Case of the Day – April 15, 2014

TRESPASS, GEORGIA STYLE

When the Upper Oconee Water Authority started building a new reservoir, its consulting engineer needed to use the Walls’ property to let its subcontractor have access to a drainage pipe.  “Just a little easement, ma’am,” the engineering firm told Mrs. Walls.  “And we promise not to cut down any trees.”

You can see where this is going.  What’s the first thing the contractor did?  You guess it — started cutting down the Walls’ trees.  Plus, after the contractor was done with the drainage pipe, the Walls complained, their property flooded.  After repeated complaints to the engineer got no satisfaction, the Walls sued.

The trial court threw the case out.  But on appeal, the Walls won back their trees.  The appellate court ruled that the Walls didn’t prove that the engineer and its contractors caused the pooling water. Instead, the Walls only proved the water appeared after the contractors’ work, not that the contractors’ work caused the standing water.  The Walls had engaged in the classic logic fallacy of post hoc, ergo propter hoc. Just because the water followed the contractors doesn’t mean the water was caused by the contractors.

Classic "post hoc ergo propter hoc" reasoning ... but then, he's a dog.  What can you expect?

Classic “post hoc ergo propter hoc” reasoning … but then, he’s a dog. What can you expect?

But as for the trees, the Court said, the Walls had a right under Georgia law to be secure in their property.  The engineers were responsible for supervising their contractors, given the engineering firm’s representative telling Mrs. Walls that he would stop the tree cutting.  A jury could have found that the engineering firm was liable for the damages arising from the trespass. Therefore, the Court sent the case back for trial.

Walls v. Moreland Altobelli Associates, Inc., 290 Ga.App. 199 (Ga.App. 2008)  The Walls live on a large piece of land along Highway 330 in Jackson County. In 1999, the Upper Oconee Basin Water Authority bought the land across the highway from the Walls’ residence to build a water reservoir. The Water Authority hired Moreland, a civil engineering firm, to manage the reservoir construction.

Hank Collins, a construction manager with Moreland, began overseeing several construction projects to be completed by Maxey Brothers Construction. One of those involved replacing a drainage pipe under Highway 330 and re-grading the area to allow proper drainage from the Walls’ property to the reservoir side of the road.  Before the project began, a Moreland representative asked the Walls to grant the Water Authority a temporary easement along the front of their property to permit workers to complete the drainage work. The representative assured Mrs. Walls that the construction would not disturb any trees on the property and would only minimally affect the land. Based on these assurances, Mrs. Walls signed the easement.

Imagine the Walls' surprise ...

Imagine the Walls’ surprise … could it be that the contractor was somehow a little less than candid?

But when Maxey Brothers began work on the Walls’ property, the contractor promptly started cutting down trees.  Mrs. Walls immediately called Collins, who apologized, stating that the trees should not have been cut and that “he would stop it immediately.” Collins also promised that Moreland would replace or pay for the cut trees.  Although Mrs. Walls discussed the trees with Collins several times over the next year, Moreland did not pay for the tree loss. In the meantime, the Walls noticed that during heavy rains, standing water would accumulate on their property near the opening to the new drainpipe.  The Walls had never experienced standing water before the construction.  Mrs. Walls wrote to Moreland about both the water and tree removal, but Moreland did not remedy her concerns. Instead, it referred her complaints to the Water Authority, which investigated the situation. The Water Authority offered to repair the drainage area along the Walls’ property and pay $100 to settle the tree claim.

The Walls sued Moreland for trespass and nuisance, alleging that a work crew supervised by Moreland cut trees on their property without permission, improperly installed the drainpipe, and created a standing water nuisance. The Walls sought compensatory and punitive damages and attorney fees.  The trial court tossed the case out.  The Walls appealed.

Held:  The Court of Appeals split the case, upholding the trial court on dismissing the nuisance claim but reversing on the damage to trees claim.  As for the standing water claim, the Walls offered no evidence that the work overseen by Moreland caused the water problem.  To be sure, the Walls said they hadn’t had the problem before the construction, but the mere fact that one event chronologically follows another is alone insufficient to establish a causal relation between them.

Moreland also produced evidence that following the project’s completion, a utility company laid underground cable in the area and Jackson County installed a water line along the road, both of which altered the grade. And Collins testified that Mrs. Walls first complained about the water problem after the utility company worked in the area.  Because the Walls failed to link the work performed by Maxey Brothers and Moreland to the drainage problem, they did not establish causation.

AidAbet140415However, the trial court shouldn’t have booted the Walls’ claim for trespass based on the tree cutting.  Georgia statutes provides that the right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.   Cutting trees on property owned by another, the Court say, may result in a trespass under OGCA §51-9-1.  The evidence showed that the Walls objected to any tree cutting, and a Moreland representative assured Mrs. Walls that the work would not affect any trees. Mrs. Walls also testified that when she confronted Collins about the tree cutting, he stated that trees should not have been cut. Under these circumstances, a jury could find that the tree cutting exceeded the permitted entry onto the Walls’ property.

While Maxey Brothers actually felled the trees committed the trespass, Moreland was responsible for overseeing Maxey Brothers’ work and ensuring that it complied with the project plans, which, according to at least some evidence, did not involve tree cutting. Moreover, Collins knew that Maxey Brothers planned to cut trees on the Walls’ property, but did nothing to stop the work.

Based on this evidence, the Court said, a jury could find Moreland liable for trespass. One who aids, abets, or incites, or encourages or directs, by conduct or words, in the perpetration of a trespass is liable equally with actual trespassers.  This is an important expansion of liability for trespass.  Often the trespasser is a mere functionary.  The party who put the wheels in motion to cause the trespass – and, incidentally, who has the deep pockets – is the aider or abettor.  Being able to reach such a defendant is crucial.

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And Now The News …

Typewriter

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xraysaw140403

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trees swell with water as they prepare to sprout leaves …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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Case of the Day – April 14, 2014

BRANCHING OUT

Crunch.  And after the tree falls, the insurance company adds insult to injury.

Crunch. And after the tree falls, the insurance company adds insult to injury.

An unhappy homeowner from urban Cincinnati, Ohio – we’ll call her Sylvia Glade – asks about her neighbor’s mighty oak tree. It seems the tree had a branch overhanging Sylvia’s home. The branch constantly dropped sticks, and the tree itself has been shedding branches regularly. As far back as the late 1990s, Sylvia thought the tree was dangerous and began asking her neighbor, whom we’ll call Elouise, to do something about it. A tree expert Sylvia hired to look at her trees about five years ago agreed, saying the big oak should go.

The elderly Elouise was unmoved. She gave Sylvia permission to cut down the tree (as long as Sylvia paid to do so), but then denied her the right to enter the property to do so. With the property line hard up against Sylvia’s house, without Elouise’s cooperation Sylvia couldn’t even get a ladder under the branch to cut it away.

But there’s good news: Sylvia doesn’t have to worry about that branch any more. Sadly, there’s bad news, too: the branch is no longer a hazard because it fell on a windy day, crushing two floors of Sylvia’s house. Her neighbor’s insurance carrier said, “Oops, looks like an act of God! Not our responsibility.” Sylvia thinks God should be left out of things, because the branch — which broke right at the trunk — looked very decayed.

Elouise’s insurance company says Elouise had no idea the tree wasn’t healthy. “She didn’t know, so we don’t owe,” the company’s mantra seems to be. Sylvia complains she told the neighbor on many occasions, and even the neighbor admits she saw decayed branches that had fallen from the tree. Once, Elouise even hired Sylvia’s son to haul away some large branches that the old oak shed in a windstorm. But Sylvia asked us what duty of care Elouise owed her under Ohio law.

We start with the evolution of the Massachusetts Rule. Originally, the Rule held that a homeowner usually had no remedy against overhanging branches, other than his or her right to trim the branch back to the boundary line. That Rule has been limited recently, notably in the Virginia Supreme Court case of Fancher v. Faglia (2007) and the North Dakota Supreme Court holding in Herring v. Lisbon Partners Credit Fund, Ltd. (2012). Both of those courts said that while a property owner might be limited to self-help where an encroaching tree was only doing what trees do, that is, dropping leaves, nuts, berries, seedpods and twigs, where a tree becomes a nuisance, the owner of the tree is liable for removing it.

The relevant Ohio case is Nationwide Insurance Co. v. Jordan. Mrs. Jordan’s big maple tree fell, damaging the neighbors’ place. They sued Mrs. Jordan, claiming the tree trespassed.

No dice, the Court said. The trespass would only work if the tree were an absolute nuisance, and that isn’t the case. Mrs. Jordan would be liable, the Court held, if she actually knew the tree were dangerous, or if she have either. The neighbor, although vociferous in her condemnation of the tree, admitted that she never complained to Mrs. Jordan about it.

In Sylvia’s case, the insurance company is wrong. It’s not enough that the neighbor says she didn’t know the branch was dangerous. The other half of the question is whether she was on constructive notice that the tree was dangerous, that is, whether she reasonably should have known the decay was making the tree unsafe. If Sylvia is right, the evidence will show the neighbor was told many times the tree was dangerous. She witnessed the tree drop a number of large branches of the previous years. She had to hire Sylvia’s strong son to clean up the mess. And Sylvia told her about the danger, even agreeing to pay for the removal the tree herself.

Several Ohio cases (such as Wertz v. Cooper) suggest that neighbor Elouise – being an urban dweller – has a greater duty to inspect her trees than would a country squire. The evidence suggests Elouise had every reason to be concerned about the tree, and thus had a duty to inspect it to be sure it wasn’t about to collapse Sylvia’s house.

claim140414Elouise’s insurance company may want to rethink its position and start looking for its checkbook.

Nationwide Insurance Company, et al. v. Jordan, 639 N.E.2d 536 (1994).This action arose between adjoining landowners as a result of the falling of a mammoth maple tree.   The insurance company, which had paid the damages to its insured’s place, sued for trespass and negligence. The defendant tree owner testified that she had no notice the tree was susceptible to falling.   Her tenant likewise testified that she had no notice of the tree’s danger.   The defendant’s tree service manager testified that he worked on the property’s trees every two years, and that the tree in question was not unsafe less than two years before it fell. The only person to testify to notice that the tree was rotten and likely to fall was the plaintiff’s insured.

The trespass claim arose because the plaintiff maintained that the falling tree trespassed on the insured’s property. The trial court made short work of this, holding that the only way liability could be imposed on Mrs. Jordan without proof of fault would be if the tree were an absolute nuisance. Healthy trees growing on property, even urban property, are not absolute nuisances, the trial judge said. Thus, the insurance company had to prove that Mrs. Jordan either knew or had constructive knowledge that the tree was likely to fall. The insurance company couldn’t prove that, so the trial court found for Mrs. Jordan. The insurance company appealed.

A diagram of one modern method of measuring a tree's decay.  Elouise had any number of options - some cheap, some costly, some old school, some high-tech - for verifying the health of her big old oak.

A diagram of one modern method of measuring a tree’s decay. Elouise had any number of options – some cheap, some costly, some old school, some high-tech – for verifying the health of her big old oak.

Held: Mrs. Jordan was not liable. The Court said that there was no evidence that Mrs. Jordan actually knew or had a reason to know that the maple tree was in danger of falling. The neighbor complained that the tree’s propensity to fall was obvious to her, but she admitted he never told Mrs. Jordan. The Court observed that “[h]ad the plaintiff conveyed this knowledge to her neighboring landowner, the danger might well have been obviated, or, alternatively, the plaintiff’s hands would be clean and the defendant would have been on notice and resultantly liable for the fall.”

The Court further held that maintenance of a tree on an owner’s property was not an “absolute nuisance,” and thus the adjoining landowner could not proceed merely upon strict liability against owner, but, instead, was required to prove negligence. To recover on a theory of negligence arising out of falling tree, a plaintiff’s evidence must establish that defendant had actual or constructive notice of patent danger that tree would fall. Here, Mrs. Jordan had neither actual notice nor constructive notice of tree’s dangerous condition. Both Mrs. Jordan and her tenant testified that they had no notice of tree’s danger, Mrs. Jordan’s regular tree trimming contractor worked on property’s trees every two years and found that tree in question was not unsafe not more than 24 months before it fell.

The Court ruled in favor of Mrs. Jordan.

TNLBGray

Case of the Day – April 11, 2014

IT DEPENDS ON WHAT KIND OF TREE …

Horrific crashes.  They happen everywhere.  Someone blasts through a stop sign late at night and slams into another car.  One driver dies.  A lawsuit ensues.

Stopsignobsc140411It’s an all-too-frequent tragedy.  In today’s case, however, the inevitable lawsuit by the next-of-kin has an unusual twist.  Named as a defendant is the property owner at the corner, who is accused of contributing to the accident by having overgrown trees and shrubs that obscured the stop sign.

There was testimony by the investigating highway patrol officer that the sight lines were not so obscured that the offending driver couldn’t have seen the traffic sign.  But the Court of Appeals decided that it wasn’t necessary to sort that out, because Georgia law resolved the issue.

A Georgia statute made it unlawful for a property owner to place any unauthorized device or structure in such a location as to obscure traffic signs.  Over the years, the courts had defined the statute to include trees and shrubs planted by the owner as among the prohibited devices.  But the catch is that the owner must have planted the trees and shrubs himself or herself: it the overgrowth was natural, it could be a rainforest for all Georgia law cared.

The sign's obscured by a rainforest?  That's fine with Georgia, as long as you didn't plant it ...

The sign’s obscured by a rainforest? That’s fine with Georgia, as long as you didn’t plant it …

The Court held that because there was no evidence the landowner had planted the overgrown vegetation, it didn’t matter how bushy it was.  The landowner couldn’t be liable.  The lesson seemed to be that the less you do to take care of your place, the better off you are.  So it really did depend on what kind of tree it was …

Rachels v. Thompson, 658 S.E.2d 890, 290 Ga.App. 115 (Ga.App. 2008).  Around midnight on July 4, 2003, Rachels was driving his truck northbound on Kent Rock Road, approaching Emmitt Steel Road. There is a stop sign on Kent Rock Road at its intersection with Emmitt Steel Road, but no stop sign on Emmitt Steel Road. Around this same time, Ashley Grant was traveling westbound on Emmitt Steel Road in a Jeep. Grant did not see Rachels’s truck until immediately prior to the accident. The truck and Jeep collided. 

The sign, it turned out, was covered with kudzu ...

The sign, it turned out, was covered with kudzu …

Rachels’ estate sued Thompson, the property owner adjacent to the road, on the grounds that the property was overgrown, thus hindering visibility.  Rachels’s negligence claim was premised upon Thompson’s having violated OGCA §32-6-51(b), which provides that “[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which: … (3) Obstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads[.]”  The lower court dismissed the case, and Rachels appealed.

Held:  The case was dismissed. 

The Court noted that OGCA §32-6-51(b) has been interpreted to include purposely planted trees and other vegetation, including an allegedly vision-obstructing row of trees planted by the defendant.  But here, there was no evidence that the foliage at issue was purposefully planted by Thompson. The photos placed into the record by Rachels in opposition to the motion show a lot overgrown with kudzu.

Further, in his response to interrogatories, Thompson stated that “[t]here are no improvements on the property[,]” and [s]ince there were no improvements on the property, no maintenance was required.” 

The Court held that Rachels has failed to show a breach of duty by Thompson, and summary judgment was correctly granted to the defendant.  Therefore, the case was dismissed.

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Case of the Day – April 10, 2014

TRIP, STUMBLE AND FALL

coffeespill140410Mrs. Taubenfeld should have listened to the Mamas and Papas … they predicted that this might happen to her. It seems Mrs. T was walking past a Starbucks when she stepped into one of those tree wells cut into the sidewalk.   She fell over an exposed tree root and hit the ground. She immediately hobbled off to her lawyer’s office. A lawsuit against Starbucks and the strip mall owner soon followed.

She argued that the lease between the strip mall owner and Starbucks required the mall owner to maintain the sidewalk.  The Court disagreed, saying that the lease didn’t matter, because a contract between parties could not create a duty to the public where one didn’t otherwise exist.

Tree well – is it a threat or simply a menace?

Tree well – is it a threat or simply a menace?

And no such duty existed here.  A village ordinance required that property owners and lessees keep their sidewalks clear of obstructions, but that law didn’t create a right for a private person to sue.  If Starbucks had failed to keep up the sidewalk, it might have to answer to the city government, but not to Mrs. Taubenfeld.

Statutes commonly make people or entities liable to the government (in the form of fines or penalties) for noncompliance.  Usually, where the obligation is to clear natural problems, such as snowfall, high grass or exposed tree roots – conditions which the owner did not create ­– the statutes do not give general public the right to sue for damages arising from noncompliance.

Taubenfeld v. Starbucks Corp., — N.Y.S.2d —-, 2008 WL 451055, 2008 N.Y. Slip Op. 01587 (N.Y.A.D. 1 Dept., Feb. 21, 2008).   Florence Taubenfeld fell over a tree root. The root was growing in a tree well cut into a public sidewalk in front of premises owned by Park Plaza and leased to Starbucks.  Faster than you can say sugar-free hazelnut latte made with nonfat milk, Mrs. Taubenfeld sued, claiming negligence.  The trial court granted Park Plaza’s motion for summary judgment, but denied Starbucks’ motion.  Starbucks appealed.

Held: Starbucks won and the suit was thrown out.  While the lease between Park Plaza and Starbucks required Park Place to maintain the sidewalk and landscaping. Assuming that the tree well into which Taubenfeld tripped and fell is part of the sidewalk or landscape, the lease could not create a duty to the public that did not otherwise exist.  The Court held that neither Park Plaza nor Starbucks owed a duty to the public to repair the protruding root since neither created the root or causehbnbd it to exist by reason of some special use of the sidewalk or tree well, or were obligated to maintain the sidewalk or tree well under some statute or ordinance.

 

A book on Mrs. Taubenfeld's reading list.

A book on Mrs. Taubenfeld’s reading list.

In this case, the lease imposed on Starbucks only a duty to maintain those portions of the sidewalk that the coffee shop made special use of, for the purpose of providing outdoor seating for its customers. As to the remainder of the sidewalk beyond Starbucks’ outdoor seating, Park Plaza’s duty was limited by a Larchmont village ordinance that directed property owners to keep the sidewalk in front of their premises in good repair and safe condition for public use. That ordinance, however, did not specifically create tort liability.

While Starbucks made special use of a portion of the sidewalk by putting out two tables with two chairs each, the special use did not extend beyond the tables and chairs to the tree well where Taubenfeld fell, or to the people on the crowded sidewalk. Some of those people were walking and others were standing around Starbucks’ tables chatting. Taubenfeld complained that she had had to walk around them, diverting her path into the tree well. Even if this were true, that fact made neither Starbucks nor Park Plaza liable to her.

 

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Case of the Day – April 9, 2014

PLEASE RELEASE ME

It seems like every ticket you buy has a waiver of liability printed on the back ... and who ever pays attention to them?

It seems like every ticket you buy has a waiver of liability printed on the back … and who ever pays attention to them?

Englebert Humperdinck wasn’t thinking about this kind of release, and most of the time, neither do we. But prospective releases or liability waivers are a part of our lives, from amusement parks and ski resorts to pools to dry cleaners to parking lots and hat checks. We get little tickets that have fine print on the back stating that by using whatever service we’re using, we agree that we can’t hold the vendor liable if anything goes wrong. Our fedora’s missing from the hatcheck? Too bad. Our pants have a hole burned in them from being pressed? Maybe we can cut them off and make shorts. The roller coaster collapses and crushes us to death? Sorry, pal, guess this just ain’t your day, and tomorrow doesn’t look very good, either.

Certainly, such releases serve an important purpose, being crucial grease on the cogs of commerce. You can find websites that let you “roll your own” liability waiver form for whatever event you have planned with just a few clicks. But the proliferation of such releases has to leave us wondering – first, are all these liability waivers enforceable? And second, can we use prospective waivers in the arboriculture industry — such as “by hiring me to trim your tree, you release me of liability if I make it fall on your Yugo” — to absolve ourselves from liability?

A California court grappled with such a release when a developmentally disabled child drowned at a city-run camp for such children. The girl’s mother had signed a release from liability – parents sign those forms all the time, and whoever reads them? – but the trial court and the court of appeals held the release would not release the City from liability for gross negligence. The Supreme Court of California agreed, holding that an agreement to release future liability for negligence in recreational activities could not, as a matter of law, release the City or the employee from liability for gross negligence.

The case includes a detailed review of the history of such releases, and a rationale for determining which types of releases are enforceable, and which are not. Generally, a prospective release may not relieve grantee of any obligation to meet even a rudimentary standard of care. If Santa Barbara had written its release to relieve it of liability for simple negligence, the release probably would have been valid. But it wrote it too broadly, to release it from any negligence, even gross negligence or recklessness. That was too much for the Court.

Big pigs get slaughtered ... The takeaway - write your release to be reasonable, or a court may ignore all of it.

Big pigs get slaughtered … The takeaway – write your release to be reasonable, or a court may ignore all of it.

In other words, little piggies go back to the trough, but big piggies get slaughtered.

City of Santa Barbara v. Superior Court, 62 Cal.Rptr.3d 527, 41 Cal.4th 747, 161 P.3d 1095 (S.Ct.Cal., 2007). The City of Santa Barbara provided extensive summer recreational facilities and activities for children, including a camp for children with developmental disabilities called Adventure Camp. Katie Janeway, who suffered from cerebral palsy and epilepsy participated in the camp. Swimming activities were held on two of five camp days each week in a City swimming pool.

The application form for Adventure Camp included a release of all claims against the City and its employees from liability, including liability based upon negligence, arising from camp activities.

Katie’s mother signed the release in 2002, as she had in prior years. She also told the City about Katie’s disabilities, specifically that the girl was prone to seizures in the water, and that Katie needed supervision while swimming. The City knew the child had suffered such seizures in the past, and camp administrators took special precautions during the Adventure Camp swimming activities in 2002, assigning a special, trained counselor to keep Katie under close observation during the camp’s swimming sessions.

Pants came back from the cleaners with a hole?  read the fine print on your claim ticket.  There's probably a waiver there.

Pants came back from the cleaners with a hole?  Read the fine print on your claim ticket. There’s probably a waiver there.

Katie participated in the first swimming day at the 2002 Adventure Camp without incident. On the second swimming day she drowned. About an hour before drowning, Katie had suffered a mild seizure that lasted a few seconds. Her counselor observed the seizure and sent another counselor to report the incident to a supervisor. The supervisor said that the report never was received. Katie’s counselor watched her for 45 minutes following the mild seizure, and then — receiving no word from her supervisor — let Katie go ahead with swimming. Malong concluded that the seizure had run its course and that it was safe for Katie to swim. As Katie dove into the water for the second time that day, the counselor momentarily turned her attention away from Katie. When she looked back no more than 15 seconds later, Katie had disappeared. After the counselor and others looked for Katie for between two and five minutes, an air horn blew and the pool was evacuated. Lifeguards pulled Katie from the bottom of the pool, and she died the next day.

Katie’s parents filed a wrongful death action alleging the accident was caused by the negligence of the City. Relying upon the release, the City moved unsuccessfully for summary judgment. Failing in this, the City appealed, and the appellate court denied the petition, holding the agreement was effective and enforceable insofar as it concerned liability for future ordinary negligence, but concluding that a release of liability for future gross negligence is generally unenforceable, and the release form did not validly release any liability.

The Supreme Court granted review.

Held: The City’s release was invalid to extent it purported to apply to future gross negligence. The Court observed that “ordinary negligence,” an unintentional tort, consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. “Gross negligence,” on the other hand, is a want of even scant care or an extreme departure from the ordinary standard of conduct. A signed release absolving the City and its employees from liability for “any negligent act” in its operation of recreational program for disabled children violated public policy and was thus unenforceable, to the extent it purported to release liability for future gross negligence. Therefore, the Janeways were not precluded from pursuing wrongful death action.

Sure you can impose your waiver in the fine print ... but it's not just boilerplate.  Use care in drafting it, or - better yet - spend a little money to have a lawyer do it for you.

Sure you can impose your waiver in the fine print … but it’s not just boilerplate. Use care in drafting it, or – better yet – spend a little money to have a lawyer do it for you Some things are too important for D-I-Y.

The Court said that public policy generally precludes enforcement of agreements that would remove the obligation to adhere to even a minimal standard of care. Courts may, in appropriate circumstances, void contracts on the basis of public policy, the determination of which resides first with the people as expressed in the California Constitution and second with the state legislature. Although the power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and should be exercised only in cases free from doubt, nevertheless — the Court said — courts are authorized to distinguish ordinary negligence from gross negligence, even absent express legislative authorization.

The Court grudgingly seemed to accept that waivers of liability for future ordinary negligence – at least in recreational or sports contexts – would be enforceable. However, neither California nor the overwhelming number of other states permit a waiver of liability for future aggravated negligence.

Whether this holding might have applicability before recreational and sports activities, such as in “inherently dangerous” activities such as tree removal, is up in the air. While this shouldn’t dissuade an arborist or tree removal company from including a carefully-drawn and limited waiver in the contract, neither should the professional bank on the waiver being enforced.

TNLBGray140407

Case of the Day – April 8, 2014

ARTIFICIAL DISTINCTIONS

 

rottentree140408When a tragedy occurs, it’s all too common to look for someone to pay for it.  In today’s case, a young man, was left a quadriplegic when a healthy-looking tree standing along side a public highway fell without warning and struck his car. The trial judge was obviously moved by the sad story, and felt it his duty to open the state’s wallet.

The trial judge denied the Louisiana Department of Transportation and Development a free pass.  The judge recognized that a prior holding relieved the state from the duty to inspect all sides of a tree.  But he reasoned that the rule had been adopted in a case where a construction crew’s negligence had weakened the tree on the side away from the road.  The trial court here reasoned that this case was different: it was natural rot, and natural rot did require DOTD to inspect all sides of a tree.

Truly a distinction without a difference! Step back and consider the implications of this holding.  Besides the fact that why the tree was weakened is really not relevant to the danger it poses, the trial court’s ruling would mandate incredibly costly and time-consuming inspections.  A state — even Louisiana — has a lot of highways to inspect.  In Louisiana’s case, it amounts to nearly 17,000 miles of road, and a lot of trees.  The costs to the taxpayers of a tree-by-tree inspection would be staggering.

difference140408The Court of Appeals made short work of the trial judge’s higher “duty.”  It held that the law was clear.  Where the tree appears healthy — like the one that fell on the victim — the state’s duty could be discharged in a drive-by inspection. No matter why the tree was rotten.

Walker v. State, Dept. of Transp. and Development, 976 So.2d 806 (La.App. 2 Cir., 2008).   Nathaniel Walker was a passenger in a vehicle being driven by Dannie Evans on Louisiana Highway 71, when a large oak tree fell on the car.  Nathaniel was left a quadriplegic, albeit one with a good lawyer.  He sued Dannie, Allstate Insurance and the State of Louisiana Department of Transportation and Development.

Among other things, Walker alleged the oak tree that fell on the vehicle was on the highway right-of-way in violation of highway safety regulations, that DOTD had prior knowledge that the tree needed to be removed and that DOTD failed to inspect the right of way.  DOTD moved for summary judgment, arguing that Nathaniel couldn’t any facts in support of his allegation that DOTD had prior knowledge that the tree needed to be removed. DOTD supported this claim with an affidavit from one of its maintenance superintendents who had conducted an inspection of the area in question two weeks before the mishap.  The state agency argued that under the law, it owed no duty to motorists traveling on state highways to check for damage on all sides of trees that abut state roadways.  The trial court denied summary judgment to DOTD, because the damage to the tree in this case was a result of natural rot as opposed to third-party operated construction equipment. The trial court stated that despite the holding in a prior case –Caskey v. Merrick Const. Co. – the distinction as to how the tree was injured imposed a greater duty to inspect on DOTD.

DOTD appealed.

Held:  DOTD won, and Walker’s case was dismissed. The appellate court said in order to recover damages from DOTD, Walker had to prove that the state had ownership or control of the tree which caused the damage; the tree was defective (that is, it created an unreasonable risk of harm); the state had actual or constructive knowledge of the defect and failed to take remedial procedures within a reasonable amount of time; and the state’s failings led to the injurie Walker suffered.

Now this is a distinction without a difference ...

Now this is a distinction without a difference …

No one contested that DOTD had control over the rotten oak tree, that the rotten oak tree was defective, and that the rotten oak tree caused Walker’s injuries.  Instead, the Court held, the primary issue was whether DOTD had actual or constructive knowledge that the tree was rotten. The condition that caused the oak tree in question to fall was visible only on the back side of the tree, out of sight of DOTD inspectors who passed by on the road. There was no genuine issue as to the location of the rotten area in question, or whether the rotten area in question was observable from the roadway. Additionally, the photographs taken at the accident scene reveal that the oak tree was otherwise healthy, containing a full canopy of green leaves.

The Court said that DOTD’s duty to protect against the risk of a tree falling onto a highway required it to inspect for dead trees and remove them within a reasonable time. The state was not required, however, to inspect every tree that conceivably could fall on the road or to remove trees simply because they had the potential to fall onto the road.

In Caskey, the court held that DOTD inspectors had no duty to walk around all sides of the tree and check for damage, particularly when the tree is otherwise green and healthy.  The trial court in this case imposed a greater duty on the state than the law required.  The Court of Appeals ruled that the trial court’s incorrect determination – that a different duty exists when the defect results from natural causes as opposed to artificial causes – was a contradiction of the law, a distinction without a legal difference.

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