Case of the Day – Friday, December 2, 2016


Angelspathsite140325Rare is the opportunity to glean two instructive cases from one malefacting (if that’s a word) defendant. However, such is our good fortune with Ohio developer Angel’s Path, LLC (and yes, the apostrophe suggests there was only one angel on the path). Yesterday, disgruntled Angel’s Path neighbor Clarence Peters narrowly escaped being thrown out of court because he defended against summary judgment on the cheap. Today, we find out how his neighbors, the Kramers, fared when they went after the same developer because their home was disrupted by noise, dirt and even light from the new home development.

The Kramers claimed the dust and dirt was a public nuisance, and that Angel’s Path was causing the light to trespass on their homestead. These were both creative arguments, but the Kramers were doing their best to find a legal theory that would address the injustice they were experiencing. The developer leveled its legal guns, taking a very legalistic approach: the nuisance couldn’t be a public nuisance, it said: a public nuisance has to be affecting the plaintiff differently from the general public, and the general public was eating Angel Path’s dust just as badly as were the Kramers. As for the annoying light, Angel’s Point contended, there just weren’t any cases that said light could be a trespasser.

Chief Justice Oliver Wendell Holmes once famously chided a lawyer arguing before him that “this is a court of law, young man, not a court of justice.” Fortunately for the Kramers, the Ohio Sixth District Court of Appeals wasn’t having any of that. Often one can tell when a court is stretching to find some way to do justice. Clearly, the appellate judges were disenchanted with the developer, the lawyers for which were essentially telling them that while Angels’ Path had done everything the Kramers accused it of, there wasn’t anything the law could do about it. Nyah-nyah.

But it turned out that there was something the Court could do about it. It reinstated the suit, warning the Kramers that they might find it tough to win a trial, but the facts they had alleged suggested several theories they could pursue.

With the case once again headed for a jury of just plain folks who would be unimpressed with Angel Path’s legal hair-splitting and probably sympathetic to the sleep-deprived, dust-covered Kramers, one imagines that Angel’s Path very quickly recalled another pithy legal aphorism: “A bad settlement is better than a good lawsuit.”

Our takeaway from this case is that nuisance actions can be both flexible and powerful means of redressing neighbors’ activities that interfere with the legitimate enjoyment of home and hearth.

Kramer v. Angel’s Path, LLC, 174 Ohio App.3d 359, 882 N.E.2d 46 (Ohio App. 6 Dist. 2007). William and Patricia Kramer, sued Angel’s Path, L.L.C., , alleging that construction in a housing development resulted in blowing dust and dirt tracked onto their street and trespass from a lighted “promotional” sign that lighted the front of the Kramers’ residence 24 hours a day. They alleged that Angel’s Path’s development was a public nuisance because of the dirt and Angel’s Path was actually trespassing on their land with the 24-hour lighted sign.

The trial court threw the suit out altogether. The Kramers appealed.

Held: The Kramers could proceed to trial against Angel’s Path.

The Court of Appeals held that the Kramers were clearly wrong that the development was a public nuisance, but the facts they had alleged in their complaint, if true, did make out a claim for a private nuisance. The rule is that courts should interpret complaints to do “substantial justice,” and it would be unfair to make hyper-technical demands for precision in complaints. The rules only require that a complaint “contain a short and plain statement of the circumstances entitling the party to relief and the relief sought.” The factual allegations in the complaint should control whether some legal cause of action has been properly pleaded and supported on summary judgment.

The opinion contains a welcome primer on nuisance law. The Court noted that the law of nuisance “has been described as the most ‘impenetrable jungle in the entire law’.” Generally, though, nuisance” is defined as “the wrongful invasion of a legal right or interest.” It may be designated as “public” or “private.” A public nuisance is “an unreasonable interference with a right common to the general public,” and arises only where a public right has been affected. To recover damages under a claim of public nuisance, the plaintiff must establish (1) an interference with a public right and (2) that the plaintiff has suffered an injury distinct from that suffered by the public at large.

To the Kramers, “Blinded by the Light” was more than a Springsteen ditty once covered by Manfred Mann … it was an every-night occurrence.

By contrast, a “private nuisance” is a non-trespass “invasion of another’s interest in the private use and enjoyment of land.” Unlike a public nuisance, a private nuisance threatens only one or few persons. In order for someone to be entitled to damages for a private nuisance, invasion has to be either (a) intentional and unreasonable or (b) unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

A nuisance may be “continuing or permanent.” A continuing nuisance arises when the wrongdoer’s tortious conduct is ongoing, perpetually generating new violations. A permanent nuisance, on the other hand, occurs when the wrongdoer’s tortious act has been completed, but the plaintiff continues to experience injury in the absence of any further activity by the defendant.

For a nuisance to be an absolute nuisance, it must be based on intentional conduct or an abnormally dangerous condition that cannot be maintained without injury to property, no matter what precautions are taken. Strict liability is imposed upon an absolute-nuisance finding. When a defendant commits an unlawful act deemed to be an absolute nuisance, he or she becomes an insurer, and will be liable for “loss resulting from harm which may happen in consequence of it to persons exercising ordinary care, irrespective of the degree of skill and diligence exercised by himself * * * to prevent such injury.”

Every day seemed like the Dust Bowl to the Kramers ...

Every day seemed like the Dust Bowl to the Kramers …

On the other hand, if the conduct is a “qualified” nuisance, it is premised upon negligence. A qualified nuisance is defined as essentially a lawful act “so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.” Under such circumstances, the nuisance arises from a failure to exercise due care. To recover damages for a qualified nuisance, negligence must be alleged and proven. Whether a party’s actions were reasonable is generally a matter for the trier of fact.

Trespass on real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another. The elements of a trespass claim are “(1) an unauthorized intentional act and (2) entry upon land in the possession of another.” A trespass claim exists even though damages may be insignificant. A person can be a trespasser without actually stepping onto another’s property. A trespass may be committed by invading the airspace of the property. This principle is based upon the concept that an owner of land owns as much of the space above the ground as he or she can use.

Here, Angel’s Path argued that the Kramer’s “public nuisance” was undercut by their admission that several neighbors suffered from the same excessive dirt and dust that bothered the Kramers. Therefore, it claimed, the Kramers failed to establish a claim for nuisance, because their injuries were no different that those suffered by the public in general. Angel’s Path also argued that the light shining into the Kramer home was not a trespass.

The Kramers countered with an affidavit and photos of the property across from their home and of their home, showing that the dirt and dust blew straight from the Angel’s Path property across their land. They even produced Weather Service wind records supporting the claim. As for the light, they contended that the entrance-sign light ­– directly across from their house – continuously lit up their home “in an annoying and harassing manner,” including the three front bedrooms. They had asked Angel’s Path turn off the light, nothing changed until after they sued, and took the deposition of an Angel’s Path executive.

The Kramers showed proof of the dirt in their home, and documented the costs of cleaning it up. They also described the Angel’s Path sign – “like a headlight shining into [the] bedroom windows” – and the problems this caused.

The Court of Appeals disagreed with Angel’s Path that a claim for “public” nuisance could not be sustained, because too many people apparently suffered the same deprivations. Under this line of reasoning, the Court observed, a person creating a public nuisance could escape liability simply by harming more than one party. Plus, the Court held, even if the Kramers had no public nuisance claim, they may still have a claim for private nuisance. Although Angel’s Path construction may be lawful, questions of fact remained as to whether the developer failed to exercise due care and was so negligent “as to create a potential and unreasonable risk of harm” resulting in the Kramers’ injuries. Thus, the Court wouldn’t through out the suit.

The Court was concerned that light invasion claim was “an unusual and perhaps creative application of trespass law.” The Court conceded that arguably, the Kramers could assert that the light physically invaded the airspace over their property. But even if this argument doesn’t carry the day, the Court said, genuine issues of material fact remained as to whether the lighted sign may be a public or private nuisance.


And Now The News …



bigxmastree61202Reno, Nevada, Gazette-Journal, December 1, 2016: Los Angeles outlet mall defeats Sparks Nugget Casino’s ‘tallest Christmas tree in America’

“Nugget Casino Resort, we humbly accept your congratulations and the kind words have us aglow,” according to a statement from Citadel Outlets. “We love that this festive rivalry helped spread holiday joy far and wide. If you eat your Wheaties, we’ll have quite the competition next season!” While Citadel Outlets claims to be the tallest fresh-cut Christmas tree in the world, it’s possible another one will pop up somewhere else to contend for the title. But for now, it is theirs. Most other “trees” taller than 115 feet are in fact, constructed out of thousands of smaller trees or made of metal and not an actual tree at all. A 278-foot metal Christmas “tree” in Rio de Janeiro, Brazil, was awarded the tallest floating Christmas tree in the world as it drifted around Rodrigo de Freitas lagoon in 2007 and continues that tradition each year. Citadel Outlets director of public relations also noted that their tree is adorned with 10,000 ornaments and bows and 18,000 lights, compared to the Nugget’s 3,000 LED lights. Both trees are White Firs but the Nugget’s tree came from Oregon while the Citadel’s tree came from northern California’s Shasta-Trinity National Forest…

Cedar Rapids, Iowa, KCRG-TV, December 1, 2016: Historic oak tree in Waverly coming down Friday

The bur oak located next to the civic center in Waverly actually pre-dates the community. It’s estimated to be at least 217 years old. Last summer, the city decided because the tree was dying and in danger of toppling it had to come down. On Friday, workers will begin cutting down the historic bur oak with the job expected to take two days.
The city plans to close off part of a parking lot and a walkway to accommodate the work…

treeonhouse161201Youngstown, Ohio, WFMJ-TV, December 1, 2016: Tree topples on Youngstown home

It may have been wind, the rain or a combination of both, but a woman living on Youngstown’s West Side felt the effects of the weather on Thursday. A large tree toppled over on Cranbrook Court, damaging the roof and siding of a home. No one was injured. In spite of the high winds, FirstEnergy only reports a handful of power outages in Mahoning and Columbiana Counties…

Hilton Head, South Carolina, The Island Packet, December 2, 2016: No, do not level the trees of Beaufort County

Lowcountry trees need champions more than ever on Arbor Day this Friday. Hurricane Matthew knocked over more trees than we can count when it crossed Beaufort County as a Category 2 storm on Oct. 8. Since then, some people have been saying we had too many trees. They say county, municipal and private regulations to preserve trees need to be whittled down to the size of a No. 2 pencil so our naked fortresses can be unscathed the next time we get hit by a hurricane. These people are wrong. We are not Manhattan. Manhattan still has plenty of housing available for those who want that. But we are trying to be Central Park. Today, more than ever, we must understand our heritage and fight this new assault on it. From the beginning of recorded history, people who have discovered Beaufort County have remarked lovingly on its trees…

treeshot161201San Gabriel Valley, California, Tribune, November 29, 2016: Can these tree ‘shots’ save urban park trees from deadly beetles and disease?

Don Grosman hooks tiny needles into the bark of a 50-foot-tall sycamore tree, injecting the tree with a medicinal cocktail to ward off Fusarium Dieback, a plague killing urban street and park trees. “We equate it to giving someone a shot for the prevention of a disease,” said Grosman, technology advancement manager and entomologist with Arborjet, Inc., a Massachusetts company that patented the combination of pesticide and fungicide that’s directly shot into a tree’s vascular system like a shot is injected into a person’s bloodstream to prevent measles or the flu. Grosman returned Tuesday to the Pomona Fairplex grounds to complete a three-year trial started in January 2014 in cooperation with researchers at UC Riverside. So far, results are promising, he said: Ninety percent of trees that received an injection of a combination of two chemicals, Propizol (propiconazole), a systemic fungicide; and TREE-age (emamectin benzoate), a general use pesticide; showed no signs of the disease…

Accuweather, November 30, 2016: Holiday hacks to keep your real Christmas tree fresh all season

Now that Thanksgiving has passed, families who decorate for Christmas might be thinking about selecting that perfect live tree for their homes. If you are choosing the real thing this year, here are some tips to keep your Christmas tree as healthy as possible this holiday season. Two simple things to keep in mind when you are preparing your tree for the indoors: Ask for a fresh cut on the trunk and make sure the tree gets water right away…

vandal161201Los Angeles, California, Times, November 30, 2016: Vandals damage six eucalyptus trees in Laguna Beach, police say

Laguna Beach police are treating cuts to the trunks of six eucalyptus trees as vandalism. On Saturday, a pedestrian in the Aliso Creek Shopping Center reported that a eucalyptus tree had a 1- to 2-inch-deep cut near its base, Sgt. Tim Kleiser said. Across South Coast Highway at the Montage Laguna Beach, five eucalyptus trees had sustained 1- to 2-inch cuts at the bases of their trunks, police said. A security guard reported the cuts to authorities on Nov. 21. Police said the damaged trees at the Montage, a luxury hotel, were located next to a walkway near the highway…

San Bernardino, California, Sun, November 30, 2016: Can Joshua trees survive global warming? Scientists have differing thoughts

It started with a 2011 study that indicated by the turn of the century there would be no more Joshua trees in the national park named after the iconic desert plant. And likely none in California. “I was shocked when the study came out. I wanted to look at the details and change the scale,” said Cameron Barrows, a research ecologist for the UC Riverside Center for Conservation Biology in Palm Desert. The large scale of the study by Kenneth Cole, a climate scientist for the federal government’s Colorado Plateau Research Station in Flagstaff, Arizona, missed many of the geological nuances of Joshua Tree National Park and elsewhere, according to Barrows, which could ultimately mean survival for the Joshua tree species…

lawsuittree161130San Francisco, California, Chronicle, November 28, 2016: Woman paralyzed by falling tree limb sues SF

A San Francisco woman who was paralyzed when she was hit by a falling tree limb in Washington Square Park filed a lawsuit against the city for negligence on Monday. The Canary Island pine tree off of which a 100-pound branch splintered off and struck Emma Zhou, 36, on Aug. 12 had been “negligently pruned” in a method that “causes the rapid growth of large, heavy, and weakly attached branches that can fall and injure or kill people,” the lawsuit filed in San Francisco Superior Court stated. Zhou had been watching her young daughters play in the park’s playground before a dental appointment when the branch fractured her skull and severed her spinal cord, leaving her paralyzed below the waist. “We haven’t been served with the lawsuit, so we can’t comment on specifics about something we haven’t seen,” said John Cote, a spokesman for the city attorney. “Generally speaking, we evaluate every case we receive and decide on the best way to proceed. What happened to Ms. Zhou is heartbreaking, and our thoughts go out to her and her family…”

London, UK, BBC, November 29, 2016: Oxford tree surgeon’s chainsaw death ‘bad luck’

The death of a tree surgeon who sliced his neck open with a chainsaw was just “bad luck”, an inquest has heard. Alexander Kirkley, 32, was cutting branches from a hoist on an ash tree in Oxford on 12 February when his tool “kicked back” and hit his neck. Oxford Coroner’s Court was told he held his neck before falling unconscious. One of his colleagues tried to stop the bleeding and an ambulance was called but the arborist later died in the John Radcliffe Hospital. The Oxford-born outdoorsman had spent three years living in New Zealand where he perfected his trade. At the jury-led inquest, coroner Darren Salter read evidence from one of Mr Kirkley’s trainers Josh Paice who wrote: “To this day [Alex] was one of the most safety-conscious tree surgeons…

treefall161130Atlanta, Georgia, Journal-Constitution, November 29, 2016: How to know whether your tree will fall in a Georgia storm

Trees provide many benefits, but during Georgia storms, they can fall and create a dangerous situation. The following guide will help you keep your trees from falling (when possible) and know what to do if it happens. Trees can fall during storms for a variety of reasons, including: Winds: Winds can uproot a tree, with the tree trunk acting as a lever. This is a greater problem for tall trees, because the force that’s applied to the roots and trunk is greater as the tree’s height increases, according to Scientific American. This can also happen if a tree was previously in a more forested area, protected by other trees that have since been cut down (to create a new housing lot, for example). Rain: When the ground becomes saturated from large amounts of rain, trees can topple more easily. The more wet the ground is, the less wind it will take to make it fall. Ice: During an ice storm, the weight of ice can increase the weight of branches by 30 times…

Chambersburg, Pennsylvania, Public Opinion, November 29, 2016: Christmas tree growers see brisk sales

Warm weather is helping to boost Christmas tree sales, according to area growers, making business this year so far as good or better than last year. “We have seen that more people and their families are coming out to because it’s been warmer than usual,” said Doug Elliot, son of owner Bill Elliott of Elliott’s Christmas Trees, Willow Hill. “It’s great to not have cold weather because the trees will last longer.” Dennis Kauffman, co-owner of Kauffman Family Christmas Tree Farm in Waynesboro, believes this year could be his best year ever. “Currently we are equal to or better than last year, which was our best year ever,” he said. “So this season could definitely be as good as we have ever done…”

xmastreecut161128Davenport, Iowa, The Quad Cities Times, November 28, 2016: Christmas tree farmers ready for rush

Apparently, people don’t cut down their own Christmas trees in Texas. So, Moline native Tyggenn White, who now lives in Dallas, decided to reunite with her family this month in the Quad-Cities to share the experience with her young daughter. “It’s just not something people do there,” said White, who traveled back to the chilly Midwest with her mother, husband and daughter. “It’s a harsh homecoming weather-wise.” Handed a saw and measuring stick, the family of nine, including three little ones, battled chilling winds to find the “greatest tree” the old-fashioned way at Wyffels Tree Farm in Moline…

West Lafayette, Indiana, Purdue University Ag News, November 28, 2016: Christmas tree supply looks strong for 2016 holiday season

People ready for some holiday cheer can celebrate a healthy 2016 Christmas tree supply with plenty of choices in size and species, said Daniel Cassens, a Purdue University professor of forestry and natural resources and Purdue Extension wood products specialist. A dry summer and wet autumn initially caused some worries, said Cassens, who has grown and sold Christmas trees for 38 years at his farm at 5038 Morehouse Road, West Lafayette. “Conifers don’t like wet feet and we had a wet August,” he said. “And the dry June and July were a bit scary, especially for seedlings. But we’ve seen no lasting effects from weather and no significant insect or fungal problems either. The trees look very healthy.” Cassens, a member of the National Christmas Tree Association and the Indiana Christmas Tree Growers Association, said that while most tree shopping typically happens after Thanksgiving, some consumers had already started purchasing their trees by mid-November. Prices for Christmas trees typically vary according to the species, quality and size of the tree, with smaller trees selling for less than larger or more exotic ones…

giffordforest161128Portland, Oregon, KOIN-TV, November 28, 2016: ‘Big Tree’ in Gifford Pinchot Forest dies

One of the oldest and tallest ponderosa pines in the Pacific Northwest has died with little fanfare after hundreds of years. The Columbian says the so-called “Big Tree” was a well-known attraction for tourists driving through the Columbia River Gorge. The 213-foot-tall ponderosa near Trout Lake in the Gifford Pinchot National Forest in southwest Washington died last year but its demise was not made public. The Big Tree contained about 22,000 board feet of lumber – enough wood to frame almost one and a half 2,400-square-foot homes. No one knows exactly how old it was, but guesses range from 370 years old to more than 500 years old…, November 28, 2016: Did Christmas Tree bugs hitch a ride into your house?

Picking the perfect live Christmas tree from a farm or lot is a tradition many people love—there’s nothing like the scent of a freshly cut pine tree to usher in the holiday spirit. Still, with a live tree comes the possibility of bringing home some unwelcome guests: namely Christmas tree bugs hitching a ride into your house. These tree-dwelling insects tend to go dormant during the cold months, but as soon as you bring your tree indoors and the bugs warm up, they can spring right back to life. That means that in addition to cleaning up pine needles, you might also have to deal with a whole party of crawly critters, too. Christmas chaos! Don’t worry, though—it’s relatively easy to kick ’em out. The best way to rid your Christmas tree of bugs is to shake it off—with a mechanical tree shaker, that is. Many lots and farms have a shaking service…

xmastree161128Toledo, Ohio, Blade, November 27, 2016: Oh, Christmas tree! Tips to keep your fir fit for the holidays

The Thanksgiving dishes are back in the cupboard, and the long table has been stowed away for another month. Now, it is time to get serious about decorating for Christmas. The tree is the typical focal point. Let’s cut through some of the facts and fiction when it comes to your tree. Fact: If you are a faux tree fan, invest in a tree that is pre-lit to save on the frustration of stringing it with lights. Fiction: Drilling holes at the base of your real tree will help it take up water. (In fact, the tree’s trunk has millions of tiny straw-like cavities that take up water and drilling one hole doesn’t open them back up again once they have been clogged.) Fact: Always give your real tree a fresh cut at the bottom, then immediately put it in water so it will keep taking up water for weeks to come. Fiction: You should give your tree hot water. (Actually, scientists say the water can be any temperature. Warmer water doesn’t go up any faster than cold)…

Mason City, Iowa, KIMT-TV, November 27, 2016: Tree limb-cutting leads to fire response

Firefighters responded to what was thought to be a house fire in Clear Lake Sunday afternoon, only to find that the smoke was coming from a wood-clearing project. According to a statement from the Clear Lake Fire Department, the report was called in at around 4 p.m., when smoke was seen coming from 1605 1st Avenue North. Two pumper trumps, one rescue unit, and 13 firefighters converged on the home, where they found the smoke was coming from an “occupant cutting down tree limbs.” Firefighters say limbs knocked down power lines in front of the home, which led to current shooting back into the house. That produced smoke in the basement. Firefighters used a fan to pull smoke from the basement level of the home. No injuries were reported…

hammersch161128New York City, Wall Street Journal, November 25, 2016: The hardest thing about Hammerschlagen is scoring a tree stump

Tyler Wilbricht was driving on the rural outskirts of Madison, Wis., last spring when he spotted the perfect gift for his brother’s wedding: a soggy maple tree lying in massive sections on the side of the road near a dairy farm. Mr. Wilbricht’s brother, Nick, is a devotee of Hammerschlagen—or Stump, as some call it—a game that is increasingly popular at tailgate parties, outdoor concerts, beer festivals and family barbecues. The game is simple: players compete to hammer nails into a circular wood surface. In Stump, players typically must flip the hammer in the air before striking their opponents’ nails; the player with the last nail standing wins. In Hammerschlagen (German for hammer strike, a nod to its supposed Bavarian origins), each player strikes his own nail. The task demands strength, dexterity, focus and, often, a lot of beer. Above all, it requires a tree stump. And good stumps aren’t easy to come by…

Newton, New Jersey, New Jersey Herald, November 27, 2016: How to choose a fresh Christmas tree

Selecting a fresh Christmas tree is a beloved tradition for many of us. Sadly, all trees, including evergreens, have been severely stressed by this year’s drought. Here are some tips for choosing a tree that will hold onto its needles and look its best for the holidays. Choose a tree that has been grown locally. Many local Christmas tree farms will have precut trees ready on the weekends and generally cut their trees just a day or too before. Precut trees trucked in from New England, New York, or Pennsylvania — where they also suffered a drought — have been cut and drying out for a week or more and will not last as long. Look carefully at the needles on the tree. Avoid any trees with needles tipped with yellow or brown. The American Christmas Tree Association advises these methods for assessing a tree’s freshness: “Grasp a branch in your hand, about a foot from the end, and pull your hand back, letting the branch slip through your fingers. The needles should stay attached to the branch, and not come off in your hand. You can also grasp the tree by the trunk and tap the base of it against the ground. If a cloud of needles falls to the ground, then the tree is well on its way to being dead. The needles and branches should also be flexible when bent. If they break or don’t spring back into shape, the tree is drying out. Another way to tell if a tree is still fresh and lively is by smelling the branches and trunk. If it still has that sappy, earthy smell, then the tree will probably last for several more weeks. If it’s odorless, then you should give it a pass…”

xmastree161125Willoughby, Ohio, News Herald, November 23, 2016: Christmas tree farm in Painesville Township blends business, pleasure for owner

Rob Kennedy, owner of Kennedy Tree Farm in Painesville Township, said his business offers a festive Christmas tree-hunting experience, with carols playing, a fire going, and hot chocolate and goodies for patrons. But he suspects that something else may keep some customers coming back: Braylee. “She’s a 5-year-old yellow Lab,” said Kennedy, who bought the spot at 320 Bowhall Road a few years back. “She’s a huge hit and people literally come here to see her. “Last year a woman told me, ‘We ask the kids where they wanted to go get a tree and they said the place with the doggie…’ “

Sunbury, Pennsylvania, Daily Item, November 23, 2016: From turkey to tinsel: Tree farms get ready for Christmas tree sales

As area residents wrap up their Thanksgiving Day festivities, farms across the Valley are ready to sell thousands of Christmas trees. Alan Ard, the co-owner of Ard’s Farm in Lewisburg, said they sell 800 to 900 trees each season.
Kirk Decker, of the Decker Tree Farm in Middleburg, said his farm usually sells 3,000 trees wholesale at auction and 300 trees to retail customers at the farm. Stan Kohl, the owner of Kohls Stony Hill Tree Farm in Milton, said they will sell 2,000 to 3,000 trees. Kohl said his farm attracts customers from Maryland and New Jersey. “It impresses me that they pass countless tree lots on the way up and they still choose mine,” he said. Kohl recalls many out-of-state families seeking him out to tell him they’ve returned to get their tree from his farm. He said when it comes to the Christmas tree business, customer service always matters…

millfiredamage161125San Andreas, California, Calaveras Enterprise, November 23, 2016: Beauty hewn from disaster: Butte fire and Bark Beetle-ravaged trees feed new industry

Trees in Sierra Nevada forests are dying in large numbers due to fires such as the Rim and Butte fires, drought and the ravages of bark beetles. Some of those millions of trees are even now being cut down because the trees threaten homes, power lines or roads. The number of logs far outstrips the capacity of area mills. And in some cases, conventional mill owners don’t even want the material due to insect damage or the wood’s rapid decay after the trees die. Ultimately, most of it may be chipped or burned. Yet some area artisans are finding ways to make use of that timber, including the so-called “blue stained” wood from trees that have been standing dead for a year or more. Diane Winsby of Calaveras Lumber in Angels Camp said she has seen an increase in orders for blue stained wood that she believes it will increase as more people become aware of its uses. Right now, she said, Calaveras Lumber does not stock blue stained wood but the company will take special orders…

Gwinnett, Georgia, Daily Post, November 23, 2016: How to manage trees in distress in the home landscape

Why does a tree suddenly begin to wilt and die? What could cause one tree to suffer while others nearby remain healthy? In recent years, trees in our area have been under high-stress levels as a result of droughts, construction activities, storms, insects, and diseases. Often the symptoms do not become apparent until months or even years after the affliction has begun. If any trees on your property are of concern, consider hiring a Certified Arborist to do a thorough assessment of the tree. Certified Arborists are professionals who have passed a special licensing exam and have met certain requirements through the International Society of Arboriculture (ISA). Arborists are well trained in many facets of tree care including tree health, pest management, soil fertility, assessing storm damage, and proper pruning techniques. An arborist can examine and identify the potential risks of trees on your property and recommend specific treatments, such as pruning, to maintain their health and vigor…

treefarm161123Chicago, Illinois, Tribune, November 22, 2016: Skip Black Friday shopping; spend the day at the Christmas tree farm

Chris Czarnowski is hoping that more people skip Black Friday shopping trips in favor of a morning spent at his family’s Christmas tree farm. They own Ben’s Tree Farm in Harvard, and he said that thanks to the rain and warm weather, they have a great looking crop of trees this year. The late Ben Czarnowski opened the tree farm in 1986. Today, it’s run by his three sons. There are also two grandsons named Ben, so the future of the farm looks bright. “We have customers who are second generation — they came as kids and now they’re married and are bringing their kids,” he said. “Especially during that retail season of Christmas, you picture all those crazy Black Friday shoppers, but it’s like a totally different thing to do that weekend. It’s a good alternative..”

New York City, New York Times, November 22, 2016: Statehouse workers deem Christmas tree too puny, replace it

A Christmas tree selected for the Rhode Island Statehouse rotunda has been removed after staff decided it was too puny. The 14-foot-tall Fraser fir was donated by a tree farm. Workers put it up Tuesday but then realized it was too small and didn’t fill the rotunda. The governor’s office says the little tree was moved outside to the statehouse steps and will be decorated and displayed there. The office has gotten a 20-foot-tall Balsam to replace it…

cuttrees161123Washington, D.C., Post, November 22, 2016: These activists paid to protect trees that were later cut down

Tree crews working along the George Washington Memorial Parkway have removed about 70 trees from the Dyke Marsh Wildlife Preserve, upsetting activists who had raised money to protect some of those trees. National Park Service officials say the move is part of a broader effort to eliminate trees killed by the emerald ash borer, an exotic beetle, and to reduce the risk of branches or trees falling on passersby. Trees also are being removed along the parkway in Arlington, near Spout Run, as they were in the Great Falls area a year or two ago, said Aaron LaRocca, chief of staff for the superintendent of the parkway. Some diseased oak trees in the median of the parkway near Daingerfield Island in Alexandria also will be taken out soon…

Wake Forest, North Carolina, The Creole, November 22, 2016: Here are some tips for selecting, planting trees

October to March is the prime season for planting hardy trees in Louisiana, and November through early December is an especially good time. The soil is still warm, which encourages vigorous root growth, and trees will have several months to get established before next summer’s heat. At the same time, the weather is cool and the trees are going dormant, which reduce stress. Generous rainfall during winter makes constant attention to watering unnecessary. Planting at this time is especially beneficial for balled-and-burlapped trees because they lose so much of their root system when they are dug. The trees you plant eventually will grow much larger than the saplings you purchase and bring home from the nursery. Although it is tempting to plant more trees than you really need, years later you will realize you made a terrible mistake. No one tree is perfect tree for Louisiana. All trees have advantages and disadvantages, depending on the planting location and desired characteristics. Here are some points you need to consider…

grandchildren161122Louisville, Kentucky, Courier-Journal, November 21, 2016: Tree ordinance to follow $1M trees donation

TreesLouisville will receive a $1 million matching grant, allowing the nonprofit group formed last year to enter a new phase in its effort to help rebuild the city’s depleted tree canopy. And Metro Councilman Bill Hollander said Monday that he will introduce a long-anticipated tree protection ordinance by Dec. 5. The ordinance will regulate the protection of trees on public rights-of-ways while offering owners of private property voluntary methods of protecting their trees. Both announcements were made Monday at a news conference at Gilmore Lane Elementary School, where private donors working with TreesLouisville and Jefferson County Public Schools have already planted more than 60 news trees. Susan Barry, president & CEO of the Community Foundation of Louisville, said the foundation received $1 million to be used as a challenge for other donations to its TreesLouisville Fund. The immediate goal is to double the $1 million, which officials said came from an anonymous donor…

CNBC, November 21, 2016: Get the best Christmas tree money can buy. Here’s why

When it comes to buying a long-lasting, low-maintenance holiday tree, go with the fir and avoid the spruce. That’s the recommendation from Christmas tree experts, including the self-proclaimed “Chuck Norris of Forestry” Les Werner, a forestry professor at the University of Wisconsin-Stevens Point. “Firs will be the longest-lasting trees, and they’re the ones with the fragrance you associate with Christmas,” he said. Oscar Sloterbeck, senior managing director at investment banking firm Evercore and author of the company’s annual Christmas tree sales survey, agrees. “I’m a fan of the Douglas fir,” he said. “It holds the needles and color longer.” But don’t take their word for it. Science is on the side of the fir…

maple161122Morganton, North Carolina, News-Herald, November 21, 2016: The mystery of the missing maple tree – Burke County Notebook

Every Tuesday when I go to the Collett Street Recreation Center for our writing group, I round the corner at the Financial Building across the street and am once again dismayed at the large gaping hole staring at me where a beautiful, healthy, maple tree once stood. My friends, Ian and Terri Robins and I tried to count the rings on the stump to see how old the tree was. Some of the rings were about an inch apart indicating fast growth because of good weather conditions, the right amount of rain, maybe a long summer like this past one. Other rings were closer together, showing the summer had been too dry for much growth. We never did get the rings counted, so we started estimating the age of the tree by its size. I think Ian came to the conclusion that the tree was about 60 years old. I thought it might be closer to 75…

Staunton, Virginia, Augusta Free Press, November 21, 2016: Virginia Christmas tree growers deliver on this year’s harvest

It’s not quite Thanksgiving, but the Christmas tree harvest is in full swing and Virginia growers are experiencing a good one. The state’s Christmas tree industry includes thousands of growers, according to the Virginia Christmas Tree Growers Association. It is estimated that they have more than 7 million trees planted. VCTGA Vice President John Carroll grows several varieties of Christmas trees at Claybrooke Christmas Tree Farm, a choose-and-cut operation in Louisa County. “The crop is good this year,” Carroll said. “Most choose-and-cut growers are selling most of their inventory every year, and this year won’t be any exception. Seventy-five percent of sales are derived from the experience of finding the perfect tree in the field.” Most growers are sensitive to keeping their product affordable. “There will most likely be a modest increase in tree prices this season to help recoup some of the recent increases in production costs,” Carroll said…

copperwood161121Stamford, Connecticut, Advocate, November 20, 2016: Greenwich resident fights to save majestic copper beech tree

When a fire destroyed a home she owned in town last year, Old Greenwich resident Chris Katsigiannis had no doubt she would rebuild. But while new home construction often means making changes, Katsigiannis was adamant one thing would not change. A beloved copper beech tree on the property, estimated by arborists to be at least 150 years old and 65 feet high, was pegged for removal by professionals planning the new house. “The architect is not a tree lover like me and she just kept saying, ‘The tree has to go’ and I kept saying, ‘No the tree stays. Make the house smaller instead,’” Katsigiannis said. “And here we are. The tree has stayed and while we had to trim one limb the rest is intact.” Three arborists have looked at the tree and said it has a more than 50 percent chance of survival, despite some serious challenges over the past year, she said…

New York City, Fox News, November 20, 2016: City eyed $41G in fines from Trump supporter over tree fliers

WABC-TV reports that Mike Ricatto, 59, plastered trees in his Kew Gardens, Queens, neighborhood with “wanted” fliers after Donald Trump campaign signs in his front yard were stolen. Ricatto’s surveillance cameras captured a grainy picture of the thief which he put on the fliers. The Parks Department claims the staples Ricatto used to post the fliers caused damage to the trees, though the department’s own lawyer said staples don’t damage trees, according to the station. “Weeks and week later, I got visited by some Parks Department personnel and they handed me 22 summonses,” Ricatto told the station…

cutwood161121London, Ontario, Free Press, November 20, 2016: Tree rules were passed for developers, not the devout

The city beefed up its tree-protection bylaw to preserve vast stands of trees from being cut down by developers without a permit, a city councillor says. The bylaw is in the spotlight after St. Peter’s seminary cut down 100 trees without a permit last week. “It used to be that if you had trees on private property and not on protected land, you could cut down trees,” Coun, Phil Squire said. “That led to a lot of issues where developers cut down trees and citizens were rightly upset.” Residents of Old North are upset that trees, including some stately pines and black walnuts about 100 years old, were cut down last week on the seminary property on Waterloo Street…

Norwalk, Ohio, Reflector, November 19, 2016: Tree trimmer dies from injuries in crash

A Bucyus man has died from injuries sustained in Thursday’s crash on Ohio 13 near Fitchville. Zachary T. Warner, 34, died Saturday morning at St. Vincent Medical Center in Toledo. The crash remains under investigation and charges are still pending, said troopers with the Norwalk post of the state Highway Patrol. Warner, 34, of Bucyrus, was one of three men working for Oberlander’s Tree and Landscaping of Bucyrus who were hurt in the accident. Troopers said two vehicles belonging to Oberlander’s — a 2004 International bucket truck and a 2012 Dodge pickup — were parked in the northbound lanes of Ohio 13 just north of U.S. 224 and a flagger was in place behind the vehicles just before 11 a.m. Warner and two workmates — Calvin J. Hoover, 50, of Tiffin, and Ryan A. Niedermeier, 28, of Bucyrus — were standing near the vehicles, getting ready to trim evergreens along the power lines for Firelands Cooperative Electric Co., when a northbound commercial semi-tractor failed to stop and struck both tree company vehicles and the three men, troopers said…

bambooz161118New Jersey Advance, November 17, 2016: Bamboozled: After a tree fell in the driveway…

We didn’t see it coming. Or hear it happen. During a windy day last month, a 40-foot tree landed in our driveway. Right on top of the glorious Bamboozled minivan. We went outside to look, and boy, we were lucky. Only the very top branches grazed the minivan, leaving one small dent on the bumper and a couple of minor scratches. But we had a 40-foot tree laying across the driveway. The plan was to get estimates to remove the tree, but also to have someone assess the health of two trees that seemed to share their fallen brother’s root ball, and a fourth tree, some 65 feet tall, in the same planter bed. We didn’t want to see any of the trees go. Year after year, the trees were the backdrop for many family photos. They provided shade, and copious piles of leaves for the kids to play in. This quartet of trees even had an interesting survival story. During the construction of our development in the 1980s, the home’s original owner said, the builder wanted to remove the trees. It was a big fight, but the homeowner prevailed and the trees remained. But alas, it was probably time for the trees to come down before one landed on the house…

Roslyn Harbor, New York, The Island Now, November 17, 2016: Tree removal splits Harbor Board

Members of the Roslyn Harbor Board of Trustees aired disagreements last Thursday over a possible limit on a resident’s capacity to cut down trees. The difference of opinion centered on the mayor’s proposal that next-door neighbors be notified if a resident requests a permit to remove a tree that provides significant screening, or protection from outside view, for the neighbor’s property. “If the Tree Committee makes the determination that a tree removal will have a significant adverse effect on screening then it will let the neighbor know,” Mayor Louis Badolato said…

protest161118London, UK, The Sun, November 17, 2016: Two OAPs arrested after coming to blows with council workers over secret tree-cutting plans

TWO gutsy pensioners were arrested by cops yesterday after council killjoys ordered the felling of eight 100-year-old trees in a dawn raid. Retired uni lecturer Jenny Hockey, 70, and ex- teacher Freda Brayshaw, 71, were seized after they raced out into the street to protest at the secret 5am operation. The pair refused to budge from one of the targeted trees to thwart council workmen armed with chainsaws but were carted away for a breach of the peace. Jenny’s husband Bob, 72, fumed: “All the neighbours were woken up at around 5am and asked to move their cars. “Jenny was straight out and said the residents had not been told that the trees would be taken down…

Springfield, Missouri, News=Leader, November 17, 2016: Trees provide numerous benefits to landownersTrees can provide a multitude of benefits to your acreage.

Whether you have a large farming operation or merely own a few acres outside the city limits, planting the right trees in the right places can make big improvements to your land. Besides improving the aesthetics of your property, trees can also produce economic benefits for the landowner in many cases. Landowners wishing to make forestry improvements on their property can do so through the Missouri Department of Conservation’s annual tree seedling sales program, which is currently underway. Through this program, landowners can purchase bundles of seedling trees from the department’s George O. White Nursery in Licking. Bundle sizes vary, depending on the purpose of the planting, but most range between 25 and 50 plants. The ordering period will run through May 1. Orders are filled on a first come, first served basis. Because of the popularity of this program, shortages in planting stock of some species occur soon after the ordering process starts. The toll-free number listed in the order form allows customers to find out what tree types are still available. The number will be operational beginning Dec. 1…


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


Case of the Day – Thursday, December 1, 2016


Filthy_animal140324Any fan of the Christmas comedy hit of the 1990s, Home Alone, remembers Angels with Dirty Wings. It was the film noir movie that the kid protagonist played repeatedly, the mobster’s taunt – “Keep the change, ya filthy animal” – punctuated with a spray of .45 cal. bullets from a Model 1928 Thompson submachine gun, being used as part of the boy’s plot to keep the bad guys at bay.

In today’s case, the angel is Angel’s Path, a developer, and the dirt on its wings slid off a big mound the company put right on its property line as it built houses. The neighbors didn’t much like the dirt sliding into their back yard, and weren’t big fans of the stagnant water that collected after every rainstorm. But when Angel’s Path asked for summary judgment on the trespass and nuisance claims the Peters brought, for some reason they opposed it on the cheap, with an affidavit from Mr. Peters and a bare letter from their engineer.

It’s seldom a good idea, saving money at the most crucial moment in the litigation. Better to adhere to the old law school maxim, “too much is not enough.” You have affidavits from five experts? Use ’em all. You have five boxes of documents? Attach ’em. Opposing a motion for summary judgment is no time to spare the horses. Here, Mr. Peters should have had an affidavit from his engineer, his own survey done by a registered surveyor and recorded down at the county building, and enough pictures of shifting dirt piles and standing water to start his own Instagram site.

angelsfight140324But he didn’t. The trial court granted summary judgment to Angel’s Path, finding the survey of property lines — showing the dirt piles on its own land — more persuasive than Mr. Peters’ affidavit claim that the dirt had sloughed over the line. Peters’ affidavit was “self-serving,” the trial judge complained.

The Court of Appeals reversed. Sure the affidavit may be a little self-serving, the Court said, but for purposes of summary judgment — a fairly high bar for a defendant to leap — the Court had little problem believing that a property owner knew where his own boundary lay. The summary judgment test, after all, is whether the evidence, taken in the light most favorable to the party against whom summary judgment is sought, shows there’s no material question of fact.

This standard required that the trial court assume that any reasonably detailed facts Mr. Peters raised in his affidavit were true. If after doing this, the court still believes that Peters was not entitled to a judgment, then summary judgment could go for Angel’s Path. It was pretty clear that Mr. Peters was going to need a whole lot more persuasion at trial to pull the halo off Angel’s Path, but for now – at the summary judgment stage– his showing was enough to stay in the hunt. Just barely.

Incidentally, this case was brought with a companion case from the Kramers, who sued Angel’s Path, too. That decision is an interesting study in nuisance and trespass. We’ll consider that decision tomorrow.

angelspath140324Peters v. Angel’s Path, L.L.C., Slip Copy, 2007 WL 4563472 (Ohio App. 6 Dist., 2007). Clarence and Nanette Peters said that Angel’s Path, LLC, a developer, damaged their two residential properties. As a result of residential property development by Angel’s Path, dirt mounds at the edge of the development property caused water run-off and flooding on their adjacent land. They sought restraining orders to prevent Angel’s Path from trespassing on their properties or continuing to alter the natural flow of water, as well as damages.

Angel Path filed a motion for summary judgment, arguing that the earth mounds did not cause run-off to appellants’ property or any sinkhole conditions, and therefore, were not a nuisance; and that their surveyor said that the mounds did not encroach upon appellants’ property, so no trespass had occurred. The trial court also granted summary judgment against the Peters on both their nuisance and trespass claims. The Peters appealed.

Held: Summary judgment was reversed. A “nuisance” is the wrongful invasion of a legal right or interest. A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. In order for a private nuisance to be actionable, the invasion must be either intentional and unreasonable, or unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

If the private nuisance is absolute, strict liability will be applied. By contrast, a qualified nuisance is premised upon negligence, essentially a negligent maintenance of a condition that creates an unreasonable risk of harm. To recover damages for a qualified nuisance, negligence must be averred and proven. A qualified nuisance is a lawful act so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.

Where damage to one property by water run-off from an adjacent property is alleged, Ohio has adopted a reasonable-use rule. A landowner isn’t allowed to deal with surface water as he or she pleases, nor is the owner absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Instead, each landowner over whose property water flows is allowed to make a reasonable use of the land, even though the flow of surface waters is altered thereby and causes some harm to others. He or she incurs liability only when the harmful interference with the flow of surface water is unreasonable.

nuisance151019In answer to Angel’s Path’s motion for summary judgment, Mr. Peters provided an affidavit along with referenced photos that claimed the mounds created by Angel’s Path had slid across the common property onto his property. Peters’ affidavit also said that Angel’s Path workers entered onto his property to cut the weeds because the slope of the mounds didn’t allow appropriate maintenance without entering onto his land. Finally, the Peters affidavit stated that the back portion of his property now flooded and would not dry out, preventing his use of the land for a rental or for farming. Peters also included as a letter from his expert stating the mounds blocked the natural flow of the water, creating a “permanent pond,” and suggesting possible ways to eliminate the problem.

The Court said that Mr. Peters’ testimony about the location of his property lines, although perhaps not the best evidence to rebut a commercially prepared survey, was something presumably within the property owner’s personal knowledge. Therefore, despite the fact that he had not yet had a separate survey done, the Court would not disregard the affidavit. At the same time, the Court criticized the trial judge for placing too much weight on the fact that Angel’s Path plans had been approved by the local county engineers. The Court of Appeals said that while the county engineer and other agencies approved the Angel’s Path development plans, including the projected effects that it might have on surrounding properties, “such facts are of little consequence and comfort when examining the real-world results of the construction…”

Here, for the purposes of summary judgment, the Court concluded that the Peters had presented prima facie evidence to establish causes of action for private nuisance and trespass. Whether Angel Path’s actions were reasonable, intentional, or negligent, the Court said, are decisions to be made in a trial, not on summary judgment.


Case of the Day – November 30, 2016


leakybucket151016Law students learn in first-year civil procedure that it’s entirely proper to file utterly inconsistent pleadings. For example, if a complaint is that the defendant borrowed plaintiff’s bucket and broke it, the defendant can answer that (1) he never borrowed it; (2) when he returned it, it wasn’t broken; and (3) it was broken when he borrowed it. And lawyers wonder why there are so many attorney jokes …

But there are limits, and complaints in civil actions should not be completely mindless in their allegations. In today’s case, landowner Fischer changed the slope of his land, rebuilt a driveway and installed a retaining wall. His neighbor Christiana complained that the effect of his neighbor’s construction project was to send unwanted drainage onto his property. Fischer was unimpressed. “Cry me a river,” you can imagine him saying. Christiana’s lawyer – who perhaps was charging his client by the word – obliged, tearfully filing a four-count complaint claiming negligence, recklessness, nuisance and trespass.

crymeariver140326Fischer filed a motion to strike the recklessness and trespass counts. He argued that the complaint — even assuming everything Christiana has alleged was true — simply didn’t state a claim. Christiana depended on pretty much the same facts for recklessness as he did for negligence, except in the recklessness count, he charged that on top of everything else, Fischer hadn’t gotten permits from the town for the project. Well, maybe that was a little sloppy, at least as far as paperwork goes, but the Court held that Fischer’s lack of a few permits didn’t constitute recklessness towards Christiana. The recklessness count was bounced.

Fischer argued that the trespass count should be dismissed, because there was no allegation that he intended for the water to flow onto Christiana’s land. The Court disagreed with Fisher’s novel interpretation of trespass, holding that Fischer didn’t have to intend that the water trespass on Fischer’s land, just intend the act – that is, the diversion of the water – that resulted in the trespass. The distinction is subtle but crucial.

Thus, the trespass count remained, an important holding: the Court said in essence that without ever stepping foot on Christiana’s property, Fischer could have trespassed, just by being negligent in the way he altered water flow.

Christiana was upset because Fischer's retaining wall left his place a little soggier than it had been before ,,,

Christiana was upset because Fischer’s retaining wall left his place a little soggier than it had been before …

Christiana v. Fischer, Not Reported in A.2d, 2007 WL 3173949 (Conn. Super.Ct., Oct. 17, 2007). Christiana sued Fischer after Fischer altered the slope of his land and built a retaining wall. Christiana sued for negligence, recklessness, nuisance, and trespass. Fischer moved to strike the recklessness and trespass counts as insufficient to state a cause of action.

Held: The court split its holding, striking the count for recklessness but not the trespass count. Recklessness is a state of consciousness with reference to the consequences of someone’s acts, more than negligence, more than gross negligence. While the actor’s state of mind amounting to recklessness may be inferred from conduct, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

In Count 2, Christiana repeated his allegations of negligence and additionally alleged that Fischer rebuilt a driveway without a building permit and in violation of the town’s zoning regulations. Christiana, however, made no allegation that Fischer was made aware prior to completion of the alteration and construction work of any problems that he was causing that would drain water onto Christiana’s property. The Court found that the allegations failed to support a cause of action for recklessness.

As for the trespass count, Fischer argued that Christiana failed to allege any intentional conduct essential to state a cause of action for trespass, pointing out that there was no allegation that the defendants intended to direct water or other debris onto the plaintiffs’ property or that they acted with knowledge to a substantial certainty that the water or other debris would enter the plaintiffs’ property. But the Court held that to make out a trespass, a plaintiff had to have ownership or possessory interest in the land; there had to be an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; the act had to be done intentionally; and the act had to cause direct injury.

trespass140326However, a trespass need not be inflicted directly on another’s land, but may be committed by discharging water at a point beyond the boundary of such land. In determining “intent” for trespass purposes, the issue was not whether Fischer had intended the water to enter the Christiana’s land, but whether he had intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect that subterranean and other conditions would cause the flow.

Christiana alleged in his complaint that he had notified Fischer that he was having severe drainage problems as a result of the land alteration and construction on several occasions, and that Fischer failed to take corrective action. The Court found that Christiana’s allegations were sufficient to establish a cause of action for trespass.


Case of the Day – Tuesday, November 29, 2016


We were recently returning home from another part of the state when my wife, who loves exploring country byways, encouraged me to take a narrow township road. It was well worth it, with pastoral autumn views that put a state route – let alone an interstate highway – to shame.

Corn to the corners - and no clear sightline.

                           Corn to the corners – and no clear sightline.

At one corner on a township road, we happened on an excellent example of what we Ohioans call “corn to the corners,” the practice of planting right up to the edge of a field. We can hardly blame the farmer, who has to maximize the land’s yield in order to stay in business (and to cover the payments on a $200,000 tractor). But corn to the corners – like planting trees and shrubs near the road – can play havoc with sightlines and can pose a real hazard to motorists.

When an accident does happen, lawyers scramble to find as many defendants as possible, because usually, each defendant comes with his or her own insurance policy. As one old lawyer we practiced across from years ago, you have to “get the money flowing.” Nothing makes it flow like a whole passel of deep-pocket insurance companies lined up on the defendants’ side of the room.

But what duty does a landowner have to people traveling by? After Margaret Sheley was killed when her automobile collided with Kimberly Cross’ vehicle at an intersection, her family decided to test those limits. They sued Cross, the County and Buryl and Hazel Grossman, who owned the land by the intersection. The Sheley family argued the Grossmans negligently planted crops on their land such that a motorist’s view of oncoming traffic at this intersection was impaired. The trial court held for the Grossmans, finding they owed no duty to Margaret Sheley.

The Court of Appeals agreed, drawing a distinction between a landowner who creates hazardous conditions on the roadway, as opposed to conditions – hazardous or not – . wholly contained on the landowners’ property. Like corn to the corners, or perhaps big, bushy trees.

sightline140613Sheley v. Cross, 680 N.E.2d 10 (Indiana Ct. of Appeals, 1997). On October 15, 1992, Margaret Sheley was killed when her car ran into Kimberly Cross’ vehicle at an intersection. Margaret’s survivors sued Kimberly Cross, the County, and Buryl and Hazel Grossman, the farmer who owned the land next to the intersection. The Sheley family argued that Grossmans, as owners of the land next to the intersection, negligently planted crops on their land such that a motorist’s view of oncoming traffic was impaired. The trial court granted summary judgment in favor of the Grossmans, finding that they owed no duty to Margaret. The family appealed.

Held: The Grossmans owed no duty to Margaret Sheley. Admittedly, the planting of vegetation is considered to create an artificial condition, not a natural one. A “natural” condition is limited to land unchanged by humans. The difference is significant since there are differing duties for natural versus artificial conditions.

Nevertheless, to recover under a theory of negligence, a plaintiff must first establish that the defendant had a duty to conform his or her conduct to a standard of care arising from a relationship with the plaintiff. Absent a duty, there can be no breach and, therefore, no recovery in negligence

care161129The Court said that an occupier of land abutting on or adjacent to a public highway owes a duty to the traveling public to exercise reasonable care to prevent injury to travelers from any unreasonable risks created by such occupier. The landowner has no right to use the property to interrupt or interfere with the exercise of the traveling public’s right by creating or maintaining a condition that is unnecessarily dangerous.

The issue, the Court said, is whether the scope of this duty extends to refraining from creating conditions wholly on a landowner’s property which may impair a traveler’s vision of oncoming traffic at an intersection. The Court ruled that the landowner does, but “that duty is limited to refraining from creating hazardous conditions that visit themselves upon the roadway. Where an activity is wholly contained on a landowner’s property, there is no duty to the traveling public.

The corn may have extended to the corners, but those corners remained on the Grossmans’ property. Thus, the Sheley family got nothing from the Grossmans.


Case of the Day – Monday, November 28, 2016


Greed may be good ... but it doesn't get a lot of love from the court.

Greed may be good … but it doesn’t get a lot of love from the court.

Gloria Lane was a down-on-her-luck middle-aged woman who lived with her disabled brother in an old house. Their place was next to a rental property, a house equally as old, owned by a corporate landlord, W.J. Curry & Sons. You see where this one is going? Hard cases can make bad law. And even where the result isn’t necessarily wrong – and we’re not hard-hearted enough to criticize people who were too poor to afford to fix the bathroom – cases are fact-driven.

We can imagine the scenario: a slumlord rolling in dough, too chary to keep the place up and too avaricious to pay damages inflicted on the impoverished neighbors. That, at least, is the innuendo. The Curry property included three large, healthy oak trees near the boundary with the Lane homestead. The trees are much taller than the either of the houses, and featured limbs that protruded over Gloria Lane’s house and caused manifold problems. First, the court said, she had to replace her roof 15 years before the lawsuit “because the overhanging branches did not allow the roof to ever dry, causing it to rot.” She complained that prior to replacing the roof, “[e]very roof and wall in [her] house had turned brown and the ceiling was just falling down. We would be in bed at nighttime and the ceiling would just fall down and hit the floor.”

In 1997, one of the oaks shed a large limb, which fell through the Lanes’ roof, attic, and kitchen ceiling. Rain then ruined her ceilings, floor, and the stove in her kitchen. The Lanes were physically unable to cut the limbs back that were hanging over the house, and they couldn’t afford to hire it done. For that matter, Gloria couldn’t even afford to fix the hole in her roof.

flush151015If that weren’t enough, the oaks’ roots clogged the Lane’s sewer line, causing severe plumbing problems. Gloria tried to chop the encroaching roots away from the sewer over the years, but they kept growing back and causing more plumbing problems. At the time of the lawsuit, she hadn’t been able to use her toilet, bathtub, or sink in two years because of the clogs. Instead, she went to the neighbors’ house (presumably not the Curry rental) to use the toilet. Meanwhile, raw sewage was bubbling into her bathtub, and the bathroom floor has had to be replaced because of toilet back-ups and water spills onto the floor.

Gloria told the trial court that “everything is all messed up. I can’t bathe. I can’t cook. I don’t want people coming to my house because it has odors in it, fleas, flies, bugs. It’s just been awful for me.” Ms. Lane, already under a psychiatrist’s care, said she “just can’t take too much more.”

After the branch punched a hole in her roof, Gloria asked the owner of W.J. Curry – one Judith Harris, who was neither W.J. nor any of his sons – to do something. She had a tree service trim the lower branches, but not the ones that would have been more expensive to reach. This didn’t solve the problems. When Gloria complained again, Ms. Harris told Gloria that she was on her own.

Now, boys and girls, these are hard facts. We aren’t dealing with the Schwalbachs, who were perfectly fit and reasonably flush, complaining about a few twigs and leaves to an underfunded cemetery association (read last Friday’s post). Here, we have a dramatis personae that includes, as protagonist, a pathos-inducing poor woman caring for an invalid, and as antagonist, a soulless corporation destroying her happy home, dropped limb by dropped limb by rotten roof by clogged sewer. And we’ve got some real damages, too. You try knocking on the neighbor’s door eight times a day and night to use the ‘loo, and see how you feel. Did the Massachusetts Rule have any chance of survival in the face of this heart-wrenching tale?

punch151015Of course not. The evil slumlord defendant (and we don’t know that to be true, but the story has a life of its own) argued that Tennessee followed the Massachusetts Rule. After all, it pointed out, Gloria was free to fire up her Husqvarna and clamber out onto her roof herself to cut down the offending limbs. Tennessee law firmly established that her remedies were limited to Massachusetts-style “self help.” That means Gloria should get nothing for the hole in her roof, nothing for her falling plaster, nothing for her waterlogged stove, and nothing for the sewage bubbling in her bathtub.

The trial court agreed with W.J. Curry. It held that while it was “certainly a serious situation that the plaintiff has not been able to use her bathroom for two years … these three trees are alive and living and they do what trees normally do. They produce branches and grow and they produce a root system. And even though you trim the branches back or you trim the roots back, they are going to produce more branches and more roots.” Spoken like a judge whose own toilet flushes just fine. The appellate court agreed, noting that the trees were not “noxious,” a quaint notion championed by Smith v. Holt (and since abandoned in Fancher v. Fagella).

The Tennessee Supreme Court reversed, adopting the Hawaii Rule, holding that living trees and plants are ordinarily not nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. When that happens, the Court said, the owner of the tree had some responsibility to clean up the mess. No doubt swayed by the extensive record of travail propounded by Ms. Lane, the Court held that W.J. Curry’s trees clearly satisfied the definition of a “private nuisance.” It sent the case back to the trial court for a remedy to be crafted, one that no doubt included money damages and probably an order that the landlord cut down the oversized trees.

Sure, Gloria ... get up there and trim those branches yourself.

Sure, Gloria … get up there and trim those branches yourself.

Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002). The long-suffering Gloria Lane sued W.J. Curry and Sons, Inc. a landlord owning a rental property next to her house. Over the years, her roof was damaged by branches overhanging from oaks growing on the Curry property, a branch fell, smashing into the home and causing extensive damage, and the root system substantially damaged her sewer system, rendering her home almost uninhabitable.

Gloria sued, asserting that encroaching branches and roots from the Curry trees constituted a nuisance for which she was entitled to seek damages. W.J. Curry responded that Ms. Lane’s sole remedy was Massachusetts Rule-style self-help, and she could not recover for any harm caused by the trees.

The trial court and Court of Appeals agreed with W.J. Curry and Sons, holding that an adjoining landowner’s only remedy in a case like this one was self-help, and that a nuisance action could not be brought to recover for harm caused by encroaching tree branches and roots.

Ms. Lane appealed top the Tennessee Supreme Court.

Held: Self-help is not an adjoining landowner’s sole remedy when tree branches and roots encroach. A nuisance action may be brought when the encroaching branches and roots damage the neighboring landowner’s property.

The Supreme Court held that although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.

Thumb's down to the Massachusetts Rule.

Thumb’s down to the Massachusetts Rule.

The Court engaged in a lengthy discussion of the various theories of liability adopted in various states, including the Massachusetts Rule, the Hawaii Rule, and the old, pre-Fancher Virginia Rule. The Court decided that the Hawaii Rule should be followed, because it “voices a rational and fair solution, permitting a landowner to grow and nurture trees and other plants on his land, balanced against the correlative duty of a landowner to ensure that the use of his property does not materially harm his neighbor,” while being “stringent enough to discourage trivial suits, but not so restrictive that it precludes a recovery where one is warranted.” The Court criticized the Massachusetts Rule, agreeing with the notion that limiting a plaintiff’s remedy to self-help encourages a “law of the jungle” mentality by replacing the law of orderly judicial process with the doctrine of “self-help.” Yet, the Court said, the Hawaii Rule was consistent with the principle of self-help Tennessee courts had previously enunciated.

The Court was careful to note that it was not altering existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property.


Case of the Day – Friday, November 25, 2016


love151014The other day, we had a faithful reader ask us whether he could use the Massachusetts Rule to trim a neighbor’s pesky oak tree back to the property line. Of course, we said, with some important caveats.

The question got us thinking last night about the Massachusetts Rule, as we sat groaning from too much turkey and too much Detroit-Minneapolis and Washington-Dallas. It’s good sport these days to criticize the Massachusetts Rule — that landowners are limited to trimming tree roots and branches back to the property as the exclusive remedy for encroachment by a neighbor’s tree — as being a relic of a time gone by, when everyone lived in a rural or semi-rural area and times were simpler. The modern Hawaii Rule — that permits a landowner to sue for damages and injunctive relief when the encroachment causes “sensible harm” — makes more sense in urban environments and in our modern-day (and, dare we say, litigious) society.

The Virginia Supreme Court said as much in Fancher v. Fagella. And North Dakota weighed in with Herring v. Lisbon Partners Credit Fund. When it comes to the old Massachusetts Rule, it’s pretty much “you hold him down, and we’ll kick him.”

Call us apostates, but we’re skeptical that’s the Massachusetts Rule’s demise is such a good thing. So today, we sing a love song to the Massachusetts Rule. And a reprise of Kentucky’s leading encroachment case provides the perfect illustration. Schwalbach’s neighbor, Forest Lawn Memorial Park, had trees that were dropping leaves and twigs that were as dead as the cemetery’s patrons. When Schwalbach sued, the Court held that the only remedy when branches behave like normal trees – specifically, by dropping twigs and leaves – is Massachusetts-style self-help.

Tennessee criticized the approach 17 years later as old fashioned in Lane v. W.J. Curry Sons, but the plain fact is that the Hawaii Rule would have had precisely the same outcome: under that rule, branches dropping a normal load of twigs and leaves were not causing actual, sensible harm. No court would have intervened to order any outcome other than the one found in the Schwalbach case.

apostate151014The case is a perfect example of how the facts of the case — be they extreme (such as in Virginia’s Fancher case or North Dakota’s Herring case) or slight annoyance (such as in today’s case) — drive the decisions. It’s not just that hard cases make bad law, as we pointed out yesterday: the law is always driven by the facts of the case. A careful comparison of the decisions establishing the Massachusetts Rule to the decisions favoring the Hawaii Rule suggests that the rules may not be very far apart at all.

Schwalbach v. Forest Lawn Memorial Park, 687 S.W.2d 551 (Ct.App.Ky. 1985). The Schwalbachs owned an apartment building located next to the Forest Lawn Cemetery. They bought the property in 1969. By 1972, they were whining that overhanging limbs from some of Forest Lawn’s trees dropped twigs and leaves and other detritus. What a shocking indignity.

Forest Lawn trimmed some of the branches, but the problem persisted. The Schwalbachs were more into brickbats than chainsaws. They never trimmed any of the overhanging branches themselves, but were content to let their mouthpiece do their work for the in court.

Forest Lawn will handle the dead people ... but the Schwalbachs are responsible for the dead leaves.

Forest Lawn will handle the dead people … but the Schwalbachs are responsible for the dead leaves.

The Schwalbachs replaced their flat roof with a pitched one, at the cost of $14,300, a result of damage done by an accumulation of leaves and twigs. The trial court found that the damages resulted from normal deadfall of leaves and snall debris from the trees. It applied the Massachusetts Rule set forth in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931), concluding that the Schwalbachs should have removed the offending limbs back to the boundary line.

The Schwalbachs appealed.

Held: Kentucky follows the Massachusetts Rule. The Court rejected the Schwalbachs’ argument that Kentucky should follow the rule that every owner should be held responsible for private nuisances on real estate, essentially an ordinary negligence rule. The Court observed that “[i]mposing liability upon a landowner for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees.”

The Court did suggest that were the tree in question dead and likely to fall and cause serious injury, “[a] claim for damages or removal of such a tree might be based on the theory of negligence for damages or nuisance for removal.”

This decision was criticized by the Tennessee Supreme Court in Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn., 2002) as among those antiquated cases that didn’t permit any remedy for encroaching branches and roots beyond self-help.