Case of the Day – Thursday, November 21, 2019

LOOKING FOR SOMEONE TO BLAME

No matter how rational and discerning television juries might be, in real life, the decisions that the finders-of-fact make can be a crap shoot, especially with a roomful of parties.

I recall an old, wise lawyer telling me years ago that cases with multiple defendants were a headache for defense counsel, because jurors naturally assumed with so many people accused of damaging the poor plaintiff, some must be at fault. “So they listen to the poor plaintiff’s sob story,” the wizened old barrister said, “and they start looking around the courtroom for someone to blame.”

A cautionary note to plaintiffs: Sometimes that backfires, because when so many parties with differing, interlocking relationships cram the defendant’s dock, convincing the jury that one or more of the defendants owes a duty to your poor injured plaintiff can be like trying to catch a greased pig. Such as in today’s case.

The tree was rotten. It had been rotten for a long time. It collapsed onto a passing cyclist, out enjoying a country ride on a dedicated bike path. An electric utility owned by a mega-power holding company (imagine a corporation with buckets full of cash) held an easement over the bike path and adjacent land to trim the trees away from its lines, and that utility had a thundering herd of contractors signed up to do the hazard tree analysis and trimming for it.

Shouldn’t be too hard to get the money flowing to the plaintiff, right? Well, let’s see…

Rossetti v. American Electric Power Co., 2004-Ohio-118, 2004 Ohio App. LEXIS 109 (Ct.App. Licking County, Ohio, Jan. 12, 2004). Rosemarie Rossetti and her husband, Michael Leder, were riding bicycles on the T.J. Evans Bike Trail in Licking County when a linden tree collapsed and fell into an Ohio Power line and across the bike path. The tree then hit Rosemarie, seriously injuring her.

The linden tree that fell was located about 51 feet off of the bike trail on land adjacent to the bike trail owned by Karen Matz and John Skowronski. The tree, which was about 80 years old and 101 feet tall, leaned over the power lines. According to the Rossetti’s expert, Dr. Sydnor, there was a huge cavity in the base of the tree and the “tree was hollow for… three, four feet up.” The tree had been hollowed out at the base for over 20 years, and there was decay around the base that had existed for almost the entire life of the tree. Both the decay and the hollowed out part of the base faced away from the bike path. According to Dr. Sydnor, the tree was rooted in the stump and the “root had actually grown through the stump and was growing up the hill. The root is – the failure of that root was what caused the failure of the tree. That was the only thing that was actually holding the tree up.”

Ohio Power had an easement over Karen & John’s property and the bike trail for trimming or removing trees along the trail that interfered with its power lines. The linden tree was not located within Ohio Power’s easement, but instead was about 51 feet from the trail and 25 feet from a wire fence marking the edge of the trail property.

Ohio Power trims and removes the trees in and around its easement on a three to five year trimming cycle. Under this cycle, the trees next the bike trail were inspected and maintained in 1988-1989, between 1990 and 1992 and in 1995. As part of its tree trimming program, Ohio Power contracted with both ACRT and Nelson Tree. ACRT, under its contract with Ohio Power, hired work planners who, as part of the trimming/removing cycle patrolled the electric lines and identified easement trees needing trimming or removal. Nelson Tree Service would then perform the actual trimming or removal for the 1995 cycle.

Sticking a defendant with a duty to the plaintiff was a greased pig of a task…

Rosemarie and Michael sued everybody, Ohio Power, ACRT, Nelson Tree and Karen & John. Everyone responded with motions for summary judgment.

The trial court granted the defendants’ motions for Summary Judgment, holding that “it was not foreseeable that the Linden tree would fall onto the bicycle path and cause a person physical harm” and that “given the lack of evidence beyond mere inference indicating the Linden tree was trimmed by the utility Defendants under the tree-trimming program, Plaintiffs cannot establish proximate cause.”

Rosemarie and John appealed.

Held:  The defendants’ motions for summary judgment were properly granted.

In a negligence case, the Court said, a plaintiff must prove that: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) the plaintiff suffered harm; and (4) the harm was proximately caused by defendant’s breach of duty. The existence of a duty depends on the foreseeability of the injury. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act.

Here, the Court said, it was not reasonably foreseeable that the tree would fall onto the bicycle path and cause a person physical harm. John, who owned the private property on which the tree was located, testified there was no reason to notice the tree before it fell because “it looked healthy. I mean, there was no reason to notice it. It wasn’t as if the crown was brown or the bark was peeling.” Dr. Sydnor, Rosemarie’s and Michael’s ‘ own expert, agreed that “earlier on in the growth of this tree it would have been more readily identified as a hazard tree than later on.” While he testified that the tree would have been identified as a hazard in the 1980’s, Dr. Sydnor admitted that it was not reasonably foreseeable in 1980 that the linden tree was going to fall within the next 18 years.

“Looks fine to me…”

What’s more, Dr. Sydnor testified that the linden tree was leaning for its entire life and that the tree had been hollowed out at its base for over 20 years, and that the decay around the tree’s base had been there “well in excess of 20 years, probably 40… maybe 80” years. Using the formula generally accepted in his field, Dr. Sydnor said the linden tree had a live crown-ratio of 66%, which was “good.” According to Dr. Sydnor, the tree was either the dominant or co-dominant tree in the canopy, which indicates that the tree has to, at some point, be fairly healthy. Thus, Dr. Sydnor said, even if Ohio Power ACRT, and Nelson Tree Service actually examined and trimmed this specific linden tree in 1995, and observed the decay, hollowed cavity, and poor root structure, it was still not reasonably foreseeable the tree would fall in the next four years, which would brought Ohio Power and its contractors to the next trimming cycle. Dr. Sydnor did testify that the tree would fall some day, but, the Court of Appeals said, “such testimony does not create a genuine issue of material fact since most trees will eventually fall.”

Others, including a Right-of-Way Program Developer with Davey Resource Group formerly employed by ACRT as a supervisor to the Utility Forestry Pre-Planner, and a Licking County Park District Ranger who saw the tree shortly after it fell, both agreed that the “crown, the top of the tree, was full of leaves…it looked like a healthy tree.”

Furthermore, the Court said, Nelson Tree, as part of its contract with Ohio Power, had no duty to inspect the trees on and adjacent to Ohio Power’s easement. Instead, its job was merely to trim or remove trees that were marked by ACRT. Nelson had no discretion with respect to which trees were to be trimmed or removed.

Based on all of that, the Court held, it was not reasonably foreseeable that the tree would fall, according to Rosemarie’s and Michael’s own expert evidence, and thus, “no duty arose on behalf of Defendants to take any action with regard to the Linden tree.”

– Tom Root

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And Now The News …

Farm & Dairy, November 20, 2019: Expert: Risk of spotted lanternfly on Christmas trees is minimal

Folks worried that the spotted lanternfly will put a “bah humbug” into their holiday by taking up residence in their live Christmas tree should toss those concerns to the side like used wrapping paper, according to Penn State Extension experts. “Real trees are part of an outdoor ecosystem, and there is always a chance that insects may be brought indoors with a tree, and the spotted lanternfly is no exception,” said Tanner Delvalle, a horticulture extension educator based in Berks and Schuylkill counties. “However, Christmas trees are not a preferred host for spotted lanternflies, so the probability of finding a spotted lanternfly or an egg mass on Christmas trees is low and should not be a reason for anyone to forego having a live holiday tree.” To further quell concerns, Delvalle said that Christmas tree growers follow integrated pest management practices to minimize such risks. And, in the case of spotted lanternfly, growers in the quarantine zone of Berks, Bucks, Carbon, Chester, Dauphin, Delaware, Lancaster, Lebanon, Lehigh, Monroe, Montgomery, Northampton, Philadelphia and Schuylkill counties work with the Pennsylvania Department of Agriculture to meet the spotted lanternfly quarantine requirements prior to the sale of Christmas trees…

Philadelphia, Pennsylvania, Philadelphia Magazine, November 20, 2019: No, Spotted Lanternflies Are Not Hiding in Your Soon-to-Be-Christmas Tree

I, like so many others, find it necessary to usher in the holidays by picking out a good ol’ Christmas tree and plopping it in a watering basin in my living room. It’s a surefire way to get into the festive spirit — and a live tree fills your home with that fresh forest smell, after all. So this past weekend, I was dismayed when my equally holiday-crazed roommate told me she might not want to get a live tree. Why? Because of spotted lanternflies. My roommate fell prey to a spreading rumor that the dreaded invasive insects are infesting Christmas trees and ruining the holidays. But alas, after some frenzied digging, I’m happy to inform you that this rumor is false: Agricultural experts at Penn State Extension reported this week that the risk of a spotted lanternfly hitching a ride indoors on your Christmas tree is “minimal…” Everyone can now relax…

Milwaukee, Wisconsin, WITI-TV, November 20, 2019: ‘Looking for the perfect tree:’ Men busted with 3K+ pounds of fir boughs stolen from national forest

The Marion County Sheriff’s Office seized 3,800 pounds of fir boughs that were unlawfully taken from the Willamette National Forest. The sheriff’s office said Forest Patrol deputies stopped two men on Nov. 12 in a vehicle which was carrying the fir boughs on Highway 22 near Stayton. During the traffic stop, the deputies learned the fir boughs were unlawfully taken and were going to be used commercially for creating Christmas decorations. The men, identified as Jose Lucas Lucas, 42, and Juan Lucas Perez, 31, both from Washington County, were charged with unlawful cutting and transport of special forest products. The sheriff’s office said the illegal harvest and sale of special forest products in the state is a continuing concern. Christmas trees and boughs, cones, bear grass, salal, and firewood are a few examples of special forest products…

Denver, Colorado, KDVR-TV, November 20, 2019: Metro-area Christmas tree lot owners warn of shortage

Owners of Christmas tree lots in the Denver area say there is a shortage of trees this year. The owners say the problem dates back a decade to supplies in states like Oregon and North Carolina. “It’s the perfect storm,” said Tyler Sherwood, who owns Jolly Christmas Trees, which has locations in Stapleton and Aurora. “The perfect storm of recession eight years ago and topography: diseases in Oregon with some of their trees.” Sherwood says he has trucked in about 1,400 trees from Michigan to make up for the shortage, so he is confident there will be enough Christmas trees this year and beyond. “It takes a long time for the market to recover,” Sherwood said…

Randolph. Massachusetts, Wicked Local, November 19, 2019: Christmas tree sellers get ready for short season

Half a dozen workers unloaded trees from a logging truck and sorted them by height at That Bloomin’ Place on Tuesday as owner Jeff Smeed inspected the trees through the plastic netting. “These are little five and sixers, but I can tell they’ll be gorgeous,” said Smeed. With Thanksgiving on Nov. 28 this year, Christmas tree sellers are getting their stocks ready for a shorter-than-usual selling period before the big day. Smeed, however, doesn’t see this as too big a problem. “It’s a condensed timeline, four weeks instead of five. It’ll mean more intense days getting set up,” said Smeed, who prefers an unusually short selling season over an unusually long one. He said that last year, when there was an extra week between Thanksgiving and Christmas, he was begging for more trees from his suppliers. “I was out of wreaths, trees, everything, and there were still 10 days until Christmas,” he said…

Knoxville, Tennessee, WBIR-TV, November 19, 2019: Tennessee trying to bring back the nearly extinct American Chestnut tree

The Tennessee Environmental Council planted hybrid American Chestnut trees at Panther Creek State Park Tuesday. It’s part of an effort to bring back the once thriving tree in a new way. The trees once dominated our region, but a foreign disease and blight wiped them out in the early 1900s. Now, every hole shoveled and every sapling planted is a step in the right direction for the American Chestnut tree. Johnny Boling volunteered to come from Norris to Morristown to help plant the hybrid plants. “Naturalists have been trying to replace the trees that died about 100 years ago but nothing has worked over the years,” Boling said. The hybrid sapling may be small initially, but by the time it’s fully grown it could be close to 100 feet. Cynthia Hernandez, the program coordinator for the Tennessee Tree Project, said the tree will hopefully grow considerably in five to 10 years. “It’s been said to comprise 25 to 30 percent of the forest,” Hernandez explained of the native version of the tree. “So the forests today look a lot different than they did say 100 years ago.” The planting at parks across the state is an experiment to see if the hybrid version of the chestnut tree can grow and survive…

Portland, Oregon, KPTV, November 19, 2019: Historic Oregon Christmas tree farm closed due to tree shortage

An historic Christmas tree farm won’t be open this year for tree-cutting season. Kirchem Farm closed this season due to a shortage of fully grown Christmas trees. If you look around the farm, you’ll see lots of potential Christmas trees. But there’s just one problem. “It’s probably six feet to the tip or little under, and it’s not very full,” Kirchem Farm Co-Owner, Cher Tollefson, said. Many of the trees aren’t ready yet to be adorned with ornaments and sit in living rooms. “This tree’s tall enough, but it also needs to fill out, it needs to be a little more full up here,” Tollefson said, showing FOX 12 the trees. “And if you look around they’re kind of all that way.” For the first time in nearly 30 years, families won’t be able to choose their favorite tree at the historic farm. “Our trees just need a year to catch up,” Tollefson said. Tollefson says the shortage is due to a couple of factors, including a seedling shortage in the mid 2000s and scorching summers…

Seattle, Washington, KING-TV, November 19, 2019: Bellevue plants hundreds of Sequoia saplings to boost tree canopy

Volunteers planted several hundred Sequoia saplings in a Bellevue park Saturday as part of the city’s effort to increase its tree canopy. Bellevue plans to plant approximately 1,000 Sequoia trees in parks and open spaces this fall to aid efforts to boost the city’s tree canopy to 40%. On Saturday, 30 volunteers planned to plant approximately 300 two-foot tall saplings in Wilburton Park. The other trees will be planted at Ardmore, Kelsey Creek and Airfield parks, and Forest Park Meadows Open Space. The city says aerial imaging shows its tree canopy has shrunk from 45% in 1986 to 36% in 2017 when it leveled off. Steady development, including construction of the East Link light rail, poses a risk to Bellevue’s trees. To combat the problem, PropagationNation, which locates and propagates Sequoia and Redwood trees, donated $8,000 worth of Sequoia trees to the city. Although they aren’t native to Seattle, Sequoia trees were chosen, because they’re fast-growing, pest-resistant, and drought-tolerant. Over the last five years, native trees like western red cedar and western hemlock, have had a higher mortality rate due to drought stress, according to the city …

Los Angeles, California, Times, November 18, 2019: In the Sierra, scientists bet on ‘survivor’ trees to withstand drought and climate change

The sugar pine, with its foot-long cones and feathery branches that stretch out high above the forest, used to be one of the most common trees standing guard over Lake Tahoe’s clear waters. But drought, bark beetles and climate change have ravaged this beloved conifer, whose population was already diminished by logging, development and other human activities. From 2012 to 2016, drought and bark beetles killed more than 129 million trees in California, most of them conifers in the Sierra Nevada. On the drier, south-facing slopes on this basin’s north side, sugar pines were hit especially hard as mountain pine beetles attacked the water-starved trees, tunneling through their bark until many of them died. “You had literally side-by-side sugar pines, one alive, one dead,” said UC Davis forest biologist Patricia Maloney. But it’s not the dead trees that interested Maloney. It was the survivors…

Cleveland, Ohio, Plain Dealer, November 18, 2019: Brook Park begins process to rebuild depleted city tree canopy

A tree inventory and survey is under way as the first part of a multi-phase process to restore Brook Park’s ailing tree canopy. According to Certified Master Arborist Chad Clink of Bartlett Tree Experts, Brook Park’s tree canopy is less than 19 percent, “one of the lowest (for) municipalities in Cuyahoga County.” “This is about getting a baseline for what your tree population looks like, and then starting to think strategically about putting trees in the right places so they are assets in the long haul,” Clink explained to City Council at the Nov. 6 caucus, held just prior to its regular meeting. Brook Park Economic Development Commissioner Scott Adamsworked with Clink to secure a recently awarded $27,000 grant as part of the county’s Healthy Urban Tree Canopy Grant Program. A significant part of the restoration will involve the main municipal campus, known as the City Center, where a main park, playground, recreation center, branch library and Brook Park City Hall are located…

Palm Beach, Florida, WPBF-TV, November 18, 2019: ‘We may have to look for another state tree’: Disease is wiping out palm trees

Imagine your lush, tropical yard wiped out, killed by an insect creeping throughout the Palm Beaches and Treasure Coast. Homeowners are losing thousands of dollars in landscaping. “I miss the nice, big green tree,” said Valeria Fabiani, a homeowner. Fabiani used to have a window with a view. “There’s a tower that I don’t like and I was trying to cover it,” said Fabiani. She wanted to create a palm tree oasis in her backyard. “It started looking like this one. The leaves would yellow and the branches would get completely dry,” said Fabiani. “Once it gets the disease, it’s too late. If it’s infected, it has to be removed,” said Michael Zimmerman, the owner of Zimmerman Tree Services. The insect, a type of plant hopper, is the carrier of a disease known as lethal bronzing…

Phys.org, November 18, 2019: Scientists uncover resistance genes for deadly ash tree disease

New research has identified the genetic basis of resistance to ash dieback in UK trees, opening up new avenues for conservation. Researchers from Queen Mary University of London and the Royal Botanic Gardens, Kew sequenced the DNA from over 1,250 ash trees to find inherited genes associated with ash dieback resistance. The study, published in leading journal Nature Ecology & Evolution, showed that resistance is controlled by multiple genes, offering hope that surviving trees could be used to restore diseased woodlands, either by natural regeneration or selective breeding. Professor Richard Nichols, author of the study from Queen Mary University of London, said: “We found that the genetics behind ash dieback resistance resembled other characteristics like human height, where the trait is controlled by many different genes working together, rather than one specific gene…”

Salt Lake City, Utah, Deseret-News, November 17, 2019: Growing greener: U.S. cities are losing trees and their life-giving benefits. The scramble is on to replace them

Two hundred trees don’t look like many, standing in a fenced enclosure, the majesty of the Wasatch Mountains behind them. Not many, that is, unless you’re among the city’s urban forestry staff who unloaded them, wrestling a seemingly endless supply of 20-gallon containers from the semi-truck that carried them from the Oregon nursery that raised them. At 7- to 10-feet tall each, they’re tricky for arborists who place them carefully on a Bobcat, then hurry alongside as they’re moved to the enclosure, to be lifted again and lined up by types. Viewed across the city’s Public Services Department yard, it’s hard to sense the scale they’ll achieve when they’re planted around the city, where some may live 100 years and grow 60 feet tall. Thinking that trees are just pretty is like reading a book jacket instead of the book. Those skinny trunks, resembling spindly legs of adolescent runners, may one day support a canopy that lowers temperatures warmed by city-hot asphalt, scrubs air, filters water, reduces flooding and shelters readers, strolling seniors and kids playing hide-n-seek. They may even slow mental decline…

Houston, Texas, Chronicle, November 17, 2019: Tree-killing fungal disease native to Hawaii spreads on Oahu

An ohia tree-killing fungal disease local to Hawaii was discovered spreading on Oahu after wildlife officials conducted an aerial survey of the island forest, state officials said. State Division of Forestry and Wildlife officials tagged 41 more trees that could be ailing from rapid ohia death after first discovering an infected tree in the summer, the Honolulu Star-Advertiser reported Friday. Dozens of trees need to be tested for the disease, but the area is rugged and difficult to reach, state protection forester Rob Hauff said. “It will probably take several months because they are all in different places,” he said…

Erie, Pennsylvania, Times-News, November 17, 2019: A new generation of trees

Vernon Peterson said he has always considered the stretch of Erie’s Bayfront Parkway as it passes West Eighth Street and Frontier Park “kind of the welcoming mat” to the city and its bayfront. Peterson, the executive director of the Lake Erie Arboretum at Frontier, expects the view to be even more welcoming in time, thanks to a cooperative effort involving donations of time and money that replaced a row of dead and dying trees with a variety of new ones. Work wrapped up Saturday on planting 31 trees along the Bayfront Parkway in city-owned Frontier Park to replace over 30 mature trees that were removed during the spring. The old trees, planted decades ago to serve as a noise barrier, were removed because some had been topped, others had grown into the overhead power lines, some were infested with insects and most of the pines had a fungus that weakened their immune systems, Peterson said. L.E.A.F. first partnered with Penelec parent company FirstEnergy, and the city of Erie to remove the trees. FirstEnergy agreed to cut down and stump the trees and remove the debris, which was a big cost savings to the city, Peterson said…

Canadian Broadcasting Corporation, November 17, 2019: If you care about old growth trees in B.C. now’s your chance to speak up

The province will spend months collecting more public feedback on how old-growth trees should be protected or cut down in yet another round of engagement over new rules for forestry and conservation in B.C. The Old Growth Strategic Review follows a similar consultation process, intended to result in the overhaul of B.C.’s forestry rules to better protect ecosystems, maintain jobs and reconcile with First Nations. The overhaul was a central plank of the NDP’s election platform in 2017. However, conservationists say the review is a stalling tactic and argue new legislation is needed now to slow the cutting of B.C.’s huge trees, some as old as 800 years. Andrea Inness, a campaigner with the Ancient Forest Alliance, says the planned meetings are another delay to meaningful action such as announcing increased protections for old growth forests. “They are kicking the ball down the field,” she said…

Boston, Massachusetts, Globe, November 14, 2019: With a ritual blessing and clean cut, Nova Scotians prepare Christmas tree for journey to Boston

It was a festive atmosphere in Pictou County on Tuesday as hundreds of people gathered in a wide ring around a 45-foot white spruce. This tree, on the property of Desmond Waithe and Corina Saunders, will soon be Boston bound. “My sister lives in Boston,” said Theresa Benoit, who had traveled up from Antigonish to be there to see the tree come down. “I’m going to call her tonight and tell her that I’ve seen the tree getting ready to go.” Since 1971, Nova Scotia has sent the city of Boston a Christmas tree to thank it for the support and aid for Halifax after an explosion 102 years ago killed 2,000 people and left the city in ruins. This year, the Nova Scotia Department of Lands and Forestry chose the 60-year-old spruce from Pictou County to make the 684-mile southbound journey. “I’m certainly going to miss the tree,” Saunders said. “It’s a beautiful tree.” There were free coffee, snacks, and games for all the students who had come from school to take part in the festivities. The smell of wood smoke and sage permeated the chilly air, mixing with the scent of fresh snow that had fallen hours earlier. Before the tree was cut, the crowd heard speeches from Lands and Forestry Minister Iain Rankin and from Ryan Woods, commissioner of parks and recreation for Boston, where the tree will arrive on Dec. 5 for a tree-lighting the same day on Boston Common, the oldest public park in the United States…”

Rancho Cucamonga, California, Daily Bulletin, November 14, 2019: Oak tree killer found in Wrightwood; here’s how you can stop the spread

A small beetle that kills giant oak trees has been found near the San Bernardino County mountain community of Wrightwood, and officials are placing the blame on imported firewood. The goldspotted oak borer, native to Arizona, was first found in San Bernardino County last year in Oak Glen. It was also found in the Sugarloaf area near Big Bear City this summer. The insect was detected in recently-killed California black oaks in Wrightwood and confirmed by a U.S. Forest Service entomologist. A news release from the Forest Service points the blame for all three infestations on borer-infested oak firewood brought into the areas. Officials urge the public to avoid transporting infested oak firewood into uninfested areas. Any places with coast live oaks, black oaks or canyon live oaks are vulnerable, including San Bernardino mountain communities and surrounding national forest lands, according to the Forest Service. While the San Bernardino and Angeles national forests, CalFire and local agencies are developing a plan for response in the county, at-risk communities are asked to familiarize themselves with the threat and report any suspected activity at gsob.org…

Science, November 14, 2019: A mysterious disease is striking American beech trees

A mysterious disease is starting to kill American beeches, one of eastern North America’s most important trees, and has spread rapidly from the Great Lakes to New England. But scientists disagree about what is causing the ailment, dubbed beech leaf disease. Some have recently blamed a tiny leaf-eating worm introduced from Asia, but others are skeptical that’s the whole story. Regardless of their views, researchers say the outbreak deserves attention. “We’re dealing with something really unusual,” says Lynn Carta, a plant disease specialist with the U.S. Department of Agriculture (USDA) in Beltsville, Maryland. American beech (Fagus grandifolia), whose smooth gray trunks can resemble giant elephant legs, can grow to almost 40 meters tall. It is the fifth most common tree species in southern New England and in New York state—and the single most common tree in Washington, D.C. Its annual nut crop provides food for birds, squirrels, and deer…

Science Daily, November 14, 2019: Ash Dieback: Better news for European ash trees

For the past decade the outlook has been gloomy for European ash trees devastated by Ash dieback and facing the threat of more invasive pests. Now the latest scientific research brings better news. It reveals that European ash has moderately good resistance to the Emerald Ash Borer (EAB) a beetle which has severely affected ash species in the USA and some parts of Russia. Tests on a selection of ash species show that European ash — while not immune to initial attack by the EAB — has the resources to restrict the beetle’s development. The study finds that the frequency with which larvae of the EAB developed to later stages in European ash was much lower than in the highly-susceptible black ash. But European ash had similar resistance to that of Manchurian ash which co-exists with the beetle in East Asia. Previously, researchers were concerned that if EAB arrived in Britain, any native European ash trees that hadn’t succumbed to ash dieback may be finished off by the beetle…

Fort Myers, Florida, News-Press, November 13, 2019: Appellate court rules in favor of Lee County homeowners who lost citrus trees

Lee County homeowners who lost their citrus trees to the state’s failed canker-fighting campaign more than 15 years ago have won their case — again. Although the homeowners have won repeatedly in court, the Florida Department of Agriculture and Consumer Services has refused to pay the money. On Wednesday, Florida’s Second District Court of Appeal in Tampa ordered the department and its commissioner to immediately pay the millions owed to nearly 12,000 households in Lee County, with interest — upholding a Lee Circuit Court judge’s order to hold them accountable more than a year ago. While he’s hopeful the latest ruling will result in full payment, Robert Gilbert, a Coral Gables attorney who represents the homeowners, isn’t so sure. “I think that they will ask for the court to reconsider their decision and come up with all sorts of mumbo-jumbo about how the court got it wrong,” Gilbert said…

San Diego, California, KFMB-TV, November 13, 2019: Is the city responsible for an overgrown tree filled with rats in Ocean Beach?

Rodents are making themselves at home in an overgrown tree. Neighbors in Ocean Beach aren’t exactly thrilled about rats living in the ivy-covered tree. Of course, there’s also the anxiety about what could happen on a windy day that makes the tree shake. “It could slip down and crush the homeowner,” said Kitty Belmonte, who lives just west of the palm tree. “We’ve got everything that lives up there [like] mice, rats, opossums, raccoons [and] skunks,” said Chris Taylor, who lives east of the tree. So, is this tree the city’s responsibility? News 8’s Shawn Styles looked into it. News 8 reached out the San Diego County Vector Control and the City of San Diego. The city did contact News 8 and said that planting invasive plants like ivy on city property is illegal, thus, the ivy is not its responsibility. The city will send a notice to the tree owner to remove it within 30 days…

Tampa, Florida, WFLA-TV, November 13, 2019: Duke Energy customer concerned with tree near power lines

Darryl Raulerson is concerned. Every time he walks in his backyard in St. Petersburg, he sees a tree scraping against the Duke Energy power lines. He thinks to himself, it’s only a matter of time. “When we get a bad storm or something, it’s going to come down and obviously take down the lines with it,” said Raulerson. “It’s been leaning like this for quite some time… It’s getting to the point right now where I’m getting worried with it.” So Raulerson called Duke Energy. Duke sent out a crew and workers told him the tree was fine. There was nothing to be worried about. Raulerson followed up and called Duke back and felt like he was getting blown off. “It sounded to me like he just didn’t care. He just wanted to talk to me on the phone and get me off the phone,” said Raulerson. “That’s that.” So he called 8 On Your Side. News Channel 8’s Chip Osowski called Duke Energy and the company issued this statement, saying in part, another crew will come back out to his home and reevaluate the situation: “The safety of our customers and line workers is a top priority for Duke Energy. We received the customer’s complaint on Nov. 3 and visited this morning (Nov. 13) to investigate, within our 10 business day timeline for non-immediate concerns. A vegetation management coordinator, who is also a certified arborist, inspected the tree that is located on a nearby neighbor’s property and also reviewed additional spans of power lines in the general area. Through a visual inspection from the ground, the coordinator found there to be no structural defects or damage that would cause an immediate threat to our lines. As such, it currently meets our reliability and safety specifications…

Oklahoma City, Oklahoma, KFOR-TV, November 13, 2019: New study: Oklahoma City’s metro has more tree cover than any time in its history

They’re here on business. Urban foresters Mark Bays and Riley Coy walk the paths at Will Rogers Park in search of a couple of big elms they heard about. “First, you have to go up and hug the tree,” smiles Bays, the Oklahoma Urban Forestry Coordinator. Together, they measure diameter, crown spread, and height. Their efforts provide a tiny sliver of a new and much larger picture. “You can imagine all the trees and whatever size they are,” Bays says. The Oklahoma Forestry Service, the Association of Central Oklahoma Governments, and the Oklahoma City Community Foundation got together for a first-of-its-kind survey of trees across more than 500 square miles of the metro. They used satellites and thousands of tiny plots to get a picture of more than just fall colors. Bays explains, “We see that it’s a mosaic of trees. It’s open space and prairie grass and woodlands…”

 

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Case of the Day – Wednesday, November 20, 2019

T.H.E. CAT

Robert Loggia as Thomas Hewitt Edward Cat, accomplished second-story man turned bodyguard in this 1960s action series ...

Robert Loggia as Thomas Hewitt Edward Cat, accomplished second-story man turned bodyguard in this 1960s action series …

Remember T. Hewitt Edward Cat? His hangout at the jazz joint Casa del Gato? Lalo Schrifin’s cool theme music?

That’s OK if you don’t, because the cat we’re talking about today is anything but the black-clad suave Robert Loggia. More Garfield than cool cat, the Dinuccis’ tabby kept wandering into Mr. Lis’s yard. The Dinuccis — who, face it, didn’t have a great rapport with their neighbor to begin with — didn’t give a hairball about Lis’s complaints.

Finally tired of it all, Mr. Lis trapped the feckless feline and turned it over to the City. The City charged with Dinuccis with an “animal at large” minor misdemeanor. About this time, old softie Mr. Lis contracted a case of the “guilts.” He could hardly live with himself if the Dinuccis found themselves doing 30-to-life in some hard-labor gulag. So he relented, and asked the city law director to dismiss the charges.

Big mistake. Proving someone’s old adage that no good deed goes unpunished, the Dinuccis promptly sued Lis for malicious prosecution.

deed150825After the long-suffering neighbor paid a metric ton of legal fees, the trial court threw the case out, and the Court of Appeals agreed. The Dinuccis’ case suffered from a simple problem: they never denied their cat was free range (how could they?), and that was all the ordinance required. Because there was probable cause to believe that the peripatetic pussycat had gone feral, there was probable cause to believe ordinance had been violated. That being the case, there could not be malicious prosecution.

Nevertheless, if it happens again, we’d bet Mr. Lis’ll demand the City Prosecutor throw the book at ‘em — and probably overdose their sweet little kitty with industrial strength catnip. Ingratitude isn’t only unbecoming… often, it’s self-defeating, too.

stray150825Dinucci v. Lis, 2007 Ohio App. LEXIS 3702, 2007 WL 2269740 (Ct.App. Ohio, Aug. 9, 2007). This dispute between neighbors started over involving the capture and eventual safe release of a house cat. The parties were before this court in an earlier dispute, which involved trespass, property damage, and continuing nuisance claims by the Dinuccis against their next-door neighbor Matthew Lis. Then the Dinuccis had claimed Lis was liable for 1) delays in the construction of their house due to his objections, 2) damage to their lawn caused by trespassing, 3) willow tree branches hanging over their property, and 4) creating a nuisance by having the Lis yard look like a construction site for over two years. Out of all of that the Dinuccis won a princely $150 for damage to their lawn, the rest of their claims having been thrown out. The Dinuccis appealed to no avail.

At the same time, it appears that Lis had been complaining since 2004 about Dinuccis’ cat wandering around the Lis homestead. Lis contacted the North Royalton, Ohio, animal control department. The City’s animal control officer told the Dinuccis that the city had received complaints from neighbors concerning their cat, and warned them that they would be cited if the problem wasn’t resolved.

It wasn’t, and a few months later, Lis captured the feline on his property and turned it over to the City. The Dinuccis were charged with a violation of North Royalton Ordinance 618.01, the “Animal At Large” provision. The North Royalton prosecutor met with the parties, at which time Lis agreed with the recommendation that the criminal charge against the Dinuccis be dismissed. But after the charges were dismissed, the Dinuccis filed a civil lawsuit against Los, alleging malicious prosecution and intentional infliction of emotional distress. The trial court granted Lis’s motion for summary judgment and dismissed the case. Dinuccis appealed.

garfield150825Held:  The case was correctly thrown out. The Court observed that, after all, North Royalton Ordinance 618.01 clearly stated that ‘[n]o person who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, dogs, cats, geese or other fowl or animals shall permit them to run at large upon any public way or upon unenclosed land” and that “[t]he running at large of any such animal in or upon any of the places mentioned in this section is prima facie evidence that it is running at large in violation of this section.” In order to establish the tort of malicious prosecution, the Dinuccis had to prove malice in instituting or continuing the prosecution, a lack of probable cause, and termination of the prosecution in favor of the accused. And here, the Dinuccis couldn’t show a lack of probable cause.

Probable cause does not depend on whether the claimant was guilty of the crime charged, but instead, only on whether Lis had probable cause to believe that the Dinuccis were guilty. Lis wasn’t bound to have evidence sufficient to insure a conviction, but instead was required only to have evidence sufficient to justify an honest belief of the guilt of the accused. Here, the Court said, the evidence show that both the city and Lis had a reasonable belief that Dinuccis violated North Royalton Ordinance 618.01.

Indeed, the Dinuccis didn’t deny violating the ordinance either at the trial court level or in their brief. Their cat was captured on Lis’s property. As a result of a reasonable belief that the violation occurred, probable cause to investigate existed. The evidence was sufficient to justify an honest belief of the guilt of the accused.

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, November 19, 2019

YOU HAVE ONLY YOURSELF TO BLAME

I just got back from a week in London. It may sound like I’m bragging, so I won’t mention the day I spent advising Boris Johnson on Brexit, my marriage counseling of Prince Andrew and Meghan, or my reviewing the rehab plans for Big Ben.

The primary reason I mention none of those things is that the reason for the trip was so we could see our two granddaughters, Mabel and Helen. They live in London these day (with our son and daughter-in-law, but once the grandkids arrive, your children become an afterthought).

While there, I rented a car and tried English driving for the first time. That is my segue into today’s topic, the very English common-law tort of negligence.

Negligence is a tort law concept borrowed from the English and a living, breathing description of my adventures in a four-door, manual-shift Skoda. To prove negligence, one either needs a photo of me in the driver’s seat navigating a roundabout, or must prove three essential elements The negligent party must owe a duty to the injured party, the negligent party must have breached its duty, and as a direct result of that breach, the injured party must have been actually damaged. Surprisingly, most of the litigation on tree-related negligence results from questions of the extent of the duty owed to the injured party.

The bulk of the negligence actions related to trees result from trees or branches falling on people and property. The states are nearly uniform in holding that a property owner who has actual or constructive notice of a defect in his or her trees has a duty to owners of adjoining property and the public who may be passing by to ensure that the tree does not injure persons or property.

Actual notice is fairly self-explanatory. A landowner who has been told that a tree is defective has actual notice. However, constructive notice is much more nuanced. Visual evidence of decay, a history of falling branches, advice of an arborist or tree professional that a tree poses a hazard – all of these may be enough for a court to find that a property owner was on constructive notice of a defect. Some cases have suggested that if a tree professional installs cabling or bracing to support a tree, that fact alone is constructive notice to the landowner of a serious defect in a tree.

Even if evidence of decay or distress is not clear from the ground, some courts have held that landowners have a general duty to regularly inspect trees on their property that may cause damage or injury if they fall. Most states recognize two levels of landowner duty. A rural property owner, because the size of the land holdings are generally larger than in urban areas and because there is a lesser concentration of people and property to be injured, has a duty to inspect that is significantly lesser in scope than the duty of a urban landowner. An urban landowner usually has fewer trees and those have a greater likelihood of causing injury or damage if they fall. Thus, what is an adequate inspection program for a rural landowner may not be enough for an urban property holder.

Generally, before negligence can be determined, the extent of the defendant’s duty to the injured has to be defined. The great illustration can be taken from today’s case:

Sellens v. Christman, 418 S.W.2d 6 (Sup. Ct. Missouri, 1967). Elvin Christman had invited Jim Sellens to go out with him to try out his new chainsaw. They tacked some trees in the woods, an promptly dropped the first one into a notch on a second one. Jim concluded the lodged tree was safe, and was cutting a second tree near it when the whole thing gave way. The lodged tree collapsed on Jim, causing loss of a leg. Elvin was nowhere nearby at the time.

Nevertheless, Jim sued Elvin.

The trial court held that Jim had not established that the accident was Elvin’s fault. In fact, there was no evidence that anyone was at fault for the accident other than Jim himself. But Jim tried to get a leg up by appealing. The case found its way to the Missouri Supreme Court.

Held: Jim didn’t have a leg to stand on.

The Supreme Court upheld the dismissal, but focused more on the duty that Elvin owed to Jim. It held that Jim was an invitee, meaning that Elvin had a duty to take ordinary care to prevent injury to Jim, more care than were Jim a mere trespasser.

Although Jim’s status was an invitee, the Court said there was no breach of any duty by Elvin to make the premises safe for Jim, or to warn him of the danger. “The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like,” the Court reasoned, “in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.”

You have only yourself to blame, Jim.

– Tom Root

TNLBGray140407

Case of the Day – Monday, November 18, 2019

SIR, YOU ARE NO GEORGE WASHINGTON

solong161006Today, we conclude our consideration of the trespass problems faced by our New Hampshire landowners Larry and Laura Littoral. If you have followed along to this point, and can remember after the weekend what transpired, you know that the Littorals’ pastoral cottage getaway, situated on a classic New England pond, has been disrupted by neighbor Wally Angler.

Compared to Wally, Myles Garrett is a fine neighbor to Mason Rudolph. Wally –  a NINO (neighbor-in-name-only) – is an angler, and asked the Littorals to chop down some dead trees on their property to create a trout habitat in the pond for the primary (and sole) purpose of adding to Wally’s piscatorial pleasure.  You can hear him now: “Thanks for all the fish!”

The Littorals preferred that their dead timber remain standing. When Wally asked them to cut down the trees, they said, “so long,” refusing to dump their tree into the pond. Apparently reasoning that it’s easier to ask forgiveness than permission – especially where permission has already been denied – Wally then took advantage of the Littorals’ weekend absence by bringing in a tree service to cut the trees down for him. According to the Littorals, Wally affirmatively misled the tree cutters that the dead trees were on his property, and the tree service cut down the timber with alacrity.

gw161006For the record, Wally denies having anything to do with the felling of the dead trees. He seemingly maintains that he turned around one day, and mirabile dictu, the trees were on the ground. If George Washington had tried a similar woof story on his father about a downed cherry tree, we’d probably all be speaking English and enduring a lousy healthcare system right now with a national leader who is a blond-headed buffoon. As every schoolchild knows, however, Little George ‘fessed up, telling his father, “I cannot tell a lie.” Channeling Lloyd Bentsen, our observation is this: Wally, we served with George Washington, George Washington was a friend of ours. Wally, you’re no George Washington.

Our analysis this week has assumed that unless Wally can produce the elves responsible for the tree cutting (and their saws), the Littorals will easily meet their burden of proof.

So far this week, we have concluded that the Littorals may bring a double-barreled complaint, alleging a statutory violation of New Hampshire’s trespass-to-tree statute, R.S.A. § 227-J:8, and a common-law trespass count. The § 227-J:8 count carries some pretty serious penalties, from three to 10 times the market value of the trees. The catch is that the penalties must be based on a multiple of market value. Market value may be the stumpage value of the wood – what it is worth on location to a lumber buyer – or on the cost to replace the tree, minus transportation and planting costs.

We’re assuming for the sake of this column that a few dead trees probably are not going to have much stumpage value. The Littorals could find an expert to establish how much replacement of the trees would cost, but replacement value has traditionally been used because everyone assumes that the destroyed trees would have continued to flourish but for the actions of the defendant. Here, the defendant’s expert would have a good argument that those trees were going to fall in the next strong wind anyway, and awarding the Littorals new live trees to replace their old dead ones would give the plaintiffs a “windfall” for what was only windfall to begin with.

Wally suspects elves.

Wally suspects elves.

Given Wally’s underhanded approach to getting what he wanted (and what the Littorals did not want), we don’t have much trouble with the Littorals receiving a windfall. The law in New Hampshire and elsewhere does, however, holding instead that damages should be limited to compensating for the actual injuries suffered. For that reason, the Littorals can take the confluent approach that under the common law of trespass, their real property has suffered a decrease in value because of Wally’s conduct, both because of where the dead trees are no longer standing and because of where they are currently laying.

Even then, the Littorals might have a problem because the usual assumption underlying damages for loss of trees is that standing timber will continue to stand for the indeterminate future. That assumption may be challenged where the standing timber is already dead. Nevertheless, there is ample evidence that dead trees standing have value. As we noted the other day, dead trees provide shelter or sustenance to over 40 percent of all birds, to amphibians, and to lichens and moss. Dead trees create “snow fences” that slows wind-driven snow. The snow that is trapped melts in place and saturates the ground, providing additional moisture to live trees. Dead trees create hiding cover and thermal cover for big game as well.

Even more counter-intuitive, dead trees – after dropping their needles and bark – may reduce fire hazard. Their flammability is greatly reduced compared to green trees containing flammable resins.

stumps161006In the Connecticut decision we’re examining today, the plaintiff relied on standing dead timber to help maintain privacy from his neighbor. The court appeared to recognize that the elimination of the standing dead trees contributed to a substantial diminution of her property value, even while acknowledging that the trees themselves had no value. It’s not a New Hampshire case, but then there is a dearth of cases nationwide where the wrongfully cut trees were ornamental in nature and yet very dead even before tasting the ax. We were glad enough to find this one. The decision suggests that an action alleging loss of privacy may be the strongest case of all.

Caciopoli v. Lebowitz131 Conn.App. 306 (Court of Appeals, Connecticut, 2011). Dominic Caciopoli was a man who liked his privacy. He bought his place because it was isolated and private, surrounded by forest on all sides except for one area of the lot though which his driveway passed. A short while later, Jeffrey Lebowitz bought the place next door. His house was about 100 yards from Dom’s, and the area between the residences was wooded, affording each privacy from the other.

A few months after moving in, Jeff hired a tree service to clear standing dead trees from the wooded area between the two homes. Jeff believed the dead trees were on his land, but he didn’t check that carefully. The tree service removed all the dead timber, both standing and on the ground, some small saplings, and a few larger trees to provide more sunlight and enlarge the areas surrounding his house. Of course, it turns out that virtually all of what was cut really belonged to Dom.

When Dom came home to find that his natural privacy barrier had been clear-cut, he was not happy. He went to Jeff’s front door and expressed his displeasure, pointing out the actual property line in the process. Nevertheless, the next day, the tree service returned and finished the job. The removal of the trees and brush left Jeff with an unobstructed view of Dom’s house.

Jeff tried to make amends. He sent Dom a letter admitting his error and planted some trees on Dom’s property to replace what had been taken. Dom was not happy with the results, and undertook his own extensive landscaping project in a failed attempt to restore his lost privacy.

Give a man a fish, and feed him for a day. Give a man a chainsaw, and watch trouble ensue.

Give a man a fish, and feed him for a day. Give a man a chainsaw, and watch trouble ensue.

Dom sued Jeff for common-law trespass and for treble damages pursuant to Connecticut General Statutes § 52-560 (the Connecticut adjunct to R.S.A. § 227-J:8). The trial court found that Dom had proven the elements of an intentional trespass action, and awarded him $150,000. for the diminution in the value of his property caused by the trespass. Notably, the trial court declined to award any damages for the value of timber removed.

Jeffrey Lebowitz appealed, alleging a lot of infirmities with the trial judgment. Of interest to the Littorals is Jeff’s appeal of the damage award.

Held: The trial court’s award of $150,000 was proper. The trial court found that after the cutting Dom’s place was worth $675,000, according to an appraisal performed by a certified general real estate appraiser. The appraiser opined that prior to the cutting, Dom’s market value was $825,000. The Court of Appeals noted that Jeff could have presented his own expert testimony on the diminution of value, but he did not. Applying the ancient legal doctrine, et dormiat, ne perdatis (“you snooze, you lose”), the court said Dom’s expert was found to be credible and competent, and absent Jeff making an expert showing at all, that was good enough.

But, Jeff complained, Dom’s expert was not qualified to give an opinion as to the effect of the removal of certain trees from Dom’s property on its market value. He argued the expert had no relevant experience, and was considered an expert only because she had a real estate appraiser’s license. However, the Court of Appeals said, the trial court relied on the fact she had conducted 1,500 appraisals before, and when the trial judge asked her whether she was able to testify as to the value of the property before and after the removal of the trees, she said she could. (This is rather like finding that she was an expert because she asserted she was, a rather bizarre ipse dixitbut the Court of Appeals was loathe to disturb a verdict, and thus to give Jeff a second bite of the apple on remand).

Jeff also argued that the court made no finding whether there was an adequate factual foundation for a “retrospective appraisal” – an appraisal after the fact of the value of the property before the cutting – and that Dom did not ask the court to find  there was an adequate foundation for allowing the opinion evidence. The Court of Appeals pointed out that it was Jeff’s burden to object to the testimony on those grounds at the time of trial. Again, et dormiat, ne perdatisThe expert testified she visited the property in January and February 2009, and had determined the lot enjoyed a high degree of privacy prior to the incident. She also studied photographs of the lot prior to the trespass and after the trespass, and noted that the pictures depicted more clearing of trees than she had imagined and thus, strengthened her opinion as to diminution in value.

No one contests that trees in the water are a good habitat for fish... but Wally should have used his own trees.

No one contests that trees in the water are a good habitat for fish… but Wally should have used his own trees.

The Court observed that Jeff pointed to no authority to suggest that the expert’s personal observation of the property, her reliance on the plaintiff’s descriptions of the prior conditions of the property, and her review of photographs of the property in its prior conditions, was insufficient to form an inadequate factual foundation. The Court said the expert’s personal observation of the property “complemented by the plaintiff’s descriptions of the property in its prior conditions, is not impermissibly speculative…” After all, the Court said, Dom – as the owner – was undoubtedly familiar with his property (if perhaps lacking disinterest in the outcome), and no one was more competent than he to describe to the expert what it had looked like before the cutting.

The Court held the fact that the expert “could not give a logical explanation for how she arrived at her opinion and did not articulate or apply methodology suitable to determining any diminution in value caused by the clearing of trees” was not fatal to her testimony. She testified that she examined real estate in the area, found comparable properties, estimated degrees of privacy and made adjustments, positive or negative, for the differences in the properties in order to “equal everything out.” She also noted that an appraisal is not based on science, but it is just an opinion as to value, and the Court accepted that.

Jeff had to pay the $150,000. That’s a lot of money for some dead trees that had no stumpage value.

– Tom RootTNLBGray140407

Case of the Day – Friday, November 15, 2019

SOMETIMES PLAIN VANILLA TASTES PRETTY GOOD

Today, we continue to examine the situation faced by our Granite State tree victims, Larry and Laura Littoral. If you read yesterday’s post prior to your third Arnold Palmer martini, you recall that the Littorals have both a cottage on a pond – which is beautiful –and a pesky neighbor, Wally Angler – who is not so beautiful.

cuibono161005Fisherman Wally’s entreaties to the Littorals that they cut down some dead trees on their property, dropping them into the pond where they will provide a habitat for the fish Wally loves to catch, fell on deaf ears. It seems  the Littorals liked the contribution their standing dead timber made to their cottage ecosystem. So when the Littorals were absent one fall weekend, Wally took matters into his own hands, hiring a tree service to cut down the trees. Wally of course denies having any role in the tree’s mysterious felling, but for the sake of our analysis – and because we recall Marcus Tullius Cicero’s incisive question, cui bono? (that is, “who benefits?”) – we reasonably assume that proving Mr. Angler was the only guy with motive, opportunity and means to cut down the trees will be child’s play.

Yesterday, we considered New Hampshire’s trespass to tree statute, R.S.A. § 227-J:8, which has been around in some form since the early 19th century. It’s a pretty solid statute, providing that no person shall negligently cut, fell, destroy, injure, or carry away any tree or part thereof on the land of another person. If someone violates the statute, he or she is liable for a forfeiture to the aggrieved landowner of anywhere from three to ten times “the market value of every such tree, timber, log, lumber, wood, pole, underwood, or bark cut, felled, destroyed, injured, or carried away.”

Notice that we used quotation marks in the foregoing paragraph. They’re there for a reason. You see, the rub in 227-J:8 is that the statute turns on the market value of the trees. That worked very well when the kind of timber trespass going on was limited to a lumberman taking a thousand trees from the wrong side of the boundary marker. Indeed, that was precisely the kind of conduct at which the statute was aimed. But 227-J:8’s a tougher fit where only two or three trees are cut, not for their market value but rather for some noncommercial reason. The Littorals could sue under 227-J:8, but what would the market value be of few dead trees (or even a few live ones)?

In a stretch perhaps dictated by necessity, the New Hampshire Supreme Court in the case we discuss below did hold that “market value” may be measured as the cost of a replacement tree of comparable value, but even that might not get the Littorals very far. Such an analysis would bring them fairly quickly back to a measure of the fair market value of the dead tree itself.  To get any traction, the Littorals have to get beyond the value of the dead tree qua tree, and instead find a measure of damages that focuses on the value of the dead trees to the property.  We’ll be focusing more on that tomorrow, but for now, we need some legal vehicle that will let them be compensated adequately for Wally’s selfish attack on their property.

Fortunately, the common-law remedy of trespass continues to enjoy vitality in New Hampshire. Assuming the Littorals lost three dead trees, and assuming that they could find an expert who would testify that the stumpage value of those trees was $300 apiece, they would not quite get to $1,000 in damages (before 227-J:8’s multiplier was applied). But the three trees – referred to in the tree law world as “ornamental trees – were worth much more to the Littorals (and their real estate).

Common-law trespass - the "plain vanilla" tort still tastes pretty good.

Common-law trespass – the “plain vanilla” tort still tastes pretty good.

Where the trees lost are not commercial timber, but rather trees with aesthetic value (or some other specialized value), New Hampshire courts will permit the injured party to sue in trespass, and for damages to show either that the market value of the real estate has fallen because of the loss or that the cost of replacing the lost trees rises to some ascertainable figure.

Here, although the Littorals are entitled to (and will probably want to) include an R.S.A. § 227-J:8 claim, they will also want to allege the good old plain-vanilla tort of trespass, showing that Wally’s transgression damaged their property as a result. After all, New Hampshire lets the injured homeowner include both the time-tested common-law trespass claim and an R.S.A. § 227-J:8 claim in the same complaint. Common-law trespass may be plain vanilla, but it’s survived as a cause of action for centuries because it works.

The Littorals report that they have evidence Wally moved the iron-pin boundary markers before the tree service arrived, so as to fool otherwise cautious tree workers that he owned the land on which dead trees in question stood. As it is in most states, moving property markers is a misdemeanor in New Hampshire, not to mention being pretty compelling evidence of the willfulness of Wally’s conduct. Indeed, in most states, this would probably be enough to win punitive damages against Wally, which are extra amounts meant not to compensate the plaintiff for his or her injury, but rather to exact a pound of flesh from the misbehaving defendant.

heresy161005

Burning a beer at the stake? Now that would be a “monstrous heresy.”

But New Hampshire isn’t “most places.” Rather, “the punitive function of exemplary damages has been rejected in forceful and colorful language” by the New Hampshire Supreme Court. “‘The idea is wrong,” the Granite State Supremes thundered well over a century ago. “It is a monstrous heresy. It is an unsightly and an unhealthy excreascence, deforming the symmetry of the body of the law’.”

Fortunately, modern New Hampshire jurists have left their aggrieved litigants an out. While punitive damages are forbidden, the courts agree that in cases “where the acts complained of were wanton, malicious, or oppressive, the compensatory damages for the resulting actual material loss can be increased to compensate for the vexation and distress caused the plaintiff by the character of defendant’s conduct.”

So if the Littorals sue for trespass, and show that the trespass and subsequent loss of their trees resulted because Wally was a guy who charged ahead fully aware he was in the wrong, their compensatory damages may rise well beyond even what they could get even if the court set the R.S.A. § 277-J:8 multiple at 10 times the market value of the dead wood.

But we’ve still left the question of exactly how much a dead tree is worth, either as marketable timber or for aesthetic purposes. We’ll take up that problem tomorrow.

Woodburn v. Chapman I, 116 N.H. 503 (New Hampshire Supreme Ct., 1976); Woodburn v. Chapman II, 117 N.H. 906 (New Hampshire Supreme Ct., 1977).  Chapman removed a single maple tree, 18 inches in diameter, which  stood on Woodburn’s land. He never imagined that cutting down one tree would result in two trips to the New Hampshire Supreme Court. But it did.

The trial evidence showed replacement of a 30-inch maple would cost $3,600. Taking this figure and applying a treble multiplier from the tree trespass statute, the court gave Woodburn judgment for $10,805.

Chapman appealed.

Held: In Woodburn I, the Supreme Court held that the trial court’s use of the tree’s replacement cost as the basis for the statutory penalty was wrong. The Court admitted that “in some circumstances replacement cost may be the proper measure of damages for the destruction of a tree.” But the tree trespass statute (then R.S.A. § 539:1, replaced later with R.S.A. § 227-J:8) “takes the value of the tree by itself,” the Court said. The severity of the statutory penalty varies with the productive quality of the tree. Indeed, the whole purpose of the statute is to protect marketable resources.

The Court held “where a tree confers other benefits on the plaintiff in the enjoyment of his property, he may join a count for compensatory damages with his count to recover the statutory penalty. The ordinary measure of damages in these circumstances is the difference between the value of the land before the harm and the value after the harm. In this case the plaintiff introduced evidence of special circumstances which might justify the award of the replacement cost of an eighteen-inch maple.”

On remand, Woodburn’s expert testified that the tree’s value by itself was $2,173. He arrived at this figure by deducting from the tree’s replacement cost the expenses associated with digging, transporting and replanting the tree, resulting in an estimate of the value of the tree itself. The trial court accepted the evidence, and awarded treble the amount as a penalty.

On appeal from the remand, Chapman complained that the base figure from which any statutory penalty is to be calculated must be stumpage value. He argued that the statute is designed to protect marketable timber, and thus only the tree’s value as timber should be used in computing the penalty. Since Woodburn produced no evidence of the tree’s stumpage value, Chapman complained, there can be no recovery under the statute.

The Littorals should have gotten this sign with special wording, "And don't cut down our trees, Wally, whether they're dead or not!"

The Littorals should have gotten this sign with special wording, “And don’t cut down our trees, Wally, whether they’re dead or not!”

The Supreme Court disagreed, holding that the statute applies to “whoever shall cut… any tree…” The statute’s application is not restricted to trees with stumpage value. Instead, the statute applies to any tree, whether its value is as timber or some other marketable commodity.

So, the Court said, where the tree is valuable only as timber, stumpage value should be used to assess the penalty. But, “this rule obviously cannot be applied to fruit, shade, and ornamental trees which have a measurable value but no stumpage value.” In this case, the Supreme Court ruled, the trial court “determined the value of the tree by subtracting from its replacement cost the cost associated with digging, transporting and planting the tree. This was an appropriate method of arriving at the ‘value of the tree by itself’.”

Additionally, Woodburn introduced evidence that the tree had special value to the real property as a boundary marker. That, the Supreme Court ruled, warranted the trial court’s award of $577.00 as compensatory damages in addition to the statutory penalty.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, November 14, 2019

A FISH STORY

A very long-time supporter of ours from New Hampshire wrote us recently to recount the travails of his friends, Larry and Laura Littoral. They keep a cottage on one of New Hampshire’s many delightful ponds. Unfortunately for the Littorals, they have a neighbor, Wally Angler, who is both an avid fisherman and a pain in the fundament.

(These are pseudonyms, of course, and we hope you admire our creativity).

Dead trees are not always eyesores...

Dead trees are not always eyesores…

Wally has been badgering the Littorals to cut down several dead trees on their land. It’s not that the trees a threat to life and limb (they don’t), but rather Wally believes that if the dead timber falls into the pond, it will provide an excellent habitat for trout (and, in the process, benefit Wally’s favorite pastime). Larry and Laura like their property the way it is, believing that dead standing timber is an important part of the ecology of the place, providing sustenance for woodpeckers, shelter for martens, snow fences in the winter, and beauty for nature lovers.

There are two observations worth making here. The first is, while this may seem counterintuitive, abundant evidence exists suggesting that standing dead timber that otherwise does not pose a hazard to people or property has considerable value to the ecosystem. The second is that even if the standing dead trees are of no value to the woods, the Littorals are creating no risk to anyone by keeping the trees standing on their property, and if they like the denuded trunks where they are, the couple should be entitled to letting the dead trees stand.

Recently, the Littorals enjoyed a weekend getaway. At least, they enjoyed it until they returned to their cottage to find the dead trees mysteriously cut down and lying in the pond. Had Horatio been there, he might have said “O day and night, but this is wondrous strange!” But to the Littorals, unhappy as they were, it didn’t seem strange at all. And they didn’t have to look far for a suspect.

Is that the "Bart Simpson defense" we're hearing?

   The”Bart Simpson defense”clashes with Occam’s Razor.

They complained to the local constabulary, who spoke to Wally. He of course denied it, but the Littorals have figured out who Wally hired to cut down the trees, and even deduced that Wally moved the boundary line iron pins to trick the tree service into believing that the trees were Wally’s.

The Littorals are hopping mad, but they don’t want to hang an unsuspecting tree service out to dry. They wonder what action they might have against Wally, and whether the tree service will get nicked in the crossfire. Finally, they note that the local ordinance requires a permit to cut trees within 50 feet of a shoreline, grant of which depends on vegetation remaining or being added to maintain a measured level of trees and ground cover in the area. Unsurprisingly, no one bothered to apply for a permit.

Whew! It’s a veritable tree law final exam. Today, we’ll tackle the first (and easy) question: what kind of lawsuit do New Hampshire statutes permit the Littorals to bring?

At common law, what we’re looking at here is garden-variety trespass, often called in cases like this “trespass to trees” or “trespass to timber.” It appears, however, that New Hampshire has helpfully reduced the action to statute. Section 227-J:8 of the New Hampshire revised statutes provides that

I.      No person shall negligently cut, fell, destroy, injure, or carry away any tree, timber, log, wood, pole, underwood, or bark which is on the land of another person, or aid in such actions without the permission of that person or the person’s agent.

II.   In addition to any other civil or criminal penalty allowed by law, any person who violates the provisions in paragraph I shall forfeit to the person injured no less than 3 and not more than 10 times the market value of every such tree, timber, log, lumber, wood, pole, underwood, or bark cut, felled, destroyed, injured, or carried away.

Simply put, the Littorals have a nice statutory remedy here. Where most state wrongful cutting statutes provide for treble damages, New Hampshire courts can hammer unlucky defendants for up to 10 times the value of the timber.

What’s more, while the statute on its face seemingly applies only to negligent cutting – not to intentional pure-d mean cutting like what occurred here – New Hampshire appears to apply the statute to any wrongful cutting, employing the 3-10x scale provided by RSA 227-J:8 as an analog punishment gauge, with higher multipliers reserved for more egregious conduct.

whodunnit161004The case we look at below involves a New Hampshire timber trespass that exhibited some of the same kind of chutzpah shown by Wally Angler (assuming the Littorals can prove he’s the culprit, which we figure is pretty likely). The brazen willfulness shown by the defendant below – which was not much different from Wally’s intentional trespass – clearly influenced the damages awarded.

Tomorrow, we’ll explore whether the Littorals can bring a common law trespass action in lieu of proceeding under the statute. Then, of course, we’ll have to grapple with the thorny damages question: exactly how much is dead standing timber worth, anyway?

Today’s case:

McNamara v. Moses, 146 N.H. 729 (Supreme Ct. N.H. 2001). Marilyn McNamara lived in Eagle Rock Estates, a residential subdivision in Amherst. The subdivision plans show an access to the lot of her neighbor, attorney Bob Moses, as a shared driveway connecting the lot with the street. The driveway is steep and winding, and tough to use during the winter, so since 1977, Bob and other residents have used an unpaved roadway behind the lots, which they call Eagle Rock Drive, for easier access to their lots. Until 1998, everyone believed Eagle Rock Drive was on common land owned by the Eagle Rock Estates Association.

Marilyn bought her place in 1997. Even she believed Eagle Rock Drive was on common land that abutted the rear of her property. However, after someone proposed paving Eagle Rock Drive, Marilyn researched the matter and found Eagle Rock Drive actually traversed her lot. She announced this at an Association meeting, whereupon Bob Moses told her the Association members had adverse possession of the roadway.

Marilyn tried to get along, giving Bob written permission to use Eagle Rock Drive for the time being but urging him to upgrade his driveway soon, and to begin using it instead. She warned him that she would not agree “to pave the roadway under any conditions.”

In December 1998, Marilyn found one of Bob’s workmen cutting trees along the roadway on her property. The workman said he was preparing the road for further work at Bob’s request. Marilyn told him the property was hers, she had not given permission to cut the trees, and he should stop cutting and leave. When Marilyn’s joint owner, Bill Vargas, met with Moses later that day, Moses said “he owned the road,” and asked, “what are you going to do about it?” Marilyn quickly lawyered up, and told Bob as much in a letter.

The following Sunday, Marilyn and her beau returned from a weekend away (as did Larry and Laura Littoral), to discover that Bob Moses’ contractor had regraded the roadway and widened it by 5 feet. In so doing, Bob’s people cut down at least 12 of Marilyn’s birch and pine trees that did not interfere with passage over the roadway.

The dead trees are now "in" Golden Pond.

The dead trees are now “in” Golden Pond.

Marilyn sued to enjoin Bob from using Eagle Rock Drive and for damages and penalties for unlawfully cutting her trees. The trial court concluded Bob had a prescriptive easement to use the roadway to access his lot, but held that cutting Marilyn’s trees to widen the roadway had been an unreasonable use of the easement. The court awarded Marilyn compensatory damages of $1,200 – the market value of the trees cut in the widening – and penalties of five times that amount ($6,000) under RSA 227-J:8.

Bob appealed.

Held: The Supreme Court upheld the damages and penalties.

Bob argued the trial court erred in awarding damages based on speculation or approximation of the value of the trees. The Court rejected the argument, noting that the “speculative” nature in this case was not the prohibited kind, that is, whether a particular loss has been or will be incurred. Instead, the only speculation was how much damage had been caused, that is, the possible valuation of an actual loss.

The trial court awarded compensatory damages of $1,200 for the 12 lost trees, specifically finding that Marilyn’s estimated value of $100 per tree was “reasonable and, if anything, conservative.” The fact that McNamara did not identify each tree by species when testifying as to the average value of the felled trees may have made her showing kind of light, but that “does not render the court’s finding erroneous, particularly in light of the defendants’ decision neither to cross-examine her nor to offer contrary testimony. Finally, the mere fact that the plaintiffs’ estimate of the value of the trees was an approximation is not fatal.”

Bob also contended that the trial court abused its discretion by awarding five times the value of the felled trees as the penalty for violating RSA 227-J:8. The Court suggested that Bob’s own arrogance was an appropriate factor in setting the multiplier:

The record supports the court’s finding that the defendants willfully caused the cutting of trees on the plaintiffs’ property, thereby amply justifying a multiplier at the low end of the range specified in the statute. In particular, in addition to being informed at the May 1998 association meeting that the land in question was owned by the plaintiffs, when questioned as to whose land he thought he had been driving across prior to the meeting, Mr. Moses responded, ‘I didn’t know, other than I knew it wasn’t mine.’ The court’s assessment that the cutting on the plaintiffs’ land was intentional was also supported by testimony that, when [Marilyn’s joint owner] Vargas confronted the defendants on the afternoon of the cutting, their responses were, respectively: ‘what are you going to do about it?’ and a statement that Mrs. Moses would ‘continue the rest of the clearing herself with her own chainsaw.’ Moreover, after having been informed that they did not have permission to clear the land further, the defendants continued the clearing three days later when the plaintiffs were out of town.

The Court also noted that while maintaining the easement by keeping the road free of brush and overhanging limbs was within Bob’s rights, expanding the roadway by five feet was not.

– Tom Root

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