Case of the Day – Friday, June 5, 2020


Back a century ago or so, when the car was new-fangled, the airplane only read about in magazines, and no one had any broadband, simpler tree questions than our usual fare were being asked. And answered.

Here’s a sample tree question from those days: I have an apple tree growing close to our mutual property boundary. Some of the branches overhang your land, and every year, beautiful ripe apples fall on your side of the property line as well as on mine. Whose apples are they?

If you read yesterday’s case, you would say, “Why they’re mine, because I own the soil, the air branches above and the roots below,” remembering well the doctrine of cujus est solum ejus est usque ad coelum et ad inferos. And you would be…


At common law, the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

Now let’s make the issue more complex. Mr. X owns the timber rights to Blackacre (the name of the mythical piece of land that is the centerpiece of every first-year law school property law question). Ms. Y, however, holds title to Blackacre, subject only to Mr. X’s right to cut down the trees.

Now it turns out that the Blackacre trees are quite fecund, shedding copious amounts of valuable chestnuts. Ms. Y plans to make chestnut stuffing at Thanksgiving. Mr. X, however, says the nuts are his, because they came from the trees to which he has the rights to the trees. He intends to roast the chestnuts over an open fire at Christmas.

‘Aw, nuts!’ you say. ‘You fooled me about the apples. I’m not even going to try to guess. I have no idea.’

Neither did Roscoe Vincent and S.R. Haycraft, protagonist and antagonist in today’s 104-year old antique case from Kentucky.

The court sorted it out for the boys. It’s answer? ‘It depends.’

We love those kinds of answers.

Vincent v. Haycraft, 66 S.W. 613 (Ky.App. 1914). Gillis Vincent conveyed 35 acres of woodland to S. R. Haycraft, reserving to “all timber upon the land herein conveyed with the free and unobstructed right to cut and remove same for the final period of seven years from this date.” Shortly after the sale, Gillis sold the timber rights to Roscoe Vincent. A year later, Roscoe bought the acreage from S.R. Haycraft.

But S.R. reserved possession of the acreage for a year, agreeing to give occupancy of the tract to Roscoe on New Year’s Day 1913. The timber on the land consisted principally of beech trees, and in the fall before S.R. gave up possession, the trees produced a bumper crop of mast.

Mast is the fruit of the beech tree, found in small burrs that drop from the tree in autumn. They are small, roughly triangular and edible, with a bitter, astringent, or in some cases, mild and nut-like taste. They have a high enough fat content that they can be pressed for edible oil. At the time, mast was chiefly valuable as a food for hogs. The beech mast ripened and fell on the ground in the months of October and November.

The issue was whether the mast belonged to Roscoe Vincent, who had acquired title to both the timber and the land, or S.R. Haycraft, who had retained the use and possession of the land until January 1, 1913? The court below held that the mast belonged to Haycraft. Roscoe Vincent appealed.

Held: The mast belonged to S.R. Haycraft.

Roscoe argued that S.R. never acquired any title to the timber. Therefore, when he sold the land to Roscoe, he could only reserve the use and possession of the land that he had previously owned. Roscoe argued that the reservation of the timber carried with it the reservation of the fruit of the timber. Having no title to the timber, he said, S.R. could in no way acquire title to the fruit of the timber. He compared the situation to that of a fruit tree overhanging the premises of another, in which event it is generally held that the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

The Court agreed that S.R.’s purpose was to reserve until the following January 1st whatever estate he had in the land by virtue of his original deed, and it acknowledged that mast is as much the “fruit of the beech tree as the acorn is of the oak, the chestnut of the chestnut tree, or the walnut of the walnut tree.” But it is not like the fruit of a fruit tree.

In the case of fruit falling onto adjoining property, the Court said, the neighboring landowner on whose soil the fruit falls has no interest in the adjoining land of which the tree is a part, and thus, no right to the fruit. Nor is it like the sale of an orchard with the reservation of possession of certain of the trees. “The sole purpose of reserving an orchard or certain fruit trees,” the Court held, “would be to reserve the fruit, for fruit trees are valuable for the fruit alone.”

Here, the case depends on the parties’ intention. The primary purpose of the reservation was the timber itself, and not the incidental fruits of the timber.

Generally, the Court ruled, a sale or reservation of timber to be cut and removed within a specified time is a sale or reservation of only so much as may be cut and removed within that time. Therefore, the removal of the timber within the time specified is an element necessary to the completion of the title. Here, Gillis and later Roscoe, had the right at any time before the expiration of their timber reservation to cut and remove as much timber as they could. While S.R. reserved use and possession of the land after sale to Roscoe, Roscoe retained the right to go upon the land and cut and remove the timber, as well as any constituent part of the timber.

Roscoe retained the right to the mast, in other words, as long as it was hanging on the tree. When, however, the mast became ripe and fell on the ground, it was no longer a part of the timber, and the right to cut and remove the timber did not carry with it the independent right to go on the premises and carry away the fallen mast.

Thus, S.R.’s retention of the use and possession of the land until the following January 1st gave him the right to collect the ripened mast which had fallen on the ground during the months of October and November.

– Thomas L. Root


And Now The News …

U.S. Dept. of Agriculture, June 4, 2020: Tree Census and a Wealth of Public Data

As our country sets out on the monumental task of conducting the U.S. census, the USDA Forest Service is conducting a census of its own – the Forest Inventory and Analysis (FIA). Researchers conducting the FIA, also known as “America’s tree census,” measure trees, collect data and catalogue sample areas in research plots all over the U.S. According to FIA, currently, there are nearly 300 billion trees in the United States. But the program does more than just count trees. There are also several other measurements being gathered; a 580-page manual worth of measurements to be exact. “The data tells a story,” said Greg Reams, national program lead with the Forest Inventory and Analysis team. “Categories of data we collect include land use change into and out of forest land, soils work, carbon sequestration, and tracking wood that is on the ground, information which is critical for fire modelers to calculate wildfire risk ratings.” After locating the plot using aerial imagery, crews often hike for miles through difficult terrain just to get to the site. Once there, crew members measure the trees and catalogue damage from invasive species, fire and weather events. Crew members also measure dead trees, downed material and understory vegetation, which can act as wildlife habitat as well as fuel for wildfire…

Houston, Texas, KHOU-TV, June 4, 2020: Texas tree service worker accused of assaulting black man, using racial slur

DeVonta Brown didn’t think a simple trip to grab a cup of coffee before work would end in his assault. He was going through the drive-thru of a McDonald’s in McKinney on Monday when the driver of a truck drove the wrong way and cut him off. Brown walked up to the truck with his cell phone recording the exchange. The man inside could be heard saying the N-word multiple times.
“You could see it in his eyes. You could see the hate in his eyes,” Brown said. That driver, identified as Christopher Taylor, was later arrested on an assault charge, according to the McKinney Police Department. Taylor is accused of headbutting Brown and spitting on him, according to Brown. The video of the interaction was shared thousands of times on social media. Brown said what he experienced is nothing new to him. But, he said, it was the most blatant act of racism he has experienced. “Just trying to make it home to my wife is a challenge every day. [Enough] is enough,” Brown said. WFAA made several attempts to reach Taylor through Chris Taylor Tree Service by phone and text message but did not receive a response…

LeGrand, Oregon, Observer, June 4, 2020: Forest Service considers ending ban on logging larger trees

A rule change under review by the U.S. Forest Service could end a long-standing provision that prevents the harvest of trees greater than 21 inches in diameter on six national forests in Eastern Oregon and Washington. The limitation on harvesting trees of that size was put in place 25 years ago under a land-management plan amendment known as the Eastside Screens. At the time the Eastside Screens were established as a suite of temporary land management provisions designed to protect water resources and wildlife habitats. Land managers needed to take into account, or screen, the provisions before moving forward with management activities such as timber harvests. What’s under consideration is revising just one provision of the Eastside Screens — the limit on cutting trees larger than 21 inches in diameter, also known as the 21-inch rule. The 21-inch rule has come under scrutiny by the Forest Service because of overcrowded stands of trees that are now deemed a wildfire hazard. The proposal to remove the rule would give managers more flexibility when designing projects, especially landscape forest restoration treatments, said Stephen Baker, regional media officer for Forest Service in the Pacific Northwest region…

Boston, Massachusetts, WBUR Radio, June 4, 2020: Dead And Dying Trees Have More Methane In Their Soil, Study Finds

Of all the troubled trees in Chelsea, there’s one that’s taken root in Roseann Bongiovanni’s mind. “If I remember correctly, it was on Bellingham Hill,” Bongiovanni says. “They would plant this street tree, care for it, the city would go and water it, and then maybe a year later they would see that it died.” This happened over and over, says Bongiovanni, the executive director of GreenRoots, an environmental justice non-profit in Chelsea. “This tree would die no mater what the city did,” she recalls. “So after seeing a tree die in the same place multiple times, we started to think, ‘OK, what’s going on here?'” Bongiovanni suspected that gas leaks were playing a role, not just with that tree, but with many dead and dying trees across the city. And trees matter in Chelsea, a densely populated city where urban heat effects and air pollution can compromise the health of residents. “We’re a community that believes heavily in having more street trees,” Bongiovanni says. “There are so many different reasons why street trees are really important.” Street trees cool sidewalks, absorb pollution, and offset greenhouse gas emissions. “I can tell you what it feels like to walk down a tree-lined street in the summer and then walk down a street that had no trees,” says Madeleine Scammell, a Chelsea resident and professor of environmental health at Boston University School of Public Health. “That’s the case here in Chelsea. A lot of the streets where there are just no trees, it is so much hotter. “Scammell says that many people have long suspected that natural gas leaks harm trees, but there’s been little proof…

Yale Environment 360, June 3, 2020: How Small Family Forests Can Help Meet the Climate Challenge

Tim Leiby had wrapped up a fun but fruitless early-morning turkey hunt and was enjoying an old John Wayne flick when I arrived at Willow Lodge near Blain, Pennsylvania. A few flurries drifted down on this unseasonably cold May morning. After a quick scan of antlers mounted on virtually every wall of the cozy hunting lodge, we headed out for a socially distanced stroll through what Leiby calls “our little piece of heaven.” This 95-acre woods in south-central Pennsylvania’s ridge-and-valley country is a hunting and hiking refuge co-owned by eight families. As much as he loves it, Leiby knows it could be even better. The forest is still recovering from heavy logging in the 1980s, and it’s full of invasive or unwanted plants — he points out striped maple, princess tree, and barberry — that do little for wildlife and keep desired hardwoods like oak and hickory from regenerating. “Barberry is a terrible invasive around here,” Leiby says. “It’s choking out the ground cover.” Small family-owned forests like this one make up 38 percent of U.S. forests — together more than 1.5 times the area of Texas, and more than any other ownership type. While most owners want to do right by their land, they rarely have access to the needed expertise or resources. That, however, may be changing. In April, the environmental nonprofits The Nature Conservancy (TNC), American Forest Foundation (AFF), and Vermont Land Trust announced two new programs, powered by a $10-million rocket boost from the tech giant Amazon, to funnel funds from carbon emitters to small landowners like Leiby eager to grow larger, healthier forests…

Counterpunch, June 4, 2020: The Problem With Chainsaw Medicine: the Forest Service’s Move to Cut Oregon’s Big Trees

The Forest Service is proposing to remove the prohibition against logging trees larger than 21 inches that grow in national forests on the eastside of the Cascades in Oregon. The probation was put into place when ecological studies demonstrated the critical importance of large-diameter old-growth trees to overall forest ecosystem function. The Forest Service argues that it needs the flexibility to cut larger fir and other tree species competing with ponderosa pine to “restore” forest health. The agency suggests thinning the forests will enhance the resilience of the forest against the “ravages” of wildfire, bark beetles, and other sources of tree mortality. The so-called need for “restoration” to what ails the forest by chainsaws medicine reflects the agency’s Industrial Forestry Paradigm. By happy coincidence, such “restoration” happens to provide wood fiber to the timber industry, and typically at a loss to taxpayers. One might assume that green and fast-growing trees are more desirable than dead or slow-growing trees. What the agency doesn’t acknowledge due to its inherent Industrial Forestry bias is that healthy forest ecosystems require significant sources of tree mortality. The healthy forest that the Forest Service promotes is a degraded forest ecosystem…

Windsor, Ontario, Star, June 3, 2020: Thieves lift newly planted trees from senior’s yard

In a brazen act of thievery, four freshly planted trees, lovingly planted by her grandson a few weeks before, were dug up in the wee hours of the night from the front yard of a Windsor grandmother. Firefighter Adam Kunder wanted to do something nice for his 89-year-old grandma Shirley Horwitz for both Mother’s Day and her recent birthday. Horwitz has lived in her downtown Victoria Avenue home for approximately 50 years and the landscaping in her front yard had not been touched for about 30 years. So Kunder, who also owns a landscaping company, decided to redesign and re-plant the gardens in early May.“We tore everything out, I designed it and we installed all new plants, new stone,” Kunder said. “My grandma was so stoked about it.” But sometime overnight Saturday, thieves made off with two blue spruce globe standards and two limelight hydrangea standards, worth approximately $1,000. “I was actually at work, I was at the fire hall and my mom gave me a call and basically said that my grandmother came outside and looked to the left and looked to the right and a bunch of the trees were dug up,” Kunder said. “Basically now there’s just four big holes across her front lawn and landscaping bed…”

Lansdale, Pennsylvania, Reporter, June 3, 2020: From the Ground Up: Trees are for all ages: Plant them everywhere

For his birthday last month, all my friend Elliot wanted was an apricot tree. Yep, just a tree, nothing else. That’s not really too remarkable, for someone to ask for one single, big, lasting thing. For myself, as I get “on in years” I find that there’s little that I want in terms of tangible presents. I’m at an age where health and financial security, along with family and friends, feel like the best gifts. With those in place, I don’t feel the need for much more—though I’ll never say no to something for the yard or garden! In Elliot’s case, though, it’s different. Because Elliot is nine years old. And I don’t know any other child who would ask for a fruit tree — and nothing else — for a birthday present. Happily, the family had already selected the tree just before the stay-at-home order was announced. The tree arrived about a month before the actual birthday. Elliot helped his dad dig a good, welcoming hole, install the 8-foot tree, tamp down the earth, lay a circle of stones, and then a circle of wire fencing to keep out the deer. The day I went to visit, the tree looked healthy and happy, and as if it had been growing there for a while. End of story? Not quite. In so many ways, this little boy has typical nine-year-old passions; he loves Legos and dragons, Minecraft and Star Wars. But there’s a thoughtful, wise, compassionate part of him, too; a part that gets expressed not only in the wish for an apricot tree, but also in the vision of starting his own non-profit organization to encourage people to plant more trees. The name he’s come up with describes the concept: “Plant Trees Everywhere…”

New Orleans, Louisiana, Times Picayune, June 2, 2020: Get trees, yard, home ready to weather the winds and rain of storm season 2020: Dan Gill

Each year, I approach hurricane season with a touch of dread — something that will stay with me until the end of November when the season is over. Predictions that hurricane activity will be above average this season don’t help a bit. Being well-prepared is the best tonic for reducing dread. From the perspective of landscape preparation, when hurricane season arrives trees are always on my mind. You can’t deny the benefits that trees bring to New Orleans. They add beauty, increase property values, benefit us psychologically, clean the air, provide wildlife habitat and shade our homes and outdoor living areas in the summer. Our city would be a different and much less agreeable place without them. When hurricanes threaten, however, the less desirable aspects of trees around our homes must be considered. Trees blowing over in the high winds of hurricanes can be extremely destructive. Now is the time to walk around your yard and look over your shade trees to assess their condition. Pay special attention to older, larger trees that are close enough to your house to hit it should they fall. Of course, any trees that are dead or in very poor condition should be removed as soon as possible. Do not delay dealing with this. Dead or dying trees pose a major hazard during the high winds of hurricanes. Even trees with relatively healthy-looking canopies can have issues. Look for trees that show large cavities or significant decay in their trunks. Sometimes the rot is not obvious…

Springfield, Missouri, News-Leader, June 2, 2020: Why Missouri State removed 24 mature trees along Grand Street

Twenty-four large, mature trees along Grand Street near National Avenue that provided white blooms each year are gone. Missouri State University, which removed the trees from the parking lot fence row on Grand — between National and Dollison Avenue — says it was acting in the best interest of the campus and surrounding neighborhoods. “We were really happy to get them out,” said Jason Rhea, MSU’s assistant director of facility management grounds services. Rhea said the Callery pear trees were likely planted after the underpass that connects that parking lots and the south side of campus was built in the 1980s. At the time, the ornamental tree popular in urban landscapes was thought to be sterile. A variant of the Bradford pear, the Callery pear trees hybridized with other pear species, which resulted in a fast-growing tree now considered invasive along fence lines and the forests in Missouri. “They are becoming a real issue,” he said. “They are really quick growing and they are brittle.” The Springfield campus of MSU has 2,035 trees representing 115 species and employs three certified arborists. They are involved in deciding what to plant and where…

United Press International, June 2, 2020: Study: The world lost 30 million acres of tree cover in 2019

The world lost tree cover the size of a soccer field every six seconds in 2019, totaling nearly 30 million acres, with a third of that loss coming from the mature rainforest, a new study released Tuesday said. The mature rainforest is needed for biodiversity and carbon storage, the Global Forest Watch said. Last year’s forest loss was 2.8 percent higher than in 2018, the study said.”At least 1.8 gigatons of carbon dioxide emissions are associated with 2019 primary forest loss, equivalent to the annual emissions of 400 million cars,” Global Forest Watch said in a statement. “Though the rate of primary forest loss was lower in 2019 than record years of 2016 and 2017, it was still the third-highest since the turn of the century.” The study said Brazil accounted for more than one-third of the humid tropical primary forest loss globally. It said the loss in 2019 was the third highest in the past 13 years. “Naturally occurring fires in the Brazilian Amazon and other tropical rainforests are very rare,” the report said. “Often, fires signal previous deforestation. Farmers and ranchers commonly set fire to recently deforested land to clear branches and stumps. Fire also plays a role in agricultural cycles, so land that had been cleared of forest in years past may be burned again to prepare for re-planting or to clear weeds from pastures…”

Panama City, Florida, WJHG-TV, June 2, 2020: Caught on Camera: people cutting down trees in Topsail Hill Preserve State Park

Topsail Hill Preserve State Park is said to be one of the hidden gems of Walton County. Bill Potter is a neighbor, who not only lives right next to the park but is also a regular volunteer. Potter said he had a tense interaction with the people cutting down the trees this weekend. “Frankly, I was flabbergasted,” said Potter. Potter received a call from his neighbor Saturday afternoon, about something strange happening in Topsail Hill Preserve State Park in Walton County. “I thought he was going to call the ranger but he charged on down there.” When Potter got there, he says he saw his neighbors cutting down trees in the state park. “I have a feeling you don’t work for topsail,” said Potter in the video. Potter says he tried to keep them around until law enforcement arrived… But they got away. His neighbor, Garret Barry posted the video on Facebook, hoping someone would recognize them. According to Jeff Talbert, who is familiar with topsail hill, it is illegal to tamper with wildlife or nature in a state park…

Kuala Lumpur, Malaysia, Thomson Reuters, June 2, 2020: No let-up in global rainforest loss as coronavirus brings new danger

Tropical rainforests disappeared at a rate of one football pitch every six seconds last year, researchers said on Tuesday, urging countries to include forest protection in post-pandemic plans. The loss in 2019 of 3.8 million hectares (9.3 million acres) of tropical primary forest – which means intact areas of old-growth trees – was the third biggest decline since the turn of the century, according to data from Global Forest Watch (GFW). “Primary forests are the areas we are the most concerned about – they have the biggest implications for carbon and biodiversity,” said Mikaela Weisse, a project manager at the GFW forest monitoring service, run by the World Resources Institute. “The fact that we are losing them so rapidly is really concerning,” she told the Thomson Reuters Foundation. Loss of primary forest, which hit a record high in 2016 and 2017, was 2.8% higher in 2019 than the year before. Agricultural expansion, wildfires, logging, mining and population growth all contribute to deforestation, according to GFW researchers. Cutting down forests has major implications for global goals to curb climate change, as trees absorb about a third of the planet-warming greenhouse gas emissions produced worldwide…

Phoenix, Arizona, KNXV-TV, June 1, 2020: FD: Palm tree trimmer dies after incident with wires in Phoenix backyard

A tree trimmer has died after an incident at a Phoenix home Monday morning. Phoenix fire officials say they received a tree rescue call near 28th Street and Campbell Avenue around 9 a.m., but that call turned into a body recovery. The trimmer is believed to have made contact with electrical lines, electrocuting himself while working on a backyard palm tree. Fire officials say the victim was not showing signs of life or responding when fire officials arrived. Power company workers headed to the scene to secure the electrical lines in order for crews to recover the man’s body…

Santa Barbara, California, Noozhawk, June 1, 2020: Save Tree-trimming For Months That End With Letter ‘R’

The Santa Barbara Wildlife Care Network (SBWCN) has seen a disturbing increase in the number of patients orphaned as a result of tree-trimming practices across Santa Barbara and Ventura counties. During spring and summer, wild animals are actively nesting. Many nesting animals, especially those that nest in tree cavities such as woodpeckers and squirrels, are in serious danger of losing their nests and their lives to tree trimming. The Santa Barbara Wildlife Care Network (SBWCN) recommends that tree-trimming be saved for months ending in the letter “R” to avoid nesting season. If trimming a tree is absolutely necessary, ask your arborist to learn whether they know the signs of active nesting, how to look for nests, and the legal consequences for knocking down or destroying nests…

London, UK, The Times, June 1, 2020: Millionaire Chris Kiley accused of felling protected trees

A millionaire businessman has been accused of cutting down protected trees at his seafront home and turning the grounds into a private racetrack. Chris Kiley, 66, who owns a chain of supermarkets, lives in a nature reserve in south Wales. Neighbours have lodged complaints about work and noise coming from the £2.5 million home overlooking Caswell Bay on the Gower peninsula, the first area in Britain to be designated an area of outstanding natural beauty. Residents claimed that trees were being cut down illegally on a protected site and that Mr Kiley and his friends were using the grounds as a “racing track” for off-road bikes…

Charleston, South Carolina, Post & Courier, May 31, 2020: Commentary: We sorted the facts on Charleston tree-cutting and found real solutions

All over Charleston, citizens are suddenly being jolted by the sounds of chainsaws cutting the trees in front of their house. There are big, burly men with big trucks butchering the trees, and if homeowners challenge them, they often are rudely dismissed and told that Dominion Energy has an agreement with the city to allow the cutting. The outraged citizens then call their City Council member who says, yes, there is such an agreement and there’s nothing that can be done. This is exactly what happened to us — but we refused to accept that nothing could be done. We went to work and discovered a lot of “fake facts.” We researched the “real facts” and started to develop and push for real solutions. In short: A lot can be done, and the city is the only entity that can do it. And it won’t happen unless citizens make it happen. Fake Fact No. 1: Dominion has convinced many people, including some city officials, that it is a simple choice: pretty trees or reliable electricity. Real Fact: This is a false choice and simply not true. Many cities all over the country have developed commonsense policies to have both…

University if California Agriculture & Natural Resources, May 31, 2020: Watch Out For Invasive Shot Hole Borers on Your Landscape Trees

Watch out for these insects! Invasive shot hole borers (ISHB) represent two related species of beetles (polyphagous and Kuroshio) in the genus Euwallacea. Both spread fusarium dieback, a disease that restricts the flow of water and nutrients in the tree, resulting in dead branches, dropped limbs, and even death. Over 60 species of native and non-native ornamental trees and avocados in Southern California are susceptible the ISHB/fusarium dieback complex.Examples of known hosts of the ISHB/fusarium dieback complex include: Box Elder (Acer negundo), Avocado (Persea americana), English Oak (Quercus robur), Valley Oak (Quercus lobata), California coast live oak (Quercus agrifolia), Big leaf maple (Acer macrophyhllum) silk tree (Albizia julibrissin) Liquidambar (Liquidambar styraciflua), Coral tree (Erythrina coralladendron), California sycamore (Platanus racemose), Blue Palo Verde (Cercidium floridum), Purple orchid tree (Bauhinia variegate), Kurrajong (Brachychiton populneus); and many species of Acacia.The beetles are native to Southeast Asia and were likely introduced into California in shipped goods, wood products, or packaging. While tiny (about the size of a sesame seed), they are prolific, tunneling into host trees and living and reproducing in galleries while feasting on the disease-causing fungus they spread from tree to tree…

London, UK, Daily Mail, June 1, 2020: Don’t leaf me here, Mum! Mischievous boy, 4, gets stuck inside a TREE with only his head and arm sticking out and has to be rescued by a stranger during first family outing since lockdown

A cheeky little boy managed to get stuck inside a tree with only his head and arm sticking out a tiny hole at the top – before a kind-hearted ‘hero’ rescued him. Finley Ibrahim, four, was exploring the woods in Eastham Country Park, Merseyside, with two of his brothers when he slithered into a hole in a tree trunk and couldn’t get back out. His mum Lindsey Ibrahim was called over to the tree by Finley’s older brother Riley, seven, but her bad back meant she couldn’t pull her son out of the bizarre predicament he’d managed to get into. Since her husband Terry Ibrahim, 40, was working from home around 10 minutes drive away, Lindsey was forced to seek help from a man who was at the park with his family. After around 15 minutes of being jammed in the stump, Finley was pulled out of the top of the trunk by the dad who came over and climbed the tree ‘like spiderman’…

Abilene, Texas, Reporter-News, May 31, 2020: Bruce Kreitler: Trees take no prisoners in fight for resources

One thing you have to admire about trees, is that they are pretty upfront about their intentions. No beating around the bush for a tree. Once a tree sprouts out of the ground, it means to grow as tall as it can, gather as much of the available resources as it can, and look out for No. 1, with no regard whatsoever for any other plants. Frankly, as far as competing plants goes, and this includes other trees, the plant world is extremely competitive, and is all about who can kill whom first. When you are looking at an untended tree growing somewhere, what you are seeing is the survivor of an ongoing, never-ending, battle for supremacy. Growing plants look placid enough, but they are always struggling for their very survival, to out-compete their neighbors. Because of how the competition for, and sequestration of, resources works in the plant world, successful trees of any real size have two big effects on their environment. First, over time, a sizable tree is going to gather a lot of resources, in one spot. You and I may look at a tree and see a lot of wood and foliage, and be aware that there also exists a large root system to support it, but a lot of other things look at that same picture and see food, and survival, or propagation. The only thing between everything that would like to feed on what trees have gathered, and the tree, is whatever the tree can do to defend itself…

San Francisco, California, Chronicle, May 28, 2020: 2nd tree this week drops limb at SF’s Washington Square Park

A ficus tree bordering Washington Square Park in San Francisco shed a roughly 12-foot-long limb Wednesday evening, the second tree in as many days to drop a branch near the North Beach park in as many days. No one was injured as a result of the 2-inch-diameter limb dropping off, but the event is jarring in light of the fallen branch that injured five people, including a young child, at the park on Tuesday. There were no major injuries reported as a result of that incident, though the child was taken to a hospital as a precaution, evaluated and released. The ficus that dropped the limb Wednesday was one of seven trees along Columbus Avenue that the Public Works Department had planned to cut down and replace last year. They were deemed to be too risky to leave standing. Public Works is responsible for San Francisco’s roughly 125,000 street trees. The Recreation and Park Department oversees the 131,000 trees dotting the city’s thousands of acres of parks — it was a park tree that dropped its limb Tuesday. Four years ago, a 100-pound limb fell on Emma Zhou’s head while she was watching her two children play in Washington Square Park, paralyzing her from the waist down. In 2018, the city agreed to pay $14.5 million to settle her legal claims…

US News and World Report, May 28, 2020: Regulators Approve PG&E Bankruptcy Plan Despite Safety Fears

California power regulators on Thursday unanimously approved Pacific Gas & Electric’s $58 billion plan for getting out of a bankruptcy caused by a series of deadly wildfires, despite ongoing worries about the utility’s ability to safely operate its crumbling electrical grid. The vote by the Public Utilities Commission came just a few hours after a federal judge ripped the company for continuing to engage in reckless behavior that he believes is endangering even more lives. U.S. District Judge William Alsup blasted PG&E for “flim flamming” him about its newfound commitment to safety in previous hearings. He also raised worries that state power regulators haven’t done enough to prevent “a recalcitrant criminal” from causing more death and destruction as the risk of wildfires rises with the summer temperatures. “If there ever was a corporation that deserved to go to prison, it is PG&E,” Alsup said. After enduring Alsup’s scorn, PG&E cleared a key hurdle to end its nearly year-and-half bankruptcy with the PUC’s approval of a complex plan resolving more than $50 billion in claimed losses after the company was blamed for igniting a series of catastrophic wildfires in 2017 and 2018. The Northern California fires killed more than 100 people and destroyed more than 27,000 homes and other buildings…, May 28, 2020: Global environmental changes leading to shorter, younger trees

Ongoing environmental changes are transforming forests worldwide, resulting in shorter and younger trees with broad impacts on global ecosystems, scientists say. In a global study published in the May 29 issue of the journal Science, researchers led by the U.S. Department of Energy’s Pacific Northwest National Laboratory found that rising temperatures and carbon dioxide have been altering the world’s forests through increased stress and carbon dioxide fertilization and through increasing the frequency and severity of disturbances such as wildfire, drought, wind damage and other natural enemies. Combined with forest harvest, the Earth has witnessed a dramatic decrease in the age and stature of forests. “This trend is likely to continue with climate warming,” said Nate McDowell, a PNNL Earth scientist and the study’s lead author. “A future planet with fewer large, old forests will be very different than what we have grown accustomed to. Older forests often host much higher biodiversity than young forests and they store more carbon than young forests.” Carbon storage and rich biodiversity are both keys to mitigate climate change. The study concluded, “Pervasive shifts in forest dynamics in a changing world,” determined that forests have already been altered by humans and will mostly likely continue to be altered in the foreseeable future, resulting in a continued reduction of old-growth forests globally…

Sacramento, California, Bee, May 28, 2020: Contractor electrocuted while working on trees in Sacramento, fire officials say

A contractor for a landscaping company was electrocuted by a power line Thursday while working on trees in Sacramento’s Land Park neighborhood, according to fire authorities. Fire and utility crews responded around 10:45 a.m. to the 1300 block of Marian Way for reports of a tree fire, according to a tweet by the Sacramento Fire Department. There was no fire upon arrival, but a man, in approximately his mid 40s, was found in a tree about 50 feet off the ground with apparent injuries caused by a nearby power line, Fire Department spokesman Capt. Keith Wade said. The injuries appear to be caused by high-powered electricity, and the man was unresponsive, Wade said. Wade said the man was pronounced dead at the scene…


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Case of the Day – Thursday, June 4, 2020


Over the years, these august blogs have pretty much settled the question of a landowner’s right to trim his or her neighbor’s trees to the property line – the Massachusetts Rule – whether the trimming be above the ground (branches) or below the ground (the roots). But what if the trimming kills the tree, or – as in today’s case – makes it fall down?

The answer can be found in the ancient Latin maxim “cujus est solum ejus est usque ad coelum et ad inferos.” I recognize that every time I trot out any Latin, I fondly recall Mrs. Emily Bernges, my sainted Latin teacher from high school days (and those days were many days ago). I recall her again today, because not only was she a crackerjack instructor and a gifted disciplinarian (in an all-male school with only two female teachers, she could calcitrare asinus when juvenile male asinus needed calcitraring), but she was able to instill in my young hormone-soaked teenage brain a love for writings of Marcus Tullius Cicero and Gaius Julius Caesar that remains with me today.

So what would Emily tell us about today’s case? She would ring the hotel desk bell she kept next to her jar of pencils, say “class, attention!”, and then explain that cujus est solum ejus est usque ad coelum et ad inferos translates as “to whomsoever the soil belongs, he owns also to the sky and to the depths.” We would protest that such can hardly be the state of legal affairs, because that would mean that every satellite transiting the sky would be committing countless trespasses as it crossed the continent.

It is true, Emily would tell us (it seemed to me she knew everything, so her being versed in some medieval common law would hardly have surprised me), that the cujus est solum doctrine – a relic of the Middle Ages – has been somewhat abrogated by aviation. The Supreme Court severely curtailed the “to the sky” part of the rule during World War II, ruling in United States v. Causby that the amount of sky a landowner owned was paltry. However, the part of the cujus est solum doctrine addressing ownership of the depths is still pretty good law.

In today’s case, the excavation at the cancer center pretty clearly caused the neighbor’s oak to fall, because a major part of the tree’s root system (which had grown onto cancer center property) was severed. The Alabama Supreme Court held that in excavating one’s property, a landowner should not negligently cut the roots of a neighbor’s tree. However,  the Court said,  as long as the cutting was non-negligent, if the neighbor’s tree fell as a result, well, cujus est solum ejus est usque ad coelum et ad inferos to you, unlucky neighbor. 

That “negligent” versus “non-negligent” severing part of the ruling is puzzling. I’m not sure of the difference between negligent and non-negligent cutting, or for that matter, whether there even is a difference. If you own ad inferos (and the Court says you do own to the depths), and remove any roots you find while excavating your inferos, that appears to be your right… no matter whether you sever them with a backhoe or hire beavers or even detonate a small nuclear device. It is the fact the roots were severed that caused the tree to fall, not how the roots were severed.

Harding v. Bethesda Regional Cancer Treatment Center, 551 So.2d 299 (Supreme Court, Alabama, 1989): Bethesda Regional Cancer Treatment Center hired general contractor GBB to build a concrete containment facility for a radio therapy linear accelerator, part of Bethesda’s cancer treatment facility. The concrete containment facility was located along the property line separating BRCT land from the rear of the Hardings’ property.

A few weeks after GBB completed the excavation needed for site preparation, a large tree located on the Hardings’ property fell during a wind storm, damaging their home. The Hardings claimed trespass, contending that the excavation work had been conducted across their property line. They also sued in negligence, claiming that the root system of their tree was cut and the tree undermined during the excavation on Bethesda Regional’s property.

The trial court entered summary judgment in favor of BRCT and GBB. The Hardings appealed.

Held: BRCT and the contractor GBB were not liable to the Hardings.

Intrusion upon land without consent of the possessor is an essential element of trespass quare clausum fregit. BRCT and GBB offered affidavits of the excavators that at no time did they encroach on the Hardings’ property, as designated by boundary line markers. The Court held that the affidavits shifted the burden to the Hardings to produce some evidence of encroachment. Dr. Harding’s affidavit averred that the “excavation and digging was done on what appeared to me to be my property… Mr. Lynn [a surveyor] advised me that in fact excavation work had been performed on my property.” But that affidavit was hearsay and speculation, the Court said, not admissible evidence.

The Court held that BRCT and GBB showed that the excavation work was done in a skillful, prudent, and workmanlike manner. Under Alabama law, a landowner has a right to excavate on his own property for a lawful purpose, close to the boundary line, as long as he does not endanger the lateral support of the adjoining property. The Hardings made no claim involving lateral support, but instead only complained that their tree roots, which intruded onto the BRCT property, were cut.

An adjoining landowner has a right to remove limbs that hang over his property. Given that right (enshrined in the Massachusetts Rule), the Court said, “an analogy can certainly be made regarding a property owner’s right to remove roots extending onto his property. This is especially true in light of the landowner’s right to excavate on his own land. To deny such a right would create an oppressive restriction on the use of one’s own land.”

The doctrine of cujus est solum ejus est usque ad coelum et ad inferos (“to whomsoever the soil belongs, he owns also to the sky and to the depths”) may have been qualified insofar as air flight and oil and gas law is concerned, the Court observed, but “it still extends to air space that can be occupied by limbs of trees, and, we hold today, to the depths that can be occupied by roots of trees.”

The owner of property has no duty to refrain from the non-negligent cutting roots of a tree that intrude upon his property. Here, the Court found, a civil engineer and land surveyor indicated in his affidavit that the survey of the lot showed “the location of a large hardwood tree which evidently blew over in a recent wind storm. The tree was on the property line and had been excavated underneath for construction of the adjoining parking lot… [O]ur opinion is that the wind blew the tree over because its root system had been cut and exposed.” An agricultural extension agent said in his affidavit that the “excavation [that cut the roots] made this tree highly susceptible to wind damage.” While these affidavits provided evidence that the tree roots had been cut and that the tree became more susceptible to wind damage because of the exposed root system, the Court said, they did not set forth any facts to establish negligent excavation.

– Tom Root


Case of the Day – Wednesday, June 3, 2020


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

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

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

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

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

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

Taubenfeld v. Starbucks Corp., 48 A.D.3d 310, 851 N.Y.S.2d 512 (N.Y.A.D. 1 Dept., Feb. 21, 2008). Florence Taubenfeld fell over a tree root. The root was growing in a tree well cut into a public sidewalk in front of premises owned by Park Plaza and leased to Starbucks. Faster than you can say sugar-free hazelnut latte made with nonfat milk, Mrs. Taubenfeld sued, claiming negligence. The trial court granted Park Plaza’s motion for summary judgment, but denied Starbucks’ motion. Starbucks appealed.

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

In this case, the lease imposed on Starbucks no more than a duty to maintain those portions of the sidewalk that the coffee shop made special use of, for the purpose of providing outdoor seating for its customers. As to the remainder of the sidewalk beyond Starbucks’ outdoor seating, Park Plaza’s duty was limited by a Larchmont village ordinance that directed property owners to keep the sidewalk in front of their premises in good repair and safe condition for public use. That ordinance, however, did not specifically create tort liability.

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

– Tom Root


Case of the Day – Tuesday, June 2, 2020


It’s not what you know, it’s who you know… That’s what the people looking for a break are saying these days. Paul Manafort and Michael Cohen got released from federal prison early because of COVID-19. Previously, we’ve seen Rod Blagojevich, Michael Milken, Eddie DeBartolo, and, of course, Sheriff JoeSholom Rubashkin, an obscure sailor whose offense of being sloppy with secret material was seen as less serious than Hillary’s,  a dead boxer, and a right-wing writer who was prosecuted by Presidential enemy Preet Bharara for campaign law violations.

This might be a good time to talk about releases… not the Presidential kind, but rather the kinds of prospective releases or liability waivers that are a part of our lives, from amusement parks and ski resorts to pools to dry cleaners to parking lots and hat checks. We get little tickets that have fine print on the back stating that by using whatever service we’re using, we agree that we can’t hold the vendor liable if anything goes wrong. Our fedora’s missing from the hatcheck? Too bad. Our pants have a hole burned in them from being pressed? Maybe we can cut them off and make shorts. The roller coaster collapses and crushes us to death? Sorry, pal, guess this just ain’t your day, and tomorrow doesn’t look very good, either.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court granted review.

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

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

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

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

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

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

  – Tom Root


Case of the Day – Monday, June 1, 2020


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

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

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

A perfect illustration of a distinction without a difference.

A perfect illustration of a distinction without a difference …

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

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

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

DOTD appealed.

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

Now this is a distinction without a difference ...

… as is this.

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

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

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

– Tom Root


Case of the Day – Friday, May 29, 2020


Ask a Cleveland Browns fan (if there are any left, that is):  Experience really does matter. Grabbing the hottest college quarterback (Charlie Frye, Brady Quinn, Colt McCoy, Johnny Manziel, Deshawn Kiser) with zero NFL experience has not been Jimmy Haslam’s ticket to the Super Bowl.  And now, we have Baker Mayfield. Another college QB standout, sent to Cleveland to die… True, he’s still on the team after two years, no mean feat at that franchise since its rebirth in 1999.

To borrow Samuel Johnson’s description of a second marriage, it’s the triumph of hope over experience.

Experience does makes a difference. That’s a lesson we can take away from today’s case.

There’s another lesson, too, illustrated by the old criminal law adage that no defendant should ever trust his freedom to 12 people who are too stupid to know how to get out of jury duty. Part of that maxim is based in reality: despite the Constitutional promise of a “jury of your peers,” most trial attorneys know that the jury generally ends up overpopulated with government workers (who get time off with pay for jury duty), such as county workers and schoolteachers, or retirees. Professionals, business owners and managerial types – to name a few – usually finagle their way out of the jury dock.

You're much more likely to get 12 confused jurors than you are to get angry ones ...

You’re much more likely to get 12 confused jurors than you are to get angry ones …

Historically, the facts found by the jury are virtually bulletproof. This is partly because tradition and the Constitution have sanctified the community judging concept represented by juries, and partly because the legal system has to have some method of deciding facts with some finality.

Nevertheless, social scientists tell use that there is wisdom in the crowd. So perhaps the jury is right more than it’s wrong. Perhaps it isn’t. Because the law accords such respect to the secrecy of jury deliberations, we may never know.

Today’s case illustrates how carefully appellate courts parse jury findings. It’s quite common for the trial-court loser to complain on appeal that the jury findings were wrong. As the Maine Supreme Court makes clear to us, it’s quite uncommon for the appellate court to agree.

Back in spring 2011, Keith Anthony asked his neighbor, Paul Gagnon, to help him cut down a rotten tree. Both Keith and Paul were accomplished tree professionals. Paul used a chainsaw on the 30-inch trunk while Keith pushed on it with a Bobcat. Suddenly, the tree “exploded.” A falling limb knocked Paul unconscious and seriously injured him. (Despite the fact that Paul subsequently died during the litigation, he did not succumb to injuries from the tree.

Paul sued Keith for negligence, arguing that Keith should have warned him that the tree could explode, and that he shouldn’t have been pushing on the tree with the skid-steer. In his answer to Paul’s complaint, Anthony argued that Paul was negligent, too, raising what’s known as the affirmative defense of comparative negligence. The trial court jury found that both Keith and Paul were negligent, and that Paul was at least as negligent as Keith in causing his own injuries.

explo151116The appellate courts do everything possible to tip the scales in favor of the jury. Its standard of review – the deference the courts of appeal will give the jury’s decision – is to uphold a jury’s verdict if, when viewed in the light most favorable to the winning party, there is any credible evidence in the record to support the verdict. This means that if five witnesses said Keith drove the Bobcat over Paul’s foot, but one witness said that Paul deliberately stuck his foot under the wheels, the jury’s decision to go with the one witness and reject the observations of the other five will be upheld. Appellate litigation can be like watching those hapless Browns get outscored 30-0 by Pittsburgh for the first 59:30 minutes of the game, only to have Cleveland score a single field goal in the final thirty seconds and win.

Here, the Court decided that no one expected the tree to explode. Shortly after the accident, Paul admitted that he didn’t think Keith was doing anything with the skid-steer that contributed to the tree breaking or falling too soon. Keith corroborated the accidental nature of the event, testifying that the tree “just dropped suddenly without warning or anything.”

The Court went out of its way to note that both Paul and Keith “had substantial experience cutting trees and working in the woods, and both were aware of the rotted condition of the tree they were working on.” A Maine arborist testified that using the Bobcat to try to bulldoze the tree over while someone else sawed at it was, charitably put, a stupid idea. Under the circumstances, the Court said, both Paul and Keith should have known better than to try to use a skid-steer to push the tree over.

As for the jury, the Court reasoned that from the evidence, a jury could have concluded that Keith was negligent in operating the Bobcat; (2) either Keith or Paul or both were negligent because they should have known that the way they were cutting down the tree was dangerous; or (3) no one was negligent, and the tree “explosion” was just one of those things. Because the jury could have gone any of several ways on the verdict, its conclusion that both of the guys were knuckleheads was supported by the record.

In other words, there was enough evidence in the record for everyone. When that’s the case, the jury’s decision as to which version to credit stands.

And if you’re experienced enough to know better, a jury is going to hold you to your experience.

A Bobcat of the type that Keith misused ...

A Bobcat of the type that Keith misused …

Estate of Gagnon v. Anthony, 126 A.3d 1142 (Supreme Court of Maine, 2015). Keith Anthony asked his neighbor, Paul Gagnon, to help cut down a rotted tree at Anthony’s place. Both men were experienced woodcutters. The tree to be felled was about thirty inches wide with a large limb growing out of it. Gagnon used a chainsaw to make a wedge cut in the tree below the limb while Anthony used the bucket of his Bobcat skid-steer loader to push the limb away from the house and a nearby sapling. As they performed their respective tasks, the tree “exploded” and the limb fell on Gagnon, injuring him. Gagnon sued Anthony, alleging that Anthony failed to warn him about the possibility that the limb could snap because of the rotted condition of the tree, and also alleging that Anthony was negligent in his operation of the Bobcat. Anthony raised an affirmative defense of comparative negligence under 14 M.R.S. § 156 (2014).

A trial jury found that both Anthony and Gagnon were negligent and that Gagnon was at least as negligent as Anthony in causing his own injuries. The Estate’s motion for a new trial was denied, and this appeal followed.

Held: The jury’s verdict was upheld. The Court said it would uphold a jury verdict if, when viewed in the light most favorable to the prevailing party, there is any credible evidence in the record to support the verdict. Gagnon, as the movant, was required to show that the jury verdict was so manifestly or clearly wrong that it is apparent that the conclusion of the jury was the result of prejudice, bias, passion, or a mistake of law or fact.

jury151116The Maine Supreme Court said it was clear from the record that neither man expected the tree to “explode” as it had. In a recorded statement that was admitted in evidence, Gagnon explained that the tree “broke way too soon, it should have never broke at that point.” In his statement, Gagnon placed no blame on Anthony, stating that he did not believe that Anthony was doing anything with the skid-steer that contributed to the tree breaking or falling too soon. Anthony corroborated the accidental nature of the event, testifying that the tree “just dropped suddenly without warning or anything.” Furthermore, the evidence showed that both Gagnon and Anthony had substantial experience cutting trees and working in the woods, and both were aware of the rotted condition of the tree they were working on. The Court dryly observed that “it would not be unreasonable to infer from this circumstance that both men knew, or should have known, the risks associated with cutting the rotted tree, and both should have known that the plan to use the Bobcat to fell that tree was ill advised.”

The Court said that the evidence was sufficient for the jury to decide any of three ways. The jury could have found that (1) Anthony was negligent in his operation of the Bobcat; (2) either Anthony or Gagnon or both were negligent because the dangerousness of the method they undertook to fell the rotted tree should have been obvious to each; or (3) neither of them was negligent, and the limb falling onto Gagnon was simply an unexpected accident. Where the causal fault of both parties is in dispute, the Court said, “it is the sole prerogative of the jury to determine the comparative degrees of fault of each of the parties to a negligence action.”

Although the record did contain evidence that Anthony accepted some responsibility for Gagnon’s injuries, and although a licensed Maine arborist testified that pushing a tree with a skid-steer is “not the proper way to do it,” the Court ruled that there was sufficient credible evidence in the record to support the jury’s finding that Gagnon was at least as negligent as Anthony.

Thus, the trial court didn’t abuse its discretion in denying Gagnon’s motion for a new trial.

  – Tom Root