Case of the Day – Friday, February 5, 2016


intent160205Intentional grounding? You can bet that was the call after Mr. and Mrs. Peters bought a lot next to the Kriegs.

The Peters didn’t know where the lot lines were. Their real estate agent didn’t, either. Ah, details, details … That didn’t stop them from hacking down trees on the property as soon as the ink was dry on the deed, in order to build their dream house. You probably know where this is going. Harry Peters, acting as his own tree service, goofed, and cut down 29 trees on the Kriegs’ land.

The Peters admitted their honest error. OK, they intended to ground the trees. They just didn’t know that the trees they grounded were the Kriegs’. They were willing to pay for the mistake. But what they were not willing to do was pay the treble damages authorized in the law for wrongful timber cutting.

It was sort of like the intentional grounding foul in football. It’s one thing to get assessed a 10-yard penalty. But on top of that, the team loses the down. Sort of like the double whammy (or triple, if you like) of the statutory multiplier for wrongfully cutting trees.

BMarker140130 C’mon, the Peterses said, there wasn’t any evidence they knew they were cutting Kriegs’ trees. The Court pointed out that the state of the evidence was precisely the problem. It was up to the Peterses to provethat they thought the land was theirs. The wife’s testimony was all they had offered, and it didn’t help: she explained they didn’t really know where the boundaries were, and never bothered to find out. But the biggest problem was what Mr. Peters testified to: nothing. He was the one who cut the trees down, and the Court seemed to expect that he would have material testimony to offer. But he didn’t testify.

Ch 1 Art.xlsThere’s a well-known principle in evidence known generally as the “missing witness instruction.” It holds, as the legendary Professor Wigmore put it, that “the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” In other words, if you have particular control of evidence, and you do not bring it forward, a court is allowed to assume it would have been harmful to your cause if you had done so.

The Court didn’t say it here, but it strongly implied that the absence of testimony from Harry Peters led it to conclude that if he had taken the stand, he wouldn’t have helped his cause any.

Krieg v. Peters, 46 A.D.3d 1190, 850 N.Y.S.2d 211 (N.Y.A.D. 3 Dept., 2007). In May 2004, the parties became adjoining property owners when the Peters family purchased the vacant lot next to the Kriegs. The Peterses intended to construct a house on their property, so Mr. Peters began clearing land without consulting the map referenced in their deed or having a survey conducted. He removed 29 trees from Krieg’s property. Following a jury trial, the Kriegs were awarded damages, including treble damages under New York statute for the removal of this timber. On appeal, the Peterses only contest the treble damages award.

The Daviess County High School (Owensboro, Kentucky) Panthers - a hardy bunch, but they're idle this Sunday, too ...

    The Daviess County High School (Owensboro, Kentucky) Panthers – a hardy bunch, but they’re idle this Sunday, too

Held: The treble damages were upheld. Under RPAPL §861[2], the New York treble damage statute, in order to avoid treble damages, the Peterses had the burden of proving by clear and convincing evidence that when they removed the trees from the Kriegs’ property, they “had cause to believe the land was [their] own.” Their proof in this regard was woefully inadequate. Mrs. Peters was the only defense witness to testify on this critical issue, and the appellate court found that her testimony had been more damning than helpful in sustaining their burden. She said that, before she and her husband purchased the property, she walked it on one occasion with their realtor. At that time, she specifically asked about the boundary lines but the realtor couldn’t answer her question with any certainty. She said she told her husband of the realtor’s uncertainty when they later walked the property together. She also candidly admitted that no steps were taken to obtain a survey or consult the map referenced in their deed before clearing the land. The Court found it significant that, although he had logged the property, Mr. Peters never testified. It found plenty of evidence that the defendants had no cause to know whether the land Mr. Peters was logging belonged to them or not.

The Peterses also argued that the legislature never intended for RPAPL §861 to apply to individuals such as themselves who make “honest” mistakes about boundary lines. The Court disagreed, holding that on its face, the statutory scheme clearly applied to the facts and circumstances of the case and, in the absence of sufficient proof on defendants’ part to avoid treble damages, it didn’t find the treble damage award to be inconsistent with the law’s purpose or intent.



And Now The News …



lonetree160205New London, Connecticut, The Day, February 4, 2016: Residents band together to save Gales Ferry tree

On the day before Thanksgiving, Bill Edwards was walking his dog near the Gales Ferry Library in Ledyard when he saw a crew of public works employees preparing to work on the Norwegian spruce near the library’s entrance.  A photographer, Edwards passed the tree every day, and considered it one of the most important aesthetic features of the village. The spruce is one of several older spruces along Hurlbutt Road in Gales Ferry. “It’s a big part of the character of the library … the tree was an environmental and aesthetic asset to the village,” Edwards said. “I thought they were going to decorate for Christmas.” He was appalled to find that instead the town had plans to cut the tree down that morning …

Boise, Idaho, KTVB-TV, February 4, 2016: Looking for a Christmas Tree…10 months early

Even though we are still many months from Christmas, the season is already on the minds of those around McCall. That’s because the next Capitol Christmas tree will come from the Payette National Forest. It’s not unusual to find smoke-jumpers in the middle of a tree covered mountain just not in the middle of winter or on top of several feet of snow. But Chris Niccoli and Jared Schuster are on a different type of detail. Because they are tasked with finding a tree which, out here, might seem like finding a needle in a haystack. “It’s not exactly like finding a needle in a haystack. Seems like it’s like that though,” says Niccoli. And they’re not looking for just any tree. They are hoping to find “the” tree…that will adorn the U.S. Capitol this Christmas …

trimmer160205San Diego, California, KSWB-TV, February 4, 2016: Tree trimmer rescued after getting trapped in palm

A tree trimmer was recovering Thursday from minor injuries suffered when he was pinned beneath dead palm fronds about 20 feet up a tree in Encinitas. Crews from the Encinitas, Carlsbad and Solana Beach fire departments sent to the 1400 block of Eolus Avenue near Glaucus Street shortly after 11 a.m. Wednesday found the man trapped under a heavy pile of fronds and unable to move, according to Battalion Chief Robert Ford of the Encinitas Fire Department. Rescuers used a ladder truck to access the victim and removed the fronds. Ford said the tree trimmer was tied to the palm with his safety belt at the time and was awake and alert …

Columbus, Nebraska, Telegram, February 4, 2016: Snow removal, tree care after major storm

The safest way to remove snow or ice from trees and shrubs is to let it melt naturally. Do not hit branches to try and knock snow or ice off. This is unsafe and may result in increased branch breakage. It can also cause branch cracks that may not be noticed, but could result in branch failure in a subsequent storm. If there is concern about branches breaking, newly fallen snow can be carefully swept from branches using gentle upward strokes with a broom. Before removing snow, observe branches for signs of cracks or breaks to avoid injury if an overhead branch would fail. Remove just enough snow to decrease the load, allowing the rest to melt naturally. Because of increased surface area of evergreen foliage and branch structure, conifers catch more snow and are more easily weighted down …

Troy, Michigan, Troy Times, February 4, 2016: Developer gets in under the wire before new tree guidelines

Mondrian Properties, which has clear-cut numerous sites to build homes, must wait for the go-ahead on a new site plan for 28 detached condominiums, called “Willowbrook,” on 10 acres on the east side of John R Road, south of Wattles Road, as proposed at the Jan. 26 Troy Planning Commission meeting. Nathan Robinson, of Horizon Engineering, a representative for Mondrian, said the wetlands would be filled in, an existing detention basin on the site would be used, and most of the 400 trees tagged on the property would be clear-cut, leaving some trees along the northern and eastern property line as a buffer for the adjacent single-family homes. About half of the trees on the property are prohibited species to plant in the city, including box elder, poplar and elm. Most of the nonprohibited species are maple. The City Council is scheduled to consider a woodland ordinance Feb. 8. If approved, the new guidelines would take effect 10 days after that. The regulations will not apply to single-family homes, only developments requiring site plan approval …


interestree160204Biloxi, Mississippi, Sun Herald, February 3, 2016: ‘Most interesting looking tree in Ocean Springs’ saved; leaning tree cut

City leaders considered the fate of two old trees Tuesday night, and decided one will be saved, the other cut. A 150-year-old cedar on Jackson Avenue with a gnarly trunk will be saved but the leaning Live oak on Lover’s Lane will be cut despite pleas to save it. Both trees have the support of their neighborhoods, because people say they enhance the quality of life. A city-hired arborist gave the old cedar a thumbs up and aldermen decided to follow his recommendation to save it. After the vote, Alderman Jerry Dalgo said, “It is one of most interesting looking trees in Ocean Springs. I wouldn’t want anyone to alter it.” Arborist Ben Kahlmus said the cedar “is a very unique tree . It is obvious this tree has withstood a beating over the years.” He said it has character. Its wounds have started to heal, he said, “which is a good sign. This means the tree still has vigor, and is trying to bounce back.” Kahlmus gave the city a list of recommendations to help it thrive, including pruning, termite protection and aerating the roots …

Piqua, Ohio, Daily Call, February 3, 2016: City’s winter tree removal in full swing

During the winter months, the city of Troy park staff addresses the city’s diseased and damaged trees that need to be removed before spring. On Tuesday, city of Troy’s Park Superintendent Jeremy Drake, a certified arborist, advised the board that the park department is currently in their winter tree removal program and addressed a recent complaint. Drake said residents are always notified by letter before a tree is removed. Drake reported he had one resident complain on social media after a tree was removed from the curb lawn in front of a home on East Main Street last month. “I just want to reiterate to the board and to our citizens that I put letters out to the homeowners before trees are removed,” Drake said. “We don’t take trees out that don’t need to come out.” Drake said the letter states why they believe the tree needs to be removed and includes how to contact the park department for more information about a tagged tree. A tree is often removed 24 hours after the letter is left at the residence. Trees removed from the curb lawn are in the city’s right-of-way, therefore, the parks department removes the tree and stump at no charge …

help160204Spokane, Washington, Spokesman-Review, February 3, 2016: Tree company helps Spokane Valley woman who couldn’t afford to clear windstorm debris

It has been a tough winter for Sherry Jarvis. During the November windstorm a tall fir fell on her modest house near Fifth Avenue and Carnahan Road in Spokane Valley. And then in January, her husband, Robert Jarvis, died. “It’s just been a lot for us,” Jarvis said over the roar of a wood chipper chewing up branches from the fallen tree this week. Jarvis had no homeowners insurance and no money to pay for tree removal. “I just got used to seeing it on the house, I guess,” Jarvis said. Disabled and retired, she lives on her own now and relies on her son and daughter-in-law to help when needed. On Sunday, she got some extra help when Ray McElfish Tree Specialists donated time and equipment to finally clear the tree off Jarvis’ house. “Someone had to help these people, and no one else wanted to,” said Shannon Sullivan, owner of Ray McElfish Tree Specialists. “We needed a crane but couldn’t get one. We finally just went at it a piece at a time …”

Utica, New York, WKTV-TV, February 3, 2016: Salisbury man pinned under tree during logging accident

State Police responded to a logging accident in the Town of Salisbury. On February 2, 2016, at approximately 5:34 p.m., State Police patrols from Herkimer and the Salisbury Fire Department were dispatched to 355 Perkins Mill Road in the Town of Salisbury for a report of a logging accident. Authorities learned the victim was 1.4 miles northeast of the residence off a logging trail inaccessible by motorized vehicles. The victim, 58 year-old, Rodney Congdon of Salisbury, was in the woods cutting trees by himself when a large tree fell on his back and legs pinning him to the ground. The tree was removed from Congdon prior to arrival of emergency personnel. Congdon was stabilized by members of the Salisbury Fire Department and S&S Ambulance EMS. He was then carried out of the woods by the Salisbury Fire Department and the New York State Police …

Los Angeles, California, KABC-TV, February 3, 2016: Massive tree uproots, branch cracks wall of home in Hancock park

A large tree uprooted and came crashing down in front of a Hancock Park home Tuesday night. The incident happened in the 500 block of N. Cahuenga Boulevard in the evening hours. The large tree landed close to a sidewalk. One branch cracked a wall inside the home. No one was injured, but the homeowner was sitting on their sofa when the tree fell. There was no word on what caused the tree to fall over …


fallen160203New York City, Daily News, February 2, 2016: San Diego musician dies en route to a gig after tree downed by El Niño winds crushes her car

A well-known musician who “gave the gift of music” was identified as the woman killed Sunday on her way to a gig after a tree fell onto her car due to powerful El Niño winds. Nicki Carano was driving to a performance with her band Spider Tree on Sunday afternoon when a large tree crushed her silver Honda on a residential San Diego street. The giant tree fell across multiple lanes of traffic and had been blown over by a strong gust of wind caused by El Nino. The storm has torn across Southern California causing widespread power outages, numerous downed trees and flooding in drought-stricken regions …

Eau Claire, Wisconsin, WEAU-TV, February 1, 2016: Community petition to save tree

A symbol of Whitehall’s heritage and history is expected to come down after nearly a century. That symbol is a 103 year old Norwegian Spruce tree that is now considered an obstruction to a railroad project. The spruce, also known as Whitehall’s city Christmas tree is expected to come down within the month, that’s according to the Office of the Commissioner of Railroads. But numerous people in the city are trying to save the tree they have grown to love. Mary Richter, organizer of the “Save Our Tree” petition says the Department of Transportation along with the Office of the Commissioner of Railroads decided the tree was an obstruction to motorists and stood in the way of a new rail crossing update. “They sent out a proposed decision that the tree be removed and then we in turn did an appeal,” says Richter. State statutes call for an unobstructed view of rail crossings 330 feet from the center of an intersection. With a highway update on the way this summer, the DOT says the tree needs to be taken out because of obstructed views to drivers

pond160203Albuquerque, New Mexico, Journal, February 2, 2016: ‘Tree guy’ true to his roots but not too sappy

Bryan Suhr feels so passionate about trees, he worries about getting carried away when he talks about them. He doesn’t want to sound, you know, “too touchy-feely.” “Arborists are supposed to have tough bark,” he insisted during a recent interview. “I don’t hug trees, but I do value them.” As the University of New Mexico’s supervisor of arboriculture – he prefers the title “tree guy” – Suhr is responsible for the care of about 5,000 campus trees, 800 of which he has planted during his 20 years at the university. He and his crew prune campus trees, remove them when necessary and deal with insects and diseases that harm them. Suhr’s roots are in the tree business. His late father, Walter, owned and operated Walter Suhr Tree Service in Albuquerque

San Diego, California, KNSD-TV, February 2, 2016: Who is responsible for fallen tree? County and residents debate

Residents in the East County are furious that San Diego County will not remove a toppled tree blocking their neighborhood’s road. Sunday’s fierce winds uprooted a huge tree and pushed it onto Silverbrook Drive in Harbison Canyon. Small cars are able to drive under it and people can walk around it, but the gap between the road and the tree will not fit vehicles like ambulances or fire engines. Houses sit another quarter mile beyond the tree, and residents there have no other road to get out. Homeowners began calling the county Monday to get the barrier removed. They were told the tree is on private property. “Silverbrook Drive is partially a public road and segments where the asphalt ends, and it’s a privately owned road,” said Alex Bell, the county’s Public Works spokesperson …

Coventry, UK, Telegraph, February 2, 2016: Tree surgery could be forced to fold after burglars stole 200 tools

Thieves stole £60,000 worth of tools and equipment – all engraved with cartoon character names from a family-run tree surgery business. The Oaklands Group, in Catherine-de-Barnes, could be forced to fold after 200 items were stolen, all carrying famous toon names including Mickey Mouse, Daffy Duck and Tweety Pie. Owner Gavin Bassford says thieves struck at the firm’s premises in Greswolde Road on Monday. Raiders had also previously targeted the business in October. In total, a huge haul of tools and equipment has been stolen, including lawnmowers, chainsaws and hedge-cutters. “We’ve been wiped out,” said Mr Bassford, who has been running the business for ten years with his brother and sister …


fallen160202Charleston, South Carolina, Post & Courier, February 1, 2016: Tree cutting near Park Circle prompts uproar, city responds

A big oak tree being cut down Sunday night near Park Circle put some North Charleston residents on the warpath. Several trees are being removed by Delpino Custom Homes to make way for new houses on Rugheimer Avenue near Mosstree Road. It’s part of the revitalization of neighborhoods around Park Circle, North Charleston’s historic center, said builder Nathan Delpino. Delpino said he was “disappointed” to hear that residents were complaining and no one contracted him directly. Instead, some residents posted on social media Sunday that they’re concerned because the grand old trees are one of the reasons they moved there in the first place. Around 8:30 p.m., residents were posting Facebook messages that a crew was cutting down a “very big, very old oak tree” and “this has happened over and over again on our street …”

Los Angeles, California, Times, February 1, 2016: Fatality from falling tree in El Niño storm called ‘unimaginable’

Southern California was cleaning up Monday after El Niño-driven winds caused damage, power outages and the death of one person. Wind gusts of more than 100 mph were clocked in several places in Los Angeles County on Sunday, leaving thousands without power and blocking roads with debris. The winds were strong enough to uproot an 80-foot-tall tree in in San Diego’s Pacific Beach neighborhood that crushed three parked cars and one passing by on Ingraham Street near Fortuna Avenue, fatally injuring a person in the moving car. San Diego Fire-Rescue Department Capt. Joe Amador called the incident “unimaginable,” noting that the car could have easily missed the falling tree. “Even five seconds one way or the other and this wouldn’t have happened,” Amador said. “Our thoughts and hearts are with the family. We’re in the life-saving business and it’s hard when it doesn’t turn out that way …”

unauth160202Portland, Oregon, Tribune, February 1, 2016: Former county commissioner, state legislator apologizes for unauthorized tree cutting

A former state legislator will face criminal charges after hiring a contractor who caused an estimated $237,400 in damage to an Oregon City park. Ed Lindquist, who also is a former Clackamas County commissioner and firefighter, faces charges of first-degree criminal mischief and second-degree trespassing for topping trees, according to his criminal defense attorney, Bruce Shepley. Given the extent of the damages to city property, Lindquist has gotten a competing arborist’s report that estimates only $21,375 in damage. The pending charges have maximum sentences of five years prison time for the criminal mischief and 30 days for the trespassing. Under Oregon’s timber-trespass law, Lindquist, 77, could be subject to triple damages for a civil case resulting from the charges, once the criminal case is complete. Lindquist’s attorney hopes to reach a settlement with the city that would be closer to $20,000 than $200,000, and with no timber-trespass damages that could send the total bill above $600,000, with the higher damage estimate. “My client is acknowledging that he made a mistake,” Shepley said. “He intended to help the city with Waterboard Park, but he did so without permission from the property’s owner, the city of Oregon City …”, February 1, 2o16: Trees in the forest are social beings

From counting and learning to communicating and caring for each other, the secret lives of trees is wildly deep and complex. “They can count, learn and remember; nurse sick neighbors; warn each other of danger by sending electrical signals across a fungal network known as the ‘Wood Wide Web’ – and, for reasons unknown, keep the ancient stumps of long-felled companions alive for centuries by feeding them a sugar solution through their roots.” These are just a few of the secrets that Peter Wohlleben, a German forest ranger and best-selling author, has learned about trees. Upon coming across a duo of soaring beeches in the forest, Wohlleben observes: “These trees are friends. You see how the thick branches point away from each other? That’s so they don’t block their buddy’s light. Sometimes,” he adds, “pairs like this are so interconnected at the roots that when one tree dies, the other one dies, too …”

Billings, Montana, Gazette, February 1, 2016: Tree cutting along Stillwater County road raises hackles

As far as Jerry Dell is concerned, the issue has been “hashed out.” When contacted Friday the Stillwater County commissioner refused to discuss an ongoing dispute between the commission and some residents over tree cutting along a rural road. “I’m not going to comment any more,” he said. Some of the residents said they felt like their comments — as well as a petition signed by more than 30 locals — have never been heard. They also said they were upset that they were never informed prior to the tree clearing along Fiddler Creek Road — which in spots extends 150 feet from the road, according to one resident’s account. “It was really beautiful when you would drive up that tree-lined hill and it would open up to the valley, and now it’s gone,” said Dan Burkhart, who drove the Fiddler Creek Road for 15 years. The gravel road connects the routes to West Rosebud and Nye at the base of the Beartooth Mountains. The county had planned to clear trees in the same manner along the West Rosebud Road, a popular route to Mystic Lake and entry point to the Custer Gallatin National Forest and Absaroka-Beartooth Wilderness Area. But with the clamor of dissent the county has, for now anyway, stalled the project. “We haven’t lost hope, but we don’t feel like we’re getting anywhere,” said Virginia Cross, who has lived along the West Rosebud Road for five years …


treetoss160201Springfield, Missouri, KOLR-TV, January 31, 2016: Man puts downed trees into food production

The windstorm a couple of months ago had many of you wondering what to do with the downed trees in your yard. Well there’s a guy who says he may have a solution for you. Josh Yake said, “The big rounds here – I need them to be about eight or 10 inches.” One’s man trash left behind by Mother Nature is another man’s treasure. Yake said, “A few days after the windstorm ended – when there were all the trees down – I knew I could put these trees into food production. I just keep collecting, collecting, collecting.” Yake makes a side-living foraging wild mushrooms and selling them at Farmer’s Markets… Yake said, “You cook them up! But honestly the variety I’ll be looking at growing are some of the more exotic ones you would usually only find in the wild – like chicken of the woods, and it tastes like chicken.” The mushrooms only grow in trees …

Wrentham, Massachusetts, Associated Press, January 31, 2016: Nun helps rescue man pinned under tree in Massachusetts

A 74-year-old man who was pinned underneath a tree in Massachusetts was rescued with the help of a nun. Police say they received a call around 4 p.m. Saturday from a nun reporting that a man was yelling for help in the woods near Mount Saint Mary’s Abbey. The abbey in Wrentham is near the Rhode Island border and is home to an order of nuns best known for making Trappistine Quality Candy. Police found Douglas Goldman in the woods not far from his home. He told police he was cutting down a tree with a chainsaw when the tree fell on his leg …

fungus160301Montreal, Quebec, CBC, January 31, 2016: First pan-American tree toss competition lands in Montreal

An old and obscure Germanic tradition has made a comeback in Montreal. The city hosted the first pan-American tree toss competition on Saturday in Old Montreal, challenging locals and visitors alike to fling the farthest fir. The competition was presented by Igloofest and Sapin MTL, a company that delivers and recycles Christmas trees. Participants paid $10 to throw a tree. The money will go to the 375,000 Trees for Earth Day Quebec program, an initiative to plant 375,000 trees in the Montreal area as part of the city’s 375th anniversary celebrations …

4 Traders, January 31, 2016: Duke Energy: EDITORIAL: Reining in tree trimming

When ice built up on tree limbs throughout central and eastern North Carolina in last weekend’s storms, hundreds of thousands of Tar Heels lost power and many hundreds of thousands more watched power lines anxiously and stocked up on candles and batteries, just in case. The Durham area was relatively lightly affected, although we’ve had our share of massive, weather-inflicted power outages in the past. We mention that because limbs breaking off under the weight of ice or trees toppled by wind, their root systems often loosened by sodden soil, are nightmares for power customers and companies alike. At the same time, power companies’ efforts to keep lines as free as possible from threatening trees and limbs engender a tension with residents that probably has been going on since the first power lines were strung along city streets. Even absent stormy weather, Duke Energy notes on its website “Frequently Asked Questions” about tree trimming, trees can grow into electrical equipment and disrupt service …

Aiken, South Carolina, Standard, January 31, 2016: MYSTERY PLANT: This tree was prized for its resin

Before the onslaught of Western culture in the Southeast, there existed stunning forests of a particular pine, a pine that towered well over 100 feet high, with trunks 7 feet in diameter. They were true southern giants. Try as you might, you will not happen upon such a scene now: groves of these, thick within the sandhills, as far as the eye can see. This pine is not confused (or at least shouldn’t be) with any other tree. The combination of long, flexuous needles (in threes), whitened-silvery buds and large cones make it distinctive in the Southeast. Its natural reproduction and growth is tied closely to periodic fires, which provide a sandy surface on which the seeds can sprout. No fire, no reproduction. It is endemic to the Southeast, historically occurring on millions of acres in its original distribution on the coastal plain from southeastern Virginia down to central Florida, and west to eastern Texas. We moderns can scarcely imagine what it must have been like to walk through an original, old-growth, undisturbed forest dominated by this pine. My attempt would involve standing there next to one of the craggy giants on a sandhill ridge, listening to the constant whistle and moan of the needlelike leaves so far above, as well as a low growl from the quiet creaking of the massive trunks …


blight160129Colorado Springs, Colorado, Gazette, January 28, 2016: e tree-killing outbreak is over in Colorado; 2nd still going

The mountain pine beetle epidemic that ravaged Colorado’s lodgepole pines for two decades is over because most of the vulnerable trees are dead, but a second bug that attacks spruce trees is still spreading, forestry experts said Thursday. The experts had good news about Colorado’s beloved aspen trees, which turn mountainsides bright yellow and orange every autumn: They’re generally faring well after suffering worrisome die-offs from drought in previous years. The U.S. Forest Service and Colorado State Forest Service conduct an aerial survey of the state’s trees every year, and the 2015 survey was released Thursday. It showed the mountain pine beetle has returned to pre-epidemic levels after attacking more than 5,300 square miles of forest since 1996, leaving large swaths of forest a dull reddish-brown …

Yakima, Washington, KAPP-TV, January 28, 2016: “Normal” winter weather keeping tree fruits from budding too soon

The weather is good — at least that’s the consensus from growers around our region. Growers say thanks to fortunate conditions their crops are expected to start budding around the end of March and beginning of April. Last year’s light winter and warm spring caused tree fruits to bud weeks in advance, several growers reported lost crop due to the early budding. Growers say they will have a more confident timeframe for their crop around the end of February …

lightning160129CNet, January 28, 2016: See lightning shred unsuspecting tree in display of nature’s wrath

Lightning is faster and stronger than you. It can take out a tree like it’s a matchstick. Cedric Haynes, a weatherman for Texas television station KLTV, gave proof of this phenomenon when he tweeted a fascinating video of lightning smiting a tree. The tree was just standing there minding its own business when the zap came and sheered off chunks of bark and downed massive branches. The strike was bright and sudden. The video comes from a surveillance camera overlooking a parking lot at the Bishop Thomas K. Gorman Catholic School in Tyler, Texas. The incident happened on January 21, and Haynes shared the video on Saturday …

Great Falls, Montana, Tribune, January 28, 2016: Tree pruning is good chore to tackle in the winter

Pruning is one of those lawn and garden chores that is best done even if there’s snow on the ground. Most deciduous trees and shrubs are trimmed in the winter because there is less of a chance of the transmission of diseases, plus it’s simply easier to see the shape and structure if there are no leaves in the way. “I love dormancy pruning,” said Ken Roberts, an experienced arborist and Master Gardener who takes advantage of this season to reshape trees and shrubs for appearance and health. Roberts noted that some species, such as maples, are best done even earlier in the winter season since as soon as they meet the cold requirement for that particular variety, the sap begins to run. This is why it’s common for folks who make maple syrup to begin collecting sap once the days warm above freezing …

talltree160129Bloomington, Indiana, Indiana Public Media, January 28, 2016: 105 Foot Tall Tree Being Removed From Bloomington Park

One of Bloomington’s largest and most historic trees is coming down. City officials Thursday began cutting down the 105 foot tall white oak tree located in Seminary Park. The tree is the largest that the city park system actively manages. It has been a staple of Seminary Park for more than a century, but park construction and severe weather over the last two decades caused damage and decay to the tree that the city said left it beyond repair.“A root rot has occurred on the west side of the tree, and unfortunately, if you look at the base of the tree, we were noticing what we refer to as fungal conks, which is basically a mushroom fungus that is indicative of internal decay of the wood,” says Lee Huss, Urban forester for the city of Bloomington. “Typically when we look at these situations, if we look and see about one-third of the tree has declined, that is normally when we actively think about wanting to remove it …”


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Case of the Day – Thursday, February 4, 2016


Clipping - not the "block in the back kind"

Clipping – not the “block in the back kind”

The penultimate installment in our Super Bowl runup is the old 15-yard standby, clipping. The clipping in today’s case was done not by a offensive player, but rather by an electric utility.

Tree trimming along and under an easement to protect power lines is typically done according to standards set by the North American Electric Reliability Corporation, known as NERC. Standards for tree trimming sound dry to you? Maybe a little looting, people trapped in elevators, and a power outage affecting 50 million people will get your attention. The great blackout of August 2003 had many contributing causes, but it all started when power lines – sagging in the heat of the day and under the load put on the system – became entangled in poorly-trimmed trees.

blackout140131OK, tree trimming is important work. And so it was in Louisiana. It seems that a road was widened, and power lines were relocated as a result. The electric utility came along to clip vegetation along the route, but ran into Mr. James, who objected to the vigorous removal of trees and brush. He kept running the crews off, until the utility sued for a ruling that it had an agreement with the city that superseded Mr. James’ complaints.

That’s where things got interesting. Mr. James and the utility signed an agreement that permitted the utility to trim back to the historical trim limits or to an established limit according to the kind of tree. No sooner was the ink dry but Mr. James argued that the utility had violated the deal. He sought all sorts of damages — even emotional distress — for the alleged violations.

The utility of course loaded up at trial with three of four experts, who carefully showed that the trees were cut back to their historical trim point and no more. The trial court found for the utility. On appeal, the Court agreed that despite all of the tort theories and general complaints alleged by Mr. James, because he had signed the deal with the utility, the only question was whether the deal had been kept. And as for that, the utility’s thundering herd of experts trumped Mr. James’ speculation.

With the new NERC reliability standards requiring more aggressive vegetation management, it is likely that clashes as to the extent to which utilities may trim will be more frequent and substantial. Thus, there are likely to be more Mr. James v. Entergy battles throughout the country.

Entergy Louisiana, Inc. v. James, 974 So.2d 838 (La.App. 2 Cir. 2008). In 1991, Highway 143 — located next to Tupaw Manor Apartments — was widened. Entergy’s distribution lines ran along Highway 143 and, with the widening of the highway, several poles were relocated. Three poles were placed so that the lines crossed the highway diagonally to the southeast corner of the apartment complex. The distribution lines at issue were contained within what Mr. James, the owner of the apartments, characterized as a “green zone” that buffers the apartment complex from the highway traffic, adding to the aesthetic value of the complex.

Tree trimming - boring. Mass panic - not so boring.

Tree trimming – boring. Mass panic – not so boring.

Entergy hired West Tree Service to trim vegetation encroaching on electrical distribution lines, the work to be done in compliance with Entergy’s “Distribution Vegetation Management Line Clearance Specifications” (“Clearance Specifications”) on file with the Louisiana Public Service Commission. During August 2004, another subcontractor sprayed the area with herbicide. Then, West cleared vegetation that had been sprayed and performed additional trimming on Mr. James’ property as per Entergy’s contract. Mr. James objected, but the West crews made several additional attempts to trim vegetation on the property. Unable to obtain consent from Mr. James, Entergy filed a petition asserting that it had an agreement with the city of West Monroe to operate electric facilities within the city and had a right-of-way easement onto Mr. James’ property for maintenance purposes. Mr. James answered and demanded damages in excess of $410,000. He claimed that Entergy engaged in the clear-cutting of trees, harvesting and removing over 200 trees, far in excess of the allowed or agreed upon width of trimming.

Prior to trial, the parties entered into a stipulated declaratory judgment in which they agreed that Entergy has the right to maintain all of its electric distribution lines and poles by trimming any encroaching trees, limbs, shrubs and other vegetation within 10 feet of Entergy’s lines in accordance with modern arboretum standards and as specifically outlined in Entergy’s Clearance Specifications, and as long as Entergy complied in good faith with the vegetation maintenance standards, Mr. James would have no right to prohibit with Entergy’s reasonable and necessary trimming of encroaching trees, limbs, shrubs and other vegetation along its distribution lines.

The Sam Houston Broncos - fearsome (especially with the smoke), but they won't be playing Sunday, either.

     The Sam Houston Broncos – fearsome (especially with the smoke), but they won’t be playing Sunday, either.

The Clearance Specifications provided that all trees at a minimum would be trimmed back to the previous trim point or according to a table, whichever was greater. The table provided that slow growth trees in rural settings would be trimmed to 10 feet and fast growth trees in rural settings would be trimmed to 15 feet. An exception would be made where there was a customer refusal where procedures outlined in the Clearance Specifications have been followed, provided that the exception would not result in unsafe conditions or jeopardize reliability.

Mr. James argued Entergy could only trim to an indefinite width depending on the extent to which it had actually claimed and used a right-of-way in the past or 10 feet under the Clearance Specifications. Mr. James alleged that Entergy exceeded the allowable width, causing damage to the aesthetic value of the “green zone” around the apartment complex. Mr. James filled out a Tree Cutting Refusal Form expressing his objection to having any trees removed, which he contended requires Entergy to then seek a court order to continue trimming. Entergy’s letter to Mr. James noted that the trimming was necessary to ensure safe, reliable electrical service to the area, including the apartment complex.

Entergy sued to get the court order. At trial, Entergy provided detailed testimony regarding the existence of a prior trim point, and that all trimming was within that point. Mr. James provided testimony that there were log trucks being loaded with cut trees coming and going from the property, which was contradicted by West employees. The trial court framed the issue as whether Entergy had complied with its Clearance Specifications in performing the trimming, and found that Mr. James failed to carry his burden of proof and was, therefore, entitled to no damages. He appealed.

Held: Entergy had the right to trim the vegetation. The Court concluded that the stipulated declaratory judgment signed by the parties prior to trial controlled the allowable trimming width of the vegetation on the James property. Thus, the issue was whether Entergy complied with its Clearance Specifications. Entergy produced several qualified witnesses, whose testimony was thoroughly outlined by the trial judge, who found strong evidence of re-sprouts and prior trim points. The Court found no abuse of discretion. Although the Court noted that the Clearance Specifications might, in certain circumstances, lead to unauthorized, increased and unchecked trimming on private property, it concluded that under the specific facts of the case, Mr. James was bound by the stipulated declaratory judgment.


Case of the Day – Wednesday, February 3, 2016


In keeping with our Super Bowl theme, let’s look at the problem of illegal substitution. Here, the substitution had to do with expert witnesses.

It's a trick play!  Interesting in football, less so in the courtroom.

      It’s a trick play! Interesting in football, less so in the courtroom.

Trials aren’t supposed to be conducted by trickeration. Parties have a full chance to engage in discovery — seeing the other party’s documents, taking depositions of witnesses under oath, that sort of thing — well before trial. In today’s case, a woman was killed when a tree branch broke free in a storm and struck her. Her husband sued, and he named the owner of the tree and the power company that had an easement where the tree stood, among others. He claimed that the tree hadn’t been trimmed properly, and that negligence had led to his wife’s death.

At trial, the defendant called a witness to authenticate the location of the tree relative to the road. The plaintiff threw the red flag because the witness hadn’t been listed on the defendant’s expert witness list. An illegal substitution, he complained. The trial court didn’t think so, but offered to adjourn the trial so that the plaintiff could take the witness’s deposition. A solution neater than Pete Carroll’s hair, you say? One might think, but the plaintiff wasn’t interested.

During the witness’s testimony, it developed that he hadn’t done the survey himself, but instead was only vouching for someone else’s survey. Defendant announced it would call the two men who had taken the survey, and the plaintiff cried foul again. The trial court noted that the location of the tree was critical, and let them testify anyway. The defendant won by a touchdown.

Was it a blown call? The plaintiff decried it as uglier than a Pittsburgh Steelers retro uniform. The Court of Appeals — sitting up in the review booth — typically gives substantial deference to trial procedure decisions made by the trial court. It held that letting the witnesses testify was well within the trial court’s discretion. It noted that Slater could have taken the adjournment offered, and inasmuch as he didn’t, he was hard pressed to argue he was hurt by the trial court’s decision.

Go Denver! Go Carolina! Keep us interested between the commercials.

Slater v. Charter Communications, Inc., Not Reported in N.W.2d, 2007 WL 4462396 (Mich.App., Dec. 20, 2007). The Slaters were driving on West Torch Lake Drive in Rapid City when they came upon tree branches that had fallen from a tree and were obstructing the roadway. The weather was rainy and windy. After clearing the roadway and while returning to their vehicle, a large limb from the same tree broke off, fell onto a power line and then struck Mrs. Slater in the head. She died the following day as a result of her injuries.

Her husband sued everyone, including bringing a negligence action against Consumers Power Company and a premises liability claim against defendant Charter Communications. Mr. Slater alleged that the tree was in Consumers’ easement and that Consumers breached its duty by failing to remove the dangerous limb from the tree. He also alleged that the tree was on Charter’s property and that Charter breached its duty to maintain the property in a safe condition by failing to remove the dangerous limb from the tree.


     The identity of the expert witness became a shell game …

Consumers moved for the case to be thrown out, asserting that the facts showed that it wasn’t responsible for trimming the tree from which the limb fell. Slater admitted that he lacked any evidence that Consumers was responsible for the tree, and in light of this, the trial court granted Consumer’s motion. At trial, Charter announced that it would call John Korr, the survey department development manager for Gosling Czubak Engineering Sciences, Inc., to authenticate a tree location survey that had been submitted to the court about one year earlier. Charter argued that the tree was not on its property but rather within the road right-of-way. Slater moved to strike Korr as a witness because Korr was not listed on the expert witness list. After the trial court indicated that it would allow Korr to testify, the court offered an adjournment to allow plaintiff to obtain an independent survey and depose Korr, but he declined.

After interviewing Korr on the third day of trial, Slater informed the trial court that he had just learned that Korr did not conduct the measurements or prepare the survey, but rather had verified the survey. The trial court then allowed Charter to call Simmerson and Anderson, the individuals who had taken the measurements and prepared the survey, to testify. Following the trial, the jury found that the tree was located in the road right of way and, therefore, judgment was entered in favor of Charter. Slater appealed.

Held: The judgment for Charter was upheld. The Court of Appeals held that the trial court properly dismissed Consumers Power from the suit, because with Slater’s admission that he had no evidence that Consumers had trimmed the tree, there was no genuine issue of fact.

The Court also ruled that the trial court had not abused its discretion by allowing Korr, Simmerson, and Anderson to testify. The decision whether to allow the late endorsement of an expert witness is reviewed for an abuse of discretion, and the rule generally is that justice is best served where an unlisted witness can be permitted to testify while the interests of the opposing party are adequately protected. Here, the trial court acknowledged that Slater had not gotten to take Korr’s deposition, but noted that whether the tree was located on plaintiff’s property or in the road right-of-way were critical factual disputes, and existence of the survey had been known to Slater for about a year before trial commenced. The court offered Slater an adjournment to obtain an independent survey and to depose Korr, which he declined.

That was enough, the Court of Appeals said, and, consequently, no abuse of discretion occurred.


Case of the Day – Tuesday, February 2, 2016


RefIt’s Super Bowl week, and we celebrate by considering one of the cardinal rules of trespass. Today we’re discussing illegal contact.

Usually illegal contact, that is, trespass to trees — where someone enters someone else’s land and cuts down trees without any right to do so — are pretty cut and dried. But not all trespasses are clear-cut (to turn a pun).

In today’s case from Louisiana, a party bought a piece of land from the tree owner’s sister, but conditioned the purchase on being able to get rid of some trees on the boundary line with the tree owner. The owner – no doubt a Patriot – signed a contract entitling the buyer to cut down trees on the boundary. The problem was that the contract was imprecise as to how many, or where exactly the trees were. The only thing that was clear was that the parties agreed that wild Broncos couldn’t pull him

over to cut down the tree owner’s prize old live oak.

Too bad the owner didn’t watch the tree-cutting crew like a Seahawk. The buyer’s contractor was kind of a Buccaneer. He cut down 12 trees and, although he was told not to, he trimmed the live oak pretty aggressively. The owner cried “Deciduous foul!” and lawsuits flew like yellow hankies. He sued the buyer, Raven that he hadn’t given permission to do anything like that. He wanted treble damages for the wrongful cutting.

The Carolina Panthers - that is, the Franklin, North Carolina, High School Panthers. They were WNCAC champs in 2015, but they won't be playing this Sunday.

     The Carolina Panthers – that is, the Franklin, North Carolina, High School Panthers. They were WNCAC champs in 2015, but they won’t be playing this Sunday.

The court awarded about $5,000 in damage for the cut branches on the live oak, but it disagreed on the treble damages. The Court said that the ambiguous contract seemed to contemplate that the 12 trees would be cut down, and there was no basis for any recovery on those. As for the injured live oak, it was damaged but still standing. The statute awarded treble damages for cutting down trees, and the trimming — although a violation of the contract — wasn’t something for which treble damages could be awarded.

The plaintiff felt deflated over the whole episode.

Distefano v. Berrytown Produce, LLC, 973 So.2d 182 (La.App. 1 Cir., 2007). Distefano owned a 2-acre vacant tract of land along Church Street. Berrytown Produce, LLC sought to buy a piece of land next to the Distefano tract to operate a produce business. That land was owned by Rose Millican, DiStefano’s sister.

A line of trees on Distefano’s land blocked the view of the Millican tract approaching it from the highway. Berrytown conditioned its purchase on obtaining Mr. Distefano’s permission to remove trees from his property. So Distefano authorized Berrytown in a written agreement to remove all trees on the property line dividing the Distefano and Millican tracts, except for a live oak tree. Berrytown hired Kemp Richardson to perform the clearing work. Richardson cut and removed 12 trees from the Distefano and Millican tracts, and he cut a significant number of branches from the live oak tree on Mr. Distefano’s tract.

Eisfeld should have gotten this sign with special wording, "And don't cut down my trees, Martin!"

     This means you, Berrytown!  Trespassing – kind of like the real property version of off sides.

Distefano filed a timber trespass action against Berrytown and Richardson, saying the defendants cut and removed five trees from his property and cut branches off the live oak tree without his permission. Distefano tried to recover damages under Louisiana Revised Statute 3:4278.1, commonly referred to as the “timber trespass” statute, that imposes a penalty of three times the fair market value of trees on people who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property. Distefano also claimed restoration damages and damages due to the decrease in the value of his land, and further urged that defendants’ cutting activities caused him to suffer non-pecuniary damages.

At the conclusion of a bench trial, the court found that the agreement between Distefano and Berrytown contemplated the cutting and removal of all trees on the Distefano property that had been actually cut down. The court found that the parties clearly understood that the live oak tree was not to be cut, and awarded Distefano $6,045.00 for the unlawful removal of branches from his live oak tree, accepting expert testimony setting the fair market value of the live oak tree at that amount. The court declined to award treble damages, finding the treble damage provision inapplicable because the tree itself had not been cut down and removed, and because there was insufficient evidence of the fair market value of the limbs removed from the tree.

Distefano appealed, challenging the court’s finding that he consented to the cutting down of five trees from his property and the denial of his treble damage claim.

The Northgate Broncos of Walnut Creek, California - a rough bunch - will be sidelined this Sunday, too.

     The Northgate Broncos of Walnut Creek, California – a rough bunch – will be sidelined this Sunday, too.

Held: The trial court’s decision was upheld. The Court found that the contract called for the cutting of “all trees on the dividing property line” between the Distefano and Millican tracts, “with the exception of the live oak tree located on or near the property line.” A witness attested there were no trees on the property line itself, but there were trees close to the property line that hung over the property line, and those were the trees Berrytown wished to have removed. Distefano contended that the parties never contemplated the removal of any trees not located exactly on the common property line, but other witnesses disagreed, and the trial court’s findings of fact were found to be reasonable.

Distefano contended that the trial court should have ordered the defendants to pay treble damages. Louisiana Revised Statute 3:4278.1 imposes a penalty of three times the fair market value of the trees on those persons who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property without the landowner’s consent. But, the Court said, no tree was cut down without permission. Instead, the oak tree was trimmed without permission, and the cut trees were taken pursuant to the agreement. Although contrary to the contract, the Court ruled, because the oak tree was not cut down, the statute did not authorize treble damages under the facts of this case.


Case of the Day – Monday, February 1, 2016


The Sanders were promised this ...

The Sanders were promised this …

Don and Susan Sanders loved the beautiful wooded subdivision in Grapevine, Texas, where they had bought their new house. The helpful salesperson had assured them that developer Weekley Homes intended for the subdivision to have a wooded, country atmosphere and “would take ordinary care” to preserve existing trees. After all, the sales flack with treacly sincerity, Weekley planned that the amenities for the subdivision would include wooded home sites. Not to worry, the syrupy agent smarmed them, because even if this weren’t so, everyone knew that the City of Grapevine, Texas, had a very tough tree ordinance which would be enforced strongly against Weekley.

Well, apparently not. The ordinance had teeth like a crocodile, but that’s not much solace unless the city enforces its terms. Here, as soon as the Sanders moved in, the trees started moving out. They complained that Weekley apparently had no intention of complying with the promises to keep the trees standing – they were tipped off by the shriek of the chainsaws – and the City seemed to have no intention of enforcing the tree ordinance. The Sanders tried to resolve the problem by writing a few letters and attending City Council meetings, but all that bought them was harassment by the City and the developer.

... but they ended up with this.

… but they ended up with this.

So they sued, going after the developer for misrepresentation and after the city and a gaggle of city officials for not enforcing the tough tree preservation law they had heard so much about. There’s nothing that’ll wake up a developer and city officials like the robust aroma of a freshly filed lawsuit.

Weekley apparently responded rather weakly, but the City took strong expection to the suit. Grapevine claimed it was immune from liability to its citizens for the City’s failure to enforce its tree laws. In other words, if city officials chose to look the other way when Weekley cut trees down daily, the Sanders had just better get used to the unfiltered Texas sun.

The Court of Appeals agreed, insofar as money damages were concerned. The Texas Tort Claims Act protected Grapevine officials. But the Sanders had asked for a declaratory judgment, too. Although their filings were not all that clear, the Court surmised that the Sanders wanted a judicial finding as to what rights they had, if any, under the City’s tree law.

Grapevine was not immune from a declaratory judgment action, the Court held. And while there are no money damages awarded for a declaratory judgment, a clear judicial finding that that the City fell down on the job of enforcing its ordinances could have substantial political effects. What mayor wants a judicial finding that he or she hasn’t enforced a law that most citizens fully support?

killer150116Sanders v. City of Grapevine, 218 S.W.3d 772 (Ct.App. Tex., 2007). Don and Susan Sanders sued the City of Grapevine, Texas, and a number of individuals over the City’s alleged failure to enforce its tree preservation ordinance. They had bought a home constructed by David Weekley Homes in the Silverlake Estates Subdivision, primarily due to its “wooded” and “country atmosphere.” The Sanders claimed that a sales consultant for Weekley Homes had assured them that Weekley Homes intended for the subdivision to have a wooded, country atmosphere, that Weekley Homes “would take ordinary care” to preserve existing trees, that the City of Grapevine had “an extremely tough tree ordinance,” and that the amenities for the subdivision would include wooded home sites.

But after they moved into their new home, it became clear to them that Weekley Homes had no intention of complying with, and the City had no intention of enforcing, the tree ordinance, after Weekly Homes cut down numerous trees within the subdivision. The Sanders brought claims for breach of contract and local tree preservation act violations against Weekley Homes — and for fraud, negligence, and negligent misrepresentation against all of the defendants — due to Weekley Homes’s failure to comply with, and the City’s failure to enforce, the City’s tree ordinance. They alleged the City was liable under §101.0215 of the civil practice and remedies code for damages arising from its governmental function of enforcing the tree ordinance. The Sanders also asked for a declaratory judgment.

The City argued that the Sanders’ claims against it should be dismissed because the City is entitled to governmental immunity. The individual defendants filed a motion to dismiss the claims against them with prejudice under the election of remedies section of the Texas Tort Claims Act. The trial court agreed, and the Sanders appealed.

Held: The Court of Appeals held that the city was immune from liability to the Sanders for negligence and fraud claims under the Texas Tort Claims Act, but it was not immune to a declaratory judgment action.

lawsuit150116The Court observed that in determining whether a city is subject to suit and liability under the Texas Tort Claims Act, the Court of Appeals must first determine whether the alleged conduct falls within the list of governmental functions listed in the Act, and if it does, the Court must then look to see whether the conduct falls within one of the other provisions of the Act that waives immunity. Here, the Court said, the City’s alleged conduct in failing to enforce a tree preservation ordinance clearly did not fall within the area of conduct for which governmental immunity was waived under the Texas Tort Claims Act. Waivers of immunity for negligence referred to conduct involving property damage, personal injury, or death, not alleged negligence in enforcing a statute on tree preservation. What’s more, the Act did not waive immunity for intentional torts, precluding an immunity waiver as to the fraud claim.

The Sanders also sued for a declaratory judgment determining what rights they had as homeowners under the City’s tree preservation statute. The Court agreed with them that the City was not immune from such an action, holding that a party does not need legislative permission to sue a governmental entity to determine its rights under a statute or ordinance, because the declaratory judgments action did not seek to impose damages or other liability on the city.


Case of the Day – Friday, January 29, 2016


mmma160129Every red-blooded American boy (and girl, for that matter) knows the story of Mike Mulligan and Mary Anne. Work had dried up for the pipe-smoking Mike and his redoubtable steam shovel, they took a job in Popperville digging the basement for the new town hall. The selectmen — especially one named Henry B. Swap — were dubious of Mike’s claim that Mary Anne could dig the basement in one day, so they made a deal with Mike that he wouldn’t get paid unless he completed the work in the time allotted.

Mike didn’t make the deadline, but the story had a happy ending anyway. Such was not the case for Terry W. Henry. Terry, an experienced timber harvester, needed work. He asked Bobby Hubbard, who ran a timber company working several tracts of leased land, for a job. Now Bobby appears to be one of those kinds of employers, you know, the kind of guy who “tries out” people and then finds them deficient, not hiring them and, for that matter, not paying them for the “try out” period. On top of that, Hubbard made everyone an independent contractor, paying them in cash without any withholding and without any tax reporting whatsoever.

While Terry Henry was on his one-day “tryout” — the deal being that he would get paid if Hubbard found his work acceptable —  a tree branch fell on him. Of course, Bobby “Captain All-heart” Hubbard refused to pay him for the day’s work and fought Henry’s workers’ compensation claim. The Board found that under the law, Henry was an employee, despite the conditional promise of payment. Hubbard argued that Henry would have become, at best, an independent contractor and been ineligible for workers’ comp. But he abandoned his argument at the Workers’ Comp board level, and the Supreme Court wouldn’t let his lawyer resurrect the argument when the Court of Appeals hadn’t heard it. If he had made the independent contractor argument, he might have been off the hook, but it’s hard to see the “independent contractor” argument as anything more than a tax and responsibility dodge.

work160129Still, Hubbard’s lawyer flubbed the case procedurally by not keeping the issue alive. Maybe Hubbard had his mouthpiece working under a “tryout” deal, too, and he won’t have to pay his solicitor.

Hubbard v. Henry, 231 S.W.3d 124 (Sup.Ct. Ky., Aug. 23, 2007). Henry had operated a bulldozer and cut timber for about ten years. He responded to an ad that Hubbard, a licensed master logger who leased the right to harvest timber from landowners, had placed. Hubbard usually employed four workers to operate a bulldozer and cut and load the timber under written employment contracts. The workers were independent contractors and supplied their own saws, chaps, and safety equipment, while he provided the bulldozer, skidder, gasoline, chains, and files.  Hubbard  paid them weekly in cash for days worked, and he did not withhold taxes or issue a Form 1099 for their pay.

Henry B. Swap

     Henry B. Swap had nothing on Bobby Hubbard …

Because Hubbard wanted to be certain that Henry could do the job, Henry agreed to work on a trial basis for a couple of days and to receive no pay unless Hubbard was satisfied with his work. Henry recalled that they discussed pay of either $10.00 per hour or $100.00 per day (which Hubbard disputed) and said Hubbard never told him he would be hired as an independent contractor. Henry cut a number of poplars, one of which fell into a sycamore tree. Another worker then showed Henry how to do a hinge cut, and a branch from the sycamore struck him on the head, injuring him severely.

Henry later asked Hubbard to pay him for the day that he worked, but Hubbard refused, but gave him some money later but did not say that it was payment for the work. Henry filed for workers compensation payments, asserting he had been hired and was working as an employee when he was injured.  Hubbard countered that Henry had not been hired and was working on a trial basis only or — even if he had been hired — he was an independent contractor rather than as an employee. The ALJ found Henry was working on a trial basis when he was injured. Nothing that state law premised employee status on the existence of a contract for hire, the ALJ also found that Henry failed to show a meeting of the minds sufficient to impute an implied contract for hire or to show that he expected to be paid for the work that he performed on the date of his injury.

Henry asserted to the Board that the ALJ erred by concluding that there was no implied contract for hire, by concluding that he worked on a trial basis but was not hired, and by failing to determine that he worked as an employee. The Board held as a matter of law that Henry was Hubbard’s employee, noting the undisputed evidence that Hubbard’s outfit was a logging company in the business of harvesting lumber for profit and that, at the time of Henry’s injury, he was harvesting timber at a job site that Hubbard controlled.

The Court of Appeals affirmed, and Hubbard appealed.

pinno160129Held: Workers compensation benefits were awarded. The workers’ compensation statute defines “employee,” for coverage purposes, to include every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury. It is intended to protects workers who are injured while performing work in the course of an employer’s business by considering them to be “employees,” despite the lack of a formal contract for hire, unless the circumstances indicate that the work was performed with no expectation of payment.

Under the statute, Henry was an “employee” when he was injured during his tryout for employment as a timber cutter, despite the fact Hubbard would owe Henry nothing if Hubbard was dissatisfied with the work. There was a contract of sorts, one which held that Henry would be hired and paid for work unless Hubbard was dissatisfied with his work. A co-worker did not state that he would have discouraged Hubbard from hiring Henry, and Hubbard did not indicate that he was dissatisfied with Henry’s work or would not have hired him had he not been injured.

The issue of whether Henry was an independent contractor in the course of an employer’s trade, business, profession, or occupation — who by law had effectively elected not to be covered by the Workers’ Compensation Act — was not properly preserved by Hubbard from the decisions below.