Case of the Day – Thursday, June 20, 2019

YEAH, WELL, THEY WERE UGLY TREES…

When the contractor building an interstate highway interchange needed some space to park bulldozers, the state highway department asked Mr. Baillon for an easement.  Being justly proud of his scrubby little trees and stunted bushes, he refused.

A couple of volunteer oak trees and some forsythia bushes are no match for a Caterpillar D10, so the contractor, Carl Bolander & Sons Co., went ahead and used Mr. Baillon’s land anyway.  But it turns out a Caterpillar D10 is no match for a Minnesota trial court.  Mr. Baillon sued and won.

But he won what?  The trial court judged his damages by the diminution in value of his land.  That is, how much less is the scrawny strip of real estate worth with the scrub trees gone?  Not much, the Court said, giving Mr. Baillon just $500.00.

Mr. Baillon appealed.  He argued he had wanted the trees and bushes as a sound barrier between himself and the road.  Also, he should have gotten treble damages because of the intentional trespass.

The appeals court sort of agreed.  It held that the measure of damages for the loss of trees — because they weren’t particularly desirable as shade trees or ornamental trees — was reduction value of the real estate.  Clearly, however, treble damages should be assessed under Minnesota Statute 561.04, Minnesota’s wrongful cutting statute, because the trespass was anything but casual.

This type of damage calculation, well known to contract law students who read Peevyhouse v. Garland Coal Co., is intended to avoid economic waste.  The thinking is that the courts won’t order restoration of the property if the cost exceeds the reduction in value by the conduct.  But at what price to freedom?  Mr. Baillon didn’t want to sell his property, he wanted his trees, pathetic though they might be.  The fact that the marketplace might not share his desires shouldn’t matter all that much: it was his land, and he should be able — within broad parameters — to keep it as he likes.  Letting the bulldozer operator off the hook for the intentional trespass by not requiring that the land be restored to what it looked like before the trespass, even if that cost ten times the difference in real property value, seems to us to accord Mr. Baillon’s rights the respect they deserve.

Baillon v. Carl Bolander & Sons Co., 306 Minn. 155, 235 N.W.2d 613 (Sup.Ct. Minn. 1975).  The Highway Department tried to get Baillon to grant a temporary construction permit giving the state an easement to go on his property adjacent where Bolander was constructing I-35.  Although Baillon wouldn’t grant the easement, Bollander’s workers trespassed on the land and destroyed a number of trees and shrubs. Baillon wanted the particular trees, in order to preserve a natural and wild appearance, to abate noise from the highway, and to preserve the beauty of the premises.  The trial court found that Baillon was damaged by the Bolander company’s intentional acts in the sum of $500. 

Arguing that the trial court should have applied as a measure of damages the replacement cost of the trees and not, as the trial court held, the diminution in value of the real estate, and that he was entitled to treble damages, Baillon appealed.

Held: The award of damages was upheld in part.  The Supreme Court held that the proper measure of damages for the destruction of trees which, for the most part, were quite small, ill-formed and not particularly desirable as shade trees or ornamental trees, but which served to prevent erosion and acted as sound barrier, was the diminution in value of the real estate rather than the replacement cost of trees (even though the trespass was willful).

However, treble damages should be awarded. The Court held that where the highway contractor — in the course of building the freeway — intentionally cut the trees, which did not protrude over highway. The trespass was not necessary for contractor’s purposes and was not “casual.”  It was clearly the duty of the trial court to order treble damages unless Bolander’s activities came within one of the exceptions specified in the statute, and those activities clearly did not.

– Tom Root

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Case of the Day – Wednesday, June 19, 2019

A TREE JUMPED OUT

Watch out for the tree, Mr. Miller ...

Watch out for the tree, Mr. Miller …


It was a dark and stormy night when Mr. and Mrs. Miller drove through a mall parking lot, well after the lights were turned out. Mr. Miller missed a sharp turn in the drive, and hit an 8″ wide tree. He and his wife were injured, and while it went unreported, the tree probably didn’t fare that well, either.

Trees seldom sue, but the same can’t be said for the Millers. They went after the mall for negligence. To be sure, the tree showed evidence of having been hit before. The mall, however, argued that Mr. Miller was an idiot for driving too fast on a strange, unlit roadway in bad weather. It said he was contributorily negligent in the accident.

Back when this case was decided, we were driving a pretty sharp four-on-the-floor ’67 Cougar and filling its tank for 25.9¢ a gallon. Ah, those were the days… unless you were a litigant suing for negligence. At the time, contributory negligence was still the law of the land in most states. It was a Draconian doctrine: if the victim was negligent even a teeny bit, then he or she couldn’t recover a dime from the defendant, no matter how bad the defendant’s negligence by comparison. Since that time, contributor negligence has been replaced by “comparative negligence” most places. Comparative negligence is a percentage game: the jury finds that the defendant was, say, 70% negligent and the plaintiff was 30% negligent. The jury award of, say, $100,000 to the plaintiff would then be reduced by 30%, netting out 70 grand for our afflicted party.

Because contributory negligence was so harsh, courts often worked to find a way around its effect. In today’s case, the Court ruled that although Mr. Miller might have been contributorily negligent, that couldn’t keep the passenger, Mrs. Miller, from winning damages from the mall. The mall argued that Mr. Miller should share its liability to Mrs. Miller, but the state had an automobile guest statute that immunized a driver from liability to his or her passengers for simple negligence.

We miss that old Cougar ... and 25¢ a gallon gas ...

We miss our old Cougar … and 25.9¢ a gallon gas …

The mall should have marked the tree with reflectors or something, the Court said. Something to reflect on… like our old Cougar. Now that was a cherry ride.

Miller v. Baken Park, Inc., 84 S.D. 624, 175 N.W.2d 605 (Sup.Ct.S.D. 1970). Donald Miller’s pickup truck collided with a tree located in the Baken Park Shopping Center auxiliary parking lot. The Millers were injured.

Mr. Miller had entered the Shopping Center from West Main Street intending to drive across the lot to reach Canyon Lake Drive, the street on the south side of the Center. They had never travelled over this area before but had seen others do so. It was a misty, gloomy night with wind and gusty rain. Suddenly, a tree loomed in front of them. A collision ensued.

Miller and his wife sued Baken Park, and Baken Park counterclaimed against Miller for negligence. The evidence showed a driver would have had to swerve to miss the tree, and the conditions that night made it hard to see after the shopping center lights were turned off at 10 p.m. The tree, which had an 8” trunk, bore scars from prior vehicle collisions. The trial court considered the question of Baken Park’s negligence, contributory negligence by Miller and other issues it deemed appropriate. The jury found for defendant and plaintiffs appealed.

George of the Jungle could have advised Mr. Miller – watch out for that tree!

Held: The trial court was reversed. The Supreme Court held that the evidence was sufficient to authorize finding that Baken Park was negligent in allowing a tree without reflectors or other warning devices to remain in an area that not only served as a parking lot for customers of its lessees, but in the area used by them as a driveway. The Court said that a shopping center owner that maintained control of its parking lots and driveway for express purpose of serving customers of its lessees owed the business invitees of its lessees a duty to keep the premises in a reasonably safe condition. What’s more, the fact that Miller may have been negligent in driving through the dark lot was not imputable to his wife in the absence of some control or authority over operation of the car by her. His negligence thus would not prevent her from recovering against the shopping center for injuries sustained because of the concurring negligence of her husband and a third person.

The shopping center’s counterclaim against Mr. Miller had been dismissed by the trial court. The Supreme Court agreed that dismissal was proper under South Dakota’s guest statute, which immunizes a driver from liability to a passenger unless he was acting with recklessness or willful conduct. The Court held that the statute applied even to accidents on private property, and thus, Baken Park’s counterclaim against Miller had to be dismissed.

– Tom Root

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Case of the Day – Tuesday, June 18, 2019

WORKING BACKWARDS

When I was a young, bright-eyed and newly-licensed lawyer, my head full of three years of law school pap topped with a dollop of bar review study, I was befriended by a gnarled old litigator. He dictated his pleadings into one of the old belt-fed Dictaphones late at night, microphone in one hand and a bottle of Fairfax County bourbon in the other. But he sure knew how to litigate.

The second wisest thing he ever told me (the wisest being to drink Fairfax County, which, alas, is available no more) was that a good trial preparation began with writing the jury instructions and working backwards. Writing the instructions informed the trial attorney what the jury was going to be told it had to find in order for his client to prevail. Preparation then moved backwards, the next step being an outline of his closing argument. Only then, knowing what evidence he would need to have in the record in order to win, did the canny trial attorney assemble the evidence he had and determine what evidence he still needed to find.

It was good advice and great bourbon. Which brings me to Indiana, where they drink whatever Hoosiers drink, and they don’t always start at the end like they should.

For the readers’ sake, I’ll start at the beginning. Six years ago, in White County, Indiana (about half way between Chicago and Indianapolis), an Amtrak passenger train on CSX tracks collided with a farm tractor pulling a tank of anhydrous ammonia. Although the tank did not burst, some hoses full of the nasty stuff whipped around, broke the engineer’s window on the locomotive, and sprayed his hand with a small amount of the chemical.

The engineer, Bill Rucker, sued anyone he could find for his injuries, including the driver of the tractor, RDS Farms (which owned the tractor), CSX Transportation and Amtrak. RDS Farms and the driver argued, among a myriad of other claims, that CSX was to blame for the accident, because it violated a state law the required it to keep trees and vegetation trimmed around crossings so that vehicle drivers could see oncoming trains.

Before an actual trial, the issues usually get cut down to size, chiefly through the use of summary judgment. Summary judgment on an issue is granted where there is no genuine issue of fact, and that one party is entitled to judgment as a matter of law.

The tractor driver said he usually stopped unless he could see no train was coming, and he does not know why he did not stop on that fateful day. He said the crossing was a difficult one because trees were “right next to the tracks” and because of the angle at which the tracks intersected the road, it was difficult to see a train approaching from the southeast.”

From this testimony, Bill the Engineer argued that CSX breached its duty to keep the railroad right-of-way clear of obstructions.

Indiana law at the time (but repealed a few years later) required that a railroad ensure that a motorist has an unobstructed view for 1,500 feet in both directions along the railroad right-of-way “subject only to terrain elevations or depressions, track curvature, or permanent improvements.” The law obligated railroads to remove all foliage and obstructions on the right of way which might impair a motorist’s view of an oncoming train. The duty, however, extended only to the railroad’s right-of-way.

Our old-time litigator, would have written a jury instruction on the issue of whether CSX Transportation had violated the statute, and thus breached a duty, and he would have noted that his evidence had better include not just proof of the obstructive foliage, but also proof that it was on CSX’s right-of-way. Sadly for Bill the Engineer, his lawyer was not the old-timer. The court found that he had omitted a crucial piece of evidence, that the trees not trimmed were on CSX land.

Bill made the best argument he could make, that CSX had not provided testimony from one of its employees regarding the property boundary lines or right of way. Bill, however, had made the claim that no one could see the oncoming train, and it was thus he was the party with the duty to prove that the trees belonged to CSX.

With no evidence the trees were on CSX property, there was no proof of a duty to trim, or breach of that duty. Bill’s obstruction claim failed.

Our old friend would be swigging his whiskey and ranting into his Dictaphone: how could counsel have missed such an easy proof?”

Rucker v. RDS Farms, Inc., Case No. 2:15-CV-272-TLS (U.S. District Ct., N. D. Indiana, August 28, 2017) 2017 U.S. Dist. LEXIS 138363, 2017 WL 3720200: On the morning of June 12, 2013, Dave Allen drove an RDS Farms tractor across a CSX railroad crossing, pulling a disc harrow for tilling soil and an anhydrous ammonia nurse tank. At the same time, an Amtrak train being operated by Bill Rucker was approaching the crossing, Dave did not see or hear the train, and drove the tractor onto the crossing.

The lead locomotive struck the disc harrow at about 47 miles per hour, and the impact separated the anhydrous ammonia tank. The momentum of the locomotive carried it through the impact without causing an abrupt stop. The anhydrous ammonia tank was not ruptured, but the hoses were filled with ammonia at the time of impact, and one of the applicator hoses broke the engineer-side window of the locomotive. Engineer Bill inhaled the anhydrous ammonia and it splattered on his right arm, shoulder, and head.

Dave said the crossing, at which the tracks cross the road from the southeast at an acute angle, is one at which it is difficult for a motorist to see because of trees that are “right next to the tracks.”

At the time, Indiana Code § 8-6-7.6-1 provided that “each railroad in the State of Indiana shall maintain each public crossing under its control in such a manner that the operator of any licensed motor vehicle has an unobstructed view for fifteen hundred (1,500) feet in both directions along the railroad right-of-way subject only to terrain elevations or depressions, track curvature, or permanent improvements.” The law only required railroads to remove obstructions on the right-of-way, and not “obstructions of view which are located off the railroad right-of-way.”

Bill leveled the claim against CSX that it was liable because it had breached its duty under Indiana law to trim trees and vegetation to maintain unobstructed views. Bill relied on Dave’s testimony that the trees were right next to the tracks, but he offered no other evidence that the trees were located within the right-of-way.

CSX Transportation moved for summary judgment, arguing that Bill has not met his burden to present admissible evidence from which a jury could find that the unidentified stand of trees in the southeast quadrant of the crossing were growing on its right of way. CSX Transportation argued it has met its summary judgment burden by showing an absence of evidence to support Bill’s claim. Bill claimed he had shown a genuine issue of fact existed as to the location of the trees.

Held: CSX was granted summary judgment, and the tree obstruction claim was thrown out. The District Court said that once CSX pointed out that none of the evidence supported Bill’s claim that CSX was responsible for the trees, it was incumbent on Bill to dispute those assertions by “citing to particular parts of materials in the record” to establish the existence of a genuine, material, triable issue.

Bill criticized CSX for not providing testimony from one of its employees regarding the location of the right of way, but the Court pointed out that a defendant moving for summary judgment need not produce evidence of its own. Instead, “when a plaintiff fails to produce evidence, the defendant is entitled to judgment.”

There is no doubt, the Court said, that “one of the basic elements of negligence is a breach of duty” and that Bill “would bear the burden of proof on this point at trial.” Without a duty, there can be no breach, and no recovery for the plaintiff in negligence.

Bill argued he had Dave Allen’s testimony that the trees were “right next to the tracks.” But, as the Court pointed out, Dave Allen has no personal knowledge of the property boundary lines or right of ways, nor did he further define the distance he correlated with “next to” or otherwise provide a more precise location. “Even without the precise definition,” the Court said, “the trees that Allen was referencing is probably not a mystery to the parties—they were in the southeast quadrant of the crossing in some proximity to the tracks. But that did not alleviate the need to determine who owned or controlled the property on which those trees were growing.”

Summary judgment is the moment in litigation where the non-moving party is required to show the court evidence on which a reasonable jury could rely to find in his favor. Despite CSX’s claim that the trees at issue were not on its right of way, Bill did not provide any evidence to identify the trees that he alleges created an obstruction, or to prove that they were on CSX’s right of way. “Without any credible proof upon which a jury could rely to conclude that CSX had a duty, breached that duty, and the breach caused the accident,” the Court said, “CSX Transportation is entitled to judgment as a matter of law.”

– Tom Root

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And Now The News …

Washington, D.C., The Hill, June 14, 2019: Like bourbon? Restore white oak trees

June 14th marks National Bourbon Day, and I hope Americans across the country raise a glass to this classic American tradition. But what about the National Bourbon Days 20 to 30 years from now? I hope this celebration continues year after year, but that may depend on Congress’ support of an unlikely issue: the restoration of white oak trees. You might be wondering, ‘what does white oak have to do with bourbon?’: All bourbon must, by federal law, be aged in new, charred oak barrels. Wood from American white oak trees is the preferred and traditional material used for this process. In fact, almost all of the color and more than half of the flavor of a Kentucky bourbon or Tennessee whiskey comes from white oak. The bourbon industry is not the only industry that relies on white oak trees. In addition, white oak goes into flooring, cabinets, furniture and more. White oak forests also provide important wildlife habitat for wild turkey, deer, grouse and many other species. But due to the popularity of bourbon, combined with ecological challenges and more, the demand for white oak logs is outpacing the regeneration of new young white oak trees for the future…

Aspen, Colorado, Aspen Times, June 17, 2019: Trail crew clears scores of burned trees on two popular trails on Basalt Mountain

A U.S. Forest Service trail crew cleared scores of burned tree trunks off two popular trails on Basalt Mountain earlier this month — opening areas in the heart of the Lake Christine Fire last summer. The Mill Creek and Ditch trails are open to hikers, mountain bikers and equestrians. The entire 1.6-mile Mill Creek Trail was within the fire perimeter, said Katy Nelson, wilderness and trails program manager for the Aspen-Snowmass Ranger District. The five-person trail crew was able to use chainsaws on the downed timber because Basalt Mountain isn’t in designated wilderness, where mechanized uses aren’t allowed. Nevertheless, it was tough work because of the high concentration of deadfall and the risk of standing, dead trees falling. The fire hollowed out numerous trees and left the shells standing. They can be precarious in the wind. The small crew is facing a mammoth challenge this spring and summer — clearing downed timber in the burn scar and from numerous avalanche chutes that ran last winter throughout the district. Some of the most popular trails in the Maroon Bells-Snowmass Wilderness are blocked by trees knocked down by the slides and stacked like matchsticks. “They have an incredibly tough job,” Nelson said. The crew devoted time to the Basalt Mountain trails when they could this spring, balancing needs with other high-priority areas…

New York City, Spectrum News1, June 17, 2019: Meet the Queens Giant: the oldest tree in all of New York City

Just feet away from the Cross Island Parkway stands the city’s oldest resident. It’s so old, in fact, it was already here in the 1600s, when New York was a Dutch settlement called New Amsterdam. “To know that this tree has existed [since] before the United States became a nation is astounding,” said Urban Park Ranger Sergeant Victor Yin. It’s doubly astounding because Tulip Trees, as a species, typically live between 100 and 200 years in an urban environment. The Parks Department calls it “The Alley Pond Park Giant,” and based on historical documents, they believe it is 364 years old. By the time one of the founding fathers crossed its path, it had already planted its roots. “George Washington walked through here,” said Urban Park Ranger Nadilyn Beato. The tree has certainly stood the test of time, but most New Yorkers are oblivious to its history…

Lincoln, Nebraska, Journal Star, June 16, 2019: Time is now to thin fruit on trees

Fruit trees in the home orchard often set abundant crops if spring pollination conditions are good, and most home gardeners do not thin fruit trees enough or at all. Only 10% of peach flowers are needed for full crop set, and peaches are particularly prone to branch breakage under heavy crop load. Very heavy fruit loads aren’t ideal for several reasons. First, fruit size is smaller when very large crops develop on a tree. Also, when trees experience very heavy fruit production one year, they often have light production the following year. This condition is called biennial or alternate bearing. The large amount of nutrients needed to develop a large fruit crop limits the resources available for next year’s flower bud development. Reducing fruit during the heavy production years helps avoid the development of alternate bearing cycles. Finally, as heavy fruit loads near maturity the weight can cause branch breakage…

Atlanta, Georgia, Journal-Constitution, June 16, 2019: Atlanta’s abundance of trees means homeowners can be caught off guard

In the spring of 1999, Elizabeth Chesnut and Mary Shaw moved into their new home on a tree-lined street on the southeast side of Atlanta. They loved the front and back yards, which featured two red oaks, a poplar, a Catalpa and several dogwoods. The abundance of trees was a big factor in their decision to buy a home in the area. In the spring of 1999, Elizabeth Chesnut and Mary Shaw moved into their new home on a tree-lined street on the southeast side of Atlanta. They loved the front and back yards, which featured two red oaks, a poplar, a Catalpa and several dogwoods. The abundance of trees was a big factor in their decision to buy a home in the area. Trees offer many benefits — clean air, energy conservation, reduction of greenhouse gases — but living in metro Atlanta, which has one of the largest and highest-quality urban forests of any major metro area in the U.S., brings unique challenges when environmental and human impacts turn beloved trees into a potential hazard…

Conroe, Texas, Courier of Montgomery County, June 14, 2019: Montgomery looks to add protections for trees with new ordinance

Changes could soon be on the way for the city of Montgomery’s tree ordinance. Assistant to the City Administrator Dave McCorquodale presented a report to the council regarding a draft with updates to the ordinance, which will go before the council again for a vote on June 25. McCorquodale said the ordinance aims to limit indiscriminate cutting of trees in advance development and to preserve existing trees of certain species. “Again, you can travel from this room, 90 seconds in any direction and be outside of our city limits,” McCorquodale said. “And, that is really our competition in terms of being able to build and attract businesses to our city, to help grow the city, is not competing with an adjacent city — we’re competing with the county that has absolutely no constraint. This ordinance really does strike a middle ground between what we get as a city and what the residents get in terms of quality of life with also being able to be viable as a commercial builder or land owner in the city…”

Digital Journal, June 16, 2019: How to Capture and Destroy Spotted Lanternfly Nymphs

The Spotted Lanternfly is a destructive insect that has officially invaded Philadelphia, Bucks and Montgomery Counties! All winter long, their eggs lay waiting for the warm weather, and the Spotted Lanternfly Nymphs have already started to emerge. The experts at Giroud Tree and Lawn share what to look for and how to capture and destroy these destructive insects. These insects eat tree sap and then excrete droppings of a sweet, sticky substance called Honeydew. The honeydew will coat the tree, the base of the tree, and anything underneath the tree, including cars, hardscapes, and decking. Then, black, sooty mold grows on the secreted substance. The combination of honeydew and black, sooty mold has an unpleasantly sour stench and is very difficult to remove from surfaces. Even more unsettling, the secreted honeydew attracts stinging wasps! Wasps can’t resist the tantalizing smell of the honeydew, and they will swarm a property for a taste. Homeowners are struggling to rid their yards of stinging wasps, and it’s particularly a problem for children playing in the area…

Cincinnati, Ohio, Business Courier, June 16, 2019: Panel declines to save Lytle Park trees

Cincinnati’s Zoning Board of Appeals voted unanimously Friday against saving four, mature trees in Lytle Park, turning back an appeal by some nearby residents who said the Historic Conservation Board failed to follow the city’s guidelines when it OK’d their removal in March. Supporters of the London plane trees are expected to take the case to the Hamilton County Court of Common Pleas… Western & Southern, located near the park, wants the trees gone as a part of a $2.9 million overhaul of the park, of which the company is expected to fund up to $1.8 million. The city’s parks department also backs the trees’ removal, although neighbors have produced emails they received through a public records request showing the department wanted to keep the trees until the insurance giant dangled its contribution to Lytle Park’s overhaul…

San Diego, California, KGTV, June 13, 2019: Famed tree with Dr. Seuss connection topples over in La Jolla

A Monterrey Cypress known as the “Dr. Seuss Tree” or “The Lorax Tree” toppled over early Thursday morning in La Jolla. The unique shaped tree has been theorized to be the inspiration for the colorful trees in “The Lorax,” written in 1971 by Dr. Seuss. Seuss, whose real name was Theodore Geisel, lived in La Jolla from 1948 until he died in 1991. The tree is located in Ellen Browning Scripps Park near La Jolla Cove. The tree had become a tourist destination for Seuss fan around the world. As of Thursday night the tree was still lying on the ground. The cause of the fall is under investigation…

Jacksonville, Florida, WJAX-TV, June 13, 2019: Trimmer seriously injured in 50-foot fall from tree

A tree trimmer who fell from a pine tree Thursday morning while doing work on a property in Northwest Jacksonville was hospitalized with serious injuries. The homeowner told News4Jax that the man was in “pretty bad condition” after falling an estimated 50 feet. He was taken to a hospital by Jacksonville Fire and Rescue Department personnel just after 9:30 a.m. Homeowner Duncan Jackson said everything was going well, but the workers couldn’t finish the job Wednesday because of the weather. He said they were only back working for about 30 minutes Thursday when the man fell. “It came forward and it seemed like a piece of the tree went backward and slapped him right off the tree and he came flying down,” Jackson said. Jackson said the tree service was hired by the city to cut down the tree as the city prepares to cut a new ditch along the property line…

Chicago, WBBM-TV, June 13, 2019: Plenty of Laws Protect Historic Buildings, But What About Long-Standing Trees?

There are rules to protect historic homes and buildings, but in many places no such laws exist to preserve magnificent towering trees. Carol McCullough learned that the hard way, when two large trees were removed from the lot next door in Evanston to make way for new construction. “To me, it was heart wrenching that they were torn down,” McCullough said. McCullough was surprised to learn in Evanston, unless the land is two acres or larger, and preparing to subdivide, residential property owners are allowed to remove any tree on their property, even tall impressive ones that might be saved somewhere else. “I think that’s why people live here, is because of the trees,” she said. In Illinois, there is no statewide law regarding the removal of trees, leaving a hodgepodge of ordinances that vary from municipality to municipality…

Cincinnati, Ohio, Enquirer, June 13, 2019: Cincinnati Zoning Board of Appeals set to decide fate of Lytle Park trees

Cincinnati’s Zoning Board of Appeals will hold a hearing Friday morning to decide the fate of four 50-year-old London Plane trees in Lytle Park. Former federal prosecutor and current Porter Wright attorney Kathleen Brinkman filed an appeal against the Cincinnati Conservation Board’s decision made in March to allow the removal of the trees. The trees were previously protected because they are located in a historic district. Western and Southern donated $1.6 million to the Cincinnati Park Board to renovate Lytle Park and the removal of the trees was part of the agreement made between the two parties. The park board already spent the money, so park board commissioner Kevin Flynn said he doesn’t believe the agreement can be changed now. Brinkman believes Western and Southern should not be able to control the fate of the trees, as they are public property. She said the park board failed to do its duty to protect the trees…

Brooksville, Florida, Hernando Sun, June 12, 2019: Expert advice on tree work in preparation for hurricane season

When asked which trees are vulnerable to a hurricane, Oliver Bevins of Bevins Tree & Crane Service said, “Every kind of tree is vulnerable in a hurricane. If a homeowner is concerned about a tree, perhaps it threatens the house, the power lines or could block the driveway, the best thing to do is call a tree expert. I recommend getting a certified arborist to look at the tree. We have one on staff. A certified arborist can tell if a tree is diseased or weakened even if it looks healthy and can advise the homeowner on how to protect himself and his property.” “Tree work is dangerous. We put safety first. I’ve spent countless hours in classes on safety and I pay my staff to attend them as well. Tree work is not the place to go Cheap Charlie.” Bevins started helping his dad as a child in the family logging business in the Adirondacks in New York. He felled his first tree at the age of twelve. By the time he left his dad’s company in his early twenties, he was adept at scaling tall trees and working a chainsaw…

Livonia, Michigan, Observer & Eccentric, June 12, 2019: Tree-clearing brothers sue Canton in federal court on harassment claims

The tree-clearing Percy brothers and their legal defender, the Texas Public Policy Foundation, have filed a federal lawsuit against Canton Township. It’s the third lawsuit stemming from Gary and Matt Percy’s battle with Canton Township over a tree ordinance that the brothers’ Texas attorney says violates property owners’ constitutional rights and imposes excessive fees. This time, foundation attorney Chance Weldon said the Percy brothers have a First Amendment retaliation suit against the township and several township representatives. He claims township officials harassed the brothers and their businesses after local news outlets shared their story about clearing trees for a Christmas tree farm. Township representatives have been demanding about a half-million dollars for Canton’s tree fund as compensation. Harassment, according to the federal complaint, included the township sending code enforcement officers to the Percy brothers’ other businesses to search for possible code violations not tied to the clearing…

Pasadena, California, Courthouse News Service, June 12, 2019: Europe Worries as Bacteria Wipe Out Ancient Italian Olive Trees

Italian biologists, laboratory workers and government officials under investigation for failing to stop the early spread of an incurable and catastrophic plant infection from Central America that is killing tens of thousands of olive trees in southern Italy will not face criminal charges, but the scientific investigation continues. In May, Italian prosecutors in Lecce closed a 3½-year-long preliminary investigation into how the deadly bacterium known as Xylella fastidiosa arrived and then spread throughout Puglia. (In America it’s also responsible for the Pierce’s disease attacking California’s vineyards.) The bacterium, called by some the “ebola of olive trees,” threatens to infect the rest of Europe. Puglia is a gorgeous region known for its food and beaches, and its old and productive olive trees. The region makes up the sweeping boot-heel of the Italian peninsula. It is Italy’s biggest, though overlooked, olive oil producer, with much of that production coming from the area devastated by Xylella. The investigation into Xylella is far from over. The Lecce prosecutors transferred their findings to colleagues in Bari, Puglia’s capital city, who now will examine how European Union and Italian funds were used to fight the disease. This preliminary criminal investigation grew out of a chorus of allegations that Italian authorities mishandled the response to the outbreak of Xylella fastidiosa, whose presence in Europe was announced in October 2013…

Westfield, New Jersey, Patch, June 12, 2019: Westfield Steps Up Tree Protection

In a move designed to counterbalance development in town, the Westfield Town Council voted unanimously to adopt an updated version of the Town’s Tree Preservation Ordinance on June 4. “The goal of this ordinance was to be more proactive about protecting our trees, particularly with regard to the ongoing development in Town,” said Mayor Shelley Brindle. “These more stringent requirements are being implemented with an eye toward thoughtful preservation throughout Westfield, including neighboring property notification requirements, increased fees for removal applications and penalty fines, and mandated donations to the tree trust fund above a certain removal threshold…”

Looking for an older story we covered? Check out our Old News.

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Case of the Day – Monday, June 17, 2019

THE BIKE RIDER “QUACKED” UP

Secretary of State Kerry in his more upright days ...

Secretary of State Kerry in his more upright days …

Note to Mr. Quackenbush: Secretary of State John Kerry didn’t sue anyone when he fell off his bike. Neither did President Bush. But you, Mr. Quackenbush, are no John Kerry. Or George W. Bush. You sued the City of Buffalo because while you were riding your bike on one of Buffalo’s park trails when you hit a hole and fell off.

OK, Mr. Quackenbush, you might be a President Trump, at least insofar as stupid lawsuits go. We’ll give you that.

You sued, and Buffalo – not liking the defendant’s role you chose for it – tried to trample you. The City argued that New York’s recreational use statute immunized it from liability, but the Court ruled that where a government entity is involved — rather than a private landowner — it had to figure out whether the recreational user statute was intended by the legislature to induce the City to open the park, or to increase the use and enjoyment of the particular park by the public. The City maintained the trail was really kind of like a sidewalk, and the state’s sidewalk injury immunity statute applied.

No dice, the Court said. But Quackenbush kind of assumed the risk, the City argued. Not necessarily, the Court countered. Through it all, the City hadn’t shown it wasn’t responsible for creating the hole, or that it didn’t know it was there.

Now you’d think that hitting a hole on an unimproved trail on a mountain bike was kind of an unsurprising risk. But unsurprising or not, the appellate court thought the case was good enough to go to trial.

Mountain biking, as Mr. Quackenbush learned, can be challenging.

Mountain biking, as Mr. Quackenbush learned, can be challenging.

Quackenbush v. City of Buffalo, 842 N.Y.S.2d 657 (N.Y.A.D. 2007). Quackenbush was riding a mountain bike on a trail located in a park owned by the City of Buffalo when he hit a large hole, fell and was injured. He sued for negligence, and the City of Buffalo moved for summary judgment under several theories, chief among them being the New York recreational use statute. The trial court denied summary judgment, and the City appealed.

Held: Quackenbush could not be buffaloed by Buffalo. The appellate court concluded that the recreational use statute did not confer immunity upon the City. Although the statute generally provides immunity to landowners who permit others to use their property for certain recreational activities, the Court said, when the landowner is a government entity a different standard is applied. Then, the appropriate inquiry is the role of the landowner in relation to the public’s use of the property, and from there a determination is made whether it is appropriate to apply the limited liability provision of the statute.

Here, the Court concluded that the park was actively operated, supervised and maintained in such a manner that recreational use immunity would not create an additional inducement to keep the property open to the public for the recreational activities set out in the law. Additionally, state law immunizing the City for damages caused by bad sidewalks didn’t apply, inasmuch as the law was limited to streets, highways, bridges, culverts, sidewalks or crosswalks. Under the facts of this case, the Court held, the statute must be construed as a flat prohibition “of defect enactment pertaining to locations beyond the six specified.”

The City of Buffalo was not allowed to stampede over this plaintiff.

The City of Buffalo was not allowed to stampede over this plaintiff.

The Court rejected the City’s argument that an unimproved trail such as the one on which Quackenbush was injured was the functional equivalent of a sidewalk. The Court also ruled that Quackenbush had not assumed the risk of injury. Although the risk of striking a hole and falling is inherent in riding a bicycle on most outdoor surfaces, the Court said, there was an issue of fact whether the hole at issue in this case was open and obvious.

Finally, just so the City could go 0 for 4 here, the Court observed that the City was required to establish as a matter of law that it hadn’t created the dangerous condition and didn’t have actual or constructive notice of it. The City hadn’t done either.

– Tom Root

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Case of the Day – Friday, June 14, 2019

SLAPP-HAPPY

California and free speech… How times have changed! Time was, 50 years ago or so, Cal Berkeley gave birth to the Free Speech Movement. Now, some allege the Golden State hates free speech. The California Democratic Party says the First Amendment does not protect speech minority groups find offensive or hateful (check out Resolution 19-05.94),’s Grande Dame of politics, Nancy Pelosi, is mad-mauing Facebook over a fake video of her in what some say is a dangerous affront to the First Amendment.  It is no surprise that only in the California Republic could a tree-trimming case end up as a free speech issue.

bureaucracy140923Last week, we explored the question raised by our faithful reader Rock Maple of Thousand Oaks, California, who wondered whether his neighbor could trim the branches from Rock’s pine that were overhanging the neighbor’s place. We concluded that self-help was available to the neighbor, within limits. Today, we look at what happens when good old-fashioned common law self help runs into bureaucracy.

The Dilbecks wanted to add a second story to their house, but their neighbors’ oak tree had extended its branches so close to the Dilbecks’ place that they had to be trimmed back in order to make room. No problem, right? We all know that self-help is available to the Dilbecks anywhere in California. Sure, but it turns out the Los Angeles isn’t just anywhere. In LA, oak trees are “protected,” and before trimming the oak, the Dilbecks had to get a permit from the County. And the County wouldn’t issue a permit unless the tree’s owner signed on to it.

So much for self-help. The Dilbecks sued, asking that the County be ordered to issue the permit and that their neighbors be found liable in trespass for the tree (the theory being that the neighbors let the branches intrude over the Dilbecks’ lawn). And here’s where it got even more complicated. California has a statute addressing litigation known as “strategic lawsuits against public participation,” the so-called anti-SLAPP statute. This mouthful with the catchy name is intended to stop oppressive lawsuits intended to keep people from exercising their rights to free speech. There’s a whole cottage industry in the Golden State surrounding SLAPP actions. And as with a lot of other good ideas (such as RICO), the anti-SLAPP statute is another tool in the canny lawyer’s arsenal, something else with which to bludgeon a plaintiff.

Here, the neighbors complained that the Dilbecks were trying to force them to petition the County to let the tree get trimmed, and the suit should be thrown out as violating the anti-SLAPP statute. The trial court refused dismiss the action. The Court of Appeals agreed, holding that the Dilbecks weren’t demanding that the neighbors do anything. They were asking the County to do something, and they were suing the neighbors for trespass because of the tree. California law would let them collect money damages if the encroaching tree was a nuisance (Bonde v. Bishop held as much). So whether the Dilbecks win on the merits or not, the action was not a SLAPP suit, and it wouldn’t be dismissed.

Oaktree140923Whew! Makes you long for the simple, ol’ Massachusetts Rule… no permits, no lawsuits, just an aggrieved landowner with a chainsaw.

Dilbeck v. Van Schaick, 2007 Cal. App. Unpub. LEXIS 7718, 2007 WL 2773986 (Cal.App. 2 Dist., Sept. 25, 2007). The Dilbecks owned a place in Altadena, next door to the Van Schaicks. The Dilbecks planned to remodel their home by adding a second story. However, the branches of an oak tree located on the Van Schaicks’ property have grown over the Dilbecks’ home, rendering the Dilbecks’ plans unworkable unless the tree was pruned.

Oak trees are protected by California state law. The County of Los Angeles had adopted regulations to preserve and protect oak trees, requiring a permit to cut down mature oak trees or to prune their larger branches. The Dilbecks applied to the County for a permit, but the County had not approved it because it took the position that only the owner of the tree may obtain a pruning permit, and the Van Schaicks had not acquiesced. So the Dilbecks brought suit against the Van Schaicks and the County for declaratory relief and trespass. They alleged the oak tree growing on the Van Schaicks’ property had encroached onto the their land and interfered with their ability to add a second story to their home. The suit said the County refused to grant the permit because the Dilbecks were not the owners of the tree. The trespass cause of action alleged the oak tree branches were encroaching on the Dilbercks’ land, and asked for an order permitting the Dilbecks or an independent contractor to prune the tree.

The Van Schaicks filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, asserting that the complaint was based on their refusal to support the Dilbecks’ oak tree permit application and therefore attacked their right to free speech. They further argued that the trespass claim lacked merit because the law forbade the Van Schaicks to prune or cut the offending oak tree branches.

The Dilbecks contended that their action did not fit within the definition of a SLAPP suit and that, in any event, their complaint had merit. They denied that the complaint sought to compel the Van Schaicks to support or sign the oak tree permit. The trial court denied the Van Schaicks’ motion to strike, finding that they had not demonstrated that they were being sued for engaging in protected activity. Instead, the trial court held, they were just being sued for trespass. The Van Schaicks appealed the court’s denial of their motion to strike.

Freespeech140923Held: The Dilbecks’ complaint did not arise from acts undertaken in furtherance of the Van Schaicks’ rights of free speech or petition, and the Van Schaicks’ attempt to get it dismissed was rejected. The California Legislature enacted the anti-SLAPP statute in response to its perception that there has been an increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition for the redress of grievances. The anti-SLAPP statute provides a procedure for the court to dismiss at an early stage non-meritorious litigation meant to chill the exercise of free speech rights. The statute requires the trial court to engage in a two-step process when determining whether a motion to strike should be granted, first, whether the defendant has made a threshold prima facie showing that the acts of which it complains were ones taken in furtherance of its constitutional rights of petition or free speech in connection with a public issue, and two, whether there is a probability that the plaintiff will prevail on the claim.

The issue here, the Court said, was whether the complaint arose from conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. The Van Schaicks contended the suit sought to compel them to petition the County for discretionary relief from the oak tree statutes. The Court disagreed, holding that their characterization of the complaint was wrong. In fact, the Court said, the suit merely sought to compel the County to review the merits of the permit application submitted by the Dilbecks, and requested an order permitting the Dilbecks or their arborist to prune the tree. The complaint did not seek to compel the Van Schaicks to become personally involved in the permit application process in any way, and thus did not violate the anti-SLAPP statute.

The Van Schaicks contended that the complaint would indirectly force them to speak because a judgment in favor of the Dilbecks on the trespass action would necessarily require the Van Schaicks to petition the County of Los Angeles for discretionary relief from the Oak Tree statute. The Court rejected that argumnt, finding that the Van Schaicks’ position was based on the incorrect assumption that the only remedy available for trespass was injunctive relief. However, California law held a party over whose land overhanging branches extend may either cut them off or maintain an action for damages and abatement, as long as he or she can prove the branches constitute a nuisance.

The prospect that the Van Schaicks could eventually be faced with an order to abate the nuisance and could do so only by seeking a permit from the County did not transform the Dilbecks’ lawsuit into a SLAPP action. The Court ruled that the thrust of the Dilbecks’ complaint was the injury caused to their property by the encroaching tree, not the Van Schaicks’ decision to refrain from involvement in the permitting process. The permit, although obtainable only by petitioning a governmental entity, principally concerned and affected the remodeling of a private home by private individuals.

– Tom Root
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Case of the Day – Thursday, June 13, 2019

IT’S YOUR PLACE – TAKE CARE OF IT

It’s fun these days to deride the Massachusetts Rule as a relic of a bygone era, when manly men hewed the logs for their cabins, wielded their own axes for firewood, and posted their own selfies as drove their oxen teams in the fields… back in that rustic pre-war era (before the first Persian Gulf war) when the web was something you walked into down in the basement and “text” was not a verb.

The Massachusetts Rule, of course, embodies the libertarian view that each landowner is both entitled to and limited by the doctrine of “self help.” The Rule has two prongs. The first is universally accepted: a landowner has a right to cut encroaching branches, vines, and roots back to the property line, provided he or she does not enter the adjoining landowner’s property to chop down a tree or cut back growth without the neighbor’s consent.

The second prong of the Massachusetts Rule is less widely acknowledged. Rather, it has fallen out of favor to a great extent over the past 30 years.

But when Jon Melnick ran into problems, the second prong was still the law of the land. Back in the late 1970s, Jon bought a decrepit Baltimore warehouse next to the railroad tracks, which he then repaired for commercial use. After he fixed the place up, he discovered that a fair amount of the reason the property had become run down to begin with was that the Baltimore & Railroad (which after several mergers, consolidations and rebrandings, had become a component of CSX Transportation, a subsidiary of CSX Corporation) did little to maintain the trees alongside its railroad right of way. As a result, branches were overhanging the warehouse, dropping twigs and leaves and vines and other plant life onto the roof.

Jon complained to the railroad all the live-long day, but no one paid any heed to his lament. So he sued, alleging trespass, negligence, and nuisance.

The modern-day B&O: as close to a hometown hero as Baltimore has.

Don’t bet against the home team. The Baltimore & Ohio prevailed in Baltimore. The Maryland court followed the Massachusetts Rule to the letter. In a paean to an era of rugged individualism lost since past, the Court held that the privileges of real estate ownership are accompanied by certain obligations. One of those is “proper maintenance.” Indeed, the Court lectured that “to grant a landowner a cause of action every time tree branches, leaves, vines, shrubs, etc., encroach upon or fall on his property from his neighbor’s property, might well spawn innumerable and vexatious lawsuits. We have gotten along very well in Maryland, for over 350 years, without authorizing legal actions of this type by neighbor against neighbor.”

Well, of course. We’ve always done it that way. For that matter, we got along just fine for 275 years without paved roads. Candles served us well in the evening, and those newfangled electric lights just encourage people to remain awake past their bedtimes.

The justification that ‘we’ve always done it that way’ is usually a poor reason to resist change. While it got CSX off the hook, and picked Jon’s pocket to have his roof and gutters constantly cleaned, the Massachusetts Rule’s proscription on legal redress for encroachment was already on the exit ramp when this case was decided in 1988. The Hawaii Rule – which holds that when there is imminent danger of overhanging branches causing “sensible” harm to property other than plant life, the tree owner is liable for the cost of trimming the branches as well as for the damage caused – has gained traction in a number of states over the past 20 years. Tennessee, New Mexico, North Dakota, Arizona and New York follow it. Several other states follow the rule with variations: in Oregon, the owner of the offending tree must somehow be at fault or the tree must be “ultrahazardous.” In Missouri, the Hawaii Rule is followed if the offending tree is diseased or damaged, but the Massachusetts Rule is followed if it’s healthy.

Until 2007, Virginia had an unworkable rule that in order for a neighbor to be liable for damage caused by his or her tree, it had to be “noxious,” that is, one generally seen to be a pest. It abandoned that approach in favor of holding that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. But encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to adjoining property, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.

The Melnick court found it “undesirable to categorize living trees, plants, roots, or vines as a ‘nuisance’ to be abated, citing an Ohio case holding that “[t]o grow a tree is a natural act of the soil. It is not itself a dangerous instrumentality.” Were the issue to arise in Maryland courts now, 30 years later, we suspect the outcome would be much different.

Melnick v. CSX Corporation, 312 Md. 511, 540 A.2d 1133 (Ct.App.Md. 1988). Johnathan Melnick purchased a warehouse in Baltimore that shared a common boundary with a railroad right-of-way owned by the Baltimore and Ohio Railroad Company. He replaced the roof, which had been in poor condition.

Since the roof replacement, Melnick experienced constant clogged drains, standing water, roof deterioration and some water damage to stored merchandise. These problems result from leaves and limbs falling on his property from the railroad’s trees. Melnick tried to remedy this situation by cleaning the gutters on several occasions and cutting back the growth, but the problem continued. When his complaints to the railroad were ignored, he sued on theories of trespass, negligence, and nuisance.

The trial court granted judgment to the railroad, holding that Melnick was limited to a self-help remedy. Melnick appealed.

Held: Under the circumstances, Melnick had no cause of action against the railroad. The appellate court reasoned that the remedy of “self-help” was generally the most efficient way in which to prevent injury from occurring to property due to encroaching vegetation.

The Court followed the Massachusetts Rule, set out in Michalson v. Nutting. “We believe that it is undesirable to categorize living trees, plants, roots, or vines as a “nuisance” to be abated. Consequently, we decline to impose liability upon an adjoining landowner for the ‘natural processes and cycles’ of trees, plants, roots, and vines… ‘Indeed, such natural growth and shedding processes of trees are inherent… and to most people constitute a pleasurable reflection of seasonal changes’.”

The Court held that a landowner must assume responsibility for the care and preservation of his or her own property. “Along with the benefits derived from property ownership come certain obligations. Proper maintenance of one’s own property is one of these obligations.”

– Tom Root

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