Case of the Day – Monday, March 2, 2015

IT WAS SMALL WHEN I PLANTED IT

It was such a safe vehicle ... so it must have been the tree's fault.

It was such a safe vehicle … so it must have been the tree’s fault.

Times change and trees grow. That’s the lesson in today’s case.

Mr. Paredes was driving along I-805 in the driving rain, transporting his daughters in a superannuated Volkswagen with bald tires. He lost control of the VW and it slid down a bank, colliding with a eucalyptus tree located about 25 feet from an on ramp. His 6- and 9-year old daughters died in the accident, and he was badly hurt.

Normally, one would shake his or her head and observe that Mr. Paredes maybe was going too fast, or driving a junker in weather that was too bad, or perhaps engaging in risky conduct by relying on bald tires. But this being America, it had to be someone else’s fault.

Mr. Paredes blamed Caltrans, the California Department of Transportation. It was the agency’s fault, because the trees were closer to the on ramp than permitted by Caltrans standards, and in fact shouldn’t have been there at all. Only problem was, when the trees were planted, they complied with all standards. Even today, they were more than 30 feet from the road and 25 feet from the on ramp. In other words, Caltrans may have set in motion the factors that caused the damage, but it didn’t create it negligently: the construction complied with all standards when built.

Under the law, the agency had to have actual or constructive knowledge of the dangerous condition. Splitting hairs, the Court found that Caltrans knew that the trees were planted where they were planted: after all, Caltrans had planted them. But, the Court said, Caltrans didn’t have knowledge that the trees, located as they were, were dangerous.

It strikes us as maybe parsing things a little too finely. But as we’ve said before, hard cases make bad law. Here, the jury may have gone off on a frolic, and — notwithstanding all of the expert testimony — figured that Mr. Paredes was a little too much at fault to be entitled to much. The Court of Appeals, which is legally disposed to defend a jury verdict anyway, may have agreed.

Driving 60 mph in a beater of a car with bald tires through heavy rain? So exactly who was negligent here? Some workers who planted a tree 15 years ago or the idiot who jeopardized his most precious possession — two little girls — in his haste to get somewhere?

Mr. Paredes claimed the trees were too close to the road ...

Mr. Paredes claimed the trees were too close to the road …

Paredes v. State, 2008 WL 384636 (Cal.App. Feb. 14, 2008).  Marco Paredes was injured and his two daughters killed when Paredes lost control of his vehicle in heavy rain, after which the vehicle slid down an embankment and struck a eucalyptus tree. Paredes claimed that California Department of Transportation (Caltrans) employees created the dangerous condition by creating the slope and planting eucalyptus trees within 30 feet of the on ramp without protecting them with guardrails, demonstrating negligence per se as well as placing Caldrons on notice of the defect.

The jury disagreed. It found that the property was in dangerous condition at the time of the accident and was a substantial cause of Paredes’s injury and the death of his children, but it nonetheless concluded that the State did not have actual or constructive notice of the condition in sufficient time before the incident to protect against it. The jury also found the dangerous condition was not caused by a negligent or wrongful act or omission of a State employee acting within the scope of employment.

Paredes appealed.

Held: The verdict against Paredes was upheld. The Court of Appeals observed that California law held that except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The law, the Court said, plainly requires a finding that a public entity’s negligent or wrongful acts created a dangerous condition. It does not impose liability for mere creation of a dangerous condition. In this case, the jury was instructed that the plaintiffs had to establish that negligent or wrongful conduct by a State employee acting within the scope of employment created the dangerous condition. The Court concluded that substantial evidence from State’s expert, as well as Paredes’ own experts, supported the jury’s finding that State did not act negligently or wrongfully in planting the accident trees on the slope along the accident site.

The State’s expert explained that the standard applicable at the time of the planting was Caltrans’s “clear zone principle,” which required only that trees be planted 30 feet beyond the traveled way of the I-805 mainline and 20 feet from the on-ramp. For that matter, Paredes’ expert agreed the accident tree was over 31 feet from the edge of the traveled way of the I-805, and 25 feet from the edge of the traveled way of the nearby on-ramp. Another expert explained that a fixed immovable object under the Caltrans clear zone standard was a tree having a trunk with eight inch diameters or greater. The State’s expert testified that a guardrail would not have been required at the site of the accident tree applying standards prevalent at the time of trial.

The testimony of a single witness may be sufficient to establish substantial evidence, the Court said, and here, the jury as the exclusive judge of credibility was entitled to believe defendant’s witnesses.

Someone should have told Mr. Paredes this ...

Someone should have told Mr. Paredes this …

The Court also concluded that substantial evidence supported the jury’s finding that State did not have actual or constructive notice of the dangerous condition. A public entity has actual notice of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. A public entity has constructive notice of a dangerous condition only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Here, State employees planted the accident tree as well as other trees on the embankment. But the Court refused to fault the jury’s finding that the public property was in a dangerous condition at the time of the accident required it to also find the State had notice of that condition. On the evidence here, the jury could have concluded that the planting of the young eucalyptus tree on the embankment was not dangerous in 1979 or 1980 when that project was completed, but became dangerous only when its trunk grew to a larger diameter. Thus, while State may have had notice of the physical condition it had created — the presence of trees on the slope — the jury was entitled to conclude it did not have notice that the condition was dangerous. Substantial evidence supported such a conclusion, the Court held.

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And Now The News …

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oklapark150302Oklahoma City, Oklahoma, KWTV, March 1, 2015: 48 Injured Trees Will Be Uprooted At OKC’s Myriad Gardens

Covered in snow and ice, the Myriad Garden’s ‘Great Lawn’ was quiet this weekend. But on a better day, the place is bustling. It is home to lunch breaks, long walks, Frisbee, outdoor movies and exercise. “We are definitely Oklahoma City’s central park,” Myriad Gardens spokesperson Christine Eddington said. But the ups and downs of warm and cold weather in our state have taken a toll on one of the metro’s most visited parks. So Monday marks the beginning of a change in scenery; 48 trees surrounding the Great Lawn will be sawed down. There’s no hope for the maple hybrids, Eddington told News 9. She said they have what’s called sunscald, or southwest disease. The injuries are irreversible and will eventually kill the trees …

Fayetteville, North Carolina, Observer, March 1, 2015: Squirrels, problem trees keep PWC arborist busy

Mark Falcon is the person charged with keeping trees away from the city’s power lines, but he says squirrels can cause more drama than trees. “Now our outages are mainly caused by squirrels,” says Falcon, a utility arborist for the Public Works Commission. “They use the power lines as freeways, to get from one place to another. It’s a nice little run for them.” Sometimes a squirrel lands with one set of paws on a hot line and the other on a grounded area, like the wood of a utility pole. “They connect the circuit,” Falcon says. “They get nuked. They close the circuit …”

deadpeopletree150302New York City, New York Post, February 27, 2015: Here’s a plan to bury corpses in pods, grow trees

There’s no denying it: Burying bodies is a huge waste of space that could be used by the rest of us who are still breathing. Even cremation, though cheaper and easier, can produce a lot of toxic waste. But what if your dead body could be turned into a tree instead? Italian designers Anna Citelli and Raoul Bretzel are proposing just that, in the form of a biodegradable burial pod. The “Capsula Mundi,” as it’s known, would encase a corpse in an egg-shaped seed capsule and then be buried underground with trees on top of them. As your body decomposes, the tree would gather nutrients from the decomposing pod, and the circle of life would march on. The idea is just a hypothetical sketch at this point, but if it ever came to be reality, cemeteries would be replaced with lush memorial gardens …

Poughkeepsie, New York, Journal, February 28, 2015: Whether fallen or standing, trees have many uses

Hundreds of downed trees are scattered throughout Ferncliff Forest. “They fall because of age, because of storms and they come down because of our beaver,” said H. Knick Staley, secretary, treasurer and ranger of the 200-acre game and forest preserve in Rhinebeck. Not that he minds. After all, downed trees, Staley said, open the forest canopy, allowing for more light. They also provide shelter for small animals such as rabbits, chipmunks and squirrels, and serve as a food source for deer and other animals that eat tree bark. More than that, as fallen trees rot and break down, their remains fertilize the ground, benefiting forest growth. Even so, there are instances when fallen trees have to be removed. “Sometimes, we have trees that are leaning over the (hiking) trails, which are dangerous,” Staley said. “We have to take them down,” along with trees that fall near the preserve’s lean-to structures and into ponds …

Mother Earth News, March 27, 2015: Tapping maple trees: A beginner’s guide to making your own maple syrup

Maple tapping time is just around the corner! Have you ever considered taking up this fun hobby but wonder how it all really works? I’m so excited to share with you everything we’ve learned about sugarmaking. I know you’ll find it to be a great outdoor family activity and I think you’ll see it is much simpler than you thought. Best of all, your reward will be one of nature’s sweetest treats: pure maple syrup …

treework150227Rochester, New York, Democrat & Chronicle, February 26, 2015: Dangerous trees can come between neighbors

If you’re like Lucille Raleigh was the past few months, every time you looked out your window and saw the wind blowing, you got a little nervous. That’s because a 15-foot branch roughly 10-to-12 inches in diameter was hanging precariously into her yard and dangerously close to her house. She would have had it taken down right away, she said, but the branch wasn’t attached to a tree in her yard — it was her neighbors’ and Raleigh said they told her they couldn’t afford to take it down. Raleigh, 89, said she and the Karpenkos have lived next to each other on Barry Street in the village of Brockport for about 30 years and are good neighbors. They don’t argue, and they try to work with each other. But Raleigh said it was just a matter of time before the limb damaged her home …

Yakima, Washington, Herald, February 26, 2015: Chelan developer accused of using salt in attempt to poison 123 poplar trees

A 46-year-old land developer was arrested Wednesday morning on suspicion of using large amounts of salt to poison 123 poplar trees said to diminish the view from his development. George “Ted” Schroth, a residential developer in King County and of The Lookout in the Chelan area, was arrested on suspicion of first-degree malicious mischief. He lives in Clyde Hill, near Bellevue. He is accused of buying $500 worth of salt on Oct. 28, one day before the bases of the trees were each laced with about 10 pounds of salt, according to a probable cause affidavit filed in Chelan County Superior Court by Sgt. Rob Huddleston with the Chelan County Sheriff’s Office. The trees are on a housing development called Whiskey Ranch which is near the Lookout housing area being developed by Schroth about a mile northwest of Don Morse Park in Chelan …

San Jose, California, Mercury News, February 26, 2015: Albany: Trees come down at Gill Tract site

Crews hired by the University of California cut down 53 trees Thursday morning, preparing for the construction of a mixed-use residential-commercial project on land at the university-owned Gill Tract. The controversial project, which includes a Sprouts Farmers Market store and senior housing, is slated for construction on both sides of Monroe Street at San Pablo Avenue, east of the University Village student residential complex. A small protest over the removal was held in the morning and University of California police were on the scene, but there were no reports of arrests, according to a university spokesman …

New Orleans, Louisiana, Times Picayune, February 26, 2015: How to protect trees from construction work and heavy equipment damage

We love the look and benefits of mature trees in a neighborhood. Think about a new subdivision with only newly planted trees. Now imagine the same neighborhood with shady yards and leafy canopies along the streets. See what I mean? Healthy, mature trees properly placed in the landscape will add to your property value. Since it takes so long to grow a mature tree, one that’s lost to lightning or a storm is essentially irreplaceable. Even if a new tree is planted, it will be decades before it begins to create the effect of the original. While we can’t do anything about storms, we can protect trees vulnerable to life-threatening damage from filling or construction on a site. Purchasing a lot with beautiful trees and then watching them die as a result of home construction is heartbreaking …

Charlotte, North Carolina, WCNC-TV, February 26, 2015: Some trees are no match for snow

It happens like clockwork each time it snows: trees topple over near Eric Cline’s property. “It’s a nightmare. It’d worry anybody. The big fear for us is someone getting hurt down there,” he said. “Down there” is the bottom of his driveway where it meets Highway 3. Trees fall across the two-lane road there anytime there’s a significant snow event, he says. “They’re not dead. They just got too big, and the ground is so good and saturated that they just can’t take that kind of weight,” he said …

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New York City, WFUV-FM, February 24, 2015: New York City lawmakers want to remove trees that have fallen on power lines

New York City lawmakers want to create a protocol for removing trees damaged by severe weather. City Council Member Andy King says a bill has passed in the Parks and Recreation Committee that would help managerial systems, like the Parks Department and Con Edison, communicate with each other in future weather events. King says the increase in communication would especially help with removing trees on power lines. ”What was happening — and I went out with Parks — when there were trees down during the Sandy fiasco, there would be a tree down on a powerline; and then they couldn’t do anything because it was on a powerline,” King said. “Then when I was able to get ConEd to show up, ConEd couldn’t touch it because there was a tree on top of a power line …”

Houma, Louisiana, Houma Today, February 26, 2015: Monroe man cited for cutting down trees on Ouachita Wildlife Area

A Monroe man has been cited for criminal damage to state property for cutting down 14 trees on the Ouachita Wildlife Management Area to clear a shooting lane and other alleged violations. The Department of Wildlife and Fisheries said Wednesday it also cited 63-year-old John Johnson for intentional littering, hunting deer out of season and leaving a deer stand in a hunting position. Cutting trees carries a fine up to $10,000 and 10 years in jail. He also may face covering the replacement value of the trees …

The Dalles, Oregon, Chronicle, February 24, 2015: City to remove dying trees

The Dalles City Council unanimously approved an amendment to the noxious vegetation ordinance Monday that authorizes removal of dead or dangerous trees on private property. The new code was declared an emergency, which made it go into effect immediately, due to a problem with a diseased or dying tree on a lot in the 1600 block of 13th Place. Gene Parker, city attorney, recommended adoption of the ordinance because it would allow the city to resolve the issue. He said the Veterans’ Administration owned the repossessed property, but he had been unable to gain a response from the agency’s property management company. He said some cities did not take action with trees located on private property out of the belief it was a civil matter. However, many other cities do have regulations in place to address the problem to trees that were unstable …

Youngstown, Ohio, WKBN-TV, February 24, 2015: Winter weather impacts trees, shrubs

The cold, snow and ice is taking a toll on trees and shrubs and the properties around them. “The ice and snow buildup on the limbs themselves, always a chance for breaking,” said Dan Yoho of the Davey Tree Expert Co. in Kent. Yoho suggests brushing off shrubs and small trees, but leave the bigger trees to the experts. “Have somebody that is trained to be able to climb the trees, properly tie themselves in, work over the house, work safely and comfortably so that nobody gets hurt,” Yoho said. The bare limbs make it easier to see which ones are dead, as well as any disease the tree may have developed …

Sacramento, California, KXTV, February 25, 2015: California community enraged after shopping center owner cuts down 42 trees

A well-known Sacramento commercial property owner has angered a foothills community by chopping down 42 mature trees in a small shopping center he just purchased. A local tree service hired by Ethan Conrad Properties cut down the trees Saturday and Sunday during the early morning hours. “I think showing up at 5 in the morning is a little shady,” said arborist David Kuttler, who owns another tree service in Penn Valley and was stunned when he drove by the Gateway Center after the weekend. “If you don’t like the trees, don’t come up here. We live in the woods,” Kuttler said

Tulsa, Oklahoma, KTUL-TV, February 25, 2015: Top NY arborist brought in to preserve Gathering Place trees

Just like one of the world’s most acclaimed landscape architects is designing the Gathering Place, one of the best arborists in the country is being brought in from Long Island. There are already about 500 trees inside the fences at the Gathering Place and 4,000 more will be planted, and a new natural process is being used to get them to thrive and grow. The fertilizer is made of oyster mushroom fungal spores which are sprayed onto mulch; the spores eat the mulch, turning it into a food source for organisms living in the soil, reinvigorating the ecosystem …

nags150225Nags Head, North Carolina, Sentinel, February 25, 2015: A growing tempest over trees

The festering issue of tree cutting is inflaming passions in Southern Shores, where town officials complain about unfounded personal attacks and residents accuse officials of continually ignoring their voices. The town council authorized the publication of a Feb. 17 letter — headlined a “Special Announcement to Citizens and Taxpayers of Southern Shores” — that accuses some residents of using “emails and social media to personally attack and ridicule individual Town Council members, staff members and professional service providers.” For their part, some critics now describe the town council as “the chainsaw board” — a reference to the ongoing battle over the fate of the town’s trees. And “this conflict will only escalate as more road-rebuilding projects are budgeted and approved,” warns Ann Sjoerdsma, co-chair of The Alliance to Preserve Southern Shores …

Radio Canada International, February 24, 2015: Hundreds more trees victims of Dutch Elm disease

They are majestic soaring trees, providing shade in hot cities, and life for birds and animals. But hundreds more elms are to set to be cut down again this year, this time in Charlottetown, Prince Edward Island. It’s part of the ongoing battle against Dutch Elm disease. The disease is a fungus which kills the tree and is spread by the elm bark beetle, It gets its “Dutch” name from the Dutch researchers who identified it in 1921. The disease first reached North America with infected beetles arriving in the late 1920’s in lumber destined for the US furniture industry, and again in the 1940’s when a slightly different and more aggressive variant arrived in North America …

Greece, New York, Post, February 25, 2015: A woolly bully threatens hemlock trees in hills surrounding Canandaigua Lake

The hemlock woolly adelgid looks like an aphid and protects itself in a white cotton ball-looking covering — but that’s if you even see the tiny bug. Then again, horror stories can come in small packages. This invasive species started showing up in the Finger Lakes region about seven years ago and has been discovered in several locations around Canandaigua Lake, said Hilary Mosher, coordinator of the Finger Lakes Partnership for Regional Invasive Species Management (PRISM) at the Finger Lakes Institute at Hobart and William Smith Colleges in Geneva. The HWA, as the insect is known, is threatening hemlock trees throughout the East, and in particular the trees found on the steep slopes surrounding the lake. And the damage to the tree is done in nasty fashion …

Kildare, Ireland, February 24, 2015: Nationalist, February 24, 2015: Who poisoned trees in Monasterevin

Kildare Co Council is seeking the public’s help to try and track down who poisoned two majestic mature trees in Monasterevin. The trees, a Horse Chestnut and a Lime, are located on the corner of Whelan Street and Drogheda Street and are estimated to be among some of the oldest trees in the town. The Horse Chestnut is estimated to be over 100 years old and the Lime is about 50 years old …

fungus150224Honolulu, Hawaii, KHNL-TV, February 24, 2015: Researchers identify aggressive fungus killing ‘ohia trees

For the past five years, ‘ohia trees on Hawai’i Island have been under attack — dying mysteriously and rapidly from an unknown disease, but researchers are now one step closer to figuring out how to prevent mass devastation now that they’ve figure out what’s killing the native species. Ceratocystis Fimbriata is an aggressive and deadly fungus so powerful, the disease has been named Rapid ‘Ohia Death — because of how quickly a once-healthy tree deteriorates once it’s been infected. “It basically plugs up the sap wood so that the tree basically is strangled to death by the fungus and that’s why we see the leaves turning brown so quickly. The fungus is plugging up the trees ability to transport water,” said Dr. Flint Hughes, an Ecosystem Ecologist with the Institute of Pacific Islands Forestry …

Salt Lake City, Utah, KSL-TV, February 23, 2015: Weather whiplash puts budding trees at risk

This February will finish up as the warmest on record in Utah, no matter what happens the next five days. But with the return of cold, snowy weather, many trees and plants throughout the state are confused about what’s going on. “We’re probably a good month and a half early,” said Meridith Perkins, urban and community forestry coordinator with the Utah Division of Forestry, Fire and State Lands. “This is the earliest that I’ve seen them …”

Milwaukee, Wisconsin, WITI-TV, February 23, 2015: “There is a danger:” Bitter cold takes toll on trees; dozens in Oak Creek must come down

The FOX6 Weather Experts say if the month of February ended on this Monday, February 23rd, it would be the sixth coldest February on record for Milwaukee! And another Monday brought another Wind Chill Advisory issued by the National Weather Service, effective through late Monday morning. The freezing temperatures we’re seeing are taking a toll on all of us — and that includes arborists, who are finding big problems with trees as winter drags on. Oak Creek Forester Rebecca Lane was armed with paint as she took a walk on Monday. “We’re marking trees in the range of 15-25 in diameter,” Lane said. They’re marking the trees because many of those that line Lenox Avenue in Oak Creek are cracking. “This can be dangerous,” Lane said. So the cracking trees have to go …

Columbus, Ohio, Ohio State University Lantern, February 23, 2015: Ohio State advisory committee aims to protect, document its trees

There are hundreds of trees on Ohio State’s campus that can be easily overlooked, especially during winter, but to Beth Ritterholz, forestry is a topic of conversation on a daily basis. Ritterholz is a tree inventory student worker at Chadwick Arboretum, located across the street from the Schottenstein Center. She and her colleagues make sure that OSU is certified for Tree Campus USA, a nationwide program created by the Arbor Day Foundation that started in 2008 and recognizes colleges and universities for promoting sustainability and conservation. OSU was recently recognized by Tree Campus USA in 2014 for its efforts to promote conversation about forestry and engaging the community in the topic …

Seattle150223Highland, Washington, Times, February 22, 2015: Swath of trees to be cut and cleared for sale of obsolete Ambaum substation

For Burien resident Karen McMichael it was a surprise to see the orange colored fliers and bright orange spray painted dots that now pepper the trees on the corner of S.W. 144 St. and Ambaum Blvd. S.W. when she returned home from vacation on Friday. According to the fliers any trees marked with orange are set to be cut down. “The whole area effectively would be clear cut and these are old, very mature coniferous trees. An old maple, a beautiful old pine that has been well pruned and maintained over many years,” said McMichael on Feb. 21 while standing near the property …

Davenport, Iowa, Quad City Times, February 22, 2015: ‘More kinds of trees than all of Europe’

Although most of Illinois has been turned over to cities, and corn and soybean fields, remnants of wild areas, or original landscapes, remain. The state contains 90 habitat types and is home to 54,000 species of plants and animals … Ever since reading some years ago that the Shawnee National Forest area contains swamps with cypress trees — cypress trees! — more than 1,000 years old, visiting this area has been on my list. My guide is a book titled “Explore Nature in Illinois,” published last year by the University of Illinois Press. It’s the kind of book you get when biologists write about great places to visit, and I highly recommend it …

Montreal, Quebec, Gazette, February 22, 2015: City to spend $12.9M this year to plant trees and combat emerald ash borer beetle

Montreal will increase the amount it has been spending to replace ash trees that were devastated by the beetle, that has already claimed 80 million ash trees in North America since 2002, and has been present in the city for the last two years. A $2 million budget will be set aside for boroughs to do more surveying and to replace trees already felled after the beetle was detected. Réal Ménard, the executive committee member in charge of the environment, said the city will plant 300,000 new trees over the next decade to increase the percentage of the island covered with trees to 25 per cent from its current 20 per cent. The city has dedicated a total of $12.9 million to fight the ash borer beetle in 2015, and to begin the process of planting the 300,000 new trees …

Couer d’Alene, Idaho, Spokesman-Review, February 20, 2015: Expert: No dike trees cut without reason

In her draft minutes from the Coeur d’Alene City Council meeting Tuesday, City Clerk Renata McLeod provides the council discussion re: tree cut on Coeur d’Alene’s Dike Road. It includes in part: “Mayor Widmyer stated that in the beginning the Army Corp said that all the trees and vegetation needed to go, and the City negotiated to keep trees. The arborist from Ruen Yeager found 300 or so trees had health issues and needed to go. The community believed the City saved 700 trees without considering the two other elements; slope restoration and breach of the levee. This led to false hope and the City celebrated too soon. Ms. Winters felt the community was excited to not have to remove all of the trees; however, the geotechnical analysis was not complete at the announcement of the 350 tree removal number. Mayor Widmyer asked if there were any trees removed that should not have been. Ms. Winters stated that, in in her opinion, there were not …”

Chicago, Illinois, DNA Info, February 22, 2015: Six trees on one Portage Park block cut down: ‘I woke up to a buzzing saw’

Martin Molina was fast asleep in his Portage Park home when the sound of a buzzing saw woke him up.  By the time the city crew was finished Tuesday morning, six ash trees in the 5100 block of West Cullom Avenue had met the business end of a chain saw, all victims of the Emerald Ash Borer, a pest that has devastated hundreds of trees throughout Chicago, officials said …

burn150220Flagstaff, Arizona, Daily Sun, February 19, 2015: Small trees survive insects, drought

The recent February 5 story, “Setting the record of Arizona’s forest straight,” missed the boat in summarizing the complex state of the science and objections to Four Forests Restoration Initiative, or 4FRI. However, the story focused on only the Fulé et al. response to our study, while it omitted our published 2014 rebuttal and new 2014 studies that support our findings and that identify a key role for small trees in providing resilience as climate changes in these forests. The scientific basis for 4FRI is very important, as these forests were seriously degraded by unsustainable industrial logging and livestock grazing and are in need of science-based ecological restoration …

Biloxi, Mississippi, Sun Herald, February 19, 2015: 62 trees going down, Wal-Mart and 57 trees going up in North Biloxi

Before construction can begin on a Wal-Mart Neighborhood Store on Popp’s Ferry Road in North Biloxi, 62 protected trees will come down. After it’s built, 57 trees will be planted. The Biloxi Planning Commission on Thursday approved a plan to develop the vacant 5-acre lot across from North Bay Elementary School and the Mississippi State University research facility. No one in the audience objected to the removal of trees. “I walked the property,” city arborist Eric Nolan said. “I didn’t see any big, big trees.” Most are 8 to 16 inches in diameter, he said, with an average of 8 to 10 inches. He found 13 black willow trees, nine red maples, five black gums and 35 sweetbay magnolias. Only two oaks are on the property — a 10-inch-diameter Live oak and a 12-inch water oak — and he said the trees are in a “woody draw” that directs water on the property and will be filled …

Athens, Georgia, University of Georgia, February 19, 2015: UGA researchers work on creating stress- and disease-resistant trees


Researchers at the University of Georgia think they’ve come up with a system to identify the genes in trees responsible for stress tolerance, which includes everything from extreme temperatures to disease. Now they’re using a new $490,000 grant to identify those genes and figure out how they work. Identifying those stress-control genes and understanding their function could help create trees that can resist the very things that can kill them, said C.J. Tsai, the lead researcher on the project …

Mason City, Iowa, Globe Gazette, February 19, 2015: Watch for power lines before you plant trees

Although I love trees, I see little beauty in a mature tree with a wide gap in its crown to make way for power lines. This eyesore is not the utility company’s fault, of course. Nobody wants broken tree branches bringing down power lines in the neighborhood. The cure is simple: Just look up before you plant. If there are power lines above your site, choose a short tree. There are many wonderful trees that won’t threaten power lines. Some are common, some not …

Jackson, Michigan, Citizen Patriot, February 19, 2015: Acres of trees cut down at Jackson County airport, part of $20 million construction project

Nearly 90 acres of trees and vegetation at the Jackson County airport are being razed, part of a $20 million construction project currently underway on airport property. With acres of trees and shrubs cleared, officials can move forward with a construction project to build a new, federally approved runway, Airport manager Kent Maurer said. Springport-based contractor Mead Brothers began clearing vegetation for a clearer runway approach at the airport this month, and will continue to work through March 31 at the latest, Maurer said …

Hollywood150219North Hollywood, California, North Hollywood-Toluca Patch, February 18, 2015: Hollywood Hills man accuses LA council member neighbor of cutting down his trees for a $3.4 million view

A Hollywood Hills man is suing his neighbor, a Los Angeles City Council candidate, claiming she had trees on his property cut down or drastically pruned in order to improve the view from her multimillion-dollar home. Eugene Matthews is seeking unspecified damages in the lawsuit filed Tuesday against Sheila Irani in Los Angeles Superior Court, alleging negligence, trespass and unjust enrichment. Irani, who is running for the Fourth District council seat, claims the lawsuit is “politically motivated.” She contends that she trimmed about two feet off “hedges” that were “dry and dying” and which hung over her own property in order to remove a fire hazard. According to the lawsuit, Matthews has owned his Canyon Lake Drive home since March 2001. The property once included a “beautiful array” of trees more than 30 years old that were visible on Google Earth images, the suit states. Last summer, either Irani or someone working on her behalf cut down 10 conifer trees that were as high as 20 feet tall to stumps, the suit alleges. A dozen other trees were severely pruned, according to the lawsuit …

Annapolis, Maryland, The Capital Gazette, February 18, 2015: City residents upset over BGE plan to remove trees in Historic District

A Baltimore Gas and Electric Co. plan to remove 39 trees and trim another 216 in the city’s Historic District is raising the ire of some Annapolis residents. BGE unveiled its tree-trimming proposal to city officials last week. City residents have not been notified about BGE’s plans although Alderman Joe Budge, D-Ward One, included a list of affected properties in a Wednesday note to his constituents. Pruning could begin in the spring. The utility’s cyclical four-year program to clear tree limbs from Annapolis power lines coincides with debate within the Statehouse over regulatory enforcement. Thanks to a 2012 Public Utility Commission ruling – RM43 – BGE is not bound by rules governing local forest conservation or historic preservation. RM43 allows BGE to trim trees to give power lines a 15-foot opening. Ten of the 39 trees slated for removal by BGE are listed in good condition and seven are bigger than 12 inches in diameter. Eliminating and trimming 255 trees will have a “significant” impact on the city’s character, said Maria Broadbent, director of Annapolis’ Department of Neighborhood and Environmental Programs …

Houston, Texas, KTRK-TV, February 18, 2015: Residents upset after developer removes trees from plot in Woodlands

Lesly McRae moved to Creekside Park in The Woodlands two and a half years ago. “We loved the trees, we loved the parks, and we loved the nature preserves,” she told Eyewitness News. She’s one of more than 1,200 people who’ve signed an online petition asking The Woodlands Development Company to stop clear-cutting and be more deliberative about its planning. “Our trees are being clear cut and when we look at the other villages,” she said. “There’s the buffers, the trees, there was more care in preserving that.” Erin Burton’s husband Matthew started the petition. “I understand that development needs to take place,” she explained. But said she wished it was more thoughtfully carried out. Matthew Burton echoed his wife’s sentiments when we reached him by phone. “It’s being developed with a very different, less environmentally friendly standard than the original design of The Woodlands,” he said …

Atlanta, Georgia, WGCL-TV, February 18, 2015: Tips for spotting trees likely to fall in bad weather

Jason Brown from Ryan Tree Service said there are simple things to look for if you want to know which trees around your house you should keep an eye on. “When you already have a bad spot in the tree, it’s more likely that it’s going to have problems with the common thunderstorm.” Tuesday, residents throughout Gwinnett County saw their trees covered in ice. The extra weight on the branches was the difference, in some cases, between weak branches staying put or coming down and causing damage. Brown said to look for places where the tree appears to be split in the middle. This type of deformity is a weak spot in a tree that will get worse over time. “It’s got a disease in it. The short name for it is canker disease. It’s like cancer in people. It eats into the tree, and eventually what will happen is that it will get so bad that it will break and fall over …”

Brownsville, Texas, KGBT-TV, February 18, 2015: Plans to uproot oak trees shunned in Brownsville

Several newly planted oak trees along in Brownsville were going to be uprooted, but those plans have been put to a halt. Patty Gonzalez, a spokesperson for the City of Brownsville, said Wednesday that residents expressed their disapproval and do not want the oaks taken elsewhere. The 22 young oaks line 6th Street from Ringgold Street to Harrison Street. In January, Gonzales said there were plans to uproot seven of the 22 oaks in order to relocate them. Gonzales said there was a planning oversight and the potential growth of each tree’s canopy was overlooked …

oaks150218Charleston, South Carolina, Post and Courier, February 16, 2015: Tree ‘butchering’ at West Ashley home has neighbors howling

Those driving down Broughton Road in West Ashley’s upscale Crescent neighborhood can see a tree-trimming job some describe as “shocking,” “a butchering” and “absolutely hideous.” The three affected oaks are rooted on the property at 15 Broughton, where homeowner Donald Wathne said he is considering legal action and also said he may tie yellow bows to the shorn limbs and shine spotlights on them at night. The sawed-off limbs face property owned by plaintiff’s lawyer David Hoffman, who said his involvement in the pruning was “nonexistent,” except to approve landscape architect Robert Chesnut’s plan for his yard and to ensure Marshall Badeaux of Charleston Tree Experts had the city’s approval …

Portsmouth, New Hampshire, Herald, February 17, 2015: Some trees retain leaves all winter long

Despite high winds and deep drifts of snow, despite all their neighboring deciduous trees now leafless and bare, some hardwoods, the oaks, witch hazel, musclewood, ironwood and, most noticeably beech trees, are often still hanging onto their leaves late into the winter. Take a walk in the woods on a breezy day and you’ll hear the rattle of beech’s brittle leaves. They add some color to the monotones of woods in winter – a bright orange-ochre in the thin February light …

Cedar Rapids, Iowa, KCRG-TV, February 17, 2015: Cedar Rapids again installs dead crows in park’s trees as crow deterrent

It’s been some 20 years since then-local veterinarian Russell Anthony stumbled on the idea of placing crow coffins in tree tops to scare away hordes of crows from downtown Greene Square Park. On Tuesday, city crews once again placed dead crows wired to boards in the trees after the crows descended on the park at night, leaving a mess behind in the morning. That’s come as an unwelcome discovery by those neighboring the park, including the Cedar Rapids Museum of Art …

Astoria, Oregon, Daily Astorian, February 17, 2015: Oregon DOT to cut down 70 highway trees by spring

Before March 15, the Oregon Department of Transportation plans to cut down the first 70 of about 200 dead and dying alder trees along U.S. Highway 101, between Cannon Beach’s north entrance and Sunset Boulevard. The operation is the first phase of a three-phrase tree-thinning project. Last spring, ODOT flagged about 200 of the roughly 5,000 trees near that stretch of highway for removal, marking them with light blue dots. The trees may pose a threat to drivers, especially the trees with branches that lean precariously over the road, he said. Once ODOT identified them as a safety hazard, the department became legally liable for any accidents that may occur as a result of their continued presence in the highway corridor …

Asheville, North Carolina, Citizen-News, February 17, 2015: Removal of trees at Lake Tomahawk upsets residents

Members of the community expressed concern on social media recently following the removal of more than 50 trees from the dam at the south end of Lake Tomahawk. Residents in a closed group on Facebook posted comments critical of the tree-cutting, using words such as “shock,” “ugly,” “awful” and “terrible.” Citing orders by the N.C. Department of Environmental and Natural Resources’ dam safety division, the town of Black Mountain a few weeks ago announced that the trees would be removed. Following up on a 2011 inspection, the state department said the trees on the dam posed a threat to its structural integrity …

University replaces legendary oaks at Toomer's Corners.  The original trees were poisoned by a rival school's fan.

University replaces legendary oaks at Toomer’s Corners. The original trees were poisoned by a rival school’s fan.

Montgomery, Alabama, Advertiser, February 16, 2015: What’s next for the Auburn Oaks? Professor talks about what upcoming challenges the trees will face

While the new Auburn Oaks were officially planted at their new home at Toomer’s Corner on Saturday, it will likely be several years before the 35-foot tall live oaks are fully rooted. Auburn University Professor of Horticulture Gary Keever said that while typically trees take three to five years to reestablish a root system, he’s optimistic the Auburn Oaks may require less time since they’re already showing growth ...

Dallas, Texas, WFAA-TV, February 16, 2015: Ice storms + drought = crippled trees

Winter storms and prolonged drought have damaged the region’s trees. Video report …

Washington, D.C., Mint News, February 17, 2015: USDA Moving Toward Less Oversight, Regulation Regarding New GE Trees

Without regulatory oversight or public consultation, the U.S. Department of Agriculture has given the go-ahead to a biotech company to start introducing a genetically engineered (GE) pine tree that it has developed. The green light came in the form of a letter dated Aug. 28 and signed by Michael Firko, director of the Biotechnology Regulatory Services under the USDA. This letter — and the green light it gives to ArborGen Inc. — was made public by Dr. Doug Gurian-Sherman, a biologist with the Center for Food Safety. Noting that this may be the biggest environmental regulatory shift in the United States since the early 1990s, Gurian-Sherman asserts that the USDA “is deliberately thumbing its nose at the public by refusing to enact the regulations it has been authorized to use …”

St. Louis, Missouri, KSDK-TV, February 13, 2015: Neighbors fight to save trees in Brentwood

Two trees are in the center of a battle between a homeowner and his city. He said the city is taking down trees without getting the thumbs up from taxpayers. Barry Williams said Brentwood is nationally recognized as a Tree City USA. It recognizes cities for their excellence in urban forestry management. But he wants Brentwood to lose that prestigious title because he says city leaders aren’t living up to it …

Denver, Colorado, KUSA-TV, February 15, 2015: Drastic temperature swings damaging, confusing trees

People aren’t the only ones who have noticed the recent wild temperature swings– trees and vegetation are feeling it, too. Some signs of damage are now appearing on evergreens around the metro area. In the City of Lone Tree, the winter weather rollercoaster is leaving its mark. “I’m seeing a lot of damage to trees,” said Julius Zsako, the City of Lone Tree’s forester. “It’s done a lot of damage to our evergreen trees, evergreen shrubs and our evergreen ground covers …”

Hamlet150213Rockingham, North Carolina, Richmond County Journal, February 12, 2015: Hamlet or Whoville? Residents say trimmed trees resemble Dr. Seuss book

          The trees on the street could do with a trim;
                    The decision to cut was not made on a whim.
          Power crews cut branches to protect the line,
                    and no matter the look, the trees are just fine.

When Tim Brown walks out of his front door and looks at his tree-lined street, he feels like he’s living in a book he reads to his grandchildren. “They look like absurd, Dr. Seuss trees,” he said, standing in his front yard Wednesday afternoon. The oddly cut pines along Entwistle Street were trimmed by crews with Duke Energy Progress because limbs were arcing power lines, which had caused several power outages, Brown said …

Terre Haute, Indiana, Tribune Star, February 12, 2015: Ash borer summit details options on saving infected trees

Bill Kirby has already had some ash trees removed around his Stratford Hills home. And after attending the fourth annual Emerald Ash Borer summit Thursday at the Vigo County Public Library, Kirby said he plans to have a certified tree care professional inject a chemical to save ash trees next to his house. “I have 30 to 40 ash trees in my yard. I love the trees, the woodpeckers are great,” said Kirby, a former Vigo County deputy school superintendent who moved back to Terre Haute in July. “This summit has helped give me some direction. I have some trees back in the woods, so I will not be worried about those as much. I do have some close to the house, which I am getting concerned about,” he said …

Coeur d’Alene, Idaho, Press, Friday , February 13, 2012: Here’s why levee trees must go

Recently, questions have been raised about the number of trees being cut down as part of a levee restoration project along both sides of Rosenberry Drive (commonly known as Dike Road) on the North Idaho College campus.  To conform with levee recertification regulations imposed by the Federal Emergency Management Agency (FEMA), the Army Corps of Engineers is requiring the removal of some trees. Trees are a major concern along levees because they can severely weaken the integrity of the flood protection embankment in the event of a major flood or storm. Should the levee not receive FEMA certification, property owners in that area – NIC, Fort Grounds and surrounding neighborhoods – would be required to purchase costly flood insurance …

spanbeach150213The Inquisitor, February 12, 2015: Fossilized trees predating dinosaurs found on Spanish beach

Spain has been experiencing some pretty bad weather recently. However, it turns out howling gales and battering storms can be beneficial in making fascinating discoveries, like well-preserved fossilized trees. Scientists in Asturias in Northern Spain have discovered the prehistoric trees, which would have been growing in the area long before even the dinosaurs roamed the Earth, after storms washed away a significant amount of sand from the beach. According to experts, the fossilized trees are said to be more than 300 million years old ...

Bellingham, Washington, Western Front, February 12, 2015: New reforestation program seeks to revive the jungle

Guatemalan environmental activist Jorge Armando Lopez Pocol came to Western to discuss the recycling and clean up work he does through his project, the Chico Mendes Reforestation Project. “Trees are sacred to us. From the tree comes oxygen. It offers shade when it’s hot out and it gives us warmth when we are cold,” Pocol said through a translator. “What we have is a respect for nature.” The Guatemalan government does not support the reforestation project, and views it and the Kiche Maya community as rebellious because of their activism against the mining projects and privatization of water, Pocol said …

dangertreesla150212Los Angeles, California, KCBS-TV, February 11, 2015: Residents say trees along stretch near Westwood have become a danger

Those living along a small stretch of Devon Avenue say the trees in the area just south of Westwood have become a danger to residents. “A tree fell and there were some branches that got onto my car,” said Ron Cooper, a resident. Another resident, Rebecca Gonzalez, said: “The trees here seem to be rotting or dying. There’s quite a few of them, and it’s a problem.” The trees at issue are carob trees, as KCAL9’s Kaj Goldberg reports. Back in November, Goldberg says, a large branch totaled a BMW. Then early Tuesday, a barrel-size limb toppled onto Chris Schwarz-Lohr’s Toyota Prius. “The cab, the car is intact but I could’ve moved forward. The tree branch could have fallen, and that would have crushed me,” he said. Schwarz-Lohr and other neighbors on the block say that they’ve complained to the city to no avail. “Who’s gonna take responsibility for my car being totaled? Nobody can give me any indication of what to expect. I talked to the City Clerk’s Office,” he said …

Toronto, Ontario, The Canadian Press, February 11, 2015: All trees ‘potentially harmful,’ court rules

A teenager left paralyzed after falling from a favourite climbing tree in a public park has no grounds to sue the municipality, Ontario’s top court has ruled. In a unanimous ruling, the Court of Appeal said there was no way municipal authorities could reasonably have foreseen the tragedy and acted to prevent it. “Trees, being by their very nature things which can be climbed and therefore fallen from, are potentially harmful,” the court said. “Any danger posed by this tree was an obvious one. If you chose to climb it, you could fall and be injured …”

Chatham, New Jersey, Chatham Courier, February 11, 2015: Chatham trees likely safe from invasive species this year

Deputy Director of Public Works Tony Torello says local ash trees are likely safe from the highly destructive beetle, the emerald ash borer, in 2015. Torello said the invasive species has not yet spread from Warren and Somerset counties since the insect was discovered in Somerset County in May of last year. “The question everybody wants to know the answer to is ‘When are they going to get to Chatham’?’’ Torello told the Borough Council at its meeting Monday, Feb. 9. “Unfortunately, we don’t know that,” he advised. “It could be year, two years, three years from now — we really don’t know. But eventually, I will say that it will reach Chatham.” An infestation of the emerald ash borer can mean certain death for ash tree populations

Los Angeles, California, KNBC-TV, February 11, 2015: Homeowners say city trees are raising a stink in backyard

Margaret Wendt thought living in L.A.’s historic Hancock Park district would be a dream. Instead, more often than not, she’s waking up to a smelly nightmare in her carefully landscaped backyard. Wendt says every few days, city-owned trees are puncturing her underground pipes, sending the noxious contents bubbling onto her patio and garden. “I’m not trying to be funny, but it looks like the Jolly Green Giant went to the bathroom out here,” Wendt said …

Howell, Michigan, Livingston Daily, February 11, 2015: Residents grieve as old maple trees are cut down

Therese Hatfield’s heart wilted when she saw a row of mature, sugar maple trees cut down in front of the Sanford Cemetery in northern Livington County. “It’ so sad,” Hatfield said Wednesday morning. She watched as crews cleared the 22 sugar maple trees along Chase Lake Road in Cohoctah Township; her home is across from the cemetery. The cemetery dates to the 1800s, and some residents say the trees are just as old. “It’s just a sickening view,” she said. “These trees have been here for a hundred years, and we have destroyed them. For what?” Hatfield said the trees were healthy and were still being tapped for maple syrup. Scott Buell, district supervisor of the Livingston County Road Commission, said the trees, located in the road right-of-way, needed to be removed for a drainage ditch. Buell also said not all of the trees were healthy. “I save them if I can,” Buell said, noting he didn’t remove an old oak and hickory tree along the road …

Salem, Oregon, Capital Press, February 11, 2015: Cherry trees shrink along with labor pool

Cherry trees in the Northwest are shrinking as growers plant diminutive orchards in anticipation of labor shortages, experts say. Traditional orchards, with large trees planted at spacious distances, are often getting replaced with higher-density “pedestrian” systems in which most branches are within an arm’s length, expediting functions like pruning and harvesting. A worker with both feet on the ground can collect up to 170 pounds of cherries per hour, compared to 100 pounds if he’s frequently moving and climbing ladders, said Lynn Long, extension horticulturist at Oregon State University. “He’s increasing efficiency, which means you need to hire fewer pickers,” Long told farmers at a recent OSU cherry research symposium in The Dalles, Ore. Migrant workers are moving to other industries and the cost of labor is rising, forcing growers to think about running their operations with fewer people, he said …

Centennialtree150211Denver, Colorado, Post, February 10, 2015: Residents fume as Xcel removes Centennial trees, citing fire risk

Employees for an Xcel Energy contractor blanketed East Dry Creek Road between South Quebec and South Holly streets Tuesday in a tree-clearing operation that eliminated some backyard trees and raised hackles among homeowners. “They have just flat-out taken them down,” said Steve Wennerstrom, secretary of Mill Creek Homes Association. “I can see them in backyards below my house still working.” Xcel spokesman Mark Stutz said the power company planned to cut down between 50 and 75 trees in the course of the day. Crews from Wright Tree Service were removing every tree situated below a power line, even if 12 feet separated the vegetation from the line, Wennerstrom said. Power lines running through the neighborhood carry 230,000 volts when fully loaded, Stutz said. At full power, they sag, and “if they come in close contact with a tree, arcing conditions can cause fire and extended outages …”

Washington, Indiana, Times Herald, February 9, 2015: Walnut trees are some of our most valuable

Large old walnut trees are among our most attractive trees. They are also right at the top of our most valuable trees. Sad to say most of the large old ones are gone, cut for the fine wood these grand plants produce. Only a few of the huge monarchs of the forest remain, most protected in nature preserves scattered across Indiana. Poachers are a problem to these remaining walnut as the lure of big bucks makes even those in nature preserves at risk of being surreptitiously cut. It’s best to keep the location of large walnuts a secret. A new threat to our walnuts is out there just waiting to someday move into Hoosierland. This is the thousand cankers disease. In fact, in one site it has already been detected. This was in a black walnut grove in the Yellowwood State Forest in Brown County. This was a strange case as the fungus, Geosmitha morbid that causes this disease, was found on insects that usually do not transmit this canker …

Listverse.com, February 11, 2015: Ten freaky things you won’t believe that trees can actually do

Trees tend to be ignored because they don’t do much—until you look closer. Then, they just get weird. From unexpected forms of communication between themselves and other forms of life to the deadly measures they take to ensure their own survival, trees can rightfully demand a whole new level of respect …

Terre Haute, Indiana, Tribune Star, February 10, 2015: Trees in pipeline’s path already in danger

A Vectren gas pipeline replacement project is impacting some mature ash trees along Fifth Street. The six ash trees, however, may not have survived despite root damage from the pipeline project. The 28-inch ash trees, located across from St. Joseph University Parish, have not been chemically treated against the emerald ash borer, said City Engineer Chuck Ennis. “The decision was made not to (chemically) treat these trees because they are not healthy specimens and also because they were locked in and surrounded by concrete,” Ennis said …

San Francisco, California, Chronicle, February 10, 2015: Supervisors want city to maintain street trees

The Board of Supervisors agreed unanimously Tuesday that the city, not local property owners, should be paying for the upkeep of San Francisco’s 105,000 street trees. But don’t put away those checkbooks just yet. While the supervisors enthusiastically support the principle of having the city pay for pruning, maintenance and general upkeep of the urban forest, the reality is that they didn’t allocate a nickel toward the $15 million to $20 million annual cost of tree upkeep. While homeowners still being dunned by the city for the cost of keeping the trees on their sidewalk in good condition might not see any reason to cheer Tuesday’s vote, it’s actually great news for both the trees and the property owners, said Supervisor Scott Wiener. By backing the Planning Department’s Urban Forest Master Plan, Wiener said, “it puts the supervisors on record for the first time as agreeing that the city should take over all tree maintenance costs …”

Olympia, Washington, Thurston Talk, February 10, 2015: Historic American chestnut trees acknowledged with special monument

A special monument will be unveiled at Mills & Mills Memorial Park in honor of two of the largest and oldest living American Chestnut trees in the Unites States. The public dedication ceremony will take place Friday, Feb. 20 at noon. Towering more than 80 feet tall, the two trees were planted by original settlers of Tumwater who brought chestnut seeds from the east coast. In 1846, Jesse Ferguson planted the two trees on 320 acres he claimed on the Bush Prairie. Today, the trees symbolize the legacy of early Tumwater, one of the first settlements in Washington …

tribetree150210Muskegon, Michigan, Chronicle, February 9, 2015: Early signs of beech bark disease found on tribal land trees in Allegan County

West Michigan foresters are investigating the discovery of an invasive insect that helps cause the death of hardwood American beech trees. The Gun Lake Tribe says that beech scale, an exotic pest that has helped kill millions of Michigan beech trees, was recently found on tribal land in Hopkins Township. The tribe issued a notice about the discovery on Monday, Feb. 9. Environmental staff “may have identified this problem early enough to prevent further infestation,” said D.K. Sprague, Gun Lake Tribe chairman. Together, beech scale and an exotic fungus called Neonectria faginata infest stands of beech trees, leading to the fatal Beech Bark Disease …

The Atlantic, February 9, 2015: The best technology for fighting climate change? Trees

When people talk about technologies that might offset climate change, they often evoke not-yet-invented marvels, like planes spraying chemicals into the atmosphere or enormous skyscrapers gulping carbon dioxide from the clouds. But in a new report, Oxford University researchers say that our best hopes might not be so complex. In fact, they are two things we already know how to do: plant trees and improve the soil. Both techniques, said the report, are “no regrets.” They’ll help the atmosphere no matter what, they’re comparatively low-cost, and they carry little additional risk. Specifically, the two techniques it recommends are afforestation—planting trees where there were none before—and biochar—improving the soil by burying a layer of dense charcoal …

Isle of Jersey, UK, Jersey Evening Post, February 9, 2015: Outrage over ‘dead rabbits’, ripped-up trees and shrubs at Esplanade

A local group say they are outraged by the ‘carnage’ carried out by workmen who have started to clear vegetation on the Esplanade car park. Workers with diggers and chainsaws moved in on Saturday morning and worked throughout the weekend to remove the trees and shrubs around the perimeter. The area is being cleared by the States-owned Jersey Development Company to make way for a new finance centre office block – one of six planned for the site …

Lakeland, Florida, Ledger, February 9, 2015: Winter Haven urges vigilance when planting trees

Watch where you plant big, beautiful trees. Winter Haven city commissioners heard the first reading of an ordinance that should help city beautification efforts at their meeting Monday night. While the city encourages home-owners to plant trees, officials want trees planted where they won’t interfere with utility lines. The ordinance would require all property owners to plant new overstory trees at least a dozen feet from any utility lines, including underground utility lines and overhead utility wires. An overstory tree is the tallest of trees and includes live oaks …

Wilmington, North Carolina, Star News, February 9, 2015: Wilmington to take down 50 troubled trees

When Bill Jayne heard the city wanted to cut down 50 trees, the Wilmington Tree Commission member went to see some of them. “They definitely look like they have big-time problems,” he said. He saw holes, old wounds and knots, plus black stains, signifying fungus. The city has identified more than 130 diseased or decaying trees officials say are a high-enough risk of falling they need to be cut down. Most of the trees are dying due to age or tough urban growing conditions, said Aaron Reese, the city arborist …

trim150209Denver, Colorado, Post, February 8, 2015: Boulder residents upset at Xcel tree destruction

A group of neighbors in unincorporated Boulder County allege that Xcel Energy has wrongfully — and rudely — chopped down their trees, but the company says it was all in the name of precaution. On Friday morning, Steve Iaconis, who lives on a hill that overlooks Boulder, returned from the grocery store to find an Xcel-contracted tree removal service hacking away at a branch of a tree that sits on the edge of his property, roughly 30 feet from a giant transmission line that runs through the neighborhood. Jon Hinebauch, who lives on the other side of the transmission line, was told Friday that a pine tree he and his wife planted 40 years ago, shortly after moving into the home, was chopped down entirely. “While we know that removal of trees and other vegetation is not always popular with our customers,” Xcel said in a statement, “the alternative is the possibility of serious damage to Xcel Energy equipment and of long-term outages over a very wide area, lasting days or weeks, with impacts to hundreds of thousands of consumers …”

Auckland, New Zealand, Auckland Now, February 9, 2015: Trees felled to curb Dutch elm disease

A new outbreak of Dutch elm disease has hit more than 20 trees on Auckland’s Ohinerau/Mt Hobson. The trees on the eastern slope will be felled with work starting today, Auckland Council said. Elm dease is a highly virulent fungal disease that reached New Zealand first in Napier in 1989 and then spread to Myers Park in Auckland. There are an estimated 20,000 elm trees in Auckland …

Evansville, Indiana, Courier-Press, February 9, 2015: Bloomington to survey 700 trees for signs of beetle

Bloomington officials are surveying the city’s ash trees to determine how many will need to be removed because of an infestation by the emerald ash borer. The city has already lost about 200 trees to the invasive Asian beetle, which burrows into ash trees and destroys their vascular systems, usually killing them within two years. Bloomington Parks and Recreation Department Director Mick Renneisen tells The Herald-Times the department is trying to determine how to proceed with the remaining 700 trees …

San Diego, California, Union-Tribune, February 6, 2015: Water-wise options for flowering trees

Most of our common flowering trees come from temperate Asia or from tropical and subtropical regions of the world. They are wonderful trees, but to thrive and bloom, they want more irrigation than we can afford to devote to landscape. There are equally beautiful flowering trees that need little if any irrigation once they are established. Here is a list of five easy-to-grow flowering trees, all of which want full sun and tolerate most kinds of soils. None have roots that lift sidewalks, invade foundations or cause other problems. All are low-maintenance, too. These beauties are perfect to plant in your garden …

Charlottesville, Virginia, WVIR-TV, February 9, 2015: Conservation program aims to protect trees in Charlottesville

Charlottesville is hoping to provide better protection for some of its monumental trees. A conservation program created by city council allows protection of trees which are important because of their historical value or physical size. The American Sycamore at Quarry Park is one of the first trees in Charlottesville granted this special status. The tree has the widest canopy in the state and the third largest trunk circumference …

Cleveland, Ohio, Plain Dealer, February 7, 2015: Letter to Editor – plant more trees

The single act of planting a tree is like buying a savings bond; as it matures, it grows in value. I believe trees should be considered just as important as other infrastructure like sewers and water lines — but, unlike sewers and water lines, trees are the only infrastructure that appreciates in value as it gets older. In an urban environment like Cleveland where impervious surfaces and the rough edge of architecture dominate, trees help to soften the landscape. Research has shown neighborhoods with abundant trees have fewer crimes, and researchers believe trees have a calming effect on people. Trees encourage people to spend more time outdoors where they get to know their neighbors, building community. Homes in a neighborhood where trees are present command a higher sale price and they typically sell faster …

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TNLBGray140407

Case of the Day – Friday, February 27, 2015

EVERYONE KNOWS IT’S WINDY

darknight150227Yesterday, we saw a tractor-trailer blown off the highway into a snow drift by a bitter north wind. And here we were under the impression that this Sunday is the first meteorological day of spring, too.   Br-r-r-r.

The wind reminded us of the case we’re writing about today. We’re not suggesting that the case has an Association to the 1960’s hit. But it was windy one night near the musical instrument capital of the world, and many trees in Elkhart County were blown over. The county crews worked diligently through the night cleaning up the mess, but Marvin Hochstetler rode his motorcycle down a dark county road in the predawn hours, he found a tree the county hadn’t gotten to — and he found it the hard way.

As he recuperated from his injuries, Mr. Hochstetler hired a canny personal injury attorney. The problem was that that the Indiana Tort Claims Act had an exemption carved out for conditions arising from inclement weather. Our intrepid cyclist’s response was two-fold: (1) this was so long after the storm (a whopping four hours) that it no longer qualified as storm damages; and (2) if the County hadn’t been negligent in maintain roads and trees prior to the storm, the limb he hit wouldn’t have been there. He lost in the trial court, but the Court of Appeals agreed with Hochstetler.

The Indiana Supreme Court wasn’t buying, however. It upheld the trial court, finding that the unrebutted evidence told of widespread damage and hard-working repair crews through the nighttime hours. To agree with Mr. Hochstetler that the limb with which he had become intimately familiar should have been removed prior to 5 a.m. was to hold the County to too high a standard.

mccrash150227Hochstetler v. Elkhart County Highway Dept., 868 N.E.2d 425 (Sup.Ct. Ind., June 20, 2007). At around 1 a.m. on June 12, 2001, Elkhart County was hit by a strong storm that produced many fallen trees and limb. The county started dispatching crews about 1:30 as calls began coming in to the highway garage. There were eventually 56 reports of fallen trees on county roads as a result of the storm.

Among these reports, received about 2 a.m., was a call about a tree down on County Road Four, north of State Road 120. It turns out that County Road Four is some seven miles long, and State Road 120 does not intersect with it. Riding his motorcycle sometime very early that morning, Marvin Hochstetler struck a tree that had fallen across County Road 4.

Hochstetler contended the erroneous report was about the tree he hit. Hochstetler sued the highway department, the county commissioners, and the county sheriff, alleging that they were negligent and careless in maintaining the county road. The county defendants moved for summary judgment on the basis of immunity under the Indiana Tort Claims Act. The trial court granted them judgment.

The Court of Appeals reversed.

The Indiana Supreme Court then heard the case.

association150227Held:  The county defendants prevailed. A provision of the Indiana Tort Claims Act provides immunity for losses resulting from temporary conditions of public thoroughfare that result from weather. The Supreme Court held that the provision applied to county highway, sheriff’s departments and county commissioners insofar as the personal injuries went that Mr. Hochstetler claimed to have sustained when he hit a tree that had fallen on a county road.

The unrebutted evidence showed that the storm produced scores of trees and limbs down on roads, county highway crews were on the job almost immediately, and highway crews were still at work hours after storm had passed in middle of the night. The Court agreed that state and local governments may have tort responsibility for damages flowing from negligence, but the Tort Claims Act grants immunity for that negligence under certain specified circumstances. This was one such circumstance, the majority held.

The plaintiff tried to get around the weather exception by arguing that the weather-related hazard went on too long after the storm, and that there was a fact whether poor design and maintenance — not the storm — was responsible. One judge thought the plaintiff had enough of a point so as to survive summary judgment, but the majority of five judges prevailed.

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Case of the Day – Thursday, February 26, 2015

WHATCHA GONNA DO WHEN THEY COME FOR YOU?

cops150225Many people find it hard to believe that until 30 years ago or so, a citizen was largely without remedy when federal employees violated his or her Constitutional rights. Oh, sure, if the feds beat a confession out of you or took your stash of B.C. Bud without a warrant, you might get the confession suppressed or the fruits of the illegal search excluded from your trial. But this pretty much meant that only the guilty could get their Constitutional rights vindicated. What if you were like Mr. Bivens, whose door was kicked in by drug agents who had the wrong house? In 1971, the Supreme Court said that for violation as important as the breach of one’s Constitutional rights, a remedy must be found.

Badboys150226Since that time, Bivens actions have been employed, mostly without success, by citizens whose rights have been allegedly trampled by federal agents and employees. Which brings us to rancher Robbins. He bought a ranch whose predecessor had given the federal Bureau of Land Management an easement. But the BLM knuckleheads never recorded it, so when Robbins bought the place, he took the ranch free of the easement. BLM demanded he sign another one. He refused.

What followed was a disgraceful reign of harassment which caused one BLM official to resign, saying “[i]t has been my experience that people given authority and not being held in check and not having solid convictions will run amuck [sic] and that [is] what I saw happening.” But the BLM’s war of attrition was one of a thousand petty slights — trespasses, spurious administrative sanctions, even videotaping of his guests — and Mr. Robbins didn’t have the money or energy to litigate every one of them.

Too bad for him. The Supreme Court held that there was no Constitutional remedy for the non-stop harassment by government employees. Instead, the victim must bankrupt himself or herself by litigating the slights as they occur. It’s like suggesting that the best remedy for a death by a thousand cuts is a thousand Band-aids. And to add insult to injury, the Court held that what would be extortion if inflicted on an East Side shopkeeper by the Mob is perfectly lawful is practiced by a government employee to gain an advantage for the government.

"Nice place," BLM told Rancher Wilkie.  "Can we harass you out of it, maybe?"

“Nice place,” BLM told Rancher Wilkie. “Can we harass you out of it, maybe?”

Wilkie v. Robbins, 551 U.S. 537 (2007). Robbins’s Wyoming guest ranch was a patchwork of land parcels intermingled with tracts belonging to other private owners, the State of Wyoming, and the federal government. The previous owner granted the United States an easement to use and maintain a road running through the ranch to federal land in return for a right-of-way to maintain a section of road running across federal land to otherwise isolated parts of the ranch. When Robbins bought the ranch, he took title free of the easement, which the Bureau had not recorded.

Robbins continued to graze cattle and run guest cattle drives under grazing permits and a Special Recreation Use Permit (SRUP) issued by the Bureau of Land Management. Upon learning that the easement was never recorded, a BLM official demanded that Robbins re-grant it, but Robbins declined. Robbins claims that after negotiations broke down, BLM employees began years of low-level harassment of him in order to force him to re-grant the BLM easement. This harassment included an unauthorized survey of the desired easement’s terrain and an illegal entry into Robbins’s lodge. In each instance, Robbins had a civil damages remedy for trespass, but he did not pursue it because the isolated trespass had caused inconsequential damages. BLM at the same time began vigorous — perhaps unduly vigorous — enforcement actions against Robbins, including administrative claims for trespass and other land-use violations, a fine for an unauthorized road repair, and two criminal charges.

Robbins had the opportunity to contest all of the administrative charges. He fought some of the land-use and trespass citations, and challenged the road repair fine as far as the Interior Board of Land Appeals, but did not seek judicial review after losing there. He exercised his right to jury trial on the criminal complaints, and the jury acquitted him after only 30 minutes deliberation. Although the quick verdict tended to support Robbins’ baseless-prosecution charge, the federal trial judge did not find the Government’s case thin enough to justify attorney’s fees, and Robbins appealed that ruling too late.

Extortion is ugly, no matter whether the Mob or Uncle Sam is behind it.

Extortion is ugly, no matter whether the Mob or Uncle Sam is behind it.

BLM also cancelled a right-of-way given to Robbins’s predecessor in return for the Government’s unrecorded easement, a 1995 decision to reduce the Robbins’ special recreational use permit duration from five years to one, and termination of the SRUP and a grazing permit in 1999. Robbins also alleged BLM employees videotaped his ranch guests during a cattle drive, and they attempted unsuccessfully to pressure a Bureau of Indian Affairs employee to impound Robbins’s cattle. Robbins has an administrative, and ultimately a judicial, process for vindicating virtually all of these complaints. Instead, he filed a claim against the BLM employees he alleged had orchestrated and carried out the low-intensity warfare against him to pressure him into granting BLM an easement, claiming that they had violated his due process rights under color of their office, relying on Bivens v Six Unnamed Agents of the BNDD, a Supreme Court case from the 1970s that permitted citizens to sue federal employees who had violated their constitutional rights. Robbins also claimed the employees had engaged in RICO (Racketeer-Influenced and Corrupt Organizations Act) conduct by blackmail and extortion (a so-called Hobbs Act violation) in order to obtain a new easement. The trial court threw out the suit, but the 9th Circuit Court of Appeals reinstated it. The BLM sought review from the U.S. Supreme Court.

Held: The Supreme Court dismissed the case against the BLM employees. The Court held that a landowner did not have a private action against BLM’s employees for damages of the sort recognized under Bivens, and the alleged violations of the Hobbs Act and state blackmail statutes by BLM employees in their efforts to obtain an easement over landowner’s property for the exclusive benefit of the Government did not qualify as a predicate RICO offense.

The Court said that trying to induce someone to grant an easement for public use was a perfectly legitimate purpose, and, as a landowner, the Government had a valid interest in getting access to neighboring lands. To permit a lawsuit to redress retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing OSHA regulations. The Court observed that Congress is in a far better position than a court to evaluate the impact of a new species of litigation against those who act on the public’s behalf. At any rate, the Court said, the Hobbs Act does not apply when the federal government is the intended beneficiary of extortionate acts by government employees. given that the alleged conduct did not fit the traditional definition of extortion

The Court found it noteworthy that Robbins had had judicial and administrative remedies for all of the minor annoyances, harassments and inconveniences which he, in the aggregate, claimed merited a Constitutional rights lawsuit. He did not pursue many of these remedies, and those he did pursue he often did not pursue to the end. Given that the wrongs he complained of were not without remedy, the Court was uncomfortable with trying to create a new one, especially one which it feared would spawn so much litigation.

Two justices dissented in part to the decision.

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Case of the Day – Wednesday, February 25, 2015

AT THE ZOO

Dick, Jane and Mom have fun at the Zoo ... as long as they can dodge the falling trees.

Dick, Jane and Mom have fun at the Zoo … as long as they can dodge the falling trees.

Simon and Garfunkel told us that the monkeys stood for honesty, the giraffes were insincere, and the elephants were kindly but dumb. We don’t know about that, but they were right when they sang that “it’s all happening at the zoo.”

Just ask Ms. Cherney. She’d tell you that one thing Simon and Garfunkel didn’t mention were the ficus trees. One ficus at the Zoo — the North Carolina Zoological Park — fell on poor Ms. Cherney, injuring her. That began an eight-year legal odyssey through the North Carolina legal system, through the Industrial Commission (which hears tort claims made against the state), the Court of Appeal, the Supreme Court, back to the Commission, and again to the courts.

In the penultimate chapter, the North Carolina Court of Appeals ruled that Cherney had no evidence that the Zoo personnel had any basis to believe the ficus was about to fall. Of course, the evidence also suggested that the whole idea of having a ficus growing too large in an indoor setting and not being properly maintained was rather daft. And whose fault was that? The beavers, perhaps?

A dissenting judge vigorously disputed this, pointing out that the tree had been cabled to a wall to help support it. The very fact that the Zoo believed that cables were needed was evidence that they knew the tree was a hazard, the dissenter argued.

Usually, dissenting opinions are curiosities, but little more. On three-judge appellate panels, 2-1 majorities carry the day. Despite the fact the dissenter probably thought he was talking to himself, he nonetheless explained in detail how the record supported finding the Zoo liable. This time, however, the dissenting judge found that he had some fans – the justices on the North Carolina Supreme Court.

The Supremes reversed the Court of Appeals in a terse per curiam opinion (that means “by the court,” agreeing with Judge Wynn’s analysis.

bracing150225This kind of thinking does raise a conundrum. Bracing or cabling a tree is a well-established practice in arboriculture. There’s even an ANSI standard for it. Could it be that cabling a tree may be prudent from an arboriculture standpoint but legally dangerous? A careful tree professional would probably take from this decision the notion that he or she would be well advised to tell any client for whom a tree is cabled or braced that the very fact the tree was braced means it should be considered to be a hazard tree. That of course would bring with it responsibilities for regular inspection and – just ask Ms. Cherney – notice to people who could be affected if the tree falls.

Cherney v. North Carolina Zoological Park, 648 S.E.2d 242 (N.C.App., Aug. 7, 2007), reversed, 362 N.C. 223, 657 S.E.2d 352 (N.C. Supreme Court, 2008). Tinya Cherney was in the enclosed African Pavilion at the North Carolina Zoological Park near the center when a large ficus tree fell hitting a palm tree. Both trees then fell on her, pinning her to the floor of the walkway in the African Pavilion. The impact caused vertigo, broke her right femur, cracked three ribs, broke her back and wrenched her knee.

The injury occurred because the ficus tree — which was indoors – had been permitted to grow too large for its roots, or alternatively, had not been properly maintained to prevent it from becoming unsafe. The ficus tree was under the exclusive control of the Zoo’s personnel and not subject to wind or any other natural force. A hearing examiner at the North Carolina Industrial Commission awarded Cherney $500,000 in damages. Unhappy at the result, the Zoo appealed.

ficus150225The full Commission reversed the award and found for the Zoo. Cherney appealed to the North Carolina Court of Appeals, which affirmed the Commission’s claim. She took it the North Carolina Supreme Court, which reversed and remanded. The Commission then entered a second decision denying Cherney’s claim. She again appealed.

The Court of Appeals held that the Commission’s second decision denying Cherney’s claim was proper, even though the Supreme Court had ruled in her favor on her appeal from first decision of the Commission denying her claim. The Court of Appeals agreed with the Commission’s finding that the evidence showed that neither the zoo’s curator of horticulture nor her staff knew or should have known that the ficus tree that fell in the zoo exhibit was likely to fall, and that there was no showing that any member of the curator’s staff violated any applicable standard of care.

In a carefully-crafted dissent, Judge Wynn observed that the evidence showed that when the ficus tree was replanted, “six, seven-strand 3/8 ” cables going in four directions were looped around the tree and attached to the planter walls” in order “to aid the tree in keeping it upright and to assist in monitoring the tree.” The cables were inspected monthly by the Zoo staff. Two of the four cables had snapped when the tree fell on Ms. Cherney. The judge argued that the “very fact that the tree was cabled to the planter walls illustrates that the Zoo and its employees had “express or implied knowledge” that the tree might fall; if there had been no danger, then the tree would not have needed to be cabled in such a fashion, nor would the Zoo employees have needed to monitor it so closely.”

bracingb150225The dissent argued that the question was not whether the tree was likely to fall, as the Commission thought it was. Rather, the issue was whether a Zoo visitor such as Ms. Cherney or one of the tens of thousands of kids who passed through each year – was unnecessarily exposed to danger and was not warned of a hidden hazard. The dissent believed that they were, and the Zoo had a duty to warn visitors of the possibility that the tree might fall.

The North Carolina Supreme Court reversed the appellate panel, and specifically adopted Judge Wynn’s reasoning as its basis for doing so.

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Case of the Day – Tuesday, February 24, 2015

ZOOM, ZOOM, DING

An alert reader sent us a link to a sports car forum, in which the proud owner of a Mazda RX-8 bemoaned the fact that his car had been hit by a limb that fell from his landlord’s tree. The owner wondered whether his landlord was liable for the deductable on his insurance.

Collisions with trees can be harrowing, whether in a care or on a bicycle.

Collisions with trees can be harrowing, whether in a car or on  even just riding a bicycle.  

Good question!  Because the RX-8 and the tree both are South Carolina, we looked first at Staples v. Duell. In that case, Ms. Staples was driving down a rural road when she came upon one of Mr. Duell’s trees, which had fallen across the road. She came upon it rather suddenly, because she collided with it. She sued Mr. Duell, who was a landowner of some magnitude (about two miles worth of real estate along each side of the road).

Mr. Duell had an employee who was assigned the task of checking the security of the estate, including looking for dead trees, on a daily basis. Somehow, he must have missed this 100-foot pine’s condition. Ms. Staples sued Mr. Duell for negligence.

The Court found for Mr. Duell. It held that in South Carolina, rural landowners have no duty to others to inspect and improve their land. The fact that Mr. Duell voluntarily did so by sending an employee around didn’t create a duty where none existed. And that makes sense: if voluntarily performing a good deed created a legal duty to perform such deeds, no one would ever perform a good deed, that is, to go beyond the minimum the law requires for fear they would become liable for a good deed.

This doesn’t exactly answer our driver’s lament. After all, the landlord may be an urban landowner, and the Court suggests that an urban owner’s duty is different. Also, as a landlord, the tree owner’s duty may be greater. We’ll consider that tomorrow.

Meanwhile, good news from the Mazda front … our hapless sports car owner reported that his landlord’s insurance will cover his deductable.

Mr. Duell owned a lot of trees ...

Mr. Duell owned a lot of trees …

Staples v. Duell, 329 S.C. 503, 494 S.E.2d 639 (S.Ct. S.C. 1997). Ms. Staples was driving from Charleston toward Summerville on Highway 61 when she encountered a dead pine tree in the road. She swerved but collided with the tree, a 100-foot long dead pine.

The tree fell about sixty feet from the roadway and was located on Mr. Duell’s land, a plantation that stretched for about two mile along both sides of the road. In this area, only one residence – a cabin – stood. About 13,500 vehicles a day passed by Duell’s two-mile stretch of land on Highway 61. Duell owned Middleton Place National Historic Landmark, a tourist attraction which received about 100,000 admission-paying visitors a year. The only public entrance or exit to Middleton Place is on Highway 61. Duell maintained a 250-foot buffer zone of trees on both sides of the highway to protect the scenic beauty of the road. Duell’s employee, James Woddle, took care of the woodlands at Middleton Place. Woddle’s job duties included twice a day driving around the perimeter of Middleton Place to inspect the premises. During his inspections, he looked for trespassers, abandoned vehicles, and dead trees.

Staples sued Duell for negligence in permitting the tree to become a hazard. The trial court directed a verdict for Duell, holding that because the land from which the tree fell was rural, he had no common-law duty to discover and prevent the dangerous condition caused by the dead pine tree. Even if Duell had a policy of searching for dead trees along the roadway, his voluntary practice did not create a duty. Duell could have abandoned it at any time and it did not increase the risk.
Staples appealed.

gooddeed140925Held:  The Court found for Mr. Duell. To prevail on her theory of negligence, Ms. Staples had to establish that (1) Duell owed her a duty of care, (2) that by some act or omission, he had breached that duty, and (3) that as proximate result of his breach, she had been injured. The Court ruled that as an owner of rural property adjacent to a highway, Duell did not owe duty of care to motorists on highway to inspect and improve his land. Rural landowners have different duties and responsibilities from city dwellers, the Court said, based on the different level of risk posed by defects on rural land and the burden of maintaining larger tracts of real estate. Thus, unlike urban landowners, rural landowners do not have a duty to inspect and improve land.

Mr. Duell’s policy of searching for dead trees on his property was good stewardship, but it did not result in his assuming a duty to motorists for injuries resulting from trees falling onto the road. His policy of examining his trees didn’t increase risk of harm to motorists. The people driving by had no prior knowledge of the policy and thus did not detrimentally rely on it. This of course makes one wonder – if people did rely on Mr. Duell’s perspicacity and gumption, would the Court have turned his voluntary good deed into a duty? A scary thought …
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Case of the Day – Monday, February 23, 2015

DON’T SIT ON YOUR RIGHTS

burgerk150223Today’s case appears at first blush to be nothing more than a titanic conflict between a fast food purveyor and a strip mall, hardly the material that will get a tree or neighbor law fan’s blood pumping. But it illustrates a few worthwhile points.

A Burger King and a Long John Silver’s sat next to each other in Bay City, Michigan. The owners of the lots agreed to mutual easements so that patrons of each could use a common driveway while their arteries clanged shut from the cholesterol and trans fat.  The easements were written without benefit of a legal description of the land subject to the easement (perhaps to save the $300 or so a surveyor would have cost). Sometime after that, the Burger King was dethroned, and the restaurant was torn down. The buyer of the land, the strip mall next door, tore down the BK and expanded the mall. In so doing, the developer built over where one of the access drive easements lay (although the actual common driveway had never been constructed).

The Long John Silver’s crew observed the construction, but the company didn’t complain until the construction was completed. Then, the fish folks sought an injunction in federal court to get the offending building torn down. The Court agreed that the mall developer had violated the easement, but the facts that the remedy was so drastic (tearing down the building) and the fact that Long John Silver’s sat on its complaint during the construction, and said nothing when the mall developer could have remedied the problem easily. That is called “laches,” and the law doesn’t think much of people who engage in it.

The case wasn’t resolved at that point, but Long John Silver’s was more likely to just win the difference in value of the real estate (about $35,000, or 1,591 8-piece family meals). But the lesson is that if you sit on your rights and permit the other party to really damage you, you may be severely limited in your remedies.

The lesson of laches - don't sit on your rights.

The lesson of laches – don’t sit on your rights.

BR Associates, Inc. v. LaFramboise, Slip Copy, 2007 WL 1840031 (E.D.Mich., June 26, 2007). BR operated a Long John Silver’s restaurant just west of a busy intersection in Bay City, Michigan. LR owned a commercial plaza east of the Long John Silver’s at the intersection itself. In 2004, a Burger King operated on the LR site, but it closed and the site was sold to LR. LR demolished the Burger King and added on to its existing plaza, making space for five new tenants. BR’s fish fryers were aware of the construction, and they informed BR’s corporate offices of the activity.

BR never complained during the construction. But after LR was done, BR claimed that the plaza blocked an easement arising out of a written agreement entered into by BR and the old Burger King owner, in which BR and the prior owner gave a mutual “perpetual, non-exclusive easement” for the customers of each other to use two driveways (the “North Access Drive” and the “South Access Drive”) on the easement areas, which were the boundaries of the two properties. Under the easement, the parties had the right “to relocate from time to time and in each party’s own discretion, those driving aisles and ingress and egress points located on their own Parcels … provided that such relocation does not adversely effect the other party’s right to use the Easement Area … [and] upon the mutual written agreement of the parties hereto.” Apparently, the contemplated South Access Drive was never constructed when the Burger King still operated. The easement agreement did not specify the width or the length of the access drives nor did it have a legal description of the areas. LR did not get BR’s permission to move the North Access Drive, nor did it have permission to completely block the South Access Drive, which it did as a result of the construction.

BR sued LR for trespass during the construction, but mostly for breach of the easement agreement, seeking an injunction to compel LR to honor the easement. BR contended that LR’s conduct violated the easement agreement and placed an increased burden on the easement. LR’s actions constituted a trespass, in BR’s view, and created additional wear and tear on BR’s parking lots. Finally, LR’s activities interfered with BR’s business. BR claimed that the easement agreement simply did not contemplate loading and unloading of vendor vehicles as well as parking or that LR would use BR’s property for uses beyond simple customer ingress and egress contemplated by the easement agreement.

LR argued that any recovery for breach of the easement agreement should be limited to $35,000, because BR’s appraiser valued its property with the easement at $650,000 and without the easement at $615,000. BR and LR both moved for summary judgment on all issues.

Imagine 1,591 of these monster meals - that's probably what the damages will buy.

Imagine 1,591 of these monster meals – that’s probably what the damages will buy.

Held: BR was entitled to summary judgment on some claims, and others would go to trial. The District Court noted that Michigan law defined an easement as the right to use the land of another for a specific purpose. In order to create an express easement, there must be language in the writing manifesting a clear intent to create a servitude. Any ambiguities are resolved in favor of use of the land free of easements. The plain unambiguous language of an agreement controls the determination of whether breach has occurred.

Here, the Court said, there could be no dispute the LR breached the express terms of the easement when it constructed the addition to the plaza. The easement agreement provided that an “access drive” could only be relocated upon the mutual written agreement of the parties. LR didn’t contend that it got BR’s consent. Instead, it claimed that the South Access Drive never came into existence at all. No curb cut was made, and the electrical installations otherwise blocking the south access drive preventing its use were never removed. The parties’ course of performance, LR argued, demonstrated that there never an intent to open the south access drive.

But the Court found that the parties’ mutual intent was clearly expressed in the plain language of the easement agreement, which granted BR a “perpetual, non-exclusive easement.” The fact that one of the access drives hadn’t been built, the Court said, provided no basis for the Court to depart from the language of the agreement. However, the Court said, requiring LR to remove the building blocking the south access drive was unjustified, because BR waited until construction was complete to seek any type of relief and it couldn’t identify the specific dimensions of the South Access Drive, because neither party required that level of precision in the easement agreement. It would be difficult if not impossible, the Court said, to fashion such injunctive relief to the extent of the breach. Finally, destroying the structure would necessarily be economic waste.

The Court refused summary judgment on BR’s remaining issues, denied summary judgment on all of LR’s issues, and set trial dates.

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