Case of the Day – Friday, September 20, 2019

SHIPS PASSING IN THE NIGHT

When Al Mattikow finally tripped and fell on a walkway outside of his rented townhouse, all because of a hickory tree that dropped twigs nuts, leave and sap all over the common area, he sued the condo association for negligence and for maintaining a nuisance.

The condo folks defended, showing that they maintained the tree carefully, using the services of an arborist, in order that it not become a hazard. Because they were so dutiful, the condo folks argued, they could not possibly be negligent. And that meant that the tree couldn’t be a nuisance, either.

“Whoa,” you’re thinking, “that’s so-o-o wrong!” And you are right. The defendant condo association people’s arguments and Al’s complaint were like ships passing in the night. It’s laudable that the condo folks took care of the hickory, so that it didn’t fall on Al’s pad some dark and stormy midnight. But that was hardly Al’s point. It wasn’t the tree’s falling that bothered Al. It was the falling leaves, twigs, nuts and sap, that covered the walkways and made Al’s perambulation difficult.

Negligence and nuisance both start with “n,” but they’re not synonyms. You can be negligent without creating a nuisance, and you can create and harbor a nuisance without ever being negligent. The condo association conflated the two terms, as well as conflating “safe tree” with “well-behaved tree.”

Viva la difference!

Mattikow v. West Lyon Farm Condominium Association, 2019 Conn. Super. LEXIS 2296; 2019 WL 4344368 (Superior Ct of Connecticut, Aug. 20, 2019). Al and Nina Mattikow rented a condominium unit in which they had lived for a number of years. They had complained to West Lyon Farm Condominium Association, the condominium association that managed the common areas of the property and enforced the regulations, about the extent to which leaves, hickory nuts, pollen, and sap continually fell onto the surface of the common deck near their unit, making walking hazardous. The Mattikows contended that their complaints explained that Al walked with a cane, making him more vulnerable to the conditions of the surface upon which he was walking.

Eventually, Al fell because of the droppings, he claimed, seriously injuring his ankle.

The Mattikows sued, alleging negligence and nuisance claims. The Association argued that pursuant to the bylaws and rules of the association, to which the Mattikows were bound by their lease agreement, the deck was considered to be a “limited common element.” A “limited common element” benefitted one condo unit over the others, due to its location, and the condo unit most benefitted was responsible for maintenance, including clearing leaves and other debris. The Association claimed it had no duty with respect to the maintenance of the surface of the deck under the bylaws.

The Association moved for summary judgment, claiming there is no issue of fact – it simply had no duty to maintain the premises upon which Al fell, and conversely, Al had the obligation to maintain the deck surface himself.

Held: The Association’s motion for summary judgment was denied.

In addition to claiming negligence, Al claimed that the Association is liable under a theory of nuisance. The Association was dismissive of the claim, arguing that it is derivative of the negligence claim such that if the Association wins on the negligence count, it will necessarily win on nuisance as well. But that ain’t necessarily so.

The Court noted that “the elements of nuisance are different—otherwise it wouldn’t be a distinct cause of action. Simplistically, private nuisance is based on a theory of invasion of property rights rather than a breach of the duty to use reasonable care to avoid causing harm to others. Thus, even if there were no duty to maintain the deck on the part of the defendant, as the defendant vigorously argues, the lack of any duty of maintenance or control over the deck would have no automatic consequence for the nuisance claim… Generally speaking, a duty of maintenance or right of control over the affected premises is irrelevant to a claim of nuisance, which focuses on the conduct of a party external to the affected property and the effect of that conduct on the use of the affected property.”

The Court noted that there were at least a few allegations of negligence that focused on the tree depositing debris, rather than any claimed duty to clear the debris. The main focus, however, is the responsibility of the owner of the common areas, including the hickory tree, for the debris constantly being rained down on the deck. The Association, the Court complained, paid more attention to the seemingly clearer issue of lack of duty of maintenance and less attention to possible liability emanating from the claimed negligence relating to the tree, for which the defendant is and was responsible.

Factually, the Court said, the evidence showed the Mattikows had lodged numerous complaints about the tree. The Association called in a licensed arborist, and he had inspected the tree on a number of occasions, repeatedly giving the tree a clean bill of health so long as it was properly pruned and had sufficient cables to ensure stability. The focus of the inspections by the arborist was on the viability of the tree — was it likely to fail. He also focused on the stability of the tree, given the apparent shallowness of the root system. The Association did not ask the arborist to evaluating the extent to which nuts, leaves, sap, and branch detritus were being deposited on the deck of the Mattikows’ condominium unit or whether anything could or should be done in that regard.

The Mattikow complaint claimed the Association was negligent “[i]n that it failed to trim, remove or maintain the hickory tree or to prevent the deposit of materials on the subject deck in that it failed to remedy the condition of the deck as described in paragraph four in the deck although it or should have known that such a condition(s) existed.” In turn, the condition described in paragraph four is that there was “an accumulation of materials, including but not limited to sap, mold, liquids and acorns from a large hickory tree, whose branches and limbs hung directly over said deck.”

The Association argued that it had undertaken to trim and maintain the hickory tree. Specifically, the arborist had been called in 2013, and his recommendations had been promptly followed. He was again called to inspect the tree in 2015, and his recommendations were implemented promptly. He came again in 2018, at which time his assessment was that as long as the Association “continued to prune and monitor the tree, the tree posed no hazard.”

And there was the problem, the Court said. The Association focused on whether the tree was a “hazard,” that is, not viable and likely to fall. But, the Court said, these conditions “are irrelevant to the claims being made” by Al and Nina.

The Court noted that the Association’s evidence said nothing about whether the tree should have been removed, for reasons unrelated to its viability or likelihood of toppling or shedding large branches, despite the fact that removal was the Mattikows’ stated goal. The Association did not address the issue of the existence or nonexistence of a duty to “prevent the deposit of materials on the subject deck.”

The Court compared the situation to Connecticut General Statute § 13a-149. In the absence of an ordinance enacted pursuant to General Statutes § 7-163a (and limited to snow/ice conditions), a municipality is liable for maintenance of sidewalks and the abutting property owner cannot be held responsible for any injuries caused by a failure to maintain the sidewalk, even if there is an ordinance directing the abutting property owner to maintain the sidewalk. However, if the a property owner is responsible for creating the condition on the sidewalk — and that often is a result of depositing snow on the sidewalk or having a drain/downspout releasing water onto the sidewalk which subsequently freezes — then despite the absence of any legal duty to maintain the sidewalk, an abutting property owner may be held responsible for injuries resulting from a condition causally related to the conduct of that owner of the abutting property.

The Association is in a similar role here, the Court said. “It is in control of the common areas abutting the condominium unit for which the occupant of the condominium unit has primary responsibility of maintenance. It is a situation on property over which the defendant had no control but emanating from property within the control of the defendant, with an ability of control implicating the condition causing an injury to the plaintiff.

Returning to the nuisance claim, the Association rather perfunctorily asserted that if it is right with respect to the claim of negligence, then necessarily the nuisance claim must also be a matter for which the defendant is entitled to judgment as a matter of law. This is wrong. To succeed under a nuisance theory, a plaintiff need not establish the predicate for a negligence claim. An invasion of a person’s interest in the private use and enjoyment of land by any type of liability-forming conduct is private nuisance. The invasion that subjects a person to liability may be either intentional or unintentional.

Generation of malodorous smells offensive to neighbors can form the basis for a private nuisance, and the location of the odor-generating activity is an appropriate factor to be considered. The odors do not have to be formed negligently. “The benchmark,” the Court said, “is the reasonableness or unreasonableness of the interference with the ability of another (the plaintiff) to enjoy his/her property.”

The Court ruled that it could not grant summary judgment in favor of the Association on the nuisance claim, particularly given the focus of the court on the negligence claims that did not implicate possession and control over the deck but rather control over the tree on property that was within the control of the defendant. Those claims, the Court said, were closely aligned with the possible existence of a private nuisance.

– Tom Root

TNLBGray140407

And Now The News …

Sacramento, California, Bee, September 19, 2019: We’re in a race to save our urban canopy. Why Sacramento’s trees are under threat

The unfinished subdivision in north Natomas looks just like any other, propped up along the banks of a man-made lake. But one strip of land here may be key to the livelihood of Sacramento’s urban forest, a place where scientists are growing the trees of the future. Researchers from the UC Cooperative Extension are wagering on 12 tree species planted near the lake to see if they can withstand the effects of a changing climate. In the future, Sacramento is expected to experience an increasing number of hot and dry days that could unleash a new rash of pests and diseases — both threats to urban trees. The researchers are looking to places with harsher terrain than California’s inland valleys as a template for the future: Australia, west Texas and Oklahoma. In Sacramento, they have planted trees at three other sites and a control group on the campus of UC Davis. Urban forester Kevin Hocker stopped at Fisherman’s Lake on a weekday in July to survey the small Canby oak, a tree native to Mexico with emerald-colored leaves that can sprout as tall as 50 feet. The oak grows fast and upright and tolerates extreme heat. “We’re giving it a shot and so far it looks great,” Hocker said. “It’s pretty promising…”

Nashville, Tennessee, WSMV-TV, September 19, 2019: Call 4 Action gets homeowner answers after she says her tree limbs were cut without her permission or notification

A Nashville woman living in The Nations returned home upset last week. The woman said she went out for a quick errand. When she returned, she found the limbs on her trees hacked off. When the 67-year-old Banks looks at her front yard now her heart breaks. “My property means a lot to me,” Banks said. “I was given no notice that there were going to be any tree trimmers or cutters within the area. I just feel like somebody invaded me.” Banks told News4 she takes care of her yard and when her limbs get too long, she treats them properly. In the past Banks also said she’s received notices in advance if NES is worried about her trees. News4 reached out to NES. In a statement, NES said it found the trimming necessary and said dogs in her front yard prevented them from notifying her…

Tallahassee, Florida, Democrat, September 19, 2019: Know what to look for when hiring a tree service

Our summers are pretty busy in the tree world. Because our summers are long, hot, and humid, we have an ideal location to grow a lot of diverse things. This includes not only the trees themselves, but things that attack our trees, like pine beetles, fungi, and many types of bacteria. With all this thriving biology, you can find yourself in the unfortunate situation where you have to remove a tree. As you probably already know, it can be quite expensive to have a tree removed. A simple web search will provide you with many tree service companies, but how do you know if you’re getting a professional or just someone with a chainsaw? Below are some best practices to ensure a less-stress tree care experience. First, what is an arborist or a tree surgeon? Arborists and tree surgeons are titles that require no training. However, a Certified Arborist, one who has been certified by the International Society of Arboriculture (ISA), is a professional who has demonstrated a basic knowledge of tree care through the completion of a comprehensive exam on tree trimming, care, and removal…

Washington, D.C., Post, September 19, 2019: Save eight old trees? Or build more affordable housing? A D.C. development dilemma.

The eight majestic willow oaks flourished for decades. Kids played hide-and-seek among their trunks. They shaded nearly a hundred years of first kisses, long talks and lazy afternoons. And they were the silent witnesses to the drug deals, the arguments, the shootings and the homicides, too. Still healthy, strong and thick-trunked, these eight sentinels of D.C.’s turbulent history — among the finest urban heritage trees in the city — will be lumber soon. Development, you know. Glass towers and quartz counters. Outrage? Of course! Nearly a thousand emails flooded the inboxes of city leaders this week when the tree people spoke up for the trees. These are heritage trees, after all. That means, according to a law enacted in 2016, these babes get special status because their girth is at least 100 inches around. Yes, in the tree world, thick means power…

Seoul, South Korea, Daily NK, September 20, 2019: Miner jailed for cutting down tree in “slogan tree” zone

A North Korean man who felled a tree in an area designated for slogan-inscribed trees in August has been sentenced to a correctional labor camp for five years, Daily NK learned on Wednesday. The man, who is a miner in the city of Kumdok, South Hamgyong Province, cut down the free for firewood, according to a Daily NK source based in the province. The tree the miner cut down did not have an inscription on it, the source added. Daily NK sources in the area have confirmed that the area with slogan-inscribed Korean larch trees is located over two kilometers away from a residential area in Kumdok. A forest management official later found the stump of the tree the man had cut down and alerted local security and police officials. Their investigation led to the arrest of the man…

Sacramento, California, Bee, September 19, 2019: A tiny beetle has decimated hundreds of SoCal trees. Now experts are worried about Sacramento

The shot hole borer doesn’t look or behave like a killer. Yet the insect — about the size of a sesame seed — could be a lethal threat to Sacramento’s urban forest. It’s already decimated hundreds of thousands of trees across at least six counties in Southern California. Many fear the rest of the state could be next. Scientists are mobilizing to find ways to slow the shot hole borer’s advance. Fast solutions have not been easy to find. State lawmakers recognized the seriousness of the risk and directed $5 million last year to the Invasive Species Council of California to eliminate the beetle. In the last decade however, the insect has proven a strong foe and become one of the state’s most unwanted invasive critters. Its progress in Southern California has been steady enough for other regions to be concerned. “It’s not here yet,” said Ray Tretheway, executive director of the Sacramento Tree Foundation, “but the arborists and urban forest managers always tell us that it’s inevitable that it will be here someday.” Two variety of the shot hole borer are present in California: the polyphagous, which loosely translates to excessive desire to eat, and the Kuroshio that is more common in San Diego County. While some pests desire one type of tree, the shot hole borer can survive in at least 64 different kinds — mostly trees that grow near riversides like willows, cottonwoods and sycamores. The Sacramento region, concentrated at the intersection of two rivers and a vast waterfront parkway, could be a prime target…

Dallas, Texas, Morning News, September 18, 2019: This opportunistic fungus could be the final knife in the heart for sick trees

Hypoxylon canker in trees is a scary-sounding thing, right? It is a fungal disease that is common on many hardwoods. An opportunistic fungus, Hypoxylon atropunctatum, causes it. Red oaks are more susceptible than trees in the white oak group like bur, chestnut, chinquapin and white oak. It can also be found on elm, pecan, hickory, maple and sycamore. It usually manifests as black or gray splotches where bark has been sloughed away. Here’s the most important part of the story, though: Hypoxylon canker is never the cause of problems in a tree. It is basically unable to cause serious disease in healthy trees, but it can quickly colonize weakened trees, especially those with dying bark and wood resulting from other issues. Hypoxylon is never causal. It simply sets up shop in sick trees that are weakened by drought, root disease, mechanical injury, soil contamination, construction damage or being too deep in the ground. These true causes of stress enable this opportunistic fungus to produce cankers on branches and trunks. Perfectly healthy trees can even develop this canker on lower limbs that have been shaded out by dense canopies, but that’s not a serious threat to the overall health of the tree…

Tampa, Florida, WTSP-TV, September 18, 2019: How much are 28 trees worth? Tampa targets tree cutters with record $840K fine

Twenty-eight trees fell. Now, Tampa wants to make sure everybody hears it. In the battle over who should have final say when it comes to removing trees from private property, the city of Tampa is fighting back. With a new state law barring local governments from regulating tree removal seemingly on their side, the property owner of a rundown South Tampa mobile home park had more than two dozen trees chopped down in August. But now Tampa officials are issuing some of the largest fines in city history against the owner and the tree removal company involved. The city is seeking fines in excess of $800,000 from Miller & Sons and Life O’Reilly, or $15,000—the maximum allowable fine under state law—for each of the 28 trees chopped down from both parties for a total of $420,000 each. Tampa city attorney Gina Grimes said the fines are a result of the irreparable damage that’s been done but contends the city is in full compliance of the new state law…

Shaker Heights, Ohio, Patch, September 18, 2019: 300-Year-Old Tree Falls In Ohio

When a devastating storm tore through the east side on Friday night, it felled a tree that predated Ohio (as a state) and Cleveland (as a city). The White Oak had lived through droughts, blizzards, presidents, wars and the founding of the nation. It could not, however, outlive a microburst with 100 mph winds. Friday’s microburst, an intense downdraft during a thunderstorm, tore branches from trees, downed power lines and left thousands of people without power. Streets flooded, intersections closed and police did their best to manage traffic in the dark. A tree fell at the Nature Center at Shaker Lakes and landed on power lines, leaning against the transformer. Trails were blocked, the wildflower garden was smashed by fallen limbs, and one of the biggest and oldest trees in the region was snapped at its base. The White Oak was a point of fascination for the Doan Brook Watershed Partnership, which had done research on the age of the tree, going so far as to conduct a coring, Nick Mikash, a natural resources specialist at the Nature Center, said. A coring removes a sliver of a tree to determine its age and history…

Winston-Salem, North Carolina, Journal, September 18, 2019: Does city keep tree limbs from blocking signs?

Q: Why does the city not provide some system that keeps important traffic signs visible: For example, stop signs at Oaklawn Avenue at Coliseum Drive and at Talison Drive and Thornhill Lane, a yield sign at Coliseum and Robinhood Road, and “do not pass” signs along Robinhood and Country Club roads are all obscured by trees and foliage. It’s no wonder there are lots of former car parts strewn about city intersections.
A: “We do have a system in place and try to address these issues as we are made aware,” said Keith Finch, director of vegetation management for the city. “However, there are many signs distributed about the City of Winston Salem and it is hard to keep track of all of them.” The best way to make the city aware of concerns like this is through CityLink 311 or 336-727-8000, or using the CityLink app. “When we receive these reports, we investigate and either clear the sign in house or send a letter to the owner of the vegetation that is blocking the sign, asking them to cut back the limbs, vines, etc.,” he said. As to the specific intersections you identified in your email, he thanked you for bringing those sign issues to their attention. “We will address these issues you have mentioned in a timely manner,” he said…

Seattle, Washington, Times, September 18, 2019: Tips to help trees thrive all year

Seattle summers are brief, but increasingly, hot and getting hotter. Your trees and other greenery aren’t any more used to these temperatures than you are. But there are several ways to keep your trees healthy and happy, as well as methods to make sure they aren’t dying from the heat. Summer is a great time to see how your tree is really doing, says Jacob Rogers, a certified arborist who works at Eastside Tree Works. First, clear the deadwood. It helps keep your yard safe and your tree healthy.“ The winter’s good to prune the trees because that’s when the trees are dormant,” Rogers says. “In summertime, it’s good to take the deadwood out, because it’s easy to tell what’s dead or what isn’t.” Conifers with no leaves or needles are dying or dead, especially if those branches on the end of the canopy are dry, are an indication of a dead or dying tree. This clearing of deadwood also helps keep your house safe. “It’s a really good way to help fireproof your tree,” Rogers says. “If you collect a bunch of deadwood, especially like in a conifer, like a spruce next to your house, that’s all kindling that can go up really easily…”

Dallas, Texas, KXAS-TV, September 18, 2019: Dallas Plants Trees, But Some Aren’t Getting the Water They Need

The city of Dallas wants to plant 5,000 new trees in the next few years to make up for trees lost in June storms. A program to plant trees in 12 Dallas parks is called Branching Out and park officials are seeking donations to help irrigate the new trees through the Dallas Parks Foundation and Texas Trees Foundation. “Every time we do plant new trees in our parks, we have to make sure there is irrigation because we want the majority, if not all the trees to survive,” Dallas Parks Assistant Director Oscar Carmona said. “The first couple of years are the most important for a tree’s survival, and water is the most important thing for a tree to survive.” A separate city of Dallas program with a similar name called “Branch Out Dallas” offers residents free trees to plant on their property. A dozen or so trees the city planted at the Martin Luther King Jr. Community Center a year ago are an example of how not to help trees thrive. The MLK trees evidently have no irrigation system. “They’re barely hanging on. They’re not being taken care of. For growth, they need water,” neighbor Sherika Hardman said…

San Francisco, California, Chronicle, September 17, 2019: PG&E to judge: We’re doing more tree work than any utility ‘has ever done before’

An attorney for Pacific Gas and Electric Co. defended the company’s tree trimming to a federal judge Tuesday, describing its efforts to prevent more wildfires by heavily clearing vegetation around power lines as necessary and unprecedented in reach, even while conceding some major flaws in the program. PG&E admitted to U.S. District Judge William Alsup that its contractors have failed to cut or fell every tree that could collide with electrical equipment and ignite a fire, but the company blamed a lot of that on the broadly increased scope of the program. The PG&E lawyer also said the software that contractors use to track their vegetation management work does not always accurately show the location of power lines. Alsup, who is overseeing PG&E’s probation from the 2010 San Bruno gas pipeline blast, set the San Francisco hearing because of a recent critical report from the company’s court-appointed monitor. In the report, the monitor said his team found PG&E contractors had overlooked “numerous trees” and identified “substantial record-keeping issues related to the Company’s pre-inspection and tree work processes…”

Associated Press, September 17, 2019: Reward offered in death of woman struck by piece of tree

A group is offering a $10,000 reward for information leading to the arrest and conviction of anyone involved in the death of a woman hit by a falling piece of tree at an Ohio state park. Forty-four-year-old Victoria Schafer was struck Sept. 2 near Old Man’s Cave at Hocking Hills State Park and died at the scene. Authorities initially believed the part of the tree that hit the Chillicothe woman fell on its own but the Ohio Department of Natural Resources later said it had evidence indicating there may have been foul play…

Seattle, Washington, KUOW Radio, September 17, 2019: Dead tree after dead tree.’ The case of Washington’s dying foliage

When Jim and Judy Davis moved to their property in Granite Falls two and a half years ago, the trees in their 25-acre forest were healthy. Then the hemlocks started to turn brown. Now, “if we were to walk this path completely — it’s about a quarter of a mile — this is what you would see,” Jim Davis said, “just dead tree after dead tree. “It’s just a feeling of sadness and helplessness.” So the Davises called in Kevin Zobrist. “I feel like I’m always coming out to a crime scene, you know: another dead tree, another one lost, coming out to investigate,” Zobrist said. Zobrist is a forestry professor at Washington State University. He said this isn’t just a problem on the Davis’ property. “When I drive up and down the highways around western Washington, I just see dead and dying hemlocks all up and down the roads,” Zobrist said. “We first noticed it right around 2016, and now I just see it everywhere.” And it’s not just hemlocks. Western red cedars and big-leaf maples are struggling as well. All three species are native to western Washington. Zobrist isn’t the only one seeing this: KUOW’s listeners have been writing in to ask about why they’re seeing so many dead trees. Zobrist thinks the answer lies in climate change…

Richmond, Virginia, WTVR-TV, September 15, 2019: Unpaid tree stewards cut limbs ‘to fill a void’ in Richmond

Volunteers with the Richmond Tree Stewards pruned trees in heavy traffic areas and where folks frequently walk in hopes of making neighborhoods safer Saturday. Dana Marshall said the group’s tree care and pruning work helps the city, which is unable to tend to all of Richmond’s numerous trees. “They’re in the parks and have the big equipment,” Marshall explained. “So with the pruning we can really help and sort of fill a void that’s a little more challenging for the city to do on its own.” That is because city crews tend to focus on larger, dead trees. The tree stewards help with smaller limbs on healthier trees, like the one Marshall clipped in Church Hill. “Right now I’m cutting these limbs, there’s some limbs up here that could drop on cars,” Marshall said. “Assuming maybe a school bus could [drive] under here. It’s for the safety of people and vehicles, but it’s also for the tree…”

San Francisco, California, Chronicle, September 17, 2019: Forest Service seeks bids to thin dense stands of trees

The U.S. Forest Service, faced with the slow pace of forest thinning, is seeking proposals to remove dense stands of trees in a wide swath of Arizona to help prevent wildfires. The work is part of the Four Forest Restoration Initiative, the largest project of its kind within the Forest Service. It eventually will cover 3,750 square miles (9,712 square kilometers) along a prominent line of cliffs that divides Arizona’s high country from the desert. The bidding opened Monday for work on up to 1,278 square miles (3,310 square kilometers) in parts of the Kaibab, Coconino, Apache-Sitgreaves and Tonto national forests. The proposals are due Dec 16. Contracts would be awarded in April. “The intent of the RFP is to support existing industry, attract new sustainable industry and to significantly increase the pace and scale of forest restoration while creating jobs, restoring our forests, protecting communities and downstream water supplies,” regional forester Cal Joyner said in a statement. Those keeping tabs on the project have been frustrated by the pace of the work done so far. The Forest Service set a goal of having 78 square miles (202 square kilometers) mechanically thinned each year, but only about a third of that has been done on average. “We all know how underwhelming the results of 4FRI have been,” Coconino County Supervisor Art Babbott said at a recent science conference in Flagstaff…

Phys.org, September 18, 2019: Tree-planting to offset carbon emissions: no cure-all

A few euros, a couple of mouse clicks and a tree is planted—as air travel is increasingly becoming a source of guilt, consumers and companies are looking for other ways to ease their conscience and reduce their carbon footprint. But as more polluting industries join efforts to offset their carbon emissions, the effectiveness of the approach is open to debate, with some critics suggesting that tree-planting schemes are nothing more than a fig leaf. Once marginal, the offset movement has even reached the arch-enemy of environmentalists: big oil. Shell has ploughed $300 million (270 million euros) into forest plantations to reduce its carbon footprint by 2-3 percent, Italy’s ENI has set an objective of zero net emissions via its forestry investments, and France’s Total plans to set up a special “business unit” next year to spend $100 million annually on compensation efforts. Beyond the grand statements, carbon offset schemes basically follow the same, simple mechanism…

TNLBGray140407

Case of the Day – Thursday, September 19, 2019

“THE BEST GAME OF MY LIFE”

In Caddyshack – arguably the greatest movie ever made (besides Gone With the Wind and Attack of the Killer Tomatoes) – there is a memorable scene in which Assistant Greenskeeper Carl Spangler (played by Bill Murray) – impressed into caddying for The Bishop (played by Henry Wilcoxon) – convinces him into continuing a solo 18-hole game into the teeth of a worsening gale.

Life sort of imitated art one September day 11 years ago. A 12-year old boy named Ryan Korengel and his friends kept playing in worsening conditions. Of course they did – they were 12-year old boys… would you expect anything less? A tree branch fell on Ryan, injuring him severely.

Ryan’s parents promptly sued everyone who had touched a golf club that day, including the Hamilton County, Ohio (Cincinnati) Park District. Of course they did – they were 21st century American parents… would you expect anything less?

The interesting note is that, after last week’s decision on summary judgment, this case is finally set for trial some 11 years after the event being litigated. Young Ryan can now legally swill a beer while he plays the front nine. He’s still playing golf (now in college), although the tree injury left him partially disabled. His story has been told on the Golf Channel, and it’s sort of inspiring.

But part of the tragedy for Ryan and the defendants and everyone involved (except the lawyers, of course) is that the case is in its second decade. The only thing longer and more tedious than watching 18 holes of golf is watching the American justice system.

Korengel v. Little Miami Golf Ctr., 2019 Ohio App. LEXIS 3787 (Ct.App. Hamilton County, September 13, 2019). Twelve-year old Ryan Korengel and three other boys paid to play golf on the nine-hole, par-three golf course at the Golf Center, which was owned by the Hamilton County Park District. The Golf Center advertises to golfers that it will “attempt to notify them of potentially severe weather conditions” by sounding a siren, communicating the recommendation to seek shelter or vacate the course.

When the boys teed off at about 1 p.m. one September day, the weather was warm, sunny, and breezy. As they progressed from hole to hole, the wind increased. The golf course play coordinator told the boys to pick up their pace near the fourth green, but he never warned them about the approaching storm.

As the boys teed off on the sixth hole, the winds became stronger. On the seventh hole, the boys began to hear tree limbs cracking and saw tree limbs breaking and falling from trees in the woods adjacent to the course. By the time the boys teed off on the eighth hole, they could see trees swaying and heard more cracking of limbs. At around 2:30 p.m., Ryan was preparing to putt on the eighth green when tree limbs from a nearby silver maple tree fell towards him. One struck him in the head, resulting in serious and permanent injury.

Before Ryan’s injury, no one from the Golf Center activated the clubhouse siren. Everyone agreed the wind caused the branch failure. In fact, the winds that day caused a lot damage in the Greater Cincinnati area, including at the Golf Center.

The Korengels sued the Park District (and several other defendants, not relevant here) alleging negligence and recklessness. The Park District moved for judgment on the grounds of political-subdivision immunity. The trial court denied the motion in its entirety. Appellants then appealed the denial of the motion to this court.

Held: Summary judgment before trial should not be granted to the Park District. The District established entitlement to the general grant of immunity under R.C. 2744.02(A)(1), where issues of material fact exist as to whether the injury, which occurred on the grounds of a building used in connection with a government function, was caused at least in part by the negligence of the park district employees in failing to maintain the tree limb and/or failing to manually activate a storm siren, and was due to a physical defect—an unmaintained tree limb—on those grounds, as required for the physical-defect exception to immunity set forth in R.C. 2744.02(B)(4).

Likewise, the Park District was entitled to summary judgment due to the immunity defense under R.C. 2744.03(A)(5) for a claim of reckless supervision in the failure to warn a 12-year-old golfer of impending weather, because the record contains no facts demonstrating that other potential golfers were turned away due to the weather.

The District argued that the open-and-obvious doctrine and the “act of God” defense barred the claims. In the alternative, they argue that, if there is evidence upon which reasonable minds could differ with respect to whether the physical-defect exception applied, the Park District’s immunity is reinstated under R.C. 2744.03(A)(3) or (5). But whether the danger from a defective tree is open and obvious to a 12-year old is not governed by the same standard that governs the determination of whether the District’s landscapers and arborists had constructive notice of the defect.

To establish the physical-defect exception, a plaintiff must show that the injury, death, or loss (1) resulted from employee negligence, (2) occurred within or on the grounds of buildings used in connection with a governmental function, and (3) resulted from a physical defect within or on the grounds of buildings used in connection with a governmental function.

“Physical defect” is not defined in Ohio law, but the court has previously defined the term as “‘a perceivable imperfection that diminishes the worth or utility of the object at issue. Here, the Korengels allege in the complaint that the condition of the tree limb and the storm siren constituted physical defects. Thus, when moving for summary judgment, the District presented evidence that the storm siren and tree limb were not defective, and therefore, summary judgment was warranted.

With respect to the storm siren, the District submitted evidence showing that the siren as functioning as intended on the day of the storm. It could be manually activated, but no one attempted to turn it on before Ryan’s injury. There was no evidence to support the Korengels’ allegation that the condition of the storm siren was a physical defect that day.

Admittedly, the Court held, no tree can ever be absolutely safe and immune from branch failure. The mere fact that a tree limb fell does not mean the limb had “a perceivable imperfection that diminished the worth or utility of the limb, a requirement for a physical-defect finding.” The United States Forest Service describes “a ‘hazard tree’ [a]s a tree that has a structural defect that makes it likely to fail in whole or in part.” Consistent with this description, the Court ruled, “we conclude that, where a tree has a perceivable structural defect that makes the tree likely to fail, a falling branch from the tree may be a physical defect for the physical-defect exception to immunity set forth in R.C. 2744.02(B)(4).”

The District submitted a report from the staff arborist, Alan Bunker, who, ten days after the windstorm, examined the tree in question, as well as photographs of the fallen limbs, including the one that had struck Ryan, taken right after the storm. Arborist Alan was not able to inspect the fallen limbs because the Golf Center had removed them along with other storm debris to clear the eighth green for play two days after the incident. Based on what he could review, however, Alan testified that the tree exhibited good health and structure and the broken branches and remaining stubs, which were large in diameter, did not display any decayed wood or malformed branch attachments. Alan believed that the high winds on September 14th caused the broken branches, not any condition of the tree. Other District employees testified that the tree had been maintained, subjected to regular inspections, and appeared healthy before the storm.

The Korengels presented a report from their expert arborist Mark Duntemann. Mark concludedthat the tree from which the limb fell had failed because of conditions, clear to a visual inspection, that showed the tree was diseased and a safety hazard. Mark cited, an “excessive” lean, an improper crown – which was “lion-tailed” and comprised of unhealthy sucker growth – and discolored leaves. In his opinion, the lean of the subject tree guaranteed a higher likelihood of a branch failure falling into the high use area of the green apron where Ryan was located at the time of the injury. Although Mark admitted that wind contributed to the failure, he contended that the tree’s weakened condition also directly was material to the failure, noting that other trees at the Golf Center did not fail that day.

The Korengels pointed out that the District’s evidence contained no document “specifically” indicating that any inspection or maintenance work was performed on the subject tree, and no one from with specialized training said that any such act had been performed.

Ultimately, at the summary judgment stage, the Court said, it must construe the evidence in the light most favorable to the nonmoving party—the Korengels—and may not make credibility determinations. Where, as here, several material facts are in dispute and the expert witnesses for the parties have presented conflicting opinions, the issue of whether the tree limb constituted a physical defect cannot be resolved summary judgment.

The District argued the Korengels could not show the requisite causation between any alleged defect in the tree limb and Ryan’s injury because of the high winds at the time of the accident. The Court rejected this argument, citing concurrent causation. The relevant portion of the statutory physical-defect exception to liability requires only that the injury “is due to physical defects,” the Court held. This requirement could be met if a trier of fact were to conclude that a physical defect in the tree limb was a concurrent, proximate cause of Ryan’s injuries. To what extent the weaknesses found by the Korengels’ tree expert contributed to Ryan’s injuries is unclear, but the expert’s testimony “creates factual disputes on whether the tree limb was a physical defect and whether it materially contributed to Ryan’s injuries.”

The Korengels must also show the injury was caused by Park District negligence. To establish negligence, the Korengels must show a duty owed, a breach of that duty, and an injury proximately caused by that breach. There is no doubt the Park District employees owed Ryan the duty of care owed a business invitee. An owner of premises owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so its customers are not unnecessarily and unreasonably exposed to danger. This includes an affirmative duty to protect invitees against known dangers and those with which reasonable care might be discovered. That duty was heightened because Ryan was only 12 years old. Children have a special status in tort law and that duties of care owed to children are different from duties owed to adults. The Park District was required to exercise care commensurate with the foreseeable danger so as to avoid injury to 12-year-old Ryan.

However, an owner or occupier of land not an insurer of safety. There is no liability for harm resulting from conditions from which no unreasonable risk was to be anticipated or from those that the owner did not know about nor could have discovered with reasonable care. Id. The Korengels’ maintain that the Park District employees failed to exercise due care in the maintenance of the tree, permitting a hazardous tree to lean directly over the golf course where it was likely to fall on someone and cause serious injury or death. Second, the employees failed to exercise due care in the use of the siren, leaving Ryan without warning of the danger from the approaching storm and the negligently maintained tree on the eighth green.

Generally, where premise-liability negligence revolves around the existence of a hazard or defect, a defendant will not be liable for negligence unless its agents or officers actively created the faulty condition, or that it was otherwise caused and the defendant had actual or constructive notice of its existence. Here, the Court said, the record lacks any evidence of a breach of the duty of care related to maintenance of the tree. The Park District properly maintained the tree, as demonstrated by the deposition testimony of several employees and Alan’s expert report that the tree was in good health, growing normally, and had no defects that might have caused the limb that struck Ryan to break on September 14. Furthermore, the Park District never received any prior complaints about the tree, which had been routinely inspected. Thus, the District maintains the evidence in support of summary judgment shows that no Park District employee breached a duty of reasonable care with respect to the tree.

The Korengels argued that there are numerous questions of material fact raised by both fact and expert witnesses rendering summary judgment inappropriate on this issue, pointing to the same evidence creating a genuine issue of material fact as to whether the tree limb was a physical defect. This includes evidence undermining or contradicting the District’s evidence that the tree had been maintained and inspected by a qualified arborist, as well as Mark’s opinion that the Park District’s employees’ failure to maintain the tree fell below the standard of care owed a golf patron, when the condition of the tree was so patently bad, and for such a long time, that employees should have discovered it and removed the tree.

The Court concluded the evidence creates a genuine issue regarding whether the Park District employees fell below the required standard of care in this case. Ultimately, the credibility of and the weight to be given this conflicting evidence, the Court held, is for trial.

In its final Hail Mary, the District argued that if the tree was a hazard that should have been discovered before the storm, the hazardous condition was open and obvious, Ryan should have protected himself against it, and they owed no duty to Ryan with regard to the tree as a matter of law. In Ohio, if “a danger is open and obvious, a property owner owes no duty of care to individuals lawfully on the premises.” The issue of whether a risk was open and obvious may be decided by the court as a matter of law only when one conclusion can be drawn from the established facts.

The Korengels argued that the open-and-obvious doctrine would not apply because Ryan was injured by a flying object, not a static condition. The Court rejected this argument: “The Korengels’ position is essentially that the tree was a hazard in its static condition because it was foreseeable that a limb would break and land on the green on the eighth hole of the golf course and strike a player at any time. The ensuing wind that impacted the tree at the time of Ryan’s injury was not caused by any negligence of the Park District’s employees, and the facts show that the increasingly windy conditions and the resulting effect on the trees in the area could be observed by the golfers on the course long before the limb broke and injured Ryan. Because of these distinguishing facts, we reject the Korengels’ argument that the open-and-obvious doctrine cannot not apply in this case because Ryan was struck by a flying object.”

In this case, the facts are in dispute as to whether the Park District employees were negligent with respect to the maintenance of a tree, allegedly obviously defective in its static condition because it was likely to fail, resulting in a branch striking a golfer. Further, the instrumentality that caused movement in the limb of the tree was unquestionably not a human—it was the wind. Thus, the Korengels’ position is wrong.

Still, the Court ruled, “we cannot agree that the facts supporting a determination that the Park District had constructive notice of a defective tree on a golf course would also require a finding as a matter of law that the Park District owed no duty to protect Ryan from the allegedly hazardous tree. The legal standard governing when a golf course has constructive notice of a defective tree on the course is not the same as the standard governing what is an open and obvious danger to a lay person 12 years old, who lacks the same discernment and foresight in discovering defects and dangers as older, and more experienced golf course landscapers and arborists.”

As a result, the Court ordered that the case go to trial.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, September 18, 2019

FINDERS KEEPERS

superball140801We settled a particularly difficult case yesterday. Our 12-year old neighbor Christian found a Superball (remember those?) in the leaf-covered grass near his house. He was busy tormenting his little sister Lexia with it – something at which 12-year old boys are especially adept – when he wondered whether he could keep his find or he’d have to “give it back.”

We asked “Give it back to whom?”

He shrugged, having no idea who the owner had once been. His situation reminded us of a sad story a few years ago about a contractor who found a wad of money in the walls of a house he was fixing up for a new owner. The contractor and the owner and — finally — the descendants of a prior owner — all became embroiled in litigation, and in the end, the lawyers got virtually all of it. Shades of Jarndyce v. Jarndyce!

fklw2Lucky for Christian, we knew what Ohio law had to say about “treasure troves,” those little bundles of cash, jewelry, art or old Hostess products that people occasionally stumble over. It turns out that the answer is, it depends on whether the property is lost, abandoned, stolen or mislaid. If it’s lost or abandoned, it turns out, Christian’s little sister was right in the advice she gave him: finders keepers.

In today’s case, a very fortunate cop found thousands of gold and silver coins scattered on a city street at 4 a.m. He picked them up, and then, being a dutiful cop, turned them in. The owner never stepped forward — and we bet there’s a story in that — so after about a year, the police officer sued for ownership.

The City opposed him, arguing that the money was located on its street and the policeman was on its time clock when he found them. None of that mattered, the Court said. All that counted was that the lost or abandoned property was found by Officer Baker, who thus had ownership rights superior to anyone other than the rightful owner.

Our advice to Christian, then, was the Superball was probably lost property, because who’d willingly abandon such a cool ball? It was his to enjoy unless the true owner stepped forward.

Sadly, our legal efforts were for naught. Shortly after our sage advice to him, Christian lost the Superball on an especially high bounce into a nearby cornfield. Losers weepers.

Baker v. City of West Carrollton, Case No. 9904 (Ct.App. Montgomery Co., August 7, 1986) (unpublished), 1986 WL 8615. Police officer Charles Baker found a large number of gold and silver coins scattered on a West Carrollton public street. After reporting the find, he and city employees picked up 6,871 gold and silver coins and placed them in the police property room. When no one stepped forward to claim them, Baker sued to establish his right to the money. The City counterclaimed, arguing that the money was found on its street, and Baker was its employee, so the money belonged to it. The trial court agreed, and awarded the money to the City. Baker appealed.

chestHeld: The money belonged to Baker, not the City. The money was considered to be “lost” or “abandoned” property. Under Ohio common law, a finder who takes possession of “abandoned property” acquires absolute title. A finder of a lost article, although he does not by such finding acquire an absolute property or ownership, has a prior claim thereto as against everyone except the actual owner. The rule is practically absolute and is not affected by special circumstances of the character of the thing found, the place of finding, or the relation of the finder to the third person, even where the finder is the employee of the owner of the premises.

money2At common law a finder who takes possession of lost property has a duty to protect the property; to seek the true owner, and to return the property to the true owner on demand. The state had no right to found property as against the finder. Although Ohio law governs disposition of lost or abandoned property by police departments, the law requires the property to be turned over to persons with a right of possession, and Ohio courts have held that a finder of lost property which is unclaimed by the true owner is a person “entitled to possession of property” under that law. Officer Baker was such a person.

West Carrollton argued that since Baker is a police officer he should not receive a reward for performing his duty. The Court agreed that rewards for police officers’ performance of their duties aren’t appropriate, but it said that the City’s award analogy was strained. It held that Baker’s primary duty was to the true owner of the coins, and he got no reward for that.

The Ohio Supreme Court later upheld the decision. Now, if those Justices can just help Christian search the cornfield.

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, September 17, 2019

INCORPOREAL HEREDITAMENTS

The man on the right is a corporal ... and a combat vet with a Purple Heart. The man on the right, a major general, is not a corporal. The guy in the middle is just a politician. But none of them is an incorporeal hereditament.

The man on the right is a corporal. The man on the right, a major general, is not a corporal but may have once been one. The guy in the middle is just a politician and probably was never a corporal. But none of them is now or ever has been an incorporeal.

Today, we’re considering incorporeal hereditaments. Lawyers like cool terms like these, because they can charge more when their clients can’t understand what they’re saying. Here at treeandneighborlaw.com, we demystify the law for you. That’s us – the homeowner’s friend.

Before we pull a muscle patting ourselves on the back, let’s get to today’s topic. A hereditament is nothing more than a right that can inherited. A corporeal one is that may be seen and handled, like a piece of real estate. Back in the day, conveyance of land was done by livery of seisin, wherein the propert seller would actually hand the buyer a twig or clump of dirt, a ritual conveyance of the real estate being sold. An incorporeal hereditament, on the other hand, is something that couldn’t be symbolically passed off, something intangible like an easement.

Sound boring? Some North Carolinians found out that boring or not, it’s important. A couple of landowners had, over the past 11 years or so, planted trees, built fences and otherwise taken actions inside a 30-foot driveway easement that encroached on the use of the passage by its owners. The easement owner, stymied in his use of the drive, sued. The defendants argued “too little, too late:” the plaintiffs were way beyond the 6-year statute of limitations for suing on incorporeal hereditaments. The plaintiffs said “poppycock!” (a legal term meaning “fiddlesticks!”). The statute didn’t start running until the invasion of the easement had passed the 20-year period for adverse possession of land or prescriptive easements. In other words, the plaintiff argued, he had 26 years from the time the trees were planted and fences were built to bring a lawsuit.

The Court of Appeals disagreed, siding with the defendants. This wasn’t a case of someone trespassing, taking land by adverse possession or a right by prescriptive easement. This was someone trying to undo an express easement. The lawsuit simply related to an incorporeal hereditament, and it was subject to the 6-year statute.

The incorporeal hereditament not taken ... as Robert Frost might have said.

The incorporeal hereditament not taken … as Robert Frost might have said.

The result is curious. It means that an owner of an easement, a right that is often as valuable as the property itself, can lose that right by interference by the servient estate owner in a relatively brief period of time. To use a legal term, “you snooze, you lose.”

Pottle v. Link, 654 S.E.2d 64 (N.C.App., 2007). The Pottles owned Tract 6 on Cedar Island, and Snug Harbor South, LLC, owned Tract 4. Both of these owners held 30-foot wide easements allowing ingress to and egress from the public road to Tracts 6 and 4 and other lots. Mr. Link owned Tract 3 and Mr. Willets owned Tract 5, adjacent lots which were the servient estates over which the easements ran. About 11 years before the lawsuit was filed, Link planted several oak, cypress, holly, and cedar trees on Tract 3, joined several years later by two more oak trees to replacing two that had been destroyed by hurricanes.

He maintained the trees by installing an irrigation drip line and planting other vegetation on the tract In the summer of 2004, Willets installed a post and rope fence on Tract 5, and in 2005, Link built a fence. The Pottles and the LLC sued, arguing that Link’s trees and impeded traffic on the easement, and that Willets’ post and rope fence encroached on the easement as well. Plaintiffs filed a motion for summary judgment, arguing that Link and Willets had refused to clear the easements to provide access to property that had no other routes of access. Link and Willets moved for summary judgment, too, arguing that the 6-year statute of limitations for injuries to incorporeal hereditaments had expired, and that the plaintiffs’ actions constituted an abandonment of the easement. The trial court granted summary judgment to the plaintiffs, and defendants appealed.

Here's a legal expression anyone can understand ...

Here’s a legal expression anyone can understand …

Held: Summary judgment for the plaintiffs was reversed, and the defendants won on many of the issues. The Court of Appeals noted that the parties agreed that all encroachments, except the fences installed in 2004 and 2005, were planted or installed approximately nine to eleven years before the lawsuit. The only question, the Court said, was which statute of limitations applied. An affirmative easement is a right to make some use of land owned by another without taking a part thereof, while a negative easement prohibits the owner of a servient estate from doing something otherwise lawful upon his estate, because it will affect the dominant estate. Easements are incorporeal hereditaments, which is defined as “[a]n intangible right in land, such as an easement.” N.C. Gen.Stat. §1-50(3) requires that an action for injury to any incorporeal hereditament be brought within six years. The plaintiffs argued that the injury in this case was similar to an adverse possession, having a limitation period of twenty years, but the Court disagreed, holding that the cases relied on by the plaintiffs related to a defendant’s continuous trespass onto the plaintiffs’ property, not on plaintiffs’ incorporeal hereditament.

Because an injury to an incorporeal hereditament was at issue in this case, rather than a continuous trespass or a prescriptive easement to property held in fee, the Court held that N.C. Gen.Stat. §1-50(3) applied, and that plaintiffs’ case was barred where the six-year statute of limitations had been satisfied. All but two encroachments onto the plaintiffs’ easement began 9 to 11 years before the lawsuit. The defendants were therefore entitled to partial summary judgment as a matter of law. The fences had not been in place more than six years, but because the defendants argued that the fences did not encroach on the easement, an issue of fact existed, and summary judgment in favor of the plaintiffs had to be reversed.

The case was sent back to go to trial on the question of whether the fences encroached on the easement.

– Tom Root

TNLBGray140407

Case of the Day – Monday, September 16, 2019

WHO YOU GONNA CALL?

So who you gonna call?

    So who you gonna call?

It’s not easy to defeat a utility company holding an easement for transmission lines, despite the facts that the power outage that spawned the Energy Policy Act of 2005 and turbocharged the North American Electric Reliability Corporation happened 16 years ago. The great Blackout of August 2003, after all, started primarily when power lines sagged into trees in the Cleveland, Ohio, area.

Yeah, it’s tough to beat the power company and its chainsaw-wielding minions … but the Corrigans did it for awhile. They had granted an easement to a Cleveland electric utility for a transmission line. In the wake of the blackout, the utility told the Corrigans (and thousands of others) that it would vigorously pursue cleaning up vegetation in the easements. This mean, among other things, no trees within 25 feet of the lines.

The Corrigans had a big silver maple that was about 22.5 feet from the lines. They loved that tree, so they hired an arborist at considerable expense to trim it away from the lines and to inject the tree with a hormone to slow growth. Tough luck, the utility said, it’s coming down anyway.

So who do you call when the power company shows up with chainsaws and a gleam in its institutional eye? The Corrigans raced to the local common pleas court, and asked for an injunction. The trial judge agreed, and the Court of Appeals concurred. Both of those courts sided with the Corrigans that the utility could only cut trees that were “a possible threat to the transmission lines.”

It seemed important to the Court of Appeals that the community had not experienced any service interruptions since the Corrigans had pruned the tree, although that reasoning’s pretty thin. The tree has to only fall once, cascading one failed transmission lines into a continental disaster. But the Court seems to have been favorably impressed by the amount of money the Corrigans had spent getting the tree professionally trimmed.

utilitytrim140515The utility saw an issue here that was bigger than just the Corrigans and their lone silver maple tree. It framed the question as being just who was in charge here, the 88-odd common pleas courts spread throughout Ohio or the public utilities commission. The Ohio Supreme Court agreed that this was indeed the issue, and ruled that the inclusiveness of the state statute and regulations delegating power to the Public Utilities Commission of Ohio gave PUCO the sole authority to decide questions of vegetation management. (Ohioans spell out the acronym “P-U-C-O”: please don’t try to pronounce it as a though it were a word).

We have to admit that the appellate decision had left us with the uneasy feeling that the Court of Appeals’ attempt to do some rump justice here may have made it much more difficult for a utility to exercise its easement rights. To be sure, a utility being sued in a case like this would have to be prepared with an expensive and eye-popping case that graphically depicts the dangers that a tree in the transmission path — even a well cared-for tree — can pose.

The Ohio Supreme Court’s holding provides electric utilities a much friendlier forum in which they must litigate issues of vegetation management, although that may not be a bad thing. Utilities have to walk a fine line, incurring ire if property owners think trees were pruned too aggressively, and facing universal fury (not to mention catastrophe) when service is interrupted by vegetation coming into contact with transmission and distribution lines.

Corrigan v. Illuminating Co., 122 Ohio St.3d 265 (Sup.Ct. Ohio 2009). The Corrigans granted a quitclaim deed to The Illuminating Company, the local electric utility, for a transmission line to run through their yard. The easement gave the Illuminating Company the right to “enter upon the right-of-way occupied by said transmission lines … with full authority to cut and remove any trees, shrubs, or other obstructions upon the above described property which may interfere or threaten to interfere with the construction, operation and maintenance of said transmission lines.” The Corrigans had a large silver maple tree located about 22.5 feet from the centerline of the transmission lines. At considerable expense, they had their own arborist trim the tree and inject slow-growth hormone to keep the tree from posing a risk to the transmission line. Nevertheless, the Illuminating Company decided to remove the tree, and the Corrigans sued for an injunction.

The trial court granted an injunction barring the Illuminating Company from removing the tree, and the Court of Appeals agreed. The electric utility, seeing the issue as one that transcended the issue of one tree, but rather affected the company’s ability to manage vegetation in its rights-of-way throughout the state.

Held: The Corrigans argued that the issue was purely a contract matter, but the Supreme Court disagreed. Noting that “[t]here is no question that the company has a valid easement and that the tree is within the easement” and the easement’s language was unambiguous that the utility had the right to remove trees that might interfere with its transmission lines, the Court said the issue was the correctness of “the company’s decision to remove the tree instead of pruning it.” That was “really an attack on the company’s vegetation-management plan [and] that type of complaint is a service-related issue[] which is within PUCO’s exclusive jurisdiction.”

The statute creating PUCO to administer and enforce these provisions provides that the commission hears complaints filed against public utilities alleging that “any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential.” This jurisdiction is “so complete, comprehensive and adequate as to warrant the conclusion that it is likewise exclusive.”

The Court used a two-part test to reach its determination. First, it asked whether the commission’s administrative expertise was required to resolve the issue in dispute, and, second, whether the act complained of constituted a practice normally authorized by the utility.

rules140515The Ohio Administrative Code chapter on electric service and safety standards requires that utility companies establish a right-of-way vegetation-control program to maintain safe and reliable service. The Code requires that each electric utility inspect its electric-transmission facilities (circuits and equipment) at least once every year, in accordance with written programs, and takes a number of factors into consideration such as arcing, sagging, and line voltage as well as regulatory requirements from OSHA, FAA, and the Army Corps of Engineers. In addition, electric utilities are required to comply with the American National Standard Institute’s National Electrical Safety Code. The utilities are required to submit their programs to the Commission, which will resolve any disputes as to the efficacy of the plan.

The Court concluded that the Ohio Administrative made it clear that PUCO’s administrative expertise is required to resolve the issue of whether removal of a tree is reasonable.

The second part of the test determined whether the act complained of constitutes a practice normally authorized by the utility. Again, the Court said, the Administrative Code made it clear that vegetation management is necessary to maintain safe and reliable electrical service. Thus, the Supreme Court ruled, the second part of the test was satisfied, and the Corrigan’s complaint fell within the exclusive jurisdiction of PUCO.

That meant that the Illuminating Company’s decision that the silver maple interfered or threatened to interfere with its transmission line was a service-related question, and one that the Corrigans could only dispute in front of PUCO. The Court of Appeals judgment was thrown out.

– Tom Root

TNLBGray140407

Case of the Day – Friday, September 13, 2019

YOU HAD ONE JOB

The municipal position of tree warden in this country is unique to a few New England states. In Massachusetts and Connecticut, for example, state law requires that each town appoint one. A tree warden is a person in charge of shade trees on public town lands. The word “warden” was a common title for natural resource officials in the late 1800s. Being a warden signified a unique legal responsibility: to guard public resources against destructive forces that might include persons, insects, or diseases.

A tree warden may be either or appointed. In either case, the responsibility is the same – to oversee the care, maintenance, or removal of all public shade trees. As both manager and advocate, the tree warden must protect the trees and, where necessary, protect the public from the trees.

Massachusetts describes the tree warden’s functions as being “broad and includ[ing] responsibility for all community trees – on streets and town commons as well as in parks, schoolyards, and town forests. The position of tree warden requires qualified training in arboriculture, the science of tree care. A tree warden should also have good communication skills for dealing with the public, municipal department heads, and local politicians.”

Connecticut says that “Tree wardens are appointed public officials responsible for trees alongside public roads and in public spaces, other than those on state property or under the jurisdiction of a park commission. Each municipality is required to have a tree warden. The tree warden’s responsibilities include approving the planting, pruning or removal of trees under his or her authority. Public safety is among the chief concerns of the tree warden.”

Fans of the many “you had one job” posts online (and even on ESPN, sports-themed, of course) can appreciate the “fail” in today’s case. A Connecticut town tree warden ignores his duty to check on a tree that a concerned resident reports on several occasions as dangerous and decayed. The woman even had her own arborist look at it, but the tree was on town property, so it was up to the town to care for it. And that meant it was up to the tree warden.

He ignored it for nearly a year. Sure enough, it fell… right across the road and onto a passing car. When the motorist and his wife sued the town and the tree warden, the defendants claimed immunity. It turns out there is plenty of immunity for a government official acting according to his or her discretion. But immunity for failing to drive out to check on a reported danger tree?

C’mon, man. You had one job…

Wisniewski v. Town of Darien, 135 Conn. App. 364, 42 A.3d 436 (Ct.App. Conn. 2012). Mieczyslaw (let’s call him “Bud”) and Jolanta Wisniewski were injured when a tree within the street right-of-way toppled onto his car in front of 35 Rings End Road, inside the Darien, Connecticut city limits. This should not have surprised the Town, which had been notified several times by property owner Kristen Doble that her arborist had determined that five trees located near the roadway “need attention.”

On one occasion, Kris told the Town that limbs had fallen from trees near the roadway. On another occasion, she asked that the Town send someone to examine a “hollow” tree located near her front gate, next to the roadway, that had lost a leader (which is “a primary or terminal shoot of a plant (as a main branch of an apple tree or the terminal shoot of a spruce tree… the upper portion of the primary axis of a tree especially when extending beyond the rest of the head and forming the apex…” leader.

At the time Kristen complained and later, when the tree fell on Bud and Jolanta’s car, Mike Cotta was the Town’s tree warden. Pursuant to General Statutes § 23-59, he was responsible for the care and maintenance of trees located along certain rights-of-way within Darian’s geographic limits. There were no other express town charter provisions, rules or ordinances directing Mike’s duties as tree warden.

Bud and Jolanta sued the Town and Mike Cotta, claiming negligence against Mike and seeking indemnification against the Town pursuant to General Statutes §§ 7-465 and 7-101a. In addition, the complaint contained claims for liability pursuant to General Statutes §§ 52-557n and 13a-149 against the town.

The Town and Mike argued that Bud and Jolanta’s lawsuit barred by the doctrine of governmental immunity. That motion failed. The Town and Mike moved for summary judgment, arguing, in part, that governmental immunity barred the Wisniewski’s claims. The court denied the motion for summary judgment, and the case proceeded to a jury trial.

The jury found for Bud and Jolanta, holding that he had established Mike’s and the Town’s negligence under § 52-557n. Although the defendants established that their duty to maintain the subject tree was public in nature, they failed to establish that their duty to inspect, maintain and remove the tree was discretionary. Jolanta Wisniewski got $200,000, and Bud Wisniewski was awarded $1.5 million.

Mike and the Town appealed.

Held: Mike and the Town of Darian were liable for negligence.

As a general rule, a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity. In this case, Gen. Stat. § 52-557n abandons the common-law principle of municipal sovereign immunity and lists circumstances in which a municipality may be liable for damages. One is a negligent act or omission of a municipal officer acting within the scope of official duties. Section § 52-557n(a)(2)(B) explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. Municipal officers are not immune from liability, however, for negligence arising out of ministerial acts. Ministerial acts are defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.

The language of Conn. Gen. Stat. § 23-59 provides that many, but not all, of the duties of a tree warden involve the exercise of discretion, and thus are immune.

The determination of whether official acts or omissions are ministerial or discretionary for liability purposes is normally a question of fact for the fact finder. Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive. Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive.

A municipal employee, and, by extension, the municipality, may be liable for the misperformance of ministerial acts, but are entitled to immunity in the performance of governmental acts, including acts that are discretionary in nature.

Although Darian maintains no written policies directing the conduct of its tree warden, the town’s assistant director of public works, Darren Oustafine, testified at trial that the general direction provided to Mike Cotta upon receipt of a complaint “is always the same, look at the tree, make a determination. Is it a safety concern? Is it a priority?” Moreover, Cotta himself testified that upon receipt of a complaint regarding a potentially hazardous tree, he has a nondiscretionary duty perform an inspection. “In light of the evidence adduced,” the Court said, “including Cotta’s own statements, which were couched in mandatory language, it was appropriate for the court to decline to direct or to set aside the verdicts on the basis that the defendants’ actions as a whole were discretionary as a matter of law.”

The evidence in the record was enough to let the jury reasonably find that some of Mike’s duties, including the duty to inspect upon receipt of a complaint concerning a potentially hazardous tree, were ministerial. This was especially so given that Mike testified that upon receipt of a complaint regarding a potentially hazardous tree, he had a nondiscretionary duty to perform an inspection. The evidence showed a total absence of any documentation in the town’s work order records concerning Mike having inspected the trees. Although Mike testified at trial that he had performed a quick visual inspection, he admitted that performing a quick visual inspection is “not the same thing as saying you inspected it at all…” In addition, in a pretrial deposition, Mike admitted that he had not inspected the trees for decay or, for that matter, “for any reason.”

Furthermore, although Mike testified at trial that he had gone to the property and pruned the hazard tree in 2004, Bud and Jolanta introduced a deposition transcript in which Mike testified that he had not returned to the property between March 14, 2003, and July 11, 2006. Thus, the Court said, “numerous issues were raised concerning Cotta’s credibility, and the jury was free to decide that Cotta was not credible and to resolve the claim in favor of the plaintiffs that he failed to respond to any of the complaints by going to the property to inspect the trees.” Bud and Jolanta’s expert “opined that the subject tree would have exhibited signs of decay in 2002 and 2003, when Doble lodged her with the town. Accordingly, the jury could infer that a reasonable tree warden, had he performed an inspection, would have determined that the subject tree was a hazard.”

– Tom Root

TNLBGray140407