Case of the Day – Friday, February 24, 2017


zhivago140623Cue the balalaikas for Lara’s Theme, one of the most memorable leitmotifs in movie history. Today’s victim was singing, all right, after Dr. Zhivago patched him up, but this Lara’s theme went something like “”An employee, no contractor am I; so my rehab, workers comp now must buy …”

We’re not quitting our day job to become lyricists, but Lara – that is, Jose Lara – seemed to himself, his customers and the Lord to be an independent contractor right up until the time he fell off a restaurant customer’s roof while trimming bushes. Only then, in a rewrite of history that would have made a Bolshevik blush, did Mr. Lara decide that he had been an employee all along, and thus was entitled to workers comp payments for the rest of his natural life.

Workers’ compensation covers employees, but not independent contractors, as an efficient and reasonable means of delivering benefits to employees injured on the job. It is intended to provide quick assistance to the injured and to free employers from costly and protracted litigation over claims. This is not to say that the system is intended to be an ATM for any worker with a claim. A claims board seeks to protect the system from bogus claims, and the employer ­– which is likely to see workers comp insurance premium take off like a skyrocket after a claim – have a lively interest in, as Rodney Dangerfield put it, keeping it honest.

In this case, both the claims board and the restaurant cried foul. It seemed Mr. Lara was in the business of doing odd jobs, and that the restaurant had hired him once, months before, to trim the bushes and perform light maintenance. The restaurant was hardly his only customer, and he arrived on the scene with his own tools. The owner told Mr. Lara what had to be done – the bushes trimmed – but left it to Lara to determine how best to do the job.

The workers comp board at first, rather inexplicably, held that Mr. Lara had been the restaurant’s employee, but the restaurant asked for reconsideration. Usually, seeking reconsideration is an exercise in futility. Few things in the known universe are as immovable as a judge who’s made up his or her mind. Asking a judge to rethink the matter and announce that he or she was wrong the first time around is like trying to teach a pig to sing – it wastes your time and ends up annoying the pig.

pigsing140623In this case, however, the board (maybe because it was not made up of real judges) revisited the issue and held that Mr. Lara was indeed an independent contractor. Mr. Lara’s lawyer promptly sought judicial review. We say his lawyer instead of Mr. Lara, because it isn’t at all clear the ingenuous injured workman was on board. In fact, he freely testified that he had a number of customers, that no one at the diner told him how to do his job, and that he didn’t consider himself an employee of the place.

It seems no one other than his lawyer did, either. On review, the court took as most important among the factors the fact that no one directed Mr. Lara in how to trim or when to trim. He wasn’t being paid hourly, but rather by the job. Everything about the relationship said “independent contractor.”

We start to sound drearisome, but how much easier it would have been for the restaurant if it had signed a simple agreement with Mr. Lara before he fell from the roof. It would have saved a mountain of litigation.

Lara v. Workers’ Compensation Appeals Board, 182 Cal.App.4th 393 (2010). Mr. Lara, a 62-year old man, suffered injury to his head, lower back, neck, right shoulder, arm, hand, and thumb when he fell from a roof on March 11, 2000, while pruning bushes for the diner. Lara filed a workers’ compensation claim against Metro Diner’s then sole shareholder, Scott Broffman, personally and against Metro Diner. The diner leases space inside a hotel. Lara fell from the hotel’s roof. At the hearing, Lara testified that he has been gardening, painting, pipe fixing, and doing graffiti removal for 25 years. His clients are people who either know him or who find him on the street corner. He charges by the hour, but sometimes he contracts for the entire day. He usually does the same type of work but for different people each day. He has no employees and does not work out of an office or advertise.

The restaurant manager’s wife Patricia arranged for Lara to do gardening work at Metro Diner on two occasions. The first time, Patricia, who was Lara’s dentist’s secretary, had asked Lara what kind of work he did. When he told her he gardened, she stated that her husband owned a diner. She gave him an address and told him to go early in the morning so his work would not make the restaurant’s tables dusty. Upon his arrival, Lara was asked to trim the bushes along the roofline. The second time he went to Metro Diner, March 11, 2000, was about a year later.

Lara was paid in cash by the hour for his services at Metro Diner the first time, but was not paid the second time because he did not complete the work after his fall and he never sent a bill. Metro Diner did not take taxes out of his pay; Lara pays his own taxes. Lara and Patricia did not discuss the number of hours he would work. Nor did they discuss the price until he was finished with the work. The first time, Patricia paid him $15. They did not discuss when he would provide services in the future, only that she would contact him when services were needed.

These things can happen ...

These things can happen …

On the second occasion about a year later, Patricia asked Lara to do the same job, i.e., trim the bushes along Metro Diner’s roofline. They did not discuss terms of employment, such as the number of hours, or the price he would be paid for the job. Lara had no plans to do any additional work after the second occasion, only that he would trim the bushes for Metro Diner when Patricia asked him to. Lara brought all the equipment he needed to do the job, including a trimmer, rake, a broom, and a blower, which tools he owns. He also brought a ladder that he borrowed from a friend. He arrived in his own truck. No one told him how to do his job “because he already knew how to do his job.” Patricia did not tell him to bring an assistant or how long the job would take. She did not tell him to arrive on Saturday at 7:00 a.m., just to go early because the diner opened between 7:30 and 8:00 a.m.

The Board that Lara was an independent contractor and thus not entitled to workers’ compensation benefits. Lara did not testify during trial that he was an employee of Metro Diner. Rather, he testified he handled his own taxes and contracted with numerous individuals to perform specific jobs. Also, the Board noted Lara’s statement in his civil action against the hotel, filed after his injury, that “I am self-employed as a gardener.” However, the Board recognized that the distinguishing characteristic of an employer is the power to control the details of the work and methods of performance. On that point, the Board found “no evidence that Metro had the power to control the details of [Lara’s] work in pruning the bushes or the method by which he performed that task.”

Lara appealed.

Held: Lara was an independent contractor. The Workers’ Compensation Act extends only to injuries suffered by an ’employee’ which arise out of and in the course of his ’employment. California law holds that an “independent contractor” is any person “who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”

The Court held that the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired….’; The existence of such right of control, and not the extent of its exercise, gives rise to the employer-employee relationship. Other secondary factors, derived largely from the Restatement Second of Agency, include, inter alia, “(1) whether or not the worker is engaged in a distinct occupation or an independently established business; (2) whether the worker or the principal supplies the tools or instrumentalities used in the work, other than tools and instrumentalities customarily supplied by employees; (3) the method of payment, whether by time or by the job; (4) whether the work is part of the regular business of the principal; (5) whether the worker has a substantial investment in the business other than personal services; (6) whether the worker hires employees to assist him.” Two additional factors are whether the parties believe they are creating the relationship of employer-employee; and the degree of permanence of the working relationship.

Applying the criteria, the Court found that Metro Diner did not possess the right of control and the factors do not otherwise weigh in favor of employee status. Lara was engaged to produce the result of trimming the bushes, the Court said. Neither party presented evidence that Metro Diner had the power to control the manner or means of accomplishing the pruning. The means and manner to accomplish the result of pruning were neither discussed nor were part of the agreement.

The Court observed that its conclusion that Lara was an independent contractor at the time of his injury is further supported by other criteria. “First, Lara performed this work as part of his own occupation as a gardener, which he had been doing independently for approximately 25 years. Not only did Lara have many clients, but Patricia did not ask him to perform any service other than pruning the bushes. Second, Lara supplied the equipment he used for the job. Such tools were not ones that a restaurant would have. Third, Lara had a substantial investment in his business such as his equipment. Although Lara does not advertise, he has several different clients who either pick him up from the street corner or who telephone him to perform specific jobs. Fourth, he was not hired by the day or hour, or even on a regular basis. Payment was only discussed after the work was complete. Sometimes Lara charged by the hour and sometimes by the job and so Lara was paid on a job-by-job basis, with no obligation on the part of either Metro Diner or Lara for work in the future. Taxes were not taken out of the money he was paid. Lara estimates and pays his own taxes. Fifth, no date for Lara’s return was specified after the first time he pruned bushes for Metro Diner. Lara understood only that he would be contacted when his services were needed, with the result that he worked for a circumscribed period of time with no permanence whatsoever in his working relationship with Metro Diner. Thus, Lara’s profit or loss depended on his scheduling, the time taken to perform the services, and his investment in tools and equipment.

The Court noted that the criteria were not to be applied mechanically as separate tests, but “are intertwined and their weight depends often on particular combinations … [T]he process of distinguishing employees from independent contractors is fact specific and qualitative rather than quantitative.” Although the workers’; compensation statutes are to be construed liberally in favor of awarding compensation, the Court said, “no amount of liberal construction can change the balance of evidence here. Nor does our conclusion that Lara was an independent contractor defeat the purposes behind the workers’ compensation system. Lara had control over his work and safety and there was no evidence that he could not have spread the cost of insurance against work-related injuries through fees he charged for his services.”

– Tom Root


Case of the Day – Thursday, February 23, 2017


natural160111There was a era – back in a time when giants roamed the land – in which a landowner had no duty to protect anyone else from harm resulting due to the natural condition of the land. The judicial thinking was that everyone took the land the way they found it. There’s a century-old oak on the place, and it dies? Well, trees grow and then they die. If it happens to fall on old Zebediah’s cabin next door, that’s just one of those acts of God.

The concept made a certain amount of sense when the land was rural, and no one did much landscaping around the cabin. But as time passed, courts found themselves trying to determine whether that sweet gum that fell on the random horse-drawn wagon passing by had been planted by human agency or just had happened to grow there on its own. Time marched on, the horse gave way to a lot of horsepower, and courts abandoned the “natural condition” rule.  Instead, they simply held that a landowner has a duty of reasonable care over all of the conditions of his or her premises, no matter what their origin.


Samara – a botanical term for “whirligig.”

There were a few reasons for the courts’ change of heart. First, if a landowner had a duty to take reasonable care of his or her premises, there was no rational basis for limiting that duty to vegetation that had not been planted by the landowner or those who had owned the place before. After all, when we were kids, we used to break samaras off the backyard maple tree and use them in whirligig contests. Under the old standard, if one of the samaras we dropped during our game took root and grew into a magnificent sugar maple, our folks would have been responsible for the tree. If the wind dropped the same samara, and it took root without our help, the old rule would have absolved our parents of any liability if the tree decayed and then fell on the neighbor boy (an outcome that we, who had been long afflicted by the obnoxious kid next door, would have cheered).

Second, the times, they were a-changin’. America was becoming more urban, and progress demanded that people living in closer proximity to each other with more developed streets and highways, assume more responsibility for injury to each other. Most parcels of property had become smaller – home plots in towns and cities rather than 40-acre and up farms – and the burden placed on landowners to inspect and maintain their premises became less even as the harm that their negligence could cause became greater. The utility and importance of modern roads and the cars and trucks that used them argued for a more responsible approach.

All of that leads to a case like today’s decision, an Indiana decision that asks the philosophical question: If a tree falls in the forest and hits a car, does it sound like a lawsuit?

falls160111That’s certainly the question Stan Valinet was pondering after a tree standing in his forest fell onto Ann Eskew’s car back in 1987.

Robert Frost admitted that “whose woods these are I do not know.”  But Stan Valinet knew.  The woods in Clay Township near 106th and Spring Mill Road were his, and – like most reasonably prudent absentee landowners – Mr. Valinet occasionally drive through Clay Township to inspect his property. He especially admired a massive oak tree, almost two centuries old, growing about 28 feet from the edge of Spring Mill Road.

One dark and stormy December night, Ann Eskew was driving by this very tree, when 60-mph winds blew the mighty oak onto her car, seriously injuring her. It turned out that tree had been dead for at least three years, and had been showing signs of decay for at least 8 years before that.

Even in 1991, the Indiana rule held that rural landowners were not liable for physical harm caused to others outside of the land by a natural condition of the land. Mr. Valinet argued that the oak tree had always been there, and its falling on Ms. Eskew ¬– while regrettable – had nothing to do with him.

car160111The Indiana Supreme Court ruled that, regardless of whether the old oak tree was a natural condition of Mr. Valinet’s land or not, he could be liable to Ms. Eskew if his land was located in an area with sufficient population density, and whether the seriousness of the danger is weighed against the ease with which Mr. Valinet could have prevented it. Finding the facts needed to determine the answers to these questions was a job for the jury.

Valinet v. Eskew, 574 N.E.2d 283 (Supreme Court of Indiana, 1991). Stanley Valinet owned wooded land in a residential area of Clay Township, Hamilton County, Indiana, near the intersection of 106th Street and Spring Mill Road. He lived in Indianapolis, but testified he would occasionally drive through Clay Township to inspect his property.

Valinet’s land included a large oak tree, perhaps almost 200 years old with a 48” diameter trunk. The tree stood 28 feet from Spring Mill Road. On December 15, 1987, Ann Eskew was driving by the property during a windstorm, when the tree fell onto her car, seriously injuring her. It turned out that the tree had been dead for three years, and had been showing visible signs of decay for eight years before that.

Eskew sued. Valinet argued that the 200-year old oak was a natural condition of the land, and he was not liable for natural conditions of the land. The jury found him liable to Eskew, and he appealed, first to the Court of Appeals (which agreed with the jury), and then to the Indiana Supreme Court.

Held: The Supreme Court decided that Indiana would follow the general statement of law set out in the Restatement of Law. Restatement (Second) Of Torts § 363 provided that while a possessor of land would not be liable for physical harm caused to others outside of the land by a natural condition of the land, if the land is in an urban area, the possessor is liable to people “using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The Supreme Court acknowledged that the old rule had been no liability for natural conditions on land. That rule, however, had arisen at a time when the land was largely unsettled and the burden imposed on a landowner to inspect was thought to exceed the benefit to society of preventing possible harm to passersby. However, the Court observed, a line of cases had developed since then in which courts imposed a duty on landowners in more heavily populated areas to inspect trees to try to prevent their posing an unreasonable risk of harm to passing motorists. The rationale for imposing the duty on urban landowners is that the risk of harm to highway users is greater there, and the burden of inspection on landowners is lighter.

The Court agreed that the modern approach made more sense, but it underscored that whether the land was in an area of sufficient population density to invoke the rule requires a factual consideration of factors like land use and traffic patterns. Also, whether the landowner exercised the reasonable care would require the jury to weigh the seriousness of the danger against the ease with which it could be prevented. The Court noted that a landowner need not continually inspect his or her property for natural dangers, but sometimes fulfilling the owner’s duty to passing motorists “might reasonably require periodic inspections to be sure that the premises do not endanger those lawfully on the highway.”

– Tom Root


And Now The News …



sftreefall170224San Francisco, California, Chronicle, February 23, 2017: 100-foot tree falls on building in San Francisco

A 100-foot tree toppled over in the West Portal neighborhood of San Francisco Wednesday afternoon, hitting a building but causing little damage, officials said. The West Portal building is a residential structure, said to Lt. Jonathan Baxter, a spokesman for the San Francisco Fire Department. The tree fell just before 4 p.m. in the 100 block of Ardenwood Way. There are no injuries or significant structure damage, but the tree did bring down several high voltage power lines. A crew from the Pacific Gas and Electric Company was sent to the scene to repair the downed power lines…, February 22, 2017: Hug a tree while you still can: U.S. forests are disappearing

The Amazon rainforest and Indonesia’s peat swamps aren’t the only places suffering from deforestation. On the mainland U.S., swaths of forests are steadily disappearing, too. It’s not just that we’re losing trees. The forests themselves are growing farther and farther apart, researchers say. A new study found that the average distance between forest patches increased by nearly 1,690 feet — or about 14 percent — between 1992 and 2001. That’s bad news for biodiversity. Think of each forest patch as a sanctuary or transit hub for migratory animals and other species. When forests are closely knit together, the wildlife, plants and soil can share nutrients and thrive. When trees are few and far between, these connections break down…

flatree170224University of Florida, February 23, 2017: UF/IFAS researchers work to solve mystery of rare Florida tree

An endangered species of magnolia that only grows in the Florida Panhandle has been named the 2017 plant of the year by the Garden Club of America. The timing couldn’t be better, says Gary Knox, professor of environmental horticulture with the University of Florida Institute of Food and Agricultural Sciences. For the last three years, Knox and a team of researchers at the UF/IFAS North Florida Research and Education Center in Quincy, Florida, have been studying the Ashe magnolia to try to figure out why it’s so rare and how it may be conserved. Ashe magnolias are grown commercially as landscaping plants, and their large flowers and leaves make them popular among gardeners. The white and purple blossoms are the size of dinner plates, and the leaves grow up to two feet long. “This is what we call a ‘charismatic’ plant,” Knox said…

New Orleans, Louisiana, Times-Picayune, February 23, 2017: Naked man in tree in Mississippi said he was looking for dog, sheriff says

A Mississippi sheriff says a naked man has been rescued from a tree, where he was hanging head-down from a cable. Union County Sheriff Jimmy Edwards says Shawn Treadaway told a deputy he’d climbed the tree while looking for a dog, and fell. Edwards says he doesn’t know why Treadaway carried the cable. The sheriff told The Associated Press on Wednesday (Feb. 22) that he believes branches tore off most of Treadaway’s clothes as he fell, and rescuers cut off the remaining rags. New Albany Fire Chief Steve Coker tells WTVA-TV crews had to cut some trees out of the way Tuesday and then rig some rescue ropes to keep Treadaway safe while he was freed from the cable and brought down

maplesap170223Pittsburgh, Pennsylvania, Post-Gazette, February 22, 2017: Sticky situation: Warm weather has syrup flowing early — and maple farmers concerned

On the rocky Laurel Highlands knob that is Duck’s Maple Farm, long, spaghetti-like strands of blue plastic tubing criss-cross the woods, linking more than 2,200 maple trees to Don and Sherry Hess’ syrup cooker. The maple sap, what Mr. Hess refers to as “sugar water,” or just “water,” started flowing from the maples and through the Rube Goldberg-like configuration of collection tubes in mid-January, a full month earlier than normal, due to an early and extended stretch of warm weather. Getting an early start on sap collection and syrup cooking isn’t necessarily a bad thing. But due to the unseasonably warm weather continuing this month, Mr. Hess and the state’s other 250 maple syrup producers can be added to skiers, sledders and snowman makers on the short list of Pennsylvanians hoping for a return of cold winter weather. Or any winter weather. “For the sap to keep running we need warm days followed by cold nights, below freezing, to drive the sap down and keep the trees from budding,” said Mr. Hess, 58, a retired road construction worker. “If it doesn’t get cold again, I’m done…”

Mobile, Alabama, Press-Register, February 22, 2017: Tree trouble: Mobile halts work at Midtown Publix site

Following complaints about tree and vegetation removal at the site of Mobile’s Midtown Publix shopping center, the city has issued a notice of possible violation and a stop-work order on the project. The issue apparently began on Monday, when some residents of nearby neighborhoods began to raise concerns that contractors had gone too far in removing vegetation, particularly trees on the southeastern portion of the site. The shopping center will occupy land that formerly was the site of the Augusta Evans School, near the intersection of Florida Street and Old Shell Road. Developers succeeded in winning approval of the plan last year, but only after extensive back-and-forth with critics who questioned whether enough was being done to preserve the character of nearby residential neighborhoods and the general aesthetics laid out in the city’s Map for Mobile development plan. The upshot was that the approved site plan included some very specific agreements on fencing and buffer zones, including a wooded area on its southeastern boundary. At Tuesday’s city council meeting, District 6 Councilwoman Bess Rich said she was concerned about the possibility that the agreement had been violated…

bicyclist170223Omaha, Nebraska, World-Herald, February 22, 2017: Bicyclist ‘bruised everywhere’ but escapes serious injury after tree limb crashes down on her on South Omaha Trail

A Papillion woman heard only “a loud cracking sound” a split second before a large tree limb crashed down and hit her Sunday while biking the South Omaha Trail. Judy Black, 70, said she was riding about 12:30 p.m. near 45th and H Streets with a group of 20 cyclists. Emergency medical personnel from the Omaha Fire Department took Black to Bergan Mercy Medical Center, where she was treated and released. Black said she feels lucky to have escaped without any broken bones. She is, however, “bruised everywhere” and her cycling helmet was broken. “When (the branch) came down there was a loud cracking sound. I felt like it broke my back because it hurt so much,” Black said Wednesday. “Other than black and blue marks all over, I’m doing fine.” Omaha Parks and Recreation director Brook Bench said the city’s forester is investigating the incident. The city tries to regularly inspect all its trees, he said…

Toronto, Ontario, Star, February 22, 2017: Tree at centre of neighbour dispute near High Park won’t be cut

A 70-year-old Siberian Elm tree will live on after a clash between neighbours about whether it should be cut down ended with a warning that police would be called if the man who wanted to chop it down was caught trespassing. The 86-centimetre diameter tree is on the boundary of two bordering properties — one on Ellis Park Rd. and the other on Ellis Ave. — by a ravine near High Park. David Sher, whose family has lived in the home on Ellis Park Rd. since the 1970s, filed an application in November to remove the tree after the trunk’s growth started to crush the gutter of his garage. But neighbour JeanAnn Stewart and her husband Eric Poot said the tree has an important esthetic effect on the entire neighbourhood’s tree canopy and is on her side property line…

dc170222Washington, D.C., Post, February 21, 2017: In downtown Washington, progress comes and a tree is marked for death

“C’mon, little tree,” I say every time I walk along 14th Street NW between Pennsylvania Avenue and F Street. “Hang in there.” The tree has become a symbol to me, an inspiration even. I’m pulling for it, just as I’m pulling for a lot of things these days. I’m not even sure what kind of tree it is. A myrtle of some sort? What I do know is that it is growing in what has become one of the most precarious spots in Washington. The tree sits between National Place to the north and 1301 Pennsylvania Ave. NW to the south. It’s on a raised terrace between the two buildings, a story or two up from the sidewalk. National Place, an office building that’s also home to a food court beloved by school tour groups, will stay. But 1301 Pennsylvania is in the process of being demolished — really demolished…

Aberdeen, South Dakota, Farm Forum, February 21, 2017: Tree facts: Healthy roots and healthy trees

Most folks do not think about the important functions performed by tree roots. During the winter, roots provide food reserves to the tree for life functions and in the spring for producing spring foliage. Roots absorb water and minerals from the soil and transport them to the rest of the tree. Roots also serve as an anchor for the tree keeping it in a stable upright position for growth. The root system of a tree takes up a large area, typically extending outward two to four times the diameter of the average tree’s crown. Root systems are made up of large long-lived roots and smaller short-lived feeder roots. The large woody tree roots can grow very large in length and girth. The majority of the long lived roots are in the upper two feet of the soil and normally do not grow deeper than 3 to 7 feet. The feeder roots are small averaging only 1/16 inch in diameter but make up a majority of the surface area of the root system. These roots grow out from the large roots near the soil surface…

utilitytrim170222Bridgeport, Connecticut, Post, February 21, 2017: Eversouce: ‘Extensive’ tree trimming in Fairfield County

Eversource has announced details of its tree-trimming plan for 2017 along hundreds of miles in southwestern Connecticut. In all, Eversource will be trimming trees along more than 4,200 miles of overhead lines around the state. Among the 131 communities where tree trimming will be performed this year, some of the most extensive work will be done in Wilton along 132 miles of electric lines and 111 miles in Stamford. In addition, pruning will be completed in Ridgefield. Eversource notifies customers in advance if trimming is necessary on their property. The extensive trimming work is caused in part by prolonged drought conditions that has significantly weaken trees and branches, especially those that are decaying or diseased. Most of Connecticut remains in a severe drought. A part of northern Fairfield County and nearly all of Litchfield County is under an extreme drought, according to U.S. Drought Monitor…

Salem, Oregon, Capital Press Ag Weekly, February 21, 2017: Forecast models expand to honeybees, tree fruit size

A better model to predict timing of tree fruit blossoms and new models for best honeybee foraging and fruit size will be tested this year by Washington State University. The improved and new models of WSU’s Decision Aid System (DAS) for tree fruit growers will be used for the first time by 13 out of 250 system users. It’s sort of a road test of the models by growers, independent consultants and fieldmen of tree fruit companies, chemical dealers and organizations, said Vince Jones, DAS director and entomologist and behavioral ecologist at the WSU Tree Fruit Research and Extension Center in Wenatchee. Jones, former center director and entomologist Jay Brunner and Gary Grove, WSU plant pathologist, developed DAS and launched it 10 years ago…

forester170221Washington, D.C., Post, February 20, 2017: This gardener is working to preserve George Washington’s last surviving trees

George Washington was supposed to have cut down a cherry tree — that was fake news, folks, because it is well documented that our first president loved trees. In the late 18th century at his Mount Vernon plantation, Washington supervised the planting of hundreds of trees — trees for shade, for beauty, for fruit and for timber. On his travels, he brought trees back to plant at Mount Vernon. When Washington remade his garden and grounds after the Revolutionary War, he took a special interest in developing the bowling green, the expansive, bell-shaped lawn to the west of the mansion, bounded by serpentine paths that he proceeded to line with trees and shrubs. The paths were made of gravel hauled by slaves from the banks of the Potomac River. Today, only four trees survive from Washington’s time — he died at Mount Vernon in 1799. Scattered around the bowling green are two tulip poplars and a hemlock, native plants that grow wild in Virginia. The fourth is a white mulberry, the Chinese tree essential to the silk worm industry. How much longer these trees will live is anybody’s guess. The mulberry, planted on the outside of the Upper Garden, is a sorry-looking specimen. It has two trunks, but they have been beaten back and split, perhaps by lightning…

Jefferson City, Missouri, KMIZ, February 20, 2017: Abnormal warmth leads to early tree budding

Mid-Missourians have enjoyed quite a treat for Mother Nature this month, with the springlike weather. Temperatures have been nearly 20-30 degrees above average tricking many trees into budding earlier than normal. The early budding could come at a cost, as winter is far from over and many forecasting models still hint at the return of arctic air through the next month. “We’re beginning to worry about having an early spring,” state forestry extension specialist Hank Stelzer said. It’s his concern that this early spring tease will likely rival 2007, when trees began to bloom and then winter returned, killing everything. “We just don’t want to see a repeat of 2007, when we had that Easter freeze,” Stelzer said. “It’s one thing for things to break bud now, but then we can’t have any really cold temperatures behind it…”

gasline170221Philadelphia, Pennsylvania, WHYY, February 20, 2017: Sunoco clears trees, builds drill pads for Mariner East 2 pipeline

Preliminary construction work for the Mariner East 2 natural gas liquids pipeline took place in Delaware and Huntingdon Counties on Monday, a week after state officials issued the final permits for the controversial cross-state project. Workers cleared trees and built drill pads in Aston in Delaware County and Raystown Lake in Huntingdon County, the first two sites to see construction activity along the 350-mile route from southwest Pennsylvania to Marcus Hook near Philadelphia, according to Jeff Shields, a spokesman for Sunoco Logistics, which will build and operate the line. Monday’s activities followed some preparatory work last week, Shields said. At the Aston location on Monday afternoon, a backhoe was clearing tree trunks and branches while a mechanical scoop was building a base for a drill pad that will create an underground path for part of the line. A stack of previously cut trees lay nearby…

Billings, Montana, Gazette, February 20, 2017: Billings’ new city forester: ‘I just want people to appreciate trees as much as I do’

His job title — “city forester” — may sound like a contradiction. But Steve McConnell, who’s been on the job for the city of Billings for about six weeks, has a good idea how he can help build on Billings’ long history of caring for and about its estimated 90,000 trees. “Trees are part of the infrastructure of a city, and people take them for granted,” McConnell said Tuesday from his cubicle far from any trees, at the Billings Operations Center. “They are an essential part of our green infrastructure, as opposed to our gray infrastructure,” such as roads, bridges and pipes. McConnell, who has a doctorate in forestry from the University of Idaho, also studied forestry at the University of Washington and Virginia Tech…

treeoncar170217Los Angeles, California, Times, February 15, 2017: Record drought + record rain = toppled trees. How do you know if your tree is in trouble?

At Elysian Park near Dodger Stadium last weekend, hikers walked their dogs along the popular hiking trail, unconcerned by a recently toppled tree. But with more winter storms predicted, and news of a 100-year-old pine tree falling on a house and car in Pasadena on Tuesday, it’s hard for homeowners to be equally nonchalant. Extended drought followed by heavy rains are causing root instability. Trees aren’t just failing, they are falling over. “The ground can become like Jell-o once the soil gets to field capacity,” says Daniel Goyette, principal arborist for the Huntington Library, Art Collections, and Botanical Gardens. “It can no longer hold any more water. That’s where you get movement in the soil. It’s why trees are toppling — the soil does not have the rigidity that it usually does…”

Denver, Colorado, Post, February 16, 2015: Grand County coroner identifies 17-year-old Texas girl killed in Winter Park ski crash with tree

Grand County authorities have identified the 17-year-old Texas girl who died Wednesday after skiing into a tree on an intermediate trail at Winter Park Resort. Alicyn Mitcham, from Colmesneil, Texas, was pronounced dead at Denver Health East Grand ER after efforts to revive her failed, according to county Coroner Brenda Bock.Bock said an autopsy on Alicyn, who lived in a small town outside of Houston near the Texas-Louisiana border, will be completed Thursday. According to Bock, Alicyn was not wearing a helmet. The ski area says the crash happened at about 12:30 p.m. on Forget-Me-Not, a run in the resort’s Parsenn Bowl. Alicyn is the fourth person to die in a ski crash — the third involving a tree — on Colorado’s slopes this season. Three of those have been men who died at Breckenridge Ski Resort…

shadetree170217Bergen, New Jersey, Record, February 16, 2017: Shade Tree drafts maintenance plan to begin this spring

About 40 trees cultivated at the nursery have been dug up in preparation for planting and relocation for the placement of the newly-purchased trees. Greg Goumas, Tree Supervisor for Rutherford’s DPW, explained the trees are in a dormant state. Once the weather permits and snow cover melts, those determined ready for transplant on borough streets and parks will be added to the dead end of Riverview Avenue and in Memorial Park by the Passaic River bank. Last count, 15 residents had requested trees to be planted by their homes, he said. Six trees in the nursery were found to have been planted without root bags during the last round of plantings about three years ago, meaning they cannot be transplanted, Goumas added. When asked how many whips, or younger trees, would be purchased for planting in the nursery this year, Addeo said that they could not commit to a number since the 2017 municipal budget was not finalized. Money for whip purchases would come from within the DPW budget…

Western Farm Press, February 15, 2017: Delayed first irrigation can improve walnut tree health, yield, quality

Walnut tree health, production, and crop quality are closely tied to irrigation management. Bruce Lampinen, integrated orchard management walnut and almond specialist with the University of California, Davis, says delaying irrigation initiation in the spring may provide benefits in water savings, increased rooting depth, and improved tree health. Lampinen has conducted research on deficit irrigation in walnuts, and examined delays in the initial irrigation, basing the decision on pressure chamber readings. The pressure chamber can also help growers avoid overwatering trees which if it occurs can have an adverse impact on tree health. “There are strategies to save water and not impact crop returns,” Lampinen told growers during the Tri-County Walnut Day event held in Visalia, Calif…

seattle170216Seattle, Washington, West Seattle Blog, February 15, 2017: Court challenge, city-fee settlement in tree-or-house case

Three weeks ago, after city Hearing Examiner Sue Tanner ruled against the neighbor-filed appeal in the Admiral tree-vs.-house case, appellant Lisa Parriott was still considering what to do next. Now, she tells WSB she’s taking the case to court. And she revealed she’s reached a settlement with the city regarding the fees they sought to charge related to her appeal. First, the basic backstory if you haven’t been following this: The tree is a 100-ish-foot Ponderosa Pine growing at 3036 39th SW, on what the neighborhood had long seen as the side yard for the house next door. Real-estate investor Cliff Low bought the property – house, tree, and all – in late 2015 and sought a city opinion to confirm that the side with the tree was a buildable lot. The city said it was. He filed for permits to build a two-story house with a two-vehicle garage. Neighbors launched a save-the-tree campaign. When the city formally said OK last October, both Parriott and the Seattle Green Spaces Coalition filed appeals, though ultimately Tanner only allowed Parriott’s case – and only in part – to proceed. A hearing was held on January 12; the ruling came in January 25th . That is considered the city’s final say in the matter, so any challenge has to be taken to Superior Court, and that’s what Parriott has done, filing a Land Use Petition and Complaint. You can read the document in its entirety here; the contentions include the same argument at the heart of the case taken to the Hearing Examiner, that the site doesn’t qualify for a Historic Lot Exception because there is nothing on record suggesting it was considered a separate building lot. Parriott’s action also seeks an injunction to keep the tree from being cut and house from being built while this plays out; city files show the building permit for the house was issued two weeks ago, on February 2nd…

London, UK, BBC, February 15, 2017: Tree surgeon dies of ‘chainsaw injury’ in south London

A tree surgeon has died after reportedly injuring himself with a chainsaw in south London. The man, believed to be in his thirties, suffered neck injuries and was pronounced dead at the scene outside Southwark Park Primary School. One witness tweeted he saw “a lot of blood” in the area after the accident at Banyard Road at around 11:00 GMT. A Met Police spokesman said the incident had been referred to the Health and Safety Executive. Another witness, Charlie Brenland said he saw police cordon off the road, adding: “Witnesses and the police said there had been an accident with a worker on one of the trees. “Someone there said one of the tree surgeons had an accident with a chainsaw.” Emergency services, including a London Air Ambulance attended the scene shortly after 11:00 GMT but were unable to save the man…

rainbow170216Viral Section, February 15, 2017: The World’s most beautiful tree bark called ‘Rainbow Eucalyptus’ can be found in the Philippines!

Our planet is naturally beautiful. From the beautiful northern lights to the Zhangye Danxia Landform Geological Park in China—the planet has a lot to offer. Today, one of nature’s art is once again revealed to the world. The Rainbow Eucalyptus or Eucalyptus Deglupta, which is often found in the Philippines, sheds its bark annually, revealing a colourful bark—that almost seems like a painting that has come to life. The tree is like a colourful palette, with dozens of colors mixed in the tree’s trunk. Its barks are very delicate, which can be peeled off like paper. And when in its native rainforests in the Philippines, it can even grow up to 250 feet! The beautifully majestic trees are often found in Mindanao in the Philippines, but are now known to have grown in Hawaii, California, Texas, and Florida…

Chicago, Illinois, Tribune, February 25, 2017: Hinsdale man victim of tree-trimming ruse

Hinsdale man reported $150 was missing from his house due to an apparent scam. The resident said a stranger came to his home on the 100 block of North Vine Street at about 2:35 p.m. Feb. 11 and offered to trim trees in his backyard. The stranger asked the resident to accompany him outside so he could show him which trees should be trimmed. When the resident returned to the house, he saw two other men leaving his house. The man went inside where he discovered $150 was missing. It appeared as though the house had been searched, police said…

cherrytree170215Detroit, Michigan, Free Press, February 14, 2017: What kind of cherry tree did Washington fell

Washington’s birthday is a good time to think about cherry trees. But rather than questioning whether George really chopped down the tree and then admitted to it, I find myself wondering what kind of a cherry it could have been. (The story, incidentally, may be apocryphal. It was reported by Mason Locke “Parsons” Weems for his 1802 book, “Life of George Washington: With Curious Anecdotes, Equally Honorable to Himself and Exemplary to his Young Countrymen,” but has never been decisively confirmed.) That cherry tree could well have been something akin to the sweet cherries we can buy or grow today. Sweet cherries (Prunus avium), sometimes called bird cherries or, in their wilder state, mazzard cherries, were among the plants ordered from Europe by the Massachusetts Bay colony in 1629. By 1650, there was a cherry orchard in Yonkers, New York, and before the end of that century, there were plantings in Rhode Island, Maryland and Virginia…

Dallas, Texas, Morning News, February 14, 2017: Can this American elm tree be saved from neglect and disease?

Question: I have property in downtown New Braunfels that is in horrible condition and has a bamboo issue. And there are two beautiful trees that seem really old. Well, I was taking the fifth lesson of your course, Trees #2, and came to the part about woodpeckers knowing where the sugar is concentrated in a sick tree. I have heard a woodpecker on the big tree on this property. Turns out this tree is dramatically sick. And I’m afraid I may be too late. Yet I will do everything I can to try to save it. These are the major problems: 1. It has these huge wounds on it that are wet, and it looks like sugar is coming out. They may have been caused by deer or just from being sick; 2. The bamboo around it has been choking out the roots and growing near the root flare; 3. The property flooded in 1998, and I think this is why the flare may have been covered up by debris and sediment. When I began digging there was a lot of glass, rocks, metal and other trash mixed in with the dirt. One part is pure gray clay and the other is rocky; 4. There was a huge amount of moisture at bottom of tree…

scotland170215London, UK, BBC, February 14, 2017: Tree planting ‘threatening’ Scotland’s grand vistas

Mountaineering Scotland and the Scottish Gamekeepers Association have jointly written to Scotland’s environment secretary. The Scottish government wants woodland cover to go from 17% to 25% by 2050.It said there would be “appropriate consideration of Scotland’s distinctive upland landscapes.” Scottish Natural Heritage said Scotland had a low percentage of woodland cover compared with other European countries. A commitment to plant 10,000 extra hectares of trees between now and 2022 was made in the government’s draft Climate Plan. But, in an unusual alliance, Mountaineering Scotland and the Scottish Gamekeepers Association (SGA), said they were concerned about the impact of the Scottish government’s forestry targets on wild moorland…

Auburn, Alabama, Ledger-Enquirer, February 14, 2017: Auburn committed to making Toomer’s Corner ‘whole again’ with new oak trees

Auburn wants to make the famed entrance to the university at the corner of College Street and Magnolia Avenue “whole again.” The tree on Magnolia Avenue was damaged in September when Jochen Wiest lit it on fire. With work to remove and install new oak trees at Toomer’s Corner starting Saturday at 6 a.m., Auburn professor of horticulture Gary Keever held a press conference from the location to discuss plans for the location, which also includes replacing the tree on College Street. “This (College Street) tree was one of the original replacement trees for the Toomer’s Oaks that was removed in 2013,” Keever said. “It was a very large tree. It’s gone through a gradual decline since it was installed on Valentine’s Day in 2015. There’s very little foliage in the canopy. It’s simply signs that the tree is not doing well…”


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


Case of the Day – Wednesday, February 22, 2017


baddog160108More and more home developments deliver to their residents not just houses, but a particular ambience, one which remains free of eyesores like sheds, clotheslines, and even colors of exterior trim and paint deemed outside the color scheme of the place. These restrictions are often contained in the deeds conveying ownership of the homes. And quite often, the restrictions begin to be violated before the ink is dry.

Many of the violations are slight, not worth the time of the neighbors or associations charged with enforcing the restrictions. But someone usually pushes things too far, and then defends himself or herself in court by complaining that Joe Doaks or Jane Doe down the street violated the same restriction, too, and no one complained about it.

In today’s case, an Ohio dog-trainer tries the same excuse when the homeowners’ association tries to shut down his obedience school.

It’s like complaining to a cop that everyone is speeding, making his actions stopping you somehow … well, unfair. Like President Carter told us once, “Life is unfair.” And so is selective enforcement. But that doesn’t mean that you can’t do it.

Here, the Court told Marchus that what mattered wasn’t whether other people were getting away with violating the covenants. What matter was whether there was a “substantial value” the restriction which should be protected. Where substantial value could be found, equity will enforce a restrictive covenant. No matter who else is violating it.

covenants160108The guy down the street is selling on eBay for a living? Once a day, he loads his pickup truck with small boxes and goes to the post office? There’s probably no “substantial value” being offended. But Mr. Marchus’s baying hounds? Customers and their masters were driving in and out all day long on the private road?  The other property owners were worried about wear and tear on the road, the congestion, and liability for accidents. Those concerns were legitimate.

The Court refused to let the neighborhood go to the dogs.

Rockwood Homeowners Assn. v. Marchus, 2007 WL 1731621 (Ct.App. Lake Co., June 15, 2007). Rockwood Homeowners Association consists of the owners of ten individually owned tracts of land on Girdled Road in rural Lake County, Ohio. Each owner has a primary residence on the property. The residences are accessed by Rockwood Lane, a paved, private road running off Girdled Road.

The developers drafted specific land use restrictions which were attached to each deed, restrictions intended to preserve the rustic character of the land while permitting property owners to operate a home-based business without detracting from the rural atmosphere. Section I(A) of the Declaration of Restrictions provides that “no commercial or institutional activity shall be conducted on these lots, which is not wholly contained within the residential dwellings or which causes damage to the private gravel drive by heavy vehicles.” The Bylaws for the Homeowners Association incorporate the restrictions.

grads160108Over the years, various owners operated home-based businesses from their Rockwood Estates residences, including a pest control business, a security systems business, a log home business and a tree maintenance business. In September 2001, one owner, Dick Marchus, built a 60′ x 80′ building to be used as a dog training facility. After it was done, his wife ran her dog training business in the new outbuilding, conducting one class on Monday and two classes per day from Tuesday through Saturday. While some attendees would arrive with two or three dogs, she limited the commercial vehicle traffic to ten cars per class.

Almost immediately, the Association sought an injunction to keep Marchus from continuing operation of the commercial activities from the outbuilding, on the grounds that the activity violated the covenant. The Marchuses answered and counterclaimed. At trial, the Association argued Marchus’s business was in violation of the restrictions. Marchus admitted the activities were not contained within the residential dwelling, but argued the restrictions had been waived or abandoned by the Association’s failure to enforce the restrictions against the past violations of other property/business owners. The trial court granted the injunction, and Marchus appealed.

Held:   The trial court’s injunction was affirmed. The Court of Appeals noted that restrictive covenants on the use of property are generally viewed with disfavor. However, this disfavor may be overcome by evidence of a plan or scheme into which the restrictions are incorporated and notice of that plan or scheme. A plan like the Rockwood one, designed to maintain the harmony and aesthetic balance of a community, will often be upheld where the restrictions are reasonable.

The evidence indicated the restriction was drafted with the intent of maintaining the bucolic atmosphere of the development and to prohibit increased traffic from entering and exiting the development. The Court said the restriction was uniform and applied to all property owners in the development. When the evidence was viewed as a whole, the Court said, it concluded the restrictions and the development to which they pertained were premised upon a general plan or scheme.

The evidence also showed that Marchus had notice of the restrictions. Consequently, the Court found, the restriction was valid and enforceable. As for waiver or abandonment, the Court said, the test was whether, under the circumstances, there remained a substantial value in such restriction which should to be protected. Where there was a substantial value to the dominant estate remaining to be protected, equity will enforce a restrictive covenant.

Even with the Marchuses' restricting classes to only ten vehicles (leading to dog carpools, no doubt), it was still too much for the neighbors ...

     Even with the Marchuses’ restricting classes to only ten vehicles (leading to dog carpools, no doubt), it was still too much for the neighbors …

Here, the Court found, various residents expressed concerns they held since Greta Marchus opened the business. Increased traffic created congestion and destroyed the rural atmosphere of the development. Because the residents were responsible for the upkeep and maintenance of their private drive, some worried about the increased repair cost resulting from the wear and tear. Some were concerned about being exposed to liability if any of the Marchuses’ customers happened to be injured on the private road. The Court found that the concerns expressed were legitimate and rationally related to appellants’ violation of the covenant, and thus, there was still a substantial value in the restriction.

As for acquiescence, the evidence didn’t show that prior businesses operated anywhere but in the residences of the owners, something which was permitted by the restrictions.

– Tom Root


Case of the Day – Tuesday, February 21, 2017


shootdog160106The crotchety old landowner should have known he was good and screwed as soon as he got sued for shooting his neighbor’s hunting dogs. If he didn’t, he sure knew his goose was cooked when the Mississippi Supreme Court started its opinion with this:

     “Many men, including this writer, feel that a person who has never seen squirrels jump from limb to limb in the deep swamp on a frosty Fall morning; or has never heard a wild turkey gobble in April or seen him strut during mating season; or has never watched a deer bound through the woods and fields, or heard a pack of hounds run a fox, or tree a coon; or has never hunted the rabbit, or flushed a covey of quail ahead of a pointed bird dog; or has never angled for bass or caught bream on a light line and rod, or taken catfish from a trotline and limb hook; has never lived.”

And screwed he was. To be sure, he had a real evidentiary problem, one that comes up all too often. A defendant knows there are no eyewitnesses, and he (or she) happily invokes what is generally known as the Bart Simpson defense: I didn’t do it, no one saw me do it, you can’t prove anything.”


   The defense didn’t work all that well for Bart, either.

The hunter’s dogs had run onto I.C. James’ place, and old I.C. (perhaps standing for “Incorrigible Curmudgeon”) didn’t think much of it. So he shot the dogs. And that, as they say, was an unfriendly act.

Old I.C. told Buddy Mabus, the dogs’ owner, that they had run onto his land, so he shot ‘em, and left ‘em “in a bad way.” He acted almost as though he was proud of what he had done. Well, the “mean old S-O-B” act might have given I.C. some visceral pleasure at the time, but it sure didn’t play well before a jury.

Unsurprisingly, by the time the case got to a jury trial, I.C. James had gotten his story straight. He never said he left the dogs in a bad way. In fact, he told the jury, the dogs had killed some of his waterfowl, but he didn’t tell Buddy or his son that, because they’d have just denied they owned the dogs. Apparently, I.C. James had found out by the time of trial that he didn’t have the right to kill the animals just because they had wandered onto his land, unless — and this is a big “unless” — they had killed some of his poultry. All of a sudden, that was his story.

I.C. figured he had the case licked. After all, no one could say the dogs hadn’t killed the ducks. The evidence against him was circumstantial at best. And we all know that circumstantial evidence is no good, something we learned at the Hollywood School of Law.

Except that circumstantial evidence is good evidence, and a jury is entitled to rely on it. In fact, nothing requires a jury to check its common sense at the courtroom door. This jury didn’t. It knew James’ “they killed my ducks, but I just didn’t mention that until now” recitation of events was nothing but — pardon the pun — a “woof” story. The Mabuses testified the dogs ran onto James’ property, gunshots came from that general direction, James then told them he had shot the dogs (but didn’t mention any dead ducks), and later, one dog turned up wounded and three others didn’t come home at all.

James argued all the way to the Mississippi Supreme Court that the jury had to find for him (or, for that matter, the trial court had to overrule the jury in a procedure known as “judgment n.o.v.”) because no one could disprove his statement that the dogs had killed some ducks. Or, as Bart put it, “I didn’t do it, no one saw me do it, you can’t prove anything.”

The jury thought otherwise, and the appellate court respected that.

Lesson: Don’t go shooting someone’s dogs. It’s not nice.

This is circumstantial evidence that a woman with a child in a stroller happened by here (and that it had rained shortly before that time).

This is circumstantial evidence that a woman with a child in a stroller happened by here (and that it had rained shortly before that time).

James v. Mabus, 574 So.2d 596 (Supreme Court of Mississippi, 1990). Buddy Mabus lives on a farm where he and his son, Terry, raise dogs which they use to track and run deer. On a cold morning in late November, Terry and Buddy — planning to hunt deer — turned their dogs loose about two hundred yards north of Buddy’s dog pen. The dogs jumped a deer and headed north towards I.C. James’ property, about two miles from where the dogs were turned loose. James had his land posted, and Buddy knew James didn’t allow hunting on his land.

At least two of their dogs ran onto James’ land. James said as stopped to open the gate to his pasture, he heard hunting dogs south of his place heading east. He listened for five or ten minutes and then saw his geese flying across his lake and heard his ducks making noise. He grabbed his rifle from behind his truck seat, pointed it out the window of the truck and drove through his pasture to the lake where he saw two dogs attacking his ducks. James shot at them, but did not know whether he hit them because they ran off.

He said he followed the dogs until they left his property.

Terry, on the other hand, said he had stopped about a half a mile east of James’ place and was listening to the dogs running toward the road when he heard the shots, then he heard only silence. Wondering about the sudden quiet, Terry drove to a gate to James’ property where he believed he had last heard the dogs. James came to the gate and told Terry he had shot the dogs. Terry asked what the dogs were doing, and James said, “They were on my land.” A short time later Terry found one of the dogs near the red gate nervous and shaking. Three days later another dog returned to Mabus’ land with three pellet shots in his hip. Two dogs never returned.

Buddy also said he heard the dogs as they crossed onto James’ land. Seconds after they crossed, he heard shots and then silence. After Buddy learned the dogs had been shot, he met Terry at James’ house. James told Buddy he shot the dogs because they were on his land, never mentioning at that time that the dogs had attacked his ducks or geese.

At trial James said he hadn’t mentioned to either of the Mabuses that the dogs had been attacking his ducks because if the Mabuses knew what the dogs had done, they would have denied ownership. The duck issue was important because Mississippi law gave James the right to shoot dogs if they were on his land attacking his waterfowl. James contended that he had seen two dead ducks and one crippled one. James’ daughter also testified that a few months after the incident she saw one dead duck and a crippled one by their pond.

At the close of the Mabuses’ case, James moved for a directed verdict on grounds that the Mabuses put on no proof that the dogs were dead or that James hit any dogs when he shot at them. The trial court denied James’ motion, finding that reasonable inferences could be drawn from the evidence.

The jury found for Buddy Mabus, and I.C. James appealed.

This muppet is a curmudgeon, too, but he hasn't shot any dogs that we know of.

This muppet is a curmudgeon, too, but he hasn’t shot any dogs that we know of.

Held: The dog shooter had to pay. The Mississippi Supreme Court held that credibility and weight to be given to James’ testimony was a matter for the jury to determine. Here, the circumstantial evidence was sufficient to create a jury question as to whether the dogs ran onto the property owner’s land and were shot and injured or killed by the property owner, and the trial court did not abuse its discretion in denying motion for new trial.

The Court observed that inherently probable, reasonable, credible and trustworthy testimony – uncontradicted by other evidence – must be accepted as true. But appellate courts will give a jury great deference in its conclusions about the credibility and weight of testimony. In this case, determining whether to accept property owner James’ testimony that the hunters’ dogs had attacked his ducks or the Mabuses’ testimony was a matter for the jury to decide.

To be sure, verdicts must rest upon reasonable probabilities and not mere possibilities, but a verdict found on circumstantial evidence will stand unless it is opposed by a decided preponderance of evidence or is based on no evidence whatever. The Supreme Court said that whether there was any circumstantial evidence from which the jury reasonably could infer death or injury to Buddy’s dogs caused by James was a determination to be made by trial court, and the weight to give such evidence was for the jury. Here, there was plenty of circumstantial evidence that would let a jury conclude that Buddy’s dogs ran onto James’ land and were shot by James for that reason alone, despite James’ contention that the dogs were attacking his ducks (which would have given him a statutory right to shoot and kill them without liability).

As far as the trial court’s determination that the evidence was sufficient to support the verdict, all conflicts and all reasonable inferences from the testimony will be construed in favor of party who prevailed at jury trial, and the reviewing court will assume the jury drew every permissible inference from evidence offered in favor of the winning party. It appeared to the Supreme Court that the jury simply chose not to believe James’ assertion that the dogs were attacking his ducks.

– Thomas L. Root


Case of the Day – Friday, February 17, 2017


Cicero rails against Cataline in the Senate.

Cicero rails against Cataline in the Senate.

That great Roman senator and statesman, Marcus Tullius Cicero, was raging against Cataline when he uttered the now-famous phrase “O tempora, o mores!”

“Oh, what times, oh, what customs!”

We took Latin in high school, and – thanks in no small part to the late Emily Bernges of Sturgis, Michigan – we developed great respect for Cicero. Senator Marcus T. had plenty of his own problems to deal with when he gave his first oration against Cataline, but we threw up our hands like he did and asked the same question about today’s case. We have charted how, during the 20th Century, the law governing landowner liability had crept inexorably toward mandating that property owners inspect their trees. In today’s case, a New Jersey court likens trees to product liability, in that a property owner who sells his or her land may remain liable for what happens to the trees well after the new owner takes possession.

“Bull-pucky!” you say. “I sold the place, I’m done with it!” To that we respond first that you need a better class of epithet, and second that you are sadly mistaken.

NBS140428Mr. Narsh had the misfortune to be driving by a wooded lot belonging to a local church, when a tree fell on his car. After the funeral, his estate sued the church, as well as the previous owner, the owner before that owner, and the owner before that owner. It’s surprising that the Lenape Indians – who had owned the area back when Giovanni da Verrazzano arrived in 1524 – weren’t co-defendants, too.

It turned out that Zirbser Brothers, Inc., had bought the land three years before the accident. That corporation sold it 18 months later to Zirbser-Greenbriar, Inc. (“ZGI”), which – as its name suggests – was another company owned by the same people who owned Zirbser Brothers, Inc. ZGI built a nursing home on some of the land, and conveyed the rest, including the part with the dead tree, to St. Stephen’s Lutheran Church just a few weeks before the accident.

A jury decided that the Estate that had sold the property to Zirbser Brothers, Inc., and the Church were not liable. However, the Zirbser brothers’ two companies were found liable, despite the fact that neither owned the property when the tree fell.

The court first observed that in New Jersey, one who places or maintains in or near a highway anything which, if neglected, will render the way unsafe for travel, is bound to exercise due care to prevent it from becoming dangerous. This rule places an affirmative duty on the landowner to prevent trees from becoming dangerous.

We could see that coming from the decisions we reviewed last week. It seems, however, that there was more. The Court said it saw “no reason why an owner who would be liable to a member of the public under the rule … should be absolved from liability by the simple act of the sale of his property.” Calling the rule that a landowner was no longer liable once the property was sold an “[a]ncient distinction,” the appellate court compared the matter to product liability – where manufacturers and everyone else in the supply chain remain on the hook for defects for what seems forever (just ask the general aviation industry) – holding that the landowner could remain responsible for defects even after the land was sold and he could no longer remedy any problems.

The Court found “no support in reason and logic for any distinction between the liability of a vendor of land in an urban area who erects a tower on his land, and one who maintains a rotten tree on his land.” The Court concluded that “[t]he obligation of reasonable inspection which may be involved if a vendor is to be held liable for dangerous conditions existing on his property at the time of its conveyance, is small when compared with the danger posed by a rotten tree poised over a busy highway. The fact that the vendor may have lost the right to go on the property and make repairs is beside the point–the rule is aimed at inducing him to make inspections and guard against dangers before conveyance. The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times.”

Yeah, right. What this means to the prudent homeowner is that any conveyance of real estate should be accompanied by a tree inspection by a certified arborist, insurance against the outside chance that someone gets hurt or property gets damaged by a falling tree in the future.

How long in the future? This liability for property that has been sold can’t go on forever, right? After all, the Lenapes didn’t get sued. The Court said that “where an owner of land adjacent to a highway in an urban area, conveys his land, on which is located a tree which he knows, or should know, presents an unreasonable risk of injury to the public, he remains subject to liability for physical harm caused by such condition after his vendee has taken possession … until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

What’s reasonable? That’s probably for the jury to decide. The problem is, if you’re in front of a civil jury, that means you’re in trial, and you’ve already lost even if you win. Better to spend the extra money early for an arborist’s inspection at closing.

More cost. More uncertainty. More precautions. Oh, what times! Oh, what customs!

Narsh v. Zirbser Brothers, Inc., 111 N.J.Super. 203, 268 A.2d 46(N.J.Super.A.D. 1970). On April 28, 1967, James H. Narsh met his death when a large tree fell upon him as he was driving his car on North Evergreen Avenue in Woodbury. The plot on which the tree had been standing was heavily wooded with old trees, a number of them being close to the sidewalk. A witness who resided in an apartment across the street heard a cracking noise and saw the tree fall onto decedent’s car. He had previously noticed that the tree, which was very close to the road, was dead, shedding branches, and appeared quite rotten.

The plot on which the tree had been located had been sold three years before by the estate of Alfred Green to Zirbser Brothers, Inc. Zirbser Brothers, Inc. retained title until for two years, then conveyed it to ZGI, a corporation formed by the Zirbser brothers and having the same stockholders, directors and officers as Zirbser Brothers, Inc. ZGI retained a portion of the tract for a nursing home, but on April 20, 1967, sold the remainder – including the portion on which the offending tree was located – to a church. The accident occurred eight days later. All four parties were sued.

The jury was exonerated the Green estate and the church, but found both Zirbser Brothers, Inc. and ZGI “guilty of negligence which was a proximate cause of the accident.” The jury awarded $85,000 in damages.

Zirbser Brothers appealed.

Held: Zirbser Brothers, Inc., remained liable for the tree for a reasonable period of time after transfer to the church.

There was ample evidence that the fallen tree, like many others on the property, was rotten, and that any owner should have known it. But Zirbser Brothers, Inc., neither owned nor possessed the lot in question at the time of the accident. Its conveyance to ZGI had taken place almost a year before, although Zirbser was on the property building the nursing home. Some of its construction materials, and its construction trailer, was still on the land when the accident occurred. Nevertheless, from the time of the sale to the church, Zirbser was without right to cut down trees or otherwise police the part of the property where the subject tree was located.

The Court held that as of the time of the accident, Zirbser’s presence on the property purchased by the church, standing alone, did not afford an adequate basis for a present duty on its part to guard against the falling of the tree.

Pay the inspector, Shirley ... it's a lot easier and cheaper to do it now.

Pay the inspector, Shirley … it’s a lot easier to do it now … and as a group, they’re cheaper than lawyers.

If one negligently creates a condition on land which is unreasonably dangerous to outsiders, the Court said, there is no good reason why his potential liability should stop either when he transfers possession of that land or when his successor in occupancy becomes liable either because of his possession or because of his fault in negligently omitting to repair the danger. The Court observed that the boundaries of tort liability for dangerous conditions on the land have gradually been extended by our courts in recent years. It held that “[t]he rationale which underlies [a landowner’s] continued liability for a structure on his land would apply equally to a tree which is so close to a highway as to endanger traffic thereon should it fall. In this day and age, with its attendant increase in population, greater use of automobiles and more intense use of land, the presence of a rotten tree along a busy highway poses dangers greatly in excess of those with which the courts were confronted in the cases in which appellant relies. The obligation of reasonable inspection which may be involved if a vendor is to be held liable for dangerous conditions existing on his property at the time of its conveyance, is small when compared with the danger posed by a rotten tree poised over a busy highway. The fact that the vendor may have lost the right to go on the property and make repairs is beside the point – the rule is aimed at inducing him to make inspections and guard against dangers before conveyance.”

The Court thus held that where an owner of land adjacent to a highway in an urban area conveys his land – on which is located a tree which he knows, or should know, presents an unreasonable risk of injury to the public – “he remains subject to liability for physical harm caused by such condition after his vendee has taken possession. If he has actively concealed the condition from the vendee his liability continues until the vendee discovers it and has reasonable opportunity to take effective measures against it, otherwise it continues until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

The takeway here: the prudent landowner will have regular inspections of trees done, with written reports, and will follow the reasonable advice of the arborists. When the property is sold, a home inspection may be requested by the buyer, but a grounds inspection should be ordered by the seller.

– Tom Root