Case of the Day – Friday, December 13, 2019


We read judicial decisions not for the winners or losers (although that can be interesting and sometimes important). Instead, like the grizzled prospector on some mountain stream in gold rush country who washes pan after pan of gravel and sand for that all-too-occasional pebble of gold, we look for nuggets of wisdom hidden in the dross of legal minutiae.

Today’s case had a lot of moving parts. For brevity, I cut out all of the other defendants (such as the parents of the minor operating the motorcycle) and cross-defendants, cross-plaintiffs, counterclaimants and the such, whose claims were irrelevant to the legal nugget in the case. Instead, I focused solely on the defendant Fancy Creek Township.

The Township was in the case because the plaintiffs claimed the stop sign at the intersection they blew on their motorcycle was obscured by bushes. The plaintiffs argued that the Township was negligent for not trimming the bushes away from the sign, and that was why they raced through the crossroads, only to be t-boned by a car that had the right of way.

So what do we know about negligence? First, we know the defendant must have a duty to the plaintiff. Second, he or she has to have breached the duty. Finally, the breach has to have been the proximate cause of the plaintiff’s injuries (and, of course, the plaintiff actually has to have been injured).

In this case, the jury had found in favor of the Township. The Court of Appeals firmly held that the Township had a duty to motorists to keep the vegetation away from the signage. The Township had 37 miles of road to maintain, not a whole lot, but it had no inspection plan that would ensure that the foliage stayed away from the signs. That, the Court said, was a breach of its duty.

But the Court, which was after all only reviewing what a jury had found, concluded that a rational jury could have decided that the very youthful and inexperienced motorcycle operator Ronnie was going too fast, or that he decided to blast through the intersection, or that he didn’t see the stop sign for some other reason. In other words, the Court said, the jury properly held that the Township’s negligence was not the proximate cause of Ronnie’s accident, and thus, it was not responsible for Craig’s injuries.

Norvell v. Fancy Creek Township, 130 Ill. App. 3d 275, 474 N.E.2d 53 (Ct.App. Illinois, 1985). A motorcycle driven by Ronald M. Kreis and on which Craig A. Norvell, was a passenger, collided with a car driven by Shirley Fieten, at an intersection in Fancy Creek Township. Shirley was traveling north on Route 29 at a normal speed. The motorcycle approached on the Township road traveling west and entered the intersection without stopping. The car struck the motorcycle.

A stop sign facing westbound on the Township road had been placed in the usual location. The Township had a duty to properly maintain the sign. They had permitted bushes to grow in front of the sign to the extent that the sign was obscured at a distance of 61 feet east of the stop sign. However, some 355 feet east of the stop sign, there was a visible sign warning travelers that there was a stop ahead. Expert testimony indicated that a stopping distance for an automobile traveling at 45 mph would be 323 feet. At the time of the collision, Craig and Ronnie were 13 and 15 years old, respectively.

When a vehicle approached the intersection from the east, as the motorcycle did, an operator could see other indications that an intersection was ahead. From 60 feet, the back of a stop sign on the west side of Route 29 was clearly visible. The grade of the Township road rose as it extended east from Route 29 until it reached a crest about 182 feet east of the route. He further testified that one traveling west on the township road approaching the intersection could not see the intersection until reaching the crest. The Township had 37 miles of road to maintain, for which it had no regular inspection schedule. The intersection was one of the two most dangerous in the township.

Neither Craig nor Ronald could recall the accident. Craig had only passed through the intersection once before, and then he was a passenger in a vehicle traveling on Route 29 three weeks before the collision. However, Ronald’s sister lived south of the intersection a short distance, and that while driving in the area before the collision, he had made a wrong turn and had come upon Route 29.

Craig, through a guardian, brought suit to recover for his injuries against the Township. After trial, the trial court entered a judgment in favor of the Township.

Craig appealed.

Held: The judgment in favor of the Township was affirmed.

A prior case had found a different township liable for negligence in a similar accident. Here, in that case, there was no sign present. In this case, there was a sign indicating a stop ahead and some evidence that the driver knew something of the area.

The Court found the Township was negligent, but held that the negligence was not the proximate cause of the accident. The Township’s negligence in failing to keep the stop sign visible would, as a matter of law, have been a proximate cause of the collision unless the collision would have happened even had the stop sign had not been obscured.

Because a sign indicated that a stop was ahead, the Court found, a jury could have concluded that, if Ronald did not see that sign and did not observe the other indications that he was approaching a State highway, he was so inattentive that he would not have seen the stop sign had it not been obscured. On the other hand, the jury could have determined that Ronald saw the warning sign, knew that a stop sign was ahead but was going too fast to stop and decided it was best to attempt to get across the intersection as fast as possible. In either case, the jury could have concluded that the failure to clear the brush from in front of the sign was not a proximate cause of the collision.

– Tom Root

And Now The News …

San Francisco, California, Chronicle, December 12, 2019: Crash shines light on immigrants in Christmas tree workforce

It was nighttime when Pedro Lucas came home, clutching receipts showing he had paid a funeral home to have the bodies of three immigrant laborers returned to Guatemala from Oregon. The three, including two of Lucas’ cousins, were killed when a pickup truck slammed into a van carrying them and 10 other Guatemalans home from work at a Christmas tree farm. Lucas’ father, who arrived in America just seven months ago and sent part of his earnings to his wife in the village of Chacaj, was also in the van and remains in a coma, his back broken. “It’s unknown if he’ll walk again,” Lucas said in Spanish. The Nov. 29 crash shined a light on Oregon’s immigrant farm workers, the driving force behind the state’s $121 million Christmas tree industry, the nation’s largest. “People don’t realize that the majority of this industry is immigrant labor,” said Reyna Lopez, executive director of a farm worker union called PCUN, an acronym in Spanish for Pine Workers and Farmers United of the Northwest. The victims of the crash spent their last day loading Christmas trees onto trucks at Holiday Tree Farms, one of the world’s largest Christmas tree farms. They received paychecks from a contractor that Friday night in Salem and were headed home when the pickup truck crumpled their van. The Oregon Occupational Safety and Health Division is investigating, though a spokesman declined to provide details…

Seattle, Washington, KOMO-TV, December 12, 2019: Shoreline neighbors push to save trees that could be cleared for new sidewalks

A group of neighbors are fighting to save the trees that line their street, despite a city plan to chop them down to make room for sidewalks. The trees stretch along the 15700 block of Dayton Avenue North were the state Department of Transportation is remodeling one of its regional headquarters. When WSDOT applied to retrofit the building, officials with the city of Shoreline asked that they also spruce up the street out front. Part of that request includes building sidewalks, but 130 trees stand in the way. They’ve been there for decades. “This is a big deal for the people who live here,” said Melody Fosmore, a neighbor who learned about the plan and quickly formed a group called Save the Shoreline Trees. The renovation that WSDOT plans is so extensive that it triggered a provision in Shoreline’s city code requiring on-site and right-of-way improvements, to help maintain the city’s transportation infrastructure…

APS Physics, December 12, 2019: Wonder Material Grows on Trees

To shape the future, next-generation materials need not be as exotic as topological insulators and metamaterials. Researchers are investigating the potential of nanocellulose—a nanostructured form of cellulose that can be obtained from the humble wood chip—for applications ranging from microfluidic devices to rechargeable batteries. A team led by Liangbing Hu at the University of Maryland in College Park reported at the 2019 Fall Meeting of the Material Research Society in Boston that a material that combines nanocellulose with graphite has mechanical properties that surpass those of steels and of other established structural materials. The recyclable composite could offer an environmentally friendly alternative for building lightweight vehicles, aircraft, and body armor. Hu presented an overview of his quest for replacing traditional materials with sustainable ones based on wood nanocellulose. The cellulose fibers that make up nanocellulose have diameters of between 5 and 20 nm and lengths of several micrometers. They are typically prepared from wood pulp using mechanical methods that rip the pulp’s wood fibers into nanoscale whiskers. “Wood and materials derived from [wood] have a lot to offer,” Hu says, noting that wood-based materials are recyclable, biocompatible, and biodegradable. “These are fantastic properties, but to make these materials successful, we need to show that their performance is superior to that of traditional materials,” he adds…

Bangor, Maine, WLBZ-TV, December 12, 2019: UNE professor working to restore the American chestnut tree one seed at a time

Professor Thomas Klak is a man with a mission. “We need to reinstill this knowledge in our culture of how important the American chestnut tree is to the eastern United States, and we’re going to do it,” Klak said as he sat in front of three bags of American chestnut seeds from wild specimens in Maine. The professor of environmental studies has been working to speed breed American chestnut seedlings for the last year. He has seedlings in the greenhouse on the Biddeford campus of the University of New England and in a special growth chamber that looks like a huge white refrigerator. In the early 1900s, a fungal blight from Asia was brought to America, presumably accidentally, when smaller Asian chestnut trees were imported. The Asian chestnuts were immune to the fungal blight, but the American chestnuts could not have been more vulnerable. Klak said, from 1904 when the blight was first detected at the Botanical Gardens in the Bronx until 1950, the once prolific tree that grew from Maine to Alabama and as far west as Indiana was wiped out. Four billion trees were killed…

New York City, Wall Street Journal, December 12, 2019: Tariff Threat Dims Holiday Cheer for Christmas Tree Company

President Trump’s threatened new tariffs on Christmas decorations from China won’t take effect until next year—but that’s no comfort to Mac Harman, who has to do his 2020 holiday shopping now. Mr. Harman is chief executive of Balsam Brands of Redwood City, Calif., which sells artificial Christmas trees made in China. One of the factories that he buys from has given him a Dec. 20 deadline to place orders for next year. That usually isn’t a problem, but Mr. Harman says he can’t estimate demand until he knows whether Mr. Trump is serious about imposing 15% tariffs on an array of consumer goods including Christmas decor, starting at 12:01 a.m. Sunday. “You never know what the next day or the next hour will bring,” Mr. Harman said of the U.S.-China trade war’s head-spinning turns. “We’ve been growing and creating jobs, but two months ago we stopped hiring because we have to assume the tariffs are going into place and we will no longer be growing.” Other companies that import electronics, toys, apparel and other goods that would be subject to the new tariffs share the same predicament. Despite expectations that the tariffs will be delayed, no one is certain of what the president will do. “Everyone is kind of living on the edge,” said David French, the National Retail Federation’s senior vice president for government relations. “I don’t think anyone has a lot of clarity, even inside the administration, of what will happen…”

Austin, Texas, KXAN-TV, December 11, 2019: Austin buys carbon credits from new tree-planting program as carbon neutrality goal looms

A new program to plant saplings on private land and sell the resulting carbon credits locally kicks off this weekend. The nonprofit TreeFolks will take a group of volunteers to a landowner’s property in eastern Travis County on Saturday, Dec. 14, to plant 1,500 native Texas saplings, including walnut, bald cypress and a couple types of sycamores, launching the Travis County Floodplain Reforestation Program. Over the course of the current planting season, which runs through March, TreeFolks will plant 50,000 saplings on about 90 acres of land, both private and public, in the county. The group chose eastern Travis County floodplains because “it’s been so degraded through farming and ranching over the last hundred or so years,” said Valerie Tamburri, TreeFolks’ reforestation coordinator. New trees will help prevent erosion, clean water and keep the surrounding area cooler, she explained. But a big reason this program differs from other reforestation efforts is the sale of the resulting carbon credits to the city of Austin. Trees absorb carbon dioxide, a main driver of climate change. By planting acres of new forest, TreeFolks is generating offsets for the carbon produced by driving cars, generating electricity and other activities that burn fossil fuels…

Tampa, Florida, WTSP-TV, December 11, 2019: That ‘walnut’ on your Christmas tree could harbor praying mantis eggs

A “public service announcement” published this week by the folks in Erie County, Ohio, warn of a walnut-sized mass on a Christmas tree. “Don’t fret,” the Facebook post reads, in part. “These are 100-200 preying [sic] mantis eggs!” Officials’ advice to anyone who comes across it probably is wise — clip the branch and put it in your garden, though the odds of coming across anything like it isn’t common at all., citing a horticulture educator at the University of Illinois Extension, said post-harvest pests in Christmas trees are discovered in about one out of 100,000 cut trees. The picture published by Erie County government actually began circulating in 2017, Snopes found, which was about the time a pest control company claimed “as many as 25,000 bugs can live in one tree.” People aren’t likely to count up to that many, but those “Christmas tree hitchhikers” — if there are any in the first place — could include adelgids, aphids, mites or, yes, praying mantids.”You may never experience any problems with Christmas tree pests, or if you have, you may never encounter them again,” writes Chris Enroth at the University of Illinois…

San Luis Obispo, California, The Tribune, December 11, 2019: Sudden oak death is killing trees across California. Could Cambria be next?

North Coast property owners whose lands include oak or bay laurel trees are on alert. The dreaded sudden oak death that is decimating some species statewide is inching further south from Big Sur toward San Luis Obispo County. Sudden oak death (SOD) could be especially devastating in Cambria, where the town’s rare native forest of Monterey pines has been especially hard hit by bark beetles, fungal infections such as pitch canker and advanced age. The landmark 3,400-acre pine forest also includes many oak trees and bay laurels, both of which are susceptible to SOD. According to, the pathogen Phytophthora ramorum, which is known to cause SOD, has had “devastating effects on coastal forests in California and Oregon…”

Portland, Oregon, The Oregonian, December 10, 2019: Department of Forestry’s new management plan is so vague it’s meaningless, critics say

Oregon Department of Forestry officials will meet Wednesday with commissioners from the so-called forest trust land counties, the first such gathering since those counties won a $1.1 billion damage award in a lawsuit against the agency for failing to maximize logging on state forests. The purpose of the meeting is to review the agency’s new vision for managing 613,000 acres of forests in Western Oregon. It could be a lively discussion. The 180-page draft document laying out that vision, called a Forest Management Plan, was six years in the making. It’s inherently controversial because of the competing demands on state forests to provide various economic, social and environmental benefits. Indeed, the last version of the plan and the agency’s implementation of it landed the agency and the counties in court. This version could prove just as contentious. Barely a week after its release, stakeholders from across the spectrum are criticizing the draft plan as lacking the specifics they were expecting from the agency. They say it doesn’t deliver on the agency’s directive to come up with a plan that improves both financial and conservation outcomes. And as it stands, they say, it falls woefully short of something they can support…

Boston, Massachusetts, WCVB-TV, December 10, 2019: Tree company worker killed on the job in Wakefield, officials say

A worker for an independent tree company died while on the job in Wakefield, officials said Tuesday afternoon. The 34-year-old man was working around 11 a.m. in a wooded area at a residence near Greenwood Street, according to Wakefield police and fire officials. Authorities got to the scene and discovered the worker had suffered “traumatic” injuries, officials wrote in a statement. The worker was pronounced dead at the scene. His name is being withheld pending positive identification and family notification, officials said. Officials did not release information about exactly how the worker became injured. The name of the tree company was not released. A witness told WCVB News that a tree snapped, throwing the worker into the woods. Wakefield police have secured the Greenwood Street area as the investigation continues. The Occupational Safety and Health Administration and Massachusetts State Police assigned to the Middlesex District Attorney’s office will also investigate the death…

Lahore, Pakistan, The Daily Times, December 10, 2019: Elm trees are making a comeback in Britain thanks to the development of new breeds

Elm trees could make a comeback after dying in their millions during the 1970s when they were ravaged by disease. Varieties that are more resistant to Dutch elm disease have been identified and could be used to repopulate the country. The Future Trees Trust has found mature specimens around the country that have successfully resisted the fungal infection – and elm saplings have been bred which are not harmed by it. Karen Russell, co-author of a report into the elm, said: ‘It was our second most important timber broadleaf tree after oak. Private individuals and organizations now have a great opportunity to enable the return of elm to our countryside and communities.’ The Daily Mail’s Be A Tree Angel campaign is calling for readers to donate money or Nectar points to help plant trees across the UK – creating a greener country and fighting climate change at the same time. Part of the project is planting 1,000 orchards in 1,000 schools. The report on the elm said European and North American species had little resistance to the disease – a fungus called ascomyta spread by the elm bark beetle…

Austin, Texas, KVUE-TV, December 9, 2019: Residents band together to stop removal of 104 trees, Williamson County says it’s too late

Between 2012 and 2014, Hairy Man Road – which turns into Brushy Creek Road – had 47 accidents on the road, according to data collected by Williamson County. Only one resulted in a fatal crash, but others led to drivers or passengers getting injured, vehicles getting damaged, and/or trees getting damaged to the point of dying. The county used that data and continued to collect more through 2019 to justify expanding the roadway to two feet on each side to create a shoulder with a rumble strip. “You can add a rumble strip so if your car veered out of the lane, it hit that rumble and – oh! – you wake up. You’re conscious again and you pull back into your lane,” County Commissioner Terry Cook said. The public safety changes to this road are taking place within Cook’s precinct. She added at the heart of this issue, it’s up to drivers to be better. “The county would not have to spend one penny on this road – except routine maintenance – if drivers were responsible,” Cook said. “This is not big government coming in to take out our trees.” However, a Facebook group argues this is not the answer…

Omaha, Nebraska, World-Telegram, December 9, 2019: Thieves cut top off blue spruce tree at west Omaha event center

Tree thieves ran off with most of a blue spruce tree they cut outside the Arbor Hall event center. “I’m sure that someone is using it right now as a Christmas tree,” said Molly Pagels, who operates Arbor Hall at 14040 Arbor St. “We have (surveillance) video of them cutting it down, but it was 2:30 in the morning, so it’s hard to see them.” The incident occurred Nov. 28 near a back corner of the hall, which is rented for weddings and other special events. The surveillance video shows two people with a handsaw cutting off the top 6 feet off the tree and carrying it toward nearby apartments. At one point in the video, Pagels said, a car drove by, prompting the thieves to drop the tree and lie on the ground until the vehicle passed. Pagels estimated the value of the tree, planted four years ago, at $250…

Pittsburgh, Pennsylvania, Tribune, December 9, 2019: Harrison tree service company emphasizes safety as they reach new heights

B.J. Schaltenbrand recalls the time BeaverJack Tree Service received a request that was out of the ordinary. A woman from Pittsburgh called the Harrison-based company because her parrot had flown 50 feet up into a tree, and she needed help getting it down. “She was in panic. (She said) ‘I can’t get the firefighters. I can’t get anybody here. I need to get this parrot down. He means so much to me,’ ” said Schaltenbrand, who owns the tree and landscape maintenance company. Schaltenbrand contacted one of his climbers — the employees who climb trees to maintain them — with a new assignment: rescue the parrot. “He’s like, ‘Whatever it takes. Let’s go,’ ” Schaltenbrand said of the employee, who rescued the bird and reunited it with its owner. “I think that that was one of the most extraordinary calls that we’ve ever received…”, December 9, 2019: Scientists accidentally discover a new water mold threatening Christmas trees

Grown as Christmas trees, Fraser firs are highly prized for their rich color and pleasant scent as well as their ability to hold their needles. Unfortunately, they are also highly susceptible to devastating root rot diseases caused by water molds in the genus Phytophthora. Scientists in Connecticut were conducting experiments testing various methods to grow healthier Fraser trees when they accidentally discovered a new species of Phytophthora. They collected the diseased plants, isolated and grew the pathogen on artificial media, then inoculated it into healthy plants before re-isolating it to prove its pathogenicity. “Once the organism was isolated, the presence of unusually thick spore walls alerted us that this may not be a commonly encountered species,” said Rich Cowles, a scientist at the Connecticut Agricultural Experiment Station involved with this study, “and so comparison of several genes’ sequences with known Phytophthora species was used to discover how our unknown was related to other, previously described species.” In fact, they had discovered a new species altogether. The fact that these scientists so readily discovered a new species of Phytophthora infecting Christmas trees suggests that there could be many more species waiting to be discovered…

Denver, Colorado, KUSA-TV, December 9, 2019: Is planting trees in Denver the natural thing to do?

The Downtown Denver Partnership released its annual report outlining a plan to try to double the percentage of tree canopy coverage in the coming years. But is Denver really supposed to have that many trees? “There’s a lot of things that make it less than ideal for trees,” Mike Bone said. He is a horticulturist and the curator of Steppe Collections for Denver Botanic Gardens. Bone said first, prior to people, trees never thrived on the land that Denver sits on. “We’re smack dab in the middle of the Great North American Steppes,” Bone said. “So, there’s not a lot of trees that are native to this site.” Denver is supposed to be short grass prairie land with trees growing only near water because water is a problem here. “The dry rain shadow of the Rockies makes it very difficult for trees to survive here,” Bone said. The climate is a factor too, he said. “Extremes of hot summers and cold winters and especially when the weather changes dramatically as it does from time to time…”

Rochester, Minnesota, Post-Bulletin, December 8, 2019: Aggressive action in Minnesota slowing spread of tree-killing beetle

The state’s population of ash trees should have been ruined by now. Instead, the invasion of a tree-killing beetle has dramatically slowed, leaving millions of ash trees still standing. “We got kind of lucky,” said Jeff Hahn, an entomologist with the University of Minnesota Extension Service. Hahn is not declaring victory over the emerald ash borer, which is expected to eventually destroy most of the state’s 1 billion ash trees. But he is noting that on the 10th anniversary of the bug’s arrival, its advance has been slower than was originally predicted. In Michigan, in only 10 years, the beetle wiped out 30 million ash trees, and spread to almost all of its 83 counties. But after a decade in Minnesota, the destruction has been limited to 17 counties, mostly in the metro area and southeast Minnesota. “It’s remarkable that we still have ash trees in the metro area,” said Rob Venette, director of the U’s Minnesota Invasive Terrestrial Plants and Pests Center. The beetle was first spotted in St. Paul in 2009. Its arrival led to fears every ash tree in the metro area would soon be killed. Experts believe that Minnesota’s cold snaps to minus-30 degrees help kill the beetle. Michigan’s winters are more mild — compare St. Paul’s record cold of minus 41 degrees to Detroit’s minus 13…

Digital Journal, December 8, 2019: How to Check for Signs of Spotted Lanternfly Before Purchasing a Christmas Tree

Finding the perfect Christmas trees is one of the highlights of the holiday season. However, with the recent invasion of the Spotted Lanternfly, many Pennsylvanians are left wondering if they should be hesitant about bringing a possible tainted topiary into their home. The experts at Giroud Tree and Lawn explain what to look for on Christmas trees before buying one. Spotted Lanternfly came from Asia, where natural predators keep the species from multiplying too quickly. Unfortunately, here in the United States, it’s spreading rapidly because those known predators aren’t around to keep it in check. While Spotted Lanternfly have invaded Pennsylvania heavily in the last few years, there’s not much cause for concern on your Christmas Conifer. The PA Department of Agriculture and Penn State have been working closely with the Pennsylvania Christmas Tree Growers Association, and they have been diligently training all tree growers on proper inspection practices. Although the Spotted Lanternfly has been seen on many species of trees, they don’t appear to show an interest in the varieties used for Christmas trees. In a recent article published by the Penn State Extension, Tanner Delvalle, a horticulture extension educator explains, “Christmas trees are not a preferred host for spotted lanternflies, so the probability of finding a spotted lanternfly or an egg mass on Christmas trees is low and should not be a reason for anyone to forego having a live holiday tree…”

Madison, Wisconsin, Wisconsin State Journal, December 8, 2019: How to best maintain your Christmas tree

Any tree can be successfully maintained to outlast the holidays, but Ray Guries, professor of forest and wildlife ecology at UW-Madison, said fir trees are easier because they hold the needles best. Fraser, balsam and Douglas firs retain needles better whereas spruce and pine trees are prone to shedding, he said. Laura Jull, associate professor of horticulture at UW-Madison, said balsam firs and Fraser firs are more aromatic. She said any type of spruce tree should be avoided because their needles drop quickly. Buying the freshest tree possible ensures the least amount of needle shedding, Guries said. The longer it has been since the tree was harvested, the drier and therefore more likely it will be to shed the twigs and needles. Guries suggests going to a u-cut farm and harvesting your own tree. Once the tree is home, keep it in a cool place out of the wind before putting it on display, and put the cut-end in water. Before putting it up, cut at least an inch off the trunk to remove the resin seal so the tree can keep taking in water. A fresh tree that has been handled correctly will continue to transpire, which means it is able to conduct water through the stem, branches and needles, Guries said…

New York City, WABC-TV, December 8, 2019: Tree vendor in SoHo selling 20-foot fir for $6,500

A vendor in SoHo Is selling what is likely the city’s most expensive Christmas tree. ‘SoHo Trees’ is offering 20-foot Fraser firs at $6,500 a pop. Other vendors nearby are selling similar trees for less – but not by much. The salesman insists the high tree price – at $325 per foot isn’t fazing buyers. Vendors blame the hefty price tags on a shortage this season of the favored Fraser fir…

Charlotte, North Carolina, Observer, December 5, 2019: It’s time to band trees in Charlotte. What for, and are those green worms going away?

It’s an annual tradition in Charlotte. Cooking up a big Thanksgiving dinner, shopping for presents, decorating for Christmas and — banding your trees to battle the cankerworm. The pesky, lime-green, leaf-eating worm makes itself most annoying in the spring, when millions of them drop from the trees of Charlotte, littering your porch, hitch-hiking on your dog, or even worse, getting caught in your hair. The good news: after spending decades and millions of dollars battling the insect, it appears the city of Charlotte may actually have conquered the canker. [In 2016: 38,948 worms; in 2017, 32,434 worms; in 2018, 4,963 worms; and in 2019, 184 worms.] For those of you who prefer math, that’s a 99.5% decrease. “While we don’t know for certain what the cause is, our best guess is that in back-to-back years, we had several consecutive nights of hard freezes in early spring that may have killed the newly hatched caterpillars at the tops of the trees, as well as the foliage in the trees that they need to feed on,” said Laurie Dukes, assistant city arborist. Besides being a nuisance, the cankerworm is a voracious eater, chowing down on the leaves of the city’s larger trees. The sheer number of worms can severely damage or kill these old and fragile trees…

Newsweek, December 5, 2019: Tree Farmers Upset About Commercial That Calls Artificial Christmas Trees More Eco-Friendly

A holiday commercial from retailer Canadian Tire has tree farmers upset because it positioned artificial Christmas trees as an eco-friendly alternative to cutting one down. Canadian Tire, which has 1,686 locations in the country, released its Christmas commercial a few weeks ago. In the clip, a father and daughter walk through a snowy forest, saw in hand, to cut down a tree for the holiday. After the young girl shows her dad that the trees are home to a wide variety of animal life, he reconsiders and they head inside to decorate an artificial tree for their holiday. Although the advertisement might seem anodyne, tree farmers are protesting the implication that their livelihood is damaging to the environment. Jimmy Downey of Downey Tree Farm & Nursery spoke to CBC News about the clip. He pointed out that the majority of artificial trees are made in China of nonbiodegradable plastics, and even though they can be used for multiple years they still represent a larger carbon footprint in manufacturing, shipping and disposal. “Natural trees live in the environment for 15 years, producing oxygen for us, and they are recycled. Ultimately, they are better for the environment…”

National Geographic, December 5, 2019: How to live with mega-fires? Portugal’s feral forests may hold the secret

When the speeding BMW emerged out of the smoke of burning eucalyptus trees, heading straight for her firetruck, Filipa Rodriguez had no time to react. “I had time only to think, ‘We’re going to crash,’” she says, massaging the burn marks on her arms, and then the car plowed into them, and the five volunteer firefighters stumbled out from their ruined truck into an inferno. It was high summer in 2017, and they had just crossed into the outer bands of the worst firestorm to ever hit Portugal, a presage for a new age of mega-fire that would soon stalk across landscapes from Spain to Australia. Rodriguez, then 24, stepped outside and her safety goggles immediately melted to her face; as she ripped them off, skin came with them. She blinked through the smoke at eucalyptus trees flying by, burning, in the winds of the biggest flames she had ever seen. Rodriguez was not a professional—like three generations of her male relatives, she was a member of the bombeiros, the volunteer firefighting corps that since the 1950s has served as first line of fire defense for the towns of the rugged, hardscrabble, limestone hills of the Portuguese interior. Every summer all types—doctors, teachers, mail carriers, college students—take their vacations at the local fire station, where they wait round the clock for word of fire…

Imperial Beach California, Eagle & Times, December 5, 2019: How To Choose A Christmas Tree: Tips From Expert Arborist Mark Chisholm

There’s more to decking the halls with just the right Christmas tree than many people realize. Here are seven hints that can help. Before you head to the lot or store to pick out this year’s tree, you must be certain of where you want to place the tree and the space available. Try to avoid spots near heat sources such as radiators, fireplaces, heating vents and even televisions or sun-drenched windows. Also, try to tuck the tree into a low-traffic area to avoid accidental bumping and possible safety issues. Next, you’ll need to measure the space dimensions you have to work with, bearing in mind that a tree stand will add a few extra inches of height, as will a star or angel to finish the top. If you’re like me and look forward to contributing to the spirit of the season while picking a tree, you can look for charitable lots. One I like to shop at donates all of its proceeds to a children’s hospital. Another option would be to get an extra tree and then donate it to a family that can’t afford one or to an organization that will find that tree the right home. At the lot you will likely see three or four common varieties of trees. Some things to consider when choosing are the color, shape and feel of the tree. Some trees are dark green, and others have gray or white shades. There are trees with tight branching patterns and some with more spaces. One thing to remember is that if the tree looks very full while absent of ornaments, it may be difficult to decorate…


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Case of the Day – Thursday, December 12, 2019


My favorite daughter, who is nearly finished with her Ph.D. in demographics, earned her undergraduate degree in linguistics a decade or more ago. That came after 20 years of listening to her mother and me complain that the English language is going to hell.

You know, to be perfectly honest, at the end of the day I could literally die at the debasement of the King’s English. A prime example, IMHO, is the ubiquitous airline expression “preboarding.” Since when does one “preboard” by boarding? And the credit-card come-on I got the other day, telling me I was “pre-qualified?” Just what is that? Am I qualified? Or not qualified? To me, “qualified” seems rather binary – you are or you aren’t.

But my Ivy League-educated daughter just rolls her eyes, and tells me that “language is dynamic.” In other words, 2020 English is not 1920 English, which was not 1820 English, and so on. “Get used to it, Dad,” she counsels me.

Which brings me to today’s case. Ann sued her neighbor Mike because, after she gave him permission to perform “limited trimming” of her Norway Oak tree, the branches of which were overhanging his property, she says he over-trimmed, hacked away at the tree roots and smeared a foreign substance on the root he did not hack. Her expert said the Norway Maple was worth $96,000.

The whole case sounds sketchy. Apparently, Mike performed all of his depredations of the branches and roots from the comfort of his own property. Regular readers of this blog should, at this point, express shock. That sounds like the Massachusetts Rule, especially because Mike argued that her tree had encroached and damaged his property. Why did Mike even require permission to trim overhanging branches and encroaching roots? 

But that’s a question for another day. What the Connecticut trial court was deciding in this opinion was whether Ann was entitled to a prejudgment remedy. “Prejudgment” here is judgment in the same sense that “preboarding” is judgment. If Ann gets her remedy, she gets to attach Mike’s property (bank account, gold bullion, beach house, whatever) up to the amount of the judgment to which she is likely entitled. To do so, she has to show “probable cause” to believe that Mike is liable (that he trespassed, was negligent, whatever) and that she was damaged to a likely amount.

“Prejudgment” sounds a lot like judgment to me, especially because she pleads her claim, he opposes it, and the court decides. Far be it from me to ask how a criminal law concept like “probable cause” found its way into the civil sphere, but the fact that Ann can force a paper trial before the trial, and thereby lock up Mike’s assets (thus restricting his ability to freely use his own property) makes little sense. A canny plaintiff can use the prejudgment remedy route to oppress the defendant and run up litigation costs, thus forcing a settlement that looks a lot like the defendant folding. The fact that the court was able to find probable cause to believe that Mike had trespassed by trimming on his side of the property line suggests that the legal theories are less than perfectly thought out.

It’s one thing to permit a prejudgment remedy where the probable cause is present and there is reason to believe the defendant will run off with his assets in order to make himself judgment-proof. But in Connecticut, you don’t have to show a defendant will cut and run, just that prejudgment, there is probable cause to believe you are likely to get a judgment.

Ann ultimately fails to lock up Mike’s assets, because her expert testimony was pretty sloppy. Nevertheless, the whole notion of a prejudgment judgment seems like an erosion of the King’s English, let alone civil procedure.

Greco v. Gallo, 2019 Conn. Super. LEXIS 2963 (Superior Ct. Conn., Nov. 21, 2019). Ann Greco owned a beach house next to a beach house belonging to Michael Gallo. A 40-year old Norway Maple tree stood on her property near the boundary between the two parcels. Ann claimed that on April 1, 2017, Mike requested permission to prune one of her trees that was overhanging his property. She said she granted limited permission, but Mike pruned well beyond what she had authorized. Ann alleged that Mike damaged the roots of the tree with an ax, and he applied some substance to the tree’s roots, thereby harming and perhaps destroying the tree.

Ann sued for compensatory damages, double or treble damages under C.G.S. § 52-560 and punitive damages. Her complaint alleged that Mike was individually liable for her losses under the following legal theories: (1) liability for violation of Connecticut’s tree statute, C.G.S. § 52-560 and (2) liability for common-law negligence.

Ann claimed that Mike performed arboriculture on the tree without a valid license and applied a foreign substance to the tree’s root structure. She further alleges that he or his agents caused the tree to die, and she was harmed through the loss of the tree, its valuable shade and the cost of tree’s removal and replacement. She also claimed Mike was negligent, in that he failed to follow her limited pruning instructions and thus breached a duty of responsible conduct and care over her tree when he performed arboriculture on the tree without a license, Ann further claimed his negligence caused the death of the tree.

Mike denied everything, and argued in addition that § 52-560 does not apply to this case because Mike never entered Ann’s property, and the remaining defendant had no role in the pruning of the tree.

Not to be outdone, Mike counterclaimed against Ann, alleging damages to his real and personal property caused by her negligence, for her failure to keep her tree from overgrowing and encroaching on his property. He alleges that for a long time before April 2017, Ann’s tree was excessively growing on his property, causing damage to his septic system and roof, and requiring demolition and rebuilding of his garage.

Not content with litigating the case to the end, Ann sought to attach some of Mike’s property even before judgment, preventing either from selling it until the case was resolved. Outside of Connecticut, prejudgment attachment normally is intended to ensure that a defendant does not render himself judgment proof before a case is tried. But in the Nutmeg State, prejudgment attachment does not require a showing that the defendant is likely to hide assets. Instead, it appears to be a civil bludgeon with which a well-heeled plaintiff can  beat a defendant into submission by making it impossible for him to do business (or even survive) for as long as a trial goes on.

Held: Ann was not entitled to truss up Mike to the tune of $30,000 pending litigation over one dead tree.

A prejudgment remedy is available upon a finding by the court that “there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff.” C.G.S. § 52-278d(a)(1). In order to grant prejudgment attachment, a court must determine whether or not there is probable cause to sustain the validity of the applicant’s claim. The plaintiff does not have to establish that she will prevail, only that there is probable cause to sustain the validity of the claim. “The court’s role in such a hearing is to determine probable success by weighing probabilities.

The Court said Ann proposed suing Mike in two counts alleging liability under C.G.S. § 52-560 and liability in common-law negligence.

C.G.S. 52-560 provides that

Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another or on public land, except on land subject to the provisions of section 52-560a, without license of the owner, and any person who aids therein, shall pay to the party injured five times the reasonable value of any tree intended for sale or use as a Christmas tree and three times the reasonable value of any other tree, timber or shrubbery; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on this land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.

Section 52-560 embodies the long standing common law that predated its passage and includes the legal concepts of trespass and damages. The elements of an action for trespass are (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; (3) done intentionally; and (4) causing direct injury.” A trespass can exist without personal entry on land of another. Anything a person does that appropriates adjoining land or substantially deprives an adjoining owner of the reasonable enjoyment of his or her property is an unlawful use of one’s property.

Section 52-560 does not give a new and independent cause of action, the Court said, but instead prescribes the measure of damages in cases where compensatory damages would, in the absence of the statute, be recoverable.” An action under § 52-560, therefore, is an action in trespass with a specifically prescribed measure of recovery of damages. As with trespass, the plaintiff cannot recover if the defendant had the “license,” or permission of, among others, the owner. Failure to prove the elements of the underlying trespass, the Court held, dooms an action under § 52-560.

Here, the Court held, Ann claims the evidence supports liability against Mike for violating C.G.S. 52-560, in that he admittedly pruned said tree, used an ax or hatchet on the roots of the tree, and placed some substance around the root region of the tree so as to harm it permanently. Although Mike’s actions all occurred from his neighboring property, Ann claims the trespass is established through his unauthorized actions on the tree from his property. Mike’s testimony supports that he did do such pruning from his property on her tree, but Ann alleges he went too far and was much too aggressive in that pruning process. And even further, the evidence showed he never asked permission to take an ax the tree roots on his property, and he never asked permission to put some foreign substances at or near the tree roots. This conduct beyond the permission given by Ann, the Court said, supported the probable cause finding on the trespass issue.

Ann also claimed, in addition to the § 52-560 count, that Mike was negligent. Such a common-law cause of action is permitted in tree damage cases, in addition to the statutory count. The essential elements of a cause of action in negligence are duty, breach of that duty, causation, and actual injury. Here, the Court said, the evidence permitted the court to find that Mike owed a duty to Ann once he asked her for permission to prune the tree, to exercise that permission reasonably and within the scope of permission she gave him.

The testimony and the photographs offered at hearing support the claim that Mike may not have been reasonable in how he conducted himself after Ann gave him limited permission to prune. Taking an ax or hatchet to the roots and placing foreign substances at the root areas, the Court held, may be a sufficient basis to find that he breached that duty and sustain the validity of Ann’’s negligence claim. Thus, there is probable cause to sustain the validity of the negligence claim against Mike.

However, before the court can grant Ann’s application for prejudgment attachment, the court had to also find that the damages she claimed are supported by the requisite probable cause.

Section 52-560 is very clear as to what is or is not the measure of damages in tree damage cases, the Court ruled. Ann could seek damages for he trespass itself, for he value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel.

For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of.

The proper measure of damages is either the market value of the tree, once it is severed from the soil, or the diminution in the market value of the… real property caused by the cutting.”

Ann overreached. She sought an attachment of $30,000 each over real and personal property of all three defendants, and was “rather unclear as to the exact basis for the alleged damages related to the Norway Maple in question. And, there is contradictory evidence provided by each alleged expert arboriculturist on this topic.”

Expert testimony from Ann’s expert and Mike’s expert set the “reasonable value” of the tree from $4,600 to $98,000. The Court noted drily that

it is unclear if these sums are replacement cost figures for said tree or if they are values of the tree as timber once cut. Neither expert offered opinions with any reasonable degree of arboriculturist probability in their written reports nor in their testimony at trial; and neither expert provided sufficient scientific methodology or reasoning for how they each arrived at the dollar amounts testified to. In fact, both witnesses had never testified in court before, and both had limited prior experience in placing a valuation on trees in question such as the case at bar. Their testimony did not provide clear evidence on the replacement cost of the tree versus the cost of the tree once cut for potential lumber, as required by the statute and case law for the measure of damages under §52-560.

The Court noted that “trial judges are afforded wide discretion to serve as gatekeepers for scientific evidence because a relevance standard of admissibility inherently involves an assessment of the validity of the proffered evidence. More specifically, if scientific evidence has no grounding in scientific fact, but instead is based on conjecture and speculation, it cannot in any meaningful way be relevant to resolving a disputed issue.”

Therefore, while the Court found probable cause for believing Mike would be liable, it could not find sufficient probable cause as to the amount of damages claimed by the Ann, so as to justify the placement of a monetary attachment on Mike’s property.

– Tom Root


Case of the Day – Wednesday, December 11, 2019


Don’t you believe it …

… or so one of my favorite poets, Bob Frost, said. The flinty old New Englander wrote a lot of good, straightforward stuff (my favorite being The Pasture), but you need to know that this particular line about fences was written as a wry observation. Frost didn’t believe it, and he intended that his readers question it, too.

Today’s neighbors are living proof of that. Lyle and Kate Batton had lived next to Dan and Kathy Bylander for 13 years, and the factual recitation in the case makes it pretty clear that they were good neighbors to each other. There was a property line between their homes. Of course. There always is. But it wasn’t very important to them.

Instead, the friendly neighbors freely used each other’s properties, even giving each other permission to plant trees on the other’s properties. In fact, they did not really know for sure where one property ended and the other began. It seems that the Bylanders and the Battons had differing ideas about who owned what, but they were good neighbors. The technicalities of ownership were not that important.

But at last, the Bylanders moved out, and the Hawks moved in. The Hawks felt the need for a fence to separate themselves from the Battons, and that’s when the neighbors ceased to be good.

As Bobby observed, “Something there is that doesn’t love a wall.” That something apparently was Lyle Batton. And who can blame him? For 13 years, Lyle and Kathy lived in unfenced harmony with Dan and Kate. At any rate, at some point after the fence was installed, tempers frayed and Lyle exchanged sharp words with new neighbor Terry Hawk. And that’s when everything changed.

The Hawks demanded every inch of the land their surveyor said was theirs. The Battons demanded damages, and wanted the court to declare that their occupation of some of the disputed land over the years made it theirs.

The lawyers profited, and the neighbors – both sets – lost.

Batton v. Hawk, 2019 Minn. App. Unpub. LEXIS 1133 (Ct.App. Minn. Dec. 9, 2019). Lyle and Katherine Batton bought land in Thief River Falls 19 years ago. At the time, they shared their southern boundary line with Daniel and Kathy Bylander and Kathy Bylander.

During the time that the Battons and Bylanders were neighbors, neither knew where the exact boundary line existed between their properties, but they did not much care – hey were friends as well as neighbors. The Bylanders planted evergreen trees on what they believed was their property on the western side of their northern boundary line, which they thought was about eight to ten feet north of the line of evergreen trees. They mowed the area like it was theirs, because they figured it was.

At the same time, the Battons planted various trees along what they believed was their southern boundary line in the eastern part of the land, up to the edge of the Thief River. A second tree line, made up of about 12 spruce trees, sat north of the Bylanders’ home on the west side of the adjoining properties and acted as a windbreaker for their house. The Battons gave the Bylanders permission to plant more trees along the line.

Then disaster struck. After 13 years, the Bylanders sold their property to Terry and Dawn Hawk. The next year, the Hawks wanted to build a fence along the northern line of their property. The Hawks talked to the Battons about the property line, and the Battons explained that they believed it was along the tree line.

Trust but verify. The Hawks hired Houston Engineering to survey the boundary line. Houston found the Battons’ understanding of the boundary line was wrong, as the boundary line went through, or was very close to, the southeast corner of the Battons’ house.

Lyle Batton and Terry Hawk then met with a Houston Engineering surveyor to discuss establishing a new boundary line. The new boundary line ran 13½ feet north of the original boundary line, increasing the size of the Hawks’ property. The surveyor labeled this “Tract A.” Tract A included the wind-breaking tree line that sat north of the Hawks’ home. On the east end of the properties, the new boundary line was 25 feet south of the original boundary line and would become the Battons’ property. The surveyor labeled this “Tract B,” which included an area south of the Battons’ home. Tract A is .021 acres, and Tract B is .326 acres. The parties agreed that Tract A would become the Hawks’ land and Tract B would become the Battons’ land. After the meeting, surveyors from Houston Engineering placed markers along the new boundary line.

So the Hawks began to build a fence near the markers placed by the surveyors. At the Battons’ request, the Hawks built the fence directly on the new boundary line, and gave the Hawks permission to enter their land to maintain the fence. According to the Battons, when Terry was finishing the eastern part of the fence, they realized that the markers placed by the surveyors were not in the correct spots and that the Hawks’ fence was “maybe a few inches up to many feet” north of what the Battons believed was the new boundary line.

The Battons also complained that the Hawks cut down four of their spruce trees on the western side of their property in order to build the fence. The Hawks countered that maintained that when the Hawks were building the fence, several trees fell down due to a heavy storm.

Following a hostile confrontation between Lyle and Terry in July 2016, the Battons sued the Hawks, asking the district court to order the parties to exchange deeds to Tract A and Tract B, to determine the practical boundary line of the property, and to rule that the Battons had adversely possessed some of the Hawks’ property, and therefore owned it. But the Battons’ complaint had a typographical error and, instead of requesting that the district court determine they had adversely possessed Tract B, they requested Tract A, which was already part of their property by deed.

The Hawks answered that the parties had discussed exchanging deeds to the tracts of land, but that they had never come to an agreement to exchange the deeds. The Hawks counterclaimed that the Battons had trespassed on their land and had damaged their property by removing the survey markers, and also that had relied on the Battons’ promise to grant them an easement.

The district court held a bench trial. At the end of the trial, the Battons amended their complaint to indicate that they adversely possessed Tract B, not Tract A, and the hey also moved to amend further to state that they adversely possessed the land that extended from Tract B to the middle of the tree line.

The district court held that the Battons failed to establish their claim for adverse possession, because they did not show that they openly and continuously possessed the rest of the land that they claim north of the tree line, failed to establish a claim for boundary by practical location, and did not show that the four removed trees belonged to the Battons.

The Battons appealed.

Held: The Battons did not get any land by adverse possession, or get a declaration that the old supposed boundaries governed.

A party can become the titleholder of land by adverse possession. To show adverse possession, plaintiffs must show, by clear and convincing evidence, that their possession was actual, open, continuous, exclusive, and hostile for 15 years. Evidence presented in support of adverse possession must be strictly construed, with every presumption or inference to be taken against the party claiming adverse possession.

The district court found that the Battons had not established open, hostile, and continuous use of all of the land. Such use must give “unequivocal notice to the true owner that someone is in possession in hostility to his title.” There is sufficient evidence when “visible and notorious acts of ownership have been continuously exercised over the land for the time limited by the statute.”

The Battons and the Hawks had different understandings of where the boundary line fell. The Battons treated the tree line as the boundary, while the Hawks (and the Bylanders before them) treated the boundary line as 8-10 feet north of the tree line. Before the Hawks moved in, the Bylanders mowed up to that line and, when the Hawks moved in, the Bylanders instructed them to continue to mow up to that line. While the Battons and the Hawks testified that they used the land for other purposes, there is no dispute that the Bylanders and the Hawks mowed part of the disputed land. “For that reason alone,” the Court ruled, “we cannot conclude that the Battons gave the Hawks unequivocal notice of their hostile possession of all of the disputed land.”

The Battons also testified that they used the disputed land for fishing, playing Frisbee and soccer with their kids, planting a garden and trees, and placing birdhouses and bird feeders. They said that they treated the disputed land as their own because they planted a garden, except that neither of them could not remember how long it was there. Lyle testified that he placed birdhouses and bird feeders on the disputed land, but all had been removed several years before the trial. Because the evidence supporting adverse possession must be strictly construed, the Court said, “the district court’s finding that the Battons’ use of the land was simply occasional is not clearly erroneous.”

The Battons also argued that they had proven a boundary line by practical location. A boundary by practical location may be established in one of three ways: (1) by acquiescing in the boundary for a sufficient period of time to bar a right of entry under the statute of limitations; (2) by expressly agreeing with the other party on the boundary and then by acquiescing to that agreement; or (3) by estoppel.

The Battons argued that they established a boundary by practical location by acquiescence. If a party acquiesces in a boundary for a sufficient length of time to bar a right of entry under the statute of limitations (15 years in Minnesota), a court may establish the boundary by practical location.

The district court did not expressly address whether they had established a boundary by acquiescence. But the judge did note that there must be acquiescence to a boundary line for the statutorily required 15 years in order to be established as a boundary by practical location. Because the Hawks had not lived in the home long enough to meet the 15-year requirement, the Court looked to their predecessors, the Bylanders.

But the Battons and Bylanders treated the boundary line differently. While the Bylanders believed the boundary was eight to ten feet north of the tree line, the Battons believed the boundary was along the tree line. The disputed 8-10 feet showed that the parties did not acquiesce to a boundary line. Instead, they apparently agreed to disagree, but maintained the peace despite their disagreement.

Thus, the Court said, the Battons failed to establish a boundary by acquiescence.

Finally, the Court observed that the district court had concluded that it could not determine if the four trees were on the Battons’ land. Based on this inability, the district court did not award them treble damages for trespassing and felling under Minn. Stat. § 561.04. Lyle testified that the Hawks cut down four trees that were on the Battons’ land in order to erect their fence. The Hawks, on the other hand, said that during the summer of 2015, a storm downed some trees and the Hawks removed them from the property. Terry denied cutting down any trees north of the fence line.

Because the district court sits in the best position to weigh the credibility of witnesses, the Court of Appeals ruled, “we are not left with the firm conviction that, based on the conflicting testimony, the district court made a clear error.”

– Tom Root


Case of the Day – Tuesday, December 10, 2019


Originally a phrase used in the computer programming world, “garbage in, garbage out” was just too useful an aphorism to stay in Silicon Valley.

Today’s case provides a good illustration as to why. One sanitation worker was backing up a garbage truck while the other was holding onto a platform on the back. The truck veered too close to a tree growing along the boulevard, and the strap-hanger bashed his hand between the truck and the tree trunk.

If you have not studied the law (having instead favored useful pursuits), you might think that the garbageman had only himself to blame for not moving his hand as the tree trunk approached. Or maybe blame the driver, who should have kept the truck farther from the tree. That’s much too logical.

There are two problems with your thinking. First, the sanitation worker couldn’t very well sue himself. There was no money there. Likewise, he could not collect much from his co-worker driver, who, if he had money, would not be driving a garbage truck. The employer, who owned the truck, was immune from liability to the spelling-challenged sanitation werker Kert except for whatever worker’s comp would pay. Which clearly wasn’t enough to satisfy Kert.

So what to do? The answer is obvious. You sue the homeowner’s association that owned the private road on which the accident happened, arguing that if it had not planted the tree where it did, the accident could have been avoided.

This is how, if you’re a plaintiff’s lawyer, you follow the money. There’s just one problem: how do you convince a jury to overlook the fool who didn’t pay attention, or the driver who couldn’t back straight, in favor of the association that owned the tree?

The three essential elements of negligence are (1) the negligent party must owe a duty to the injured party; (2) the negligent party must have breached its duty; and (3) as a direct result of that breach, the injured party must have been actually damaged.

Before negligence can be determined, the extent of the defendant’s duty to the injured has to be defined. That was the issue in this case.

Alleging that the defendant breached a duty to sanitation werker Kert for letting a tree grow was “garbage in.” Unsurprisingly, Kert got “garbage out.” You’d think he would have known that’s how garbage works.

Seymour v. Lakewood Hills Association, 927 S.W.2d 405 (Court of Appeals of Missouri, Eastern District, Third Division, 1996). Kert Seymour (whose spelling skills obviously landed him in his chosen occupation) was a sanitation worker. Kert was riding on the back of a garbage truck when his co-worker, who was backing the truck down a private residential street, hit a tree standing in the boulevard. Kert’s hand was crushed between the truck and tree.

The road was owned and maintained by Lakewood Hills Association, so naturally Kert sued the Association for planting the tree where his co-worker could hit it. After all, while its connection to the accident seemed tenuous, the Association did have something no other likely defendant had: money.

The trial court said Kert’s position was garbage, and granted summary judgment for the Association. Kert appealed.

Held: The Court of Appeals held the Association owed Kert nothing.

Under Missouri law, if a condition on the property is so open and obvious that an invitee should reasonably be expected to discover it and realize the danger, the landowner does not breach its standard of care unless it should anticipate the potential harm despite such knowledge or obviousness. The failure to protect an invitee like Kert against conditions that are open and obvious as a matter of law does not fall below the applicable standard of care.

Lakewood Hills argued the tree in the center of the road was so open and obvious that a person should reasonably be expected to see it and recognize the danger posed. Both Kert and his co-worker admitted that they knew the tree was there. Kert stated that he had seen it many times when collecting trash. The tree being clearly visible from the end of the street, common sense dictates that a reasonable person would have appreciated the harm likely to occur should a vehicle strike the tree.

The Court held that “as a matter of law, that the dangerous condition presented by the tree was open and obvious.” In other words, Kert, if you remain vigilant while the truck is moving, you might Seymour.  

The Court consigned Kert’s lawsuit to the dustbin of litigation. Which Kert probably emptied. One handed.

– Tom Root


Case of the Day – Monday, December 9, 2019


Go, Roughriders!

Go, Roughriders!

There seems to be so much to do in the Christmas season that I can never catch up, and rarely can get one task completed for all of the other tasks awaiting my attention. My bride of 40 years and I bought our Christmas tree two weeks ago. It took us five days to even get it inside and up. It took another five days to get the lights on. The poor tree still awaits decorations.

I note this as an excuse. A week ago, I addressed the first half of the question asked by alert sixth-graders at Western Reserve Elementary School (home of the Roughriders). It’s taken me until today to continue that thread: Today, we look at another decision from the days of yore to gain a better understanding of the issue they raised: if your apple tree drops its apples in the neighbors’ yard, do you have the right to go on to their land to pick them up?

Remember these guys? They apparently had 19th century doppelgangers.

Remember these guys? They apparently had 19th century doppelgangers.

Neil Sedaka warned us about this kind of thing, although about 120 years too late for Newkirk and Sabler, the two actors in this little drama. It’s pretty clear from reading between the lines of this antebellum case that these neighbors loathed each other. Sabler told Newkirk to stay off his land, so Newkirk of course couldn’t resist having his guy cut across Sabler’s back 40 with a team of horses. Not to be outdone — sort of like a 19th century version of “Spy vs. Spy” — Sabler rebuilt the fence Newkirk’s man had taken down, but he nailed it in place. The hired hand couldn’t get the horses and wagon out of the field, so he left them on Sabler’s land and retrieved his boss. The boss returned and started tearing down the fence when Sadler arrived. Words flew, tempers flared, and fisticuffs ensued.

After Newkirk apparently won the fight and got his horses back, he sued Sadler for assault, intending to add insult to injury. But the court threw the last punch, holding that Newkirk had no right to enter onto Sadler’s land to get property he wrongfully put there to begin with, and Sadler had every right to bean Newkirk with a club (which he had done) to keep him off.

Relevant to the question we considered yesterday, the court differentiated between this case and other situations — including an apple tree owner’s apples falling on a neighbor’s land. When a fruit tree drops its bounty on the neighbor’s land, the tree’s owner cannot prevent it. The owner continues to own the fruit, the court observed, and he or she may enter the neighbor’s land without being deemed a trespasser to collect the fallen fruit.

Unfortunately, this much of the opinion is obiter dictum, unnecessary to the decision, and thus is of limited value as precedent. Nevertheless, kids, it’s the best we have. Sometimes the answers just aren’t all that clear.

horsewagon140218Newkirk v. Sabler, 9 Barb. 652 (Sup.Ct. N.Y. 1850). Newkirk had sent his servant with a team and wagon across the farm of the defendant — upon which he entered by taking down the bars — to a neighbor’s house, despite the fact that Sabler had forbidden Newkirk from crossing his lands. On his return of the team to the place where it had entered, the servant found the fence bars had been refastened by boards nailed over them. The servant couldn’t break through, so he left the team and wagon on the Sabler’s property, and returned to Newkirk’s to tell him what had happened.

Newkirk went with his servant to the fencerow, and started tearing down the fence to get his team and wagon out. Sabler arrived on the scene and forbade Newkirk from taking down the fence, and when Newkirk continued, a fight ensued between the parties. At one point, Sabler beat on Newkirk with a pole. Nevertheless, Newkirk finally got the fence down removed his team, and then — to add insult to injury — sued landowner Sabler for assault.

At trial, the judge instructed the jury that although Newkirk’s team and wagon were wrongfully on Sabler’s land, it was Newkirk’s duty and right to get them off with the least possible injury to the premises, and that Sabler was not justified in using violence to prevent him from removing his team from the premises. The jury found for Newkirk.

Sabler appealed.

Held: Newkirk had no right to enter onto Sabler’s land to reclaim his horses, and Sabler had a right to defend his possession against Newkirk’s tearing down the fence, and to use as much force as was necessary to prevent Newkirk from entering the property. The court held that an owner of personal property that is being detained on the land of another — if he cannot obtain peaceable possession of it — may only bring suit in court to regain his property. Of interest, however, is the recognition in this early decision of a number of circumstances where the owner of a chattel — that is, personal property — may enter on the land of another without being found to be a trespasser.

appletree140217 A landlord’s right to inspect the premises to ensure the tenant is not engaged in waste is one example. Others include a sale of land with a reservation of the timber rights, or if one enters the land of another to prevent the landowner’s livestock from dying, or because the public highway is blocked and he must get around the blockage. And the court held “If my tree be blown down and fall on the land of my neighbor, I may go on and take it away. And the same rule prevails where fruit falls on the land of another. But if the owner of a tree cut the loppings so that they fall on another’s land, he cannot be excused for entering to take them away, on the ground of necessity, because he might have prevented it.”

In this case, the court held, Newkirk’s horses and wagon were on Sabler’s lands where they had been left by Newkirk’s servant. They were not there with Sabler’s permission. Instead, Newkirk had been guilty of a trespass in sending his team across Sabler’s lands after he had been forbidden to do so. And Sabler had the right to detain them before they left the premises, and it was not necessary to decide, whether the defendant detained the property rightfully or wrongfully. If Newkirk could not regain the possession of his property peaceably, his only choice was to sue.

– Tom Root


Case of the Day – Friday, December 6, 2019


If the extent of your formal law schooling was gleaned from prime time television, then you already know that all lawsuits end up in trial, every trial is a cliffhanger, someone usually falls apart on the witness under withering cross-examination, and the winners usually go to a nice place for dinner afterwards.

Congratulations. You are a lawyer.

Real life, unsurprisingly, seldom imitates art. And there is hardly ever a good meal at a white-tablecloth beanery after the win.

In reality, about 97% of civil cases never make it to trial. One party of the other files motions to dismiss for various reasons, or seek summary judgment, or simply get out their wallets and settle. In fact, motions and summary judgment practice and settlement go hand in hand. It is usually a court’s action on a dismissal motion or summary judgment motion that throws cold water on one or both parties, causing them to remember that old-but-true legal maxim that “a bad settlement is better than a good lawsuit.”

A motion to dismiss is filed in a case where the defendant argues essentially that even if everything the plaintiff says in the complaint is true, he or she cannot win because of lack of jurisdiction, filing past the statute of limitation, the statute does not confer on a plaintiff the right of a private cause of action… there are a bunch of great arguments for dismissal.

Summary judgment is a little more complex. It is usually filed after most of the pretrial discovery is complete. Summary judgment depends on one side or the other showing that the evidence shows there is no genuine issue of fact to be decided, only application of the law to the unrebutted facts. For example, I t-bone you in an intersection. You have affidavits from five witnesses that I ran a red light. Your lawyer takes my deposition, and I complain that I don’t know whether the light was red or not, because I was watching a TikTok video on my phone, and you should have been watching for distracted drivers like me.

In that case, who needs a trial? I can’t prove I didn’t ran a red light, because while you have witnesses who say I did, I have no witnesses (including me) who can say I did not.

When a party moves for summary judgment, losing does not mean the party cannot prove its case. It just means that there is a question of fact – whether the jury believes your busload of nuns who say I ran a stoplight or whether it believes the guy who had just staggered out of a bar and says I did not.

Summary judgment is a great shortcut for those cases where a party cannot prove its case or defend itself (depending on whether the party moving for summary judgment is the plaintiff or defendant). It saves a lot of court resources and legal fees. But as today’s case demonstrates, summary judgment is not for everyone. Where there is disputed evidence, even if the dispute is lopsided, a trial must result.

Johnson St. Properties, LLC v. Clure, 302 Ga. 51, 805 S.E.2d 60 (Supreme Ct. Ga., 2017). Cynthia Clure was a tenant of an apartment complex owned by Johnson Street Properties. JSP was owned and managed by Dan and Elaine Cartwright, and their two sons, Chris and James.

In early 2013, a limb fell onto JSP’s property from a tree located on a neighboring lot. Other tree limbs had fallen onto the property during storms in the past, including some from the adjacent property, and the Cartwrights took action to remove those branches when such instances occurred. This time, a limb fell during a storm and became suspended between the gutter of one of JSP’s apartment buildings and some brush. Everyone agreed the suspended limb was an open and obvious condition, yet the length of time the limb remained suspended is unclear, ranging anywhere from a few days to a few months, according to who is telling the story. Cindy and her neighbors knew the limb was stuck on the gutter, and Cindy had even warned other tenants to stay away from the limb because it was dangerous and could fall. Cindy said she left voicemails with the Cartwrights, notifying them of the suspended limb, but the they denied ever receiving any such voicemails.

On the day of the accident, Cindy discussed the limb with Steve Wilburn, a fellow tenant who sometimes worked as a JSP maintenance man. Steve and Cindy walked over to the area of the hazard, at which time he threw a rope over the limb. Cindy testified that she heard the gutter tear and told Wilburn to stop so she could warn the tenant inside the apartment about the loud noise. As she walked out of the apartment, Cindy told Steve, “Hold on. If you’re going to do anything, just wait.” But he did not, pulling on the rope. The limb swung down from its perch and struck Cindy.

Cindy sued JSP, arguing the company failed to maintain a safe premises for its invitees. JSP moved for summary judgment, alleging that no genuine issue of material fact existed regarding its negligence.

The trial court denied JSP’s summary judgment motion, finding that genuine issues of material fact existed regarding its negligence.

Both parties appealed.

Held: Issues of fact existed requiring JSP to face a trial on negligence.

JSP argued that it had no knowledge of the dangling tree branch, that Steve – the guy who removed the limb – was not its agent or employee acting within the course and scope of his employment at the time of the incident; and because Cindy had superior knowledge of the hazard, she failed to exercise ordinary care for her own safety and assumed the risk by getting too close to a known hazard.

First, JSP contends that it had no knowledge of the hazard prior to the incident at issue. But, the Court said, Georgia law places an owner/occupier on constructive notice of what a reasonable inspection conducted in the exercise of ordinary care would have revealed, provided that “one is not chargeable with negligence in failing to discover and remedy a danger in the property which he could not have discovered by the exercise of ordinary care, or which has not existed for a sufficient time to charge him with the duty of discovering it.”

Construing the evidence in favor of Cindy, as it was obliged to on judging a motion for summary judgment, the Court found there was a genuine issue of material fact as to whether Steve acted as JSP’s agent when removing the limb. If he did, any knowledge about the hazard posed by the limb and its removal Steve possessed could be imputed to JSP. What’s more, the Court said, there was a question of fact as to whether JSP knew about the limb even aside from Steve’s knowledge, because Cindy testified she left a message with JSP about it. While there was evidence that the owners conducted inspections of the property after major storms, there was a dispute as to whether a reasonable inspection was conducted between the time the limb in question became suspended (which may have occurred after a major storm) and Cindy’s injuries; and whether a sufficient amount of time had passed for JSP to discover the hazard prior to Cindy’s injuries. “Indeed,” the Court said, “the record is filled with contradictory sworn testimony from the parties and lay witnesses concerning these matters, raising credibility issues which cannot be resolved on summary judgment.”

JSP also argued the trial court erred in denying summary judgment because Steve was not its employee acting within the course and scope of his employment at the time he decided to remove the tree limb from the gutter. For that reason, JSP contended, Steve’s actions could not be imputed to JSP under the doctrine of respondeat superior.

But the Court said, questions of the existence and extent of an agent’s authority are generally for the triers of fact. Here, a question of fact remained as to whether Steve was an employee working within the course and scope of his employment at the time of the incident. It is undisputed that he had an on-again-off-again working relationship with JSP as the maintenance man for the property at issue. In fact, Jim Cartwright admitted that during 2013, JSP would have Steve perform tasks around the property “as needed.” Plus, there was some evidence that Steve held himself out as the apartment complex’s maintenance man to other tenants as late as March 2013. During that same time period, Elaine Cartwright instructed at least one tenant that she could “go to Cynthia or Steve” if she had any issues with her apartment.

As to whether Steve was working within the course and scope of his employment, he testified that he would perform odd jobs around the property and would not always ask permission from the owners prior to beginning a maintenance task if he determined that task to be within his job description. Additionally, Cindy testified that she witnessed Wilburn removing tree limbs from the parking lot prior to this incident. While there was some evidence to the contrary, “such contradictions simply underline the existence of genuine issues of material fact that are for a jury to decide, “ the Court said.

Finally, JSP argued that Cindy’s knowledge of the hazard created by the suspended tree limb was equal to or greater than that of JSP’s, and that such knowledge precluded her from recovering on her negligence claims. Cindy was clearly aware of the tree limb and testified that she understood the dangers it posed by it being suspended in the air. “But it is a plaintiff’s knowledge of the specific hazard which precipitates [he injury which is determinative,” the Court said, “not merely her knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which she observes and avoids.” In other words, Cindy was not injured by the chance falling of the suspended tree limb — a possibility of which she was aware; instead, she was injured when the limb swung off the gutter while Wilburn was attempting to remove it. Steve had superior knowledge of his own plans and actions with respect to removing the limb and the danger posed by such removal, a knowledge that would be imputed to JSP if Steve was its agent. Thus, the Court held, although the record shows Cindy had some knowledge of the general hazard, “we cannot conclude as a matter of law that her knowledge of the “specific hazard” was equal to or greater than JSP’s; consequently, a jury question remains as to this issue.”

JSP said Cindy was contributorily negligent. The Court thought that it could be so, but “taking into account all the circumstances existing at the time and place of Clure’s injuries, and construing the evidence in favor of Clure, we cannot say that the evidence of Clure’s alleged contributory negligence is plain, palpable and undisputed.” Cindy’s proximity to Steve and the tree limb at the time he was attempting to remove the hazard was unclear from competing evidence.. Cindy said she was walking away from the hazard at the time it fell. Steve wasn’t sure that Cindy had enough time to see it fall, raising a question as to whether she could have avoided the falling limb in the first place.

Finally, JSP argued that Cindy assumed the risks associated with the limb removal by entering “the danger zone” as Steve was removing the limb. Assumption of the risk bars a plaintiff’s recovery when a defendant establishes that a plaintiff, “without coercion of circumstances,” chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.’ In order to successfully assert this affirmative defense, the defendant “must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed herself to those risks.” Put simply, the Court said, “assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.”

Because there are disputes in the evidence as to what occurred immediately preceding the limb’s fall — namely, Steve’s actions, Cindy’s location at the time in question and whether she could have seen the limb fall from the gutter — the Court ruled that summary judgment was not appropriate as to whether Cindy assumed the risk.

– Tom Root