Case of the Day – Wednesday, October 1, 2014

A TREE GROWS IN BROOKLYN – AND THAT’S DIFFERENT

Poster140306Time was, trees were just trees, and what they did, how they lived, grew and died, was out of the control of the property owner.  No one blamed little Francine Nolan if the tree growing in Brooklyn fell on a Sabrett’s cart.

About the time little Francine was living in her Williamsburg tenement, an influential group of judges, scholars and lawyers in Philadelphia formed an organization known as the American Law Institute. They believed, among other things, that they could write comprehensive treatises about all areas of the law – which they called “Restatements” – that would serve as authoritative statements of the principles of common law. No more confusion, no more divergence of holdings, no more contentious arguments! You can just about hear the group, lemonades hoisted (this was during Prohibition, after all), singing “We Are the World.”

I hear the ALI singing ...

I hear the ALI singing …

Alas, Prohibition failed, and so did the ALI’s goal of replacing all of those tedious casebooks and treatises with the Restatement of the Law. Everyone loved the Restatements, but far from replacing state common law, case reporters and codes of statutes, the volumes became just another secondary source. To be sure, some of the ALI members never really thought an entire law library could be replaced with one shelf of Restatements, notably Benjamin Cardozo. He believed that the Restatement “will be something less than a code and something more than a treatise. It will be invested with unique authority, not to command, but to persuade.”

The Restatement of the Law continues today, with some volumes in their third printing. And courts love them, even if they don’t always follow them.

Today’s case is a good example. When the Browns’ tree fell on Ms. Barker’s property, it made a mess. She sued her neighbors, arguing that they should have recognized that the tree is at risk of falling, and done something about it. The Browns pointed out that no less persuasive source than the Restatement (Second) of Torts said that they weren’t responsible for the natural condition of trees on their property. The trial court agreed, and threw the case out.

The appellate court disagreed. It rejected the Restatement approach as being outdated and not sufficiently attuned to the differences between urban and rural life. In other words, the Court said, if a tree grows in Brooklyn, little Francine had better keep her eye on it.

Francine - be careful that tree doesn't fall on the hot dog vendor's cart.

Francine – be careful that tree doesn’t fall on the hot dog vendor’s cart.

Barker v. Brown, 236 Pa.Super. 75, 340 A.2d 566 (Pa.Super. 1975). Virginia Barker’s property adjoins that of the Browns. Both are located in a residential district of State College. A large tree stood on the Browns’ property, a tree which Barker said the Browns knew or should have known was in a decayed, rotting and dangerous condition. Barker alleged that the Browns negligently failed to take steps to avert the danger and, as a result, the tree fell onto her property.

The tree’s fall destroyed two of Barker’s trees, valued at about $600 each. Barker had to have the fallen tree removed from her property at a cost of $147.50, and the process required her to miss two days of work, causing lost wages of $34.00.  Finally, the incident caused a loss of value of Barker’s property in the amount of $600.00.

The trial court threw out the case on the grounds that section 363 of the Restatement (Second) of Torts (1965) precluded holding the Browns to blame. That section provided:

(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

Held: The appellate court reinstated the lawsuit.

The court held that the Restatement’s distinction between natural and artificial conditions – which had never been the focus of prior Pennsylvania court decisions – was outdated. “It may very well be true,” the Court said, “that the distinction between artificial and natural conditions was valid in a time when landowners were possessed of, and hence would have been charged with the care of large quantities of land. It would still be valid today in rural areas where large landholdings are common. [However], we do not believe that the distinction should be applied to land in or near a developed or residential area. Urban living, by altering the purpose for which the land is used, must also bring with it certain responsibilities. A tree growing in an urban or residential area does not have the same natural relation to surrounding land as a tree located in a rural setting.”

Basswood140306While acknowledging that its approach imposed more cost on landowners, the Court nevertheless believed that “the relatively minor expenditures in time and money that it will take to inspect and secure trees in a developed or residential area is not large when compared with the increased danger and potential for damages represented by the fall of such a tree.”

The Court thus held that a possessor of land in or adjacent to a developed or residential area was subject to liability for harm caused to others outside of the land by a defect in the condition of a tree thereon, if the exercise of reasonable care by the possessor would have disclosed the defect and the risk involved, and repair would have made the tree reasonably safe.

In this case, the Court held, Barker alleged in her complaint that the Browns “knew, or should have known, that the said tree was in a decayed, rotting, and dangerous condition.” This is denied by the Browns, but for purposes of this appeal, the Court had to accept the facts alleged in Barker’s complaint as true. On remand, it noted, the question would be one for the fact finder.

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And Now The News …

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Thermal imaging of bat approaching turbine

Thermal imaging of bat approaching turbine

Phys.org, September 30, 2014: Bats may be mistaking wind turbines for trees

Certain bats may be approaching wind turbines after mistaking them for trees, according to a study to be published in the Proceedings of the National Academy of Sciences. The study, led by U.S. Geological Survey scientist Paul Cryan, was the first to use video surveillance cameras to watch bats for several months flying at night near experimentally manipulated wind turbines and led to the discovery that tree-roosting bats, or “tree bats,” may approach and interact with wind turbines in consistent and predictable ways …

Waterbury, Connecticut, Republican-American, October 1, 2014: CL&P cuts trees to safeguard utility lines

Trees on Naugatuck’s west side are getting a trim, and some are being completely cut down, as part of a Connecticut Light & Power plan to protect utility lines from falling trees and branches. The work, which is being conducted by Asplundh Tree Expert Co. of Pennsylvania, began in early September and will continue, weather permitting, through the end of October, said CL&P spokesman Mitch Gross. “Our customers expect reliable service and tree trimming is a very important part of our maintenance work,” Gross said. “Fallen trees remain the number one cause of outages across the state …”

Lawn and Landscape, October 1, 2014: Happy trees, happy homeowners

Everyone loves a lush, green landscape filled with beautiful, healthy trees. However, sometimes trees seem like more trouble than they are worth. Constant building clearance pruning, messy sidewalks, pavement damage, dying trees … how can this all be avoided? Usually, by planting the right tree in the right place! While it may seem that any tree could be planted in any location, it really takes much thought and consideration to make sure that the right trees are planted in the right areas in order to cultivate the most attractive and healthiest landscape possible …

Huntsville, Alabama, WHNT-TV, September 30, 2014: Heard of Paclobutrazol? Huntsville Utilities has been applying it to your trees for awhile now

Paclobutrazol is the active ingredient in Cambistat – a growth regulator that has been used by utility companies all over the country on millions of trees since 2009. The chemical gently slows tree growth, preventing branches from interfering with power lines. Cambistat helps refocus a tree’s energies from canopy growth to healthy, fibrous root production, defense chemicals and stored energy. Huntsville Utilities began the program in 2006 as a part of their electric line clearing program, which includes tree trimming. But south Huntsville resident Rhonda Brewster says she wasn’t aware and was appalled Monday to learn crews had come into her yard and injected growth regulating chemicals around the two large Pin Oaks flanking her driveway …

Tashkent, Uzbekistan, September 30, 2014: Plant trees across the dried up bed of the Aral Sea

Uzbek scientist Zinoviy Novitsky discusses his ideas of how to save the Aral Sea region from an environmental disaster. As Uznews.net has previously reported, the eastern area of the southern part of the Aral Sea disappeared this summer. The worst fears of environmentalists are now becoming reality. Scientists have started proposing measures that could minimize the environmental costs to the area from the loss of this huge body of water. Novitsky, an agricultural scientist, believes there are two ways to deal with the ever-increasing area covered with saline soils. The first is to fill the area with water. While there have been proposals to redirect Siberian rivers or pump water from the Caspian Sea, scientists believe both these suggestions are unrealistic. On the other hand, the second possibility, the planting of trees in the dried of areas of the Aral Sea, Novitsky believes to be quite feasible …

firewood140930Nashua, New Hampshire, Telegraph, September 30, 2014: Firewood is in short supply

Heating your home with stacks of cut firewood might be an old New Hampshire tradition, but market forces mean that it will be a more expensive tradition this winter – assuming you can get firewood at all. “Everybody is running out of wood. If you check firewood prices now, wood’s bringing $300 and up, close to 400 bucks. There’s not a lot of wood,” said Tom Estey of Londonderry, whose family business has been selling firewood since the mid-1940s …

Santa Rosa, California, Press-Democrat, September 29, 2014: Trees for the drought

Homeowners planning to reinvent their yards into less thirsty landscapes are now showered with ornamental choices, from intriguing natives to attractive Mediterranean plants. But you can’t design a good landscape on lavender and salvia alone …

Terra Daily, September 30, 2014: If trees could talk

Permafrost thaw drives forest loss in Canada, while drought has killed trees in Panama, southern India and Borneo. In the U.S., in Virginia, over-abundant deer eat trees before they reach maturity, while nitrogen pollution has changed soil chemistry in Canada and Panama. Continents apart, these changes have all been documented by the Smithsonian-led Center for Tropical Forest Science-Forest Global Earth Observatory, CTFS-ForestGEO, which released a new report revealing how forests are changing worldwide …

Toronto, Ontario, Star, September 29, 2014: Ontario trees put on stunning fall display

After a cool summer, Ontarians are being rewarded with spectacular displays of reds, oranges and yellows as trees across the province start their annual colour change. Recent weather patterns have created the perfect conditions for leaves to develop vibrant colours this year, said Tom Noland, a tree biochemistry research scientist at the Ontario Forest Research Institute. “The cool, sunny dry weather came at the perfect time to really make the colours pop,” Noland said. He explained that lots of sun y encourages leaves to produce more sugar, while cool, but not freezing, nights slowly close the veins in the leaves, trapping the sugar. This aids the creation of pigments that give fall leaves their colourful tints …

Mongabay, September 29, 2014: A weed by any other name: remnant shrubs and trees play vital role in regenerating forests

New research in Thailand finds birds and bats key to reforestation efforts …

tongass140929Bend, Oregon, The Bend Bulletin, September 28, 2014: In Tongass National Forest, a battle to keep trees, or an industry, standing

The Tongass National Forest, a panoply of snow-dusted peaks and braided rivers, slender fjords and more than 5,000 islands draped over a stretch of Pacific coastline, is widely viewed as one of America’s great natural treasures. Under pressure from environmentalists, the Obama administration pledged four years ago to phase out logging of virgin woodlands here. Yet the U.S. Forest Service is now preparing its largest auction of it in a decade: 9.7 square miles of hemlock, spruce and cedar near this island hamlet. An additional 4 square miles are planned for sale later, and 7 square miles more after that. And conservationists, crying betrayal, are in court again, trying to force a reappraisal of the auctions in the world’s largest temperate rain forest …

Washington, D.C., Post, September 28, 2014: Letter – Harvested trees are a positive for the climate

While I largely share the views in the Sept. 21 Sunday Opinion commentary “Climate change’s leafy stopgap,” the authors made a critical error in negating the carbon benefits of harvested trees. When a tree is cut down, it doesn’t release carbon into the atmosphere like popping a balloon. Instead, the carbon remains in the tree, which makes using wood as a building material much more climate-friendly than alternatives. That’s why wood products are a key part of the administration’s climate strategy …

Dekalb, Illinois, Northern Illinois University Northern Star, September 28, 2014: Woman paints MLK Commons trees in protest, witnesses say

A woman used red paint to vandalize trees and cement in the Martin Luther King Jr. Commons Friday, according to witnesses. Two witnesses, who did not wish to be identified, said they saw the woman shouting at passersby about students wasting their time in school in the commons Tuesday. The woman returned with red paint that she smeared on trees and cement, telling onlookers it was part of a “public demonstration,” Friday afternoon, the witnesses said. At least two trees had paint on them and a small can of red paint was left in a pool of paint on the cement. Red paint was also smeared in zig-zag lines in another spot in the commons …

Cedar Rapids, Iowa, Gazette, September 28, 2014: Oak wilt threatening trees across Iowa

Unlike the tree affliction caused by the emerald ash borer, oak wilt does not threaten to wipe out every oak in the state. But that’s little consolation to Clayton Ohrt, whose picturesque, predominantly red oak timber overlooking the Wapsipinicon River has already lost scores of mature trees to the disease State Forester Paul Tauke considers “Iowa’s most persistent long-term oak ailment.” More will likely succumb before the disease is controlled, said Department of Natural Resources forester Jeff Seago, who is helping Ohrt redefine his timber management plan …

St. Paul, Minnesota, University of Minnesota Daily, September 29, 2014: Study examines carbon storage in trees

A University of Minnesota study published earlier this month provides a better understanding of how trees store carbon in their roots, researchers say. The study, partly funded by the University’s Institute on the Environment, found that carbon storage in trees’ roots differs with climate. Researchers say this information will allow for more accurate predictions of climate change’s future effects. Estimates of aboveground biomass and carbon percentage are already fairly accurate, said forest ecology professor Peter Reich, leader of the study. But data on roots were “crude guesses” in the past, he said, because it was impossible to measure roots without destroying the ground and the tree …

midwayash140926Chicago, Illinois, WBBM-TV, September 25, 2014: Ash trees on Midway Plaisance coming down due to Ash Borer infestation

The invasive Emerald Ash Borer has taken its toll along an historic stretch of the South Side, and now dozens of ash trees are coming down. Dozens of ash trees are being cut down along the Midway Plaisance, which is where the amusements were staged during the World’s Columbian Exposition of 1893. Chicago Park District arborist Marcus Horan said he and a tree-cutting crew have been at the job for several weeks, cutting down two or three infected ash trees a day …

Science Daily, September 25, 2014: Water research tackles growing grassland threat: trees

Two Kansas State University biologists are studying streams to prevent tallgrass prairies from turning into shrublands and forests. By looking at 25 years of data on the Konza Prairie Biological Station, the researchers are examining grassland streams and the expansion of nearby woody vegetation, such as trees and shrubs. Grasslands in North America and across the globe are rapidly disappearing, and woody plants are expanding and converting grasslands into forest ecosystems. This change in environment can affect stream hydrology and biogeochemistry. The scientists have found that burn intervals may predict the rate of woody vegetation expansion along streams …

St. Louis, Missouri, KSDK-TV, September 25, 2014: Des Peres residents sue utility to save trees

Some Des Peres residents have filed a temporary restraining order against electric utility Ameren to save trees in their neighborhood slated to be cut down. Residents are trying to save about a dozen trees concealing a transmission tower in the Dougherty Ridge neighborhood. With no agreement between the residents and Ameren, now a judge will get involved. Four couples filed a lawsuit this week to stop Ameren from cutting down the trees, along with many others near power lines. The residents say the loss of the trees would expose the tower in their neighborhood, and lower their property values. They think clearing the trees is unnecessary, and say the mature trees are nowhere near the power lines and pose no risk …

Jackson, Mississippi, Clarion-Ledger, September 25, 2014: Planting almond trees can be challenging

Almond trees have challenges that usually make them unsuited for gardens in our state. First, they bloom early in spring and so are very likely to face freezing conditions when the buds and/or flowers are most vulnerable. Second, most are highly susceptible to bacterial leaf spot and brown rot of the fruit. Both diseases favor wet, warm, humid conditions, which we have in abundance …

wildfire140925Denver, Colorado, Post, September 25, 2014: CU fire study of 8,000 trees finds pre-suppression forests burned hot

Wildfires along Colorado’s Front Range, long assumed to be intensifying, may not be when understood in historical context before 20th-century firefighting, a new study finds. The findings could complicate the analysis of whether thick forests should be thinned. University of Colorado researchers, led by fire ecologist and geography professor Tom Veblen, analyzed 8,000 tree-ring samples, starting in 1996, and concluded that severe fires have been an inherent part of mountain ecosystems …

Trenton, New Jersey, The Times of Trenton, September 24, 2014: Robbinsville to plant thousands of trees to restore forest along turnpike corridor

Cutting through the entire state, from north to south, the New Jersey Turnpike is notorious for its choking traffic jams and smoggy scenery. But Tim McGough is hoping to use that same highway to give the community breathing room and fresher air. Robbinsville will gain 5,771 new trees next spring from the Turnpike Authority and the New Jersey Department of Environmental Protection to make up for the nearly 115 acres of forested land the township ceded for the highway’s expansion …

Kingston, New York, Daily Freeman, September 24, 2014: Ash trees in Ulster County targeted for removal to slow spread of emerald ash borer

More than 3,000 ash trees along county-owned rights-of-way have been targeted for removal by the Ulster County Department of the Environment in an attempt to slow the spread of the emerald ash borer, a species of invasive insect that burrows into and kills ash trees with growing alarm. The decision comes on the heels of an effort begun in March by the state to take down 4,000 trees around the Ashokan Reservoir this year due to the infestation …

Vancouver, British Columbia, Sun, September 24, 2014: West Vancouver homeowner sues neighbor over towering trees

A dispute over tall trees is heading to the highest court in the province. A $3.12-million British Properties mansion has been overlooked for the three months it has been on the market due to the view-obstructing trees on a neighbouring property, according to a West Vancouver homeowner. Xu Kuai, owner of a 4,400-square-foot home in tony Whitby Estates, filed a motion in B.C. Supreme Court Thursday to address the “injury and losses” he claims to have suffered as a result of the towering timber. Besides not being able to see the ocean for the trees, the vertical vegetation has sapped the interest of potential buyers and impaired Kuai’s enjoyment of the property, according to the suit …

Gizmodo, September 24, 2014: Planes could run on biofuels made from fallen trees within two years

Southwest Airlines has announced that it will be using biofuel on several of its flights by 2016, purchasing the blended fuel from a Colorado company that salvages “140,000 dry tons of woody biomass feedstock” per year—fallen timber from local forests that might otherwise serve as fuel for wildfires …

Philadelphia, Pennsylvania, WPVI-TV, September 24, 2014: Florence residents upset over removal of hazardous trees

It just got a bit sunnier on Boulevard Street in Florence Township, Burlington County, New Jersey, but that’s not a good thing according to residents. As part of a $200,000 grant project to replace curbs and sidewalks along the Boulevard, the municipality has recently cut down half a dozen of the 70-foot to 80-foot sycamores and maples that have made the tree-lined street so attractive. Some were believed to be 100 years old …

treeprotest140924Wytheville, Virginia, News, September 23, 2014: Trees get reprieve along Wytheville’s Main Street

A proposed beautification project for Wytheville’s Main Street drew a crowd of protestors to Wytheville Town Council’s meeting Monday evening. Cutting down old and diseased trees on the town’s Main Street right-of-way and replacing them with new healthy ones led to two hours of discussion between local residents and council members. While council had approved the project several months ago on the recommendation of the town’s tree advisory committee, town residents complained they didn’t know anything about the plan until they received a letter last week informing them the work would begin within a day or two. They said they were further startled when chainsaw-wielding crews began taking down the trees last Friday …

The Atlantic, September 23, 2014: Leaves change color each fall because of dieting trees

No offense to Pumpkin Spice Lattes and decorative gourds, but the real signs of fall are the leaves—leaves that transform from green to red. And green to orange. And green to yellow. Autumnal romance aside, it’s a change that is, of course, chemical in nature …

Des Moines, Iowa, Register, September 24, 2014: Shots may save West Des Moines ash trees

The emerald ash borer has not arrived in West Des Moines, but city officials are continuing to examine and adopt new ways to prepare for the inevitable infestation. The city’s initial management plan to confront the wood-boring species called for removing all 1,100 of the city’s ash tree inventory over about a four-year period “regardless of location, current condition or benefits provided …”

San Diego, California, Union-Tribune, September 23, 2014: Protest halts removal of trees in Coronado

Two men protesting the removal of trees on a residential street in Coronado were back on the ground Tuesday after spending the night in the branches, and work to fell the eucalyptus has halted until the matter can be discussed at the next City Council meeting. Neighbors rallied Tuesday at the foot of the tree where Dan’l Steward, a Coronado resident for 16 years, had perched since early Monday to call attention to how the city decided to remove four sugar gum eucalyptus trees on E Avenue. Steward was joined by Ryan Gillespie, who hung a hammock in another tree Monday night. The city said the trees are a hazard and have to come down …

Lansing, Michigan, MLive, September 23, 2014: Michigan fall colors: Trees are changing fast with one part of Michigan near peak fall color

The fall colors are developing quickly in northern Lower Michigan and the Upper Peninsula. The colors that are showing are not muted. They are vibrant. 

In fact, it looks like parts of the western Upper Peninsula may be at peak fall color now, or only a few days away …

Sydney, Australia, Terra Daily, September 22, 2014: Global change: Trees continue to grow at a faster rate

Trees have been growing significantly faster since the 1960s. The typical development phases of trees and stands have barely changed, but they have accelerated – by as much as 70 percent. This was the outcome of a study carried out by scientists from Technische Universitat Munchen (TUM) based on long-term data from experimental forest plots that have been continuously observed since 1870. Their findings were published recently in Nature Communications …

Sierra140923San Francisco, California, KCBS-TV, September 22, 2014: There are too many trees in California soaking up too much water, Berkeley study says

Environmental scientists at UC Berkeley are saying that there are too many trees in the California’s forests. The researchers say fewer trees would leave more rain water available to meet the state’s demand …

Inhabitat.com, September 22, 2014: Could moving endangered trees out of their natural habitat save them from climate change?

Climate change has conservationists considering drastic steps they would never before consider – like planting forests of endangered trees in locations where they can thrive. Assisted migration is a controversial new concept that proposes replanting endangered tree seeds in regions that they don’t normally grow, but which will become ideal environments as the world keeps warming. This radical idea, which is still hypothetical, comes in response to the possibility that climate change will happen so fast that trees won’t be able to adapt on their own …

Burlington County, New Jersey, Times, September 23, 2014: Editorial – Stately but dangerous trees had to go

Trees offer so much. They are shady spots to picnic or swing, places for kids to climb, and for adults to think. Trees also help improve air quality, reduce erosion and reduce noise. Larger trees protect houses and streets from getting too hot by cooling the environment through shade and evaporation, and more mature trees provide more benefits than younger, smaller ones. That’s why we understand why the residents of Boulevard Street in Florence are furious about the removal of a number of old-growth trees — some of them possibly 100 years old — as part of a sidewalk improvement project …

Science Daily, September 22, 2014: Trees that can increase biomass production

By modifying the gene expressions responsible for the branch growth during the first year of woody species, researchers of the Universidad Politécnica de Madrid have found a way of increasing biomass production of a forest plantation without altering its growth, composition or the wood anatomy. These results have an important market value for the bioenergy sector, thus this study was protected by patent …

WFMY-TV, Greensboro, North Carolina, September 22, 2014: Homeowner upset powr company won’t trim his trees

Tree limbs and power lines intertwine in numerous places in Jim Dowell’s backyard. In one place, the tree is actually laying on top of the line. “It’s a safety issue.” Jim says he called Duke Energy to take care of the problem but that was been four months. “No one else will touch the work because of the power lines involved,” says Jim …

ABC News, September 21, 2014: Can trickery save the country’s ash trees?

A tiny foreign beetle that has devastated ash trees in forests, urban parks and suburban lawns across North America since arriving here from Asia less than two decades ago will soon face an artificial beetle that will give males more than they wanted when attempting to mate with females. The small decoy is the same size and color as the real thing, only about a third of an inch long, but as soon as the male lands on its back it will zap him with a 4,000-volt charge to either stun him or kill him …

newforest140922New York Times, September 20, 2014: Opinion – To save the planet, don’t plant trees

Deforestation accounts for about 20 percent of global emissions of carbon dioxide. The assumption is that planting trees and avoiding further deforestation provides a convenient carbon capture and storage facility on the land. That is the conventional wisdom. But the conventional wisdom is wrong. In reality, the cycling of carbon, energy and water between the land and the atmosphere is much more complex. Considering all the interactions, large-scale increases in forest cover can actually make global warming worse …

Scranton, Pennsylvania, Times-Tribune, September 21, 2014: Discard myths and misconceptions when caring for trees and shrubs

Do you care for your trees and shrubs in your landscape based on tradition (we have always done it that way), convenience or science and research-based facts? Just think, humans thought the earth was flat, the heart was the center of emotions, and that draining blood cured diseases (that is the reason why George Washington died under the care of doctors). As science disproved those old myths, people discarded them. Isn’t it time for us to discard the many myths about tree care?

Idaho Falls, Idaho, KIDK-TV, September 21, 2014: Controlled burn helps save aspen trees

State and federal agencies conducted a controlled burn near Swan Valley this week in hopes of saving aspen trees. Both the Idaho Fish and Game Department and the U.S. Forest Service burned 1,000 acres about 13 miles southwest of Swan Valley. They burned conifers, which have been steadily encroaching on aspen territory …

Sonora, California, KZSQ(FM), September 21, 2014: Trees that belong here and trees that don’t

Walking around my neighborhood, I see the evidence this year’s changing weather patterns. Many lawns are golden-brown and crispy and trees are showing signs of drought stress with brown leaves and twig dieback. Especially hard-hit are the trees native to other climates. These are often planted in our suburban landscapes because they are “pretty” or “fast-growing …”

Charlotte, North Carolina, Time-Warner Cable, September 21, 2014: Hurricane Hugo left lasting impact on Charlotte’s trees

Along with destroying many homes and businesses when it hit Charlotte Sept. 22, 1989, Hurricane Hugo also took down many Charlotte trees. The storm’s strong winds and heavy rains knocked trees down onto houses and left many strewn across roadways well after it had passed. Arborists in Charlotte say even today, they sometimes still have to cut down trees that were damaged in the storm 25 years ago. They’ve also done a great deal to restore the city’s full tree cover in the time since …

Bonham, Texas, North Texas E-News, September 22, 2014: Thirsty trees

When rainfall ceases, as it always does here in Texas, many crops, trees, and grasses begin to fade in drought stress. Grass turns brown and brittle, crops die or must be irrigated, and trees exhibit all their own signs of dehydration. Drought is a reality around here, and with only a few wet years to break our constant drought, we must learn to provide for our trees in the absence of rainfall …

EAB140919Chicago, WLS-TV, September 18, 2014: Emerald Ash Borer inoculation saves 5,000 trees

Ninety-three percent of the ash trees inoculated for the Emerald Ash Borer in 2011 and 2012 are still alive and well, according to the city of Chicago. The emerald ash borer is an exotic beetle that has killed tens of millions ash trees in southeastern Michigan alone. Trees are also dying in 21 other states, including Illinois. The Department of Streets and Sanitation inoculated 5,400 ash trees in 2011 and 2012. About 5,000 of those trees remain viable and accepted this year’s treatment, the mayor’s office said …

New York, New York Times, September 18, 2014: For trees under threat, flight may be the best response

The whitebark pine grows in the high, cold reaches of the Rocky and Sierra Mountains, and some individuals, wind-bent and tenacious, manage to thrive for more than a thousand years. Despite its hardiness, the species may not survive much longer. A lethal fungus is decimating the pines, as are voracious mountain pine beetles. Making matters worse, forest managers have suppressed the fires that are required to stimulate whitebark pine seedlings … Traditionally, conservation biologists have sought to protect endangered plants and animals where they live, creating refuges where species can be shielded from threats like hunting and pollution. But a refuge won’t help the whitebark pine, and so now scientists are pondering a simple but radical new idea: moving the trees to where they will be more comfortable in the future …

Queens, New York, The Sunnyside Post, September 18, 2014: New trees, tree guards and plantings coming to Sunnyside’s commercial district

Sunnyside’s commercial district is on its way to looking a whole lot greener. Sunnyside Shines is about to plant an additional 27 trees throughout the business improvement district to ensure that every street is covered. Rachel Thieme, the executive director of the BID, said that the district currently has 126 trees and after the planting there will be 153, which will line Queens Boulevard (38th to 50th Street), Greenpoint Avenue (42nd to Queens Boulevard) and nearby streets …

Kuala Lumpur, Malaysia, The Rakyat Post, September 19, 2014: Moroccan city outlaws olive trees

The town hall in Oujda, a city of half a million in northeast Morocco near the border with Algeria, has ordered the removal of olive trees from all areas, whether it be around private homes, on pavements or in public gardens. The pollen during the flowering season in the spring is “one of the main causes of seasonal respiratory allergies”, said the mayor, Omar Hijra, a professional pharmacist. He told the website Media 24 that olive trees accounted for as much as 90% of all trees planted in some areas. If the trees are not removed by Dec 31, the municipality will carry out the work and charge the home owner, he said …

Rochester, New York, Democrat & Chronicle, September 18, 2014: No plan yet from Irondequoit man who cut down trees

Nine months after illegally clear-cutting more than an acre of trees in an environmentally sensitive area bordering the Genesee River in Irondequoit, Al Gilbert has yet to submit a plan for how he’ll restore the land …

drought140918Sacramento, California, The Bee, September 18, 2014: Landscape experts say Caltrans water-saving projects could harm trees

Gov. Jerry Brown’s January order to cut state-government water use 20 percent rippled through the bureaucracy early this year as high-level officials rushed to find ways to conserve … At Caltrans, Director Malcolm Dougherty issued a Feb. 7 memo that, among other things, ordered a 50 percent reduction in water used on its vast inventory of irrigated-landscape freeway areas … In its effort to save water, however, Caltrans has approved new irrigation systems that arborists say are threatening the lives of mature trees on thousands of acres near California freeways, offramps and rest areas …

Science 2.0, September 17, 2014: Trees love climate change

Last decade, science faced an ecological puzzle: under hotter, drier conditions of global warming, forests should have been penalized but instead the rainforests thrived. It isn’t the first time – the climate change that caused the death of the dinosaurs gave them a big boost also.

 A new study in Nature Communications notes that trees have been growing significantly faster since the 1960s. The typical development phases of trees hasn’t changed but they have accelerated by as much as 70 percent, find researchers from Technische Universität München using long-term data from experimental forest plots that have been continuously observed since 1870 …

Sydney, Australia, Sydney Morning Herald, September 18, 2014: War on trees: time to kill old attitudes

Glen Turner, 51, was killed in active service, shot in the back in a dirt lane 55km north of Moree six weeks ago. Australia usually restricts its wars to other people’s turf. But it was war, nonetheless, of which environmental officer Turner was a casualty: the War on Trees. It’s not only the bush. Tree war is everywhere. Just when we need trees most – just when we darkly grasp the extent to which these woody creatures reverse our planetary delinquency – we focus our anger upon them. As though they’re the ones at fault; as though they reify our guilt …

Salem, Oregon, Salem Weekly, September 17, 2014: Neighbors object to “clear cutting” historic trees

Salem Hospital plans to cut more than forty trees on the 8.42-acre parcel it purchased in 2010 from the School for the Blind along Mission Street. Among the trees are nine several-hundred year old Oregon White Oaks which were once part of the ancient woodland that covered the area. The trees were growing before the first European settlers arrived in the 1800’s. Thus far, the City of Salem has approved the hospital’s plan to remove the trees and install in their place a 264-space parking lot, a rehab center and an enlarged a maintenance shed, by allowing a variance to city laws that protects the trees. A neighborhood association, however, wants the trees to live …

Entomology Today, September 17, 2014: Peeking at the playbook of Asian trees may help stop the Emerald Ash Borer

In just the last decade, the emerald ash borer (EAB) has killed tens of millions of ash trees in North America and is a growing threat to European ash. However, Asian ash species are not affected by the EAB. As a part of an effort to save the multi-billion dollar ash resources, scientists at The Ohio State University are launching a crowdfunded project to discover the genes that allow Asian ash trees to resist the insect …

Binghamton, New York, Press and Sun-Bulletin, September 17, 2014: Insects put region’s hemlock trees at risk

A growing infestation of an invasive insect species is putting hemlock trees around the region in danger. The hemlock woolly adelgid, an insect that feeds at the base of hemlock needles, was first detected in Broome County in 2011 and has since spread across much of the county’s southern portion, from Union to Windsor, according to the New York State Department of Environmental Conservation. If left untreated, most trees infested with the insect eventually die …

doral140917Miami, Florida, WSVN-TV, September 16, 2014: Doral Park residents hold meeting over view obstruction from trees

Residents living along a prestigious South Florida golf course owned by Donald Trump held a meeting Tuesday night regarding the placement of large trees, which obstruct the view of the golf course from their homes. Mayor Luigi Boria and Vice Mayor Christine Fraga attended the meeting along with many upset residents. Fraga believes the Trump Organization has done nothing illegal. “There is a code that represents what a hedge is. The Trump Organization has met their requirements …”

West Lebanon, New Hampshire, The Valley News, September 17, 2014: Fall is the right time for planting trees

There is disagreement among experts as to the best time to plant trees. Some like spring, saying roots have a longer time to get established before winter. Other say no, if you skip a week or two of watering in the heat of August, you can damage roots or even kill a tree. Fall is safer, they say, because the weather is cooler and often rainy. Experts explain that roots grow and extend in fall, even after leaf drop, right up to the time the ground freezes. That last argument makes sense to me, so I’m in the “plant trees in fall” camp …

Harbor Springs, Michigan, Harbor Light, September 17, 2014: Area resident finds family connection to redwoods; nurtures unique trees here in northern Michigan

To grow stands of 200-foot tall trees, with a lifetime of some 2,000 years, for generation upon generation to view in awe; this is the hope of Dr. Gustav Uhlich of Petoskey as he plants and gifts Dawn Redwoods– which populated the area some 2.5 million years ago– around the Northern Michigan. Uhlich’s story has a strong connection to the majestic trees that have found their way to soils around the world …

Ramona, California, The Sentinel, September 16, 2014: Beetle claims more oak trees in Ramona

The goldspotted oak borer (GSOB) continues to claim the lives of oak trees in Ramona. Latest casualties include two oak trees on the San Vicente Golf Course and a tree in the right-of-way on Archie Moore Road, south of Rancho De la Angel Road. Ramona Community Planning Group voted Sept. 4 to recommend to the county that the tree on Archie Moore be cut down as it is now considered a safety hazard …

Peoria, Illinois, Journal-Star, September 16, 2014: Dead and dying trees on the increase

The droughts of 2011 and 2012 continue to take a toll on tree health. Rhonda Ferree, Extension Educator in horticulture, says that trees can take three to five years to show symptoms from a severe event such as drought. Unfortunately trees under stress are less able to fight off insect and disease problems …

herbicide140916Reuters, September 15, 2014: Dupont to pay $1.85 million after herbicide injures trees

DuPont will pay a $1.85 million penalty to resolve allegations that the global chemical company did not properly disclose the risks of using one of its herbicides, leading to widespread damage to tree species through several U.S. states …

Decatur, Illinois, Herald-News, September 16, 2014: Beetle begins to lay waste to Macon County ash trees

Two years after its presence was first detected in Macon County, emerald ash borer continues to gnaw away at the city’s trees. In some areas, effects of the small metallic green beetle have been noticeable, said city forester Randy Callison. In others, the devastation caused by the invasive species could be several years away. But there is little question that it’s coming …

Redlands, California, Daily Facts, September 15, 2014: Tips for caring for native oak trees

One aspect that drew me to Redlands six years ago was its old trees — the Italian stone pines, the more-than-100-year-old eucalyptus tree and especially our majestic oaks. How lucky Redlands residents are to have so many trees that are older than any of us, having been planted or nurtured by our city’s earliest residents. It’s easy for me to get frustrated when they’re not properly pruned or cared for …

Melbourne, Florida, Florida Today, September 13, 2014: Residents upset about chopped down trees

Sturdy trees — like fences — make good neighbors, say residents along the Melbourne-Tillman Canal. So folks along the stretch of the canal just west of Babcock Street already pine for the solitude they lost when the water control district cut down a large stand of pines, oaks and other trees to clear the way for a maintenance path …

New York City, WCBS-TV, September 15, 2014: Multimillionaire movie star, U.S. Senator, want taxpayers to replace $2.5 million in Long Island trees lost to Sandy

Billy Crystal says Long Beach needs its trees back. The actor, along with Sen. Charles Schumer (D-N.Y.), called Monday for the federal government to foot the bill for replacing more than Long Island 2,500 trees lost in Superstorm Sandy …

drought140915Los Angeles, Los Angeles Times, September 13, 2014: Trees are undergoing stress in California’s continuing drought

While dutiful homeowners have been severely limiting — or ceasing — the watering of their lawns and gardens to comply with drought restrictions, one potential fallout is sometimes overlooked: the health of the residential tree canopy …

Louisville, Kentucky, Louisville Courier Journal, September 14, 2014: Whatever became of painted trees

Maybe you remember painted trees, or have seen photos. People would “paint” tree trunks white, generally from the ground up to as far as a child could reach. It was pretty common back to 1890, and quite likely long before. At one time, mostly from the 1940s through the mid-’60s, it seemed like nearly everyone painted their trees. In fact, I’m told if someone didn’t, they stood out as odd …

Southgate, Michigan, The News-Herald, Monday, September 15, 2014: Trees need regular maintenance to remain healthy

I believe that most of us tend to take our trees for granted. They provide shade in the summer and home to birds and other wildlife. Imagine a barren neighborhood without any trees whatsoever; not a pretty sight. We really don’t pay much attention to our trees until something goes wrong. In order to ensure healthy trees, they need regular maintenance just like any other plant …

Los Angeles, Los Angeles Times, September 8, 2014: San Diego homebuyers get an unwelcome feeling

A former “mom of the year,” unhappy that her family was unsuccessful in buying their dream home, embarked on a continuing battle to harass the new buyers into leaving. She faces felony charges as a result …

Tyler, Texas, Morning Telegraph, September 13, 2014: Potential property line, trees issue may disturb Garden of Peace area

Memorial trees planted at a local cemetery were inadvertently located on the wrong side of the property line. Now they are at risk of being destroyed for a construction project

kidder140912Vancouver, British Columbia, September 11, 2014: Burnaby mayor says lawsuit over trees not a tactic to block Kinder Morgan

The mayor of Burnaby, B.C., says his city’s lawsuit against Kinder Morgan over the removal of trees during work related to the Trans Mountain pipeline is not a legal tactic designed to stall — and ultimately stop — the project. But Mayor Derek Corrigan acknowledges his opposition to the proposed Trans Mountain expansion wouldn’t change if the company abandoned its plan to tunnel the pipeline through Burnaby Mountain, which is home to a treasured conservation area. The city filed a lawsuit this week in B.C. Supreme Court asking for an injunction to prevent the company from conducting any work that destroys trees or disrupts parkland …

San Diego, California, Reader, September 11, 2014: Coronado eucalyptus trees destined for doom

Kirby Watson has resided in the shade of the eucalyptus trees on Coronado Island’s E Avenue for over 45 years. She said she was devastated when she received a letter from the City of Coronado last week informing her that several of the trees on her block were destined for removal. Watson was saddened by the idea of losing the trees that she considered central to her neighborhood, but was more disturbed by the city’s handling of the issue. “I just got my letter on Saturday and here we are on a Wednesday,” Watson said on September 10. “The whole thing happened without any notice whatsoever …”

Wallingford, Connecticut, Patch, September 11, 2014: Trees on Center Street in Wallingford will come down as planned

Despite a public outcry against the town’s plan to cut down 38 trees along Center Street, Public Works Director Henry McCully has decided that things will proceed as planned. McCully, who is also the town’s tree warden, said he reviewed testimony from last week’s public hearing, which about 24 residents attended, and talked with some business owners before making the decision, according to the New Haven Register. Mayor William W. Dickinson Jr. agreed with McCully’s decision and told the Meriden Record-Journal that the trees, which were planted in the mid-1990s, are too large and removing them can improve the downtown area …

Jetson Green.com, September 11, 2014: Supercapacitors made of trees

Supercapacitors are high-power energy storage devices with far-reaching industrial applications, such as electronics, automobiles and aviation. However one of the main reasons why they have not been adopted more widely is the high cost and the difficulty of producing high-quality carbon electrodes needed to build them. But a team of scientists at Oregon State University has made a discovery that could change all that. They found a process by which cellulose heated in a furnace in the presence of ammonia can be turned into fundamental building blocks for supercapacitors. Cellulose is Earth’s most abundant organic polymer and one of the key components of trees. In other words, trees could one day be instrumental in creating high-tech energy storage devices …

Bryan Station, Texas, The Eagle, September 12, 2014: Use sheet metal to keep squirrels off pecan trees

If a pecan tree is free-standing, that is, not touching other trees, power lines, etc., you can put a sheet metal collar in place around its trunk to keep the critters from the pecans. Keep it loose so that it won’t girdle the tree over time …

Tucson, Arizona, Center for Biological Diversity, September 11, 2014: Press release: Litigation reins in misguided Army Corps program to cut trees from levees

Conservation groups today successfully ended their litigation against the U.S. Army Corps of Engineers after the Corps suspended its controversial program requiring removal of all trees and shrubs from levees and after Congress passed a new law requiring the Corps to comprehensively review its guidelines governing vegetation on levees. Friends of the River, the Center for Biological Diversity and Defenders of Wildlife dismissed their 2011 lawsuit in federal court that challenged the implementation of the Corps’ policy in California, on the basis that levee vegetation in California provides important habitat for endangered fish, birds and other wildlife, and its removal would reduce levee safety …

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Nassau County, New York, Long Island Herald, September 10, 2014: The trees must go

The Village of Rockville Centre rustled up some trouble recently when it sent notices to residents requesting that they remove trees along roads that are going to be repaved. About four miles of roadway are scheduled to be resurfaced in the coming months as part of the village’s annual roadwork program. The Department of Public Works left letters in the mailboxes of some residents along those stretches of road, informing them that the trees could pose problems and should be removed. But some of the trees are healthy, and residents are angry that the village is trying to force their removal …

Yahoo.com, September 10, 2014: Space lasers could help scientists see carbon trees

Lasers, 3-D imagery and outer-space surveillance sounds like cutting room floor fodder of a scrapped Austin Powers film, but it’s all part of NASA’s latest effort to map the Earth’s forests and gain a better understanding on climate change. Dubbed Global Ecosystem Dynamics Investigation lidar, the laser instrument will be designed to hitch a ride aboard the International Space Station. Once aboard, it will pump out large-scale 3-D imagery of forests …

Lorain, Ohio, The Morning Journal, September 9, 2014: Sheffield council authorizes removal of nuisance pants from residences

Sheffield Village council unanimously passed an ordinance Sept. 8 authorizing the removal of nuisance or diseased trees, shrubs and landscaping from residences. The ordinance applies specifically to plants in the right of way that could pose a hazard to residents. With the passed ordinance, Sheffield Village is now applying this law to city streets to keep residents, trucks and city services safe, and keep the village out of liability, Hunter said. This means that plants are prohibited in the right of way or in the middle of tree lawns that can potentially block street views from driving turns and cause accidents …

Montreal, Quebec, September 10, 2014: Diversify when replacing ash trees, expert says

A local forest ecology expert is advising West Islanders to consider diversification if and when they opt to replace their ash trees threatened by an insect infestation. Jim Fyles, the department chair of Natural Resource Sciences at McGill University’s Macdonald campus in Ste-Anne-de-Bellevue, said there is a long list of possible replacement options in light of the emerald ash borer threat in the region …

Hagerstown, Maryland, WHAG-TV, September 10, 2014: Stephens City residents upset over appearance of trees in town

It has been the talk of the town; residents of Stephens City are embarrassed over how their community looks to the public. “They look bad,” said Elizabeth Fravel, a resident. Driving through town, the appearance of the trees are hard to ignore with many of them drooping down or sliced in the middle. According to Town Manager Mike Kehoe, the cable television company, Shentel, cut the trees down this past June without the town’s approval. “About two weeks later, I was on vacation. They came back, and the trees were pretty much cut horrendously in my opinion and we got a lot of complaints about the appearance,” said Kehoe. He said Shentel does not even provide service to Stephens City, something that has been making residents even more angry …

Coeur d’Alene, Idaho, Press, September 10, 2014: ‘I speak for the trees’

Linda Meyer likens what’s happening to her property to the Dr. Suess book “The Lorax.” “When they get done, I’m going to make a big sign that says: ‘The Grove of The Lifted Lorax,'” she said, pointing down her property line where hundreds of her Ponderosa Pine trees have been removed during the past couple of weeks.  Meyer’s husband, Bruce, said the trees are being removed legally for the most part, but the way it has been handled is causing a neighborhood dispute. When the Meyers purchased their house on Fernan Hill Road they knew their neighbors had a view easement. Now they are exercising their right to remove the Meyers’ trees …

yoda140910Albuquerque, New Mexico, The Republic, September 8, 2014: Yoda, a 650-year-old tree, succumbs to New Mexico’s latest drought

Yoda, a 7-foot-tall Douglas fir on the lava flows south of Grants, died this summer at the age of 650 or so. An icon for scientists studying the history of New Mexico’s climate, Yoda survived many a drought. But the tree couldn’t get through the latest one, said University of Tennessee professor Henri Grissino-Mayer …

Walworth County, Wisconsin, Gazette, September 10, 2014: Trees about to turn Wisconsin into color tour

Wisconsin’s trees are starting to paint hillsides, trails, shorelines, parks and backyards into an autumn kaleidoscope, and state forestry officials say if the weather cooperates it could be a spectacular fall color season. Unlike last year — when parts of Wisconsin saw scattered trees turning color prematurely and even drop their leaves in mid-August due to the dry summer — this year trees have enjoyed adequate rainfall and have grown beautiful and healthy foliage …

Newark, Ohio, Advocate, September 10, 2014: Nature does best job of planting trees

The Ohio Nature Conservancy planted 1,600 trees recently in the Big Darby Headquarters Nature Preserve. The Arbor Day Foundation mailed out packages of ten tiny trees, five different types, to members. Good news? Yes, but in the larger context of overall natural complexity, these token gestures pale against other activities …

Lansing, Michigan, WILX-TV, September 9, 2014: Tenants tired of trees falling on homes

RuthAnn Moore’s living room looks more like a construction site than the heart of her home. “I was shocked,” Moore said. “And I was scared.” She and her husband Dennis were home Friday night when a branch fell on their roof. They say this can’t be a permanent fix, right after an interview with RuthAnn, one of the pieces of wood holding up the roof fell when RuthAnn brushed past it. “Right now I don’t think my trailer’s a safe trailer to live in,” Moore said …

San Diego, California, KGTV, September 9, 2014: Several Coronado trees targeted for removal: City officials say risk is too great

The City of Coronado gave notice to homeowners on E Avenue saying that within a few weeks, four giant sugar gum eucalyptus trees which have stood for more than 40 years have to go. “It’s not a question of money, it’s about public safety,” said Blair King, Coronado’s city manager. After the city received a complaint, it hired a certified arborist to survey its eucalyptus trees and concluded that four of them on E Avenue were a huge liability for the city …

powerlines140909West Palm Beach, Florida, WPTV, September 8, 2014: 2 electrocuted while trimming palm trees

Authorities say two men died after being electrocuted while they were trimming palm trees in southwest Florida. Collier County Sheriff’s Office spokeswoman Michelle Batten says the men were electrocuted while landscaping Saturday near a Naples condominium. Batten says the men were working on a 30-foot aluminum ladder that slipped and hit a live power line …

St. Paul, Minnesota, Minnesota Daily, Sept. 9, 2014: Historic fertilizer could help trees, urban farms

For centuries, the indigenous communities of the Americas cut down and burned vegetation, using the remains to fertilize the soil underneath. Now, in locations around the Twin Cities, city leaders are working with a local Native American community and the University of Minnesota to test a modern application of the age-old technique …

The Examiner, September 5, 2014: How to support and protect growing trees from animals and the winter elements

Protect your trees during the winter from the cold, animals such as deer, voles, by wrapping or protecting a tree with a wrap, bark protector, tree guard or shelter. Don’t let the winter damage your trees this year: take steps to prevent damage and loss of trees in your yard …

San Antonio, Texas, Express-News, September 8, 2014: Shade trees for San Antonio

Shade trees are something that most of us just take for granted—if we have them. For those of us who have had them previously and don’t have them now, we really miss them. I even miss raking leaves (of course I’m more than a little weird sometimes.) Some of us “cuss” trees because we can’t get the grass to grow under them. Quit planting grass there! Get some plants that do grow in the shade. There are lots of them …

Auburn, Alabama, The Plainsman, September 8, 2014: New Toomer’s trees have officially taken root

Auburn University fans will now be able to honor Toomer’s Oaks in two new ways. A plan to pay tribute to the University’s history through sections of the fallen Toomer’s Trees has been approved and clones of the trees have been made available for purchase …

Happychicken140908The Poultry Site, September 8, 2014: Happy hens thrive under a million trees

Free range egg producers across Great Britain have planted more than one million trees to create a happy habitat for their hens. Chickens derive from jungle foul meaning they express their natural behaviour when provided with the shade and shelter offered by the trees. Birds will venture further into their range and live a stress-free life, which is good for the farmer and good for their hens. Over the past 10 years, the British Free Range Egg Producers Association’s 400 members have planted in excess of one million trees …

Climate Central, September 7, 2014: Time for trees to pack their trunks?

During the last two springs, contract planters for The Nature Conservancy have spread out through the pine, spruce and aspen forest of northeastern Minnesota. Wielding steel hoedads, they have planted almost 110,000 tree seedlings on public land. Usually foresters plant seedlings grown from seeds harvested nearby, on the assumption that local genotypes are best suited to local conditions. But these TNC workers were planting red and bur oak (which are uncommon in northern Minnesota) from seed sources more than 200 miles to the southwest, and white pine from as far away as the Lower Peninsula of Michigan, 400 miles to the southeast. TNC is anticipating a day soon — within the lifespan of a tree — when a changing climate may make the forest unsuitable for some tree species and varieties that now live there …

Phoenix, Arizona, Arizona Republic, September 7, 2014: Opinion – Improper maintenance another threat trees face

Most landscapers and tree trimmers in Arizona have not been trained in the proper methods of trimming. Trimming trees takes artistry, creativity, and concern for the shape and health of the tree …

Lancaster, Ohio, Eagle Gazette, September 6, 2014:  Mother Nature continues her assault on area trees

We’re receiving contact seemingly every day regarding the decline in appearance of many trees throughout the county. In fact, it’s been happening for a couple of years now, and it’s also happening all over the Midwest. Although several deciduous trees are suffering, it seems needled trees are getting hit the worst. In a nutshell, here’s what’s going on in nearly every case …

Colorado Springs, Colorado, Gazette, September 8, 2014: Chopping scorched Flying W trees a valuable experience for fire crews

Chainsaws roared and charred trees crashed on rain-moistened grass and brush at Flying W Ranch Sunday, as a team of firefighters began the daunting task of clearing nearly 1,600 acres of trees burned in the Waldo Canyon Fire. The mitigation project is a partnership between the Colorado Springs Fire Department and Flying W Ranch, which aims to give firefighters essential certification training and help the ranch clear the blackened trees that serve as stark reminders of the destructive 2012 wildfire …

mistletoe140905Stockton, California, Record, September 4, 2014: Stockton trees still suffering

As I drive around Stockton’s residential neighborhoods, I have noticed many dead or dying “Street Trees” heavily infested with mistletoe …

Examiner.com, September 4, 2014: Planting bare root fruit trees in the landscape

Adding a fruit tree on your property allows you to harvest fresh pears, apples or cherries in coming years. Fruit trees are ornamental; producing beautiful spring blooms. Fall and winter is an appropriate time to plant bare root trees in many areas. Some trees will require a few years to produce fruit, depending on the maturity of the tree when planted, but it is worth the wait …

Morristown, New Jersey, Morristowngreen.com, September 3, 2014: Trees loom as issue for proposed daycare center in Morristown

Last winter, traffic concerns trumped a daycare center proposed for Turtle Road in Morristown. Now, trees loom large for a similar application facing the zoning board tonight, Sept. 3, 2014. The Learning Experience wants to open a 10,000-square-foot franchise at the intersection of Normandy Parkway and Madison Ave, to serve 175 children who range from infants to pre-kindergarten age. A use variance is needed because the property, one of the last undeveloped tracts in Morristown, is zoned only for residential development …

Tyler, Texas, KLTV, September 4, 2014: Tyler resident struggles with dead trees damaging his property

For nearly three years one Tyler resident says he’s been forced to deal with damages caused by dying trees that aren’t his. Tree lines along Highway 64 are maintained by TxDOT. Limbs that fall from those trees have landed on top of local homeowner Terry Barrickman’s property, causing thousands of dollars in damage …

Hammond, Indiana, Times, September 4, 2014: Ash borer devastates 150 trees in Pulaski Park

There are 150 dead trees in Pulaski Park, devastated by the emerald ash borer, and they aren’t going anywhere soon. Mayor Thomas McDermott Jr., said they discovered the problem in the spring and with gaming and property tax revenues having plunged “it couldn’t have come at a worse time for us. We understand there’s a problem,” he said. “It’s not anybody’s fault but the ash borer …”

Washington, D.C., WTOP Radio, September 2, 2014: Danger signs can point to falling treestreefall140904

The holiday weekend got off to a tragic start when a tree in Woodbine, Maryland, fell on a 75-year-old man while he was grilling. He was killed; three of his grandchildren were injured. Howard County Fire and Rescue is investigating, but it appears that the tree was rotten and eventually gave way. WTOP’s Garden Editor Mike McGrath calls falling trees and tree limbs “one of the biggest dangers of being outdoors.” He says that they happen a lot more often than most people realize …

Grand Junction, Colorado, Free Press, September 3, 2014: Home & Garden: The many causes of oozing trees

The oozing of sap running down the trunk of a tree is called “fluxing.” Is it frothy flux, bacterial wet wood, pitch from the pinon pitch mass borer, alcoholic flux, the result of boring insects, a fungal root problem, or the result of stress?

Somerville, Massachusetts, Journal, September 3, 2014: Alderman consider placing of Somerville’s trees

Although Somerville is a tree city, people who don’t want trees planted near their houses shouldn’t be forced to accept them, according to city officials …

St. Albans, England, St. Albans and Harpenden Review, September 3, 2014: Destruction of trees on the Abbey Line described as ‘mere vandalism’

The destruction of trees on the Abbey Line has been described as “mere vandalism” by furious neighbors who believe they were not properly consulted. Network Rail carried out the vegetation maintenance from St Albans Abbey station to Park Street between August 9 and August 25. One resident said the works have caught everyone by surprise. “We were not told the full extent of the work and we were expecting shrubs and lower branches to be cut. Instead everything has gone. We were in total shock, which has now turned into anger. We feel misled …”

neighborsue140902Los Angeles, California, KCBS-TV, September 2, 2014: New neighbors sue couple over trees to gain view

A heartbroken couple had to have eight trees on their property cut down after their new neighbors successfully sued, claiming the trees were obstructing the view of the valley below. The trees, which were chainsawed down Tuesday, were the subject of a lawsuit by the recent residents, who said the trees obstructed the view from their new home. Leonie Whitehead, 87, and her husband, 89, have lived in their home in Temecula for over three decades and say the ordeal makes them sick. The neighbors sued both the Whiteheads and the neighborhood association, claiming the trees were in violation of HOA restrictions, which say trees cannot unduly impede views. The Whiteheads, who say they didn’t have the energy or the money to go to court, had no choice but to comply …

Little Rock, Arkansas, Arkansasonline.com, September 2, 2014: Regional quarantine proposed to save ash trees from borer

The ash borer, accidentally imported in Michigan from Asia in 2002, has killed tens of millions of trees in 27 states and Canada and has now been found in six Arkansas counties: Clark, Hot Spring, Columbia, Dallas, Nevada and Ouachita. The Arkansas State Plant Board is proposing a quarantine on the movement of firewood, ash nursery stock and ash logs, sawed logs, pulpwood, mulch and compost in these six counties and 19 other surrounding counties to slow the spread of the ash borer …

Baltimore, Maryland, The Sun, September 2, 2014: Invasive trees sprout from Baltimore buildings

They appear in long-vacant buildings and carefully tended structures. Seeds dispersed by wind and birds take root, needing only water, sun and a pinch of soil. The trees are reminders that Baltimore was once a forest, and, if the trees had their way, would become one again. At least 13 grow from buildings in a four-block area on the west side of downtown. Among them are a pair of broad-leafed paulownia trees that lean from second-floor windows in vacant buildings in the 400 block of N. Howard St. Large and verdant, they appear almost to be mocking the scrawny saplings growing in sidewalk wells …

Seattle, Washington, KIRO-TV, September 2, 2014: Neighbors discover more trees slashed

Seaview neighbors have now counted at least 100 trees that were slashed inside Hutt Park in Edmonds. “I had an inkling that there was more that we hadn’t seen the extent of the damage the vandals have done,” said Laura Martin, who first reported at least 30 trees damaged to parks workers last Thursday. The vandals slashed the bark around the trees — that deprives them of key nutrients for survival. The damage is often fatal for the tree …

Activist turns from fighting big box stores to trees

Activist turns from fighting big box stores to fighting for trees

Springfield, Massachusetts, The Republican, September 1, 2014: Northampton rethinks oversight of its shade trees

Even as the city’s Tree Committee dies a more or less natural, tree-lovers are lobbying to replace it with a professional arborculturist. Enter Lilly Lombard. Lombard, the driving force behind new community gardens created in Florence, has turned her attention to trees. Lombard would like to see a new position at the DPW filled by someone who knows trees. To that end, she has been lobbying Mayor David J. Narkewicz,, co-authored an editorial with City Council President William Dwight and developed a slide show …

Durham, North Carolina, The Durham News, September 2, 2014: Power company has an idea to ease the pain of pruning city’s trees

More often than not, when Duke Energy cuts trees limbs back from its power lines, the neighborhood email lists light up with dismay and complaint about how little is left. There is, though, a way to make those periodic tree trims less drastic, according to Lee Pardue from Duke Energy and Brandon Hughson from the Rainbow Tree Care company in Minnesota. It’s called Cambistat, a chemical that slows the tree’s growth rate while stimulating the tree to grow more roots – resulting in a healthier tree that needs less trimming to keep out of Duke Energy’s cables …

Circle of Blue, September 1, 2014: More Trees Means Less Water for California’s Mountain Rivers

Scientists working in California’s Sierra Nevada mountain range have found a new reason to worry about water availability in the western United States as the planet warms – tree growth. Climate models predict that southwestern states will become drier in the coming decades and that mountain snowpack, an important natural water bank, will decline. But research published today points out that changes in vegetation will also play a significant role in determining future water supplies …

New York City, New York Times, September 2, 2014: Exploring a tree one cell at a time

Not every scientist would choose to spend a peaceful summer Sunday morning perched on a jittery scaffold 40 feet up a red oak tree, peering through a microscope to jab a leaf with a tiny glass needle filled with oil. But Michael Knoblauch, a plant cell biologist at Washington State University, is in the stretch run of a 20-year quest to prove a longstanding hypothesis about how nutrients are transported in plants. He is also running out of time: He’s nearing the end of a sabbatical year, much of which he has spent here at Harvard Forest, a 3,500-acre research plot in central Massachusetts …

TNLBGray

Case of the Day – Tuesday, September 30, 2014

A LEG TO STAND ON

 

Did that plaintiff ever have gall ... or gull ... or cojones or something...

Did that plaintiff ever have gall … or gull … or cojones or something …  What he didn’t have was any proof.

The plaintiff in today’s case had his foot broken when a branch from his neighbor’s tree fell.  So how was he different from this rather odd-looking seagull sitting on a seawall to our left?

Easy – the gull has a leg to stand on.

Our hapless litigant – Rick Meyers by name – lived next to a man named Delaney, who owned  a catalpa tree.  The catalpa is a pretty good-looking deciduous tree that drops bean pods and leaves in the fall, but little else. It’s a solid Anglo-American tree, flowering in the spring and with large leaves and deep shade in the summer. In fact, it’s the sole food source for the catalpa sphinx moth, a creature favored by southern anglers as bait. Birds love it, caterpillars love it, fishermen love it … and so do most people.

A catalpa -beloved by fisherman and fowl - but not by Rick Meyers.

A catalpa -beloved by fisherman and fowl – but not by Rick Meyers.

That list would exclude our hobbling protagonist, Rick Meyers. The Delaneys’ catalpa tree provided shade to Mr. Meyers’ driveway with its overhanging branches. But one day, Rick had run barefooted outside to put up the car windows (we suspect a thunderstorm was about to hit, which would have been accompanied by gusty winds, but the record didn’t say as much). While he was doing so, a branch broke free from the tree and fell on his foot.

Rick didn’t have a shred of proof that anyone – including the Delaneys – had reason to know that the branch was going to break. But lack of evidence would not inconvenience our Rick.  He sued anyway, claiming that as owners of a tree in a residential area, the Delaneys had a duty to know the branch was going to fall, and never mind how they were supposed to have figured that out.  You see, Rick’s foot hurt, and someone had to pay.

The trial court took a more sanguine view. It believed that if the Delaneys couldn’t clearly see that the tree was dangerous, they couldn’t be found to be negligent because they had not sleuthed it out. The Iowa Supreme Court agreed. The risk has to be seeable before it can be found to be foreseeable.

A landowner has no affirmative duty to inspect trees where no defect is "readily observable."

A landowner has no affirmative duty to inspect trees where no defect is “readily observable.”

Meyers v. Delaney, 529 N.W.2d 288 (Iowa Sup.Ct. 1995). Meyers and Delaney owned adjoining properties. Standing between their homes, but on the Delaney homestead, was a large catalpa tree. The tree limbs hung over the Meyers driveway. The Meyers family parked cars under the branch each day, and the Meyers kids played around it when outside.

One evening in mid-July, 1990, Rick Meyers ran barefoot out to his car to roll up the windows. He heard a large crack, and then a large catalpa limb fell from the tree, striking and severely injuring his foot. He sued the Delaneys for negligence, claiming they failed to maintain the tree properly, failed to warn him of the dangerous condition of the tree, and failed to protect him from a danger that in the exercise of reasonable care the Delaneys knew or should have known existed.

The trial court found that the Delaneys neither knew nor should they have reasonably known the tree was dangerous, so they were not negligent. Rick Meyers appealed.

Held: The Iowa Supreme Court agreed that the Delaneys were not liable.

The Meyers v. Delaney rule - it's not foreseeable unless its seeable.

The Meyers v. Delaney rule – a tree’s defects are not foreseeable unless they’re seeable.

The Court noted that the general rule is that one who maintains trees owes a duty to avoid injuring persons on adjoining premises by permitting a tree to become so defective and decayed it will fall on them. However, the Court held, there is no duty to consistently and constantly check all trees for non-visible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. If the decay or infirmity is readily observable, the tree owner may be liable for injuries caused by a defective condition of the tree if he or she had actual or constructive notice of the trees defective condition.

In this case, the catalpa tree had had a dead limb removed by a friend of the Delaneys the summer before. The friend, who had some experience working in trees, testified he observed nothing in the tree to cause him concern about his safety. Furthermore, while Meyer’s expert tree trimmer testified that the tree was dangerous, he conceded on the stand that there was nothing that Delaneys could have observed about the tree before the accident that would have alerted them to be concerned over its safety.

Thus, there was no negligence.

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Case of the Day – Monday, September 29, 2014

THE COURT CHANNELS SHAKESPEARE

Traditionally, the Massachusetts Rule – which could be summarized as “I don’t owe you nuthin’ – held that a landowner had no liability to his neighbor for harm done by overhanging branches and encroaching root systems. If the neighbor didn’t like the mess, he or she could trim away the offending branches or roots up to the property line. But the courts didn’t want to hear about it.

However, courts had traditionally held an urban landowner to a higher standard of care when the people being protected were passing motorists on a public highway. In those cases, an urban landowner was obligated to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

bellyachin140304In today’s case, Lois Lockhart had a decaying tree on her property. Neighbor Carl Mahurin complained about it, primarily because one of the branches was overhanging his property. But Lois did nothing. Neither did Carl – unless belly-aching counts as putting forth effort.

Finally, the branch broke off and hit Carl, who was standing beneath it.  You knew that had to happen, or else why would we be telling you this story?  Being injured, and piqued that Lois ignored his entreaties, Carl sued.  (You knew that would happen, too.)

Lois tried to get the case thrown out of trial court. She pointed out that Carl had nothin’ coming from her.  The traditional rule – read “Massachusetts Rule” here ­– dictated that she had no duty to protect Carl from the natural condition of her tree.

But as the great bard once wrote, “I do perceive here a divided duty.” Othello, Act I, Scene 3. And so did the trial court. It was troubled that Lockhart’s duty to strangers passing by in their Hudsons and Desotos was greater than to her neighbor.  That seem divided, and irrationally so.  Lois said, “Heaven is my judge, not I for love and duty, But seeming so, for my peculiar end.”  Othello, Act I, Scene 1.  The trial court said that might be so, but it nevertheless sent the case to the Court of Appeals for the appellate court’s opinion as to her duty.

William Shakespeare - he foresaw the problems with the traditional liability rule hundreds of years ago.

William Shakespeare – he foresaw the problems with the traditional liability rule urged by Ms. Lockhart hundreds of years ago. “Wondrous strange!” indeed.

The Court of Appeals said, “O day and night, but this is wondrous strange!” Hamlet, Act 1, Scene 5. It could see no reason for the disparate treatment, either. Certainly, just as Lockhart owed a duty to Mordred and Mildred Motorist, she must owe the same duty to her neighbor, Carl. However, the Court of Appeals did allow that Mr. Mahurin could have entered onto Ms. Lockhart’s place and cut the tree down itself. So he might be contributorily negligent. Likewise, could he have been a knucklehead for standing under a tree he had complained was dangerous?

To Lockhart, the Court said “There are more things in heaven and earth, Lois, than are dreamt of in your philosophy.” Such as a single duty owed by a landowner to both travelers passing on the road and her next-door neighbor. It sent the case back to trial.

Mahurin v. Lockhart, 71 Ill.App.3d 691, 390 N.E.2d 523 (Ill.App. 5 Dist. 1979). Plaintiff Carl Mahurin brought this action to recover damages for personal injuries he suffered when a dead branch extending over his property fell from a tree belonging to defendant Lois Lockhart, an adjoining landowner, and struck him. In his complaint, Mahurin alleged that Lockhart failed to prune the tree or take other necessary precautions after he warned her of the condition of the tree and the dangers it posed.

Lockhart moved to dismiss the complaint, arguing that a landowner is not liable for physical harm to others outside of her land caused by a natural condition. The trial court denied the motion to dismiss, certified that the question of law raised in Lockhart’s motion presented substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.

Held: The Court held that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.

The narrow issue before the court was to determine the extent, if any, of the duty that a landowner in a residential area owes to persons outside of his premises to remedy some defective or unsound condition of a tree upon his land when the tree and its condition were of a purely natural origin. Mahurin urged the Court to adopt the traditional rule set forth in section 363 of the Restatement (Second) of Torts. This section provided that neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land. However, if the landowner was in an urban area, he was subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The traditional rule applied even though the landowner is aware of the dangerous natural condition and the expense necessary to remedy the condition is slight.

The Court noted that the traditional rule of non-liability developed at a time when land was mostly unsettled and uncultivated. The landowner – unable to keep a daily account of and remedy all of the dangerous conditions arising out of purely natural causes – was therefore shielded from liability out of necessity.

But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it?  Duh, Carl ...

But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it? Duh, Carl …

The Court disagreed that the duty an urban landowner owed to a neighbor should be less than owed to people passing in cars and trucks. It thus ruled that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.”

Therefore, Lockhart’s duty to Mahurin should “be defined using the ordinary rules of negligence. It is therefore appropriate for the trier of fact to consider … such factors as “the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented” in resolving the issue of liability.

The Court noted Lockhart’s argument that Mahurin was contributorily negligent because he stood under a tree that he, by his own admission, knew was dying and dangerous. The Court noted that the Restatement provided that a landowner is privileged to enter upon a neighbor’s land to abate a condition thereon which constitutes a private nuisance. “While this privilege alone does not establish the contributory negligence of plaintiff, it could be considered by the jury in resolving this issue.”

The Court remanded the case for trial, using the standards it had adopted.

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Case of the Day – Friday, September 26, 2014

MORE ON MAZDAS AND BRANCHES

They may just be the best doughnuts on earth ...

They may just be the best doughnuts on earth …

Yesterday, we took up the case of a chagrinned Mazda RX-8 owner. Why was he unhappy? Was it the 18 mpg he got from the rotary engine? Was it the high-priced premium gas he had to burn? Was it the squirrely techniques he had to master for handing the temperamental little Regenesis engine? Of course not! RX-8 owners love their cars. Our guy was unhappy because a limb from his landlord’s tree had fallen on his pride and joy. He wondered whether he could sue.

The answer is, of course, sure he can sue. But, you ask, can he win? That’s a different question altogether. We tried to take up a collection to finance his lawsuit, but we got distracted once we had enough for a box of Lerch’s doughnuts. In the alternative, all we can do is consider his question. And we have an answer — a resounding, 9,500 r.p.m. “maybe!”

The car was damaged, the sandwich was a total loss.  A tragedy of epic scale ...

The car was damaged, but Ms. Israel’s sandwich was a total loss. A tragedy that easily rivals the plagues visited on Pharaoh’s Egypt …

Yesterday, we looked at South Carolina’s duty of care for rural landowners. In today’s case, we see that the duty of care that urban or residential landowners owe to invitees and passersby is much stricter. Ms. Israel was sitting in her car one breezy spring day enjoying what was arguably the 21st best barbeque in the South when a large branch from a neighboring property fell on her car, destroying it and her sandwich. She was troubled about the damage to her car; she was devastated by loss of the uneaten sandwich. So, naturally, this being the United States of America, she sued everyone.

The trial court awarded her thousands of sandwiches worth of damages, but the Court of Appeals reversed. As the owner of property in a residential or an urban area, the neighbor had duty to others outside of his land to exercise reasonable care to prevent unreasonable risk of harm arising from defective or unsound trees on his premises, including trees of purely natural origin. The evidence showed that the decayed tree could be seen from the ground. So the tree’s owner was toast.

But the Court wasn’t willing to serve any barbeque up on the toast. The owner of the pulled pork stand had a duty to his customers to exercise reasonable or ordinary care, measured by his ability to anticipate danger. In the absence of evidence that the restaurant owner either saw or could have seen the decayed limb from his property, he wasn’t liable.

The scene of the mishap - Orangeburg - is n the center of South Carolina "mustard-based" country.

The scene of the mishap – Orangeburg – is in the center of South Carolina “mustard-based” barbeque sauce country, a fact probably having nothing to do with the falling tree branch or the subsequent lawsuit …

So away from the succulent pork (covered in a mustard-based sauce, no doubt) and back to the gutsy little RX-8. The landlord certainly has a duty to his tenants, who are, after all, invitees. And we suppose the house is in a residential area. But was it clear from the ground that the limb was about to let go? If so, the landlord had a duty to fix it. If it was just one of those things, well … that’s what they call an ‘act of God.’

Israel v. Carolina Bar-B-Que, Inc., 292 S.C. 282, 356 S.E.2d 123 (Ct.App. S.C., 1987). Charlotte Israel sued for injuries she received, when a large limb from a tree on property owned by Andrew Berry, Trustee, fell over and onto the car in which she was seated and which was parked in the parking area of the Carolina Bar-B-Que. She sued both the owner of the real estate on which the tree was located and the owner of the land onto which the tree fell.

The next-door lot (the “Berry lot”) was 173 by 135 feet, on which there were a number of trees. Some large water oaks, planted about 1911, were located about 25 to 30 feet from the BBQ property line. These trees had received a radical pruning in 1971. Pictures showed visible signs of decay and rot in one of these trees. Some smaller oaks, planted about 1955, were located some 4 to 10 feet from the property line, between the large water oaks and the BBQ parking lot. These trees were bushy with some limbs overhanging the barbeque operator’s property, and having trunks of no more than 12 inches in diameter. A picture showed these trees in their relation to the barbeque parking lot. The Carolina Bar-B-Que owner occasionally pruned branches off those trees to the extent they were overhanging his lot. The limb that hit the car came from one of the large water oaks, and had a diameter of between 12 and 25 inches. The limb was so large that the Israel car was, in effect, totally destroyed.

The Carolina Bar-B-Que’s manager said that no limbs from the large tree were overhanging his property. He noticed no decayed limbs on these trees. He surmised that the high winds that day “pushed [the limb] out” onto the Barbeque property. When he later removed the trees on this lot, he discovered only one tree in “bad shape” and it was not the tree from which the limb fell. A police officer who investigated the accident said that limb was about 25 feet long, and that he saw a tree from which the limb apparently came. He admitted that he couldn’t testify that there was a decayed portion of the limb visible from the Barbeque lot. However, the tree could have been inspected from the Berry property.

Ms. Israel sued the trust owning the Berry lot and Carolina Bar-B-Que. The jury awarded an $80,000 verdict (or about 27,119 really good BBQ sandwiches) against both the Barbeque and Mr. Berry. They both appealed.

treeoncar140302Held: The Court reversed the judgment against the Barbeque, but affirmed it against the Berry trust. The Court admitted that at common law, Berry would not have been liable for falling tree or limb. However, the realities of modern life had modified the rule. A landowner in residential or urban area has duty to others outside of his land to exercise reasonable care to prevent unreasonable risk of harm arising from defective or unsound trees on his premises, including trees of purely natural origin. Here, the Court said, the evidence supported finding that Berry, the owner of the land from which the tree limb fell, was negligent. The tree was partially decayed, the limb’s dangerous condition and the likelihood of its falling could have been observed by reasonable inspection, and a reasonable person should have been aware of the danger which the decayed limb posed to persons on the adjoining property.

The Barbeque owed to a duty of care to the invitees or business visitors, one of exercising reasonable or ordinary care for the invitee’s safety. Reasonable care required by a business with respect to its invitees is measured by ability of reasonably prudent man to anticipate danger under conditions known or reasonably anticipated to exist. In the absence of evidence that the BBQ owner either saw or could have seen a dangerous condition from the Barbeque property with regard to a tree limb on the adjacent property, Carolina Barbeque was not liable to Ms. Israel.
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Case of the Day – Thursday, September 25, 2014

ZOOM, ZOOM, DING

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

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

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

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

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

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

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

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

Mr. Duell owned a lot of trees ...

Mr. Duell owned a lot of trees …

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

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

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

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

Mr. Duell’s policy of searching for dead trees on his property was good stewardship, but it did not result in his assuming a duty to motorists for injuries resulting from trees falling onto the road. His policy of examining his trees didn’t increase risk of harm to motorists. The people driving by had no prior knowledge of the policy and thus did not detrimentally rely on it. This of course makes one wonder – if people did rely on Mr. Duell’s perspicacity and gumption, would the Court have turned his voluntary good deed into a duty? A scary thought …
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Case of the Day – Wednesday, September 24, 2014

SOMEBODY HERE OWES ME MONEY

Mailbag140924Back to the mailbag!

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

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

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

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

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

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

An insurance adjuster lie?  Horrors!

An insurance adjuster  would tell a lie? Horrors!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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