees around the county really took a beating, too. I have received many calls or emails from people wondering if they could save a tree or not. Sometimes saving a tree is impossible. Or sometimes it’s a guessing game …

Miami, Florida, Herald, March 13, 2015: Trump’s trees to be moved; residents to regain a fraction of their view

Donald Trump’s trees will soon be on the move. In the coming months, Doral Park homes that lost their golf course views last year will gain back a fraction of their fairways. When Trump started to renovate Trump National Doral in 2012, he decided to install a fence of bushy areca palms along the perimeter of the courses, adjoining residents’ homes. The areca palms irked more than 2,500 homeowners whose former views of green, curvy hills or glassy waters were now blocked by trees that grow dozens of feet high. Trump said his intention was to give golfers a feeling of isolation from everything but the course. However, neighbors protested, saying that The Donald took something valuable away from them — their unobstructed views of the greens and fairways. After months of residents petitioning, talking about filing lawsuits and asking Doral city officials to mediate between them and Trump — who has legal rights to the properties — a proposal has been approved to reposition the trees …

Rolling Stone, March 13, 2015: The fate of trees: How climate change may alter forests worldwide

In May 2011, a postdoctoral student at Los Alamos National Laboratory named Park Williams set out to predict the future of the dominant iconic conifers of the American Southwest — the Douglas fir, the piñon pine and the ponderosa pine. As the planet warms, the Southwest is projected to dry out and heat up unusually fast — few places will be more punishing to trees. Williams couldn’t rely on climate models, whose representations of terrestrial vegetation remain crudely unspecific. He needed a formula that could accurately weigh the variables of heat, aridity and precipitation, and translate atmospheric projections into a unified measure of forest health …

seedling150312Scientific American, March 11, 2015: Ancient trees sprout new life

Tucked away in the rolling hills of northern Michigan a once-dilapidated warehouse in the town of Copemish now brims with thousands of tiny saplings. But these trees are not as young as their sizes would suggest. A nonprofit, Archangel Ancient Tree Archive, has cloned from tissue samples of some of the world’s oldest and largest trees found across the U.S. and beyond—some more than two millennia old. “Most coast redwoods and other trees don’t live to be a thousand years old, but some live to be 2,000 or more and we don’t know why,” says David Milarch, lifelong nurseryman who co-founded the Champion Tree Project in 1994, which became Archangel 14 years later. But deforestation has rapidly decimated old-growth forests and has done so before scientists got much of a chance to study the genomes and even the ecology of such “champion trees.” In the U.S. only about 2 percent of its old-growth forests remain. Milarch uses the saplings to act as “living archives” to create or rehabilitate forests …

Abilene, Texas, Reporter-News, March 11, 2015: Trees can pose hazards for power lines

As leaves grow in the spring, so do potential problems involving trees and power lines, local utility officials say. “When you’re having growth, leaves on the trees, that’s the worst time,” said Greg Blair, customer service manager for American Electric Power Texas. AEP Texas is responsible for maintaining primary lines, such as those running from pole to pole. Property owners are responsible for lines that run from the pole to their home or business, according to aeptexas.com. Property owners have no legal responsibility to keep their lines clear because the only property affected would be their own, AEP official said. But not keeping them clear could result in a financial hit …

crane150312Hampshire, Massachusetts, Gazette, March 11, 2015: Removal of thousands of sick red pine trees said necessary to save the forest growth underneath

Using an enormous crane, tree workers are removing piece by piece red pines towering up to 100 feet high off Chesterfield Road, painstaking work that will remove dying trees while protecting the smaller maple forest below. The work, on a 21-acre parcel of city property that falls between a stream and Chesterfield Road near Kennedy and Reservoir roads, ultimately will remove 2,151 trees, of which 429 are already dead, according to Nicole Sanford, senior environmental scientist with the city’s Department of Public Works. “It’s not traditional logging, it’s more like tree service removal,” Sanford said this week. Cotton Tree Service in Northampton is doing the work in that area of the woods, but the cutting is part of a much larger effort that ultimately will take down thousand of trees contained in 37 red pine stands on 234 acres of watershed land around the city. Other tree companies have been commissioned to do the work in other sections of the city. The entire project could take up to three years …

Science Daily, March 11, 2015: CT scanning shows why tilting trees produce better biofuel

Imperial researchers have used medical imaging techniques to explore why making willow trees grow at an angle can vastly improve their biofuel yields. Using micro-CT scans, the team showed that the trees respond to being tilted by producing a sugar-rich, gelatinous fibre, which helps them stay upright. Willows are suitable for widespread cultivation as biofuels because they produce large quantities of accessible sugar, are fast-growing and can tolerate harsh environmental conditions, such as windy slopes and poor soil. In fact, trees grown in harsher conditions or polluted soil can even produce better biofuel because the sugar they produce is more accessible, requiring less energy to harvest it. Growing the willow trees at a 45-degree angle simulates this natural stress, encouraging the trees to produce up to five times more sugar than plants grown normally. But exactly why and how this happens has not been clear until now …

birch150311Duluth, Minnesota, News Tribune, March 10, 2015: Health-drink craze taps birch trees

The latest in a long line of energizing drinks could come from a tree. Birch tree water is poised to be the hip new health drink of choice. Harvested from the sap of silver birch trees and bottled immediately, the drink has many health-giving properties, from decreasing cellulite to detoxifying the body, its makers claim. Like the wildly popular coconut water ($300 million in U.S. sales last year), birch sap is low in calories. It has hydrating electrolytes, antioxidants and contains saponins, which proponents say may help to reduce cholesterol levels …

Wilmington, Delaware, News Journal, March 10, 2015: Did You Know: Delaware’s lost trees

A 1796 map shows the Great Cypress Swamp covering 50,000 acres in Delaware and Maryland with bald cypress and Atlantic cedar. No longer. In 1895, when the peach blossom was declared Delaware’s state flower, more than 800,000 peach trees in the state provided a wealthy fruit harvest. At the same time, one in every four hardwoods in Eastern forests was an American chestnut. No longer. In 1939, when the American holly was declared Delaware’s state tree, its berried branches had for decades been the nation’s most important source for Christmas decorating. No longer …

Queen Anne News, March 10, 2015: Trees to be removed in major pipe replacement

The prospect of an underground digging project is enough to make any current Seattle resident cringe. But King County officials are assuring the public that the micro-tunneling that will be done to replace a nearly 100-year-old pipe between Queen Anne and Fremont is no Bertha. “The only commonality is that they both dig holes underground,” said Doug Marsano, community relations lead with the King County Wastewater Treatment Division. “It’s a different technology entirely.” Unlike Bertha, the world’s largest-diameter tunneling machine that is still recovering from its attempt at replacing Seattle’s Alaskan Way Viaduct, micro-tunneling uses a small boring machine that’s remotely controlled from the surface and installs pipes up to 6 feet in diameter …

North Platte, Nebraska, Telegraph, March 11, 2015: Trees take work

Nebraska is a unique state, said Lyle Minshull, supervisor of North Platte city parks and cemetery. What gets planted in one part of the state might not grow elsewhere. It’s one of the problems faced by Minshull in educating people across the state about planting and caring for trees. Along with working for the city, Minshull is chairman of the Nebraska Community Forestry Council, which promotes stewardship of community forests that could include arboretums but might also be the trees in a neighborhood or on a street. Minshull said the addition of trees to homes and businesses can add value to property, along with shade and beauty. He’s been working with others in the state to determine which trees can grow well in different communities. Maples are an example he used. Some species of the tree might thrive in Omaha but could react poorly to the acidity of the water and soil in North Platte …

saw150310Des Moines, Iowa, KCCI-TV, March 9, 2015: 300 trees must be removed by bat breeding season

More than 300 trees have been removed in Bettendorf as part of a project to build a new Interstate 74 bridge connecting the city with Moline, Illinois. The Quad-City Times newspaper reports the trees were removed to make way for work on the realignment and reconstruction of certain streets in Bettendorf. Doug Rick, the I-74 project manager for the Iowa Department of Transportation, says the tree removal must be finished this month because the breeding period of an endangered bat begins April 1. Steve Grimes, Bettendorf’s parks and recreation director, says any big project has sacrifices, but that some of the trees will be difficult to replace …

Milton Keynes, U.K., News, March 9, 2015: Intu Milton Keynes confirm oak tree is dead

Intu Milton Keynes has had confirmation from the Arboriculture department at Milton Keynes Council that the oak tree in Oak Court is dead. The protected oak tree has been a great symbol of the multimillion-pound shopping centre after the former Midsummer Place had to be built around it because of its heritage. Speaking to Three Counties Radio, Bernard Nichols, a former builder on the site, said a team wrongly dug out drainage pipes when a new section was built, meaning the oak often sat in up to two feet of water when it rained. A spokesman from the shopping centre said: “This week, we have had confirmation from the Arboriculture department at Milton Keynes Council and an independent landscaping company that the oak tree in Oak Court is dead. They have checked for secondary root growth since their last visit in 2013 and there is none …

Athens, Georgia, Red and Black, March 6, 2015: Deep roots: Unearthing the myth behind The Tree That Owns Itself

At the intersection of S. Finley and Dearing streets resides The Tree That Owns Itself. This massive white oak has been creating buzz in the community throughout its existence, from a recent Tumblr post that gained over 400,000 notes to the tree’s reference in the Centennial Edition Athens Daily Banner in 1901. “Athens has many possessions of rare interest but none of more interest than a giant oak tree that owns itself,” read the Daily Banner. Col. William H. Jackson is accredited for originally decreeing the tree masterless. A plaque at its base reads, “For and in consideration of the great love I bear this tree and the great desire I have for its protection, for all time, I convey entire possession of itself and all land within eight feet of the tree on all sides …”

(Our thanks to alert reader Jodi C. for calling this article to our attention)

Wilmington, North Carolina, WWAY-TV, March 9, 2015: Neighborhood losing about 300 trees

Leland neighborhood Magnolia Greens has about 600 trees that starting tomorrow will be history. The trees are one of the first things you notice when you enter the neighborhood. “Every other community that you go in there’s no trees period. You come in here and it’s different,” resident William Teal said. It’s a reason why Teal said he wanted to build his home here. About half of the trees in the community will be chopped down by the end of the week, including three right outside Teal’s home. “People want them down – people don’t want them down,” resident David Huyler said. But regardless, those trees are coming down, because now town leaders say it’s a safety concern. “People walk up and down the sidewalks and everything and when they run into something like this and that’s a trip hazard,” Huyler said. “You drive down in your car, your annetta hits, the garbage trucks or any large vehicle hits the trees, it’s just not a safe thing …”

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Case of the Day – Monday, March 30, 2015

UNDER THE COTTONWOODS

We don't know him ... but he's reputed to be good at what he does.

We don’t know him … but he’s reputed to be good at what he does.

Anyone who has suffered through more than an hour of daytime television is familiar with personal injury lawyers’ ads. One of Ohio’s PI stars is Tim Misny, whose bald pate is immediately recognizable to any Buckeye State dweller with a TV set, along with his trademarked slogan, “I’ll make them pay.”

Tim cautions would-be clients that the slogan isn’t a guarantee. It’s too bad that Sara Burnett’s Colorado attorney – who was not Tim Misny, and for that matter, may not even have been bald – didn’t tell her as much. Sadly for her, after five years of litigation, she got nothing.

Sad for her, but not for the public, whose pain in the pocketbook is all too often forgotten. It seems that Sara and her friend Mackenzie went camping at a suburban Denver state park, just a pleasant July evening under the cottonwoods. Unfortunately for Sara, one of the cottonwoods she camped under picked that same night to shed a branch. A big branch. The falling limb demolished Sara’s tent and badly hurt her head and back. Fortunately, Mackenzie was able to drive both of the young women to the hospital.

For Sara, under the cottonwoods – unlike the book – did not have a happy ending.

For Sara, under the cottonwoods – unlike the book – did not have a happy ending.

Sara then embarked on a campaign to make the State of Colorado pay for her injuries. The State defended on the grounds that it was immune from suit.

The notion of governmental immunity, fully known as “sovereign immunity,” traces its origins from early English law. Back then, the sovereign – that is, the king – was deemed incapable of committing a legal wrong. Thus, his majesty (and by extension his entire government of officials, ministers, clerks and knaves) was immune from civil suit or criminal prosecution.

The doctrine survives today in the United States. The Federal government, all state governments and most political subdivisions thereof are immune from liability for the conduct of their officers, agents and employees acting within the scope of their employment. Unsurprisingly, there are exceptions, cases in which the government has permitted itself to be sued. A good example is the Federal Tort Claims Act, which permits certain types of actions (such as negligence) to be brought against Uncle Sam, subject to some limitations.

Colorado has a statute similar to the FTCA, known as the Colorado Governmental Immunity Act. Generally, courts require that statutes like the FTCA and CGIA be strictly construed in favor of the sovereign and may not be enlarged beyond the waiver its language expressly requires.

In Sara’s case, the Colorado Supreme Court observed at the outset that “governmental immunity is sometimes inequitable, but … governmental entities provide many essential services that unlimited liability could disrupt or make prohibitively expensive … The balance between these two competing interests ‘is for the legislature alone to reach’.”

The CGIA held that the State retains immunity for “an injury caused by the natural condition of any unimproved property.” This seems to pretty much slam the door of Sara claiming that a branch falling out of a tree should open the Colorado treasury to her. But her lawyer was crafty. He learned that the Park employees sometimes trimmed trees that required it. Thus, he argued, the trees ceased being in “natural condition” because the State altered that condition through incidental maintenance. Plus, because the State built the campsite next to and under the trees, those trees became “incorporated” into improved property.

Works in real estate ... for tort claims against the State – not so well.

Works in real estate … for tort claims against the State – not so well.

In a decision handed down last Monday, the Colorado Supreme Court rejected Sara’s claims. Parsing the voluminous history of the CGIA, the Court concluded that the Act did not permit the “spatial analysis” she proposed. In other words, it doesn’t matter how close to the improved facilities an unimproved natural object – like a cottonwood – might be. What matters is what caused the injury. Here, it was a branch from an unimproved tree in its natural condition. Its location next to a campground did not alter its natural state.

For that matter, neither did the State’s occasional cleanup of that tree and others like it when dangling limbs caused Park employees to trim and haul away detritus. The State had no duty to do so, the Court said, and the fact that it may trim on a volunteer basis did not convert what was not a duty into a legal obligation.

The Court’s decision is a interesting tutorial on governmental immunity, and on the balancing of competing interests in making unimproved land available for recreation and protecting the public from hazards created by governmental action. As well, it’s a reminder that sometimes, no lawyer is good enough to “make them pay.”

Burnett v. Dept. of Natural Resources, Supreme Court Case No. 13SC306, 2015 CO 19 (March 23, 2015), slip opinion. One summer night, Denver area residents Sara Burnett and Mackenzie Brady were camping at suburban Cherry Creek Park. The pair chose a campsite which included a utility hookup, a parking area, a picnic table, and a level dirt pad, pitching their tent under a canopy of four mature cottonwood trees that flanked the campground. Early the next morning, while Burnett and Brady were sleeping inside their tent, a tree limb from one of the cottonwoods fell on their tent. The blow seriously injured Sara. Mackenzie suffered minor injuries, but was able to drive Burnett to the hospital.

Due to the density of the canopy, Park employees who subsequently investigated the accident could not determine the source of the fallen tree limb.

Sara sued the State of Colorado Department of Natural Resources, Division of Parks and Outdoor Recreation for negligence. She relied on section 24-10-106(1)(e) of the Colorado Government Immunity Act to argue that the Park was a “public facility” and the branches overhanging the campsite constituted a “dangerous condition” of it. The State moved to dismiss, asserting sovereign immunity under a separate provision of the CGIA, by which a public entity retains immunity for “an injury caused by the natural condition of any unimproved property.” The parties agreed that the improved campsite was a “public facility” under the CGIA, and that the trees adjacent to it originated on unimproved property.

The trial court applied Rosales v. City & County of Denver, 89 P.3d 507, 510 (Colo. App. 2004), determining that the sole issue was whether the trees adjacent to Sara’s campsite constituted a “public facility.” The trial court conducted a two-part Rosales analysis, concluding that the trees were not integral or essential to the campsite and thus could not constitute part of a “public facility” under § 24-10-106(1)(e). The court of appeals agreed, holding as well that because the trees were a “natural condition of … unimproved property,” § 24-10-106(1)(e) precluded Sara’s suit.

The suburban Denver state park where the mishap occurred.

The suburban Denver state park where the mishap occurred.

Sara appealed to the Supreme Court of Colorado.

Held:  The State is immune from liability under the CGIA.

In the CGIA, a public entity waives its immunity to suit for an injury arising from a “dangerous condition of any .. public facility located in any park” it maintains. But the public entity retains immunity for injuries “caused by the natural condition of any unimproved property, whether or not such property is located in a park …” Therefore, the Supreme Court said, “irrespective of what constitutes a public facility, the government retains immunity here if the tree at issue falls within the ambit of the natural condition of unimproved property limitation.”

The CGIA does not define “natural condition of any unimproved property.” Sara argued that, the trees were in their “natural condition” until the State altered their condition through incidental maintenance. Plus, because the State built the campsite next to and under the trees, the State “incorporated” the trees into improved property. Therefore, she argued, the trees ceased to be a natural condition of unimproved property. The State, on the other hand, reasoned that where trees are native flora to property, their character as a “natural condition of unimproved property” remains regardless of incidental maintenance or their proximity to improvements on the land.  Because the statute lacked a definition, the Court looked at the substantial amount of CGIA legislative history.

Prior to 1971, Colorado had no governmental immunity statute. Rather, immunity existed only as a court-made doctrine. That year, the Colorado Supreme Court “held that judicially imposed sovereign immunity was inappropriate and abolished such immunity at every level of government.” The legislature responded the next year with the CGIA.Fourteen years later, municipal insurance rates had skyrocketed. In response, the General Assembly rewrote the statute to afford the government greater protection against liability. A report supporting the amended law illustrated the legislative intent: first, it distinguished between dangerous conditions arising from man-made objects and natural objects; second, it explained that immunity should turn on the precise mechanism of the injury; third, it expressed the intent to exempt public entities from a duty to maintain any natural conditions; and fourth, it stated the policy goal of encouraging public entities to make unimproved, government-owned property open to the public without exposing those entities to the expense of defending claims brought by people injured while using the property.

Cottonwoods in the park ... If you know cottonwoods, you know how they like to shed.

Cottonwoods in the Park … If you know cottonwoods, you know how they like to shed.

Based on the CGIA’s legislative history, the Court concluded that “the legislature intended to retain immunity for injuries caused by native trees originating on unimproved property regardless of their proximity to a public facility …”  Applying its interpretation to this case, the Court concluded that because a branch from trees originating on unimproved property caused Sara’s injuries, the natural condition provision of the CGIA precludes her suit. As for Sara’s argument that the statute can be interpreted that the State waives immunity for injuries caused by natural objects that are contiguous to improved property, the Court concluded that nothing in the legislative history indicated that the General Assembly intended the “spatial analysis” for which she was advocating. A rule that a public entity waives immunity for injuries that are caused by natural conditions and occur on improved property would create “a literal line drawing problem,” requiring courts to adopt an arbitrary rule to determine when natural objects – such as trees – sit on improved property and when they do not. The Court tersely noted, “We are not at liberty to create this third category.”

Because the CGIA retains immunity for injuries caused by a “natural condition of … unimproved property,” immunity turns on the mechanism of Sara’s injuries, not her location when the injuries occurred. The Court found that the cottonwoods bordering Sara’s campsite were “native vegetation of the unimproved property,” and the branch at issue fell from one of those cottonwoods. “Thus,” the Court held, Sara’s “injuries were caused by a natural condition of unimproved property, such that the natural condition provision precludes her suit.”

In reaching that holding, the Court rejected Sara’s argument that the State altered the natural condition of the trees by having previously pruned them. “Under the CGIA,” the Court ruled, “the State did not have any duty to prune the limbs, nor did it assume a duty to continue to prune them once it chose to do so … An assumed duty would be contrary to the public health and safety, as it would discourage the State from undertaking any pruning whatsoever.” The Court refused to create a rule “that would transform natural conditions of unimproved property into improved property where, for the public health and safety, a public entity performs such incidental maintenance.”

In what was little more than a footnote at the end of the decision, the Colorado Supreme Court observed that “the trial court and court of appeals relied upon the two-part analysis delineated in Rosales … first, was the tree an “integral” part of the public facility …” and “second, was the tree “essential” for the public facility’s intended use?” Noting that “these questions do not originate in the CGIA,” the Court overruled its 11-year old Rosales rule.

The Court admitted that Sara’s “injuries are tragic,” but it concluded that “eliminating governmental immunity in this case would only compound the tragedy by sidestepping legislative intent and providing a disincentive for the government to facilitate access to public lands.”

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Case of the Day – Friday, March 27, 2015

A DUTY TO HECTOR?

nag150327Today, we continue our consideration of the problem posed by Tracy from Pinebark, New York. You recall Tracy’s problem from yesterday: the neighbor’s arguably dead tree fell on her car, crushing it. She and her husband are tenants, and her landlady’s insurance carrier won’t cover the damage because it says the tree was dead. The neighbors’ insurance company won’t cover because it says the tree was alive. Tracy’s arborist agrees with her landlady that the tree was quite dead, and the neighbors appear to have had actual knowledge from work done by a previous arborist they had hired that the tree was a hazard.

Yesterday, we discussed why Tracy’s local lawyer should argue that the neighbors are liable, no matter what their skinflint insurance carrier may say. But Tracy, who understandably is looking for as many deep pockets as she can find, has asked whether her landlady is liable as well, because she knew the neighbor’s tree was a hazard but she never informed the neighbor of that fact. And that raises a very interesting (and rather creative) question.

Once again, we warn Tracy that we are not New York lawyers, and we are not rendering legal advice. She should see her local attorney for that. That being said, there’s not much guidance in New York law for her problem. A landlord who holds her land open to the public is under a legal duty to exercise reasonable care under the circumstances to maintain the premises in a reasonably safe condition. This duty is usually discussed in the context of landlords who don’t keep their premises secure against reasonably foreseeable criminal acts by third parties (locked doors, security cameras and the like). The duty “imposes a minimum level of care on landlords who ‘know or have reason to know that there is a likelihood that third parties may endanger the safety of those lawfully on the premises’.”

sign150327A landlord must anticipate the risk of harmful acts of third persons, adopting the duty of care set out in the Restatement (Second) of Torts § 344: a landlord must exercise reasonable care to discover that such harmful acts are being done or are likely to be done, give an adequate warning, or otherwise protect the visitors against it.

Most of these principles address the landlord’s duty to warn tenants and invitees of harmful conditions. Even if this created a duty on the part of the landlord to warn Tracy and her husband that the neighbor’s tree might fall, it doesn’t necessarily mean that the landlady had a duty to Tracy that required her to tell the neighbors that they had a dangerous tree on their hands. We just can’t find any holdings that create such a duty.

One part of the reason might be the futility of it. Telling the neighbor that he has a danger tree on his land that might someday injure the landlord’s tenant doesn’t really get anyone anywhere, because the landlord is without any power to remove or trim the tree herself (it was well within the neighbor’s premises). The landlord might have sued the neighbor for maintaining a private nuisance, and may have won a judgment against the neighbor — especially after limbs fell from other trees last summer, causing damage to the landlord and the tenant — but the likelihood that the suit would have been successful is problematic.

Another part of the reason might be Palsgrafian causation. Just like Mrs. Palsgraf in the famous Long Island Railroad case, the causation link — the landlady’s failure to warn the neighbors led to the tree falling and the injury — is pretty tenuous.

A third problem lies in Tracy’s analysis of her status as a tenant. As a tenant, she has the exclusive right to possession of the property. If the landlady had a duty to tell the neighbor about a danger tree on the neighbor’s property, we would be very surprised if Tracy didn’t have as much of a right and duty as did the landlady to tell the neighbor about the tree. Likewise, we would be surprised if Tracy couldn’t have maintained the private nuisance action against the neighbor themselves to force removal of the tree. Generally speaking, having the right of possession of a piece of real estate is a powerful club, one which lets the possessor wield nearly as much power as does the titleholder. In this case, we suspect that Tracy herself had the power to do what she complains her landlady didn’t. And clearly, she had as much knowledge of the tree’s condition as her landlady did.

And that brings us to the final point. Tracy makes a compelling case that the neighbor knew all about the condition of the dead tree. Their agent, the tree surgeon, certainly knew as well, because he had removed a diseased bough, and that knowledge is imputed to the neighbor. If the neighbor had gotten a report from the arborist on which he refused to act, it’s pretty hard to argue convincingly that things would have changed if the landlady or Tracy had told him what he already knew: the tree was dangerous and should be removed.

Causation and foreseeability are often wrapped in the same package. In a New York case we’ll consider today, Mr. Fleury knew that his big ol’ apple tree was pretty close to the power line running to his house. Well, nature’s bounty — a really good apple crop — caused the tree to fall over partially, and the tree touched the wires. Mr. Fleury called the power company and said, “You need to fix this!” The power company said, “Nope, it’s your wiring from the transformer to the house. You fix it.” Mr. Fleury didn’t, and within about 10 days, the tree on the wires caused a short circuit.

appletree150327But, electricity being the capricious thing it is, it didn’t hurt Mr. Fleury. Instead, a “backfeed”  went through the transformer and down his neighbor’s lines, setting fire to the neighbor’s place 165 yards away. Should Mr. Fleury be liable? He would have been if it had burned his own house. The Court said it all depended on whether Mr. Fleury could reasonably foresee that his procrastination at getting the tree trimmed might have the effect it had.

How likely is it that a court find that the landlady’s failure to hector her neighbor about a tree the neighbor already knew was a hazard would foreseeably lead to Tracy’s car being crushed? Probably not very. Such a holding would open the floodgates, making homeowners everywhere liable to their invitees if they were deemed not to have nagged their neighbors sufficiently over conditions which the homeowner had no power to correct. For example, we live on a side street where a neighbor has a testosterone-driven teenage son. He speeds his old junker of a car dangerously up and down the street. If we get run down by the lad, would we be liable to a claim that we had been negligent because we never complained to the boy’s mother about the kid’s speed? It seems an awful lot like “blame the victim.”

Certainly, Tracy should ask her local lawyer about her claim against the landlady. But we think it’s a stretch the courts won’t buy.

Allstate Ins. Co. v. Fleury, Slip Copy, 2007 WL 1200137 (N.D.N.Y. Apr. 20, 2007). A fire took caused substantial damage to the Thaddeus Jastrzab residence. Allstate Insurance paid the Jastrzab claim, and then sued Niagara Mohawk Power Corporation and Jim Fleury, the next-door neighbor. It seems the fire started at the Jastrzab home, but it was caused by a “backfeed” from the NIMO transformer that fed both the Jastrzab and Fleury homes. Fleury had an apple tree that had grown near the lines for years without trimming. About 10 days before the fire, a large apple crop on the tree partially uprooted it, and caused a limb contact the electric wires feeding Fleury’s house. Fleury asked NIMO to fix it, but NIMO said Fleury owned the electric wires and was responsible for their upkeep. Fleury said he was concerned that the tree limb’s touching the wires might cause a fire, but he did nothing more after NIMO passed the buck.

fire150327After the Jastrzab fire, an investigation found that the backfeed was caused by a tree limb that touched the old-style two-wire system, forcing the wires into mutual contact. The contact energized the neutral line owned by NIMO, which dumped excess current through NIMO’s transformer and down the electric lines supplying the Jastrzab home. The electricity caused the grounding wire to overheat and arc onto Jastrzab’s roof. The fire was intensified by the fact that Jim Fleury’s home was not adequately grounded at the time, sending the electricity to look for a ground at the Jastrzab’s place. The trial court found that neither Fleury nor NIMO liable for the damages caused by the Jastrzab fire. Allstate moved for reconsideration.

Held:   Allstate loses. Allstate complained that the Court inaccurately applied the law of negligence and foreseeability to the facts in this case. It argued that the Court was wrong when it found that the fire at the Jastrzab residence was not a reasonably foreseeable consequence of Fleury’s failure to remove the apple tree limb from his power lines. Allstate argued that the “precise occurrence” did not have to be foreseeable in order for liability to be imposed on Fleury. Fleury would have been liable if the fire started at his house, Allstate said, and therefore, liability should be imposed for the fire that started 165 yards away.
The Court disagreed. The proper focus of the inquiry is on the foreseeability of the risk. This is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated. Further, the Court said, although virtually every untoward consequence can theoretically be foreseen “with the wisdom born of the event.” the law draws a line between remote possibilities, and those that are reasonably foreseeable because no person can be expected to guard against harm from events that are so unlikely to occur that the risk would commonly be disregarded. The precise manner in which the harm occurred need not be foreseeable, but, still, the Court held, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent. Here, no fire took place on the Fleury property. Instead, it started 165 yards away. No one reasonably foresaw that happening.

The law draws a line between remote possibilities and those that are reasonably foreseeable. Here, the probability that Defendant Fleury could have foreseen that the tree limb touching his power lines might create an electric backfeed fire that damaged the Jastrzab residence, was too tenuous and remote to permit recovery under a negligence cause of action.

TNLBGray140407

Case of the Day – Thursday, March 26, 2015

SOMEBODY HERE OWES ME MONEY

Mailbag140924Back to the mailbag!

Today we consider an interesting problem, this one submitted by alert reader Tracy of Pinebark, New York. Tracy reports that “our neighbor’s old dead tree came down across our parking area, totaling both our cars. Their insurance company denied the claim saying no one notified them and that it was a live tree. My landlady’s insurance company denied the claim saying it wasn’t her tree, so she wasn’t responsible. She knew about the problem trees on their property and didn’t notify them. I need to get some sound legal advice and the NY state statutes to show first that the neighbor should have done something and that my landlady should have notified them that they should do something. Help!! Thanks so much.”

Now this guy played a New York lawyer on TV - but Tracy needs to get one who, while not so photogenic, has a real New York license hanging on the wall.

Now this guy played a New York lawyer on TV – but Tracy needs to get one who, while not so photogenic, has a real New York license hanging on the wall.

First, our obligatory disclaimer, Tracy. We’re not New York lawyers, and for that matter, we don’t even play them on TV. For sound New York legal advice, you should consult a local attorney. Not Sam Waterston, either.  But right now, get out your yellow pad and take down a few concepts to pass on to your solicitor.

There are two problems to contemplate here. First, what responsibility do the neighbors have? And second, what liability does your landlady have?

First, the neighbors: You reported that in the past year, a branch from the tree crushed your gazebo tent and another took out part of your landlady’s shed. You also said your landlady’s insurance company adjuster said it wasn’t her responsibility because the neighbors’ tree was dead. You told us that you agree with the dead tree analysis, because you had an arborist inspect the tree and come to the same conclusion. In fact, you reported, the neighbors have had work done on the tree before, so they had certainly had constructive notice of its precarious condition, you report. But, you report, the neighbors’ insurance company asserts the tree was alive, so the neighbors aren’t liable. But you think the insurers may be dissembling.

An insurance adjuster lie?  Horrors!

An insurance adjuster  would tell a lie? Horrors!

We are shocked, shocked we say, by the suggestion that insurance companies would prevaricate! Let’s consider New York law with respect to the neighbors. In Ivancic v. Olmstead, the Ivancic boy was hurt when a branch fell from the Olmsteads’ tree. The Court held that a property owner has no duty to consistently and constantly check all trees for nonvisible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. If visible evidence of decay is present, the failure to inspect won’t be a defense.

We don’t think you’re quite correct on your mention of “constructive notice.” “Constructive notice” means the neighbors reasonably should have known. It’s much like if your sitting in your windowless cube at the office, and you see 10 co-workers get off the elevator, shaking water off umbrellas and removing water-spotted raincoats. You don’t have actual notice that it’s raining, but any reasonable person should be aware its probably raining just based on what you’ve observed. That’s constructive notice.

She's walking down the hall carrying a wet umbrella.  Might it be raining outside?

She’s walking down the hall carrying a wet umbrella. Might it be raining outside?

Your neighbors, on the other hand, probably had actual notice, which you would have if you wandered into the corner office and saw the rain falling outside the window. Because the neighbors’ tree experts had removed one side of a “y” prior to the tree falling, they undoubtedly saw the decay and heard the arborists’ report. They didn’t have to know that the tree has to be dead — just decaying in a manner so as to create a foreseeable risk.

If we were cynical, we’d suggest the neighbors’ insurance company is “gaming” you. Perhaps the adjusters figure that if it denies every claim presented, a few of the claimants – say four or so – will give up. Six will press on. By denying everything initially, the insurance company has cut its exposure from 10 claims to, say, six claims. No claims examiner gets promoted for paying claims, we might suggest. If we were cynics. Which we’re not.

Your local lawyer might want to collect a good, written report with photos from your certified arborist, add to it observations that the neighbors were on notice of the tree’s condition, and write to the neighbors’ insurance company. It would be good not to feed your lawyer before he or she contacts the carrier, so he or she is especially grumpy. If that doesn’t work, your avenue for relief is going to court. We would strongly urge you to use legal counsel rather than trying to represent yourself in small claims court. It’s not that we get a commission from referring you to counsel. If we did, we’d send you to our Uncle Fred (who’s a pretty good mouthpiece). But you already know the value of hiring people who know what they’re doing. You shouldn’t stop now.

You also asked about going after your landlady for not telling the neighbors they had a problem. That’s a fascinating question, one we’ll take up tomorrow.

Ivancic v. Olmstead, 66 N.Y.2d 349, 488 N.E.2d 72 (1985). Ivancic was working on his truck in the driveway of his parents’ home in Fultonville. Since 1970, Olmstead had owned and lived next door. A large maple tree stood near the border of the two properties, and its branches extended over the Ivancic land. During a heavy windstorm, an overhanging limb from the tree fell and struck Ivancic, causing him serious injuries. He sued, maintaining that the branches hanging over his parents’ property constituted trespass, and that the Olmsteads were negligent. The trial court refused to instruct on the trespass claim, but the jury found against the Olmsteads on negligence. The Olmsteads appealed.

Held: The verdict against the Olmsteads was reversed. The Court held that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition of the tree. Ivancic made no claim that the Olmsteads had actual knowledge of the defective nature of the tree, and presented no evidence that the Olmsteads had constructive notice of the alleged defective condition of the tree. None of the witnesses who had observed the tree prior to the fall of the limb saw so much as a withering or dead leaf, barren branch, discoloration, or any of the other indicia of disease which would alert an observer to the possibility that the tree or one of its branches was decayed or defective.

Tracy - watch the insurance adjuster's nose carefully while he or she explains that the tree was healthy.

Tracy – watch the insurance adjuster’s nose carefully while he or she explains that the tree was healthy.

The Court held that as to adjoining landowners, a property owner has no duty to consistently and constantly check all trees for nonvisible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. Ivancic’s expert surmised that water invaded the tree through a “limb hole” in the tree, thus causing decay and a crack occurring below. But he admitted that the limb hole was about 8 feet high and located in the crotch of the tree which would have made it difficult, if not impossible, to see upon reasonable inspection. Although, the Court said, there may have been evidence that would have alerted an expert that the tree was diseased, there was no evidence that would put a reasonable landowner on notice of any defective condition of the tree.

Thus, the fact that Mrs. Olmstead testified that she did not inspect the tree for over 10 years was irrelevant. On the evidence presented, even if she were to have inspected the tree, there was no indication of decay or disease to put her on notice of a defective condition so as to trigger her duty as a landowner to take reasonable steps to prevent the potential harm.

As for the trespass, the Court held that the Olmsteads didn’t plant the tree, and the mere fact that they allowed what appeared to be a healthy tree to grow naturally and cross over into the Ivancic parents’ property airspace, could not be viewed as an intentional act so as to constitute trespass.

TNLBGray140407

Case of the Day – Wednesday, March 25, 2015

THE JURY IS INSTRUCTED TO DISREGARD THE SMELL

 

Once the skunk lands in the jury box, the smell tends to follow ... no matter what the judge may say.

Once the skunk lands in the jury box, the smell tends to follow … no matter what the judge may say.

Trial courts often must give juries instructions to disregard certain evidence they have heard in reaching their verdicts. As a court once described it, “if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.

Today’s case starts out to be pure California … a landslide, a muddy pool, emotional distress because of a dirty carpet. Oh, the humanity! The injured Ms. Rahmanian claimed that her neighbor Nelson had suffered a water leak, and the leak damaged her property. The extent of the damage was grievous, Ms. Rahmanian pled, well over $200,000. Her house was a mess, carpets ruined, pool filled with mud … she demanded justice!

But it turns out that Ms. Rahmanian had already gotten twenty grand from her insurance company, and she hadn’t used a penny of it to dry out carpets, clean walls, empty the pool — the usual cleanup performed to keep a bad mess from becoming worse. The defendant managed to sneak that piece of evidence into the record, and as a result, the plaintiff only collected about $110,000, just about half of what she wanted. How could she ever clean the drapes on that?

People damaged by the negligence of others have a duty to mitigate. That means that they are expected to take reasonable steps to minimize the damage. It only stands to reason. The courts will try to put the innocent injured back in the position they occupied before the damage. But the innocent aren’t expected to sit on their hands, either … or spend money intended to clean up the damage on mimosas at the Beverly Wilshire.

Ms. Rahmanian complained on appeal that the jury shouldn’t have heard about the insurance money. She was literally correct. Who got what from their insurers is irrelevant to whether a party was negligent, and whether that negligence caused damage. But the Court of Appeals clearly lacked sympathy for her. It held that — while the evidence about the insurance money shouldn’t have come in — Ms. Rahmanian didn’t suffer for it, because the trial court told the jury to disregard it.

Never mind that it might be hard for the jurors to ignore the fact that a poor pool-deprived supplicant like Ms. Rahmanian already had collected some dough from her insurance company and spent it on … well, pedicures, poodles in purses, whatever Californians fritter money away on when they don’t mitigate. The Court did some rough justice here, something that happens more often than you might think.

To hear Ms. Rahmanian tell it, her bungalow was fouled beyond salvation.

To hear Ms. Rahmanian tell it, her bungalow was fouled beyond salvation.

Rahmanian v. Nelson, Not Reported in Cal.Rptr.3d, 2007 WL 1123983 (Cal.App. 2 Dist., Apr. 17, 2007).   Nelson’s house is located above the house owned by Sharon Rahmanian. A water leak on Nelson’s property caused the slope located at the back of her land to collapse, leading to a mudslide that covered her pool and patio area. She sued Nelson for negligence and trespass.

Nelson did not dispute liability. The primary issue at trial was the amount of damages. Rahmanian’s witnesses testified that the mudslide caused damage to the pool and patio, and to the French doors at the back of the house. In addition, mud or muddy water entered the house, causing damage to everything located near the doors, including carpets and drapes. Rahmanian’s expert testified that to repair the slope would cost about $75,000, plus $24,440 to re-landscape the slope. The cost to repair the pool and house would added another $134,000, and she lost use of the pool to the tune of $1,153 a month. For good measure, she complained of damages from physical symptoms and mental suffering she had experienced since the mudslide.

Nelson’s witnesses said the mudslide could not have caused much damage to the patio or pool. They also questioned whether water or mud caused any damage to the interior of the house. Nelson’s experts estimated it would cost $89,371 for repairs and re-landscaping. During the trial, there were three references to $20,000 Rahmanian had already received from her insurance carrier, but had not used to repair any damage.

The jury awarded Rahmanian $80,000 for slope repair; $21,000 for other property damage; $5,000 for loss of use; and $4,000 for emotional distress. Not satisfied with this amount, Rahmanian moved for a new trial, which the court refused. She appealed.

Held:   The trial court shouldn’t have let testimony about the $20,000 in insurance money in, but that wasn’t enough to give Ms. Rahmanian a new trial. Under California’s collateral source rule, if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.

Too many mimosas, too little cleanup.

Too many mimosas, too little cleanup.

In order to permit such evidence to be introduced, the trial court must first weigh the relevance and probative value of evidence of plaintiff’s receipt of collateral benefits against the inevitable prejudicial impact such evidence is likely to have on the jury’s deliberations. Here, that advance weighing was not done. But, the Court said, Rahmanian was not prejudiced. The jury asked the court for guidance on the impact of the $20,000 during deliberations, and the court instructed the jury to ignore what it had heard repeatedly. Ms. Rahmanian did not object to the language of the court’s instruction: in fact, her counsel supplied the key wording used by the court, so she was not allowed later to raise an objection concerning its clarity.

Because the court, with the assistance of counsel, was able to intervene during deliberations to prevent the jury from acting on the misleading information it received concerning the $20,000, the jury’s verdict could not have represented an improperly discounted award. Thus, the appellate court said, no miscarriage of justice occurred.

The trial court also gave an instruction to the jury that Ms. Rahmanian had a duty to mitigate the damage, that is, to take immediate steps after the landslide to minimize the long-term effects. Ms. Rahmanian maintained that the only evidence to support the instruction was the improperly admitted evidence of the $20,000 insurance money. The Court said that because the trial court had given a curative instruction about the insurance money, the appellate court presumed the jury followed the court’s final directive to “not consider” the $20,000 in calculating damages.

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Case of the Day – Tuesday, March 24, 2015

YEAH, WELL, THEY WERE UGLY TREES …

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When a contractor building an interstate highway interchange needed some space to park bulldozers, the state highway department asked Mr. Baillon – who owned a piece of land next to the overpass – for an easement. Being perhaps unjustifiably proud of his scrubby little trees and stunted bushes, Baillon refused.

A couple of volunteer oak trees and some forsythia bushes are no match for a Caterpillar D10, so the contractor went ahead and used Mr. Baillon’s land anyway. But it turns out a Caterpillar D10 is no match for a Minnesota trial court. Mr. Baillon sued and won.

But he won what? The trial court judged his damages by the diminution in value of his land. That is, how much less is the scrawny strip of real estate worth with the scrub trees gone? Not much, the Court said, giving Mr. Baillon just $500.00.

Mr. Baillon appealed. He argued he had wanted the trees and bushes as a sound barrier between himself and the road. Also, he should have gotten treble damages because of the intentional trespass.

The appeals court agreed – sort of. It held that the measure of damages for the loss of trees — because they weren’t particularly desirable as shade trees or ornamental trees — was the reduction in value of the real estate. Clearly, however, treble damages should be assessed under Minnesota’s wrongful cutting statute, because the trespass was anything but casual.

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This type of damage calculation, well known to contract law students who read Peevyhouse v. Garland Coal and Mining Co., back in first-year contracts class, is intended to avoid economic waste. The thinking is that the courts won’t order restoration of the property if the cost exceeds the reduction in value by the conduct. But at what price to freedom? Mr. Baillon didn’t want to sell his property, he wanted his trees, pathetic though they might be. The fact that the marketplace might not share his desires shouldn’t matter all that much: it was his land, and he should be able — within legal parameters — to keep it as he likes. Letting the bulldozer operator off the hook for the intentional trespass by not requiring that the land be restored to what it looked like before the trespass, even if that cost ten times the difference in real property value, seems to us to accord Mr. Baillon’s rights much less than the respect they deserve.

Baillon v. Carl Bolander & Sons Co., 306 Minn. 155, 235 N.W.2d 613 (Sup.Ct. Minn. 1975). The Highway Department tried to secure from Baillon a temporary construction permit giving the state an easement to go on his property adjacent to the south line of the construction the Bolander company was undertaking on I-35. After Baillon wouldn’t grant the easement, Bollander’s workers trespassed on the land anyway, destroying a number of trees and shrubs.

Baillon had desired to have the particular trees remain alive in order to preserve a natural and wild appearance, to help in avoiding noise from the highway, and to preserve the beauty of the premises. The trial court found that Baillon was damaged by the intentional acts of the Bolander company in the sum of $500.00.

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Baillon thought that the trial court should have used the replacement cost of the trees as a measure of damages, and not – as the trial court held – the diminution in value of the real estate. Also believing that he was entitled to treble damages, Baillon appealed.

Held: The award of damages was upheld in part and reversed in part. The measure of damages for the destruction of trees ¬– which for the most part were quite small, ill-formed and not particularly desirable as shade trees or ornamental trees, but which served to prevent erosion and acted as sound barrier – was the diminution in value of the real estate rather than the replacement cost of trees. This was so even though the trespass was willful.

However, the Court of Appeals believed that treble damages should be set. The Court held that where the highway contractor — in the course of building the freeway — intentionally cut the trees, which did not protrude over highway and the trespass was not necessary for contractor’s purposes, the trespass was not “casual.” It was clearly the duty of the trial court to assess treble damages unless defendant’s activities came within one of the exceptions specified in the statute, and the defendant clearly did not.

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