Case of the Day – Friday, October 23, 2020

ILLEGAL CONTACT

RefRemember what October used to be like? High school football, college football, pro football… and the promise of the rivalry games of November, then Army-Navy, and the bowl games starting with the dull thrum of the New Mexico Bowl on December 15, and building up to the thundering crescendo of the Sugar, Fiesta and Rose Bowls on New Years Day!

Those were the days…

So, in honor of pre-COVID football, we’re looking at one of the Cardinal rules of trespass – illegal contact.

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

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

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

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

The plaintiff felt deflated over the whole episode.

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

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

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

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

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

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

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

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

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

– Tom Root

TNLBGray

And Now The News …

Los Angeles, California, Times, October 20, 2020: $28 million to go to family of woman killed by falling tree at wedding in Whittier park

The family of a San Pedro woman who was killed by a falling tree at her daughter’s wedding nearly four years ago has reached a tentative $28-million settlement with the city of Whittier, according to court documents filed by the plaintiffs’ attorney. Margarita Mojarro, 61, was at Whittier’s Penn Park in December 2016 when a 70-foot blue gum eucalyptus fell onto the wedding party as they posed for pictures. Mojarro was killed, and several others were injured, including a 3-year-old girl who suffered irreparable brain damage. “There is no amount of money that can bring back family members or heal the damage that was done,” said Brian Leinbach, the plaintiffs’ attorney, “but they are pleased to put this tragic event behind them, and they feel good about that.” The lawsuit, filed in 2017, alleged that the city should have known about the danger of the tree, which the suit said was “negligently, carelessly, and recklessly maintained in dangerous character and condition attributable to advanced rot and decay.” The tree was over-watered and situated at a dangerous 20% grade, according to the suit, and the city both failed to remediate the threat or warn parkgoers of any danger. The case has been fiercely litigated for more than three years. The city initially maintained no fault in the accident, which it called “an unforeseeable Act of God,” and said that park managers had inspected the tree “three or four times” in the two years prior and found no cause for concern. The “failing” of the tree, which weighed several thousand pounds, followed several days of heavy rains that could have loosened the soil and unearthed its roots, arborists said at the time…

Baltimore, Maryland, WJZ-TV, October 22, 2020: Baltimore County Executive Johnny Olszewski Asking Property Owners To Plant Trees In Effort To Reduce Greenhouse Gases, Increase Tree Canopy

In an effort to reduce greenhouse gases and increase Baltimore County’s tree canopy, county executive Johnny Olszewski is calling on property owners to plant more trees. He says residents can request trees to be planted on their property for free, or they can do it themselves. Olszewski is also asking everyone to track the trees they plant [Video]…

Open Culture, October 23, 2020: Daisugi, the 600-Year-Old Japanese Technique of Growing Trees Out of Other Trees, Creating Perfectly Straight Lumber

We’ve all admired the elegance of Japan’s traditional styles of architecture. Their development required the kind of dedicated craftsmanship that takes generations to cultivate — but also, more practically speaking, no small amount of wood. By the 15th century, Japan already faced a shortage of seedlings, as well as land on which to properly cultivate the trees in the first place. Necessity being the mother of invention, this led to the creation of an ingenious solution: daisugi, the growing of additional trees, in effect, out of existing trees — creating, in other words, a kind of giant bonsai. “Written as 台杉 and literally meaning platform cedar, the technique resulted in a tree that resembled an open palm with multiple trees growing out if it, perfectly vertical,” writes Spoon and Tamago’s Johnny Waldman. “Done right, the technique can prevent deforestation and result in perfectly round and straight timber known as taruki, which are used in the roofs of Japanese teahouses.” These teahouses are still prominent in Kyoto, a city still known for its traditional cultural heritage, and not coincidentally where daisugi first developed. “It’s said that it was Kyoto’s preeminent tea master, Sen-no-rikyu, who demanded perfection in the Kitayama cedar during the 16th century,” writes My Modern Met’s Jessica Stewart…

Phys.org, October 22, 2020: Soil fungi act like a support network for trees, study shows

Being highly connected to a strong social network has its benefits. Now a new University of Alberta study is showing the same goes for trees, thanks to their underground neighbors. The study, published in the Journal of Ecology, is the first to show that the growth of adult trees is linked to their participation in fungal networks living in the forest soil. Though past research has focused on seedlings, these findings give new insight into the value of fungal networks to older trees—which are more environmentally beneficial for functions like capturing carbon and stabilizing soil erosion. “Large trees make up the bulk of the forest, so they drive what the forest is doing,” said researcher Joseph Birch, who led the study for his Ph.D. thesis in the Faculty of Agricultural, Life & Environmental Sciences. When they colonize the roots of a tree, fungal networks act as a sort of highway, allowing water, nutrients and even the compounds that send defense signals against insect attacks to flow back and forth among the trees…

Ann Arbor, Michigan, News, October 21, 2020: Lawsuit over Ann Arbor utility rates ignites council debate about funding for trees

A lawsuit over Ann Arbor’s water and sewer rates and how the city is spending money from ratepayers has sparked debate among City Council members. The lawsuit, which claims the city owes utility customers tens of millions of dollars in refunds, in part calls into question the city’s use of stormwater funds for trees. Up for council approval Monday night, Oct. 19, was a $674,020 contract with the Davey Tree Expert Co. for routine pruning of trees along city streets, funded by stormwater fees. The city has for several years funded trees and their maintenance using stormwater fees paid by utility customers. The city maintains trees provide important stormwater management benefits, intercepting an estimated 65 million gallons of stormwater each year. Last month, council approved using $160,775 from stormwater fees to plant 500 trees…

Cleveland, Ohio, Plain Dealer, October 21, 2020: Councilman ‘alarmed’ after Lakewood removes 6 trees along Detroit Avenue

The removal last Thursday (Oct. 15) of a half-dozen sunburst locust trees from the south side of Detroit Avenue, between Lakeland and Westwood avenues, caused quite the social media outcry in Lakewood. “This is part of regular maintenance of our tree canopy,” Mayor Meghan George said. “Apparently, the prior administration had some sort of verbal agreement with LakewoodAlive that any removal of trees in a business district would be verbally communicated with them in advance.” The mayor said she and her administration were never notified about such a handshake agreement. She noted that the trees in question were safety hazards that required removal prior to a full sidewalk replacement project starting this fall. “Even with the prior agreement, at the end of the day, this is a safety issue,” George said. “The brick surrounding the trees were inches apart.” City Arborist and Tree Forestry Manager Dan Sullivan said the trees, which despite being trimmed by utility companies were in the overhead wires, had been a source of complaints to the building department by second-floor apartment tenants. Even if the sidewalk wasn’t being replaced, it was Sullivan’s recommendation that the trees be removed…

Norfolk, Virginia, Virginian Pilot, October 21, 2020: North Carolina’s champion persimmon tree is the center of attention at the Dismal Swamp State Park

A tall tree with a champion’s title stands on the western bank of the Dismal Swamp Canal. Way up high in the tree’s top, orange-colored persimmons grow. “They’re a little hard to see because it’s so tall,” said Katie Sandford, a ranger at the Dismal Swamp State Park in Camden County. The persimmon tree stands 98 feet tall, about 50 feet more than the typical height for the species. Its trunk measures 96 inches in circumference and the spread of its canopy is 52 feet. Those three measurements are the factors that led to the tree being labeled the champion persimmon tree in North Carolina. The tree is the center of attention this time of year for the park wildlife when persimmons ripen and become really sweet, earning the nickname of sugar plum. Its genus name of diospyros means fruit of the Gods. When the fruit falls to the ground, it’s like a banquet for opossums, raccoons, bears and birds. Sandford believed a raccoon must have feasted recently based on droppings found at the base of the tree Tuesday…

Vancouver, British Columbia, Sun, October 21, 2020: Company fined for cutting Kerrisdale tree with nesting nuthatches, killing chicks

A tree-pruning company has been fined after it cut branches off a tree at a Kerrisdale apartment building in the spring, disrupting a nest of red-breasted nuthatches and killing at least three chicks. Environment Canada announced the fine this week after months of investigation into the violation that was reported by a 12-year-old bird-lover who had been visiting the birds every day. Clay Zhou-Radies was shocked when on one of his visits in May he found the nest and the nuthatches and a couple of northern flickers gone. He reported the incident to Environment Canada, and officers investigated under the Migratory Birds Convention Act. “During the course of this inspection, carcasses of migratory bird chicks (nuthatches) were collected by officers,” said spokeswoman Veronica Petro in an email. She said Environment Canada doesn’t reveal the identity of those issued violation notices or the amount of the fine…

Sacramento, California, Bee, October 20, 2020: Court monitor slams PG&E for falling behind on wildfire tree trimming across California

PG&E Corp. is still missing dangerous trees in its quest to keep limbs from crashing into power lines and igniting major wildfires, a court-appointed investigator has found. Mark Filip, a Chicago lawyer who is the court-appointed monitor in the utility’s criminal probation, reported this week that the utility’s “enhanced vegetation management” program appeared to backslide this year after making strides in late 2019. “Although there were meaningful improvements within 2019, that improvement appears to have, at best, plateaued, and perhaps actual regression has occurred,” Filip wrote in a report to U.S. District Judge William Alsup in San Francisco. The monitor, a partner in the Kirkland & Ellis law firm in Chicago, said the number of “missed hazard trees,” after declining late last year after a critical report, has risen again. In one case, Filip said his team spotted just three weeks ago a tree that was supposed to have been pulled down in mid-August. The leaves on the tree actually made contact with utility equipment and the leaves were singed. The tree has since been removed…

Charleston, South Carolina, Post & Courier, October 20, 2020: Man once sentenced to jail for IOP tree cutting now faces lawsuit from the city

A man who faced jail time for cutting down protected trees is being sued by the city, which says he still needs to pay the value of the growth he destroyed. In a lawsuit filed last week, Isle of Palm leaders say Jonathan James Gandolfo completed his sentence for the infraction but has failed to either donate replacement trees or pay the cost of replacing them, a part of the city’s tree ordinance. The complaint estimates the cost at around $57,000. IOP is asking both for the tree replacement cost and additional punitive damages of an unspecified amount. An attorney for the town declined to comment beyond the specifics in the complaint. Alice Paylor, an attorney for Gandolfo, said Tuesday she is in the process of filing a motion to dismiss the suit. She said the statute of limitations has run out on the ordinance, and that Gandolfo can’t be forced to pay the fees because he did not own the land where the trees were cut. Gandolfo was convicted in a 2018 jury trial of improperly cutting down two trees, one significant and one historic, on an Isle of Palms property. He attempted to buy the property the trees were on but ultimately the sale did not close…

Kansas City, Missouri, Star, October 20, 2020: Alien-looking hairy red pods spouting from ‘stressed’ trees in Hawaii, experts say

In yet another example of 2020’s endless supply of bad omens, hairy looking red pods are now growing from trees in a volcanic park on the Island of Hawaii. A photo showing two of the growths dangling from Ohia tree limbs was posted Oct. 10 on Facebook by Hawaii Volcanoes National Park, a turbulent area that “includes two of the world’s most active volcanoes.” Classic science fiction warns such pods are foreboding evidence of an alien invasion, like the pods that assume the shape of people in “Invasion of the Body Snatchers.” A US Geological Survey drone captured lava erupting at the fissure 8 cinder cone near Hawaii’s Kilauea Volcano on July 14. According to the USGS, the lava emerging from the cone was traveling at a speed of 13 to 16 miles per hour. But the National Park Service says the “red nests” are indicative of a different kind of trouble — one that has nature acting in reverse. The Ohia trees are so stressed, officials said, roots are popping out above ground on their limbs. “Stress may come from the cracking of the tree’s bark (either from natural growth or injury), fire heat or smoke, insects, or disease,” the post said. “In the park, the phenomenon has been especially documented in trees that were defoliated during the eruptions of Kīlauea Iki in 1959 and Mauna Ulu in the early 1970s…

Tucson, Arizona, Arizona Daily Star, October 20, 2020: The best way to plant a tree in Tucson

How do you plant a tree? As the old joke goes, green end up. In Tucson, it’s a bit more complicated, and one big reason for that is caliche. Caliche is a hardened soil layer common to desert soils. It is made up of calcium salts and minerals (mostly calcium carbonate) which are naturally present in the soil. In rainier places, minerals and salts in the soil are flushed through by rainfall. In drier climates like ours, over time these salts and minerals build up and form a hard layer (also called hardpan) anywhere from several inches to several feet thick. Anyone who’s tried to dig a hole by hand in Tucson knows what it’s like to try to dig through caliche — a pick or a caliche bar will be your best friend. For larger jobs, you may need to rent a jackhammer, or even a backhoe. This hard layer makes it tough on new plants — particularly trees — because their roots won’t get the drainage or the room they need if you leave the caliche in place. In addition, if a tree’s roots end up growing shallow due to the caliche layer, the tree will be in danger of toppling once it gets taller. This would not only kill the tree, but potentially be a hazard to property and people. The University of Arizona Extension Office has a helpful handout on managing caliche…

Baton Rouge, Louisiana, Advocate, October 19, 2020: How to deal with damaged trees after a storm

Trees are very important features of our landscapes, providing shade in summer, allowing heat to radiate into the house in winter, adding aesthetic beauty and actually improving the value of our homes. For those of us who really love trees, they are priceless. However, when a storm blows through, the damage they leave behind can be devastating to homeowners and commercial industries. Hurricane Laura took out 757,538 acres of timber, according to LSU AgCenter specialists. In Louisiana, forestry and timber rank No. 1 in the top 10 agricultural commodities at $3.49 billion, so that kind of loss is enormous. For homeowners, once a storm has passed, you need to figure out what type of damage your tree has incurred. If major limbs or the tree’s central main branch is damaged or down, you’ve likely lost your tree. Such extensive damage makes it very difficult for the tree to recover. Large wounds will take a long time to heal. In some cases, it is possible the tree will survive, but it will be definitely be stunted in addition to being a big target for pests and disease…

New York City, Spectrum NY1, October 19, 2020: Chicopee Christmas Tree Farm Prepares for Holiday Season

It’s beginning to look a lot like Christmas at Paul Bunyan’s Farm and Nursery as they prepare their Christmas trees for the holiday season. Susan Lopes, business owner and Christmas tree farmer at Paul Bunyan’s Farm & Nursery, said she looks forward to this time of year because she loves seeing the joy the trees bring families. “I think I have the best job in the whole world. I love, love growing Christmas trees,” said Lopes. She spends her days out in the field making sure every tree is perfect. “I live Christmas year round. When you grow Christmas trees, it’s Christmas every day around here, at least for me,” said Lopes. Even though the pandemic canceled a lot of activities and events, it didn’t cancel Christmas and the beginning of the farm’s annual tree tagging in September. “It was a really special time for them,” said Lopes. “And for me, knowing all my hard work in the summer months paid off.” In a way, the farm provides a sense of normalcy for some in a time far from normal…

Seattle, Washington, Times, October 19, 2020: Prune trees for great looks — and safety

Whether your home is surrounded with mature trees and shrubs or you have new landscaping, you’ll want to make the most of your greenery. Properly pruned trees are graceful and elegant, shading your home in summer and creating much-needed privacy on smaller city lots. By contrast, an out-of-control tree is not only an eyesore, its branches can post a hazard to your gutters and roof — or to your neighbors’ property. “The key to living with trees is regular maintenance,” says Jeff Warrick, an arborist with Eastside Tree Works. “You are doing yourself and the tree a huge favor. Routine pruning costs much less than dealing with a tree in an emergency.” Warrick helps people assess the health of their trees and shrubs and create a plan for maintaining them. It’s especially important, he says, when you have Douglas firs, big-leaf maples, or Western hemlocks on your property…

Phys.org, October 19, 2020: Trees bring benefits to society, regardless of their origin

Trees planted in urban spaces provide a multitude of ecosystem services: they reduce air pollution and noise, provide habitat and shelter for other species, and reduce erosion during heavy rains. They also offer opportunities for relaxation, attenuate urban heat islands and contribute both to landscapes and a sense of place. At the same time, trees can be a source of allergens, generate maintenance costs and cause accidents or threats to native biodiversity if introduced from elsewhere. This last point is the subject of an ongoing debate: do introduced species contribute to biodiversity and ecosystem services? Environmental scientists from the University of Geneva (UNIGE) – working in collaboration with the Botanical Gardens and Conservatory of the City of Geneva—have analyzed a large data-base of trees found in the Geneva region, and systematically assessed the services and inconveniences they generate. The results of the study, to be published in Urban Forestry & Urban Greening, show that most tree species in Geneva are non-native, and that trees provide roughly the same ecosystem services to Geneva’s urban spaces regardless of their origin…

Washington, D.C., Post, October 16, 2020: Human-driven climate change is changing the colors of fall foliage, scientists say

In the 19th century, eastern forests looked very different. Huge American chestnut trees, their trunks up to 10 feet in diameter, dominated forests from Maine to Mississippi. Their bright yellow foliage gilded Appalachia every autumn. Then, a shipment of imported trees arrived in New York in 1876 carrying a stowaway: Cryphonectria parasitica, a fungus native to Asia. Within a few decades, the fungal blight wiped out hundreds of millions of chestnuts. Oaks, hickories and red maples took over, turning yellow autumn forests more scarlet and bronze. The pattern continues as human activities transform not just the health and composition of forests, but their colors, too. Introduced pests, pathogens and invasive species are causing immediate changes to the fall color palette. And scientists are beginning to see a framework for how climate change may shape the forest colors of the future. “These species have been adapting for millions of years, and we’re putting them through a stress test in a very short period of time. It’s shocking their system,” said Tanisha M. Williams, the Burpee postdoctoral fellow in botany at Bucknell University. “But they are adapting.” Autumn’s longer nights and cooler days kick-start the seasonal color change, known as leaf senescence. Trees respond to the difference in temperature, precipitation and light by slowing photosynthesis. As the chlorophyll — the energy-producing compound that makes leaves green — breaks down, new chemical compounds emerge. Carotenoids, the same pigments in carrots and buttercups, make leaves appear orange, yellow and amber…

Hartford, Connecticut, Courant, October 16, 2020: Invasive insect, a danger to vineyards, beer hops, found in Connecticut

An invasive insect that has devastated vineyards, beer hop fields, orchards and other crops in several mid-Atlantic states, may be finding a home in Connecticut. The Connecticut Agricultural Experiment Station in New Haven announced this week that adult spotted lanternflies were detected in New Canaan. A single example of the insect was seen in Stamford. Last month spotted lanternflies were also found in Greenwich and West Haven. State and federal plant inspectors are conducting surveys to determine the extent of the infestation. The spotted lanternfly, native to China, India and Vietnam, first appeared in the U.S. in 2014. There were sightings in Farmington in 2018 and Southbury in 2019.“This insect has the potential to cause a great deal of damage, says Deputy State Etymologist Victoria Smith. The lanternfly has affected crops in several states, particularly in Pennsylvania. It has also been found in New York, New Jersey, Delaware, Maryland, Virginia and West Virginia. There’s another danger, associated with how the insect sucks and digests sap from fruit. Smith says there have been incidents where people broke arms or legs slipping on accumulated lanternfly excrement…

Chicago, Illinois, Tribune, October 18, 2020: Mushrooms are a healthy sign in your lawn — but can mean trouble on a tree

After an autumn rain, they suddenly appear: mushrooms. They pop up in the lawn, in the mulch around the base of trees, and among the perennials.
Some homeowners are alarmed by them, but mushrooms should be a welcome sight. They’re delivering good news about the health of your soil. “Mushrooms mean fungi,” said Meghan Midgley, a soil ecologist at The Morton Arboretum in Lisle. And fungi are one of the major ingredients of healthy soil that is good for your plants. “Fungi are natural composters,” she said. They do most of the work of breaking down each year’s batch of fallen leaves. “If you see mushrooms, it’s a sign that your soil has a healthy soil food web,” Midgley said. Along with other microorganisms, fungi consume all kinds of organic matter — the remains of dead plants, animals and other living things — and release useful nutrients into the soil to be absorbed by plant roots. Gardeners might wonder why they would want a fungus in their yards, when fungi are the source of plant diseases such as powdery mildew and cedar-apple rust. But though some kinds do cause disease, far more fungi are beneficial. They are essential to good soil, thriving plants and healthy ecosystems all over the world…

Manchester, New Hampshire, Union Leader, October 17, 2020: Clear away dead trees before winter storms hit

Winter is nearly here, which means many homeowners should think about clearing away dead trees on their property. “It is very important to cut down dead trees,” said Cameron Kenny of Edmunds Trucking Excavation and Logging, a fully insured, family-run operation in Ossipee for the past five years. “You should never have them around your house because they could fall on and damage it,” he added. “Dead trees can also fall and hit a healthy tree. One good gust of wind could be all it takes.” In addition to removing dead trees, Kenny said they do everything from hauling wood and general tree service to firewood and excavation. The length of time for a particular kind of job varies, it depends on the nature of the work. For a small house lot with little trees and brush, he said they can usually clear 1-acre on a daily basis. For logging, he said they can clear 2-acres daily. “It all depends on what is on the acreage and land,” said Kenny, who noted they practice conventional logging with a chainsaw and skidder versus mechanized logging and “millions of dollars in equipment.” For pricing, he cited two different models. They buy the wood if there are 4 to 5 acres of good, healthy and mature trees, the latter characteristic defined differently depending on the tree…

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Case of the Day – Thursday, October 22, 2020

YOU’RE BREATHING MY AIR

I recently undertook a home construction project (what else to do in a pandemic?) imagined and ramrodded by my wife of 41 years. I found myself trimming back some gargantuan arborvitae belonging to my neighbor, whom I will call “John” (because that’s his name). The arborvitae were just puny little bushes when planted by Andy and Allwyn, next-door residents two neighboring homeowners ago, but in the 25 years since they were mere shrubs planted a foot or so on John’s side of the property line, the arborvitae have grown into towering, misshapen monsters. On my side of the property line, they have swollen well into my airspace.

My airspace? Sounds a bit pretentious, doesn’t it? But that’s what we’re really talking about when we discuss overhanging branches and limbs. We all know about adverse possession – in which a sufficiently brazen squatter can gain title to your property if he or she waits you out – and even prescriptive easements, where the same trespasser gain acquire rights to use your property.

What if my neighbor had stalked out his back door last weekend and claimed his branches had been overhanging my property (and messing up the roof of my shed) for more than 21 years, giving him a prescriptive easement to my airspace? So while it’s still my air, he gets to use it. And breathe it. And there is nothing I can do about it? Whither the Massachusetts Rule?

A prescriptive easement over your neighbor’s airspace is a novel argument, indeed. Fortunately for me, if my neighbor stalks out of his backdoor, he is much more likely to confront me with a basket of zucchini or a big butternut squash than he is with a wacky airspace easement argument. He is a pretty fine neighbor.

But not everyone is blessed with a neighbor as congenial as is mine. That’s lucky for me in a sense, because – as the Kansas Court of Appeals observed today – when neighbors cannot get along, the courts protect property rights. And when courts do that, I have something to write about. Neighbor disputes that end up in court happen frequently enough to keep me going five days a week. And there are plenty of cases I never get to.

But how about that airspace argument? In today’s case, the owner of a tree that leaned over his neighbor’s yard claimed his 75-year old pecan tree had acquired a prescriptive easement over his neighbor’s airspace. Take that, Massachusetts Rule!

Cuius est solum, eius est usque ad coelum et ad inferos (Latin for “whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell”), a principle of property law, holds that property holders have rights to not only to the plot of land itself, but also the air above and (in the broader formulation) the ground below. (Note to self: insert here a nod of thanks to my sainted Latin teacher of yore, Emily Bernges, or else I couldn’t translate that). The principle is often referred to in its abbreviated form as the ad coelum doctrine. So was the airspace claim clever lawyering, or just a lot of hot air? Let’s see whether the Court abrogated the ad coelum doctrine or instead brought the defendant back down to earth.

Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (Kansas Ct.App. 1985). Jim Pierce and Paul Casady are adjoining landowners with a 75-year old pecan tree between them. The pecan trunk and root flare is on Paul’s land, but only a foot from the property line, and the tree leans toward Jim’s place. In fact, according to Jim, about three-quarters of the tree overhangs Pierce land, rather ominously, given the substantial split in the tree’s fork (which also overhangs Jim’s property).

The length of the split on one limb is four feet and on the other about two feet. If the tree fell due to the split, it would fall on Jim’s house, garage, and any cars in the driveway. Trimming the tree at the property line is not practical – unless one does not mind killing the tree in the process – because of the tree’s location and the angle at which it leans.

Jim sued for a declaratory judgment that he had the right to cut the overhanging branches back to their property line or, in the alternative, to declare the tree a nuisance to be abated by removal. The trial court ruled that Paul had not acquired a prescriptive right to the airspace the tree occupies, and that the tree constitutes a nuisance and is a danger to Jim, causing his to fear for his safety. Paul was ordered to abate the nuisance by removing the tree either at its base or at the point where it crosses plaintiffs’ property line.

Paul appealed.

Held: An easement by prescription cannot be acquired by overhanging tree branches. Furthermore, a landowner has a right to trim branches that overhang the landowner’s property even though the trunk of the tree is on a neighbor’s land, although the landowner may not go on a neighbor’s land and remove any part of a tree without the neighbor’s permission.

Trees constitute a nuisance if overhanging branches do substantial harm or the overhanging branches create an imminent danger. If a tree is a nuisance, a landowner may compel a neighbor to abate the nuisance or, if an injury occurs, look to the neighbor to pay any damages allowable by law.

The court of appeals rejected Paul’s argument that he had acquired an easement through Jim’s airspace, because such cannot be gotten by prescription, that is, by simply occupying the airspace without permission for a long enough period of time.

Jim argued that the tree could not be a nuisance. That did not affect Paul’s right to trim branches that were overhanging his property even though the trunk of the tree was on Paul’s land. The landowner may not, the Court said, go on the neighbor’s land and remove the tree or any part thereof absent his neighbor’s permission.

If the tree is a nuisance, the landowner may compel the neighbor to abate the nuisance or, if an injury occurs, look to the neighbor to pay any damages allowable by law. In this case, the Court observed, it appeared that if the tree is trimmed at the property line it would be killed. The trial court recognized this, and gave Paul the option to trim to the proprety line or simply remove the whole tree.

The Court held that whether the tree constituted a nuisance was a question of fact. Generally, a tree is a nuisance when it constantly drops branches and requires constant maintenance. Or, a tree is a nuisance when there is a statute so defining it. Finally, a tree becomes a nuisance when it does substantial harm or creates an immediate danger of causing harm, the Court held, relying on Whitesell v. Houlton, the case that defined the Hawaii Rule.

Kansas recognizes that trees constitute a nuisance if the overhanging branches do substantial harm or the overhanging branches create an imminent danger.

Here, the Court said, the tree was a danger to Jim, reasonably causing him to fear for his safety. The evidence supported the reasonableness of his apprehension: the split in the fork of the tree located above his property, the squeaking sound when the wind blows, the angle at which the tree leans toward Jim’s property, and the testimony of the experts.

Paul argued that the tree could be made safe by cables and bolts. The Court was unimpressed, holding that even that work would have to be done in Jim’s airspace. Paul had no right to go on Jim’s property to do that work for the same reasons Jim had no right to go on Paul’s property to trim or cut down the tree.

The Court admitted that “the result reached here will be distasteful to all who treasure trees. The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each property owner’s rights insofar as that is possible. Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.”

– Tom Root

TNLBGray

Case of the Day – Wednesday, October 21, 2020

WHERE’D THE TREES GO?

The Sanders were promised this ...

The Sanders were promised this …

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

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

... but they ended up with this.

… but they ended up with this.

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

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

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

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

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

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

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

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

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

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

– Tom Root
TNLBGray

Case of the Day – Tuesday, October 20, 2020

WHEN ARM’S LENGTH ISN’T QUITE FAR ENOUGH

When I was a mere first-grader, I had an uncle – a Wharton School grad – who taught me a business aphorism he had learned in B-school. Everyone thought that it was cute to hear a 6-year old try to say, “infamous machinations,” sort of the same way that the Teddy Ruxpin creator picked the bear’s name because he figured so many children would mispronounce it so cutely.

But six decades later, I remember what Uncle Harl taught me through his omnipresent swirls of cigar smoke: “Always deal with your business associate at arm’s length. For if he be an honest man, he will respect your caution…”

Apropos of our regular discussions about independent contractors, you, Harry and Harriet Homeowner, may figure that you are being prudent by hiring your vendors and service providers as such. After all, we all know that the homeowners are not liable for the negligence of independent contractors.

Certainly, our neighbors will respect our caution.

In today’s case, however, the Svensons discovered to their chagrin that trespass ain’t negligence. As a result, they got no respect. When the independent contractor tree service hired by their independent contractor architect – making the tree service something akin to an independent contractor once removed – cut down a pair of boundary trees, the Svensons were sued along with the architect and the tree service. They figured they were insulated. It was the contractors’ fault, after all, not theirs.

But one can be dinged for trespass, or for causing someone else to trespass. And the fact that the party that has been caused to trespass may be liable, like an eight-ball going into a side pocket, does not absolve the person who directed the trespass. Like the cue ball that put the eight-ball into motion, the party who caused the trespass was indispensable to the tort. And regardless of the relationship between the director and the directee, both may share liability.

Oh, and one other thing, Svensons… if you have a good argument to make on appeal, make sure you make the same argument before the trial court. Like l’esprit de l’escalier, thinking of a great argument for the first time on appeal is about 10 minutes too late.

Swegan v. Svenson, 960 N.Y.S.2d 768,104 A.D.3d 1131(Sup.Ct.A.D., 2013). The Svensons were doing some remodeling around their place. They did it right. They hired an architect to design the project and to manage the contractor. The architect hired a tree service to remove two trees. The tree service did exactly as it was instructed.

But the trees were boundary trees, partly in the Svensons’ yard and partly in the touchy neighbors’ yard. It didn’t take a New York minute for the neighbors to sue everybody involved for conversion and trespass.

The Svensons moved for summary judgment, on the novel argument that they could not be held liable for the trespass because the architect was not their agent, but rather an independent contractor, and tree service certainly was not their agent, but instead was an independent contractor as well. The trial court denied their motion.

The Svensons appealed.

Held: The Svensons were not entitled to summary judgment. The court held that regardless of the architect’s status as an independent contractor, the Svensons may be held liable for the trespass and ensuing conversion if they “directed the trespass or such trespass was necessary to complete the contract” between Svensons and the architect. Here, the Swegans had raised an issue of fact whether the Svensons “directed the trespass or whether such trespass was necessary to complete the contract.”

For the first time on appeal, the Svensons floated the argument that they had the right as joint owners to remove the trees because they were structurally unsafe and created a safety hazard or private nuisance. At any rate, they claimed, they should not be assessed treble damages under RPAPL 861 because there is no evidence that they acted recklessly, willfully or wantonly. The court did not consider either contention, because neither had been raised in the trial court.

– Tom Root

TNLBGray

Case of the Day – Monday, October 19, 2020

WE ALWAYS MEANT IT

An entire e-cottage industry has grown up around the notion that there are some areas of the law – incorporation, wills, real estate transactions, contracts, divorce – where all you need to do is download some PDF fillable forms, answer a few simple questions, and save yourself a ton of money by representing yourself. When we complain about it, our admonitions are written off as self-interest.

But we always meant it. So, using an argument you might correctly characterize as reductio ad absurdum, we give you Nellie Francis.

Nellie believed she was suffering from some encroaching trees belonging to her neighbor. So she did what any red-blooded American would do: she sued.

After all, how hard can this be? Nellie filed a complaint, sent off a few motions, and called some witnesses. That’s all that a real lawyer would do, after all, and he or she would charge you $10,000 to do it.

Whoa, Nellie! She filed all sorts of motions, kept trying to amend her complaint, and even added damages for which she had been paid, which never happened, or – in one case – which happened to someone else, but she claimed it anyway.

The trial court sanctioned Nellie, requiring her to pay the defendant’s legal fees for a particularly egregious and frivolous filing. Undaunted, Nellie filed a demand that he pay her legal fees as well, not the least inconvenienced by the fact that she was representing herself, that is, was pro se, and so she had no fees.

For that matter, at trial, she could not even prove that the fallen branches came from defendant Joshua’s trees. That seems kind of basic, the notion that you don’t sue unless you have some proof that the defendant is the one who caused you harm.

Those are the kind of technicalities that lawyers worry about. That’s why, Legal Zoom or not, they continue to be a necessary evil. Just ask Nellie…

Francis v. Brown, 836 A.2d 206 (R.I. 2003). A simple dispute between two abutting landowners and allegations of negligence in maintaining trees running along the property line between them brought Nellie S. Francis, representing herself (never a good idea) and Joshua Brown into court.

Nellie S. Francis lives at 16 Miller Avenue in Providence. The rear of her property is bordered by a 100’ fence, part of which abuts Joshua Brown’s place at 21-23 Verndale Avenue. A row of mature maple trees stands along the boundary between Nellie’s and Josh’s.

Nellie sued Josh, contending he was negligent for failing to maintain the trees or to prune rotted limbs that constantly fell into her backyard, causing injury to herself, her children, her dog and her elderly mother, as well as damages to her fence, two cars, a concrete floor of a torn-down garage, a swing set, and a doghouse. Josh denied all of Nellie’s allegations.

In February 2000, Josh moved to enter on to Nellie’s land to remove any trees belonging to him. She objected to his entry, unless he assumed the liability for any damage done by work crews. Nell filed her own motion to compel Josh to cut down the trees on his property. As a result, Josh filed a motion for sanctions based on Nellie having proposed orders inconsistent with prior court rulings, and having filed frivolous motions to compel Josh to do that which she simultaneously had opposed. The hearing justice agreed and further found that Nell had caused unnecessary delay and increased Josh’s cost of litigation. She was ordered to pay $350 to defense counsel by June 9, 2000.

Along with her blizzard of pretrial motions, Nellie found time to move to amend her complaint on more than one occasion to add further damages. She also appealed to try to review an order denying her motion for reconsideration of an order granting Joshua’s motion for assessment of legal fees against Nellie. Undaunted by the prospect of the trial court sanctioning her for her vigorous and unschooled courtroom antics, Nellie sought leave to amend her complaint for a second time, this time incorporating diverse and sundry damages not included in her first amended complaint. The trial court turned her motion down, finding the motion “too late [and] inappropriate,” and prohibiting her rom bringing forth any incidents not referred to in her first amended complaint. What’s more, the trial justice ruled that Nellie would be precluded from presenting any medical evidence relating to animals or persons not named as complainants. Finally, he ruled that no information regarding insurance coverage would be given to the jury so that the jury would decide the matter on the merits and not on defendant’s ability to pay.

Neophyte Nellie fared little better at trial. She presented several witnesses, including herself and her daughters, but conceded that she did not know what caused the branches to fall, nor could she state with certainty whether branches shown to her in photo exhibits had come from Joshua’s property or that of the vacant property next door. She admitted that she did not own the two vehicles damaged by trees for which she sought compensation. Neither of her daughters could pinpoint from whose property the fallen branches originated and neither offered testimony as to what caused the branches to fall. Louis Bobola, the director of forestry for the City of Providence testified that the trees were not on city property. He also said that the trees needed pruning, but that he did not see any decay on the trees.

Joshua’s lawyer introduced evidence that six years before, Nellie’s insurance carrier had already paid her for some of the tree damage she had now claimed. At the end of the trial, the judge granted Joshua judgment as a matter of law, holding that Nellie had utterly failed to prove her claim:

“The problem with the entire case is there is no evidence before the jury with regard to any damages sustained in this case by the plaintiff or her property… [T]here is not a scintilla of evidence before this court as to what tree or trees occasioned the alleged injury, on whose property they were located, were they on the defendant’s property or were they on the abutting property on the boarded-up house. And throughout the case while there are certain inferences that can be drawn that branches do not fall on their own from trees, it simply in this [c]ourt’s view is not sufficient to be able to predicate a finding of negligence on the part of the defendant simply because this event has occurred… Mere ownership of trees that may or may not have caused damages does not impute negligence to the owner.”

The unsinkable Nellie filed for reconsideration, which the judge treated as a motion for a new trial. The court, charitably noting that Nellie had undertaken a difficult task by representing herself in the matter, found that the record was devoid of any objective damage for the jury to consider even if she had satisfied the first two requirements of negligence and proximate cause.

Nellie appealed to the Supreme Court.

Held: The trial court was upheld in every regard.

After reciting a litany of Nellie’s failings, the Court upheld the trial court’s evidentiary rulings, refusal of Nellie’s repeated amendments and judgment for Joshua. As for Nellie’s amendments, the Court agreed with the trial judge that she had been allowed to amend once, the trial date was upon the parties, and the amendment was flawed, with “many of the proposed incidents that plaintiff sought to add occurred several years previously. We believe that plaintiff was aware of their occurrence well before she filed her original complaint.”

After all of that, the trial court’s modest $350.00 sanction of Nellie seemed restrained. Noting that Joshua “was awarded $350 in fees as a sanction against plaintiff for filing motions and making pretrial objections for inappropriate purposes,” the Supreme Court held that “the trial justice awarded a reasonable fee, well below the amount requested by defendant, for the purpose of giving “a warning” to plaintiff. We believe the sanction was justified and well within the trial justice’s discretion.”

Nellie had made her own demand that Joshua pay her a “pro se” fee for the work she had done on her own case. The Court drily said, “We decline to address the plaintiff’s appeal from the denial of her motion for an award of pro se fees. The plaintiff has not supplied this Court with an adequate record on which to review the issue, and therefore, we deny and dismiss her appeal on this issue.”

– Tom Root

TNLBGray

Case of the Day – Friday, October 16, 2018

SO WAS MARY ANNE AN EMPLOYEE?

mmma160129Every red-blooded American boy (and girl, for that matter) knows the story of Mike Mulligan and Mary Anne. Work had dried up for the pipe-smoking Mike and his redoubtable steam shovel, so they took a job in Popperville digging the basement for the new town hall. Mike pitched the town’s selectmen (this happened back in the day when steam shovels were female but governing officials were not) by promising to dig the new town hall cellar in only one day, a task that everyone involved agreed would take 100 shovel-wielding men at least a week to complete.

The selectmen — especially one named Henry B. Swap — were dubious of Mike’s claim that Mary Anne could dig the basement so quickly, so they made a deal with Mike that he wouldn’t get paid unless he completed the work in the time allotted.

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

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

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

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

Henry B. Swap

     Henry B. Swap had nothing on Bobby Hubbard …

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

Henry later asked Hubbard to pay him for the day that he worked, but Hubbard refused, but gave him some money later but did not say that it was payment for the work. Henry filed for workers compensation payments, asserting he had been hired and was working as an employee when he was injured.  Hubbard countered that Henry had not been hired and was working on a trial basis only or — even if he had been hired — he was an independent contractor rather than as an employee. The ALJ found Henry was working on a trial basis when he was injured. Noting that state law premised employee status on the existence of a contract for hire, the ALJ also found that Henry failed to show a meeting of the minds sufficient to impute an implied contract for hire or to show that he expected to be paid for the work that he performed on the date of his injury.

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

The Court of Appeals affirmed, and Hubbard appealed.

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

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

Hubbard did not preserve the issue of whether Henry was an independent contractor in the course of an employer’s trade, business, profession, or occupation — who by law had effectively elected not to be covered by the Workers’ Compensation Act — so that matter could not be considered.

– Tom Root
TNLBGray