Case of the Day – Friday, June 22, 2018

IT WAS A DARK AND STORMY NIGHT …

 

Snoopy made the opening line of Paul Clifford one of the most famous in the history of pedestrian writing.

Snoopy made the opening line of Paul Clifford one of the most famous in the history of pedestrian writing.

Or so begins Edward George Bulwer-Lytton’s 1830 novel, Paul Cliffordthe opening line now famous thanks to Snoopy in the comic strip Peanuts and the fiction contest that bears the author’s name. It’s a bit ironic:  we are enjoying as much light today as any time this year (well, all right, three seconds less than yesterday, to use Boston as an example, but that’s a rounding error). Yet today we’re going to look back on a really dark and stormy night, when the aptly-named farmer Hay drove his truck through the Ohio countryside, past the golf course owned by a local lodge of the Benevolent and Protective Order of Elks.

On this particular dark and stormy summer night, an oak tree by the side of the road, weakened and decayed after a lightning strike several years before, fell on Farmer Hay, bringing to a sudden end his time on this mortal coil. Subsequently, his estate sued the Elks, claiming the Lodge had been negligent in failing to do anything about the hazardous tree, despite the fact that its decrepit state was well known to the duffers.

Relying on rather thin precedent, the trial court threw out the Hay descendents’ claim, holding that a rural landowner had no duty to protect travelers on the highway from the natural condition of trees on his or her property. The matter reached the Ohio Supreme Court in 1951.

The Supreme Court began with the observation that the law permitted every landowner to make such use as the person’s property as he or she wishes, provided it is used in such a manner as not to invade the rights of others. It then added flesh to that general rule, holding that while a rural landowner has no duty to inspect trees adjacent to a highway, when he or she has knowledge – actual or constructive – of a patently defective condition of a tree which may injure a traveler, the landowner must exercise reasonable care to prevent harm to people lawfully using the highway.

While there was little precedent in other states for the duty to act defined by the Hay court, the decision hardly came as a surprise. The American Law Institute’s Restatement of the Law of Torts had previously held that while “[n]either a possessor of land, nor a lessor, vendor or other transferor thereof, is subject to liability for bodily harm caused to others outside the land by a natural condition of the land other than trees growing near a highway.” But it contained an important caveat. The Restatement – which is written with a goal of identifying trends in the law – noted that its drafters expressed “no opinion as to whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

The ALI presciently foresaw evolution of the duty defined in Hay and cases in other jurisdictions that followed it. The Hay rule has since become a standard of care imposed by virtually all states.

These things happen ... but the landowner may be liable, depending on what he or she knew and when he or she knew it.

These things happen … but the landowner may be liable, depending on what he knew and when he knew it.

Hay v. Norwalk Lodge No. 730, B.P.O.E, 92 Ohio App. 14, 109 N.E.2d 481 (Court of Appeals, 6th Dist., 1951). Farmer Hay was driving his truck on New State Road when a large limb or limbs fell from a tree located on land owned by the local chapter of the Benevolent and Protective Order of Elks. The limb struck the top of the cab, injuring Mr. Hay so that he lost control of the truck, crashed into a tree, and died as a result of his injuries.

The late Mr. Hay’s estate sued, alleging that the tree had been struck by lightning several years before, and was extensively damaged and weakened as a result. The complaint said the damage to the tree was visible and apparent for several years, and that after the tree was struck by lightning, apparent natural processes of decay set in and further weakened the tree and its branches, which extended over and above the traveled portion of the road. Finally, the complaint averred that the Elks knew that portions of the said tree extended over the road, that it had been struck by lightning, and the tree was thus weakened. The complaint concluded that the Elks had neglected to remove or to brace the damaged portions or to do anything to make the tree secure, and failed and neglected to give notice to motorists of the danger.

The trial court held that the Elks had no duty to Mr. Hay to alert him as to the danger tree, or to remove or trim it. It threw out the complaint. The matter ended up before the Ohio Supreme Court:

Held: The Supreme Court reversed, and sent the case back for trial. It held that every person may make such use as he or she will of real property, provided he or she uses it in such manner as not to invade the rights of others. But in the case of rural landowners, this means that although there is no duty imposed upon the owner of property abutting a rural highway to inspect trees or to ascertain defects which may result in injury to motorists, an owner having actual or constructive knowledge of a patently defective condition of a tree which may result in injury to motorists must exercise reasonable care to prevent harm to people lawfully using the highway.

The Court noted that the only Ohio holding even close to its conclusion in this case was one in which the owner of property upon which a tree was situated was held to have the duty to exercise ordinary care for the safety of pedestrians using the sidewalk. However, the American Law Institute in had noted in Restatement of the Law of Torts that its members were split, and thus had no opinion on “whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees ... but if the landowner knows there's a problem, he or she should attend to it.

      Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees … but if the landowners know of a problem, they should attend to it.

The Ohio Supreme Court observed that the law imposes upon every member of society the duty to refrain from conduct of a character likely to injure a person with whom he comes in contact and to use his own property in such a manner as not to injure that of another. The justices reviewed cases from other states, which led the Court to the “conclusion that in the absence of knowledge of a defective condition of a branch of a tree which in the course of natural events is likely to fall and injure a person in the highway, no liability attaches to the owner of the tree. On the other hand, where the owner has knowledge of the dangerous condition of the tree or its branches, it is his duty to exercise reasonable care to prevent the fall of the tree or its branches into the highway.” The Court agreed with a Minnesota case that held that it was unreasonable to require the owner of rural land to inspect his property with regard to naturally arising defects, because of the burden thereby imposed upon the owner of large and unsettled tracts of land. But the Court rejected the Minnesota case’s conclusion that the owner was not liable even if he had actual knowledge.

The Ohio Supreme Court instead followed dictum from a Federal court decision that “an owner of property abutting a highway has the obligation to use reasonable care to keep his premises in such condition as not to endanger travelers in their lawful use of the highway. If he fails to do so and thereby renders the way unsafe for travel, he should be liable therefor. It is, therefore, concluded that, although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto to ascertain defects which may result in injury to a traveler on the highway, an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway. If the danger is apparent, which a person can see with his own eyes, and he fails to do so with the result that injury results to a traveler on the way, the owner is responsible because in the management of his property he has not acted as a reasonably prudent landowner would act.”

Because the complaint filed by the Hay Estate alleged that the Elks had actual knowledge of the decayed tree, the complaint made out a claim that, if true, would entitle the Estate to recover. The case was reinstated and sent back to the trial court.

– Tom Root

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And Now The News …

Bend, Oregon, The Bulletin, June 21, 2018: Environmental groups blast ODOT, Forest Service over pesticide error

After an improperly applied herbicide killed hundreds of ponderosa pine trees near Sisters, a number of environmental advocates are arguing that the Oregon Department of Transportation, or its contractors, should have known better than to apply the weedkiller in the first place. “Had a private company done that, every entity in the country would have been on their doorstep,” said Dan Harshbarger, a La Pine resident who lost trees on his property in a similar incident. During the comment period for a U.S. Forest Service project to remove dead and dying trees along a 12-mile stretch of U.S. Highway 20 to the northwest of Sisters, the agency received comments from environmentalists arguing that the various agencies involved in the project didn’t abide by instructions from the Environmental Protection Agency posted on the chosen herbicide label. Representatives from the Oregon Department of Transportation and the Forest Service argued that the agencies didn’t violate instructions on the label, but acknowledged that there had been a serious mistake. “We just collectively dropped the ball on that, and it’s unfortunate,” said Ian Reid, Sisters district ranger for the Deschutes National Forest…

Fort Collins, Colorado, The Coloradoan, June 21, 2018: Fort Collins to uproot thousands of ash trees as invasive beetle creeps closer

Their killer hasn’t hit town yet, but Fort Collins’ ash tree population is already dwindling. The city’s forestry department will have removed and replaced about 350 ash trees by the end of 2018, and foresters are asking for a major funding boost to take out another 750 by the end of 2020. And they’re just getting started. The end game is a remodeled urban forest: Thousands of trees throughout the city will vanish, replaced by young trees that aren’t imperiled by the emerald ash borer. The glittering green beetle will destroy all untreated ash trees when it inevitably arrives in Fort Collins. Ash trees, once revered for their hardiness and bountiful branches, make up about 15 percent of our urban forest and provide one-third of tree shade in the city. About 5,600 ash trees slated for removal and replacement remain on city property. City foresters hope to uproot and replace as many as they can before the ash borer gets here. To that end, the department is requesting about $700,000 from the city’s 2019-20 budget — nearly four times its current funding for ash borer prevention measures…

Business Insider, June 21, 2018: This machine can dig up a tree stump in seconds

This machine can dig up a tree stump in seconds. The Rotor Stump Grinder is available in 8 different models, using either power-take off or hydraulics and featuring a drill or cylinder attachment. These grinders can weigh up to 2,500 kg. The cylinder can easily remove the whole stump, these stumps can then be cleaned and used as fuel. It can extract stumps up to 70 cm wide in one piece or can remove larger stumps in pieces.  These tools can all easily be attached to a tractor or a hydraulic arm, and they can chop up to 100 stumps an hour…

London, UK, Daily Mail, June 21, 2018: Around the world in 80 trees

The first time Jonathan Drori saw his father cry was when a spectacular old Cedar of Lebanon near their home was struck by lightning. Watching its dead trunk and limbs being sawn up, the young Drori ‘thought about the huge, heavy, beautiful thing that was hundreds of years old and that I had thought invincible, and wasn’t, and my father, who I had always thought would be in benign control of everything, and wasn’t’. After a long career at the BBC — during which he produced more than 50 science documentaries — Drori has returned to the subject of trees, and our relationships with them, to produce one of the most quietly beautiful books of the year…

Houston, Texas, MSN, June 20, 2018: After 57 years, Meyerland ‘hero tree’ is struggling

For more than half a century, the live oak has sprawled gracefully along the northern side of the Meyerland Plaza shopping center. It rises from a sea of concrete, its trunk crammed between a vast parking lot and the cracked sidewalk that lines Beechnut Street. A marker at its base declares it the “Hero Tree” — dedicated in 1961 to Gary Herod, a man who sacrificed his life to save others. Everyone had heard the story back then — how Herod, an Air Force pilot, crash-landed his jet one night in an open field near Brays Bayou so his plane wouldn’t land in a neighborhood full of unsuspecting families. The chamber of commerce dedicated a tree in the new, popular Meyerland Plaza so everyone could see the tree and appreciate it. A few years later, Houston ISD named a school Herod Elementary. Fifty-seven years later, as Herod’s story is starting to fade, so is the tree. It’s hidden behind a construction fence now, a few dozen yards away from where a closed BBVA Compass Bank will soon be torn down to make way for a new H-E-B. An arborist has declared the live oak to be “in decline,” strangled by concrete and likely not strong enough to handle the stress of new construction…

Entomology Today, June 20, 2018: Got Spotted Lanternfly eggs on your tree? Send ‘em through the wood chipper

As the invasive spotted lanternfly (Lycorma delicatula) has begun to spread in the eastern United States, entomologists, pest management professionals, and government agencies have gone into high gear in an effort to stop it before it marches across the country. While enlisting the public’s help in spotting and reporting the pest, research is also underway to examine its biology and behavior and the management practices that will aid in preventing its spread. Because the spotted lanternfly’s primary target is Tree of Heaven (Ailanthus altissima)—though it will also feed more than 70 other plant species, including grapes, hops, and fruit trees—one of the first questions asked was how infested wood should best be handled. A study published this month in the open-access Journal of Insect Science provides an official answer: chipping. The spotted lanternfly lays its eggs in small masses, which resemble splotches of mud, often on tree trunks and limbs. In 2015, shortly after the invasive insect was first discovered in Berks County, Pennsylvania, researchers at the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (USDA-APHIS) and the Pennsylvania Department of Agriculture began a study on whether putting infested woody debris through a wood chipper would destroy spotted lanternfly egg masses. The results were clear: In 11 trees’ worth of woody debris infested with spotted lanternfly egg masses, not a single nymph emerged after chipping…

Halifax, Nova Scotia, Chronicle Herald, June 20, 2018: Christmas tree growers grapple with freeze damage

Freezes and frosts have damaged more than half of the Christmas tree crop in some parts of Nova Scotia this spring. “The trees that were slated to be harvested this year, they’re estimating that half of them just won’t recover in time to be harvested,” said Angus Bonnyman, executive director of the Christmas Tree Council of Nova Scotia, in an interview Tuesday. “It takes eight to 10 years to have a marketable tree so it’s quite a loss.” The council has been talking with the provincial Agriculture Department and the Federation of Agriculture on possible emergency funding to help growers. Bonnyman didn’t have a damage estimate but noted that Nova Scotia growers export at least $15 million in trees each year. There is no provincial crop damage program for the Christmas tree industry, nor is there anyone in the government dedicated to Christmas tree industry issues, he said. “We want to be on record as saying there was significant damage and we’re talking now…”

Salisbury, Maryland, WBOC-TV, June 20, 2018: Replenishing trees in Pocomoke City

Earlier this year, Pocomoke City got rid of more than 70 trees for safety reasons.  Marc Scher has worked downtown for more than 50 years, he was sad when the city got rid of the trees. “I’m glad they’re replacing the trees, we will get our trees back,” says Scher  Ruth Copes runs errands downtown, she agrees saying Pocomoke is not the same without it’s trees.  “Pocomoke City, it looks like a ghost town,” says Copes.  City officials say the overgrown trees were a safety hazard, forcing the city to knock them down. Neighbors like Steve Cooper say the town actually looks better with no trees. “I like Pocomoke like this, everything is open and it looks good, it’s nice and clean, where the trees block everything,” says Cooper…

Boston, Massachusetts, Curbed Boston, June 19, 2018: Cambridge tree canopy might need a permit process to preserve it: Councilor

Cambridge’s tree canopy is in such precipitous decline, according to one City Council member, that the city has to take an immediate action that will impact private property owners. In an op-ed for Cambridge Day, Councilor Quinton Zondervan writes that Cambridge’s tree canopy declined 7 percent from 2009 to 2014. He also notes that an imminent assessment “will show even further loss.”  To stem the trend, Zondervan is proposing that Cambridge amend its tree ordinance to require that private property owners acquire a permit to cut down a healthy, sizable tree—or one of at least 8 inches in diameter and 4 feet high (per the current ordinance).  The permit would not carry a fee, and, Zondervan writes, “would be granted … under most circumstances.”  The idea, he writes, is to get a dialogue going about Cambridge’s canopy, one that Boston is starting to have across the Charles River. Boston is falling woefully short of a goal set last decade to expand its canopy 20 percent by 2020…

Western Farm Press, June 19, 2018: Pressure bombs help with crucial tree nut watering decisions

A device whose concept was born in the 1960s has become a key part of the water-saving toolbox for many California tree nut growers. The pressure bomb, or pressure chamber, has advanced in sophistication over the years, but its purpose is essentially the same: to tell a grower whether a tree is stressed by too little, or too much, water. University of California farm advisors who’ve been promoting the device in recent years say it’s essentially a blood pressure test for tree leaves. By testing a leaf with the device, a grower can see how well a tree is pulling water up from the soil, and can plan to provide irrigation when the tree really needs it. The device has also helped with research. Ken Shackel, UC-Davis plant scientist, says the pressure bomb and other monitoring devices most recently helped researchers determine that it’s better to hold back on irrigating walnut trees in the spring rather than in the summer…

Mankato, Minnesota, Free Press, June 19, 2018: Staking young trees results in a healthier tree

Summer storms are plentiful so far this year. The recently removed stakes (fence post) around my apple trees will soon be going back in place. Heavy winds have rocked my young trees from their upright stance. I should have waited one more year, but mowing around the stakes can be a pain and I was impatient. Staking trees is critical when trees are young or newly planted. Older trees that are established are difficult if not impossible to correct. When staking trees, using the correct materials are important. I prefer to use a fairly stiff wire/cable threaded through a piece of old garden hose secured to steel fence post. Slide the piece of protective hose into place so that it makes direct contact with the tree. A bare wire or cable will easily cut through and destroy bark, as a tree moves and sways in the wind. There are other types of strapping material available as well. At least two stakes should be used for each tree, giving support in two directions for more stability. Three stakes even better! A tree may need the stakes in place one to three years depending on how crooked it was to start with. You may need to readjust and tighten your system once or more a year. If your tree is recently planted, overwatering can result in tipping over. Try re-setting it, cut back on the excessive watering, and no staking may be needed…

West Palm Beach, Florida, WPTV, June 19, 2018: Tiny bug can help you preserve your citrus trees

With Florida citrus production at its lowest level in decades, scientists are doing what they can to find ways to slow citrus greening, which right now as no cure, and has killed thousands of trees. Lyn Marino shows the signs of citrus greening in her Port St. Lucie backyard. “See it there, that’s when they’re inside the leaf,” says Marino as she points at a wilted leaf on a lemon tree. This master gardener then learned of a new program from the University of Florida’s St. Lucie County Extension Office. Urban Horticulture Agent Kate Rotindo says they’re working with the State Department of Agriculture to release tamaraxia wasps.  The wasp is a natural predator of the Asian citrus psyllid, that has crippled the citrus industry. “The female lays its eggs in the nymph stage of the citrus psyllid and the female actually eats the nymph stage or the small stage of the psyllid,” said Rotindo…

Fast Company, June 18, 2018: This DNA database for trees will help track illegal logging

On his vacation over Memorial Day weekend, Jakub Bednarek headed into the forest near his home in Leavenworth, Washington, and collected samples of maple leaves to send to a lab for DNA analysis. Bednarek, who also works as a biologist in his day job, is one of 150 volunteers in a project this summer that stretches along the Pacific Coast. The project’s aim: to create a genetic map of a particular species of maple, which can then be used to help identify illegally harvested wood. DNA testing has been used on black market timber in the past–in a case in 2015, for example, when a sawmill owner was convicted of trading illegal wood, scientists used DNA analysis to identify the exact stumps of the trees that had been cut down. But it can also be used at a broader level; by mapping how the genetics of a particular species of tree changes by region, it’s possible to identify where particular timber came from. The current project is studying one particular species, the Bigleaf maple, which are prized for their patterned wood and often illegally harvested. “The goal with this is that we have enough samples distributed widely enough across this geographic range that we can say we’re pretty sure that this was sample from a national forest in Washington,” says Meaghan Parker-Forney, a science officer at the nonprofit World Resources Institute’s Forest Legality Initiative, one of several partners on the project. “If somebody’s claiming it came from Northern California, we can say no, that’s actually not true…”

Sioux Falls, South Dakota, KSFY-TV, June 18, 2018: Tree services bombarded with business as they look to save ash trees

Concerns over the Emerald Ash Borer continue as it threatens the existence of hundreds of thousands of trees in South Dakota. Tree and lawn care experts are being bombarded with business as they work to save thousands of ash trees. “It seems ridiculous for us to cut them down when I know that they are treatable,” Sioux Falls Resident Jessica Miller said. Throw a rock anywhere in Sioux Falls and you’ll probably hit an ash tree. With 85,000 ash trees in the city, the Parks and Recreation department said the trees are very common. “At this point we know already we have way too many ash trees in Sioux Falls regardless if the Emerald Ash Borer was in Sioux Falls or not,” Sioux Falls Parks Operations Manager, Kelby Mieras said. To deal with the infestation the city of Sioux Falls plans to remove trees next year instead of treating them. “Our target is about 3,800 trees both on public property, parks, and other public property and also street trees,” Mieras said…

New York City, New York Times, June 18, 2018: A renewed view of some of the world’s oldest trees

John Muir, the naturalist who was most at home sleeping outdoors on a bed of pine needles in the Sierra Nevada, called giant sequoias the “noblest of God’s trees.” For three years, some of the most striking examples of these towering marvels were off limits to visitors in Yosemite National Park. After a $40 million renovation — the largest restoration project in the park’s history — the Mariposa Grove, a collection of around 500 mature giant sequoias, reopened last week. What Muir called a “forest masterpiece” is now back on display. The renovation addressed a problem that the park has struggled with for years. On the busiest summer days, more than 7,000 cars may converge on the park, which is about a four-hour drive from San Francisco. The gridlock they create amid the stunning chutes of water running down the steep granite slopes of Yosemite’s glacier-carved valley results in a kind of drive-by naturalism that frustrates many. In the Mariposa grove, which is a 45-minute drive from the Yosemite Valley floor, the traffic brought exhaust fumes and engine noise to the foot of some of the world’s oldest living things. Park rangers feared that the asphalt covering the root systems of the trees could damage them…

Boston, Massachusetts, Globe, June 18, 2018: City grapples with equity in its tree canopy

City councilors, acknowledging Boston has fallen dramatically short of its goal of planting 100,000 trees by 2020, discussed Monday the need for additional funding to keep trees alive and add new ones to streets and parks. At the hearing, Councilor Ayanna Pressley also stressed the importance of tree equity across its neighborhoods, underscoring how trees should be available to everyone in the city, not just certain neighborhoods where planting has been prioritized. “We need to continue to fight to make sure it’s reflected in the . . . budget so that we have the staffing resources necessary to ensure preserving tree health, to ensure we’re keeping pace with our planting goals in order to achieve equity in tree canopies,” Pressley said in an interview after the hearing. Thomas M. Menino, Boston’s former mayor, pledged a decade ago to expand the city’s tree canopy by 20 percent, or about 100,000 trees. But the city has planted fewer than 10,000 street trees since 2007, and it removed nearly 6,000 in that time period. Bottom of FormThe last time the city performed a flyover to evaluate Boston’s tree canopy — the total leaves and branches in the city — there was 27 percent coverage. That 2017 report found that a further 41 percent of land in Boston could be modified to accommodate the tree canopy…

Lafayette, Louisiana, KATC-TV, June 17, 2018: Family speaks out after tree falls on, injures children during party

What started out as a birthday celebration ended with three children in the hospital after a tree fell on them. Family and friends have identified the children as 10-year-old Tyrik Garlow, 13-year-old Quantravion Guillory, and 11-year-old Aaron Washington.  It happened on East South Street in Opelousas. As of Sunday night, we’re told Tyrik was transported to a hospital in Baton Rouge is in critical condition, Quantravion is in surgery, and Aaron is in stable condition.  “All of a sudden, we just heard ‘boom,’ and the tree fell,” said Louise Washington, whose granddaughter was celebrating her birthday. Another man at the party was struck by a branch but was treated at the scene with minor injuries. “It knocked me out first, and all I saw was a little boy. He tried to talk, and I told him, ‘Don’t talk; just be quiet,’ and I lifted him up. And, I just picked him up, and I just threw the branch to the other side, and I lifted him up and threw him in my dad’s truck,” he said.   At the time, wind gusts were nearly 40 miles per hour in Opelousas…

Palm Desert, California, Patch, June 17, 2018: Professional Palm Desert Tree Trimmer Gets Stuck In Tree

A tree trimmer was rescued Saturday after becoming stuck in a palm tree. Riverside County Fire officials said the incident was reported at 12:06 p.m. in the 40200 block of Barrington Drive.  Ten firefighters were dispatched to rescue the man who was stuck about 30 to 40 feet at the top of the palm tree, officials said.  The tree trimmer was rescued and brought to the ground without injuries, officials said…

Live Oak, Florida, Democrat, June 17, 2018: Council approves heritage tree removal

The Live Oak City Council agreed to allow the removal of a heritage tree within the city limits at Tuesday night’s meeting. According to the staff report in the council’s packet, the large live oak tree at 520 Santa Fe St. SE was described as a “(d)anger to house — roots interfering with foundation. Large tree hanging over top of house — will completely destroy house if any of these limbs hit house.” The tree, which is around 48 to 52 inches in diameter is located just seven feet away from the 1980s era house. Planning and Zoning Director George Curtis said staff recommended the removal based on those safety concerns. Paul Williams, the senior forester for Suwannee County with the Florida Forest Service, reviewed the site in May and determined it was a heritage tree and also recommended its removal. “My recommendation is to approve the removal based on safety issues and the high probability of foundation and roof damage to the house in the future,” Paul Williams said in the findings included in the packet. “Also, the tree has signs of heart rot from past pruning that did not heal over correctly…”

Sunbury, Pennsylvania, Daily Item, June 17, 2018: Valley tree-trimming electrocution victim on stunning road to recovery

Richard Jordan’s heart stopped for 15 minutes March 6. The paramedics had stopped administering CPR after the 48-year-old tree trimmer from Middleburg was electrocuted with 7,200 volts of electricity, but then a miracle happened. Jordan’s heart started beating again, a full quarter-hour following the accident. Three months and 12 days later, Jordan is recovering, stunning everybody. He returned home April 19, a little more than six weeks after the accident. “They thought I was going to be brain dead, they thought I was going to be a vegetable,” said Jordan, the owner of Jordan Tree Trimming. “I got a lot of exercising to do. They say it’s going to take a long time. Hopefully it comes sooner than later… Jordan and his crew were working at the corner of East Market and East Willow streets in Middleburg. It was only supposed to be two trees — a 15-minute job — but Jordan and the owner had discussed doing a third tree that was touching the high voltage lines. While up in the bucket truck at approximately 10:45 a.m., the electricity arced over to him like a bolt of lighting despite never coming in contact with the wire, Jordan said. It takes 50 milliamps of electricity to stop a human heart, which could be the electricity coursing through a 7.5-watt light bulb or Christmas lights, according to information provided by PPL at various safety events around the Valley…”

Eugene, Oregon, Register-Guard, June 14, 2018: Legal dispute over tall trees grows more divisive

After 15 months and a trial verdict, the legal dispute among neighbors in southwest Eugene over tall trees continues to grow in complexity and divisiveness. Following a 2½-day trial in February, Lane County Circuit Judge Mustafa Kasubhai ruled that two Eugene homeowners likely would need to trim or remove some of their tall trees as they unreasonably block the views of uphill neighbors. The ruling was a victory by the uphill neighbors and plaintiffs in the case, Frederick and Diana Koors, Carol Philips, Svend and Lois Toftemark, and John and Glenda Van Geem. Kasubhai concluded that the two downhill homeowners, Jeff Bauer and Tom Heyler, violated a property restriction in a covenant — unique in Eugene — on homes in the Hawkins Heights subdivision that prohibits owners from allowing trees and shrubbery to “unreasonably interfere with the view from other lots.” The neighborhood is south of West 18th Avenue and east of Bailey Hill Road. Residents Barbara West and Aurora Fiorintina also are defendants in the case. The judge ruled that the one tree on their rental property didn’t violate the view covenant, but they haven’t been dismissed as defendants. Kasubhai left it to the two sides and their attorneys to figure out how to bring Bauer and Heyler in compliance with the restriction on view-limiting trees…

Salisbury, North Carolina, Post, June 15, 2018: How to hire a qualified tree care professional

Have you ever asked yourself, “Who can I call if I need tree work done on my property?” “How can I be sure that the person I call is going to provide the best quality service at a fair price?” Trees provide beauty, shade and clean air, among other benefits and add real value to your property. If two people show up on your doorstep after a storm and tell you that your trees need work, how can you be sure they are legitimate? There are many factors that will determine a good choice. It may depend on what kind of tree work you need. Do you need pruning, pest control or possibly removal? Is the tree close to people, structures or cars or is it clear of obstacles? If your tree is in a local historic district you may need approval. Is the company insured and is the insurance sufficient enough to cover accidents? Do you feel comfortable with this company working for you? It’s the same as when you have a car accident — it’s best to get a number of quotes for the work. Ask for references of work completed, ask if the company has International Society of Arboriculture (ISA) Certified Arborists on staff or any other professional qualifications and ask for a copy of these documents…

Akron, Ohio, West Side Leader, June 14, 2018: Wilt disease threatens oak trees

Oak wilt is a serious and often deadly vascular disease of oaks. The fungal pathogen, Ceratocystis fagacearum, is believed to be native to the United States and has been reported throughout the Midwest and Texas, including Ohio. Oaks in the red oak group, including black oak, northern red oak, northern pin oak and others with pointed leaf edges, are most easily infected by this disease. Oaks in the white oak group, including white oak, swamp white oak, bur oak and others with rounded leaf edges, are less susceptible. Signs of the disease include leaves of oak trees usually beginning to wither in the upper canopy, producing “flags.” Flags are whole branches or crown portions turning red-brown. Leaves of red oaks typically show yellowing and browning of the leaf margins. To properly manage oak wilt, it is essential to understand its life cycle. The pathogen spreads from diseased to healthy trees in two ways: above ground and underground. The above ground disease is spread mainly by sap-feeding beetles known as picnic beetles (Coleoptera: Nitidulidae) on fresh pruning cuts…

Fort Smith, Arkansas, Times-Record, June 14, 2018: Fort Smith committee talks existing tree preservation

An effort is underway to improve tree care in Fort Smith. The tree committee of the Fort Smith Parks and Recreation Commission on Wednesday approved a motion to invite the staff of Fort Smith Development Services to come to a future meeting of the commission. Parks Commissioner Lacey Jennen, said Fort Smith has been a Tree City, a member of Tree City USA, for about 12 years. One of the requirements for a Tree City is having a tree ordinance. Fort Smith has a tree ordinance, but it only pertains to the city parks. “It is not anything that affects anything else within the city, new developments, residential or commercial or industrial,” Jennen said. “It doesn’t affect anything like that, just within our parks, and of course, our parks do an excellent job of doing the best that they can for tree care.” Jennen said she thought, to be in line with other cities in the state and elsewhere, the committee needed to further discuss possible options to enhance better tree care, to consider the trees in Fort Smith as an integral part of its infrastructure…

Evansville, Indiana , Courier & Press, June 13, 2018: Does Newburgh need to chop down its tree canopy? An arborist weighs in

After hearing public outcry over their decision to remove the tree canopy near the entrance of downtown Newburgh, town leaders have consulted an arborist. The arborist’s findings are good news to those who want to see the canopy remain. “There is no reason, in my professional opinion, to remove the entire canopy,” said Larry Caplan, owner of Maple Grove Tree Appraisals. But that doesn’t mean the canopy can stay the way it is, he added. There are several trees that are already dead and should be removed immediately, he said. And there are places where the canopy’s limbs hang low enough that passing semi trucks and buses hit them. “It will need some corrective pruning to remove the hazards,” Caplan said. “But I see no reason why they can’t keep the tree canopy.” The town leadership was concerned that because the canopy comprised volunteer trees that were not purposefully planted, they may have weaker roots or shorter lifespans, said Town Manager Christy Powell. But Caplan said this is not true. “Just because a tree started from seed doesn’t make it any more dangerous than those that were planted,” Caplan said. “They’re all wild trees, but if you look at a forest those are all wild trees, too…”

Moultrie, South Carolina, News, June 13, 2018: SCE&G to perform tree trimming in Mount Pleasant this week

South Carolina Electric and Gas (SCE&G) will be pruning trees in Mount Pleasant beginning Thursday, June 14, as part of its five-year cycle to maintain public safety and electric system reliability. SCE&G will conduct aerial trimming along transmission right-of-way within the next two weeks. Most of the work will occur near Laurel Hill County Park, a few islands off the Wando River, and possibly a remote section in the back of the Snowden Community. “Tree trimming is a key factor in the overall safety and resiliency of our system,” said SCE&G Forester Mark Branham. “Residents in the area may see helicopters at low altitudes near our poles and lines while this critical work is being completed.” The Public Service Commission of South Carolina recognizes the importance of properly maintaining vegetation around power lines and requires that such maintenance be performed. Vegetation, including trees, brush and vines, can threaten the safety of residents and of SCE&G crews if they grow too close to power lines. Vegetation also causes power outages and limits SCE&G’s access to its lines to make necessary repairs. SCE&G follows the American National Standard for Tree Care Operations (ANSI A300) for tree trimming—supported by arborists and other tree care experts. This method helps direct future growth away from power lines while leaving remaining limbs intact. It is a standard supported by the International Society of Arboriculture and has been adopted by the American National Standards Institute (ANSI). SCE&G has certified arborists on staff to advise its contractors on how best to utilize ANSI A300 trimming. Proper trimming also minimizes the scale and duration of outages caused by storms…

Bangshift.com, June 13, 2018: Hate trees? The Galotrax 800 Heavy Forestry Mulcher is just what your appetite for destruction ordered

If you stare out your windows and look at the trees with contempt, wishing you could just show them all who’s boss, we’ve got your golden ticket right here, Charlie. This is a Galotrax 800 forestry mulcher and at the time of this video a couple of years ago it was the world’s heaviest machine of this type. The rotating drum absolutely mangles everything in its path. That path is intended to be filled with trees that need to be cleared but if you had a VW, a small building, or perhaps an invading army, it would reduce the effectiveness of those things about as well as it stops trees from being trees. Land clearing is still a huge business. As tightly packed as we are in the large cities of this country, there are still vast swaths of property that are privately owned and people are building on in the countryside. Needs to clear a one mile driveway into your new dream home building site? You can hire loggers to come in, fell the trees, pull the logs out and leave you stumps to bulldoze or you can hire one of these style rigs that knocks over the trees as it is vaporizing them and chews the laid over trunk and branches to dust when it is done. The biggest of these guys is a 57,000lb, 765hp beast that likely looks just like the one you will see in this video

Davis, California, Enterprise, June 13, 2018: Here’s how to care for trees during the summer

Ready or not, the summer months are upon us and that means dry and hot weather. This not only affects us, but also the trees planted at our homes and in our community. The City’s Urban Forestry Division works hard to ensure our local tree canopy stays healthy, managing more than 16,000 trees. However, we can’t do it alone. Proper and sufficient watering of trees is vital to the health of our tree canopy. Is your tree still young and staked? If so, give the tree 10 gallons of water once a week. This can be easily done with a 5-gallon bucket or a hose. Once the roots are established and staking is no longer needed, weekly water is no longer necessary. Is your tree mature? Supplemental water is only needed once a month during hot and dry weather, twice a month during prolonged heat waves. Drip or flood irrigation over the critical root zone is best. Avoid overhead spray, if possible. If overhead spray is the only option, do not allow water to spray the tree trunk…

Looking for an older news story we featured on this page? Check our Prior News Links page.

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Case of the Day – Thursday, June 21, 2018

THE STIG

The Stig

Jim and Cindy Muncie found oil on their land.

Sadly, this was not a cause for champagne. The oil was #2 heating oil, a thousand gallons of it that had come spilling down the hill to flood their house. It was a mess.

The estate of the deceased woman whose oil tank had ruptured settled a federal court suit for $60,000, the restoration amount the Muncies figured it would take to clean up the slick. But as soon as they got the $60,000, the Muncies – deciding that cleanup compensation just wasn’t enough – sued the estate in state court for “stigma damages.”

Stigma damages, which I caution Top Gear fans has nothing to do with The Stig, are what they sound like. Remember how you felt when you learned that your childhood hero Captain Kangaroo did not fight beside Lee Marvin in the Battle of Iwo Jima? And that he was not really a captain and had never been a kangaroo? After that, there was a stigma attached to ol’ Cap that even Dancing Bear could not erase.  

Properties can be like that. Considering buying Yellowstone Park from a federal government that’s a little strapped for cash to pay Medicare and Social Security for us baby boomers? How much you’re willing to shell out for a national treasure might be affected by knowing that you’re standing in the caldera of the one of the biggest volcanoes on earth. On a smaller scale, a buyer might hesitate to write a check knowing that his or her prospective home had been steeped in hydrocarbons, even if there was no tangible evidence that the mishap had ever occurred.

We recently focused on restoration costs being awarded where those costs exceeded the reduction of value suffered because of a trespass and subsequent damage. Today’s case is the obverse of that coin, where the restoration costs may not be quite enough to fully pay for the loss suffered, a loss due to the “stigma” attached to the property because of the damage.

Muncie v. Wiesemann, Case No. 2017-SC-000235-DG (Supreme Court, Kentucky, June 14, 2018). A faulty underground home heating oil tank on an unoccupied property cracked open one cold December day, spilling 1,000 gallons of fuel oil. The oil flowed downhill, flooding the nearby residence of Cindy and Jim Muncie.

Although Patricia Wiesemann, who was handling the affairs of the estate that owned the unoccupied property, hired contractors to remove the heating oil and prevent further contamination, the leaking continued to damage Jim and Cindy’s place. The contamination caused the Kentucky Environmental Response Branch to declare an environmental emergency, implementing emergency procedures to “limit any human health or environmental impacts” at the Muncie residence.

Litigation ensued. In September 2013, the parties entered into a partial settlement. The settlement allocated $60,000 to the Muncies for restoration costs, intended to remedy actual damages to their property. In return, the Muncies agreed to dismiss all claims against Wiesemann and the Estate, except for a few reserved claims. Prominently, the partial settlement reserved “claims by the Muncies asserting the diminution of the value of their real estate due to the stigma resulting from the contamination…”

Stigma damages, as the name implies, are damages suffered from diminished value to property caused by a negative perception of a site, and call for compensation for the “stigma” to satisfy the fundamental concept that an injured party must be made whole. A perception of harm may be all that is needed to support an award of stigma damages. Such damages are intended to compensate for loss to the property’s market value resulting from the long-term negative perception of the property in excess of any recovery obtained for the temporary injury itself. Were this residual loss due to stigma not compensated, a plaintiff’s property would be permanently deprived of significant value without compensation.

A month after signing the settlement, the Muncies sued Pat in state court for negligence, trespass, and permanent nuisance. Pat filed a motion for summary judgment, arguing that the partial settlement barred the state action because the Muncies were fully paid for the actual damages the contamination caused to their property. She claimed that as a matter of law stigma damages can only be recovered when paired with an actual damages award.

The trial court said while stigma damages can be considered as part of restoration damages – the cost to repair the property – stigma damages cannot be awarded separate from restoration damages. Because the Muncies settled their restoration claim in the partial settlement agreement, the trial court held, no further claim existed. The Muncies’ claim for stigma damages was dismissed.

The Muncies appealed.

Held: Stigma damages can be awarded in Kentucky, and that award can be separate from restoration damages.

Pat complained that because the $60,000 restoration payment was accepted by the Muncies in the partial settlement agreement, they could not now separately seek stigma damages for the diminution in value of their property. To do otherwise would result in a “double recovery” for the Muncies.

The Supreme Court disagreed. In order to recover stigma damages, it held, plaintiffs must have suffered actual property damage. If injured parties receive repair costs that make them whole, then they cannot recover stigma damages that would compensate them above the diminution in their property’s value. But if restoration damages for repair costs is insufficient to make the injured party whole, then a recovery for stigma damages up to the monetary value of the diminution may be proper.

In other words, the Court said, damages recoverable for an actual injury to real property are equal to the sum of the costs of repair and the difference in fair market value of the property before the injury and after it has been repaired. If there is a difference in fair market value after the physical injury has been repaired, then that is the appropriate measure of stigma damages.

Stigma damages measure the amount by which a real property’s value is diminished in excess of repair costs. Here, once the oil was removed from the Muncies’ property and the environmental response team departed, stigma was what remained, and it – by its nature – it cannot be repaired.

“Unquestionably,” the Court presciently ruled, “the devil is in the details for these types of cases. We can only provide broad principles of law. The method for the computation of damages is easily stated but can be difficult to understand. They can also be difficult to prove.” However, when property is damaged by trespass, the degree of the damage is determined at the moment such injury is completed. The recovery shall be the difference in value of the property before the injury occurred, and the value immediately after it is completed. The after-value shall take into account stigma damages, if any. Damages will also include the cost of any repair or remediation.”

Because there was no evidence taken on the stigma damage, if any, suffered by the Muncies, the Supreme Court of Kentucky sent the case back for a factual determination as to whether they were fully compensated for the diminution in fair market value of their property by the $60,000 partial settlement for repair.

– Tom Root

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Case of the Day – Wednesday, June 20, 2018

ASSUMPTION OF RISK

blamagame170112Today we have yet another cautionary tale from the annals of “I got hurt, so I need someone to sue.”

Dan was a healthy, 26-year old recreational football league kind of guy. He was playing flag football with some buddies in the Dome Football League, using an indoor facility owned by the Town of Tonawanda. Of course, you need to mark the boundaries of the football field, and — necessity being the mother of invention — someone used a softball glove as a marker.

Dan stepped on the glove during a moment of football derring-do, and he was injured. So of course, he threw a yellow hankie at the Football League and the Town. The Town and League threw their own red flags, asking the booth, that is to say, the trial court, to review and throw out the case. The trial court refused to do so.

The appellate court, however, penalized Dan 15 yards and loss of down. When someone engages in an injury-prone event, like flag football, he or she (usually “he” in case of football, but there are exceptions), consents to the reasonably foreseeable consequences of the activity. There are always sidelines markers, the Court observed, and Dan didn’t show that using a softball mitt was created a danger any greater than using the usual cones or plastic flags employed by the League.

So what does this have to do with trees? When people engage in outdoor activities in which they come in contact with trees, roots, stumps and holes in the ground, it’s always a fair question whether they assumed the risk when they elected to ski, mountain bike, run a 5k or whatever they were doing at the time.

If you’re a Dan (or a Danielle), be prepared to prove that the hazard you confronted was something over and above what you could reasonably expect to encounter in the activity. If you’re playing football, expect to be hurt. You’re rarely be disappointed.

tfootball141126Gardner v. Town Of Tonawanda, 850 N.Y.S.2d 730 (N.Y.A.D. 4 Dept., 2008). Dan Gardner, a 26-year old flag football enthusiast, slipped and fell on a baseball glove that he and his buddies were using as a sideline marker during a recreational indoor flag football game organized by the Dome Football League and played in a facility owned by Town of Tonawanda. Dan was experienced in playing recreational flag football games on the indoor artificial turf field and he knew the sidelines of the field were marked with orange plastic cones and that the referee had discretion to use other types of markers on the sidelines as well. Dan said he was unaware that a baseball glove was being used as a sideline marker, but he didn’t have any evidence supporting his contention that the risk of slipping on the baseball glove was greater than the risk of slipping or tripping on the cones or plastic flags usually used as sideline markers. But that didn’t stop him from suing the Football League and the Town. The defendants moved for summary judgment, but the trial court denied it.

crayon170112

Maybe so, but the big crayon assumed the risk.

Held: Summary judgment was granted to the Town, and the case dismissed. The Court concluded that Dan assumed the risk of the injuries that he sustained because the use of the baseball glove as a sideline marker didn’t create a dangerous condition over and above the usual dangers that are inherent in recreational flag football.

The doctrine of primary assumption of the risk generally constitutes a complete defense to an action to recover damages for personal injuries and applies to the voluntary participation in sporting activities. As a general rule, the Court said, participants properly may be held to have consented by their participation to those injury-causing events which are known, apparent or reasonably foreseeable consequences of their participation. Such injury-causing events include the risks that are inherent in and arise out of the nature of the sport generally and flow from such participation.

– Tom Root

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Case of the Day – Tuesday, June 19, 2018

TRESPASS, GEORGIA STYLE

fromgvt170111When the Upper Oconee Water Authority started building a new reservoir, its consulting engineer needed to use the Walls’ property to let its subcontractor have access to a drainage pipe. “Just a little easement, ma’am,” the engineering firm told Mrs. Walls. “And we promise not to cut down any trees.”

Of course you promise not to. And we believe you. Right?

You guessed it — the contractor promptly started cutting down the Walls’ trees. Then – adding insult to injury – after the contractor was done with the drainage pipe, the Walls’ property flooded. After repeated complaints to the engineer got no satisfaction, the Walls sued.

The trial court threw the case out without a trial. But on appeal, the Walls won back their trees (or at least their right to fight for them at trial).

Initially, it didn’t sound like a win. The appellate court began by ruling that the Walls failed to prove that the engineer and its contractors caused the pooling water. Instead, the Walls only proved the water appeared after the contractors’ work, not that the contractors’ work caused the standing water. The Walls had engaged in the classic logic fallacy of post hoc, ergo propter hoc. Just because the water followed the contractors doesn’t mean the water was caused by the contractors.

Classic "post hoc ergo propter hoc" reasoning ... but then, he's a dog. What can you expect?

Classic “post hoc ergo propter hoc” reasoning … but then, he’s a dog. What can you expect?

But as for the trees, the Court said, the Walls had a right under Georgia law to be secure in their property. The engineers were responsible for supervising their contractors, given that the engineering firm’s representative told Mrs. Walls that he would stop the tree cutting. A jury could have found that the engineering firm was liable for the damages arising from the trespass. Therefore, the Court sent the case back for trial.

Walls v. Moreland Altobelli Associates, Inc., 290 Ga.App. 199 (Ga.App. 2008) The Walls live on a large piece of land along Highway 330 in Jackson County. In 1999, the Upper Oconee Basin Water Authority bought the land across the highway from the Walls’ residence to build a water reservoir. The Water Authority hired Moreland, a civil engineering firm, to manage the reservoir construction.

Hank Collins, a construction manager with Moreland, began overseeing several construction projects to be completed by Maxey Brothers Construction. One of those involved replacing a drainage pipe under Highway 330 and re-grading the area to allow proper drainage from the Walls’ property to the reservoir side of the road. Before the project began, a Moreland representative asked the Walls to grant the Water Authority a temporary easement along the front of their property to permit workers to complete the drainage work. The representative assured Mrs. Walls that the construction would not disturb any trees on the property and would only minimally affect the land. Based on these assurances, Mrs. Walls signed the easement.

Imagine the Walls' surprise ...

Imagine the Walls’ surprise … could it be that the contractor was somehow a little less than candid?

But when Maxey Brothers began work on the Walls’ property, the contractor promptly started cutting down trees. Mrs. Walls immediately called Collins, who apologized, stating that the trees should not have been cut and that “he would stop it immediately.” Collins also promised that Moreland would replace or pay for the cut trees. Although Mrs. Walls discussed the trees with Collins several times over the next year, Moreland did not pay for the tree loss. In the meantime, the Walls noticed that during heavy rains, standing water would accumulate on their property near the opening to the new drainpipe. The Walls had never experienced standing water before the construction. Mrs. Walls wrote to Moreland about both the water and tree removal, but Moreland did not remedy her concerns. Instead, it referred her complaints to the Water Authority, which investigated the situation. The Water Authority offered to repair the drainage area along the Walls’ property and pay $100 to settle the tree claim.

The Walls sued Moreland for trespass and nuisance, alleging that a work crew supervised by Moreland cut trees on their property without permission, improperly installed the drainpipe, and created a standing water nuisance. The Walls sought compensatory and punitive damages and attorney fees. The trial court tossed the case out. The Walls appealed.

Held: The Court of Appeals split the case, upholding the trial court on dismissing the nuisance claim but reversing on the damage to trees claim. As for the standing water claim, the Walls offered no evidence that the work overseen by Moreland caused the water problem. To be sure, the Walls said they hadn’t had the problem before the construction, but the mere fact that one event chronologically follows another is alone insufficient to establish a causal relation between them.

Moreland also produced evidence that following the project’s completion, a utility company laid underground cable in the area and Jackson County installed a water line along the road, both of which altered the grade. And Collins testified that Mrs. Walls first complained about the water problem after the utility company worked in the area. Because the Walls failed to link the work performed by Maxey Brothers and Moreland to the drainage problem, they did not establish causation.

AidAbet140415However, the trial court shouldn’t have booted the Walls’ claim for trespass based on the tree cutting. Georgia statutes provides that the right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie. Cutting trees on property owned by another, the Court say, may result in a trespass under OGCA § 51-9-1. The evidence showed that the Walls objected to any tree cutting, and a Moreland representative assured Mrs. Walls that the work would not affect any trees. Mrs. Walls also testified that when she confronted Collins about the tree cutting, he stated that trees should not have been cut. Under these circumstances, a jury could find that the tree cutting exceeded the permitted entry onto the Walls’ property.

While Maxey Brothers actually felled the trees committed the trespass, Moreland was responsible for overseeing Maxey Brothers’ work and ensuring that it complied with the project plans, which, according to at least some evidence, did not involve tree cutting. Moreover, Collins knew that Maxey Brothers planned to cut trees on the Walls’ property, but did nothing to stop the work.

Based on this evidence, the Court said, a jury could find Moreland liable for trespass. One who aids, abets, or incites, or encourages or directs, by conduct or words, in the perpetration of a trespass is liable equally with actual trespassers. This is an important expansion of liability for trespass. Often the trespasser is a mere functionary. The party who put the wheels in motion to cause the trespass – and, incidentally, who has the deep pockets – is the aider or abettor. Being able to reach such a defendant is crucial.

– Tom Root

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Case of the Day – Monday, June 18, 2018

I WANT MY TREES BACK…

A long, long time ago, before I was trained to think like a lawyer, I was a neophyte law student and still thinking like a layman, that is to say, “normally.” New law students are first exposed to contract law. Digging into Basic Contract Lawthat boring-looking brown tome that was chock-a-block with fascinating cases, I very quickly ran into Peevyhouse v. Garland Coal Co. (on the second day of class, I recall).

Farmer Peevyhouse signed a deal with Garland Coal Co., to strip mine his land. The land was hilly, and Farmer P thought the strip mining was the ideal time to fix that. So he got Garland Coal to agree the level the land when it was done strip mining.

Garland Coal left a lot of hills behind…

When the coal was gone, so was Garland Coal, leaving the farm just as hilly as it was before the mining. Farmer Peevyhouse sued for breach of contract. He won, of course, but when it came to figuring damages, the court noted that the diminution in value of the farm because it was still hilly (as opposed to flat) was $5,000. But if Garland Coal were required to come back to keep its promise to level the place, Garland Coal would have to spend $25,000 to pull it off. The higher award would constitute economic waste, the court held, and the court was not about to be wasteful with the coal company’s money.

Back then, as a tyro-at-law, I couldn’t understand the decision. Who cared if the damages were wasteful, or if the market value of the farm was only slightly less? To me, Farmer Peevyhouse made a deal, Garland Coal agreed to the deal, and – inasmuch as Garland got all the coal it bargained for – Farmer P should get what he bargained for as well, economics be damned. To me, the economics did not matter nearly as much as did the reasonable expectations of the parties.

Now, with many years of practice under my belt, I tend to think like a lawyer. But Peevyhouse still makes no sense to me. The farmer would not have let Garland Coal strip his land without the promise to level the hills. So the promise was material to the farmer. Why reward Garland Coal simply because Mr. Peevyhouse’s legitimate desires might not make great economic sense?

In The Princess Bride, Inigo Montoya ends his years-long quest to avenge his father’s untimely death in a fight to the death with the six-fingered man. At last, Montoya has the tip of his sword at Count Rugan’s throat:

Inigo Montoya:   Offer me money.
Count Rugen:     Yes!
Inigo Montoya:   Power, too, promise me that.
Count Rugen:     All that I have and more. Please…
Inigo Montoya:   Offer me anything I ask for.
Count Rugen:     Anything you want…
[Rugen knocks Inigo’s sword aside and lunges. But Inigo traps his arm and aims his sword at Rugen’s stomach]
Inigo Montoya:   I want my father back, you son of a bitch!

That, on a less dramatic level, was Paul Harder’s complaint. As we read in last Friday’s installment on this case, while Paul was gone from Alaska, Joel and Darlene Wiersum clear-cut his land without permission in order to improve their view. In seeking money to restore his property – a sum that came to something like four times the fair market value of his land before the clear-cutting – Paul told the jury he “didn’t want money,” but rather he only wanted his trees back. Paul  therefore asked for damages to restore the property by replanting the forested area.

Count Rugen could give Inigo money and power and land. But he could not give Inigo what he wanted the most, a desire that was heartfelt if utterly infeasible (and rather uneconomical). In that regard, Inigo Montoya and Farmer Peevyhouse had something in common. The question is whether they both had something in common with Paul Harder. We’ll find that out now…

Wiersum v. Harder, 316 P.3d 557 (Alaska, 2013). Paul Harder owned a pretty nice piece of Alaskan wilderness near Kodiak. He built a cabin on it and lived happily for quite a stretch. But when wanderlust set in, he subdivided the land, sold the plot with the cabin on it to his sister Lisa and kept one for himself, and left for a 15-year sojourn in warmer climes.

Paul lived in Hawaii, but returned to visit his plot of land occasionally, and enjoy the hunting, fishing and recreation opportunities it afforded.

About nine years after Paul went south, Joel and Darlene Wiersum bought some land at the top of a hill, adjacent to the Harder tracts. Looking down the hill, they could see Lisa’s cabin several hundred yards below, and incorrectly assumed she owned it all. One day, Darlene called Lisa at work, and asked whether they could cut down some trees on Lisa’s property that Darlene thought might “come down with the wind” and hit their home. Lisa gave them permission, because she thought the removal of some trees would “let a little more light in” to the woods.

Darlene and Joel did not just thin out a few hazard trees. Instead, they clear-cut the entire hill, out to almost 400 feet beyond their property line. When Lisa returned home to find that bare naked hillside, she told the Wiersums not to cut any more trees.

When Paul returned a couple of years later, he discovered the clear-cut hillside (which really was on his plot, not that of his sister), and promptly sued the Wiersums for timber trespass. A jury him $161,000 in compensatory restoration damages, which was trebled under Alaska statute AS 09.45.730.

The Wiersums appealed.

Held: The jury’s restoration damage award was reversed and sent back for retrial.

A party who is injured by an invasion of his or her property that does not totally destroy its value may choose as damages either the loss in property value or “reasonable restoration costs.” To determine whether an award of restoration costs is appropriate, Alaska follows the Restatement (Second) of Torts § 929. The Restatement says if a plaintiff is entitled to damages for harm to land resulting from a trespass that does not amount to a total destruction of value, the damages include either (1) the difference between the value of the land before the harm and the value after the harm, or – if the plaintiff so chooses – the cost of restoration that may be reasonably incurred. Damages are measured by the difference between the value of the land before and after the harm only if the cost of restoring the land to its original condition is disproportionate to the loss in the value of the land caused by the trespass “unless there is a reason personal to the owner for restoring the original condition.”

That’s the law for you. A layman untrained in legal niceties would say “a personal reason,” but the legal phrase is a “reason personal.” The distinction is intended to convince you that the law must be complex, and thus you ought to pay that “bill inflated” your lawyer hands you without whimper.

A “reason personal,” the Court said, is a reason peculiar or special to the owner, where “the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.” For example, the Court in the past had found a “reason personal” where the damaged property was used by the plaintiff as “a showplace in connection with his nursery business” and, in another case, where the property enjoyed “unique views… abundant trees, and the unusual juxtaposition of the trees, the cabin, and the views,” and its owners, who planned to retire on the property, had testified that “other properties in the area were not comparable.”

To find that a plaintiff had a “reason personal” for restoration, where those costs were much higher than the loss of value to the land, a court should look for evidence showing “a reasonable likelihood that the trees would be restored.”

Paul showed at trial that he held on to the Monashka property for 34 years, and that he intended to build a house and live on it once his son graduated from college because “it’s a very beautiful piece of property.” A real estate agent testified that he approached Paul about selling the land, but Paul had refused. Paul testified he “didn’t want money,” but rather he only “wanted his trees back” and was asking for damages to restore the property by replanting the forested area. He said he enjoyed spending time with his children on the property, but that after the trees were cut down, the property “looked totally different,” full of salmonberry bushes… whereas it was just like thick moss before,” and he reported that he had not heard any ravens there since the trees were cut.

The Wiersums argued the award of restoration damages was objectively unreasonable because the total market value of Paul’s property before the timber trespass was only $40,000. A damage award of $161,000, they contended, was disproportionate to the property’s diminution. Besides, peripatetic Paul’s “minimal use of and contribution to the land’s special value would at most justify a marginal award of restoration costs.”

The Court noted it had found in the nursery case that restoration damages were not “grossly disproportionate” where the owner had paid $4,000 per acre for the property, but the jury awarded $12,550 for restoring a quarter-acre of land. Because the principal value of the property stemmed from the creek running through it, and the owner intended to use the property to create “a showplace in connection with his nursery business,” the cost of restoration, although disproportionate to value, was reasonable. Nevertheless, the Court had previously cautioned that “restoration costs exceeding diminished market value may be awarded only to the extent such added costs are objectively reasonable in light of the ‘reason personal’ and in light of the diminution in value.”

The “reason personal” may be a non-commercial one based on the property’s uniqueness, but the restoration award must be limited to the cost that has been or may be reasonably incurred.  The purpose for this rule, the Court said, is “to reduce the economic waste that occurs when a party incurs repair costs in excess of the diminished value of the property.” The application of this principle “must ensure that an award of restoration damages does not confer a windfall upon a landowner.” Where proposed replacement costs are excessive in relation to the damage caused by the trespass, “the achievement of a reasonable approximation of the land’s former condition may involve something less than substantially identical restoration… It may be more appropriate to award costs for the planting of saplings, or a few mature trees, or underbrush to prevent erosion and achieve a lesser but, over time, reasonable aesthetic restoration.”

Applying these principles to Paul’s denuded hillside, the Court held that the award of $161,000 in restoration costs was objectively unreasonable in light of the $40,000 pre-trespass total value of the property. Paul’s “reason personal” for restoration, and the absence of any proof of the extent of the decrease in the value of his property, made it more appropriate to award costs “for the planting of saplings or a few mature trees or underbrush to prevent erosion and achieve a lesser but, over time, reasonable aesthetic restoration.” The Court’s conclusion was based on its determination that the “property could be reasonably restored by replacing at least some of the mature Sitka spruce with saplings or smaller trees and that because the property’s large trees were growing in a forested environment where the root zones were intertwined” it was not possible to ” replace that exact tree in that environment.”

The jury must base its award on a finding that the restoration costs were objectively reasonable in light of the value of Paul’s land, the loss of value due to the Wiersums’ trespass, and his “reason personal.” Here, the Court said, no reasonable juror would award restoration costs totaling more than four times the full fair market value of the property before the trespass. Thus, the Court sent the case back for a new trial on damages.

And what’s my take on this case, based upon my decades of thinking like a lawyer? I’m with Inigo Montoya and Paul Harder: “I want my trees back, you son-of-a-bitch,” and economics be damned. This is a bad decision.

– Tom Root

TNLBGray

Case of the Day – Friday, June 15, 2018

THE DEVIL MADE ME DO IT

You know the guy I’m talking about. Nothing is ever his fault. The blame always lies with someone else. Think of John Belushi in the Blues Brothers, groveling at the feet of an assault rifle-toting Carrie Fisher, explaining all the reasons he had left her standing at the altar and ending with the plaintive wail, “It’s not my fault!”

Today’s defendants have something in common with the pathetic Jake Blue. For reasons unexplained (but I suspect, given this occurred on breathtaking Kodiak Island, Alaska, that it was intended to enhance their view), Joel and Darlene wanted to remove some trees on the downslope of the hill they lived on, out to about 400 feet. Most of the trees – beautiful 100-foot plus Sitka spruces – were not on their property. A minor detail.

Darlene called her neighbor, Lisa, and asked whether she and her husband could cut down a few trees on Lisa’s land, you know, just trees that might pose a hazard if they were to fall in a windstorm across the property line and strike Joel and Darlene’s cabin. Lisa was at work when Darlene called her, and she didn’t really have a well-formed idea of what her neighbors had in mind. This was understandable, given that Darlene misled Lisa into believing they were talking about a few sickly boundary trees. Lisa, thinking that thinning the woods there would probably let more light in and spur growth, said that she did not mind at all.

When Lisa got home that evening, she discovered a denuded hill, with trees clear-cut from the boundary line toward her cabin for almost 400 feet. Hyperion itself couldn’t have fallen from that point and hit Joel and Darlene’s. Lisa was furious, and called Darlene (who had the good sense not to answer the phone). Lisa told Darlene’s voice mail that there would be no more tree cutting.

Now for the fly in the ointment: Lisa had always thought that her land extended all the way from her cabin to Joel and Darlene’s property line. But it did not. Her brother, Paul, who had subdivided a larger parcel years before and sold Lisa one of the plots – the one with his old cabin on it – had reserved for himself a plot between Lisa’s and Joel and Darlene’s place. After selling in 1992, Paul had left for an extended sojourn (well over a decade) in Washington state and Hawaii. When he finally came home from wandering the Lower 48, some two years after the tree-cutting incident, he was not pleased. Paul demanded of Lisa to tell him who had cut all of his trees. That was when Lisa found out that much of the property between her cabin and the Joel and Darlene’s property line belonged to Paul.

Naturally, Paul went after Joel and Darlene. Who wouldn’t? But they sniveled, “It’s not our fault! Lisa told us we could cut your trees!” Well, they did not exactly snivel, not audibly, but they promptly brought Lisa into the lawsuit as a third-party defendant. They maintained that because Lisa gave them permission to cut some trees without telling them that some of the intermediate land between their property and her cabin was Paul’s (and that they could not cut his trees), she was negligent. Joel and Darlene whined that if Paul had been damaged, Lisa owed Paul some of those damages. They argued Lisa had breached her duty to inform them, that she had made misrepresentations to them, and that she had breached her duty to Paul as well as a general duty she had to her neighbors.

The Alaska Supreme Court cut through Joel and Darlene’s arguments like a hot knife through butter. Lisa got nothing out of the tree-cutting episode, and she thus owed nobody nuthin’. Joel and Darlene had no right to rely on Lisa’s permission without checking the boundaries themselves. The Court’s finding might have been a blessing for the defendants, too, because it avoided the sticky question of whether – given Darlene’s obvious fraudulent misrepresentation to Lisa as to their tree-cutting – Lisa could possibly be liable at all. After all, if Darlene asked Lisa, “Hey, mind if we clear-cut 400 feet in the direction of your shanty so that we can improve our magnificent view?”, we suspect Lisa would not have been so forthcoming with permission.

Clearing up the issue of Lisa’s liability let the Alaska Supreme Court get to the meat of the case, which was the amount of damages owed Paul. We’ll take up that part of the holding on Monday.

Wiersum v. Harder, 316 P.3d 557 (Supreme Court of Alaska, 2013). Paul Harder owned a pretty nice piece of Alaskan wilderness near Kodiak. He built a cabin on it and lived happily for quite a stretch. But when wanderlust set in back in 1992, he subdivided the land, sold the plot with the cabin on it to his sister Lisa and kept one for himself, and set off for parts unknown.

Not completely unknown, however. Paul spent the next 15 years living in Washington state and Hawaii, but he returned every so often to visit his plot of land, and enjoy the hunting, fishing and recreation opportunities it afforded. It was, after all, overlooking Monashka Bay on Kodiak Island – it would be hard to stay away from home when it was as beautiful and wild as that.

About nine years after Paul went south, Joel and Darlene Wiersum bought some land at the top of a hill, adjacent to the Harder tracts. Looking down the hill, they could see Lisa’s cabin several hundred yards below, and they assumed she owned everything between their home and hers. One day, Darlene called Lisa at work, and asked whether they could cut down some trees on Lisa’s property that Darlene thought might “come down with the wind” and fall on their land, damaging their home. Lisa readily gave them permission, because she thought the removal of some trees might “let a little more light in.”

Darlene was not being exactly straight with Lisa. She and Joel never intended to thin out some hazard trees. Instead, they intended to clear-cut the entire hill, out to more than 300 feet beyond their property line. When Lisa returned home from work later that day, the deed had been done; she discovered that bare naked hillside. Upset by the number of trees that had been cut, Lisa immediately called the Wiersums and left a message instructing them not to cut any more trees.

Paul did not return to the Last Frontier for about two years. When he did, he discovered the clear-cut hillside. Paul asked Lisa who had cut the trees, and then explained to her that the trees had been on his plot, not hers. After that, he promptly sued the Wiersums for timber trespass.

The Wiersums, apparently a couple not lacking chutzpah (just look at the clear-cutting escapade), filed a third-party complaint blaming Lisa for the trespass. They sought to apportion fault onto Lisa, claiming that she had negligently misrepresented that she owned the property where the trees were cut when she gave them permission to remove trees from her property. The trial court granted Lisa’s summary judgment motion and dismissed the claim against her. The Wiersums and Paul went to trial, and a jury awarded Paul $161,000 in compensatory restoration damages, along with statutory treble damages.

Held: Lisa was not liable for the Wiersums’ trespass, but the case had to be sent back to the trial court, because the damages were excessive. Today, we’ll talk about Lisa’s “duty” to the Wiersums and her own brother. Monday we’ll take up damages.

The Wiersums contended that fault must be apportioned to Lisa because she was negligent when she failed to disclose to Darlene that she did not know exactly where her property lines were and that Harder also owned property in the area. In essence, their negligence claim was based on the theory that Lisa had negligently misrepresented or failed to disclose information to the Wiersums, and her negligence thus caused them to trespass on Paul’s property and remove his trees.

However, the Court held, negligent misrepresentation requires a showing that a party made a misrepresentation in the course of her business, profession, or employment, or in any other transaction in which she has a pecuniary interest.” Likewise, liability for failure to disclose information when there is an affirmative duty to do so occurs when someone “fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction.” Lisa had no financial interest in what the Wiersums did with their land, and thus owed them no duty under a theory of negligent misrepresentation or failure to disclose information when she had an affirmative duty to do so.

But did Lisa owe a duty to Paul? The Wiersums argue that Lisa owed a broad duty of care to her neighbors – both themselves and Harder – and is liable for any unreasonable risk of harm to them that stemmed from her own conduct. They support this assertion with references to the Restatement (Second) of Torts § 158 and § 165, and cite to case law from other states for the rule that a “landowner who intends to have timber cut on his land owes a duty to an adjoining landowner to ascertain the boundary line of the adjoining land with diligence and care.”

None of these arguments carried the day. The Court held that sections 158 and 165 of the Restatement (Second) of Torts were inapplicable here, because they applied only where the person intentionally causes a third person to enter land, that is, “commands or requests” a third person to enter the land of another. Lisa never commanded the Wiersums to do anything. Section 165 similarly provided no support for the Wiersums’ position, instead imposing liability where someone recklessly or negligently enters land in possession of another, or causes “a thing or third person so to enter,” and thereby harms the land. Comment (a) to this section indicated that the rule applies where “the conduct of the actor either… involve[s] an unreasonable risk of invading the possessor’s interest in his exclusive possession of the land, or… [is] caused by an abnormally dangerous activity carried on by the actor.” Lisa’s act of giving the Wiersums permission to cut trees on her own land did not present an unreasonable risk that the Wiersums would enter Paul’s land and cut his trees.

The Wiersums also argued that a Texas case held that landowners who intended to cut timber on their own land owed a duty to adjoining landowners to ascertain the boundary lines of the adjoining land. But Lisa did not seek out the Wiersums to remove trees from her land, nor did she affirmatively offer inaccurate information about her property boundaries. The Wiersums did not ask her for this information and, because this was not a business transaction, she was under no legal obligation to provide it. Thus, the Court said, she did not assume a duty to give accurate information to the Wiersums when they asked permission to remove her trees.

Finally, the Wiersums relied on Prosser and Keeton’s treatise on tort law for the rule that a landowner owes a broad duty “to cause no unreasonable risks of harm to others in the vicinity.” The Court was unimpressed. “Our prior decisions recognize that landowners have a duty to use due care to guard against unreasonable risks created by dangerous conditions existing on their property. We have also held that a landowner must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances. But we have never previously gone so far as to hold that a landowner has a broad duty to prevent the unreasonable risk of harm to her neighbors caused by third parties.”

Foreseeability of harm is the most important factor in whether Lisa had a duty to Paul, the Court said, and “there can be no duty where the harm is unforeseeable, but foreseeability alone is insufficient to establish a duty if the burden of taking care or the effect on society is too harsh.”

The foreseeability of harm to Paul resulting from Lisa’s conduct was low. Lisa made no active representation to the Wiersums to imply that the trees on the hillside near their property were hers and not Paul’s. She merely gave the Wiersums permission to cut trees on her own land. It was thus foreseeable that the Wiersums would cut trees on Lisa’s property, but it was not foreseeable that the they would remove 70 large trees from Paul’s hillside – some of which were located between 300 and 400 feet from their own land – “without conducting proper due diligence to identify the true property owner and then seeking that person’s permission. No person,” the Court said, “can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.”

– Tom Root

TNLBGray