Case of the Day – Friday, May 22, 2015

YOU’RE ON YOUR OWN, PAL

From the hatcheck to the parking lot to the dry cleaner to the amusement park, we grant pre-injury waivers of liability all the time. And we’re helpless to stop it. Don’t believe us? Try negotiating that fine print on the back of your parking lot ticket next time you leave the Mercedes in the hands of some teenager named “Kent Steerwell.” You’ll be handed your keys, probably with a suggestion of where to put them (and it won’t involve inserting them in the ignition, either).

When expert Alpine skiing enthusiast Bill Rothstein parted with his hard-earned cash for a couple of souped-up passes to the Snowbird resort (your basic pass and a special one that let him skip lines and not have to mingle with the great unwashed), he signed the waivers without a second thought. You know, the ones that said the resort wasn’t liable for a ding-dong thing in case he got hurt.

031-downhill-skiingWhile skiing the “Fluffy Bunny” run (hardly sounds like a double-diamond course, does it?) Bill ran into a poorly-marked retaining wall and messed himself up but good. Fortunately, his favored hand wasn’t injured, so he quickly signed off on a lawsuit against the ski operator. But the trial court was impressed by the breadth of the release Rothstein had signed — as tall as the Wasatch and as wide as the Bonneville Salt Flats — and it threw the case out.

The Utah Supreme Court saved Rothstein’s bacon. It held that, no matter what the pre-injury waivers said, Utah public policy required that ski resorts take responsibility for the results of their negligence. A state statute, the Inherent Risks of Skiing Act, exempted ski resorts from certain risks that are inherent in skiing — such as broken legs, frostbite, fashion faux pas — so that the operators could buy insurance against actual negligence. The Court held that inasmuch as the legislature exempted ski resorts from certain types of risks so that they could afford insurance to cover the remaining ones, it was contrary to public policy for a ski resort to try to exempt itself from liability for any negligence whatsoever. The Romans had a word for it: expressio unius est exclusio alterius, which means “the expression of one excludes all others.” This means that because the law expressly carved out certain acts from liability – such as the effects of the relentless pull of gravity – it specifically intended not to carve out other unlisted acts. Acts like failing to adequately mark a retaining wall.

Now available - expressio unius coffee mugs!

Now available – expressio unius coffee mugs!

The waiver was void, and Rothstein was free to sue … if not to ski the “Fluffy Bunny.”

Rothstein v. Snowbird Corp., 175 P.3d 560 (S.Ct. Utah, 2007). “Fast Billy” Rothstein, an expert skier collided with a retaining wall while skiing at Snowbird Ski Resort. The retaining wall was unmarked and no measures had been taken to alert skiers to its presence. Although Snowbird had placed a rope line with orange flagging near the wall, there was a large gap between the end of the rope and a tree, which Mr. Rothstein incorrectly understood indicated an entrance to the Fluffy Bunny run.

No - not this kind of

No – not this kind of “law suit”

Rothstein sued Snowbird for negligence. Snowbird defended itself by asserting that Mr. Rothstein had waived his ability to sue Snowbird for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence.

Rothstein’s super passes — which let him have faster access to the slopes than mere mortal pass-holders — required him to sign an agreement that said

“I hereby waive all of my claims, including claims for personal injury, death and property damage, against Alta and Snowbird, their agents and employees. I agree to assume all risks of personal injury, death or property damage associated with skiing … or resulting from the fault of Alta or Snowbird, their agents or employees. I agree to hold harmless and indemnify Alta and Snowbird … from all of my claims, including those caused by the negligence or other fault of Alta or Snowbird, their agents and employees …”

If that wasn’t enough, a second agreement he signed said,

“In consideration of my use of the Snowbird Corporation (Snowbird) ski area and facilities, I agree to assume and accept all risks of injury to myself and my guests, including the inherent risk of skiing, the risks associated with the operation of the ski area and risks caused by the negligence of Snowbird, its employees, or agents. I release and agree to indemnify Snowbird, all landowners of the ski area, and their employees and agents from all claims for injury or damage arising out of the operation of the ski area or my activities at Snowbird, whether such injury or damage arises from the risks of skiing or from any other cause including the negligence of Snowbird, its employees and agents.”

Read the fine print

Read the fine print – if your eyes are up to the challenge

The trial court thought these agreements were pretty comprehensive, not to mention dispositive. It granted summary judgment in favor of Snowbird. Quicker than you could say, “Fluffy Bunny,” Rothstein appealed.

Held: The trial court was reversed, and Rothstein was allowed to sue the ski resort. The Court held that releases that offend public policy are unenforceable. Under Utah’s Inherent Risks of Skiing Act, certain hazards inherent in skiing are defined. Resorts aren’t liable for those risks — like breaking a leg on a downhill run — thus clarifying the hazards sufficiently to enable the ski operators to by insurance against those risks that aren’t excluded.

The Court said that by expressly designating a ski area operator’s ability to acquire insurance at reasonable rates as the sole reason for bringing the Inherent Risks of Skiing Act into being, the Utah legislature “authoritatively put to rest the question of whether ski area operators are at liberty to use pre-injury releases to significantly pare back or even eliminate their need to purchase the very liability insurance the Act was designed to make affordable. They are not.” The premise underlying the passage of a law to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The Court said “the bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.”

Inasmuch as the legislature had determined that resorts should insure themselves against risks not inherent in the sport of skiing, the Court held that it was contrary to public policy to permit an operator to duck liability for negligence that could have been avoided by requiring its patrons to waive claims for negligence as a condition of use.

TNLBGray140407

And Now The News …

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umbrella150521Los Angeles, California, LAist, May 21, 2015: What’s up with mysterious Brentwood umbrella tree?

Mysterious, colorful umbrella ornaments were spotted this morning hanging from the trees along the median strip of San Vicente Blvd. near the Brentwood Country Club earlier today. Photos of the trees have appeared on social media, yet no one seems to know who is responsible for hanging the umbrellas or why they’re there. Is it an art project? Commentary on the drought? Guerrilla marketing for a company convinced they can sell lots of umbrellas in sunny L.A.? An homage to Christo? The umbrellas were strung up with zip ties to the extremely fragile branches of coral trees, which were planted along the median after the Red Line tracks were removed in the 1940s. Strong breezes have been enough to knock down the branches, let alone colorful umbrellas. And if a breeze caught the umbrellas or rain were to fall, neighbors were concerned that the art could damage the trees or harm people jogging or walking beneath them. Also, there was no permit for the installation, so the umbrellas had to come down…

Annapolis, Maryland, Capital Gazette, May 21, 2015: Plan mandates replacing cut trees

If developers cut trees in Annapolis, they’ll have to replace them — but finding someplace in the city to plant them could prove challenging. The requirement to replace any existing forest and significant trees cut under the proposed forest conservation plan cut would be new for Annapolis. And it could mean planting trees outside city limits because of open space limitations. Alderman Jared Littmann, D-award 5, pushed for the “no net loss” provision during discussions with the city’s planning commission. The commission produced a competing bill to Littmann’s original legislation, which was the subject of a special meeting Thursday of the City Council. The alderman now supports the commission’s version. He said the no net loss clause would help the city achieve its goal of having half the city covered by trees. Current law allows developers to clear half of existing forest without having to plant replacement trees …

copter150521Fairmont, West Virginia, Times, May 21, 2015: Helicopters equipped with saws slice through problematic trees

Todd Gillespie is no lumberjack. He doesn’t wield an axe, or ride in a bucket truck. Gillespie, a helicopter pilot for Rotor Blade, spends his days flying around with a massive aerial saw suspended from the helicopter on a 90-foot pipe, trimming trees that might interfere with power lines or other structures. As one might imagine, flying with a gigantic saw is not easy. “It’s like learning to fly again. It’s totally different than normal flying. It kind of drags you around because it weighs so much. As you’re dragging it through the trees, it kind of jerks you around a little bit,” Gillespie said. “It was kind of scary at first, to be honest.” The helicopter raises a 900 pound, 27 foot long saw that includes 10 spinning blades. According to Gillespie, the aerial saw can trim anywhere from a mile and a half to three miles of vegetation, depending on how thick the tree limbs are, in one day. The flying saw can also trim in areas that might be harder for utility workers to reach …

Austin, Texas, KXAN-TV, Arborist: Heavy rains causing trees to decay faster than normal

All the rain Austin has seen in the last few weeks is causing trees to decay faster than normal, which can lead to branches or even whole trees toppling over. “We’re having a lot of people calling who are having unpleasant surprises,” said arborist Scott George with Austin Beautiful Trees. “People finding broken branches on cars, on their houses and in the yard.” On Thursday morning, a large tree fell across Enfield Road. No one was hurt, but the situation could have been much worse. “Large branches have the potential for failure in storm situations,” said George. But there are signs you can look for and fix before the next storm hits. “When we assess trees we look for obvious defects. We look for decay pockets, old wounds that may have occurred in old trees …”

Ft. Lauderdale, Florida, Sun-Sentinel, May 20, 2015: Close shave for woman after tree impales car during I-75 crash

A Weston woman whose car crashed along Interstate 75 Thursday escaped death when a tree penetrated the windows of her Honda Civic. “She was literally about two inches away from having that tree go through the back of her head,” said Davie Fire Rescue Battalion Chief Robert DiFerdinando. The crash happened at 9:21 a.m. to advertising executive Francis Clemenza, 29. She was traveling south to her job in Miami when her car left the interstate and ended up on a shoulder, her father and the Florida Highway Patrol said. The Honda struck some wood debris, spun around and slid backward into a tree. A tree limb penetrated the left rear window alongside the driver’s headrest and went through the front windshield, leaving her with serious injuries, the patrol said. Clemenza’s hair had to be cut so that she could be freed from the wreck. Clemenza at first resisted the roadside styling session because she told her rescuers she is planning a wedding …

strip150521Ashland, Kentucky, Independent, May 20, 2015: Elm trees target of Knott County strippers

State highway workers driving KY 550 East in Knott County earlier this week discovered 18 elm trees on state right of way stripped of their bark. Elm tree bark can be sold for its value in pharmaceutical manufacturing, said Knott County Maintenance Superintendent Bobby Smith. “Like hunting ginseng and other plants and berries, stripping elm bark can be quite profitable if you get enough and know who to sell it to.” Whoever took the bark “is going for the easy stuff,” Smith said. “The trees are plainly visible, right on the side of the road, almost in a straight line.” Smith said not only did the stripper – or strippers – trespass on state property, they de-barked the trees using a method that most likely will kill the healthy elms. “This time next year,” Smith said, “these trees are going to be dead. They will fall over onto the shoulder and road and we’ll have to spend four or five thousand dollars of taxpayers’ money to cut them up and haul them off. And that’s just the trees on this stretch of 550. We don’t know how many other places have been hit …”

Melbourne, Australia, Australian Broadcasting Company, May 20, 2015: Do trees communicate with each other?

They might seem like the strong, tall and silent type, but trees actually communicate with each other. Forest ecologist Dr Suzanne Simard, from the University of British Colombia, studies a type of fungi that forms underground communication networks between trees in North American forests. Big old trees — dubbed ‘mother trees’ — are hubs in this mycorrhizal fungal network, playing a key role in supporting other trees in the forest, especially their offspring. “If you’re a mother and you have children, you recognise your children and you treat them in certain ways. We’re finding that trees will do the same thing. They’ll adjust their competitive behaviour to make room for their own kin and they send those signals through mycorrhizal networks …”

sting150521The Blaze, May 20, 2015: Forget about poisonous spiders and snakes, Australia has deadly, stinging trees!

The heart-shaped leaves of Australia’s Gympie-Gympie tree seem innocent enough. However, the leaves, stems and even the fruit of the green plant from the nettle family are covered in tiny needles capable of delivering a powerful neurotoxin capable of killing horses and dogs, and driving humans crazy with pain. According to ecologist Dr. Marina Hurley, the Gympie-Gympie tree is “world’s most painful tree to touch.” It also happens to be native to the Australian rainforest in Queensland, in areas regularly visited by tourists. Casual contact with the vegetation of the stinging tree is all you need to have the stickers, described as “miniature hypodermic needles,” pierce your skin and begin releasing the nasty compound known as moroidin into your system. Avoiding making contact with the Gympie-Gympie tree in the rainforest requires wearing protective gear like heavy-duty gloves and facemasks. Breathing in the tiny needles can cause some serious sneezing fits and severe nosebleeds …

Muskogee, Oklahoma, Phoenix, May 20, 2015: When planting under trees, take care not to cause harm

One of the most commonly asked questions about gardening is what to do about the areas under trees. It seems like those shady, dry places around trees bother gardeners who would like to have their gardens pretty to look at from every angle. Not only is the soil dry under trees since trees quickly drink surface water, the roots are dense and do not allow room for digging. On top of all that, digging around tree roots can damage the health of the tree in the long term. Sometimes we see flower beds planted around trees, and that solution can work quite well as long as it is a bed full of perennials and the plants are in the ground rather than in a raised bed. Raised beds planted on top of tree roots can smother the tree’s roots, stunting the growth and shortening the life of the tree …

Albany, New York, WTEN-TV, May 20, 2015: A+ Trees ‘R Us fixes disgruntled clients’ yards

A local tree company accused of damaging customers yards kept its word and returned to clients’ homes to right the wrongs. Customers said they paid A+ Trees ‘R Us to help with tree removal and then left them paying out of pocket for the damage the company caused on their property. But on Wednesday, the company kept its word, and crew members were up early to start fixing the damage they caused. “We never want any unhappy customers, so we’re here today trying to fix it and make everything right for everyone else,” Matthew Belmore with A+ Trees ‘R Us said. “It’s a bit of a relief, but it was a pretty unfortunate process,” Delmar resident Alex Poole said …

St. Louis, Missouri, KSDK-TV, May 20, 2015: Senior prank destroys decades old trees

A group of high school seniors could be facing burglary charges when they should be celebrating graduation. Police say they broke in to Holt High School in Wentzville, Mo. and destroyed decades-old trees in the cafeteria. Students, including seniors, say they are upset that this is the way they are going to be remembered. “Little stupid, little kind of naive of us, ignorant,” says senior Blake Graves …

beetle150520Orange County, California, Register, May 19, 2015: Invasive beetle takes root at UC Irvine, about 1,000 trees being removed

UC Irvine is removing 1,000 trees on its campus because of an invasive beetle that kills them by introducing a deadly fungus to feed its larvae. Of the 25,000 trees on UCI’s campus, about 1,000 in the campus’s academic core are infected, most of which will need to be removed. Beetles also have attacked trees near UCI, in areas such as University Hills. Other clusters have been detected in Lake Forest, Laguna Niguel and Mile Square Park in Fountain Valley. The beetle, called the polyphagous shot hole borer, was discovered in Los Angeles County in 2003, and is suspected of killing a large number of box elder trees in Long Beach in 2011. Native to Southeast Asia, the beetle is now established in Los Angeles, Orange and Riverside counties, with a second population in San Diego County. Female beetles less than 0.1 inches long drill into the trees to lay their eggs, introducing a pathogenic fungus that grows and provides food for both the adult beetle and newly hatched larvae. The fungus infects the tree. While the fungus kills some trees, other trees only lose some branches …

Daytona Beach, Florida, WESH-TV, May 19, 2015: Mount Dora leaders to ‘rethink’ plan to replace oak trees with palm trees

A community effort seems to have succeeded Tuesday in uprooting an unpopular plan to trade out trees in Mount Dora. After hearing some strong opposition, city leaders said they’re rethinking the move to take down the well-known oaks and replace them with palm trees. Some residents said the palm tree-lined streets in downtown Mount Dora look more like South Florida than Central Florida. At least one City Council member told WESH 2 that they may have made a mistake and that it’s time to revisit different tree options down the road. “It was probably my decision to vote for it. I’m not too proud to say we made a mistake and that’s what we’re trying to change,” Mount Dora City Councilman Dennis Wood said …

cedarash150520Cedar Rapids, Iowa, KCRG-TV, May 19, 2015: Treat ash trees you want to save now, Cedar Rapids arborist advises

City arborist Todd Fagan on Tuesday put his latest thoughts on the emerald ash borer more succinctly than ever. Fagan told the city’s Parks, Waterways & Recreation Commission Tuesday that anyone in Cedar Rapids who owns an ash tree that they want to protect should be treating it with an insecticide now. In recent weeks, the City Council has approved the city’s EAB plan to chemically treat certain city-owned trees in the right of way along city streets when the arrival of the ash borer is confirmed in the metro area. The council also has approved the hiring of a contractor to begin work when the borer arrives. At the same time, Fagan repeated that tree treatment should begin when the borer has been identified within 15 to 25 miles, and its arrival in Mechanicsville, next door to Linn County in Cedar County, is about 25 miles away from part of Cedar Rapids. The borer has been identified in 22 Iowa counties, including in Black Hawk County north of Linn County, and Fagan said, “I believe it is here” in the Cedar Rapids metro area. Once it officially is found, the city will begin to inject certain ash trees in the right of way with a chemical marketed as TREE-age. The trees must be treated every two to three years …

Staten Island, New York, Advance, May 19, 2015: How do vines attach to trees in the woods?

From native plants like Virginia creeper, greenbriers and poison ivy to invasive species such as porcelainberry, bittersweet and wisteria, there is no shortage of climbing plants in the fields and woodlands of Staten Island. One way or another, most vines climb up other plants to get away from the shady ground environment and reach higher levels of sunlight, closer to the canopy of trees or just atop surrounding bushes. To get there, vines use a few different strategies. Active mechanisms of attachment involve growth and hormonal responses called tropisms. Tendrils, twining and aerial roots are three kinds of active mechanisms used by our local plants …

Portland, Maine, Press-Herald, May 20, 2015: Maine’s trees envisioned as key to future prosperity

Maine’s trees can be used to make much more than paper, a fact that offers a potentially bright future for Maine’s forest products industry if the right pieces fall into place. That was the message Tuesday morning at an event in Portland hosted by E2Tech, an organization that supports Maine’s environmental, energy and clean technology sectors. Developing technologies can extract high-value biobased chemicals, fuels and materials from wood pulp, which can then be used in clothing, coatings, adhesives, industrial chemicals and structural components, according to Charlotte Mace, executive director of Sustainable Bioplastics Council of Maine. “There are a lot of everyday products that involve biobased materials,” Mace said. “Virtually anything we make out of crude oil and natural gas can be made out of plants …”

worm150519Newburyport, Massachusetts, Daily News, May 18, 2015: Winter moths devastating maples, blossoming trees

Remember those ugly moths that swarmed houses and trees in late November? Their offspring have finally arrived, and they are feeding like a vengeance on certain kinds of flowering trees, blueberry bushes, apple trees and their favorite meal — maple trees. They are called winter moths. Their offspring inchworms have hatched by the hundreds of thousands in trees throughout the region. Their feces — tiny black granules — are covering cars, lawn furniture and patios. The worms are about a half-inch long now, but they will double in size in the next three weeks or so. They’ve been chewing leaves and flower buds on their favorite trees, and when they run out of leaves to eat, they begin to widen their hunt for food. They descend from trees on thin silk-like strands, hoping the wind will blow them onto another meal. These strands, with tiny worms attached, are now commonly found hanging under maples and their favorite flowering trees, such as crab apples …

Tampa, Florida, WFTS-TV, May 18, 2015: Some Seffner residents fear for safety after trees crash down on homes

People living in Plantation Oaks, a mobile home community in Seffner, are concerned for the safety. They tell ABC Action News overgrown and dying trees are falling and damaging their homes– and their calls for help to management are being ignored. On Friday, a large branch came smashing down into a home during a storm. That house is now condemned, along with the neighboring mobile home because of concerns the rest of the tree could fall. “That will fall on my house,” Kelly Kittell said. “I was given 5 minutes to get my things and get out.” According to the president of the home owner’s association, it’s the third time a branch from that tree has fallen on that home. “There had been several complaints to management, not only by this homeowner, but the previous home owner,” HOA president Tom Adam said. Adam says the association has been fighting the management company, Cypress Investors, about trees throughout to mobile home park for years …

protest150519
Chattanooga, Tennessee, Times-Free Press, May 18, 2015: TVA protested for planting trees

The Tennessee Valley Authority, which has come under fire in the past couple of years for trying to cut down too many trees along its transmission lines, was criticized here today for a plan to plant trees and shrubs along the shoreline of Tellico Lake. More than a dozen lakefront property owners in the Tellico Village protested a TVA plan they said would block their views of the lake and undermine their home values. Resident of the Kahita subdivision at Tellico Village in Loudon Conty came to a TVA hearing today to picket the federal utility and to try to get the attention of TVA officials, who they claim haven’t been willing to meet with them about the concerns. “This makes no sense and I think it will devalue these 15 houses by at least $2.5 million,” said Tom Boehm, a 10-year homeowner on Tellico Lake who came here today asking for a meeting with TVA to air the community’s concerns. “If TVA is interested in economic development, this is definitely the wrong thing to do …”

Allentown, Pennsylvania, WFMZ-TV, May 18, 2015: Quakertown proposal calls for trees to be removed downtown

Quakertown Borough will soon cut down trees in its downtown area to accommodate a fresh, new streetscape design. At Monday evening’s work session, borough Zoning Officer Doug Wilhelm presented council with a downtown sidewalk and tree proposal. The borough’s Economic Development Steering Committee and Wilhelm met several times to discuss the proposal. “It’s been an ongoing process,” he told council. According to Wilhelm, there are 34 trees in the downtown area. The trees, he said, block signage and street lights. The trees have also caused sidewalk damage. “The roots have made a lot of damage to the sidewalks,” he said. Also, the trees are causing problems for business owners as development occurs in the downtown area. “We’re getting a lot of complaints from business owners,” Wilhelm said. Wilhelm and the committee are recommending the borough cut down and replace the trees. Seventeen trees will be placed in specific areas, between Fourth and Front streets. “They’re all in strategic locations,” he said of the trees, “but it still gives us that downtown feel …”

Suspect Jason Falbo - probably a hire that landscaper wishes he could reconsider ...

Suspect Jason Falbo – probably a hire that landscaper wishes he could reconsider …

Ft. Lauderdale, Florida, Sun-Sentinel, May 15, 2015: Family ‘horrified’ when nine ducklings were killed with lawnmower

Like any normal day, Boyd Jentzsch and his son, Kai, put out food for the family of Muscovy ducks that lived outside their Wellington home. But on May 2 as they watched out their patio door at the mother duck and her 11 ducklings peck at their food, a lawn worker plotted a different fate for the birds, according to an arrest report. He gunned his riding lawnmower toward the ducks, which were perched on the grass near a tree in the family’s yard, and swerved his blades over them, the report stated. Inside, the family of three watched and screamed at what they had just witnessed. “We were horrified,” said Jentzsch. “I couldn’t believe it was happening. It was totally disgusting.” The landscaper, Jason Falbo, 24, of Royal Palm Beach, was arrested Wednesday and charged with nine counts of animal cruelty by Palm Beach County Animal Care and Control …

Real Estate Magazine, May 18, 2015: Tree care accidents: When are homeowners liable?

Are homeowners responsible for tree care-related accidents on their property? Unfortunately, the answer isn’t simple. It depends on several factors, including state law, the circumstances of the accident, and the type of insurance coverage the homeowner and contractor each possess. “Liability is a complicated issue, but even so, there are several steps all homeowners can take to reduce the risk of litigation,” says Tchukki Andersen, BCMA, CTSP and staff arborist with the Tree Care Industry Association (TCIA). “Tree work can be dangerous, even for experienced professionals, so homeowners should always take extra precautions to ensure their assets are protected ..”

liveoak150518Wilmington, North Carolina, Star News, May 18, 2015: City wants to tear down ‘World’s Largest Living Christmas Tree’

Various branches of city government are leafing through a proposal to tear down the “World’s Largest Living Christmas Tree” and launch a new celebration at Legion Stadium. The aging live oak on Wilmington’s north side was long the focal point of a community-wide Christmas celebration. But as security at the Sweeney Water Treatment Plant got more stringent and the tree deteriorated, the city council voted unanimously in 2012 to move the annual live tree lighting to a cedar at the Rotary Wheel at Greenfield Lake. In recent years, the city and Downtown Business Alliance have also lit an artificial tree downtown …

Ashland, Oregon, Daily Tidings, May 17, 2015: Demonstrators hope to save tree

They came, they sang and beat on a dozen drums, they gave speeches of love for the Fremont Cottonwood tree that has stood on lower Clay Street since, they say, pioneer days — and they vowed support for both the tree and affordable housing units poised to displace it. It’s a mounting conundrum for city hall and the city council, which, at the direction of the city council, is in the process of preparing a request for a tree removal permit that will go to the city Tree Commission and Planning Commission for consideration — and would, in all likelihood, be appealed to the council. The giant was, in 2014, named city Tree of the Year for 2013. That citation puts the tree’s diameter at breast height at about 6.25 feet, with a height of 75 feet and canopy spreading 90 feet, and estimates its age at more than 100 years old. An arborist’s report prepared for the city in 2013, however, identifies the tree as an Eastern Cottonwood and estimates its age as about 75 years old. That’s based on 10-inch core samples from each side of tree, each of which had 21 annual growth rings; multiplying by the tree’s radius of, by this arborist’s measurement, about 36 inches, yields the estimated age …

Newtown Square, Pennsylvania, The Advance, May 17, 2015: Newtown Township Supervisors freeze developer’s $590,000 escrow account until matter of felled Villa’s beech tree is resolved

The supervisors on Wednesday night took a stand against the developer of the Villas of Newtown for chopping down a more than century-old beech tree adjoining a rundown farmhouse at the entrance to the property on Upper Silver Lake Road and Penns Trail North. The tree, which a township-hired arborist has said was about 120-years-old, was cut down by the Newtown-based McGrath Homes on April 13 in violation of a 2006 court agreement. After hearing of the tree being removed, township officials immediately issued a cease-and-desist order against any further work around the farmhouse until the fate of the structure is settled …

elm150515New Haven, Connecticut, Register, May 14, 2015: Opinion – Know your rights when it comes to saving trees and keep watch

A wise man named Bob Dylan, in his song “The Times They Are a-Changin,’” advised us: “Keep your eyes wide, the chance won’t come again.” That’s an important thing for us to keep in mind as utility crews roam through our cities and towns, overly eager to enforce the so-called “Enhanced Tree Trimming” program by too often destroying trees in our neighborhoods instead of pruning their branches. We should be keeping our eyes wide for those trucks and little white signs on trees: “Public notice of tree removal …”

San Francisco, California, KPIX-TV, May 13, 2015: Caltrans removes dying $10,000 palm trees from bay bridge entrance In Oakland

Caltrans is tearing out some of the pricey palm trees lining the entrance to the Eastern span of the Bay Bridge after just one year. Several of the $10,000 trees were removed from the bridge Wednesday. The canary palm trees haven’t fared well at the breezy entrance to the bridge in Oakland, but urban arborist Scott Wheeler says the iconic tree wasn’t a terrible choice. “They’re tolerant of soil conditions. They’re tolerant of high winds. They’re tolerant of salt spray. They perform excellent wind breaks,” Wheeler said. But, there are other problems facing the trees, like disease. “Some of the trees on the Embarcadero did have pink rot, or fusarium,” Wheeler said …

dogpark150515Woodland, California, Daily Democrat, May 14, 2015: Community barking over dog park trees

Red, spray-painted “X’s” marked on more than 40 trees in and near a Woodland dog park are causing people in the community to speak out. Eight out of 22 trees in the dog park are being cut down by the city to make room for new solar panels on the south side of the Community & Senior Center, just one of the six city facilities in which they will be installed as part of the city’s action plan to support solar energy. “This project has been in the works for a couple of years,” according to project leader and Environmental Resource Analyst Roberta Childers. But community members were taken by surprise about the tree removals — particularly those from the dog park …

Juneau, Alaska, Empire, May 15, 2015: Opinion – Who speaks for trees?

Criticism, skepticism and protest are unfriendly words. Litigation is their more contentious cousin. These words have been making noise for decades in the Tongass National Forest and appeared last week when the Tongass Advisory Committee (TAC) completed its timber harvest transition plan. But if we could listen to the trees themselves, they might tell us what’s even worse is the sound of numbers being crunched. In the 1980s, I was a U.S. Forest Service engineer assigned to a team preparing timber sales at Polk Inlet on Prince of Wales Island. Two numerical terms we frequently used were board feet and purchaser credits. The former I readily understood as the estimated volume of wood. The latter I quickly learned was how the government reduced the purchase price of the sale to cover the cost of building the roads. The USFS sold 276 million board feet of Tongass timber that generated $3.3 million in revenue in 1986. Of that, $2.5 million were purchaser credits for road construction. The government spent $25.5 million separate from the road costs. It’s subsidies like this that formed the backbone of the timber industry, which former Gov. Frank Murkowski recently mislabeled as sustainable …

Gwinnett, Georgia, Daily Post, May 14, 2015: Avoid planting trees that have messy habits

Most people enjoy having trees in their landscape. Trees have aesthetic qualities and provide shade that is cooling on hot summer days. Landscape trees come in many sizes, shapes, colors and growth habits, but not all are created equal. Some trees are difficult to grow, some are not adapted to our climate, and others have serious insect and disease issues. One problem with several species of commonly planted trees is that they continually shed their leaves, branches, and seedpods. You need to be aware of these trees and avoid planting them in areas where their messy habits could create problems …

erie150514Erie, Pennsylvania, Times-News, May 14, 2015: Trees are rooted to Erie’s sense of place

It hasn’t been a good couple of weeks for big, stately trees in the heart of Erie. In April, two large trees were cut down at the Watson-Curtze Mansion at West Sixth and Chestnut streets, for new landscaping that is part of the mansion’s restoration. Also in April, Penelec crews trimmed and took down trees in the 1200 and 1300 blocks of West 10th Street. “Trees and power lines don’t mix very well,” said Scott Surgeoner, a spokesman for First Energy, Penelec’s parent company. Then on Monday, two pin oaks at Griswold Park were uprooted during fierce thunderstorms …

New Orleans Times-Picayune, May 13, 2015: Swarming season: check trees for Formosan termite activity

At least they’re punctual. Formosan termites traditionally have their biggest flying swarms in the New Orleans area right around Mother’s Day. And as if on cue, the wood-munching, property-damaging menaces were out in spades on Tuesday evening (May 12, 2015).Arborist John Benton, president of Bayou Tree Service, says the swarms typically coincide with days that are overcast and humid at dusk. Termite swarming season serves as reminder for homeowners to be diligent in checking their houses and trees for Formosan activity…

Meanwhile, in Merrie Olde England …

london150514London, UK, Daily Mail, May 14, 2015: Used car dealer causes £27,000 damage by slashing down six allotment trees that put his swimming pool in the shade

A used car dealer who was so fed up with allotment trees putting his swimming pool in the shade he ordered an axe to be taken to them has been found guilty of causing £27,000 in criminal damage. Xhavit Krasniqi, 40, of Coleridge Avenue, Sutton, arranged for unqualified workers to carry out lopping and topping of six trees overhanging his pool from the neighbouring Sutton Council-owned Westmead Allotments. Sutton Police were called to the scene on February 13 last year and found damage to the ash and sycamore trees and branch debris on the ground.  The council sought a statement of loss for the total damage, which was put at £23,759, and for cleaning up the debris, which came to £3,250.  At Croydon Crown Court last Friday, Krasniqi was found guilty on two counts of causing criminal damage to the trees after a three-day trial.  He was found guilty by a majority 11-1 verdict on both counts …

 

Tucson, Arizona, KOLD-TV, May 13, 2015: Do trees really know when it’s spring?

Humans know when spring is about to arrive by looking at a calendar, but how do plants know that April showers bring May flowers? This is one of those mysteries you may have discussed with the family without ever coming up with a definitive answer. Well, scientists have known for years how trees and plants know, and here is some insight …

Scientific American, May 12, 2015: Root fungi can turn pine trees into carnivores — or at least accomplices

Laccaria bicolor is a common and edible forest mushroom. The mushrooms are only one tiny and ephemeral reproductive portion of a fungal body that surrounds tree roots and sends out filaments into the soil in search of water, minerals. It’s also an ectomycorrhizal fungus that grows in association with the roots of many trees, making that old familiar barter of nutrients and water from the soil for food from the tree. Mycorrhizae also confer amazing connective powers on their plant partners. They enable trees to communicate and share resources below ground, even if those trees are from radically different species. Little soil dwellers like springtails and mites eat fungi, and during a “routine” feeding experiment the scientists discovered that less than 5% of the springtails in one dish had survived their fungus grazing experience. That fungus was Laccaria bicolor.Incriminatingly, all the dead springtails had fungus fibers riddling their little corpses. Instead of springtails eating the fungus, the reverse appeared to have happened …

Nothing an EAB fears like a green ribbon ...

Nothing an EAB fears like a green ribbon …

Omaha, Nebraska, World-News, May 12, 2015: Ash trees will be wrapped in green ribbons to raise awareness of tree-killing borers

The Omaha Parks Foundation, the city’s Forestry Division and volunteers will kick off emerald ash borer awareness week Saturday. The Parks Foundation will hold a press conference at 9 a.m. that day at Seymour Smith Park focusing on the emerald ash tree borer epidemic. An ash tree will be planted Saturday to kick off the awareness week, which officially runs from Sunday to May 23. Also Saturday, volunteers will visit six locations in the city with heavy concentrations of ash trees — Seymour Smith Park, Abbott Drive, Memorial and Elmwood Parks, Regency Parkway and Ramble Ridge Park — to wrap green ribbons around the trees. Volunteers also will wrap ribbons around nearly 1,000 ash trees on city rights of way and parkland throughout next week …

St. Louis, Missouri, KMOV-TV, May 12, 2015: City of Chesterfield looks to declare sweetgum trees hazardous

The city of Chesterfield is looking to expand the responsibility of homeowners who have sweetgum trees on their properties. Councilmember Barry Flachsbart of Ward 1 asked the council to consider going further by having sweetgums declared hazardous, requiring property owners to keep sidewalks free of the balls the trees frequently drop. Flachsbart asks that sidewalks be cleared of the pods within an hour if lawn mowing scatters them onto the walkway. A year ago, the council expanded a policy governing trees that can be removed from the city’s rights-of-way to include not only dead, diseased or dying specimens, but also “otherwise healthy trees (that) may become a nuisance” and that are detrimental to the public…

leantree150513Dallas, Texas, WFAA-TV, May 12, 2015: Recent heavy rains put some North Texas trees at risk

A South Dallas man is still struggling to put a roof over his head after storms two weeks ago caused a tree to crush his home. Donald Rankins was inside at the time. The tree missed him by inches. And the wild weather hasn’t let up since. “It’s something that could happen anywhere,” Hannah Davis said. She’s a certified arborist with Dallas Tree Surgeons, and said when strong storms rumble over North Texas, trees toppling and branches cracking send business soaring …

Seattle, Washington, Times, May 12, 20125: Italy fears disease will destroy its famous olive trees

Across the stony heel of Italy, a peninsula ringed by the blue-green waters of the Mediterranean, olive trees have existed for centuries, shaping the landscape and producing some of the nation’s finest olive oils. Except now many of the trees are dying. Sprinkled among the healthy trees are clusters of sick ones, denuded of leaves and standing like skeletons, their desiccated branches bereft of olives. The trees are succumbing to a bacterial outbreak that is sweeping across one of Italy’s most famous olive regions, as families that have manufactured olive oil for generations now fear ruin, even as officials in the rest of Europe fear a broader outbreak. “It is devastating,” said Enzo Manni, director of ACLI-Racale, an olive cooperative in the heart of the outbreak area. “It is apocalyptic. I compare it to an earthquake …”

Calvert, Maryland, Recorder, May 13, 2015: Native insect larvae feed on trees; higher numbers reported

For the last several years, Southern Maryland has been hit harder than usual by what seems to be little green inchworms, but the worms are fall cankerworm larvae that feed on shade trees. The larvae hang from the leaves of trees, and although the species is native to the area, the population has been higher in recent years. In April and May, the worms can defoliate trees, land on cars and porches and “rain” down worm feces, according to a press release from the Charles County University of Maryland Extension …

Redlands, California, Daily Facts, May 11, 2015: How to water trees in drought

The city of Redlands, a Tree City for 20 years as noted in the City Council proclamation in April, is known for its mature trees. Many of those trees have been alive much longer than the city’s residents. In issuing the state’s water restrictions, city spokesman Carl Baker said the governor differentiated between irrigating turf, which is easily replaced, and maintaining mature trees, which take a long time to grow and which provide clear benefits in terms of cleaning the air, controlling erosion and cooling the environment. Especially important in our desert environment, trees provide a cooling effect on the man-made “heat islands” of city and urban growth. Short-term droughts can be tough on trees, especially newly planted ones. But long-term drought is harder due to ongoing moisture stress, which increases their susceptibility to diseases and insects. If you have trees that are in an area where you’ve shut off or greatly reduced irrigation, or have always depended on precipitation, it may be time to give them some extra TLC in the form of extra water …

CO2150512Science Daily, May 11, 2015: Trees use water more efficiently when atmospheric carbon dioxide is high

Increased atmospheric CO2 concentrations have already caused large-scale physiological responses of European forests. In particular, the efficiency of water-use of trees, which is coupled to the uptake of CO2 during photosynthesis of leaves and needles has changed significantly. According to the study of a large, interdisciplinary team of researchers, European broadleaf and coniferous trees have increased their water-use efficiency since the beginning of the 20th century by 14% and 22%, respectively …

Jakarta, Indonesia, May 11, 2015: Time to see the forest for the oil palm trees in Riau row

It was almost 10 a.m. when a group of men rowed their kayaks along the lush and narrow swamp to a peat land forest located an hour away from their village in Pungkat, Riau. The men have heard an oil palm plantation would be built in the forest despite their outcry. The resistance had, just a few months ago, triggered a clash in which 21 villagers ended up behind bars charged with damaging the oil palm company’s property. The site these men were headed to was a canal newly built by the company to dry out the peat land. The canal had polluted the main source of drinking water in the area. Upon arriving, the men were unpleasantly surprised to see the new canal. Trees, including the rare gonystylus bancanus, known locally as Ramin, have been cut and felled. Ramin trees are now so rare the government has issued a ban on cutting them down …

spruce150512Fargo, North Dakota, AgWeek, May 11, 2015: Growing Together: Area spruce trees ravaged by new disease

A potentially devastating disease epidemic is attacking our region’s most common evergreen trees. Colorado, Black Hills and Norway spruce have long been planted in yards and shelterbelts. Most of the tree-type evergreens in our region are spruce, ranging in color from silvery blue to deep green and growing 40 or 50 feet high. And now a relatively new disease called Stigmina needlecast is causing serious damage ...

Indianapolis, Indiana, WISH-TV, May 11, 2015: How to protect your trees against emerald ash borer

The City of Indianapolis is working to fight the beetle that’s killed millions of ash trees across the country and damaged thousands here at home. They’re hosting meetings about emerald ash borer this week. Experts say thousands of ash trees throughout Marion County are already infested with emerald ash borer. It’s a small beetle that feeds on ash trees, eventually killing them. EAB was first discovered in the U.S. in Michigan, near Detroit, in 2002, likely arriving on wood packing material from Asia. Officials say the problem with the beetle is that it’s so small, damage to trees is typically internal until the trees become damaged or die. Thus, they say, the more important it is for homeowners to identify if you have ash trees on your property right now, then take steps to combat it. They say even if your trees appear healthy right now, it will save you time and money in the long run. There are several treatment options available: homeowners can treat themselves with a permit, or hire a professional …

Lafayette, Indiana, WLFI-TV, May 11, 2015: Trees come down along I-65, residents wait for wall to go up

A number of trees along Interstate 65 in Tippecanoe County have been cut down as the construction project to add a third lane. While INDOT says the trees had to come down early because of endangered bats, residents say a wall to block the noise can’t come up soon enough. “I like it here. It’s a nice neighborhood with a lot of friendly people,” said Charles Strange. Strange lives on Tanglewood Drive in Lafayette. His backyard backs up to I-65. “The main sound is from the semis. And there’s quite a bit of it, but the car traffic doesn’t bother me,” said Strange, who said he noticed more noise when crews cut down several trees that separated his yard from I-65. It’s part of the plan to expand I-65 to three lanes in each direction through the Lafayette area …

beetle150511Melville, New York, Newsday, May 10, 2015: Effort to replace trees destroyed by Asian longhorned beetle begins in Babylon

Hundreds of trees cut down by authorities in an attempt to stop the spread of the hardwood-eating Asian longhorned beetle in Babylon Town will be replaced in coming months. Under a $1 million planting effort announced by New York State last week, about 1,600 beetle-resistant trees will be planted on private and public land across the town, an effort that may expand to Oyster Bay and Huntington…

Medford, Oregon, Mail Tribune, May 11, 2015: Red tape slows plans to remove blow-down trees

The Feb. 7 winds racing across the Dead Indian Plateau buried campsites under a mountain of wood fiber and boughs fit only for sprouting morels and certainly not campers. “Nothing survives something like this,” says Manager Steve Lambert of the Jackson County Parks Department, which owns and manages the resort. Now the only thing bigger than this blowdown mess that has closed almost half of the resort’s camping sites this season is the red tape that so far has yet to see one campsite cleared for use. That could change as early as today when two federal agencies are expected to sign off on a plan to remove the nearly 100 blown-down trees as well as damaged ones still standing from the resort’s South Campground, as well as from nearby Willow Point Campground, also shuttered by damage from the same storm. It’s taken more than three months to assess the damage and forge the interagency agreement. “Government contracting takes time,” says Douglas DeFlitch, manager of reclamation’s Bend office …

hole150511Salem, Ohio, Farm & Dairy Journal, May 10, 2015: Holes in trees: hazards or harmless?

Hazardous trees pose a danger to people and property. When storms or high winds hit, limbs — and often whole trees — fall to the ground. “Many fatal accidents and millions of dollars in property damage can be averted if homeowners heed the warning signs of a hazardous tree,” said Tchukki Andersen, staff arborist for the Tree Care Industry Association. “By not paying attention to your trees, you are potentially placing your property, even your life, in jeopardy.” Fortunately, one can often read the clues that indicate a tree is prone to failure …

Associated Press, May 11, 2015: Land Between the Lakes plants 42 acres of native pine trees

Land Between the Lakes National Recreation Area has planted about 29,000 shortleaf pine seedlings on 42 acres where non-native loblolly pines once grew. Yvonne Helton, asilviculturist at Land Between the Lakes, said that the loblollies were planted in the Demumbers Bay area years ago by the Tennessee Valley Authority to control erosion. The loblolly pines are fast-growing but have a relatively weak root system. Because of that, they sustained heavy damage during a 2009 ice storm. The native trees are slow growers but have extensive root systems that make them better suited to local weather conditions …

Santiago, Chile, Fresh Fruit Portal, May 11, 2015: Does the pollen on your trees play a role in the rain they receive?

A recent study from the University of Michigan (U-M) and Texas A&M yielded an unexpected finding – pollen grains may have an impact on rainfall. In a release, the University of Michigan highlighted pollen had largely been ignored by atmospheric scientists who study aerosols, which are particles suspended in the air that scatter light and heat, playing a role in cloud formation. “The grains were thought to be too large to be important in the climate system, too large to form clouds or interact with the sun’s radiation,” said Allison Steiner, U-M associate professor of atmospheric, oceanic and space sciences. “And also the large particles don’t last in the atmosphere. They tend to settle out relatively quickly … {But] when we were looking in the allergy literature we discovered that it’s pretty well known that pollen can break up into these tiny pieces and trigger an allergic response,” she said. Smaller grains could have big implications. The research team set out to see if moisture could cause the pieces to break down. “What we found is when pollen gets wet, it can rupture very easily in seconds or minutes and make lots of smaller particles that can act as cloud condensation nuclei, or collectors for water,” Steiner said …

value150509Denver, Colorado, Denver Post, May 8, 2015: What’s a tree worth? Size up your home’s “forest” and keep it healthy.

The arrival of emerald ash borer in Colorado has homeowners looking at all their trees with new appreciation. Before-and-after photos of devastated neighborhoods in the Midwest — where ash trees are native and were an even larger part of the urban and suburban tree canopy — show just what’s at stake. But the up side is that a larger conversation on trees is being opened up. “There are a lot of nice ashes out there, and some are worth fighting to keep,” said Ralph Zentz, assistant city forester in Fort Collins. In fact, “some are gorgeous.” Zentz knows how trees in parks, greenways and city centers define the character of a town, in addition to their impact on human health and the environment. Like many other city foresters along the Front Range, he’s been counting trees: He puts the total number of public trees in Fort Collins at 47,000, with an environmental value of $5.4 million per year …

New London, Connecticut, The Day, May 8, 2015: Trimming trees to avoid storm damage

You may have already heard a rumble or two of thunder this year, and the odds of a damaging storm will only increase as summer approaches. In addition to the possibility of severe thunderstorms, the Atlantic hurricane season begins on June 1 and will last through the end of November. If your trees are vulnerable to the strong winds these storms produce, branches or even the entire trunk may come crashing down on your home, vehicles, or garden. Working to prepare your trees during the milder spring weather can save you this hardship later in the year …

falling150509Boston, Massachusetts, WFXT-TV, May 8, 2015: Video: Tree falls on children in play area of Chelsea park

Two children suffered “significant injuries” Monday evening after a large tree fell on them in a park. One of the victims, 8-year-old Diego Ruiz has staples in his head and bruises on his shoulder, but is lucky to be alive after the tree came crashing down on him while he was in Chelsea’s Washington Park Wednesday. “It was scary,” he said. “And the tree fell on my head and then I can’t escape.” Diego doesn’t remember much. He says one minute he was watching a video and the next, he was trapped under tree limbs. When asked if he heard any noise before the tree, Diego said, “I just hear the wind …”

Farmington, Connecticut, WTIC Radio, May 7, 2015: Csnton tree service worker killed

A tree service worker has died after falling from a tree in Canton.  Canton police say the man was working on property off Wright Road on Thursday when he fell from the tree. A medical helicopter was called and landed at a nearby school, but the worker was pronounced dead at the scene …

Yahoo News, May 8, 2015: Black Locust: The tree on which the US was built

As the strongest timber in North America, black locust helped build Jamestown and hardened the navy that decided the War of 1812, yet today few Americans have heard of it. The nation’s taste in ornamental trees has changed fairly dramatically since the first street plantings were made in Williamsburg, Virginia, in the 1730s. The catalpas that line the town’s Palace Green, which was one of the first examples of a municipal street planting in British North America, are seldom planted today and are considered by most horticulturists as little more than weed trees …

NYParks150507New York City, New York Times, May 7, 2015: Fewer limbs but healthier trees as New York’s parks budget rebounds

It was only a few years ago that budget cuts had forced the parks department to lengthen the pruning cycle from once every seven years to once every 15 or 20 years. This year, with a budget of $5.5 million — nearly four times the amount allotted in 2012 — the pruning of London planes, Norway maples and pin oaks has picked up pace. Forestry specialists for the parks department say crews are now working on a five- to seven-year cycle, which is considered ideal for street trees in a city setting …

Los Angeles, California, Times, May 6, 2015: Die-off of millions of California trees concentrated in Sierra Nevada

Most of the millions of trees dying in California forests because of the state’s continuing drought are in the southern Sierra Nevada mountains, scientists say. U.S. Forest Service scientists say more than 12 million trees in the state’s forests have perished during the drought, and the die-off is expected to continue. A series of aerial surveys conducted in April mapped the widespread devastation …

chestnut150507Syracuse, New York, SUNY College of Environmental Science and Forestry, May 6, 2015: American Chestnut trees make return in New York

Scores of young transgenic American chestnut trees developed at ESF will take root this spring across New York state, representing one more step in the restoration of a once-dominant species that has virtually vanished from the landscape. Spindly “plantlets” about a foot high will settle into the ground under a U.S. Department of Agriculture (USDA) permit in Central, Western, and downstate New York, locations where their growth will be controlled and monitored as the newly developed strains undergo a rigorous federal approval process …

New Haven, Connecticut, Register, May 6, 2015: Wallingford sued over removal of trees

A group of residents is suing the town and its Public Works Director Henry McCully over his decision to order the removal 29 pear tress that line North Main Street. Gina Morgenstein, who live on South Main Street, is the plaintiff in the case. Town officials were served with the legal papers notifying them of the lawsuit Monday. Morgenstein, who has an unlisted phone number, was not available for comment on Wednesday. She filed the lawsuit on behalf of a loosely-based group of town residents that call themselves TreesWallingford. Jared Liu, a spokesman for the group, said members don’t expect that the lawsuit will ultimately be successful. “We’re just trying to raise awareness about this problem,” Liu said Wednesday …

Providence, Rhode Island, WPRI-TV, May 6, 2015: Tree inspections help reduce downed trees

After a shocking video of a tree falling and injuring two small boys in Chealsea, Mass. surfaced — Rhode Island environmental officials are taking a look at local trees. “Tree check-ups” are done in many areas across the state, including in Goddard Park in Warwick. Bob Paquette of the DEM’s Park and Recreation Department says the parks are safe — but that trees and weather can change quickly. He says the department is always looking for potential hazards. “A lot of the oaks that we notice have some damage on them, we will react to it right away. A lot of the pines we react to when there are storms and things like that,” he said …

ash150506Cincinnati, Ohio, WLWT-TV, May 5, 2015: Some communities aren’t replacing trees killed by Emerald Ash Borer

The emerald ash borer has been in the region, devastating trees since 2006. But now we’re starting to see more of an impact to neighborhoods. In Deerfield Township, public works crews began working with the Ohio Department of Natural Resources in 2014 to identify all of the dead and dying ash trees. Since then, they have been removing the trees that pose a threat to the public …

Seattle, Washington, The Stranger, May 5, 2015: The population of trees in Seattle

The answer to a question that first appeared in my mind in the late part of a long night: There are 4.35 million trees in Seattle. Wikipedia’s estimate of humans in the city is just above 650,000. We live in a big city (people), but we live in an even bigger forest (trees). And as the great writer Jonathan Raban once pointed out to me, the forest dominates the day with its green leaves and the city the night with its lights …

circle150506Flemington, New Jersey, Hunterdon County Democrat, May 5, 2015: Big trees axed at Flemington’s Middle Circle

The five big trees on Flemington’s Main Street circle were cut down yesterday by the state Department of Transportation. The trees had been threatened in 2009 when the DOT was changing that Route 12 circle to a slower “roundabout.” But the borough prevailed upon the DOT to spare the trees, although it was said at the time that some of them would suffer trauma during the reconstruction of the circle. The Flemington Business Improvement District is orchestrating landscape improvements at that gateway to the downtown area. But taking down the big trees is not part of the beautification effort, said Megan Jones-Holt, executive director of the BID …

Looking for an older news story we featured on this page?  Check our Prior News Links page.

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Case of the Day – Thursday, May 21, 2015

WE DON’T KNOW NUTHIN’

fallentree141117When the Santiagos parked on a side street in Vineland, New Jersey, to attend the christening of their god-daughter, they had no idea that Mrs. Santiago was about to get christened with a 60-foot tall maple tree.

It seems that the tree’s roots had girdled — which is what happens when the roots grow back around themselves and essentially strangle the tree. Girdling is a problem with city trees, the roots of which may grow in confined places. When it happens, trees have no subsurface support, and often fall in conditions that wouldn’t affect normal trees.

That’s what happened to the tree that struck Mrs. Santiago, and her lawyer and expert witness arborist did an excellent job of explaining the problem to the court. But the City won on summary judgment anyway. It seems that the city workers responsible for the trees all testified that they were nothing more than glorified leaf-rakers — one of them, when asked what he knew about trees, responded “[t]rees have leaves, that’s about it” — and none of them knew how to inspect a tree to determine whether it might have girdled roots.

The city workers involved were not the sharpest bulbs on the tree --- or something like that.

The city workers involved were not the sharpest bulbs on the tree — or something like that.

Now you’d think that the fact that city owned the urban tree and its tree people had no idea how to care for them ought to make this case a dunker for the injured Mrs. Santiago. But in New Jersey, the Tort Claims Act requires that a plaintiff show that the city’s failure to act was “palpably unreasonable.” The fact that city’s tree workers couldn’t find the business end of a chain saw turned out to be a fact that favored the city. The Court of Appeals agreed that the city’s decision not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality was not “palpably unreasonable.”

Compare this decision to holdings in other jurisdictions that an urban owner has a heightened duty to inspect his or her trees (see Conine v County of Snohomish, a Washington State decision). Seems if you’re a New Jersey city worker, the less you know, the better off you are. We don’t know much about girdling, but we know nonsense when we read it.

Santiago v. City of Vineland, Not Reported in A.2d, 2007 WL 2935035 (N.J.Super. A.D., Oct. 10, 2007). The Santiagos drove to 8th Street to attend the christening of their god-daughter. As they crossed the street, a 60-foot maple tree fell and struck Mrs. Santiago. She sued the City, claiming it was responsible for the care and maintenance of trees on its property, and was negligent, careless and reckless in permitting a dangerous condition to exist.

girdling141117Mrs. Santiago submitted a report prepared by Russell E. Carlson, a master arborist, saying that the tree broke at its base, a few inches below the surface of the ground, because it lacked a root system sufficient to support the tree. He found that girdling roots had effectively strangled the tree, resulting in decay of the base of the trunk and inadequate development of the root system. Girdling roots form when a root grows in a direction that crosses the trunk of the tree. Ordinarily, roots will grow away from the trunk of the tree but when a root meets an obstruction, it will change direction, and may grow around the edges of the planting pit.

Carlson said that eventually, circling roots will come in contact with the growing tree trunk. The cells of the bark of both trunk and root are compressed. Symptoms of this are a thinning of foliage and reduction of twig growth in the crown, followed by twig and branch dieback. The tree may eventually die above the area of contact. When this girdling condition persists for many years, the roots that normally extend away from the tree may atrophy and eventually decay. While healthy trees usually withstand winds over 70 mph, trees that have lost their structural support at the base can topple in much lower winds, and in some cases when there is no wind at all.

Even when the roots are underground, the expert said there are signs that girdling roots may be present. The trunk of the tree goes straight into the ground, without the normal flare from trunk to roots. Carlson stated that excavation of the soil at the base of the tree is “sometimes necessary” to determine the extent of the girdling. This process could take a few minutes, or several hours, depending on the size of the tree, soil conditions, and the extent and depth of the girdling roots.

Only one of three city employees whose depositions were taken knew anything about trees, and even he had no experience identifying diseased or dying trees. The general supervisor of streets and roads for the City said it would be a hardship both economically and logistically for the City’s Department of Public Works to inspect every tree within the City’s borders, or even within the City’s right of way and on City property, for the multitude of diseases that are capable of causing damage to any or all of the varieties of trees within the City’s borders.

The City moved for summary judgment, arguing that Santiago had not presented sufficient evidence to support a claim under the Tort Claims Act because she did not establish that the City had actual or constructive notice of a dangerous condition. The judge concluded that the City’s actions respecting the tree were not palpably unreasonable. Santiago appealed.

Held: The suit was properly dismissed. The Tort Claims Act provides that a public entity may be liable for an injury caused by a condition of its property if a plaintiff establishes (1) that the property was in dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either (a) 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 (b) a 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 workers in question should have gone to shcool  ...

The workers in question should have gone to shcool …

A public entity is deemed to have “actual notice of a dangerous condition” when it had “actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” In addition, a public entity is deemed to have “constructive notice” of a dangerous condition if a 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, Mrs. Santiago had the burden of showing that the City’s action or failure to act was palpably unreasonable. Although the term “palpably unreasonable” is not defined in the TCA, it has been interpreted to mean “more than ordinary negligence, and imposes a steep burden on a plaintiff.” For a public entity to have acted or failed to act in a manner that is palpably unreasonable, it must be obvious that no prudent person would approve of its course of action or inaction. The trial judge correctly determined that the Santiago had not presented sufficient evidence to raise a genuine issue of material fact as to whether the City’s actions in this matter were palpably unreasonable. The City’s public works employees were not trained to identify girdling roots or whether a tree was in danger of imminent failure as a result of such condition. The judge also pointed out that the City had not retained an arborist to “go around and inspect trees for girdling roots and perhaps a myriad of other types of similar problems, which would make a tree unsafe.” Based on the evidence, the judge correctly found that a jury could not find that the City’s failure to have such an inspection program was “patently unacceptable under any given circumstance.”

The evidence showed it is obvious that a regular program to inspect the City’s trees for imminent failure due to girdling roots would require additional manpower and resources. In this case, the City elected not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality. Such a determination, the Court said, was not palpably unreasonable.

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Case of the Day – Wednesday, May 20, 2015

SPIDERS AND SNAKES

spiders150520Jim Stafford and Greg Barnett have something in common — neither one likes spider or snakes. In Greg’s case, he doesn’t think much of Southern California Edison, either.

The utility had an easement along one side of his yard, where he and his neighbor had parallel fences. The easement was to maintain power lines, but when Greg cleaned up some debris between the fences, a big ol’ spider bit him. Arachnophobia reared its ugly head, followed close on by a lawsuit.

Greg said Edison had a duty to maintain its easement, and it should therefore be liable to him for the spider bite. The trial court disagreed, and the Court of Appeals concurred. It found Greg’s argument, like the spider of waterspout fame, just an “itsy bitsy” bit light on common sense. The easement was one known as an easement “in gross,” meaning that it was limited, in this case, to activities related to delivering electricity. Edison could (and had) trimmed and cut down trees that interfered with its lines, but it had no duty to Barnett to do things unrelated to the right for which the easement was granted. Such as kill spiders.

itsybitsy150520The Court rightly concluded that to make the utility liable would be a major burden on a public utility given the thousands of miles of easement territory the company had. Nothing except the fact that the cleanup job bites kept Barnett from cleaning up his own land.

Barnett v. Southern California Edison Co., Not Reported in Cal.Rptr.3d, 2007 WL 2751874 (Cal.App. 4 Dist., Sept. 21. 2007). Gregory J. Barnett owned a place on Hayes Avenue. Edison held a six-foot wide easement on the west side of the property to “construct, lay, install, use, maintain, alter, add to, repair, replace, inspect and/or remove, at any time and from time to time, aerial and underground electric lines and communication lines, consisting of poles, guys and anchors, crossarms, wires, cables, conduits, manholes, vaults, pull boxes, markers[,] and other fixtures and appliances, for conveying electric energy to be used for light, heat, power, telephone[,] and/or other related uses …”

Barnett said SoCal Edison should have killed the spiders.

Barnett said SoCal Edison should have killed the spiders.

Barnett’s neighbor built a fence along the western boundary separating Barnett’s property from the neighbor’s, and Barnett had installed his own fence which overlapped the neighbor’s fence. There was a small gap of land between the two fences measuring two feet wide and four feet long. The gap was located within Edison’s easement. One day, Barnett was bitten by a spider while cleaning the area between the two fences of small pieces of concrete, branches, leaves, and old paper trash. He said he was trying “to abate the infestation of rats, spiders, and other vermin …” that Edison had ignored.

Barnett claimed Edison told him that he could not close the gap or take other remedial measures because Edison’s lineworkers needed access to the utility pole located between the two fences. Barnett sued Edison for negligence and premises liability, arguing it had the duty to clean up the space and eradicate the spiders.

Edison argued it owed no duty of care to prevent the spider bite. Barnett argued Edison exerted exclusive control over the area and, therefore, had a duty to maintain the premises in a safe condition. The trial court agreed that Barnett could not establish the duty element of his cause of action for negligence. Instead, there was merely a nonexclusive easement for the maintenance of electric facilities that burdened Barnett’s property. Barnett’s alleged injury from a spider bite was unconnected to Edison’s use of the property pursuant to its easement. Therefore, as a matter of law, Edison did not owe Barnett a duty of care to prevent spiders from nesting behind his fence. Barnett appealed.

socallines150520Held:  The easement did not create a duty for Edison toward Barnett. An easement such as this one, called an easement in gross, is not attached to any particular land as dominant tenement, but belongs to a person individually. Here, it is undisputed there was just a parcel of property owned exclusively by Barnett. Edison held an easement in gross, limited to the purpose of conveying electricity to its customers. Edison owed no general duty of care for all purposes on its easement in gross, or more specifically, any duty to rid the area of spiders, rats, and other vermin.

The easement owner’s possessory right is limited to the use of the land granted by the easement. Accordingly, an easement holder has a duty to act reasonably under the circumstances in its use of the servient estate, but the duty does not extend beyond the scope of that use. Barnett didn’t cite a single case where an easement holder was held to have a duty to guard against a risk of harm unrelated to the scope of the interest represented by the easement. The Court said that to impose such an unlimited duty “would impose a tremendous burden on Edison, its customers, and all other utilities in California.

Barnett argued he presented evidence Edison exerted exclusive control over the easement property and therefore assumed the duty of care typically held by a landowner. The Court held he had failed to provide relevant admissible evidence to support his claims. Although Barnett claimed Edison had once removed a rat-infested palm tree, he admitted he had told Edison the palm tree was growing up into Edison’s lines, and Edison had an obligation to maintain a certain clearance between its trees and electric lines. Trimming and removing trees was part of the express terms of its easement right. The eradication of the rats was merely incidental.
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Case of the Day – Tuesday, May 19, 2015

DOUBLE DIPPING, KENTUCKY STYLE

Lon Chaney was not a part of this lawsuit.

Lon Chaney was not a part of this lawsuit.

It’s hard to feel too much sympathy for Mr. Chaney (Dave Chaney, not Lon Chaney) in today’s case. He and his wife lived in a hollow on the Ohio River, downhill from the Wilsons.

When the Chaney homestead filled with mud because of a landslide, the Chaneys saw green where most homeowners would just see brown. They sued the hilltop Wilsons, complaining that their neighbors had trespassed and cut down some 400 trees, many of them belonging to the Chaneys. The Chaneys alleged that the removal of the trees — insulting enough on its own — led to the hillside ending up in the Chaneys’ living room.

The trial court got the two sides to agree that their surveyors would decide on the proper boundary. The surveyors did so, and concluded that Mr. Wilson had cut down his own trees, not Chaney’s trees. Meanwhile, The Chaneys lost or fired their attorney — we’re unclear what happened, but regardless, it came at a bad time — and proceeded to lose on summary judgment. They then appealed, arguing for the first time that they hadn’t agreed to have their surveyor work with the other side’s surveyor.

The Court of Appeals ruled against the Chaneys, holding that their allegation was too little, too late. Because it hadn’t been raised in the trial court (where it could have been corrected), the argument could not be raised on appeal. Besides, the Chaneys’ lawyer had agreed to the two-surveyor mechanism, and that agreement was binding on the parties.

There may have more to the Court’s repudiation of the Chaneys’ position. The trial judge was clearly a little put off that the Chaneys had told their insurance company that the landslide was caused by rain, thus collecting a cool $200,000 for the damage. (The Chaneys had had quite the living room) Now, the Chaneys were saying that the mudslide resulted the Wilsons’ alleged tree cutting. The shifting story didn’t especially smack of sincerity.

Most people see a mudslide as a disaster ... the Chaneys saw it as a ticket to Easy Street.

Most people see a mudslide as a disaster … the Chaneys saw it as a ticket to Easy Street.

It is considered poor form to try to collect twice.

Chaney v. Wilson, Not Reported in S.W.3d, 2007 WL 2019673 (Ct.App. Ky., July 13, 2007). Philip and Michaelynn Wilson owned property adjacent to David Chaney’s property in Maysville, Kentucky. The Chaneys lived at the bottom of a steep hill near the banks of the Ohio River. The Wilsons lived at the top of the hill, overlooking the river.

The Chaneys charged that the Wilsons caused timber to be cut and removed from the Chaneys’ property, and that such actions caused the removal of lateral and subjacent support, either causing or aggravating a landslide that damaged their property. At the behest of the trial court, two surveyors surveyed and agreed on boundary line between the parcels. The surveyors also concluded that any trees that had been cut were in fact on the Wilsons’ property.

The Chaneys may have been perfectly honest with the insurance company ... but if they were, it meant they were trying to snooker the court.

The Chaneys may have been perfectly honest with the insurance company … but if they were, it meant they were trying to snooker the court.

The trial court entered a final order, incorporating by reference the surveyors’ agreed description as the disputed boundary line and granting the Wilsons’ motion for summary judgment. Regarding the Chaneys’ claim that some 400 trees had been cut, the trial court found that the physical evidence on the site did not support the allegation, and, “based upon the boundary line as agreed and established by the parties two independent surveyors, any minimal cutting of trees occurred on the defendant’s side of the established boundary line, effectively negating any claims of improper ‘cutting of timber’ as alleged in the Complaint.”

The court also took judicial notice of a separate legal proceeding filed by the Chaneys against their insurance company in which they also alleged that their home was damaged by a landslide in March 1997 – nine months before the Wilsons cut down any trees –which had been triggered by heavy rains. The Chaneys had received a settlement of $200,000 from their insurer for the landslide damage.

The trial court dismissed the Chaneys’ complaint. An appeal followed.

Held: The summary judgment was upheld. On appeal, the Chaneys — who had lost their attorney during the proceedings — only made one argument, that they did not authorize counsel to agree to the surveyors’ collaborating on the legal description of the disputed boundary line. But the Court held that while an attorney cannot substantively settle a case without his client’s express authority, a party is nonetheless bound by the procedural agreements and stipulations of its attorney in the conduct of the litigation for which that attorney was hired. The agreement entered to have the surveyors conduct a joint survey was such a procedural agreement, and was within the attorney’s authority.

What’s more, the Chaneys never complained in the trial court that their attorney lacked the authority to make the agreement. The Court noted that an issue not timely presented to the trial court may not be considered for the first time on appeal.

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Case of the Day – Monday, May 18, 2015

DRIVE-BY INSPECTIONS, FEDERAL STYLE

Delaware Water Gap National Park

Delaware Water Gap National Park

Ms. Merando and a friend had been enjoying the scenery of Delaware Water Gap National Park – a beautiful place – one summer day, when a tree (which had previously been topped) fell from an embankment and crushed the car, killing Ms. Merando and her young daughter, Kaylyn.

It was a tragedy, and sometimes tragedies drive the bereaved to push harder than makes sense. That happened here, where Ms. Merando’s husband sued the National Park Service for not having removed this topped tree before it fell. The tree was a disaster waiting to happen, a dead, previously-butchered hulk leaning over the road like an ogre waiting to pounce.

A legal tradition – dating back to the days of knights and knaves and peasants and ogres – holds that no one may sue the king without the king’s permission. The doctrine is known as “Sovereign Immunity.” To address the unfairness of this rule, the U.S. government and virtually all states have passed tort claim acts, which give permission in certain circumstances to sue the sovereign (here, the sovereign is an Uncle named Sam, not a King or Queen).

The federal statute is called the Federal Tort Claims Act. Under the Federal Tort Claims Act, an individual may sue the government in some cases but not others. There are limitations. One of those limitations is that you can’t sue the government if it failed to perform a discretionary act. Whether hazard tree removal is a discretionary function is at the heart of this case.

The Court of Appeals upheld the lower court, dismissing Mr. Merando’s case. The National Park Service, it appears, had written guidelines that essentially directed every park to adopt a hazard tree removal policy that makes sense for the individual park. The result is a patchwork of unwritten policies. That sounds like a prescription for chaos.

Actually, it’s a prescription to avoid liability. If the Service had a written hazard tree removal policy and the local rangers hadn’t adhered to it with the tree in questions, then liability on the part of the government would be pretty clear. But, as some sharp National Park Service lawyer undoubtedly figured out — and yes, even Smokey the Bear has his own mouthpiece — if you don’t write it down, it’s that much harder for a plaintiff to prove that you failed to follow it.

The Delaware Water Gap National Park had a rather amorphous “drive-by” inspection policy, and Mr. Merando was unable to demonstrate that anyone had violated it. The lesson seems to be that “the less you do, the safer you are.”

Some hazard trees are easier to spot than others ...

Some hazard trees are easier to spot than others …

Merando v. U.S., 517 F.3d 160 (3rd Cir., 2008). Janine Noyes, Kathleen Merando and Kathleen’ daughter, Kaylyn, were sightseeing in Delaware Water Gap National Recreation Area. While traveling in Ms. Noyes’s car along the New Jersey side of the Park, a large dead oak tree fell from an embankment and crushed the vehicle. Mrs. Merando and her daughter were killed instantly. The tree was approximately 27 feet in length, and had been had “topped” and delimbed, leaving it standing in a “Y” shape with no bark or branches and with the dead tree pole leaning toward the roadway.

The 63,000-acre Park lies along four miles of the Delaware River in Pennsylvania and New Jersey. It is mainly forested land, and is accessed by approximately 169 miles of roadways, 68 miles of trails, and several streams. As with other national parks throughout the country, the National Park Service, an agency within the U.S. Department of the Interior, is responsible for maintaining the Park, including the area where the accident in question occurred. The Government took title to the land where the oak tree was situated in 1969 and to the roadway itself in 1996.

Plaintiff, as administrator of the estates of Ms. Merando and her daughter, sued the Government for negligence, alleging that the Government negligently pruned the tree causing it to die and eventually collapse, and that the tree constituted a hazardous and extremely dangerous condition of which the Government knew or should have known and that it negligently failed to act to remove the tree. The Government moved to dismiss the complaint on the basis of the discretionary function exception to the Federal Tort Claims Act (“FTCA”). The Government also argued that the New Jersey Landowners Liability Act barred the action. The trial court dismissed on the basis that the FTCA stripped the court of jurisdiction to hear the case. Mr. Merando appealed.

Held:  The district court’s dismissal was affirmed. The federal, as a sovereign, is immune from suit unless it consents to be sued. That consent, and the extent of the consent, is set out in the Federal Tort Claims Act, and it is a plaintiff’ burden to prove that the FTCA has waived the immunity. Generally, the government is immune from a suit claiming negligence in the discharge of a discretionary function.

car150518The purpose of the discretionary function exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. In determining whether the discretionary function exception applies in any particular case, a court must first determine whether the act giving rise to the alleged injury involves an element of judgment or choice. The requirement of judgment or choice is not satisfied if the law, a regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive. – But even if the challenged government conduct involves an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The focus of the inquiry is on the nature of the actions taken and on whether they are susceptible to policy analysis.

In this case, determining whether the discretionary function exception applied to a tort action arising when the dead tree fell on the passing car, the relevant conduct was not the National Park Service’s alleged violation of its mandatory policy not to “top” trees, because there was no evidence that the Government was involved in or consent to the topping of the tree. Instead, the relevant conduct was the Service’s decisions that comprised its hazardous tree management plan and its execution of that plan. The issue was whether the controlling statutes, regulations, and administrative policies required the Park Service to locate and manage hazardous trees in any specific manner. The Court concluded that the Service’s unwritten tree management plan did not mandate any particular methods of hazardous tree management, and its choice to use “windshield inspections” in low usage areas of the park was a discretionary decision — driven by limited resources — not to individually inspect every potentially hazardous tree in the park.

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Case of the Day – Friday, May 15, 2015

NOT A HAPPY BUNCH AT ALL

This bunch is pretty happy ... The Wongs?  Not so much.

This bunch is pretty happy … The Wongs? Not so much.

The Wong family, through their company Happy Bunch, LLC, was quite happy indeed with the nice piece of property the family occupied. The Wongs especially liked the 10 trees that lined one boundary. They had planted and nurtured them for 20 years or so, and the trees had gotten big enough that eight of them actually straddled the boundary line with their neighbor.

But what a hot dog the neighbor turned out to be! Grandview North was a developer, and planned a Wienerschnitzel franchise on the lot next door. The City required that Grandview add about four feet of fill to the lot, and Grandview was afraid the Wongs’ boundary trees would get in the way. Grandview had a survey done, and the company knew the trees were on the boundary line, with most of the trunks on the Happy Bunch land (two were entirely on the Happy Bunch side of the boundary). So what? After finding itself unsuccessful at getting Mr. Wong to consent to the trees being cut down, Grandview made its view grander by taking out the trees itself.  Mr. Wong was done wrong …wdog

Happy Bunch sued. The trial court ruled that Grandview owed $32,000 or so for the trespass to timber, but it refused to impose statutory treble damages, finding them not applicable to boundary trees.

The Court of Appeals, in a case of first impression, disagreed. It ruled that boundary trees in Washington State are owned by both landowners as common property, and neither may cut them down without the consent of the other. The Court ruled that damages when a boundary tree is cut down is the replacement value of the tree, apportioned by the percentage of the trunk on the injured landowner’s property, a method that strikes us as rather artificial and likely to undervalue the tree to the injured property owner. What, Happy Bunch gets half a tree back? There was a little justice, however: the Court of Appeals ruled that the treble damage statute for trespass to timber applied to boundary trees as well as other trees.

Happy Bunch, LLC v. Grandview North, LLC, 173 P.3d 959 (Wash.App. Div. 1, 2007). The Wong family owned land through its limited liability company, Happy Bunch LLC. Grandview, was a property development company that purchased a parcel of property next door the Happy Bunch property to build a Wienerschnitzel drive-through restaurant. The City of Mount Vernon required that four feet of fill be placed on the Grandview property as part of the planned development.

cutdownTwelve mature trees stood either on or near the boundary line between the Happy Bunch and Grandview properties. Some portion of the trunks of 10 of the trees — all originally planted by the Wongs some years before — extended from the Happy Bunch property onto the Grandview property. Grandview believed it couldn’t meet the city’s fill requirement without putting a retaining wall on the Happy Bunch/Grandview property line. Because the roots and trunks of the trees extended onto Grandview’s property, Grandview believed that they would interfere with the construction of the retaining wall and decided to move them, even though Grandview knew a survey showed the trees’ true location on the property line.

The Happy Bunch was not happy, not agreeing with the plan, and found through its own survey that the trees were either on the boundary line or entirely on the Happy Bunch land. Despite Happy Bunch’s opposition, Grandview cut down all ten trees. Happy Bunch sued, claiming that it had acquired title to the land under and around the trees by adverse possession due to the Wongs’ maintenance of the trees and surrounding area. It also sought damages for both the value of the cut trees and the estimated $15,065 cost of digging up the trees’ root systems and repairing damage to the Wongs’ driveway likely to be sustained as a result. Happy Bunch also requested that the entire award be trebled pursuant to Washington law because of Section 64.12.030 of the Revised Code of Washington, the state’s timber trespass statute, thus seeking a total damage award of $168,294.

wienerschnThe trial court ruled that Grandview committed timber trespass by cutting the trees on the Wong/Grandview property line. The trial court took the damage figure to the trees of $40,033, and multiplied it by the percentage of the cut trees that had been growing on Happy Bunch’s property, resulting in damages of $32,519.22 to Happy Bunch on its timber trespass claim, as well as $2,500 for the cost of grinding out the remainder of the stumps. The court denied the damages of $15,065 for completely removing the trees’ root systems and repairing the resulting damage. Finally, the trial court ruled that Happy Bunch was not entitled to treble damages as provided by the timber trespass statute “[b]ecause the trees that were cut straddled the common property line.”

Happy Bunch, LLC appealed.

Held: Judgment was reversed on most counts. The Court of Appeals concluded that Happy Bunch was only entitled to recover damages for injury to those portions of the trees growing on its land. However, the Court found that RCW §64.12.030’s treble damages provision did apply.

In most jurisdictions, a tree standing on a common property line is considered the property of both landowners as tenants in common. Although Happy Bunch admitted that courts commonly calculate damages based on the value of each cut tree, apportioned according to the percentage of the tree that was located on the injured landowner’s property, it contended that the proper approach here was the one applied in the Colorado case, Rhodig v Keck. Rhodig held that absent a showing of an agreement to the contrary, a boundary line tree belongs entirely to the party on whose land the tree was originally planted, with damages calculated accordingly.

The Court of Appeals rejected Rhodig, holding that adoption of its rule would enable Washington landowners to effect boundary line adjustments with trees, creating “an entirely new theory of adverse possession without a basis in either the statutory or common law of this state.” The Court said the Rhodig holding would mean that Happy Bunch acquired title to the land under the trees simply because had once had planted the trees. Therefore, the Court held, a tree standing directly upon the line between adjoining owners so that the line passes through it is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other. Grandview had an interest in the trees proportionate to the percentage of their trunks growing on Grandview’s property, and thus, the trial court correctly awarded Happy Bunch only that portion of the trees’ value reflecting Happy Bunch’s property interest in them.

Happy Bunch contended that an award of treble damages was mandatory pursuant to RCW §64.12.030, unless Grandview proved one of the mitigating factors listed in the statute. The Court agreed, holding that the trespasser must allege and prove mitigation, and absent such a showing, treble damages will be imposed. The Court rejected Grandview’s argument that it believed it had a right to remove the trees, noting that Grandview possessed a survey that indicated that the majority of the trees were predominantly located on Happy Bunch’s property, and that at least two of the trees were not located on Grandview’s property at all. The Court said that where a person has been given notice that another has an ownership interest in trees, and the person nonetheless cuts them down, the actor will be liable for treble damages under the statute. Both the punitive and compensatory policies underlying the statute are implicated with respect to boundary line trees, the Court reasoned, and for that reason, the statute must be applied.

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