Case of the Day – Friday, October 28, 2016


busek150915We read a lot of newspapers. Some are truly excellent. Some are pretty good. A few are so-so.

Then there’s the Norwalk, Ohio, Reflector, which we read for reasons too complex to explore here. Recently, Reflector columnist Jim Busek complained about the city’s plan to axe 62 trees that are accused of wreaking havoc with sidewalks. Jim bemoaned the fact the City had removed a number of ash trees eight years ago (which he admits was a “smart ash policy”). Now, Jim is pleading for the 62 targeted trees, publicly and plaintively asking Norwalk Safety Director Josh Snyder whether there isn’t an alternative to cutting down these old trees. Surely, Jim hypothesizes, these at-risk trees are so mature that if the offending roots were cut, no new ones would dare grow, and the sidewalks would thus remain in place. Right?

Maybe if we cut the trees' roots, but ask it real nicely, it won't grow any new ones ...

Maybe if we cut the trees’ roots, but ask them real nicely not to grow any new ones, our problems will be solved …

While Norwalk arborists are busy looking for the anti-root pixie dust Jim figures will prevent new growth, we thought we’d consider the strange legal limbo in which property owners find themselves when tussling with municipalities over trees located on tree lawns.

It turns out that Norwalk – known as the Maple City – didn’t rid itself of all of its ash trees. A few still stand on city streets, and ash borers haven’t overlooked them. So who’s responsible for those dead trees? Ironically, we’ve seen the issue arise before, as cities – operating under tight budgets – lean on homeowners to pay for the removal of tree lawn trees. So exactly whose problem is it?

An interesting question, and one we’ll consider for the next two days. Actually, there are two questions, and we’ll pick on Jim in order to answer them. Let’s say for example, that the dead ash on Jim Busek’s tree lawn falls on a motorist. Is Jim’s ash in a sling? And might the Maple City be liable as well?

So someone’s gotta do something about the tree. But who – Jim or the Mayor?

The infestation on this ash is pretty obvious.

The infestation on this ash is pretty obvious.

Today, we’ll consider Jim’s liability. There’s no doubt that the tree lawn is Jim’s property, despite the fact it is subject to the City’s highway dedication. There’s a lot an owner can’t do with a tree lawn because of the City’s highway rights, but it’s still his or her property. Generally, the owner can plant and take down trees. And the fact that an owner has the right to add or remove trees suggests that he or she has a duty to as well.

Let’s consider that duty. In Wertz v. Cooper, one of Cooper’s trees fell onto Wertz’s fence during a storm. When Wertz sued her, she countered that she had no idea the tree was diseased, and that the tree’s falling over was an act of God. The Court agreed. It held that in order for a landowner to have a duty, the evidence must establish that he or she had actual or constructive notice of a patent danger that the tree would fall.

There is an exception. Where the tree overhangs the street in an urban area, an owner may be held liable on negligence principles under certain circumstances for injuries or damages resulting from the tree or a limb falling onto the highway. Generally, an urban owner has a duty of reasonable care relative to his or her trees, including inspection to make sure that they are safe.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

So Jim may have a problem, beyond the fact that he’ll find no tree-root pixie dust at the nearby Home Depot. The duty to inspect isn’t an issue here. If Jim owns that dead ash tree, he already has notice the tree’s dead. The bare branches in mid summer, the sloughing bark, and the borer tracks looking like spaghetti done in bas relief, is more than enough constructive notice anyone ever had. Whether the City does something about the dead tree or not, Jim would do well to hire an arborist to inspect the tree. If the tree should go for safety’s sake, Jim shouldn’t wait for the City to do it.

Would the same apply if tree roots damaged the sidewalk, making pedestrian passage dangerous? Absent any municipal code relieving property owners of liability for condition of the sidewalks, it would hardly be a stretch for an unfortunate passerby suing under the law of nuisance. Need an illustration? Look no further than Fancher v. Fagella.

Tomorrow: Would the Maple City be liable to remove the tree, independent of Jim’s obligation as a landowner?

Wertz v. Cooper, Case No. 06CA3077 (Ct.App. Scioto Co., Dec. 13, 2006), 2006 WL 3759831. Following heavy rains, a tree that sat on Cooper’s property tore loose from its roots, and leaned into Wertz’s fence and into a Shriner Colorado Blue Spruce tree that sat upon Wertz’s property. Wertz sued Cooper, complaining that Cooper failed to timely remove her tree. Wertz sought damages, including the cost of removing the fallen tree, the expenses to replace the damaged Blue Spruce, and other incidental damages.

Cooper argued that she had no knowledge of a defective condition of the tree, that she could not have been negligent in failing to maintain the tree, and that she could not be liable for the damage when an “act of God” caused the tree to uproot. The trial court agreed that there was no evidence that the tree was deteriorating, and that Cooper was not liable for an Act of God.

Wertz appealed.

If the dead tree falls n a car, watch the scramble to avoid liability begin ...

If the dead ash tree falls on a car, watch the scramble to avoid liability begin …

Held: Judgment for Cooper was upheld. A negligence action in Ohio requires a plaintiff to establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered injury. In order for a plaintiff to establish the duty element in a negligence action arising from a fallen tree, the evidence must establish that the landowner had actual or constructive notice of a patent danger that the tree would fall.

There is an exception to the general rule, however, concerning the duty of a property owner relating to growing trees with limbs overhanging a public street or highway. An owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property. In addition, there appears to have developed a distinction throughout the United States that there is a lesser standard of care with reference to rural, farm, timber, or little used land as opposed to strictly urban property. Generally, an urban owner has a duty of reasonable care relative to the tree, including inspection to make sure that it is safe. The duty placed upon the urban landowner, who has only a few trees, is not a heavy burden. This is in contrast to the rural landowner who may have a forest full of trees, which would impose a duty of immense proportions, and constitute an onerous burden on the owner.

Despite the heightened standard to be applied to an urban tree, Wertz had no evidence in this record to establish that Cooper had either actual or constructive notice of a defective condition of the tree. While Wertz advanced her belief that the tree was dead or dying, her allegation was conclusory. She presented no evidence to support her claim. What’s more, even if Wertz were right that she believed that the tree was dead or dying hardly establishes that Cooper knew or should have known that the tree was dead or dying.


And Now The News …


utilitytrim161028San Diego, California, Union-Tribune, October 27, 2016: Resident says his tree-trimming case shows CPUC favors utilities

David MacKinnon thought he had an understanding with his electric company. For years he kept the trees ringing his University Heights house neatly trimmed and San Diego Gas & Electric Co. let him know if the looming palms ever grew too close to its overhead wires. Things changed a few years back after SDG&E hired a new tree-trimming contractor, said the broadcasting engineer. More than once, MacKinnon says now, work crews showed up unannounced and slashed away at the prince palms even though SDG&E had no formal easement allowing access to the property. One day in early 2013, contractors arrived without notice and set to work removing part of the fence to make room for a commercial tree grinder, an industrial tool used to pare down stumps…

Edison, New Jersey, News 12 New Jersey, October 27, 2016: Falling tree limb kills Northern Tree Service worker in Ramsey

A falling tree limb killed a worker who was helping to cut down a tree in Ramsey Wednesday afternoon. Neighbors say workers from Northern Tree Service were cutting down a tree along Peach Hill Road around 3 p.m. The limb they had just cut fell nearly 100 feet, striking one of the workers. Neighbor Kyu Lee says the other workers were distraught and tried to perform CPR to save their co-workers before emergency services arrived. “I heard the other employees shouting and crying,” says Lee…

sequoia161028NPR, October 27, 2016: How is a 1,600-year-old tree weathering California’s drought?

It’s been a brutal forest fire season in California. But there’s actually a greater threat to California’s trees — the state’s record-setting drought. The lack of water has killed at least 60 million trees in the past four years. Scientists are struggling to understand which trees are most vulnerable to drought and how to keep the survivors alive. To that end, they’re sending human climbers and flying drones into the treetops, in a novel biological experiment. From a distance, the forests of the Sierra Nevada look blotchy, with patches of dead trees standing right next to healthy green ones. Nate Stephenson, an ecologist with the U.S. Geological Survey, says the drought and high heat combine to do things he hasn’t seen before. “We don’t really understand a lot of things,” he says, “like exactly how a drought kills a tree, or what’s going on underground. Where is the water flowing in areas we can’t see?”

Youngstown, Ohio, WYTV, October 27, 2016: Pruning is the key to prevent trees from falling in high winds

The last few weeks have seen beautiful fall foliage across the Mahoning Valley but recent strong winds have the potential to not only knock down leaves, but bring entire trees down. Tree damage can occur at any time of the year. Most damage to limbs or the full tree occurs because of wind due to thunderstorms or strong weather systems. “Depending on where they are located, there could be damage to homes, power lines, that sort of thing. Roads will be closed,” said Davey Tree Sales Arborist Geoff Clark. Heading into the middle of autumn, moist soil from rain can make it easier for trees to topple. Wet snow can also create problems, adding to extra weight on the tree…

sequoiafire161027Washington, D.C. Times, October 25, 2016: Sanctuary city illegal immigrant sparks $61M fire in national forest

Angel Gilberto Garcia-Avalos had been deported five times in just the past four years, yet each time he has managed to sneak from Mexico back into the U.S., where he ended up in more mischief: driving without a license, attempted burglary and felony weapons charges. In August, he graduated to full-fledged mayhem, sparking a fire in the Sequoia National Forest that has already cost the government $61 million and left some of the country’s most beautiful landscape scarred for years to come. Garcia, who pleaded guilty last month and faces 13 months in prison, had only recently been released from the Kern County Jail. He likely would have been deported again, but local authorities were unable to report him to immigration authorities because of California’s new sanctuary city law, which prohibited the sheriff from communicating with federal agents. Federal agents now say they will kick Garcia out of the country once he serves his latest sentence, but the damage has already been done…

New York City, WABC-TV, October 26, 2016: Tree service worker struck by tree in Ramsey, New Jersey

A tree service worker was rushed to the hospital after being struck by a tree Wednesday in Ramsey, New Jersey. It happened at about 3 p.m., at the Peach Hill Townhouses, where part of the tree came down and struck the worker. A witness said EMTs worked on the victim for about 20 minutes. Police say he was then transported to Good Samaritan Hospital in Suffern with a head injury. He has not yet been identified…

canker160127Fresno, California, KMJ Radio, October 26, 2016: Entire Fresno County under citrus quarantine

All of Fresno County is now under a citrus quarantine over a tiny bug able to wipe out an entire crop. The Asian citrus psyllid remains a huge concern for Valley growers. The bugs are the size of a grain of rice but can carry a disease called HLB (huanglongbing) that is deadly to trees, and the Central Valley citrus crops. Agriculture Commissioner Les Wright says there is no cure for the citrus greening or huanglongbing disease that wiped out the citrus crops in Florida, and it’s been a problem in Southern California for years…

BBC, October 26, 2016: Brexit could boost Christmas tree industry, growers say

A lot of trees are traditionally imported from large-scale growers like Denmark to meet demand in the UK. But farm owner Rob Morgan said the falling pound meant prices had gone up 15% and it is “good news” for the British industry which is growing and more able to meet demand. The prospect will be discussed by more than 200 growers in Gower on Wednesday. The best grower will also be chosen and their 20ft (6m) tree will go on display at Downing Street. Every year between six and eight million British trees are sold in the UK…


Washington, D.C. Post, October 25, 2016: Tree impersonator nabbed in Portland, Maine

In Portland, Maine, there is no law against dressing up as a tree. But it is illegal to block traffic as one, apparently. On Monday, Asher A. Woodworth draped himself in evergreen branches and sauntered into a busy intersection in the city’s downtown. Braving afternoon traffic, the 30-year-old Portland native slowly crept through the crosswalk, his face and body obscured by layers of plush green boughs. Performance art? An early Halloween costume? Some sort of social experiment? Not clear. But confused passersby were quick to take notice. It didn’t take long for police to arrive. Video posted to Twitter by a WCSH-TV editor shows two officers trying to coax Woodworth out of the intersection. “All right, get out of the road, or you’re going to get arrested,” one officer says. As Woodworth inches onto the sidewalk, another says, “Keep going, buddy, you’re almost there…”

Durant, Oklahoma, Daily Democrat, October 25, 2016: Tree trunk protective materials

Young, thin-barked trees such as ash, birch, linden, maples, fruit trees and others often sunscald unless protected. The twigs that shade the trunk should be left, but cut back a few inches so they become denser. A twiggy trunk is preferable to tree wraps, but not all trees have enough twigs, nor is it always practical or aesthetically pleasing to leave lower limbs. Protective wraps may not be necessary at planting time but use should be based on the type of protection needed. Normal application of tree trunk wraps is October to March for the first two growing seasons. Wraps should be removed each spring prior to spring growth. During spring growth the trunk expands and increases in size. Wraps too tightly wrapped or left on during this time may result in constriction to the trunk. Tree wraps should be applied loosely from base up to the first branch by overlapping for a shingle effect. Plastic wraps should fit loosely and include holes or slits for good air movement. Periodically inspect the wraps for trunk damage and insects Advantages of tree wraps for young plants include deterring animals from browsing on bark. They also reflect sun that either scalds the trunks or makes them susceptible to southwest injury during the winter months (bark is warmed followed by a sudden plunge in temperature which kills that portion of the bark)…

sidewalk161026Staten Island, New York, Advance, October 25, 2016: 15-year stump backlog (and other tree problems) need fixing

Are you trying to find out when the dead tree branch dangerously dangling over your roof will be removed, or whether the cratered sidewalk in front of your home is ever going to be fixed? Sorry, you’re out of luck. The City doesn’t share that information with the public. In some cases, it doesn’t even know itself. New York City’s 650,000-plus street trees need to be pruned to thrive, and to ensure that precariously hanging branches do not injure people or damage property. The Parks Department Forestry Service sets a goal of pruning every street tree once every seven years, with urgent pruning completed immediately. But Parks doesn’t always have the resources to meet this goal. Parks is also responsible for removing tree stumps, which are not only unsightly but also can be hazardous. Currently there is a backlog of over 10,000 stumps waiting for removal citywide (Parks doesn’t have an exact count)…

Riverside, California, Press-Enterprise, October 25, 2016: California’s iconic palm trees threatened by new pest

It’s a bit of a whack-a-mole kind of thing. One invasive pest gets knocked down, such as the European grapevine moth or the red palm weevil, and another pops up. This time it’s the South American palm weevil, an inch-and-a-half-long black beetle that loves Canary Island palms – like those lining Riverside’s Victoria Avenue – and kills the trees within months. The top fronds of the tree die and fall off, leaving the tree looking as though it has lost its crown. UC Riverside entomologist Mark Hoddle recently found the pest in palm trees in Chula Vista near San Diego. Researchers, date growers and agricultural officials will meet in Chula Vista on Wednesday to assess this latest threat and try to determine the best way to fight it…

ashleaves161025Humans and Nature, October 24, 2016: Be more tree: Ash

Yggdrasil was the world tree in Scandinavian myths. An enormous ash, its roots reached the lairs of the gods, and its branches spread to the edges of the universe as it protected the Earth. Such powerful imagery, such a noble tree, but now the ash needs our protection. According to Helen Macdonald in the New York Times, “Ash dieback disease, a new and virulent fungal infection that has spread westward across Europe . . . will likely kill nearly all the ashes in Britain. In America, the effects of the invasive emerald ash borer beetle have been just as devastating. Globalization is the culprit . . . The accelerating scale and speed of international trade has brought numerous pathogens and pests to species with no natural resistance.” Why does this matter? What’s one less tree? The point is that the environment is undergoing radical change. Think about the loss of over one hundred million ash trees in the United States in merely four years—that’s the impact the ash borer beetle had. Then multiply it by all the trees on the planet and the many threats they face; this is as vast as the reach of Yggdrasil’s limbs and roots…

Orangeburg, Georgia, Times & Democrat, October 24, 2016: Trees stressed by Hurricane Matthew may be next ones to come down

Hurricane Matthew was a tree’s worst enemy. T&D Region trees, particularly pines, were no match for the storm’s near-hurricane-force winds and flooding rains. Saturated grounds, from hours of rainfall, weakened trees to the point of no return. Though Hurricane Matthew is gone, its effects may be lurking just under the surface, say tree experts. Orangeburg County Clemson Extension Forester Beth Richardson said area trees have been under a lot of stress both from Hurricane Matthew and the historic 2015 flood. “I would be concerned with trees in the yard that have been showing symptoms of decline,” she said. “Those are the ones I would be concerned about being compromised by this hurricane with the rainfall and wind thrust…”

chestnut161025Blacksburg, Virginia, WVTF(FM), October 24, 2016: Midwives to the American Chestnut Tree

Squirrels aren’t the only ones collecting nuts this autumn. Volunteers with Virginia’s American Chestnut Restoration project are gathering them to breed the next generation of blight resistant trees. It’s part of a multi state effort to restore the species and a time consuming process in more ways than one. “Oh this is a nice big nut. It will be viable for sure.” About a dozen people are sitting at a long rectangular farm table carefully extracting chestnuts from their bristly green cradles. “And then we go to a very advanced technology to test these nuts for their viability…”

Edmonds, Washington, My Edmonds News, October 23, 2016: Good trees for urban gardens: Japanese maples — so much to choose from

In the fall, the lovely Japanese maples (acer palmatum) are at their finest. Acer palmatum has the wonderful quality of changing from its original look to other types. Leaf color and shape may change and growth habit may change also. For that reason there are hundreds of different named varieties of Japanese maples. Its close cousin, acer circinatum, our native vine maple, does not make changes so easily. However, there are some named varieties of vine maple. We are lucky to have weather and soil conditions similar to that of its native habitat in Japan. Maples like more acidic soil and like to be mulched. Most enjoy having some protection including being placed in the shadow of a deciduous or evergreen tree. They do not like to be placed in stressful conditions such as a south facing planting with quick drainage. They will want watering in the summer. Great attention needs to be placed on watering, especially in the early years of a tree’s life, according to City of Edmonds Parks Manager Rich Lindsay…

sequoia161024Kitsap, Washington, Sun, October 23, 2016: Saving sequoias at root of talk in Bremerton

With each passing year, peaceful coexistence between the city and its landmark sequoia trees becomes a little more difficult. The roadway underneath the two redwoods, on Veneta Avenue between Fourth and Fifth streets, buckles more as their roots bulge. And now, following a nearby church’s decision to build a rectory near the towering conifers, city officials fear the trees could be damaged if crews don’t exercise caution in construction. “I’m concerned for the trees,” City Councilman Greg Wheeler said. “They’re a signature of my neighborhood.” Our Lady Star of the Sea Church recently demolished two nearly century-old homes at Fifth and Veneta as it builds a new rectory. The jagged, thick roots of the Sequoias snake out into the surrounding neighborhood and are visible in a planter next to the construction site, about 40 feet from the closest of the two 150-foot tall trees, according to an arborist’s report commissioned by the city. The arborist, Kevin M. McFarland, says in his report that the trees are in good condition and that if the church follows some guidelines during construction, about one-tenth of the tree’s “critical root zone” would be affected…

Arlington Heights, Illinois, Daily Herald, October 23, 2016: Fall’s cool weather suitable for tree planting

Fall is a great time to plant a tree. The soil stays warm much longer than air temperatures. Fall’s cooler and wetter conditions are gentler on tree roots acclimating to their new home. And when roots awaken with spring’s warmth, they have a head start over spring-planted trees. Be sure to start with a healthy tree with roots in proportion to the leaves and no visible signs of injury to the trunk. Choose a variety of tree suitable for the site, factoring in cold hardiness, soil type and moisture levels, light conditions, and appropriate size at maturity. Plant it correctly and give it a little extra attention after planting. A tree’s death is most often a result of improper planting or care in the first couple of months. Follow these guidelines and your tree should live a long life in your landscape…

pinebeetle161024Hinesville, Georgia, Coastal Courier, October 23, 2016: Pine beetles threatening trees again

Many landowners in southeastern Georgia have seen their pine trees die this summer. Even if you were fortunate enough that the pines on your own property were spared, you may have noticed dying pines in clusters deep in the forest, or you may have spotted an individual dying tree in a yard or on the street. If you observed the needles on these trees going from green to yellow to dead in a matter of weeks, the culprit behind these sudden deaths may have been the southern pine beetle. The SPB is a brownish to black beetle that is about the size of a grain of rice. The beetle is a major pest to pine trees in the Southeast. Both adult and larvae SPB chew their way through the tree’s phloem of the tree that moves food from the leaves down to the roots and “girdle” the tree, preventing movement of nutrients. Adult beetles also carry a fungus that clogs the xylem and prevents movement of water. Many beetles attack a single pine at once, overwhelming the tree and leading to its death…

New Castle, Delaware, New Castle News Online, October 23, 2016: Tree of Heaven can seem like spawn of hell

It would be nice if I had an office that you could visit with your plant questions, but I don’t. There is one spot that I could call my office, because I get so many questions there. That place would be on the benches where I sit between the services at First Baptist Church. Last Sunday, my friend Maureen sat down beside me and showed me a photo of some trees that she and Tom have been trying to get rid of. They chop them down every year, but they just keep coming back. The answer was appropriate for the location of the question. The tree she had in question was none other than the Tree of Heaven, Ailanthus altissima…

busstop161021Richmond, Virginia, WTVR-TV, October 20, 2016: GRTC bus rider can’t be seen, thanks to overgrown tree

A tree is blocking a GRTC bus stop, and one rider said the “invisible bus stop” has caused her some issues. The tree has grown over the city sidewalk and brushed up against the power lines. “I’ve missed the bus like four times,” said Teresa Jackson, who said the bus drives right past her because the drivers can’t physically see her, due to this overgrown tree. She said the tree is blocking part of the sidewalk and she can’t risk standing in the street to flag down the bus because it’s too dangerous…

Boise, Idaho, Idaho Statesman, October 18, 2016: Iconic tree will move via system that’s ‘like giant hot dogs’

Work has begun to move Idaho’s largest sequoia tree from St. Luke’s at Avenue B and Jefferson Street to a new site at nearby Fort Boise Park. The 104-year-old tree stands in the way of the hospital’s planned expansion. The hospital has hired Environmental Design Inc., a company whose expertise is moving large trees, to do the job. On Wednesday, work began to dig a trench around the sequoia and prune its roots back to a 20- to 25-foot radius. A barrier will contain the roots. A specialized watering plan will help the roots heal in preparation for the actual move in the spring of 2017. David Cox, co-founder of Environmental Design, said the company has developed a technique that involves building a steel platform to go under the tree once its roots are contained…

deadtree161021Ridgefield, Connecticut, The Wilton Bulletin, October 20, 2016: Leaning tree of Chicken Street

A reader on Chicken Street sent The Bulletin this photo of a dead tree, right, leaning over the road. Employing some geometry, he measured its tilt at 18 degrees. He is hoping it will be taken down before winter weather sends it onto the power lines…

Oakville, Ontario, Beaver, October 20, 2016: Town of Oakville preparing to beef up private tree protection bylaw

Cutting down healthy trees in Oakville may soon become more expensive and difficult. Council voted Monday night (Oct.17) to move forward a proposal to enhance the Town’s private tree protection bylaw. An amendment to the bylaw would require property owners to get a permit if they wish to remove a private tree. They may also be required to plant a new tree as compensation. The proposed changes will come before council for final approval in early 2017 pending Budget Committee approval in December…

treefallinjury161020St. Paul Minnesota, Pioneer-Press, October 19, 2016: St. Paul City Council approves $500K for man struck by 800-pound log outside bar

Delmer Fladwood never saw the 800-pound log careening toward him in St. Paul almost four years ago. The last things he remembers before it hit him on a winter afternoon in 2013 was leaving work, going to a neighborhood bar on West Seventh Street and stepping outside. People had gathered to watch a St. Paul forestry crew cut down a massive tree across the street. Workers had removed the tree’s upper limbs and put them in the street to create a “crash pad” for the tree’s main trunk. But when the tree toppled onto the logs, at least two of them flew across the street, striking Fladwood, then 65, in the legs, according to a lawsuit he filed against the city of St. Paul…

Phoenix, Arizona, KSAZ-TV, October 19, 2016: Burglary suspects pose as tree trimmers, assault couple

“They are scumbags was my first thought and I got to get rid of them.” Linda Norman is talking about two men caught on surveillance video trying to get inside of her home. The same men they say is the reason why her 88-year-old husband, Richard, is all bandaged up. It started out as a typical Tuesday for them last week. “I had a doctor’s appointment and I picked them up from school.” Richard was outside with his walker pulling weeds when two men pulled up and said they needed to trim the trees because of power lines — but there are no power lines near the Norman’s home.”I told them no you’re not gonna trim my tree.”The men went around the back of the home. Video shows them snooping all around the home, knocking on the back door. That’s when they met Linda and their story started changing…

unlawfulcut161020Toronto, Ontario, Star, October 19, 2016: Toronto council calls for crackdown on tree removals

The city’s settlement with a developer who clear-cut 40 trees without approval is outrageously insufficient, says the local councillor calling for a crackdown on tree killers. “This sends the message to developers that illegally cutting trees is a cost of doing business, a slap on the wrist,” said Councillor Jaye Robinson after the parks department revealed a $155,064 fee paid by the Format Group. “I don’t fault (city) staff because this is the system now, but my residents will not be satisfied and people across Toronto will not be satisfied at this cost for a shocking removal of trees, including city trees on city property.” Bayview Ridge residents were enraged in July when the developer bulldozed a heavily treed lot at the corner of Bayview Ave., south of York Mills Rd., without the required approvals under Toronto’s tree bylaw…

Miami, Florida, Herald, October 19, 2016: Tree-trimming company fined $133K over worker’s death

A South Florida tree-trimming company is facing a fine of about $133,600 after federal officials say it failed to prevent a worker’s death. The Miami Herald reports that the Occupational Safety and Health Administration announced the fine Tuesday. The agency says Fort Lauderdale-based Monster Tree Service didn’t take proper precautions while 34-year-old Anthony Donahue worked around overhead power lines in April. Investigators found that Donahue was using an aluminum pole saw too close to a power line while trimming a palm tree near a Fort Lauderdale home. Monster Tree’s owner, Ray Carolan, says he plans to contest the fine. He says a fiberglass ladder and fiberglass pole saw were at the work site, but Donahue was using metal tools, despite numerous safety meetings…

sfo161019San Francisco, California, Examiner, October 18, 2016: Vote for healthy trees and safe sidewalks in every SF neighborhood

San Francisco, already one of the least-leafy major cities in the U.S., is losing trees faster than it’s planting them. Years of neglect of street trees have resulted in a dangerous environment in which unhealthy trees regularly drop branches or topple altogether, especially during windy or rainy weather. Our sidewalks are also in terrible shape; more than 6,000 of them are cracked, buckled and uneven. Unrepaired sidewalk damage causes dangerous walking conditions, especially for seniors and people with disabilities. Trees are by far the biggest contributors to The City’s broken sidewalks. Trip-and-fall injuries are the top cause of injury-related hospitalizations and death for seniors. Both of these problems are the result of a longtime policy failure that could be corrected in one fell swoop. This failure has provoked public outcry recently, as The City has made budget-based decisions to transfer responsibility for the maintenance of thousands of street trees and sidewalks to the adjacent property owners — many of whom don’t have the knowledge or means to provide such maintenance, and some of whom don’t even realize The City holds them responsible for it. Even prior to this deeply unpopular program of “relinquishment,” tree and sidewalk maintenance has been completely inconsistent: a mish-mash in which The City has maintained some of them and expected homeowners to maintain the others…

Oakland, California, East Bay Times, October 18, 2016: Montclair My Word: Let’s prevent fires but not destroy trees

FEMA’s recent decision to cancel grants to UC Berkeley and the city of Oakland to destroy tens of thousands of trees was a fitting commemoration of the 25th anniversary of the 1991 fire in the East Bay Hills. FEMA’s decision reminds us that the 1991 fire was not caused by trees and that destroying them would not reduce fire hazards. Like most fires in California, the 1991 Oakland fire started in grasses, the very sort of vegetation that would colonize the hills if the trees were destroyed. In 1908, the University of California funded a study that concluded that eucalyptus trees help reduce the risk of fire. It specifically noted that the denser the trees, the lower the risk. It cautioned against thinning the trees, noting that when they are thinned, “their crowns are unable to form a canopy that will shade the ground enough” to stop the spread of highly flammable grasses. Shade is the most benign method of controlling weeds, far less damaging to the environment than the herbicides that are commonly used…

treefall161019Glens Falls, New York, Post-Star, October 18, 2016: Two hurt when tree falls on diners in downtown Glens Falls

Two women suffered minor injuries Tuesday afternoon when a large maple tree fell on the outdoor table where they were eating in the Exchange Street alley. The tree, its trunk about 18 inches around, snapped off about eight feet from its base, the majority of the tree tumbling onto a table where four people were eating lunch. “We’re lucky,” said Andrew Wert, a Connecticut resident who was among the four eating when the tree broke off. “My wife yelled and we were able to jump out of the way…”

Sunbury, Pennsylvania, Daily Item, October 18, 2016: 83-years-old and still trimming trees

George Long filled his pickup truck with one-half cord of firewood Monday afternoon in Middleburg and delivered it to a customer in Coudersport more than 100 miles away the same day. It may not sound like much of a chore unless you know Long has been in the tree service business for 65 years. At 83 years of age, “and a couple of months,” the owner of Apache Tree Service is still cutting down trees, chopping wood and removing tree stumps. “Once I get up the tree, I have it made,” said Long, who prefers to climb with spikes, saddle and rope rather than use a truck bucket…

damage161017Washington, D.C., Post, October 17, 2016: How to find a good tree service

It’s easy to think that trees are among the few great things in life that are free. They increase our property values, provide shade, give us autumn scenery and help create the air we breathe. But sometimes there may be a price. To keep your trees healthy or to get rid of dying ones, you may want the benefit of professional advice, skill and labor. That is especially important as winter approaches. Falling tree limbs can cause great damage to your home. To help you find this help, nonprofit consumer group Washington Consumers’ Checkbook magazine and have surveyed their members and Consumer Reports subscribers about their experiences with area tree-care services. For the next month, Checkbook is offering free access to its ratings of tree care services to Washington Post readers via this link:…

Louisville, Kentucky, WAVY-TV, October 17, 2016: Who’s responsible for fallen tree behind Chesapeake man’s house?

A man contacted 10 On Your Side for help after a tree fell on his fence during Hurricane Matthew, a week ago. A tree line sits behind his property, so he wants the City of Chesapeake to cut it down and fix the damage. However, a city spokeswoman says a city worker went to the home on Monarch Reach Monday, but couldn’t determine who the tree belongs to. “Originally, it didn’t look as bad. I just thought it was a bunch of the bushes and maybe one limb. But once the rain kind of died down about 3 to 4 hours later, I went back out and to investigate the damage,” Karl Shannon said. This isn’t the first time. Shannon says trees from behind his home have damaged his property twice before; once during a snow storm, another time on a windy day…

treetrim161018Hilton Head, South Carolina, Island Packet, October 17, 2016: Cost of tree removal angering homeowners, but no price-gouging charges yet

While some Beaufort County residents have received expensive estimates for tree removal — some reportedly as high as $50,000 — the S.C. Attorney General’s Office has not sought any price-gouging charges statewide in connection with Hurricane Matthew. Contacted Monday by The Island Packet and The Beaufort Gazette, Hayley Thrift Bledsoe, spokeswoman for Attorney General Alan Wilson, said the office has received a total of more than 350 reports of alleged price gouging in the 14 days since Gov. Nikki Haley declared a state of emergency for South Carolina and the anti-price-gouging statute took effect. But investigating potential offenders could take time, given that the office is still “collecting information” and working with local law enforcement and the State Law Enforcement Division, Thrift Bledsoe said…

Steamboat Springs, Colorado, Today, October 17, 2016: City of Steamboat Springs: Emerald Mountain tree removal project 60 percent complete

City officials are reporting Emerald Mountain is becoming a safer place for bikers, hikers and equestrians thanks to the recent removal of thousands of dead and hazardous trees. But the logging project is running behind schedule. Craig Robinson, the city’s parks and open space manager, told the Parks and Recreation Commission Wednesday the work was 60 percent complete, and the bulk of the hardest work was done. In late September, a helicopter removed close to 1,000 hazardous trees in eight hours…



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Case of the Day – Thursday, October 27, 2016


journeyends140312A great philosopher perhaps put it best: a very long journey can sometimes end suddenly, and rather badly.

Howie Conine should have had the Despair, Inc., “Ambition” poster on his wall, where he could have contemplated its message. He surely could empathize with the hapless salmon. He and his wife had their journey end one rainy day on Washington State Route 524 – suddenly and very, very badly. A redwood tree on County of Snohomish land, the hazardousness of which was “readily apparent,” fell on their car with a readily apparent thump.

The law of the jungle gives the poor king salmon no right of appeal, no habeas corpus, no forum for damages suffered when her trip upstream ends so precipitously in the jaws of an ursus arctus horribilis . Fortunately for the Conines, the law of Washington State was more hospitable after the tree fell onto their passing car (with them in it). If anything, it was a perfect storm for them: they possessed evidence that the dangerous condition of the tree was “readily apparent,” they were in a notoriously friendly plaintiff-friendly, and they had two defendants to choose from, both of which were governments and thus “deep pockets.”

But who to collect from? The State of Washington, the government that, the Conines argued, had a duty to keep the highways safe from falling trees? Or perhaps the County of Snohomish, the government that, the Conines averred, had a duty to protect passers-by from dangers arising from trees on its land?

This is America – land of the free and home of the litigious! Why not sue both?

That is exactly what the Conines did.

angryjudge140312Unfortunately, they ran into an uncooperative trial court, one which held that neither Washington State nor Snohomish County had any obligation to inspect the trees along the road, even one with “this readily apparent hazard.” The trial judge threw the Conines out of court. They had more luck with the Court of Appeals, which reversed the trial court decision and sent the matter back for trial on the merits. There was enough evidence – chiefly from the Conines’ hired-gun expert – that the tree was obviously dangerous, that the case should go to trial.

The lesson: when you need a good expert, there’s just nothing else that will do.

Conine v. County of Snohomish, Not Reported in P.3d, 2007 WL 1398846 (Ct.App. Wash., May 14, 2007). Howard and Karen Conine were driving on State Route 524 when a red alder tree standing on an embankment on the west side of the road fell on their car. The tree had been located about 10 feet outside the State’s right of way on land owned by Snohomish County. The Conines sued the State of Washington for failure to maintain the state highways in a safe condition and the County for failure to remove an obvious hazard from its property.

The Conines’ arborist testified that during the 6-12 months immediately preceding the tree’s failure, the appearance of the tree should have given anyone looking at it notice that it was dead and decaying. The arborist said the tree was probably leaning 10 to 15 degrees downhill toward the road, and would have been in the highest risk category because of its condition and proximity to the road. The DOT’s maintenance technician who removed the tree after the accident said the tree “had been a live tree and that its root ball had come loose from the soil owing to the very wet conditions we had in January 2003.”

The trial court held that neither the State nor the County had a “duty to look for this readily apparent hazard.” The Conines appealed.

Held: The summary judgment was reversed. The State’s liability to users of a road is predicated upon its having notice, either actual or constructive, of the dangerous condition which caused injury, unless the danger was one it should have foreseen and guarded against. The Conines conceded that the State did not have actual notice, but they argued that the tree’s visibly dangerous condition created constructive notice. The Court found that the question to be answered was whether, for constructive notice, the State had a duty to look for a readily apparent hazard. Although the Washington Supreme Court had held in another case that where the tree was on a remote, mountainous, sporadically traveled road, a high threshold for constructive notice of danger was needed to trigger a duty to inspect and remove a dangerous tree. But here, the road was a state highway in a populated area, and the risk to the traveling public shifted the risk analysis. What’s more, in the other case, the Supreme Court found that the tree that fell was no more dangerous than any one of the thousands of trees that lined mountain roads. By contrast, the Conines’ expert testified that the tree that fell was obviously a hazard. The differences, the Court said, precluded a finding that the State lacked constructive notice as a matter of law. Constructive notice that a tree was dangerous gives rise to a duty to inspect. Thus, summary judgment was improperly granted on the basis of no duty to inspect.

treefalloncar140212The Conines also contended that Snohomish County faced liability as the landowner of the property upon which the tree stood, because the owner of land located in or adjacent to an urban or residential area has a duty of reasonable care to prevent defective trees from posing a hazard to others on the adjacent land. The County argued that it had no such duty, because the tree was a “natural condition of the land.”

The Court held that when the land is located in or adjacent to an urban or residential area and when the landowner has actual or constructive knowledge of defects affecting his trees, he has a duty to take corrective action. The area in question was next to the City of Lynnwood and zoned urban residential. Thus, it was urban in character. The Conines produced expert evidence that the subject tree was obviously dead or dying and leaning for two years, that it looked like a forked snag and that it lacked fine or scaffold branches. This evidence, the Court said, created an issue of material fact as to whether the tree was in a defective condition and the condition was of sufficient visibility and duration to give the County constructive notice of a potential hazard.


Case of the Day – Wednesday, October 26, 2016


blue150911We’ve preached it until we’re blue in the face. As movie impresario Samuel Goldwyn put it, “a verbal contract isn’t worth the paper it’s written on.”

In today’s case, landowner Whatley hired a tree cutter to take down two trees in his yard. Whatley knew from nuthin’ about tree cutting, so he told the guy to do it any way he saw fit. Of course, these two being good ol’ boys, they didn’t bother with a written agreement (which could have been as simple as an estimate with some terms printed on the back).

And what kind of terms did they need? Well, maybe one that said that the tree cutter was an independent contractor of Whatley would have been nice. As it turned out, the cutter and his able assistant dropped one the first without a problem. When they considered the second tree, which stood on a slope hard against the neighbors’ place, the cutter figured he could drop it in one piece safely. Whatley, whom (as we said) knew from nuthin’ about tree cutting, said “if you can do it, do it.”

But the cutters couldn’t do it. The tree toppled onto the Sharmas’ place, breaking trees and smashing their fountain. And here’s where it got messy. The Sharmas, of course, sued the tree cutter. But they sued Whatley, too, arguing it was his fault as the employer of the cutters.

Some blunders are obvious ...

Some blunders are obvious …

The law is well established that a landowner isn’t responsible for the negligence of an independent contractor, because the independent contractor has full authority to decide how to do the job himself. But without that written agreement, everyone had to pack the courtroom to explain how the relationship was an independent contract and not an employer-employee relationship.

The Sharmas seized on the offhand statement Whatley made about ‘doing it if you can do it, ‘ and tried to conflate it into Whatley guiding the work. The court sorted things out, but a nice written agreement spelling out the relationship probably would kept Whatley out of court to begin with.

verbal150911Whatley v. Sharma, 291 Ga.App. 228, 661 S.E.2d 590 (Ga.App. 2008). Whatley hired a tree-cutting contractor to remove two trees from his yard for $1,100 to be paid on completion. The oral contract didn’t specify how the trees should be removed. The contractor arrived a week later with a “tree climber,” whom the contractor had hired in case they needed to fell the trees by cutting them into sections (also known as “topping off” the trees) as opposed to dropping the trees as an entire unit. They felled the first tree in one piece, and based on the tree climber’s recommendation, the contractor told Whatley that they intended to also cut down the second tree as an entire unit. Whatley responded, “[I]f you can do it, do it.”

But the second tree, located on a hill on Whatley’s property that sloped toward the nearby property line, twisted as it fell and toppled into the Sharmas’ yard, damaging their trees and outdoor fountain. The Sharmas argued that there was no way the second tree could have been cut down in one piece without damaging their property.

The Sharmas sued the contractor, arguing he was negligent in felling the tree as an entire unit rather than “topping off” the tree. The Sharmas also included Whatley as a defendant. Whatley moved for summary judgment, arguing that he was not responsible for the actions of the tree cutter, who was an independent contractor. His motion for summary judgment was denied, and he appealed.

job150911Held: The summary judgment was granted, and Whatley was dismissed from the suit. The Court started with the observation that under Georgia law, a person who engages an independent contractor is generally not responsible for any torts committed by the independent contractor. The reason for the rule is that since the employer has no right of control over the manner in which the work is to be done, it is regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it.

The Court said that the true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract has the right to direct the time, the manner, the methods, and the means of execution of the work, or whether the contractor in the performance of the work contracted for is free from any control by the employer in the time, manner, and method in the performance of the work.

Here, the Court held, the unrefuted evidence shows that Whatley engaged a professional tree-cutting contractor for a clearly defined job: to remove two trees for a set price. As a homeowner inexperienced in such matters, Whatley provided no equipment or tools for the job and gave no instructions on how to take down the trees but rather (in the words of the contractor) gave him “freelance” to cut down the trees as he saw best. The contractor and his “tree climber” made the decision to cut down the second tree as an entire unit, based on the contractor’s belief that he could cause the tree to fall into Whatley’s yard alone.

The Sharmas argued that a single conversation between the contractor and Whatley showed that Whatley controlled the contractor’s actions. They claimed that Whatley’s statement, “if you can do it, do it,” in response to the contractor’s decision to take the tree down as an entire unit showed that Whatley was controlling the contractor’s actions. But the Court said this response merely proved that the contractor was free to cut down the tree as he saw fit: “Whatley was expanding, not contracting, the options available to the contractor to remove the tree, to whom was committed the discretion as to the final decision of the method of removal. At most, this was a suggestion or recommendation, and that it is not enough ….”

The Sharmas also contended that an exception to the “independent contractor” rule places liability on Whatley, because “[a]n employer is liable for the negligence of a contractor … [w]hen the work is wrongful in itself….” The Sharmas maintained that the felling of the second tree in one piece so close to their yard necessarily required trespass onto their yard and therefore was wrongful in itself. However, the Court said, the competent evidence showed that Whatley never told the contractor he could go onto the Sharmas’ property and that the contractor believed he could fell the tree without going onto their yard. Anyway, a landowner’s hiring someone to cut down a tree from his land is not wrongful in itself, even though the contractor ends up trespassing onto a neighbor’s yard.


Case of the Day – Monday, October 24, 2016


camelnose141003For all of the Latin phrases, hidebound traditions and libraries full of precedent, the law at its essence is nothing more than a codification of policies generally accepted by society. The law doesn’t always get it right – some laws aren’t carefully drafted, others do exactly what the legislature intended but pursue foolish or even repugnant policies – but by and large, the law tries to lay out rules for conduct based on policies generally accepted to be important.

Keeping an eye on the prize – the societal goals to be achieved – often helps courts from going overboard. It’s how the camel’s nose can be allowed into the tent without getting the whole camel in the process.

A good example of this is the “wrongful life” lawsuit. States all allow a “wrongful death” action, in which the survivors of someone killed, say, in a car accident or from medical malpractice sue for damages. This makes good sense. But in the last decade or so, some “wrongful life” suits have been brought, where – for example – a physician misdiagnoses, and tells prospective parent that their fetus is healthy, but the doctor is wrong. The child is born with severe birth defects. The “wrongful life” suit claims that but for the physician’s negligence, the child would have been aborted.

Very few courts have permitted such a lawsuit, for several very good public policy reasons. The first is that society does not recognizes, as a matter of policy, that anyone is better off not having been born, no matter how severe the burdens of congenital disability. Second, the whole idea of tort law is to place the injured party in the same position as he or she would have been in had the negligence not occurred. But for the negligence, the injured party wouldn’t have been born. What can be done to put a living plaintiff in that position, or ­for that matter, to compensate for having been born instead of never being?

And what would have made Ms. Lewis happy? Perhaps if the Krussels had only clearcut their property ...

Just what would have made Ms. Lewis happy? Perhaps if the Krussels had clearcut their property …

All right, that’s pretty heady stuff, but what does that have to do with tree law? Simply this: in today’s case, the plaintiff, Ms. Lewis, suffered having neighbors Gary and Nancy Krussel’s tree fall on her house. Her suit simply claim this: the tree fell on her house, the neighbors knew that they had a tree, therefore, the tree was a nuisance, and the neighbors were negligent in not keeping the tree from falling on the house. There was no evidence the Krussels had any inkling this particular hemlock was going to fall. There was no evidence any reasonable person would have had such an inkling. In fact, there was no evidence the tree was diseased or damaged. Reduced to its essence, Lewis’s claim was that the tree existed and the tree later fell, and those facts made it a nuisance. The tree was alive, the argument seems to say, and that fact wronged Ms. Lewis.

Fortunately, the Washington state courts made short work of this claim. Ms. Lewis was trying to advance a negligence claim as a nuisance claim, probably because she had no evidence of negligence. But, the courts ruled, public policy was not ready to declare a tree a nuisance merely because it was growing, nor was it prepared to hold that property owners were liable for what became of any naturally-growing, healthy trees on their land.

Without keeping one eye on public policy, the courts’ development of the law might go like this: First, landowners are responsible for damage caused by trees on their property that are diseased or damaged, and about which condition they are actually aware or reasonably ought to be aware. The next step would be courts ruling that owners must inspect their trees to avoid liability. Finally, landowners would be strictly liable for any damage caused by their trees, whether they were aware of a problem or not.

camelnose140310Largely, the law has stopped short of such a draconian rule, because the courts recognize that public policy favors the natural growth of trees, and eschews requiring property owners to devote substantial time and money to inspect trees, where there is no concomitant benefit to the public. By and large, courts have enough policy sense to let the camel’s nose into the tent while keeping the rest of the dromedary outside.

It is this kind of analysis that is illustrated in today’s case.

Lewis v. Krussel, 101 Wash.App. 178, 2 P.3d 486 (Ct.App. Wash. 2000). During a windstorm, two large healthy hemlock trees fell on Dawn Lewis’s house. She sued Gary and Nancy Krussel, who owned the property on which the trees had been growing.

Krussel acknowledged that windstorms had knocked down other trees on his property and other property nearby in previous years. About a week after the windstorm at issue here, another windstorm knocked a tree onto his mother’s mobile home. But the trees that damaged the Lewis house were natural growth, and Krussel had no reason to believe that they were any more dangerous than any other trees on his property under normal conditions. After the damage to the Lewis house, Krussel cut down other hemlock trees located near his house upon the recommendation of the local utility district.

After Lewis sued for nuisance and negligence, Krussel moved for summary judgment. He supported the motion with evidence from a professional forester who inspected the stump of one of the fallen trees and found no evidence of rot. The forester concluded the tree that fell on the Lewis house was no more dangerous than any other tree standing on the Krussels’ property, and there was no way for the Krussels to determine beforehand whether any one of their trees would fall over. The trial court dismissed the Lewis claim, and Lewis appealed.

Held: The appeals court upheld the dismissal of Lewis’s claim.

Sure Ms. Lewis's house was crushed ... but gravity did not turn the healthy tree that toppled onto her roof into a nuisance.

Sure Ms. Lewis’s house was crushed … but gravity did not turn the healthy tree that toppled onto her roof into a nuisance.

A homeowner is not obligated to remove healthy trees because they might topple in a storm. The Court of Appeals said just because a negligence claim was disguised as a nuisance suit didn’t mean that the trial court had to consider it as such. Instead, in situations where the alleged nuisance is a result of what is claimed to be negligent conduct, the rules of negligence are applied.

The elements of a negligence cause of action, of course, are (1) the existence of a duty to the plaintiff, (2) a breach of the duty, and (3) injury to plaintiff flowing from the breach of duty. An owner of property located in an urban or residential area who has actual or constructive knowledge of defects affecting his or her trees has a duty to take corrective action. However, the same is not the case when the tree is healthy. In that case, the owner does not have a duty to remove healthy trees merely because the wind might knock them down.

In this case, the Court agreed, there was no evidence that Krussel had any reason to believe that the hemlock trees posed a hazard, and a professional forester who had inspected the stump of the fallen tree had found that the tree was free of defects. The mere possibility of harm does not mean probability of harm.


Case of the Day – Tuesday, October 25, 2016


Blink-182 – You have any daughters? Look what they could bring home ...

     Blink-182 – What fine-looking lads!  You have a daughter? Speaking of reckless, look what your she could bring home …

On and on, reckless abandon, something’s wrong, this is gonna shock them …” The velvet tones of Blink-182, so reminiscent of the Kingston Trio!

OK, not velvet tones, just teenage angst and a little toilet humor. But today’s protagonist might have had the punk rockers on his iPod while he was wielding his chainsaw with… well, with reckless abandon.

One day last winter, complains loyal reader Jeff of Maple Falls, Ohio, he went to work as usual. In the middle of the day, his neighbor called him to report that some tree cutters had cut the top 60 feet off his prize 75-foot tall silver maple tree. His neighbor, the kind of nice old lady who every kid in the ‘hood can’t stand, had carefully noted the name of the tree trimming service in a little spiral notebook. She gave the name to Jeff, and Jeff called them.

“Ha, ha,” the owner exclaimed, “what a gaffe! Boy, is our face red! We had an order to cut down a silver maple, and we went to the wrong house! Isn’t that just the funniest thing?”

Jeff didn’t think so. The owner sent a representative over to look at the forlorn 15-foot trunk still standing, admitted the crew had come to the wrong address, and offered $1,000 to forget the whole thing. But Jeff loved that tree, which shaded the house, nested squirrels and birds and provide a canopy for family picnics. Jeff’s arborist figured that replacement of the tree with the most comparable silver maple available would cost somewhere around $25,000.

Section 901.51 of the Ohio Revised Code lets an injured party collect treble damages from a party who “recklessly cut down, girdle, or otherwise injure a vine, bush, shrub, sapling, tree or crop growing on the land of another.” Jeff wondered whether the tree trimming service reckless, and whether his $25,000 might be tripled to $75,000. If it did, he might even afford a quick shopping trip through Whole Foods … that is, if he only buys 12 items or fewer.

The tree service owner was red-faced ... somehow, that didn't make Jeff feel much better.

The tree service owner was red-faced … but somehow, that didn’t make Jeff feel much better.

A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

In Collins v. Messer, a woman hired a tree trimmer to clear some of her land. She told the trimmer to only clear to a fencerow, which she later said she believed was the property line. It was not, and the other property owner was unhappy. Mrs. Messer tried to settle with him, but things broke down and he sued.

The trial court found Mrs. Messer’s testimony about her mistaken belief that the fence marked the boundaries credible, as well as her statement that she told the trimmers not to go beyond the fence. Based upon those findings, the trial court determined that Messer’s actions were not reckless and she was not liable in treble damages under the statute. In assessing damages for the trespass, the court held that the measure of damage is the cost of reasonable restoration of property to the pre-existing condition or to a condition as close as reasonably feasible without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

What does this mean for Jeff? Whether the tree trimmer was reckless depends on what led him to the wrong house, and what steps he might have taken to verify the address. Cutting down a healthy 75-foot tall hardwood shade tree is a pretty final act, and industry standard is for the tree trimming employee who performed the estimate and pre-work inspection to be on-site when the work is begun. The irrevocability of cutting down a large tree on a residential lot in the city is such that the trimming company had to have understood the known risk that if the work was performed at the wrong house, the consequences would not be pretty.

One might think that the tree trimming company would want to settle this one for the cost of restoration, rather than roll the dice on whether it will have to pay treble that amount. It is pretty clearly liable for the blunder. When its best hope is to convince a jury that the blunder was just negligence, there isn’t much up-side in litigation. As Ronald Reagan once said, “If you’re explaining, you’re losing.”

Collins v. Messer, Case No. CA 2003-06-149 (Ct.App. Butler Co., June 14 2004) unpublished, 2004 WL 1301393 – Collins sued his neighbor, Messer, for having trees and vegetation removed from Collins’ residential property.

The rear of Collins’ home abuts the rear of Messer’s property in a residential subdivision. Mrs. Messer hired Wilson Garden Center to clear vegetation to an old farm fence, which she thought was a property line. She was not present when the Garden Center employees cleared the vegetation. Mrs. Messer had never met Mr. Collins, and she didn’t speak to him before the Garden Center performed the work. The vegetation, with the exception of a few trees, was cleared up to and beyond the farm fence at a time when neither party was at home. It turned out that Messer’s property line did not extend to the old farm fence and that most of the vegetation cleared was on Collins’ property. Mr. Collins testified that he was “devastated” when he learned of the destruction of the vegetation.

Collins and Messer split the $1,647.91 cost of hiring a landscaper to plant some pine trees in the area between the properties, but the relationship between the parties deteriorated during the year that followed. Finally, Collins sued Messer in trespass, seeking treble damages under O.R.C. §901.51.

Treble damages ... when

Treble damages … when “uh-oh” just isn’t good enough.

Held: The Court found that the evidence was sufficient to support finding that Mrs. Messer’s actions were not reckless, and thus Mr. Collins was not entitled to treble damages. She testified that she was mistaken that the fence constituted the boundary, and she never told the Garden Center workers to go beyond it. Mr. Collins had no evidence to rebut Messer’s claim of mistake, and the trial court may have been swayed by Mrs. Messer’s willingness to share the cost of the mistake before things deteriorated into a lawsuit.

Also, because the parties already had agreed on splitting the costs of planting replacement trees, Mr. Collins wasn’t entitled to additional trespass damages for loss of vegetation. In assessing damages for the trespass, the trial court held that the measure of damage is the cost of reasonable restoration of property to the pre-existing condition or to a condition as close as reasonably feasible without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

The appeals court agreed with the trial court that Mrs. Messer compensated Mr. Collins for his damages by paying $823.00 for the pines planted on Mr. Collins’ land.


Case of the Day – Friday, October 21, 2016



     Autumn in our neck of the woods – it makes you want to get outside and enjoy Mother Nature’s palette.

Finally, after a month of autumn is in the books, we get what looks to be a real fall weekend.  The trees are at peak color, there’s pumpkin spice everything, and football is in the air.  But before we quit early for a walk in the brisk air… we have some work to do.

We’ve told you before to beware of what lurks in the dark and malevolent corners of your deed. Today, we’re going to look at a cautionary tale.

No one really thinks about the wording of easements when the power company or the gas folks come by with some standard form clipped to a dollar bill. The utility reps tell you that it’s no big deal, because the language is standard, no one can change it, and anyway, all your neighbors have signed off on the same form, so what’s the big deal?

We’re not a public utility, so we’ll tell you what the big deal is. Or, better yet, show you.

Consider New Jersey. Please. Just for right now. In East Brunswick, New Jersey (motto: “We’re located at Turnpike Exit 9”), a gas transmission company had acquired an easement for a 3-1/2 foot wide natural gas transmission pipe through some unimproved land back in 1967. The property, once used for only for mob hits and toxic waste dumping (just kidding), was sold sometime after the easement was granted. At some point, a housing development was over a 42” high-pressure gas line the company had buried inside the easement.

The utility had always patrolled its pipeline, and it was well aware of the 19 oak trees growing along the street 40 inches above the pipe. But when new evidence showed that tree roots could cause catastrophic pipeline failures, the gas utility announced it intended to cut down the trees.


And sometime, we retaliate by closing bridge lanes

The property owners, who probably had never bothered to read all of the boring stuff in their deeds that followed the “Know all Men by These Presents …” part, were outraged. They complained that the gas utility shouldn’t be allowed to cut the trees now, because it hadn’t ever bothered to before. This argument is called “laches,” based in the old legal maxim that “equity aids the vigilant.” Or, as some like to say, “Don’t sit on your rights.” The owners argued that the gas company had ever tried to remove the trees before, and – 40 years after obtaining the easement – it should not be allowed to do so now.

What’s more, the owners contended, the gas company couldn’t really prove the 19 trees were hurting anything.

Horrors! Imagine buying land subject to an easement, only to have the easement holder actually try to exercise the easement rights! As they say in New Jersey, “Oh, the humanity!” The gas utility carefully showed how new techniques had determined that tree roots could weaken high-pressure supply lines and in fact had caused some spectacular failures. The property owners could only muster an expert who opined that the tree roots in question probably wouldn’t grow that deep.

The Court of Appeals agreed with the trial judge. The gas company didn’t have to show that the tree roots were damaging the line, only that it had a reasonable basis for keeping roots away from its pipe. The evidence easily did that. As for the laches argument, the Court agreed that nonuse of an easement in New Jersey didn’t lead to loss of the right. Plus, the Court said, the gas company had a good reason for not seeking to remove the trees until it did, as science had only recently determined that tree roots and gas pipelines didn’t mix.

Township of East Brunswick v. Transcontinental Gas Pipeline Corp., Not Reported in A.2d, 2008 WL 2627688 (N.J.Super.A.D., July 7, 2008). Transcontinental (“Transco”) operates an interstate natural gas transmission system that runs from the southern Atlantic seaboard to New York City. One of its main lines, the Lower Bay Line, runs across East Brunswick and along Timber Road. This 42” high-pressure gas line was built in 1967.

When trees fall on power lines, the lights go off for a few hours. When gas transmission lines are breached by tree roots, the misadventure that follows is usually much more energetic.

When trees fall on power lines, the lights go off for a few hours. When gas transmission lines are breached by tree roots, the misadventure that follows is usually much more energetic.

Transco holds a 100’ wide easement for the pipeline pursuant to a right-of-way agreement “for the purposes of laying, constructing, maintaining, operating, repairing, altering, replacing and removing from time to time one or more pipelines … together with such other rights as may be necessary or convenient for the full enjoyment or use of the rights herein granted [including] the right to enter upon the right of way and easement … at such times as Grantee may elect … and the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation and maintenance of Grantee’s pipe lines[.]”

The owner sold the property subject to the easement, and in the 1980s it was developed into a residential community of single family homes. The width of the easement covers the width of Timber Road, the sidewalks and portions of the residents’ front yards. The pipeline is buried 40” deep and runs along one side of the street in the public space between the sidewalk and the curb.

Nineteen shade trees were planted some time during the 1980s between the sidewalk and the curb, so that they are growing directly above the pipeline. Transco knew of the existence of these shade trees because it regularly inspected and monitored the pipeline. Natural gas pipelines must be properly maintained and monitored because any rupture can cause serious damage. Transco monitors the pipeline and has an extensive program for on-site inspection of the Lower Bay Line pipeline right of way. An inspector walks directly over the pipeline at least once a year to perform ground tests to determine if natural gas is leaking. The right of way is patrolled almost daily by vehicle and it is inspected once a week by air to determine if any unauthorized excavation is occurring in the area and to detect early signs of leakage.

Concerned about damage to the pipeline’s protective coating by tree roots, maintaining a clear line of sight along the pipeline, and preventing any delays in reaching the pipeline in an emergency, Transco tried to remove the 19 trees above the pipeline as part of a larger effort to remove trees above all of its pipelines in the area. The residents sued for a temporary restraining order enjoining Transco from removing the trees. Transco argued it had an absolute legal right to remove the trees under the right-of-way easement. Plaintiffs argued there was a genuine issue of material fact whether the trees endangered the pipeline, and whether their removal was reasonably necessary for Transco’s enjoyment of its easement right. No evidence was adduced that the tree roots were currently damaging the pipeline but there was evidence of potential harm.

A 2004 investigation revealed metal losses in the pope walls ranging from 6% to 15% at various locations along Timber Road. Additional testing in 2005 uncovered pipeline coating defects or interruptions at some of the same locations where the metal anomalies were discovered, but neither inspection definitively determined that tree roots were the cause of the damage. Finding that Transco need not wait for actual damage to its pipeline before exercising its express easement rights, the judge concluded, “the record indicates that tree roots may damage the protective coating of the pipeline …. [and][f]urther, efforts to keep the protective coating of the pipe intact [are] part of the necessary maintenance program for a pipeline.” The judge also reasoned that while the pipeline’s path is marked with yellow markers, the presence of the trees detracts from the area’s appearance as a right of way and may lead to third party interference with the pipeline, one of the biggest causes of pipeline accidents. The court granted summary judgment for Transco and the plaintiffs appealed.

easement150908Held: Transco had the right to remove the trees. The Court said the primary rule of construction is that the intent of the conveyor is normally determined by the language of the conveyance read as an entirety and in the light of the surrounding circumstances. Here, the easement plainly and expressly gave Transco the right to remove trees when they may endanger or interfere with the construction, operation or maintenance of the pipeline. The language specifically stated the grantee had “the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation and maintenance of Grantee’s pipe lines….” The easement also clearly gave Transco the right to remove trees if they interfere with Transco’s immediate access to the right of way. The plain language of the easement gave Transco the express right to remove trees and did not require actual damage to or interference with pipeline operations before the trees get cut. The easement permitted preventive action to avoid potential harm, disruption or interference with the operator’s pipeline.

The uncontroverted evidence showed that the pipeline and pipeline coating along Timber Road has been damaged, and although there was no proof the damage has been caused by tree roots, other sections of Transco pipelines and pipeline coating in New Jersey had been damaged by tree roots. The Plaintiff had no proof to the contrary, but instead their expert only posited that “the roots are not likely to interfere in any way with the pipeline;” the root systems are “generally non-invasive;” and root growth is “typically ” confined to the upper two to two-and-one-half feet beneath the ground surface. The proof didn’t foreclose the possibility that the tree roots may grow deep enough to interfere with the pipeline, as they had in other sections of Transco’s pipeline.

Plaintiffs also contended Transco was barred from taking affirmative action by the equitable doctrine of laches, because it waited so long to exercise its easement rights. But the mere non-use of an easement cannot destroy the rights granted by it. Rather, clear and convincing evidence of the intent to abandon the easement rights must be shown. In this case, there was no evidence that Transco intended to abandon its easement rights; therefore, any reliance placed by plaintiffs on Transco’s inaction was unreasonable. Also, there was reasonable justification for Transco’s inaction over the years, having been unaware of the potential danger of the tree roots at time of planting. The evidence showed that since the trees were planted, there have been three accidents nationwide related to the rupture of natural gas pipelines and three incidents in this State where Transco has discovered that tree roots have damaged pipelines. The Court said that the fact that action had not been taken earlier did not preclude preventive action now, nor require waiting for actual damage to occur.

Plaintiffs simply did not demonstrate how their interest in preventing the removal of the trees outweighed Transco’s taking preventive measures in the public interest.