Case of the Day – Tuesday, June 15, 2021


Watch out for the tree, Mr. Miller ...

Watch out for the tree, Mr. Miller …

It was a dark and stormy night when Mr. and Mrs. Miller drove through a mall parking lot, well after the lights were turned out.

Remember malls? They were places the people of the time would visit to buy their goods in places called department stores, tech-y trinkets at The Sharper Image, these round vinyl objects with scratchings that – when put on a turning wheel and rubbed with a needle – emitted music (people of the day called them “records”), intimate apparel (to be worn under their loincloths) at Victoria’s Secret, and books made of actual paper at Waldenbooks. And there were Orange Juliuses, calorie-bomb rolls at Cinnabon, and big parking lots and confusing signs… The ancients loved their malls.

Well, maybe not if you are Mr. Miller. He missed a sharp turn in a mall boulevard and hit an 8″ wide tree. He and his wife were injured, and while it went unreported, the tree probably didn’t fare that well, either.

Trees seldom sue, but the same can’t be said for the Millers. They went after the mall for negligence. To be sure, the tree showed evidence of having been hit before. The mall, however, argued that Mr. Miller was an idiot for driving too fast on a strange, unlit roadway in bad weather. It said he was contributorily negligent in the accident.

Back when this case was decided, I was driving a pretty sharp four-on-the-floor ’67 Cougar and filling its tank for 25.9¢ a gallon. Ah, those were the days… unless you were a litigant suing for negligence. At the time, contributory negligence was still the law of the land in most states. It was a Draconian doctrine: if the victim was negligent even a teeny bit, then he or she couldn’t recover a dime from the defendant, no matter how bad the defendant’s negligence by comparison. Since that time, contributor negligence has been replaced by “comparative negligence” most places. Comparative negligence is a percentage game: the jury finds that the defendant was, say, 70% negligent and the plaintiff was 30% negligent. The jury award of, say, $100,000 to the plaintiff would then be reduced by 30%, netting out 70 grand for our afflicted party.

Because contributory negligence was so harsh, courts often worked to find a way around its effect. In today’s case, the Court ruled that although Mr. Miller might have been contributorily negligent, that couldn’t keep the passenger, Mrs. Miller, from winning damages from the mall. The mall argued that Mr. Miller should share its liability to Mrs. Miller, but the state had an automobile guest statute that immunized a driver from liability to his or her passengers for simple negligence.

We miss that old Cougar ... and 25¢ a gallon gas ...

We miss our old Cougar … and 25.9¢ a gallon gas …

The mall should have marked the tree with reflectors or something, the Court said. Something to reflect on… like our old Cougar. Now that was a cherry ride.

Miller v. Baken Park, Inc., 84 S.D. 624, 175 N.W.2d 605 (Sup.Ct.S.D. 1970). Donald Miller’s pickup truck collided with a tree located in the Baken Park Shopping Center auxiliary parking lot. The Millers were injured.

Mr. Miller had entered the Shopping Center from West Main Street intending to drive across the lot to reach Canyon Lake Drive, the street on the south side of the Center. They had never traveled over this area before but had seen others do so. It was a misty, gloomy night with wind and gusty rain. Suddenly, a tree loomed in front of them. A collision ensued.

Miller and his wife sued Baken Park, and Baken Park counterclaimed against Miller for negligence. The evidence showed a driver would have had to swerve to miss the tree, and the conditions that night made it hard to see after the shopping center lights were turned off at 10 p.m. The tree, which had an 8” trunk, bore scars from prior vehicle collisions. The trial court considered the question of Baken Park’s negligence, contributory negligence by Miller and other issues it deemed appropriate. The jury found for the defendant and the plaintiffs appealed.

George of the Jungle could have advised Mr. Miller – watch out for that tree!

Held: The trial court was reversed. The Supreme Court held that the evidence was sufficient to authorize finding that Baken Park was negligent in allowing a tree without reflectors or other warning devices to remain in an area that not only served as a parking lot for customers of its lessees, but in the area used by them as a driveway. The Court said that a shopping center owner that maintained control of its parking lots and driveway for the express purpose of serving customers of its lessees owed the business invitees of its lessees a duty to keep the premises in a reasonably safe condition. What’s more, the fact that Miller may have been negligent in driving through the dark lot was not imputable to his wife in the absence of her exerting some control or authority over the operation of the car. His negligence thus would not prevent her from recovering against the shopping center for injuries sustained because of the concurring negligence of her husband and a third person.

The shopping center’s counterclaim against Mr. Miller had been dismissed by the trial court. The Supreme Court agreed that dismissal was proper under South Dakota’s guest statute, which immunizes a driver from liability to a passenger unless he was acting with recklessness or willful conduct. The Court held that the statute applied even to accidents on private property, and thus, Baken Park’s counterclaim against Miller had to be dismissed.

– Tom Root


And Now The News …

Oakland, California, The Oakland Press, June 14, 2021: Fungal disease related to stress in trees has no cure

Q: I have a huge blue spruce tree in my yard. I am noticing that there are dead branches scattered on the lower part of the tree. They are dead from the trunk to the tip. There are patches of what looks like bird droppings or dried white sap on the bottoms of most of the dead branches and the bottoms have wounds on them that look like they rubbed on another branch, but they did not. What is this and will it kill my tree?
A: This is a common fungal disease for blue spruce trees called cytospora canker. It usually happens to trees that are 15 years old or older. If the tree is younger, there has been stress from poor growing conditions. Unfortunately, there is no cure for cytospora. You can slow it down by managing the tree’s health. Cytospora attacks individual branches on the tree, causing them to die in a stair-step fashion. The first thing that you will notice that a branch has needles turning a purple color. The needles eventually turn a chocolate brown, die and fall off. Sometimes, but not always, there will be cankers that look like wounds that are trying to heal on the bottom of the branch. Sap, which is called pitch, leaks out and dries to a bluish-white. Cytospora does not kill the tree for a long time. But eventually, the tree looks so terrible, with lots of dead limbs, that you will want to cut it down. On rare occasions, Norway, balsam fir and Douglas fir become infected. Again, it’s a stress-related problem and possibly contact with another infected tree…

Cincinnati, Ohio, Enquirer, June 14, 2021: Kenton County Schools says ginkgo tree ‘will not be removed’ for elementary school expansion

A cherished ginkgo tree will not be harmed as a result of a planned expansion of a Kenton County elementary school. The Kenton County School District appears to have listened to the public’s concerns and has decided not to remove the ginkgo tree – thought to be 150 years old, school district officials said in a tweet Saturday morning. “The KCSD has taken necessary steps to ensure the (Ginkgo) tree is protected & will not be removed as part of construction,” the tweet read. “The goal is to provide world-class facilities for our kids & we will continue to work to find alternative solutions at Hinsdale going forward.” Edgewood City Councilman Ben Barlage said he was trying to spread the word to people about the tree when he saw it marked with an ‘X’ for demolition in a Kenton County Schools’ plan for an expansion at R.C. Hinsdale Elementary School. His Facebook post about the tree and school’s intertwined history generated 106 shares. Barlage said his phone has been filled with texts and calls from people who remember the tree fondly, he said. Ginkgo trees, native to Southeast Asia, can also be found across the Midwest…

The Conversation, June 15, 2021: An act of God, or just bad management? Why trees fall and how to prevent it

The savage storms that swept Victoria last week sent trees crashing down, destroying homes and blocking roads. Under climate change, stronger winds and extreme storms will be more frequent. This will cause more trees to fall and, sadly, people may die. These incidents are sometimes described as an act of God or Mother Nature’s fury. Such descriptions obscure the role of good management in minimising the chance a tree will fall. The fact is, much can be done to prevent these events. Trees must be better managed for several reasons. The first, of course, is to prevent damage to life and property. The second is to avoid unnecessary tree removals. Following storms, councils typically see a spike in requests for tree removals – sometimes for perfectly healthy trees. A better understanding of the science behind falling trees – followed by informed action – will help keep us safe and ensure trees continue to provide their many benefits. First, it’s important to note that fallen trees are the exception at any time, including storms. Most trees won’t topple over or shed major limbs. I estimate fewer than three trees in 100,000 fall during a storm…

Crystal River, Florida, Citrus County Chronicle, June 13, 2021: Preparing your trees for hurricane season

The “official” start of hurricane season is upon us and many homeowners are considering pruning their trees in preparation of the hurricane season. I have encountered many homeowners who believe that tree canopies need to be thinned out in order to accommodate wind flow. While this type of thinking seems intuitive, it actually may create a greater likelihood of tree failure. Trees should only be pruned for a valid reason. There is no such thing as a “pruning cycle” where trees are supposed to be pruned every “X” number of years. I have actually encountered this thinking with some municipalities. Trees are pruned for several reasons. One reason is to improve the structure of the tree. Structure refers to the branching and trunk pattern of the tree. For example, some trees which are supposed to be a single trunk species, have a co-dominant trunk. This means that, at one point, the tree created two almost equal-sized leaders. This can occur close to the ground, midway up the tree, or near the top of the tree. Co-dominant leaders can be poorly attached to one another, leading one to break under the stress of winds. As the tree grows older and larger, these leaders get heavier and can lead to property damage or injury when they fail. Select the better leader and prune back the other one over a one to three year period. Another example of structure is the spacing and arrangement of the branches. Ideally, limbs should be spaced 18 to 36 inches apart along the trunk and should not grow at an angle less than 45 degrees off the trunk. Multiple limbs should not originate from the same point on the tree…

New York City, The Wall Street Journal, June 12, 2021: Why a Tree Is the Friend We Need Right Now

I’ve got a new buddy. She’s a banyan tree. I met her while walking my dog. She has two enormous limbs that reach out like welcoming arms. And there’s a small bench next to her. One day I sat down. I was worried that afternoon about an ill family member, and as I stared at her gnarled trunk, I thought of all this tree has survived. I watched the light filter through her canopy and listened to a squirrel chatter on a branch. And I felt better. Now I visit her often. Sometimes, I compliment her—“Looking good, baby!”—pat her trunk or share my water. But occasionally, on hard days, I sit down on the ground next to her, put a hand on one of her massive roots and soak in her strength. We could all use a steady, strong friend right now. We’re emotionally rocky crawling out of the pandemic—gripped by residual anxiety and sadness, stress about heading back out into the world, worries about once again becoming overwhelmed by a busy pace of life. What we need is a tree bestie. (Bear with me, dear reader.) Trees have a lot to teach us. They know a thing or two about surviving harsh years and thriving during good ones—they can show us the importance of taking the long view. They’re masters at resiliency, enduring fallow periods every winter and blooming anew each spring. They’re generous—they share nutrients with other trees and plants and provide clean air and shade for the rest of us. They certainly know how to age well…

Provo, Utah, Daily Herald, June 12, 2021: Speculation surrounds death of walnut trees

We’ve been getting several calls and emails each day about walnut trees that seemed to look fine last year and now look either dead or dying. You’ve probably seen struggling walnut trees when you’ve been out and about. Is it a walnut tree apocalypse? A walnut plague? You may have heard about a “new” walnut disease and wondered if that’s the problem. It’s true there is a serious fungal disease, Thousand Cankers Disease, affecting black walnut trees and occasionally English walnut trees. Black walnut trees are very susceptible to the disease, but English walnut trees are only slightly susceptible. The disease is spread by a small beetle called the walnut twig beetle. Once the fungus is in the tree, small cankers develop under the bark where the beetles have entered. Repeated infestations lead to tree decline and death. Preventing beetle infestation of black walnuts is important because there is no treatment for the disease. Infected trees generally die within a few years of showing symptoms. Most of the walnut trees you’re seeing now with dead branches are English walnut trees and very few of the trees with dead branches have the disease. So, what exactly is going on with all these walnut trees? The short answer is, we don’t exactly know, but we hope to know more as the season progresses…

Business Insider, June 11, 2021: Canadian Tree Planters Celebrate Cross Canada Plant

On June 10th, thirty-four Canadian tree planting companies with over 6000 planters aligned efforts to celebrate the first annual Canadian Tree Planters’ Cross Canada Plant. On June 10th Canadian tree planters celebrated the first annual Cross Canada Plant involving over 6000 planters. Every year, approximately 600 million seedlings are planted in Canada. This is accomplished through a well-organized supply chain and significant physical labour, requiring long, exhausting days. Many planters share physical traits with high-performance endurance athletes. The value of planting trees is growing and a goal for the Cross Canada Plant is to raise the profile of tree planters and tree planting companies. It’s about witnessing the amazing work that is accomplished by the Canadian planters throughout the planting season. “We are ready to participate in growing Canada’s forests and help in Trudeau’s vision of Planting 2 Billion trees in 10 years. We are an industry that can do this,” says Tim Tchidaof Blue Green Planet Project. For the June 10th Cross Canada Plant, the number of seedlings planted and the number of planters who participated will be reported. The aim is to have these numbers available by June 13th on Instagram @CanadianTreePlanter. “In between the millions of trees being planted each day, in every moment there is a lot happing here. In the space between trees there is friendships, initiation, and giving back…. and tough, grueling, rewarding work,” says Tchida…

Portland, Oregon, Oregon Public Broadcasting, June 13, 2021: ‘Crazy worms’ threaten America’s trees — and (gasp!) our maple syrup

Earthworms are often seen as a welcome presence in gardens, and even on fishing hooks. But in the Northeast, experts say invasive “crazy worms” from Asia are creating havoc in forests — and they say the unusual worms are a danger to animals and plants, and especially to sugar maple trees. “The street cred that they have is hiding the invasion,” Josef Görres, a soil scientist at the University of Vermont, says of the worms. “I call earthworm invasions ‘socially cryptic,’ ” Görres tells NPR, “because folks think of earthworms as the good guys — and maybe they are in certain ecosystems. But in the context of the northern [U.S.] forest, they are relative newcomers that have the potential to have huge effects.” Crazy worms — also known as jumper worms — reproduce rapidly. They also love to tear through the nutritious layer of decomposing leaves and nutrients that blanket the forest floor — a habit that can be very damaging to forests, including maple trees. So, what makes these worms so crazy? “They’re really active worms, and the craziness comes from that. They can jump out of your hand,” Görres says, adding that the creatures’ intense wriggling can launch them into the air. “And they also lose their tails,” he adds. “Some of the species will lose their tails just like a salamander. So that is kind of crazy, too, when you see it…”

Greensboro, North Carolina, News & Record, June 10, 2021: Knock on wood: Summerfield man says Duke tree trimmers ‘went to the wrong house’

A Summerfield man visiting his rental property Tuesday found two pine trees near a powerline had been stripped of most of the branches on one side, which he worried made them dangerously unstable. Eric Clamage complained to Duke Energy about not only the state of the trees, but the pile of debris left behind on his Brookfield Drive property. On Thursday, he got some satisfaction. The tree company returned to remove the debris and promised to take down the two trees next week. He also got a surprise. His pines weren’t the intended targets. “They went to the wrong house,” Clamage, a retired engineer, said employees of the tree company told him on Thursday. That might explain why he never got notified that Duke would be conducting what it calls “vegetation maintenance” on his property. The utility says on its website it attempts to notify property owners before doing any work. Clamage said the property owner behind him had apparently asked Duke to trim the trees by an old farmhouse on his land. Clamage estimates it would have cost at least $1,400 to cut down the damaged trees and clean up the pile of tree limbs, which he described as enough to fill a dump truck. Grinding the stumps left behind would’ve cost about $200…

Albany, New York, WTEN-TV, June 10, 2021: Purple trees a new way to say ‘Do not enter’ in some places

It’s not the law in New York just yet, but in central New York and some neighboring states, there’s a new way to say “get off my lawn.” Purple paint laws allow spray-painting trees purple as a state-recognized way to mark private property, and are currently in place in 16 states. According to Hudson Valley radio station Q105.7, the trend is starting to show up in parts of New York, even if it isn’t officially recognized. The laws allow the purple paint to function legally identically to a “No Trespassing” sign. In New York, “No Trespassing” and “Keep Out” signs are the standard, and landowners are authorized to give written notice to trespassers when it makes sense to do. Jomo Miller at the New York Department of Environmental Conservation said that since purple paint is not legally recognized in the state, his department doesn’t track its use. Statewide, trespassing on posted areas comes with a fine of up to $250, and/or 15 days of jail time, plus further action for those who damage property on posted land. As the state doesn’t recognize purple paint as posting, legal action cannot currently be taken simply for trespassing on land with conspicuously purple trees. David Wick with the Lake George Park Commission said he hadn’t heard anything about the use of purple paint on property around Lake George, but that he didn’t see a problem with the method, so long as property owners correctly mark only their own property. Although it’s not law yet in New York, it has shown up in state legislature. In 2018, former state Senator James L. Seward introduced a bill that died on the Assembly vine…

Sonoma, California, News, June 10, 2021: Arnold the Tree lives again

It took a community-wide effort to get Arnold the Tree back into decorating condition – with no small thanks to Sonoma Mission Gardens, which donated a tree to replace the vandalized original, Ned Hill and crew from La Prenda Vineyards Management for digging the hole and installing irrigation, and Sam Sebastiani of La Chertosa wines for donating a safe place on his La Gemelle Vineyard at Watmaugh and Arnold Drive. A slight delay in the replanting was due to awaiting PG&E to show up and let everyone know where power lines were, so that the digging and planting could proceed safely on the vineyard side of the fence. Sam Sebastiani and vineyard manager Jane Schneider said they will give the anonymous tree decorator – who has adorned Arnold the Tree with seasonal decor for several years – safe access to the property to continue decorating Arnold whenever they choose. You can see Arnold on Facebook

Stamford, Connecticut, Advocate, June 10, 2021: Scientists: Beech Leaf Disease, potentially fatal for trees, widespread in CT

A potentially fatal disease for beech trees has become widespread in large parts of Connecticut, and is no longer novel, according to Connecticut Agricultural Experiment Station scientists. Beech Leaf Disease, first detected in the state in 2019 in lower Fairfield County, now is widespread and prevalent on American beech trees (Fagus grandifolia) throughout Fairfield, New Haven, Middlesex and New London counties, and appears to be spreading into Litchfield, Tolland and Windham counties, as well, CAES officials said in an email. Robert E. Marra, an associate scientist/forest pathologist in the Department of Plant Pathology and Ecology at CAES, said it is not known for sure how many beech trees are affected by beech leaf disease in Connecticut, “but it is worth noting that the difference between last year and this year is dramatic, especially in these four lower Connecticut counties.” “If you ask property owners in Fairfield, New Haven, Middlesex, and New London Counties, they would say that nearly all their beeches have beech leaf disease,” Marra said. “However, while we haven’t been able to survey all our state forested lands, it seems that there are pockets of severe outbreaks, and stands where we see little if any BLD…”

Erie, Pennsylvania, Times-News, June 9, 2021: Discover some of the tallest trees in the northeast in Cook Forest State Park

When you’re thinking about getting back to nature, realize there’s a state park in northwestern Pennsylvania that can actually take you back in time. Cook Forest State Park in Clarion County has acres of old-growth forest areas with trees that are several hundred years old. This area escaped the mass lumbering that occurred across most of the country. “For conifers, Cook Forest is the place to go,” Dale Luthringer, the park’s environmental education specialist, said during a tour of the highlights of the 8,500-acre state park and Clarion River. He said there are 30 white pine trees that are at least 160 feet tall and about 80 that are 150 feet tall. The tallest tree is a 171-foot white pine tree that is also the tallest tree in Pennsylvania. To put that in perspective, that one tree rivals the height of a 16-story building. “There is no other site (in the state) that comes close to the white pines,” he said about Cook Forest…, June 9, 2021: Some tree species in Mexico could be vulnerable to climate change

A new study found certain species of pine and oaks in the mountains of southwestern Mexico could be more vulnerable to decline as the environment becomes hotter and drier due to climate change. The findings, published in the journal Ecosphere, will be important as land managers seek to conserve and protect vulnerable species in these forests in Oaxaca, Mexico, and around the world. “We have pine-oak forests in North Carolina, in the Himalayas, in the Mediterranean and all over the world,” said the study’s first author Meredith Martin, assistant professor of forestry and environmental resources at NC State. “We wanted to get more information about how to manage and regenerate both pine and oak trees, which are both really ecologically and economically important…”

Boston, Massachusetts, WFXT, June 9, 2021: Tree crashes into house in Haverhill Tuesday

The picture shows just one tree branch, but the tree has five or six branches of that same size that thankfully didn’t fall. However, that one branch alone was enough to do serious damage to the roof and front half of the home, including the porch, the roof and the entire front yard. “That’s really awful, I feel for them. There’s nothing worse,” said neighbor Nancy McKenna. “It’s devastating. Look at it, right through the roof. That’s terrible.” A lot of people were looking at it. In fact, it seemed like every resident on Salem Street came by to take pictures. All the residents heard the thunder and lightning, but they didn’t hear the tree fall. “It was very windy,” said neighbor Kaylyn Cressinger. Neighbor Dougie Cressinger said he was wondering, “if everyone is OK and if it made a noise.” The answers are yes and yes. The homeowner said he and his two tenants were all home and looking out the window watching the tree fall on them; thankfully they are all okay. Neighbors also thankful it was the only serious damage in their neighborhood…

Mamaroneck, New York, Press Release, June 9, 2021: Town Of Mamaroneck: Emerald Ash Borer Beetle Threatens Ash Trees In Town

The Emerald Ash Borer is an invasive beetle that infests and kills native Ash trees. Dozens of Ash trees in our community have already been infested and are dying at alarming rates. Once an ash tree dies, it should be removed quickly if the tree would pose a danger should it fall or lose a branch. This is because ash trees become brittle and unstable soon after they die. The Town has begun to identify dead and infested Ash trees on Town property that must be removed as a safety measure. We will begin to remove dead trees along East and West Brookside Drive next week. Trees that have been identified for removal have a green dot spray painted on the trunk. If you believe you have an Ash tree on your property that is infested, or have noticed increased woodpecker holes in an ash tree, have it evaluated by a tree professional. If the tree is removed, the tree must be chipped to 1-inch or smaller pieces to prevent the spread of the beetle. ..


Case of the Day – Monday, June 14, 2021


When I was a young, bright-eyed and newly-licensed lawyer, my head full of three years of law school pap topped with a dollop of bar review study, I was befriended by a gnarled old litigator. He dictated his pleadings into one of the old belt-fed Dictaphones late at night, microphone in one hand and a bottle of Fairfax County bourbon in the other. But he sure knew how to litigate.

The second wisest thing he ever told me (the wisest being to drink Fairfax County, which, alas, is available no more) was that a good trial preparation began with writing the jury instructions and working backward. Writing the instructions informed the trial attorney what the jury was going to be told it had to find in order for his client to prevail. Preparation then moved backward, the next step being an outline of his closing argument. Only then, knowing what evidence he would need to have in the record in order to win, did the canny trial attorney assemble the evidence he had and determine what evidence he still needed to find.

It was good advice and great bourbon. Which brings me to Indiana, where they drink whatever Hoosiers drink, and they don’t always start at the end like they should.

For the readers’ sake, I’ll start at the beginning. Eighr years ago, in White County, Indiana (about half way between Chicago and Indianapolis), an Amtrak passenger train on CSX tracks collided with a farm tractor pulling a tank of anhydrous ammonia. Although the tank did not burst, some hoses full of the nasty stuff whipped around, broke the engineer’s window on the locomotive, and sprayed his hand with a small amount of the chemical.

The engineer, Bill Rucker, sued anyone he could find for his injuries, including the driver of the tractor, RDS Farms (which owned the tractor), CSX Transportation, and Amtrak. RDS Farms and the driver argued, among a myriad of other claims, that CSX was to blame for the accident because it violated a state law the required it to keep trees and vegetation trimmed around crossings so that vehicle drivers could see oncoming trains.

Before an actual trial, the issues usually get cut down to size, chiefly through the use of summary judgment. Summary judgment on an issue is granted where there is no genuine issue of fact, and that one party is entitled to judgment as a matter of law.

The tractor driver said he usually stopped unless he could see no train was coming, and he does not know why he did not stop on that fateful day. He said the crossing was a difficult one because trees were “right next to the tracks” and because of the angle at which the tracks intersected the road, it was difficult to see a train approaching from the southeast.”

From this testimony, Bill the Engineer argued that CSX breached its duty to keep the railroad right-of-way clear of obstructions.

Indiana law at the time (but repealed a few years later) required that a railroad ensure that a motorist has an unobstructed view for 1,500 feet in both directions along the railroad right-of-way “subject only to terrain elevations or depressions, track curvature, or permanent improvements.” The law obligated railroads to remove all foliage and obstructions on the right of way which might impair a motorist’s view of an oncoming train. The duty, however, extended only to the railroad’s right-of-way.

Our old-time litigator would have written a jury instruction on the issue of whether CSX Transportation had violated the statute, and thus breached a duty, and he would have noted that his evidence had better include not just proof of the obstructive foliage, but also proof that it was on CSX’s right-of-way. Sadly for Bill the Engineer, his lawyer was not the old-timer. The court found that he had omitted a crucial piece of evidence, that the trees not trimmed were on CSX land.

Bill made the best argument he could make, that CSX had not provided testimony from one of its employees regarding the property boundary lines or right of way. Bill, however, had made the claim that no one could see the oncoming train, and it was thus he was the party with the duty to prove that the trees belonged to CSX.

With no evidence the trees were on CSX property, there was no proof of a duty to trim, or breach of that duty. Bill’s obstruction claim failed.

Our old friend would be swigging his whiskey and ranting into his Dictaphone: how could counsel have missed such an easy proof?”

Rucker v. RDS Farms, Inc., Case No. 2:15-CV-272-TLS (U.S. District Ct., N. D. Indiana, August 28, 2017) 2017 U.S. Dist. LEXIS 138363, 2017 WL 3720200: On the morning of June 12, 2013, Dave Allen drove an RDS Farms tractor across a CSX railroad crossing, pulling a disc harrow for tilling soil and an anhydrous ammonia nurse tank. At the same time, an Amtrak train being operated by Bill Rucker was approaching the crossing, Dave did not see or hear the train, and drove the tractor onto the crossing.

The lead locomotive struck the disc harrow at about 47 miles per hour, and the impact separated the anhydrous ammonia tank. The momentum of the locomotive carried it through the impact without causing an abrupt stop. The anhydrous ammonia tank was not ruptured, but the hoses were filled with ammonia at the time of impact, and one of the applicator hoses broke the engineer-side window of the locomotive. Engineer Bill inhaled the anhydrous ammonia and it splattered on his right arm, shoulder, and head.

Dave said the crossing, at which the tracks cross the road from the southeast at an acute angle, is one at which it is difficult for a motorist to see because of trees that are “right next to the tracks.”

At the time, Indiana Code § 8-6-7.6-1 provided that “each railroad in the State of Indiana shall maintain each public crossing under its control in such a manner that the operator of any licensed motor vehicle has an unobstructed view for fifteen hundred (1,500) feet in both directions along the railroad right-of-way subject only to terrain elevations or depressions, track curvature, or permanent improvements.” The law only required railroads to remove obstructions on the right-of-way, and not “obstructions of view which are located off the railroad right-of-way.”

Bill leveled the claim against CSX that it was liable because it had breached its duty under Indiana law to trim trees and vegetation to maintain unobstructed views. Bill relied on Dave’s testimony that the trees were right next to the tracks, but he offered no other evidence that the trees were located within the right-of-way.

CSX Transportation moved for summary judgment, arguing that Bill has not met his burden to present admissible evidence from which a jury could find that the unidentified stand of trees in the southeast quadrant of the crossing was growing on its right of way. CSX Transportation argued it has met its summary judgment burden by showing an absence of evidence to support Bill’s claim. Bill claimed he had shown a genuine issue of fact existed as to the location of the trees.

Held: CSX was granted summary judgment, and the tree obstruction claim was thrown out. The District Court said that once CSX pointed out that none of the evidence supported Bill’s claim that CSX was responsible for the trees, it was incumbent on Bill to dispute those assertions by “citing to particular parts of materials in the record” to establish the existence of a genuine, material, triable issue.

Bill criticized CSX for not providing testimony from one of its employees regarding the location of the right of way, but the Court pointed out that a defendant moving for summary judgment need not produce evidence of its own. Instead, “when a plaintiff fails to produce evidence, the defendant is entitled to judgment.”

There is no doubt, the Court said, that “one of the basic elements of negligence is a breach of duty” and that Bill “would bear the burden of proof on this point at trial.” Without a duty, there can be no breach, and no recovery for the plaintiff in negligence.

Bill argued he had Dave Allen’s testimony that the trees were “right next to the tracks.” But, as the Court pointed out, Dave Allen has no personal knowledge of the property boundary lines or right of ways, nor did he further define the distance he correlated with “next to” or otherwise provide a more precise location. “Even without the precise definition,” the Court said, “the trees that Allen was referencing is probably not a mystery to the parties—they were in the southeast quadrant of the crossing in some proximity to the tracks. But that did not alleviate the need to determine who owned or controlled the property on which those trees were growing.”

Summary judgment is the moment in litigation where the non-moving party is required to show the court evidence on which a reasonable jury could rely to find in his favor. Despite CSX’s claim that the trees at issue were not on its right of way, Bill did not provide any evidence to identify the trees that he alleges created an obstruction or to prove that they were on CSX’s right of way. “Without any credible proof upon which a jury could rely to conclude that CSX had a duty, breached that duty, and the breach caused the accident,” the Court said, “CSX Transportation is entitled to judgment as a matter of law.”

– Tom Root


Case of the Day – Friday, June 11, 2021


Secretary of State Kerry in his more upright days ...

Former Secretary of State Kerry in his more upright days. To our knowledge, Donald Trump didn’t ride a bicycle. Joe Biden rides one of those old-person three-wheelers…

Note to Mr. Quackenbush: Secretary of State John Kerry didn’t sue anyone when he fell off his bike. Neither did President Bush. But you, Mr. Quackenbush, are no John Kerry. Or George W. Bush. You sued the City of Buffalo because while you were riding your bike on one of Buffalo’s park trails when you hit a hole and fell off.

OK, Mr. Quackenbush, you might be a President Trump, at least insofar as stupid lawsuits go. We’ll give you that.

You sued, and Buffalo – not liking the defendant’s role you chose for it – tried to trample you. The City argued that New York’s recreational use statute immunized it from liability, but the Court ruled that where a government entity is involved — rather than a private landowner — it had to figure out whether the recreational user statute was intended by the legislature to induce the City to open the park, or to increase the use and enjoyment of the particular park by the public. The City maintained the trail was really kind of like a sidewalk, and the state’s sidewalk injury immunity statute applied.

No dice, the Court said. But Quackenbush kind of assumed the risk, the City argued. Not necessarily, the Court countered. Through it all, the City hadn’t shown it wasn’t responsible for creating the hole, or that it didn’t know it was there.

Now you’d think that hitting a hole on an unimproved trail on a mountain bike was kind of an unsurprising risk. But unsurprising or not, the appellate court thought the case was good enough to go to trial.

Mountain biking, as Mr. Quackenbush learned, can be challenging.

Mountain biking, as Mr. Quackenbush learned, can be challenging.

Quackenbush v. City of Buffalo, 842 N.Y.S.2d 657 (N.Y.A.D. 2007). Quackenbush was riding a mountain bike on a trail located in a park owned by the City of Buffalo when he hit a large hole, fell and was injured. He sued for negligence, and the City of Buffalo moved for summary judgment under several theories, chief among them being the New York recreational use statute. The trial court denied summary judgment, and the City appealed.

Held: Quackenbush could not be buffaloed by Buffalo. The appellate court concluded that the recreational use statute did not confer immunity upon the City. Although the statute generally provides immunity to landowners who permit others to use their property for certain recreational activities, the Court said, when the landowner is a government entity a different standard is applied. Then, the appropriate inquiry is the role of the landowner in relation to the public’s use of the property, and from there a determination is made whether it is appropriate to apply the limited liability provision of the statute.

Here, the Court concluded that the park was actively operated, supervised and maintained in such a manner that recreational use immunity would not create an additional inducement to keep the property open to the public for the recreational activities set out in the law. Additionally, state law immunizing the City for damages caused by bad sidewalks didn’t apply, inasmuch as the law was limited to streets, highways, bridges, culverts, sidewalks or crosswalks. Under the facts of this case, the Court held, the statute must be construed as a flat prohibition “of defect enactment pertaining to locations beyond the six specified.”

The City of Buffalo was not allowed to stampede over this plaintiff.

The City of Buffalo was not allowed to stampede over this plaintiff.

The Court rejected the City’s argument that an unimproved trail such as the one on which Quackenbush was injured was the functional equivalent of a sidewalk. The Court also ruled that Quackenbush had not assumed the risk of injury. Although the risk of striking a hole and falling is inherent in riding a bicycle on most outdoor surfaces, the Court said, there was an issue of fact whether the hole at issue in this case was open and obvious.

Finally, just so the City could go 0 for 4 here, the Court observed that the City was required to establish as a matter of law that it hadn’t created the dangerous condition and didn’t have actual or constructive notice of it. The City hadn’t done either.

– Tom Root


Case of the Day – Thursday, June 10, 2021


California and free speech… How times have changed! Time was, 50 years ago or so, Cal Berkeley gave birth to the Free Speech Movement. Now, some allege the Golden State hates free speech. The California Democratic Party says the First Amendment does not protect speech minority groups find offensive or hateful (check out Resolution 19-05.94), Grande Dame of politics, Nancy Pelosi, mau-mau’ed Facebook over a fake video of her in what some say was a dangerous affront to the First Amendment.  It is no surprise that only in the California Republic could a tree-trimming case end up as a free speech issue.

bureaucracy140923Last week, we explored the question raised by our faithful reader Rock Maple of Thousand Oaks, California, who wondered whether his neighbor could trim the branches from Rock’s pine that were overhanging the neighbor’s place. We concluded that self-help was available to the neighbor, within limits. Today, we look at what happens when good old-fashioned common law self-help runs into bureaucracy.

The Dilbecks wanted to add a second story to their house, but their neighbors’ oak tree had extended its branches so close to the Dilbecks’ place that they had to be trimmed back in order to make room. No problem, right? We all know that self-help is available to the Dilbecks anywhere in California. Sure, but it turns out the Los Angeles isn’t just anywhere. In LA, oak trees are “protected,” and before trimming the oak, the Dilbecks had to get a permit from the County. And the County wouldn’t issue a permit unless the tree’s owner signed on to it.

So much for self-help. The Dilbecks sued, asking that the County be ordered to issue the permit and that their neighbors be found liable in trespass for the tree (the theory being that the neighbors let the branches intrude over the Dilbecks’ lawn). And here’s where it got even more complicated. California has a statute addressing litigation known as “strategic lawsuits against public participation,” the so-called anti-SLAPP statute. This mouthful with the catchy name is intended to stop oppressive lawsuits intended to keep people from exercising their rights to free speech. There’s a whole cottage industry in the Golden State surrounding SLAPP actions. And as with a lot of other good ideas (such as RICO), the anti-SLAPP statute is another tool in the canny lawyer’s arsenal, something else with which to bludgeon a plaintiff.

Here, the neighbors complained that the Dilbecks were trying to force them to petition the County to let the tree get trimmed, and the suit should be thrown out as violating the anti-SLAPP statute. The trial court refused to dismiss the action. The Court of Appeals agreed, holding that the Dilbecks weren’t demanding that the neighbors do anything. They were asking the County to do something, and they were suing the neighbors for trespass because of the tree. California law would let them collect money damages if the encroaching tree was a nuisance (Bonde v. Bishop held as much). So whether the Dilbecks win on the merits or not, the action was not a SLAPP suit, and it wouldn’t be dismissed.

Oaktree140923Whew! Makes you long for the simple, ol’ Massachusetts Rule… no permits, no lawsuits, just an aggrieved landowner with a chainsaw.

Dilbeck v. Van Schaick, 2007 Cal. App. Unpub. LEXIS 7718, 2007 WL 2773986 (Cal.App. 2 Dist., Sept. 25, 2007). The Dilbecks owned a place in Altadena, next door to the Van Schaicks. The Dilbecks planned to remodel their home by adding a second story. However, the branches of an oak tree located on the Van Schaicks’ property have grown over the Dilbecks’ home, rendering the Dilbecks’ plans unworkable unless the tree was pruned.

Oak trees are protected by California state law. The County of Los Angeles had adopted regulations to preserve and protect oak trees, requiring a permit to cut down mature oak trees or to prune their larger branches. The Dilbecks applied to the County for a permit, but the County had not approved it because it took the position that only the owner of the tree may obtain a pruning permit, and the Van Schaicks had not acquiesced. So the Dilbecks brought suit against the Van Schaicks and the County for declaratory relief and trespass. They alleged the oak tree growing on the Van Schaicks’ property had encroached onto their land and interfered with their ability to add a second story to their home. The suit said the County refused to grant the permit because the Dilbecks were not the owners of the tree. The trespass cause of action alleged the oak tree branches were encroaching on the Dilbercks’ land and asked for an order permitting the Dilbecks or an independent contractor to prune the tree.

The Van Schaicks filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, asserting that the complaint was based on their refusal to support the Dilbecks’ oak tree permit application and therefore attacked their right to free speech. They further argued that the trespass claim lacked merit because the law forbade the Van Schaicks to prune or cut the offending oak tree branches.

The Dilbecks contended that their action did not fit within the definition of a SLAPP suit and that, in any event, their complaint had merit. They denied that the complaint sought to compel the Van Schaicks to support or sign the oak tree permit. The trial court denied the Van Schaicks’ motion to strike, finding that they had not demonstrated that they were being sued for engaging in protected activity. Instead, the trial court held, they were just being sued for trespass. The Van Schaicks appealed the court’s denial of their motion to strike.

Freespeech140923Held: The Dilbecks’ complaint did not arise from acts undertaken in furtherance of the Van Schaicks’ rights of free speech or petition, and the Van Schaicks’ attempt to get it dismissed was rejected. The California Legislature enacted the anti-SLAPP statute in response to its perception that there has been an increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition for the redress of grievances. The anti-SLAPP statute provides a procedure for the court to dismiss at an early stage non-meritorious litigation meant to chill the exercise of free speech rights. The statute requires the trial court to engage in a two-step process when determining whether a motion to strike should be granted, first, whether the defendant has made a threshold prima facie showing that the acts of which it complains were ones taken in furtherance of its constitutional rights of petition or free speech in connection with a public issue, and two, whether there is a probability that the plaintiff will prevail on the claim.

The issue here, the Court said, was whether the complaint arose from conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. The Van Schaicks contended the suit sought to compel them to petition the County for discretionary relief from the oak tree statutes. The Court disagreed, holding that their characterization of the complaint was wrong. In fact, the Court said, the suit merely sought to compel the County to review the merits of the permit application submitted by the Dilbecks and requested an order permitting the Dilbecks or their arborist to prune the tree. The complaint did not seek to compel the Van Schaicks to become personally involved in the permit application process in any way, and thus did not violate the anti-SLAPP statute.

The Van Schaicks contended that the complaint would indirectly force them to speak because a judgment in favor of the Dilbecks on the trespass action would necessarily require the Van Schaicks to petition the County of Los Angeles for discretionary relief from the Oak Tree statute. The Court rejected that argument, finding that the Van Schaicks’ position was based on the incorrect assumption that the only remedy available for trespass was injunctive relief. However, California law held a party over whose land overhanging branches extend may either cut them off or maintain an action for damages and abatement, as long as he or she can prove the branches constitute a nuisance.

The prospect that the Van Schaicks could eventually be faced with an order to abate the nuisance and could do so only by seeking a permit from the County did not transform the Dilbecks’ lawsuit into a SLAPP action. The Court ruled that the thrust of the Dilbecks’ complaint was the injury caused to their property by the encroaching tree, not the Van Schaicks’ decision to refrain from involvement in the permitting process. The permit, although obtainable only by petitioning a governmental entity, principally concerned and affected the remodeling of a private home by private individuals.

– Tom Root

Case of the Day – Wednesday, June 9, 2021


It’s fun these days to deride the Massachusetts Rule as a relic of a bygone era, when manly men hewed the logs for their cabins, wielded their own axes for firewood, and posted their own selfies as drove their oxen teams in the fields… back in that rustic pre-war era (before the first Persian Gulf war) when the web was something you walked into down in the basement and “text” was not a verb.

The Massachusetts Rule, of course, embodies the libertarian view that each landowner is both entitled to and limited by the doctrine of “self-help.” The Rule has two prongs. The first is universally accepted: a landowner has a right to cut encroaching branches, vines, and roots back to the property line, provided he or she does not enter the adjoining landowner’s property to chop down a tree or cut back growth without the neighbor’s consent.

The second prong of the Massachusetts Rule is less widely acknowledged. Rather, it has fallen out of favor to a great extent over the past 30 years.

But when Jon Melnick ran into problems, the second prong was still the law of the land. Back in the late 1970s, Jon bought a decrepit Baltimore warehouse next to the railroad tracks, which he then repaired for commercial use. After he fixed the place up, he discovered that a fair amount of the reason the property had become run down to begin with was that the Baltimore & Railroad (which after several mergers, consolidations and rebrandings, had become a component of CSX Transportation, a subsidiary of CSX Corporation) did little to maintain the trees alongside its railroad right of way. As a result, branches were overhanging the warehouse, dropping twigs and leaves and vines and other plant life onto the roof.

Jon complained to the railroad all the live-long day, but no one paid any heed to his lament. So he sued, alleging trespass, negligence, and nuisance.

The modern-day B&O: as close to a hometown hero as Baltimore has.

Don’t bet against the home team. The Baltimore & Ohio prevailed in Baltimore. The Maryland court followed the Massachusetts Rule to the letter. In a paean to an era of rugged individualism lost since past, the Court held that the privileges of real estate ownership are accompanied by certain obligations. One of those is “proper maintenance.” Indeed, the Court lectured that “to grant a landowner a cause of action every time tree branches, leaves, vines, shrubs, etc., encroach upon or fall on his property from his neighbor’s property, might well spawn innumerable and vexatious lawsuits. We have gotten along very well in Maryland, for over 350 years, without authorizing legal actions of this type by neighbor against neighbor.”

Well, of course. We’ve always done it that way. For that matter, we got along just fine for 275 years without paved roads. Candles served us well in the evening, and those newfangled electric lights just encourage people to remain awake past their bedtimes.

The justification that ‘we’ve always done it that way’ is usually a poor reason to resist change. While it got CSX off the hook and picked Jon’s pocket to have his roof and gutters constantly cleaned, the Massachusetts Rule’s proscription on legal redress for encroachment was already on the exit ramp when this case was decided in 1988. The Hawaii Rule – which holds that when there is imminent danger of overhanging branches causing “sensible” harm to property other than plant life, the tree owner is liable for the cost of trimming the branches as well as for the damage caused – has gained traction in a number of states over the past 20 years. Tennessee, New Mexico, North Dakota, Arizona, and New York follow it. Several other states follow the rule with variations: in Oregon, the owner of the offending tree must somehow be at fault or the tree must be “ultrahazardous.” In Missouri, the Hawaii Rule is followed if the offending tree is diseased or damaged, but the Massachusetts Rule is followed if it’s healthy.

Until 2007, Virginia had an unworkable rule that in order for a neighbor to be liable for damage caused by his or her tree, it had to be “noxious,” that is, one generally seen to be a pest. It abandoned that approach in favor of holding that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. But encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to adjoining property, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.

The Melnick court found it “undesirable to categorize living trees, plants, roots, or vines as a ‘nuisance’ to be abated, citing an Ohio case holding that “[t]o grow a tree is a natural act of the soil. It is not itself a dangerous instrumentality.” Were the issue to arise in Maryland courts now, 30 years later, we suspect the outcome would be much different.

Melnick v. CSX Corporation, 312 Md. 511, 540 A.2d 1133 (Ct.App.Md. 1988). Johnathan Melnick purchased a warehouse in Baltimore that shared a common boundary with a railroad right-of-way owned by the Baltimore and Ohio Railroad Company. He replaced the roof, which had been in poor condition.

Since the roof replacement, Melnick experienced constantly clogged drains, standing water, roof deterioration, and some water damage to stored merchandise. These problems result from leaves and limbs falling on his property from the railroad’s trees. Melnick tried to remedy this situation by cleaning the gutters on several occasions and cutting back the growth, but the problem continued. When his complaints to the railroad were ignored, he sued on theories of trespass, negligence, and nuisance.

The trial court granted judgment to the railroad, holding that Melnick was limited to a self-help remedy. Melnick appealed.

Held: Under the circumstances, Melnick had no cause of action against the railroad. The appellate court reasoned that the remedy of “self-help” was generally the most efficient way in which to prevent injury from occurring to property due to encroaching vegetation.

The Court followed the Massachusetts Rule, set out in Michalson v. Nutting. “We believe that it is undesirable to categorize living trees, plants, roots, or vines as a “nuisance” to be abated. Consequently, we decline to impose liability upon an adjoining landowner for the ‘natural processes and cycles’ of trees, plants, roots, and vines… ‘Indeed, such natural growth and shedding processes of trees are inherent… and to most people constitute a pleasurable reflection of seasonal changes’.”

The Court held that a landowner must assume responsibility for the care and preservation of his or her own property. “Along with the benefits derived from property ownership come certain obligations. Proper maintenance of one’s own property is one of these obligations.”

– Tom Root


Case of the Day – Tuesday, June 8, 2021


catch22141217 Those of us old enough to remember the ‘60s – and if you were around then, you probably were in such a state that you don’t remember them – recall Joseph Heller’s book, Catch-22. The short rocket is this: the “Catch 22” is simply this – if one is crazy, one can be relieved from flying combat missions. But one has to apply for the discharge, and applying demonstrates that one is not crazy. As a result, one will not be discharged.

The Catch 22 typifies “bureaucratic operation and reasoning,” which brings us to today’s conundrum. An alert reader in Toad Lick, Arkansas, wrote to complain that a branch from his neighbor’s oak tree hangs over his property to a great extent, dropping leaves and acorns. He says it’s so big and long that it’s a hazard, and he fears that it will fall on his children. What, he wonders, can he do?

Oh, yawn, you say. Being a faithful reader of this blog, you immediately recognize that the solution to this is the Massachusetts Rule, which permits a homeowner to use “self-help,” trimming the branches back to his property line. Ah, but there’s a twist to this particular problem. If our afflicted homeowner trims to the property line, he will leave a six-foot or so stub of a branch because he cannot go onto the neighbor’s property to trim the branch all the way to the trunk. The city, he tells us, requires that the branch be trimmed all the way to the trunk, or it will fine him.

At this point, the notion of a lousy $25 fine leaves you still unimpressed, and you’re about to click off this blog for one of those Internet sites that no one admits to checking out, but we all do, anyway. Not so fast. It gets better. Our homeowner complains that the City’s fine for improper trimming is $400 per inch of diameter of the tree, and the diameter of the offending oak (at 4 feet above the ground) is something like 36 inches. That’s right, he’s looking at shelling out $15,000 in fine (plus tree trimming costs), all to cut down a single hazardous branch.

Or so our afflicted correspondent says. Frankly, we were perplexed by his report. If things were as our complainant said they were, one effectively could not exercise self-help without his or her neighbor’s cooperation. That seemed to eviscerate the Massachusetts Rule, taking the “self” right out of “self-help.” It’s the classic Catch 22 – you cannot exercise self-help without your neighbor’s cooperation, which – if you can get it – pretty much makes it anything but self-help.

Years of law practice have made us acutely aware of a sad fact of life: clients get it wrong. They get it wrong all the time. You could be cynical and say that clients lie, but we would never suspect that. Indeed, you don’t have to go that far. Whether they’re simply confused, perceive it incorrectly, or flat out fib, the result’s the same.

standards141217Here, the Toad Lick City Code tells a somewhat different story. The ordinance requires that any trimming in the city has to be done according to ANSI Standard A300, which sets out best practices for tree maintenance. If a trimmer adheres to the standard, what happens to the tree is not his or her fault. If the trimmer does not trim to the ANSI standard, and the tree later suffers “substantial destruction” – that is, it is killed or becomes a hazard tree – the trimmer is liable. So our homeowner’s trimming won’t lead to a fine unless the tree is “substantially destroyed.” And that will take a few years to determine.

Talking to the Toad Lick City Forester’s office, we found out a few other facts as well, details our correspondent homeowner overlooked telling us. It appears that our afflicted complainant may not be all that concerned with the fate of his children playing under the branch. Instead, he wants to build a swimming pool, and the branch is directly over the new installation. What’s worse, the branch spoils his view.

Whew! We haven’t had a problem like this since our last law school final exam. Where to start? First, our unhappy pool-building homeowner should hire an arborist. If the arborist agrees that the branch is a hazard, our man is on much more solid ground. The neighbor should be placed on notice of the hazard determination, and the neighbor’s insurance company should be told, too. We bet the insurance company will convince the recalcitrant neighbor to let our homeowner trim to A300 standards without a whimper of protest.

But what if the branch isn’t a hazard (as we’ve heard)? Our homeowner might still have an arborist trim it to the property line according to accepted industry standard (if such a thing is possible). If it is not, our homeowner may have to risk lopping the branch off at the property line, and hoping that the tree doesn’t die. If it does, the City is going to assert that it was the homeowner’s improper trimming that caused the hazard (or death).

We suspect our homeowner won’t find an arborist who will cut the branch other than at the trunk (which cannot be done without the neighbor’s OK). If the homeowner is going to go ahead with the pool, he may just have to cut the branch at the property boundary and hope for the best. If the tree withers and dies within a few years of the surgery, well, then, he has a problem.

That should not be surprising. Even without the city ordinance, the suggestion has often been made that Massachusetts self-help requires first that the overhanging branches be doing more than just causing shade or dropping leaves. In Herring v. Lisbon Partners, the court suggested that Massachusetts self-help was only available when the overhanging branches or intruding roots were doing more than your average tree: that is, they were a danger or a nuisance, breaking up pavement or damaging roofs. It could well be that courts will rule that self-help isn’t available merely to improve the view (although such a ruling hasn’t come down anywhere just yet).

Thus, it could be that our homeowner really isn’t entitled to do much of anything if he cannot get an arborist to certify that the branch is doing more mischief than your average branch. Endangering kids is one thing: spoiling a view is something else. If the branch is a hazard, the homeowner might have a defense to trimming it to the property line, even if the tree dies – the defense of necessity.

Our complaining homeowner told us that he doesn’t want to end up in a lawsuit, or defending himself from a $15,000 fine. That’s perfectly understandable. In that case, his best course is obvious, if the branch is a hazard (as he says it is). If his arborist will give him an opinion that the branch is a hazard, the homeowner should make sure the neighbor and the neighbor’s insurance carrier are both aware of that. Certified mail, return receipt requested, would be prudent. We suspect our homeowner will be happily surprised at how quickly the insurance carrier persuades his neighbor to cooperate.

peter141217Lawrence Peter postulated the idea years ago as a corollary to the Peter Principle: pull is always stronger than push. If our homeowner gets the neighbor’s insurance company on board, he’ll have a lot of pull.

Fine aside, could our homeowner be liable for causing substantial damage to his neighbor’s tree by not trimming according to A300 standards? Remember, our complainant wants to avoid litigation, trimming away the offending branch in a way that leaves him legally bulletproof. Even without the city’s statutes requiring trimming in compliance with A300, yesterday’s Booksa case from California should serve as a cautionary tale.

We have previously determined that California generally recognizes the Massachusetts Rule, which permits a neighbor to use “self-help,” trimming the branches back to the property line. Of course, California seems also to permit use of the private nuisance laws — something that seems like the Hawaii Rule or Virginia Rule — to let a homeowner like our correspondent force someone like his neighbor to remove the branch himself if it is a nuisance.

You recall that Mr. Patel was unhappy that the roots from Mr. Booska’s pine tree had heaved some of Mr. Patel’s sidewalk. He excavated along the edge of his yard down to three feet, severing the roots of the pine tree that had encroached under his sidewalk. The root cutting so weakened the tree that it started dying and was in danger of falling. Mr. Booska had to take the tree down, and he promptly sued.

The lower courts said that Patel had an absolute right to cut the roots on his property, citing the holding in Bonde v. Bishop. Not so, said the appeals court. Instead, Mr. Patel had an obligation to cut the roots in a reasonable manner that would achieve his aims — to stop sidewalk heaving — without undue harm to the tree. The Court held that “no person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.”

Unfortunately, this isn’t the final answer. The Booska court was swayed by testimony that Mr. Patel could have protected his sidewalks with a much less aggressive method. We don’t yet know what the result would be if the only means of protecting Mr. Patel’s sidewalk would have required cutting that would necessarily be fatal, but our correspondent could provide us with the answer if he lands in court over cutting the branch to the property line but not in accordance with A300.

In the situation our writer presented to us, his explanation for wanting the branch removed clashed with what the city understood the real motivation might be. In discussions with his arborist, our neighbor will have to consider whether the branch could be found to be a nuisance, a finding that Bonde suggests can be easily made in California. Even if it is not a nuisance, our correspondent maybe can start hacking away on his side of the property line, but the hacking should be done according to A300. Assuming that it cannot be (because the neighbor won’t permit trimming to the trunk), the trimming has to be done in a way that weighs our correspondent’s legitimate aims — whatever they are — against the health and safety of the tree. And preserves the tree, thus avoiding the $15,000 fine.

complexity150604Oh, the complexity! And to make it worse, next week we’ll look at a Kafkaesque result where a neighbor’s right to cut back a tree can’t be exercised without the approval of the property owner, resulting in an old-fashioned California SLAPP-down.

Not to sound like the Bar Association, but we suggest that all of these legal gyrations well illustrate why spending a few bucks at your local counselor-at-law might be prudent – not just in California, but wherever you live.

Booska v. Patel, 24 Cal.App.4th 1786, 30 Cal.Rptr.2d 241 (Ct.App. Div.1, 1994). Read the Booska decision again, or review our synopsis of it in yesterday’s Case of the Day. And if you’re caught up on all of your Kardashian reading, you might want to consider Herring v. Lisbon Partners once again, too.

– Tom Root