Case of the Day – Friday, August 23, 2019


combusted150728Judges actually go to judges school to learn cool, judge-related things. Not the law … they already know about the law, or they know how to look it up. Instead, judges learn really practical things — such as how to tell when a witness is lying.

And how can you tell when witnesses are lying? No, not when their lips move. That’s too easy. But judges learn how to watch for signs — and they don’t tell us in the great unwashed what those signs are — that witnesses may be dissembling. Dissembling: a great euphemism for lying.

In today’s case, two New York neighbors had a common fence. On the Zeltsers’ side of the fence was a one-foot wide strip of land between the fence and the driveway. It had been there for a long time. The Zeltsers took care of the strip, planted trees and shrubs, enclosed it from the street and even paved part of it. But in 2003, the Sacerdotes had a survey done and found, lo and behold, the strip belonged to them. They tore down the fence and cut down the trees. The Zeltsers sued.

The trial court found, on the crucial issue, that the Zeltsers had used the one-foot wide strip openly, continuously and exclusively from 1987 to 2003. The Sacerdotes argued that there had been evidence — testimony from the Sacerdotes — that showed otherwise. But the Court of Appeals noted that the trial court — which had been in “a unique position to assess the evidence and the credibility of the witnesses” — resolved that issue in favor of the Zeltsers.

Generally, appellate courts will not disturb credibility findings of a trial court. The trial judge, after all, with her keen eye for prevaricators (a euphemism for dissemblers, see above), can smell testimony that gives off the reek of tergiversation — and the appellate court wasn’t about to question what the trial court had decided.

There is undoubtedly a good backstory here, one we’ll never know. The Zeltsers were awarded the one-foot strip by adverse possession, so it’s a cinch the judge believed them. In fact, all of the physical evidence – the old fence, the trees planted by the Seltzers, the asphalt and the edging – made this a pretty open and shut case.

The only evidence to the contrary was the Sacerdotes’ testimony. It was rather self-serving testimony at that. The self-serving nature doesn’t make it wrong, but it sure makes it suspect.

pic150728The Zeltsers won rights to the foot-wide strip. In the process, they lost any chance that they’d be invited to a Sacerdote picnic any time soon.

Zeltser v. Sacerdote, 860 N.Y.S.2d 624, 52 A.D.3d 824 (N.Y.A.D. 2 Dept., 2008). The Zeltsers and the Sacerdotes owned adjoining residential properties. When the Sacerdotes purchased their property in 1987, an existing fence — covered in rose bushes and vines — ran parallel with their property line from the street to a garage in the rear for about 100 feet. A small strip of dirt, about a foot wide was sandwiched between the fence and the Zeltsers’ driveway. The Zeltsers believed that the strip — which was on their side of the fence — belonged to them. They planted trees on the strip, trimmed the bushes and vines on the fence, and installed a row of bricks as an edging. They installed a fence that enclosed the front portion of the strip, making it inaccessible from the street, and they laid asphalt on the strip between their garage and the Sacerdotes’ garage, both of which were on the back portion of the respective properties.

It turned out that title to the one-foot strip was held by the Sacerdotes. They never mentioned that to the Zeltsers, and may have been uncertain about it themselves, until they had a property survey done in 2003. After the survey, the Sacerdotes removed the fence and the trees.

The Zeltsers sued to quiet title to the disputed strip, based on their claim of adverse possession.

liarliar150728Held: The Zeltsers had become owners of the strip of land by adverse possession. The Court observed that a party claiming title by adverse possession – rather than a written instrument – must show that the parcel was either regularly cultivated, or improved or protected by a substantial enclosure. Additionally, the party must satisfy the common-law requirements demonstrating by clear and convincing evidence that the possession of the parcel was hostile, under claim of right, open and notorious, exclusive, and continuous for the statutory period of 10 years.

The trial court properly found that the Zeltsers had established that they met both the statutory and common-law requirements of adverse possession. The trial court’s findings relied substantially on its perception of the credibility of the witnesses, and the appellate court was not willing to disturb those findings. The Court said that the evidence established that the Zeltsers openly used and maintained the disputed strip from 1987 until 2003.

The Sacerdotes argued that there was conflicting evidence as to whether the Zeltsers’ possession of the disputed property was exclusive. However, the trial court — which, the Court observed, “was in a unique position to assess the evidence and the credibility of the witnesses” — resolved that issue in favor of the Zeltsers, and the appellate court wasn’t about to disturb the finding.

– Tom Root


And Now The News …

Philadelphia, Pennsylvania, Voice, August 22, 2019: Off-road vehicles destroy 400 trees planted by teens in Burlington County

A group of teenagers planted 400 trees in Burlington County in an effort to preserve the Pine Barrens wetlands, but just days after the group effort, the trees were destroyed by off-road vehicles and replaced with trash. Ten teens from the YMCA Pines Groundbreakers Service Group had spent hours planting the 400 Atlantic white cedars in the Bucks Cove Run Preserve in Pemberton Township on Aug. 8 The YMCA, in partnership with the Pinelands Preservation Alliance, were attempting to revive the a portion of the Pinelands and protect the habitat for the endangered species that call the area home, including the Pine Barrens tree frogs. The area been destroyed previously by off-road vehicles, such as ATVs, Burlington County Times reports. Pinelands Preservation Alliance posted to Instagram, “We planted 400 Atlantic White Cedars today with @ymcaofthepines in a wetland area that was severely degraded by off-road vehicles.” Not long after area was restored, James Howell of the Pinelands Preservation Alliance found 4×4 tire tracts, burning trash, and all 400 trees destroyed that following Monday. He had returned to the area in order to install barriers…

Seattle, Washington, Times, August 22, 2019: What to consider before you top that tree

Tree topping is the practice of removing an entire top portion of a tree, including parts of the trunk, leader branches, as well as small branches. It is a practice going back a hundred years or more, started in the Pacific Northwest and mostly used by loggers. Loggers topped trees to create high rigging points so large firs and cedars could be removed more easily. It was once considered a way to make the trees safe in high winds, but has since been abandoned by most arborists or tree service companies, especially as the science and understanding around tree physiology has grown. “Any legitimate tree service will not top a tree that hasn’t already been topped,” says Jory Cuttitte of Eastside Tree Works. “It’s just an outdated practice.” Cuttitte says it can be necessary to top a tree if the tree already has been topped, as that shaping has to be continuously maintained. Once you top a tree, you will always have to top the tree. Because tree topping removes the top of a tree, it sprouts new “leaders” and branches, and essentially grows another “top.” “If you don’t retop it regularly at that point, all of those branches up top that are making those new tops, it creates what we would call a cavity. All the water starts to collect in between all those new branches where that cut was made. And the tree will start to decay downward from there,” Cuttitte says. “It’s just a matter of time before that tree is going to completely die…”

CNN, August 22, 2019: What do Bob Ross and Michigan have in common? Happy little trees

If taking time to enjoy nature in Michigan’s state parks wasn’t relaxing enough, you can now add a little Bob Ross to your experience. For its 100th birthday, the parks system is partnering with Bob Ross Inc. to help the “happy little trees.” Michigan’s “prison grow” program will be renamed in honor of the famous American painter and his tagline, according to a statement. Through the program, prisoners learn horticulture skills by growing trees from seeds collected by volunteers. The trees are transplanted into state parks and other areas in need of reforestation. Beloved artist Ross made his television debut in 1982 on his show “The Joy of Painting,” which reached over 400 episodes before he retired. Even though Ross died in 1995, his show and its impact on communities have lived on through memes, parodies and art classes. Michelle Coss, volunteer and donor coordinator for the Michigan Department of Natural Resources’ Parks and Recreation Division, said the idea came from the recent revival of Ross’ popularity; her own daughter had been watching the show online. Coss said the agency called Bob Ross Inc. to get permission to use his tagline, and the company gave a resounding yes…, August 21, 2019: Fungus fuels tree growth

The fungus Mortierella elongata enjoys a dual lifestyle; it can thrive in the soil as a saprophyte, living off decaying organic matter, or as an endophyte, living between a plant’s root cells. The fungus is almost always found among and within poplar trees, and in an effort to understand its influence on the plant, a team of scientists studied what happens to the tree’s physical traits and gene expression when the fungus is present. Black cottonwood, or poplar, (Populus trichocarpa) is the fastest growing hardwood tree in the western United States, making it an energy feedstock of particular interest to the U.S. Department of Energy (DOE). By better understanding how poplar responds to its intimate associations with endophytes—a group whose effects on plants are still not well understood—scientists can better fine-tune their engineering efforts of both plants and root microbiomes to grow energy crops more efficiently. To interrogate the close partnership of endophyte M. elongate and poplar, a team led by Hui-Ling (Sunny) Liao of the University of Florida collected forest samples of poplar and soil from Washington and Oregon. The cuttings included genotypes from the DOE BioEnergy Science Center (BESC), predecessor of DOE’s Center for Bioenergy Innovation (CBI) at Oak Ridge National Laboratory. To see how the fungus affected poplar growth, the team compared poplar cuttings grown with and without an inoculation of the M. elongata strain PM193 added to a diluted soil mixture, publishing the results in Molecular Plant-Microbe Interactions. The results were striking. Adding PM193 caused poplar cuttings to grow about 30 percent larger by dry weight than without PM193. By contrast, using a different endophytic fungus, Ilyonectria europaea, had no effect on growth. Liao’s team partnered with the U.S. Department of Energy (DOE) Joint Genome Institute (JGI), a DOE Office of Science User Facility, through its Community Science Program in order to get M. elongata and I. europaea genomes sequenced and annotated for this study…

Richmond, Virginia, WTVR-TV, August 21, 2019: Tree that crushed 2 cars in Richmond was ‘already dead,’ slated to come down

The maple that smashed two vehicles in Richmond’s Westover Hills neighborhood was on the city’s list of trees to be removed. Strong storms toppled the maple, which crashed onto a truck and an SUV near the intersection of Peterborough and New Kent Roads just before 8 p.m. Tuesday. “The rain and wind came up very suddenly. I heard the snap and then the car alarm went off,” the SUV’s owner told CBS 6. “A little bit of sadness over the car. I loved the car, but it’s replaceable. That’s why we have insurance.” He said his neighbor relied on his truck for a cabinet making business. Homeowners stated they notified the city about the tree after fears it may fall on cars or homes in a strong storm. “A big chunk of it was already dead and hanging over the street,” they stated…

San Jose, California Mercury-News, August 21, 2019: California man found dead in palm tree was electrocuted by power line

A man was electrocuted while trimming a tree in Huntington Beach over the weekend. The incident happened in the backyard of a private residence, Orange County Coroners’ officials said in a news release. Firefighters went to the 8000 block of Seaport Drive, and found a man unresponsive in a palm tree, Huntington Beach Fire Battalion Chief Eric McCoy said. The man made contact with a high voltage power line and was later pronounced deceased by paramedics, McCoy said. Coroner’s officials identified him as Donato Lopez Gonsalez, 39, of Costa Mesa. He worked as a tree trimmer, McCoy said…

Los Angeles, California, Times, August 21, 2019: California fire mystery: No major summer brush fires after years of record destruction

Gawking tourists hung halfway out their car windows, cameras aimed at firefighters and flames along the shoulder of Generals Highway. Typically by this point in the summer, fire officials are dealing with multiple blazes across California , including ones that brush up against this area of Sequoia park. But so far things have been remarkably calm — giving firefighters time to prepare with prescribed burns and offering a respite, however brief. After two years of devastating wildfires that burned more than 1.8-million acres in 2018 and 1.2-million acres in 2017, as of Sunday only 51,079 acres have burned this year across state and federal lands in California. Late spring rains, cooler summer temperatures and fewer extreme wind events, among other factors, have combined to help keep the state from burning uncontrollably, experts say…

Greeley, Colorado, Tribune, August 21, 2019: Tree-destroying beetle confirmed in 1st Colorado county outside federal quarantine

A tree-killing beetle has been confirmed in a Colorado city despite preventative efforts. The Denver Post reports that the Colorado State Forest Service announced the first confirmed case of the emerald ash borer in Broomfield County outside of a federal quarantine area. Experts say the insect was first discovered in September 2013 when the quarantine area was created in Boulder County. Experts say the beetle has been confirmed in Gunbarrel, Longmont, Lafayette, Lyons and Superior since the insect was first found in the state. Experts say it’s unknown whether the insect arrived naturally or through human transportation…

St. Augustine, Florida, Record, August 19, 2019: Lethal bronzing: Deadly palm tree disease on the rise in St. Johns County

A bacterial disease is killing palm trees across the state, and arborists in St. Johns County say it’s become a problem locally. Lethal bronzing was originally discovered in Texas and made its way to Tampa in 2006. Now, it’s wiping out palms from the Keys to Jacksonville. Danny Lippi, master arborist and consultant of Advanced Tree Care in St. Augustine, said he’s diagnosed about a dozen cases over the last couple years. “We’ve been doing this for 20-plus years, and this is by far the most dangerous and aggressive palm disease we’ve ever seen,” Lippi said. “This is a scary one. This has the potential to wipe out thousands of palms.” The disease is caused by a bacteria-like organism called phytoplasma, which is thought to be spread from tree to tree by piercing-sucking bugs. The insects inject the bacteria into the palm when feeding on sap, and the bacteria spreads to the base of the tree, clogging its circulatory system. Unable to get the nutrients it needs, the tree dies within a few weeks or months. Cases are popping up in more than 30 Florida counties, according to the University of Florida’s Institute of Food and Agricultural Sciences. While the disease has been spreading for more than a decade, it was only recently discovered in St. Johns County in 2018…

New London, Connecticut, The Day, August 19, 2019: New London group wants more tree-lined streets

The newly formed group known as New London Trees has a vision of the New London of yesteryear, when the streets were lined with elms and canopies of shade trees. The elms are long gone, but New London Trees, through an urban forestry project, is attempting to restore the city’s tree population through community plantings, education and advocacy. “Everybody started getting really concerned about what is happening to our tree-lined streets,” said group member Caroline Driscoll. “We want our trees back.” The fledgling group’s first effort is overseeing the replanting of nine trees along the center median on Governor Winthrop Boulevard. The current mix of aging dogwoods, cherries and crabapples are slated for removal because they have become “public hazards,” said New London Tree Warden David Denoia, the parks and grounds manager for the city’s Department of Public Works…The trees will be replaced with shade trees that will grow much taller and eventually provide shade…

USA Today, August 19, 2019: Here’s how the National Park Service is saving D.C.’s trees from Dutch elm disease

The National Park Service is using IV-like needles to save the beloved trees lining the National Mall and surrounding parks in Washington, D.C., that are infected by Dutch elm disease. The fungal disease has spread this year to around 200 classic American elm trees on the Mall, the grassy expanse that is home to the iconic monuments of the nation’s capital. Dutch elm disease does not cause any harm to people, so visitors need not worry. Dutch elm disease is a fungoid killer that is spread by the way of bark beetles. An infected tree has immediate symptoms that include wilting suddenly and leaf colors changing from green to yellow to brown. “The fungus grows and clogs the branches that bring water into the tree until eventually, the tree dies,” said Nina Bassuk, professor at the Urban Horticulture Institute in Cornell University. The park service uses hospital-level precision when taking care of its leafy patients. Using IVs that are sanitized between trees, park service workers make a minimally invasive scission in order to treat the tree, according to Jason Gillis, park arborist for National Mall and Memorial Parks…

Venice, Florida, Herald Tribune, August 19, 2019: Venice Planning Commission will review final draft of new tree protection ordinance

The final draft of Venice’s tree protection ordinance, which would govern permits to remove plants and trim trees, will be reviewed by the Venice Planning Commission at a public hearing Tuesday. The city is facing an Oct. 1 deadline on the expiration of an interlocal agreement with Sarasota County, which currently handles tree permits in the city. A draft of the ordinance, which made its debut at a workshop, included the possibility of extra property tax relief for property owners who have Heritage and Venetian trees on their land. That has changed in the final draft, which now includes language that would award up to $250 per year to property owners to cover the cost of trimming a “Venetian Tree” on their land. Venetian Trees, according to the ordinance, are “trees of native or non-native species that have significance, desirability, or utility to the community.” Banyan trees, such as those found in Heritage Park, are not native, but would be considered Venetian Trees under the ordinance…

Insurance Journal, August 16, 2019: Outside Inspectors Find Tree Hazards That PG&E Contractors Overlooked

PG&E Corp.’s court-appointed compliance monitor concluded the utility isn’t trimming trees that pose wildfire threats in high-risk areas of California and didn’t train its contractors properly. The monitor, Mark Filip, on Wednesday wrote to U.S. District Judge William Alsup, saying he uncovered “significant, actionable findings,” including record-keeping deficiencies. Inspections are “not only revealing individual trees that are missed, including three active wildfire threats in high-risk areas, but they also reflect gaps in processes, for example, contractor training,” the monitor said. The findings risk infuriating Alsup, who has repeatedly admonished PG&E over its failures and recklessness, and strained to arrive at a punishment that will spur the company to strengthen its fire-prevention efforts. That the monitor has uncovered hazards PG&E arguably should’ve found on its own doesn’t bode well for the utility, or its new Chief Executive Officer Bill Johnson, at a Sept. 17 hearing the judge scheduled to discuss Filip’s findings. The monitor is reviewing PG&E’s wildfire-mitigation efforts, after the company’s 2016 conviction stemming from a gas-pipeline blast that killed eight people. Filip’s job is to ensure PG&E doesn’t violate the terms of its probation and to scrutinize its business practices more broadly…

NBC News, August 15, 2019: Alabama fan not making payments for poisoning rival Auburn’s landmark tree, DA says

A prosecutor wants to know why a University of Alabama fan who pleaded guilty to poisoning landmark oak trees at Auburn University isn’t making court-ordered restitution payments. Harvey Updyke was ordered to appear in court Oct. 30 to explain himself, Lee County District Attorney Brandon Hughes told WRBL-TV. Updyke served more than 70 days in jail in 2013 and was ordered to pay about $800,000 in restitution after admitting to poisoning trees at Toomer’s Corner in Auburn. Fans traditionally rolled the trees with toilet paper after a win, but the original oaks died after being doused with herbicide. Updyke has paid less than $5,000 and often misses payments, Hughes said.”We have been keeping an eye on his payments or more specifically, his non-payment, and he has made exactly two payments for a total of $200 in the past year. Because of that, we have been looking for him for close to a year, and we finally found him…”

Durham, New Hampshire, WCAX-TV, August 15, 2019: New Hampshire researchers find CO2 alters how trees grow

New research from the University of New Hampshire finds the increase in carbon dioxide emitted into the atmosphere by human activity and fossil fuels is altering the way forests grow and use water. Scientists found that trees respond to this rise in CO2 by using it to grow faster or by conserving water, depending on whether water is abundant or scarce. Scientists previously suspected the increase in atmospheric CO2 levels would cause trees to lose less water, but this new research provides a more complicated story…

Sacramento, California, KXTV, August 15, 2019: Tree branches falling in midtown, downtown Sacramento may be from the extreme heat

We are the City of Trees. It’s a name we take pride in until a tree comes crashing down and ruins your day and your car. This week, a huge branch snapped off of a tree on F street and landed on several cars. The people who snapped photos of the branches on the cars said it’s happened before with the same set of trees. A lot of neighbors on the Nextdoor App said this has happened to them too.They’re frustrated because their cars are either non-driveable or has major damage while they wait for their insurer and the City of Sacramento to review their claims.”Some [branches] can be 18 inches wide and 35 feet long and extremely heavy and can cause damage or death,” said Attorney Ed Smith, a Sacramento tree injury lawyer and founder of Smith handles several cases of tree injuries a year. “They are fairly frequent. A lot of the cases depend on how much rainfall there is, how many storms there are, conditions of drought can cause the trees to rot and age faster and consequently the branches to fall,” Smith said…

Tampa, Florida, Tribune, August 12, 2019: Her car was crushed by a falling tree. She’s getting $180,000 from the city of Clearwater

The city is about to approve a $180,000 settlement with a woman whose car was crushed by a tree on city property as she drove past it. On May 5, 2017, Milagros Medina was driving with her grandson on Martin Luther King Jr. Avenue. Suddenly, a laurel oak tree on a small plot of city-owned land near Tuskawilla Drive fell on the passing car. Medina seriously injured her neck. Her grandson, who was 8 at the time, suffered minor injuries, the Clearwater Police Department said. In December 2017, Medina sued the city, claiming the tree falling was “caused by improper inspection and maintenance.” Adam Talley, an attorney hired by Medina, said he could not comment until the case was completely resolved…

Asheville, North Carolina, Citizen Times, August 12, 2019: Blue Ridge Parkway tree lethally damaged by vandalism, in rash of such incidents

A tulip poplar that once stood tall on the Blue Ridge Parkway has fallen, the victim of a vandal whose cuts went too deep for the tree to survive. Large sheets of bark were ripped from the tree, the trunk of which measured about 2 feet in diameter. A representative of the National Park Service confirmed Aug. 9 that it had been removed because the amount of damage done to it would have been lethal. “We cut the tree down as it would soon become a dead tree hazard that we did not want to have to respond to at a later date when it created a new safety hazard,” Chief Ranger Neal Labrie said in an email. The tulip poplar was located at Rattlesnake Lodge trailhead on Ox Creek Road, in Weaverville…

London, UK, Guardian, August 12, 2019: Tree-damaging pests pose ‘devastating’ threat to 40% of US forests

About 40% of all forests across the US are at risk of being ravaged by an army of harmful pests, undermining a crucial resource in addressing the climate crisis, new research has found. Tree-damaging pests have already destroyed swathes of US woodland, with the American chestnut virtually wiped out by a fungal disease and elms blighted by Dutch elm disease. About 450 overseas pests that damage or feed on trees have been introduced to US forests due to the growth in international trade and travel. A PNAS-published study of the 15 most damaging non-native forest pests has found that they destroy so many trees that about 6m tons of carbon are expelled each year from the dying plants. This is the equivalent, researchers say, of adding an extra 4.6m cars to the roads every year in terms of the release of planet-warming gases. This situation is set to worsen, with the spread of pests due to threaten 40% of the US forest biomass. Such a scenario would “have a devastating impact on the forests”, said Songlin Fei, a forestry expert and report author at Purdue University. “It is turning forests from storers of carbon to a carbon source. The best way to control these pests it through inspections and quarantine – once they are in the system it’s hard to stop them. For many trees it’s too late…”

Wichita, Kansas, Eagle, August 12, 2019: Wichita’s tree canopy is declining by 5,000 trees a year, officials say

Wichita’s tree canopy is declining, and the city’s quality of life with it, forestry officials say. Wichita loses an average of 5,000 trees a year, Gary Farris, Wichita city arborist said. The City’s forestry department works to remove dead and diseased trees from public areas, and attempts to replace them with new trees, Farris said, but they are limited to planting an average of 1,500 to 1,800 new trees a year due to their annual budget of about $384,000. The department does have a nursery where they grow tree seedlings, but because it takes seedlings three or four years to mature enough for transplantation, they often buy older trees in bulk from vendors, said Troy Houtman, director of Park and Recreation. The main forestry concern facing the city, state and nation, is the declining urban tree canopy, Farris said. “That’s not sustainable,” Farris said. “We’re on a downward slope, and should we be concerned about that? Absolutely.” An urban tree canopy is the amount of land in urban areas that is covered by trees when viewed from above. A good tree canopy can benefit an area’s ecosystem and quality of life covering a range of issues — including clean air and water; intercepting rainfall and pollutants; lowering air temperature, heating and electricity costs, and promoting “a clean and healthy environment,” Farris said…

New York City, Daily News, August 11, 2019: Stumped! Central Park fights to uproot remains of tree that fell on mother of three who sued for $200M

The trunk is junk! The Central Park Conservancy says the base of a 75-foot elm tree that fell on a mother of three should be uprooted — but the woman’s attorney is blocking the historic greenspace from planting a new sapling. The towering tree that nearly paralyzed Anne Monoky on Aug. 15, 2017 is in two pieces — stored on Randall’s Island and in Central Park — as her $200 million suit against the city proceeds. But the elm’s jagged stump is still in the ground on Center Drive near W. 62nd St. In new court papers, attorneys for the city and a Central Park landscape manager ask a judge to allow them to dig it up and plant a new tree, overruling claims by Monoky’s attorney that the stump and tree well may need “additional testing.” “The site as it presently exists is unnatural, unattractive and therefore inconsistent with the aesthetic we work to achieve in the park,” John Dillon, the vice president of landscape management for the Central Park Conservancy said in a sworn statement. The unsightly stump is surrounded by fencing. “The fence and the open tree well also attract and retain trash and other debris. Consequently, the area requires frequent maintenance by Central Park Conservancy staff to prevent it from becoming a trash can that attracts vermin,” Dillon said…

The Drive, August 11, 2019: West Virginia Man’s Reaction to Tree Falling on a Fiat Is This Year’s Greatest Local News Clip

A West Virginia student found her Fiat 500 thoroughly destroyed early last week when a tree that was being cut down close to where it was parked fell on top of it. What just might be more noteworthy than the flattened Fiat, however, is one bystander’s recorded reaction to it all. Brought to our attention by WSAZ, it happened last Monday morning in the town of Huntington when a city crew was attempting to cut down a tree that had reportedly been giving the neighborhood grief for quite some time. Billy Tatum, who was apparently playing cards on his porch watching the crew work, told the news outlet that one of the tree’s limbs was blown off during a storm several weeks prior, hitting the windshield of a parked truck. It appears the tree was not done with vehicular destruction because when the city workers cut the thing down, it landed right on top of the Fiat city car that was parked nearby and owned by a female Marshall University student. “It sounded like a beer can getting flattened,” Tatum told a news camera. “It just was ‘crunch.’ I hate to say it, but it was kind of cool, you know? What guy doesn’t like destruction. That’s why we go to demolition derbies, but hey, the bottom line is that’s that poor girl’s new car, and she can’t get to school now…”

Edmonton, Alberta, Journal, August 11, 2019: Tree ravaging Asian longhorn beetle spotted in Edmonton

The first confirmed sighting of the Asian longhorned beetle in Edmonton happened in May after being spotted coming out of a pallet of wood in a warehouse, before getting the chance to ravage the city’s trees. The pesky bug has the potential to wreak havoc on elm and ash populations, although maple is its preferred meal. It was fortunate someone spotted the beetle so quickly, Mike Jenkins, a pest co-ordinator with the city said. “This is something we need lots of eyes out there looking for these insects,” he said. “All of the infestations in North America for this beetle, so far, have been found not by people like me … they’ve all been found by other people.” The city has approximately 298,000 publicly owned trees with green ash making up the majority followed by American elm and Blue spruce, according to the Urban Forest Management Plan. This is not the first time the beetle was spotted in Canada. The first reported case happened in 2003 in the Toronto area. Nearly 29,000 trees had to be destroyed to keep the insect from spreading. A second sighting was reported in 2013 and is currently being eradicated…

Houston, Texas, Chronicle, August 11, 2019: 1 of the missing ‘moon trees’ in New Mexico believed found

Officials believe they may have found one of the missing trees planted in New Mexico from seeds taken to the moon during the Apollo 14 mission. KOAT-TV reports former New Mexico first lady Clara Apodaca and a naturalist identified last week a tree they believe to be one of those planted in the state four decades ago. Apodaca and the naturalist say a Douglas Fir located in a grassy area north of the state capitol in Santa Fe is a moon tree. Apodaca helped plant it. The discovery comes after the Albuquerque station reported that officials where the trees were planted decades ago said they have lost track of the trees. Moon trees were grown from 500 seeds taken into orbit around the moon by former U.S. Forest Service smokejumper Stuart Roosa during the 1971 mission…

North Andover, Massachusetts, Eagle Tribune, August 8, 2019: Forestry officials on alert as tree disease makes a move

Some of the state’s trees may be in danger of disease. New Hampshire forestry officials are concerned about a new oak tree-killing disease that may be making its way to the Granite State and the public is being asked to watch for danger signs. Oak Wilt disease has been in the Great Lakes region for decades but recent outbreaks in Albany and Long Island, New York have New Hampshire officials on alert. Red oaks — which have pointy-tipped leaves — are most susceptible to the disease and can die within a few weeks to six months of being infected. White oaks — which can be identified by round-tipped leaves — are less vulnerable. Oak Wilt is a fungus that affects the vascular system of most oak species, stopping the movement of fluids throughout the infected tree, which then quickly dies of dehydration. The disease is spread over long distances through the transportation of infected logs and firewood. Over short distances, it is spread through root grafting as well as by beetles that ingest sap from infected trees and then travel to other trees. Once an oak tree is infected with the disease, it cannot be saved. It is possible, however, to control and eradicate the disease’s spread to other trees, making it critical to find outbreaks early…

Midland, Texas, Daily News, August 9, 2019: Some tree issues caused by our blunders

When we see plants struggling to survive our thoughts often go to what insect or disease is causing the problem. We then proceed to the local garden center to find out what would be good to spray on our plants to rid them of their insects and disease encounters. Our garden centers pesticide aisle becomes a drug store for our ailing plants. But what happens if the health of our plants isn’t caused by an insect or disease but by our own blunders. I have discovered that most of the time unhealthy trees are the result of human activities. It is just like our bad health is often caused by not washing our hands, eating the wrong foods, actually inhaling smoke or walking in front of traffic. All these activities are detrimental to your health. There are activities we do that stress out our trees and cause them poor health. Since these health complications are not caused by a biological agent the term for these problems is abiotic diseases. Because there is no insect or disease present abiotic diseases can be difficult to determine. Also the cause of an abiotic disease could have happened many years previous. I have seen trees die because of a lightning strike 12 years earlier. Because it may take many years to show symptoms of abiotic diseases, many times it is too late to save the tree from dying. This makes it more important to be cautious and prevent abiotic diseases…

Philadelphia, Pennsylvania, Tribune, August 8, 2019: Not in my sidewalk: Debunking Philly tree myths

Trees aren’t generally controversial. They usually look nice, they provide shade and improve the air and water quality. Scientists say they even make people happier. But when it comes to planting a tree on the street, many Philadelphians say — nuh uh, not in my sidewalk. Angel Santiago is one of them. He loves trees, he says. Without the leafy tree next to his Kensington row home, he would probably need to run his AC all day. Yet, plant a sapling in front of his house? Nope. “It would be beautiful,“ Santiago said, until “the tree is fully grown, and then the roots are growing out, and the concrete is lifted up. Who covers that charge, who takes on that expense?” He describes the conundrum facing urban tree owners in existential terms. “But then again, you can’t cut the tree because it belongs to the city. So it’s a catch-22,” he said…

Providence, Rhode Island, Journal, August 8, 2019: Tips for planting a tree properly

First, and most important, I check the position of the trunk of the tree in the pot. In the wild you will notice that trees bulge out at the base, creating what is termed the “trunk flare.” This must be visible above ground after planting. I recently planted a couple of blue spruce trees on a nice cloudy day, and want to share with you what I did. First, and most important, I checked the position of the trunk of the tree in the pot. In the wild you will notice that trees bulge out at the base, creating what is termed the “trunk flare.” This must be visible above ground after planting. Too often, trees purchased at a nursery have the trunk flare covered with soil in the pot. Little seedlings are plucked from the ground and popped into pots without paying attention to the trunk flare. But, if the trunk flare and the bottom of the trunk itself is buried, the tree will not thrive or survive. Why is this so important? Because unlike the roots, the trunk is not resistant to soil microorganisms that cause rot. Within six to 10 years — just when a tree should be well established — the vital cambium layer in the trunk rots and the tree sickens and slowly dies. If you planted a tree in the past and wonder if you did it right, look at the top of the tree. Trees suffering from trunk flare rot will have few leaves at the top of the tree — what is called tip dieback. Deciduous trees will turn color well before others of the same species in the fall…

Albuquerque, New Mexico, Journal, August 7, 2019: Tree ‘doctor’ charged after trying save Plaza Sena cottonwood

A man who was arrested after he tried to block the felling of an old tree in downtown Santa Fe denies that he ever hit anyone during the incident. James Thomas, who goes by Steve Thomas, was charged Tuesday with one count each of trespassing and battery for allegedly disrupting work to bring down the huge cottonwood known as “Willy” that shaded the historic Sena Plaza courtyard for decades. But Thomas denies hitting anyone, and a police report says the alleged victim didn’t have any marks to indicate he was hit. “I’ve never had any charge of anyone being assaulted by me,” Thomas told the Journal Wednesday. “Nobody was ever scratched.” A Santa Fe Police report says officers responded to Sena Plaza after a dispatcher said a man was pulling on ropes tied to workers cutting down the tree and had also tied himself to the tree. An officer got to the scene and detained Thomas. Thomas owns a tree-saving business, Tree Doctor 911 based in Albuquerque, and claims the tree just needed maintenance to keep branches from falling off and potentially hurting patrons of La Casa Sena restaurant and other businesses on the courtyard instead of having to be cut down…

NPR, August 7, 2019: A Mysterious Disease Is Killing Majestic Beech Trees In American Forests

A mysterious disease is killing one of the nation’s most majestic trees. The beech is an important anchor species of mature forests, but scientists suspect a microscopic worm is attacking them.
ARI SHAPIRO, HOST: A mysterious disease is killing one of the most majestic trees in American forests – the beech. Known for its smooth, gray bark, the beech is an important anchor species. No one knows exactly what is causing beech leaf disease. A team of tree scientists is narrowing down the list of possible culprits. From member station WKSU, Jeff St. Clair reports on a botanical whodunit.
JEFF ST CLAIR, BYLINE: It’s a long slog to a bluff overlooking the Grand River in Lake County, Ohio. It was here in 2012 that Lake Metroparks biologist John Pogacnik first noticed something was awry.
JOHN POGACNIK: It just looked different. You could tell right away something was up.
ST CLAIR: What he saw was sunlight.
POGACNIK: Beech are usually a tree that create a lot of shade, and these are no longer doing that.
ST CLAIR: A slight breeze shakes the thinning canopy overhead.
POGACNIK: This tree right here is a really good example. You could see it’s probably 20 foot tall, and there’s probably 50 leaves on it…

Durango, Colorado, Herald, August 7, 2019: Trees brought down in avalanches can be collected for free

After a winter that brought down an onslaught of avalanches, the Bureau of Land Management has come up with a unique way to get it all cleaned up: free firewood collection permits. “It’s a win-win for both us and the public,” said Brant Porter, spokesmen for the Bureau of Land Management. The BLM recently announced free permits available for cutting and collecting firewood from avalanche slide paths on public lands along the Alpine Loop Backcountry Scenic Byway in Hinsdale and San Juan counties. “The Alpine Loop sustained historic levels of avalanches over the course of the winter, and as a part of that, those avalanches have left all sorts of wood and debris and rocks,” Porter said. “This effort will help us get some of that debris out of the area.” This winter, nearly 1,000 avalanches were reported to the Colorado Avalanche Information Center in the San Juan Mountains. And that’s just slides that were observed and reported…

Detroit, Michigan, WDIV-TV, August 7, 2019: How to check your trees for invasive ‘drilling beetle’ in Michigan

Imagine what the summer heat would feel like without the cooling shade of your backyard trees. If you appreciate your trees, August is the time to show them how much you care. Take a few minutes to check your trees for Asian longhorned beetles and the damage their larvae leave behind. “August is Tree Check Month – the best time to spot the round, drill-like holes made by the Asian longhorned beetle,” said Jeff Zimmer, acting director of the Michigan Department of Agriculture and Rural Development’s Pesticide and Plant Pest Management Division. “These destructive pests have invaded areas of Ohio, New York and Massachusetts, causing the removal of over 180,000 trees. In order to prevent this in Michigan, we are asking everyone to look for and report signs of the Asian longhorned beetle.” The Asian longhorned beetle is on Michigan’s invasive species watch list because it poses an immediate or potential threat to the state’s economy, environment or human health…


Case of the Day – Thursday, August 22, 2019


duh160901Sad to say, stupidity abounds.

Most of us know – thanks to our mothers – that we should come in out of the rain. One dark and stormy night, Katherine Grigg forgot that life lesson.

Kate was driving on Mount Pleasant Road, in rolling farmland at the foot of the California Sierra Madres. Normally an enjoyable drive, Mount Pleasant Road had become anything but pleasant in the driving rain. She encountered a large tree fallen from Dennis Taylor’s yard across the road. Naturally, she got out of her car. Who wouldn’t? Standing in the wind and sheets of rain, she and another weather-challenged motorist, David Eggert, determined the tree was too big for them to move.

As their two-party Mensa meeting continued, a second tree fell, hitting both Grigg and Eggert. This is where you perform a face-slap and say, “D’oh!” You might think these two were Darwin award contenders, but this was California. So they became plaintiffs instead.

actofgod160901At least Grigg did. The court reports that when she asked Eggert whether they should sue Taylor. Eggert replied, “Why? … this was what I call an act of God.”

Maybe the tree knocked a little sense into him. It had no salubrious effect on Kate Grigg, however. She sued, claiming that Dennis Taylor should have removed the danger trees, and his “conscious choice… to neglect his duties which are prescribed to protect the public, is despicable conduct which is the basis for punitive damages.”

It turned out that Eggert was right. It was an act of God. What’s more, despite the fact that Dennis Taylor had reason to know that this act of God was likely to happen, he nevertheless was found to have done enough – not much but enough – to discharge his duty to the public. Dennis was found not to be liable.

D’oh, Kate.

Grigg v. Taylor, Case No. C050070 (Superior Ct. Cal. June 28, 2006) 2006 Cal. App. Unpub. LEXIS 5661, 2006 WL 1756843. Plaintiff Katherine Grigg encountered a large tree blocking her way one stormy night on Mount Pleasant Road in Lincoln. The tree had fallen from Dennis Taylor’s property, which was adjacent to the road. Another motorist traveling on the road, David Eggert, parked behind Grigg’s car. Grigg and Eggert got out of their vehicles and determined the tree was too big for them to move. As Eggert was thinking of an alternate route they could take, a second tree fell, striking both Grigg and Eggert.

The tree that had fallen on Grigg and Eggert was one-half of a “V” shaped double-trunk tree. The tree’s other trunk had fallen a few weeks before the accident. When the first trunk fell, Taylor inspected the tree and believed it was not going to fall because several other double-trunk trees on his property were still standing after one trunk had fallen. He decided not to take care of the remaining trunk right away “[b]ecause there w[ere] a series of storms” and he “didn’t feel like getting wet.” Nevertheless, once a week, Dennis checked his property for danger trees. Placer County, California, had no law, ordinance, or regulation requiring landowners to prune their trees.

Grigg sued Taylor for negligence and for maintaining a nuisance by failing to maintain the trees on his property. She wanted compensatory and punitive damages.

The court granted Taylor’s motion for nonsuit regarding punitive damages, and the jury found for Taylor on the remaining claims. Grigg appealed.

daffyduck160901Held: Dennis Taylor was not liable to Kate. On appeal, she complained there was insufficient evidence to support the jury’s verdict that Taylor was not negligent and had not created a nuisance. The Court of Appeals disagreed, citing evidence Taylor had inspected his trees weekly, that he had several double-trunked trees on his property that had lost one trunk but remained safe, and that his neighbor — who had lost a tree in the storm himself — hadn’t seen any hazardous-looking trees on Taylor’s property.

Grigg’s complaint that Taylor had created a nuisance failed on the same evidence. Without Taylor having any liability to Grigg, the complaint that he should have been ordered to pay punitive damages was moot. The Court said, “the jury found Taylor was not negligent in maintaining his property and did not create a nuisance. There was substantial evidence to support those verdicts. Given the jury’s verdicts, any error in granting the nonsuit on Grigg’s theory that Taylor’s conduct was ‘despicable’ was harmless.

– Tom Root

Case of the Day – Wednesday, August 21, 2019


A pipeline runs through it ... but how wide is the easement?

A pipeline runs through it … but how wide is the easement?

It’s a common enough problem when a deal gets cut by people who later leave the company, retire, pass on, whatever. Over the years newer, younger Turks come along, who redefine the deal to suit the newer aims and needs of the company.

So it was with some gas line easements in the Mohican forest area of eastern Ohio. We’ve discussed previously why a careful description of the bounds of an easement is such a good idea. Here’s another example. When the easements for these three gas pipelines were written, they didn’t contain any description of the width of the right-of-way being provided to the easement holder. Over the first 40 years or so, the gas company kept the right-of-way cleared to 10 or 15 feet. But in 2003, the company suddenly decided it required 20 to 25 feet, and it began cutting accordingly. Even that wasn’t enough, and so in 2006, the gas company sued a church camp and some other recreational landowners for a declaratory ruling that the easement was really 50 feet wide.

The Federal district court denied summary judgment to the gas company. The gas company’s argument, reduced to its essence, was that it must obey new, stiffer federal laws and regulations in the wake of 9/11, and those require a 50-foot wide easement. The court wasn’t buying it. Finding no language to help it in the easements themselves, the court looked at other factors. It seemed pretty clear that nothing in the way the gas company had operated for 40 years or so supported a finding that the parties understood all along that they were dealing with a 50-foot wide easement. The gas company’s arguments that its operations required 50 feet failed — the court said the best it could justify based on the evidence was 29 feet wide. And the court was troubled that the gas company had met with the church in 1965, when the church was buying the campground, and told church representatives that it was looking at a 10-15 foot right-of-way. Thirty-eight years later, it told the church it needed a 20-25 foot wide easement.

Sometimes, you have to dance with the girl who brung ya …

Sometimes the little guy really does win ...

Sometimes the little guy really does win …

None of this meant that after a full trial, the court might not feel differently. But for moment, it was David 1, Goliath 0. And – reading the handwriting on the wall – Columbia Gas Transmission Corp. ended the litigation several months later.

Columbia Gas Transmission Corp. v. First Congregational Church, Case No. 1:07-cv-00661, Dkt. 74 (N.D. Ohio, Dec. 11, 2007). Columbia Gas owned three gas pipelines that traverse the Church’s camping retreat property. Two of the easements had been granted by the Muskingum Conservancy District, the Church’s predecessor-in-interest, providing the right to ingress and egress, the right to lay, maintain, operate, repair, replace and remove the pipe, provided the pipe would be buried so as not to interfere with the cultivation of the land. A second easement had been granted for the sole purpose of drilling for oil and gas and to use the premises for pipelines, water lines, pumps, tanks, structures and stations necessary or convenient in connection with drilling, provided that the pipelines be buried and the easement holder pay for all damages to growing crops and trees.

When the Church bought the campground in 1965, gas company representatives showed the clergymen the clearings for the pipelines, which were between 10 and 15 feet wide. In 2003, the gas company expanded its cleared right-of-way to 20 to 25 feet. Three years later, the gas company told a church member it owned a 50-foot right of way, and asserted that the Department of Homeland Security required this for gas pipelines. The gas company cleared all the trees within 50 feet of one of the pipelines without informing the church of its intention. The gas company dumped brush piles in excess of 55 feet from the centerline of of the pipeline, needlessly changing the topography of the area. Shortly thereafter, the gas company sued the church for injunctive relief that its easement entitled it to clear a 50-foot right-of-way on a second pipeline. The church wasn’t alone: several other landowners were sued as well, and the court consolidated all of the cases. The Church filed a counterclaim seeking declaratory judgments and injunctive relief that Columbia Gas was not entitled to a 50-foot right-of-way in its easements for its pipelines, and sought damages from the previous tree clearing along the one pipeline. Columbia Gas moved for summary judgment.

Held: The gas company’s motion was denied. Under Ohio law, the granting of an easement includes a grant of all things necessary for the use and enjoyment of the easement. Where the complete terms of the easement are not expressed in the instrument granting it, the extent and limitation of the easement are ascertained from the language of the grant, from the circumstances surrounding the transaction, and by what is reasonably necessary and convenient to serve the purpose for which the easement was granted. The holder of an easement may not increase the burden upon the servient estate by engaging in a new or additional use of the easement. However, without specific language to the contrary, an easement holder is entitled to vary the mode of enjoyment and use of the easement by availing himself of modern inventions if by doing so he can more freely exercise the purpose for which the grant was made.

Easements should be very specific - because the people who wrote them won't always be around.

Easements should be very specific – because the people who wrote them won’t always be around.

Here, the easement agreements were ambiguous at best, and provided no basis for determining what the parties had intended. As to what is reasonable, it is true that the gas company has a duty to maintain its storage pipelines in accordance with federal law. It has a policy of not allowing any growth more than five feet tall within the right-of-way. However, its evidence of use of the easement and of hazard to pipelines from tree roots supports a clearing of only about 29 feet at most. Furthermore, Ohio courts have also looked to use and acquiescence and have refused to extend easements to fifty feet where the gas company has allowed mature trees growing within fifty feet of the pipeline.

Here, even if the regulations suggested a fifty-foot wide clearing were necessary, the Court said, the parties never contemplated such a right-of-way at the time of the granting of the easement. The gas company argued that 50 feet is necessary for it to conduct aerial patrol. The Court said presumed that the parties contemplated normal developmental changes in the use of the easement, nothing in the evidence ever suggested that anyone contemplated a 50-foot right-of-way.

The parties’ experts’ discussions of the relevant safety issues is only one issue among many that the Court was willing to consider in determining the dimensions and scope of the easement. The Court also considered the language of the grants and the circumstances surrounding the transactions. Neither of those entitled the gas company to a judgment as a matter of law.

Finally, the Church argued that the Plaintiff should be estopped from arguing a larger easement than 25 feet is reasonably necessary and convenient, because it not only used a small right-of-way in the past, but its representative affirmatively showed the Church’s representative the clearings of the trees so that the Church would know what to expect — showing him clearings of 10 feet, occasionally increasing to 15 feet in width. Further, in 2003, the gas company told a member of the Church it needed 25 feet, not 50. The Court said these conversations and interactions, coupled with the gas company’s failure to remove mature trees until now, might demonstrate enough evidence of use and acquiescence to estop the gas company from arguing for 50 feet.

– Tom Root


Case of the Day – Tuesday, August 20, 2019


Ich bin in Berliner? The denizens of the western half of the city were irate over the Wall. Just a bit.

Ich bin ein Berliner? The denizens of the western half of the city were irate over the Wall. Just a bit.

California homeowner Shelly Albert lived next to grumpy Henri Baccouche. How do we know he was grumpy? You’d be grumpy, too, if your neighbor built a fence over the parties’ common driveway easement, enclosing a grove of nine mature olive trees that stood on your land. Imagine how the Berliners felt when they awakened on the morning of August 13, 1961, to find that their neighbors on the east side of town had built a fence enclosing the Brandenburg Gate, Karl Marx Strasse, and some of the nicer parts of town. Or how the Mexicans will feel when they awaken from a siesta to find a big wall between them and Texas, and a rock with the bill wrapped around it lying in their front lawn? That’s sort of how Mr. Baccouche felt.

To make matters worse, Henri fumed, the nine olive trees had been badly damaged by Shelly’s contractors. The workers’ “actions in hacking, cutting and pruning the trees reduced them to a pitiable state.” The contractors had damaged other trees as well, thereby diminishing “the aesthetic and monetary value of those trees… ” Henri demanded treble damages under Civil Code §§ 733 and 3346, but later expanded his claims to include the alternative claim that Shelly and her people were negligent.

Shelly didn’t bat an eye. She had an insurance policy from Mid-Century Insurance that covered negligence like this. When Henri served his civil action on Shelly, she forwarded a copy to the insurance company. She explained to her insurer that she didn’t believe that any of her fencing encompassed Mr. Baccouche’s property. Plus, she said, the trees that her workers trimmed were “boundary trees,” straddling the property line between the properties. Plus, she explained, she has been notified by the Los Angeles Fire Department to clear the area where the trees were located, as it was within 200 feet of her residence. She had trimmed these same trees year after year, and Mr. Baccouche never told her not to, or that the trees belonged to him. Shelly told her agent that she believed in good faith that the trees were hers, and that she was required to trim them.

If she didn't work for Disney (and if she weren't a cartoon character), Elsa could be a field rep for Mid-Century.

If she didn’t work for Disney (and if she weren’t a cartoon character), Elsa could be a field rep for Mid-Century. Except their hearts are much colder…

Ah, Shelly … your Pollyannish optimism is amusing! But not to the cold-hearted field claims manager, who denied your claim. The insurance company concluded that the claim was barred by the exemption for intentional acts set out in the policy. Insurance policies typically cover losses from negligent acts (you accidentally run over the neighbor’s cat) but not intentional acts (you kick the neighbor’s cat into the next county).

cat150724However, maybe Henri left her an out. In his amended complaint, he claimed that if Shelly didn’t trespass and hack up his trees on purpose, she did so negligently. Shelly reported the amended claims to her insurance carrier. She argued that because she believed that the trees were owned by both parties, they “constitute[] property covered under my policy. Accordingly, [defendant] has an obligation under my policy of insurance to tender a defense on my behalf.”

The insurer did not budge. The company contended that because Shelly admitted she purposefully erected the fence, and had intentionally cut Mr. Baccouche’s trees, the conduct giving rise to Henri’s claims was intentional, and thus not an accident or occurrence within the meaning of the insurance policy. The insurer said its coverage determination had considered the possibility that the trees were solely owned by Shelly, solely by Henri, or were jointly owned. The carrier determined that who owned the trees was irrelevant to the coverage determination because the damage occurred from nonaccidental conduct.

In a response to the insurer’s July letter, Shelly took issue with some minor factual assertions in the letter, but did not otherwise claim that the damage to the trees had arisen from any sort of accident within the meaning of the policy.

In a reply, the insurer pointed out that Shelly had not provided any facts addressing defendant’s position that the incident was not an “accident” or “occurrence” within the meaning of the policy.

unforeseen150724Shelly sued the insurance company. The trial court concluded that she failed to show “a potential for coverage,” which is what she had to prove in order to get Mid-Century to pay for her legal defense. The judge decided that the Shelly’s conduct alleged in Henri’s lawsuit was nonaccidental and intentional. To the extent the amended complaint alleged “negligent” conduct, Shelly had admitted to the carrier what she had done, and Shelly’s argument that she somehow “negligently supervised” the workers was not supported by Henri’s claims.

The Court of Appeals agreed with the trial court. An insurer owes its insured a broad duty to defend against claims creating a potential for indemnity. This duty to defend is broader than the duty to indemnify, and may exist even if there is doubt about coverage. However, the insurer has no duty to defend where the potential for liability is tenuous and farfetched. The ultimate question is whether the facts alleged in the lawsuit against the insured fairly apprise the insurer that the suit is upon a covered claim.

Shelly’s policy covered property damage resulting from an occurrence, and the policy defines an occurrence as an accident. An intentional act is not an ‘accident’ within the plain meaning of the word. The term “accident” refers to the nature of an insured’s conduct, and not to the unintended consequences of the conduct. An accident does not happen when a insured performs a deliberate act, unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.

Shelly intended the acts resulting in the damage to Henri’s trees. Her conduct did not become an accident just because she didn’t know the trees belonged to Henri. Her intent was irrelevant; the act was not. Shelly told her workers to trim the trees that got trimmed. Her mistake was in thinking the trees were hers. Her insurance didn’t cover that.

There’s a lesson here for the Henris of the world, too. You lawyer can sometimes get the bit in his or her teeth, writing enraged and cutting complaints against defendants. In this case, it would have been a lot better for Henri’s lawyer to have accused Shelly of gross negligence, or even recklessness. That way, the insurer gets involved. Insurance companies tend to be economic, rational creatures, who are willing to settle when settlement is reasonable, and always have the ability to write a check that’s good.

Albert v. Mid-Century Ins. Co., 236 Cal.App.4th 1281 (California Court of Appeals, Second District, Eighth Division, April 28, 2015). Plaintiff Shelly Albert bought a homeowners insurance policy from Mid-Century in January 2008. The policy was in force in January 2011, when Albert was sued by her neighbor, Henri Baccouche, for damage she caused to his property when she erected an encroaching fence, and pruned nine of Mr. Baccouche’s mature olive trees. Albert asked Mid-Century to defend the suit, and when the insurance company refused, she sued it.

The insuring clause of plaintiff’s policy stated: “We will pay those damages which an insured becomes legally obligated to pay because of … property damage resulting from an occurrence. At our expense and with attorneys of our choice, we will defend an insured against any suit seeking damages covered under [this section] . . . We do not have any duty to defend or settle any suit involving actual, alleged, threatened or declared . . . property damage not covered under this liability insurance.” The policy defines an “occurrence” as “an accident, including exposure to conditions, which occurs during the policy period, and which results in . . . property damage . . . during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence.” The policy also set forth a number of exclusions, including one for “intentional acts,” which the policy defined as “property damage . . . which is caused by, arises out of or is the result of an intentional act by or at the direction of the insured.” By way of example this includes but is not limited to any intentional act or intentional failure to act by an insured, whether a criminal act or otherwise, where resulting injury or damage would be objectively expected to a high degree of likelihood, even if not subjectively intended or expected.”

denied150724Mr. Baccouche’s complaint alleged that he and Albert, his neighbor, owned adjacent parcels of land which were subject to a reciprocal roadway easement providing both parcels access to the main public road. He said Albert erected a permanent fence over a portion of the roadway easement, which also intruded onto his parcel. The fence enclosed a 644 square foot portion of Mr. Baccouche’s land, which included a grove of nine mature olive trees. He claimed Albert and her contractors “willfully and maliciously damaged [the] nine mature olive trees . . . by severely hacking cutting and pruning those trees so as to greatly reduce their canopies, foliage, limbs, etc., without permission.” The complaint sought treble damages under Civil Code §§ 733 and 3346.

Mr. Baccouche later amended his complaint, alleging a cause of action for negligent damage to his trees.

The insurance company investigated the claims. Albert asserted that the fence she erected was within her property line, and said she not believe any of her fencing encompassed Baccouche’s property. As to the trees at issue in Mr. Baccouche’s complaint, Albert asserted that the trees were “boundary trees” and that the trunks of the trees essentially straddled the property line between Mr. Baccouche’s and her properties. She told the insurance company that since she purchased her lot, she has been notified by the Los Angeles Fire Department to clear the area where the trees were located, as it was within 200 feet of her residence. She trimmed these same trees year after year, without complaint from. Baccouche.

The carrier denied coverage, concluding that the conduct complained of by Baccouche was intentional conduct by Albert. Albert argued that because she had the trees trimmed in the good faith belief she owned them, “ . . . no intentional tort will lie.” Albert then sent Mid-Century a “demand for tender of defense,” which the carrier denied. Albert took issue with the insurer’s position, but did not otherwise claim that the damage to the trees had arisen from any sort of accident within the meaning of the policy.

Albert then sued Mid-Century. The trial court granted the carrier’s motion to deny coverage. The court ruled that Albert had failed to demonstrate a potential for coverage, as the conduct at issue in Baccouche’s lawsuit was nonaccidental, intentional conduct. The trial court also concluded that to the extent Mr. Baccouche’s complaint alleged “negligent” conduct by plaintiff, there was no evidence whatsoever that the trees were injured in some accident, “e.g. by inadvertently striking a tree with a motor vehicle.” The trial court also concluded that Mr. Baccouche’s pleadings did not support plaintiff’s “negligent supervision” theory.

Albert appealed.

If you intentionally cut down one of your own trees, but it unintentionally falls on the house, you're still covered. We're pretty sure. But read the fine print.

If you intentionally cut down one of your own trees, but it unintentionally falls on the house, you’re still covered. We’re pretty sure. But read the fine print – preferably before you fire up your chainsaw.

Held: Mid-Century was not obligated to defend Albert. The Court observed that an insurer owes its insured a broad duty to defend against claims creating a potential for indemnity. While the duty to defend is broader than the duty to indemnify, and may exist even if there is doubt about coverage, the proper focus is on the facts alleged in the complaint, rather than the alleged theories for recovery. The ultimate question is whether the facts alleged ‘fairly apprise’ the insurer that the suit is upon a covered claim.”

Here, the policy covers property damage resulting from an occurrence, and the policy defines an occurrence as an accident. Under California law, the word ‘accident’ in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured. The Ciourt held that an intentional act is not an ‘accident’ within the plain meaning of the word.” It said, rather that in the context of liability insurance, an accident is “an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.”

“Accident” refers to the nature of the insured’s conduct, and not to its unintended consequences. It is not an “accident” when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage. When an insured intends the acts resulting in the injury or damage, it is not an accident “merely because the insured did not intend to cause injury. The insured’s subjective intent is irrelevant.”

Nevertheless, the Court said, coverage is not always precluded when the insured’s intentional acts result in injury or damage. An accident may exist “when any aspect in the causal series of events leading to the injury or damage was unintended by the insured and a matter of fortuity.” When a driver intentionally speeds and, as a result, negligently hits another car, the speeding would be an intentional act. However, the act directly responsible for the injury – hitting the other car – was not intended by the driver and was fortuitous. In that case, the occurrence resulting in injury would be deemed an accident. On the other hand, where the driver was speeding and deliberately hit the other car, the act directly responsible for the injury – hitting the other car – would be intentional and any resulting injury would be directly caused by the driver’s intentional act.”

Albert argued that although she deliberately hired a contractor to trim the trees, the excessive cutting was not an intended consequence, and should be deemed an accident. However, it is completely irrelevant that Albert did not intend to damage the trees, because she intended for them to be pruned. Moreover, it is undisputed that the contractor intended to cut the trees, and absolutely no facts exist – in the complaint or otherwise – indicating that some unforeseen accident (such as a slip of the chainsaw) caused the damage to the trees. In fact, it was always Albert’s position that the trees had not been damaged or pruned excessively (and therefore were not subject to an accident), and that they had been cut in accordance to the City’s brush clearance ordinance. An insured may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in which the third party claimant might amend its complaint at some future date.”

Also, the Court said, no facts supported Albert’s theory that her negligent supervision of the contractors brings the complaint within the terms of the policy. Negligent supervision requires an employer supervising an employee; who is incompetent or unfit; the employer had reason to believe undue risk of harm would exist because of the employment; and the harm occurs. There are simply no facts, in the complaint or otherwise, supporting the elements of this claim.

Under any view of the facts, the Court ruled, the trimming of the trees was no accident. Albert failed to carry her burden to show any of Mr. Baccouche’s claims may fall within the scope of the policy.

– Tom Root


Case of the Day – Monday, August 19, 2019


poke160829Every adult can recite the many and varied warnings and admonitions we heard from parents when we were kids. Among them were “you’ll catch your death of cold,” “clean up your plate, because there are starving kids in India/China/Africa.” We imagine Momma Epstein telling a young Jeffrey to “keep your hands to yourself.” Good advice that can save you headaches later. 

And, of course, there’s that Christmas Story classic, “you’ll shoot your eye out.”

Today’s case is about Peter Robles, a kid who didn’t shoot his eye, but did poke it out.. Petey, an impetuous 3-year old, ran straight into a very sharp palm frond while playing in the Severyn family’s yard next door to his house.

We remember when the neighbor kid climbed our magnolia tree once while it was raining. (We, or maybe our mother, had enough sense that we were kept indoors, out of the rain). The neighbor kid lost his footing on a slippery bough, fell, and whacked his chin on the branch as he went past headed for the ground. Even then, the law of gravity was in force.

obey160829The neighbor boy showed up the next day with stitches, and haughtily told us that his parents were going to sue our parents. Not really understanding the law, we had visions of losing out house, car and toys, and being reduced to panhandling on the village square. Had we really appreciated the law, we would not have been scared. We would have been petrified.

In today’s case, the toddler’s parents really did sue, complaining that the palm trees were a “hidden peril” in the neighbor’s property, and that he had thus breached his duty to little Peter. The Robles said the little boy was an “invited guest,” and thus the Severyns had a duty to warn the kid about the hidden dangers of sharp palm fronds.

The Court of Appeals disagreed, patiently explaining to a lawyer who may weak have slept through the first year of law school  the how the status of the person on the landowner’s property determines the duty of care the owner owes. The Court quite reasonably found that the palm trees were anything but “hidden.” Even if the Severyns had been sloppy in trimming the palm tree – something that had not been established – the negligent trimming did not make the trees appear deceptively safe. Even Petey’s dad had told the boy to be careful when playing at the Severyns (as if we didn’t have that warning go in one ear and out the other countless times during our youth).

oneear160829Sure the boy was only 3 years old, the Court said, but even taking his tender age into account, the Severyns did not owe him a duty greater than the one they discharged toward him.

We have railed about it before, the American perception that once a victim has been injured, a jury is duty bound to look around the courtroom for someone who should be made to pay for it. There’s no discounting the sadness of seeing someone accidentally killed or maimed for life, but as President Jimmy Carter has pointed out, life is often unfair

Robles v. Severyn, 504 P.2d 1284, 19 Ariz. App. 61 (Ct.App. Ariz. 1973). Peter Robles, a 3-½ year old, was playing at a neighbor’s house with permission, when he somehow impaled his left eye with a sharp palm frond. No one saw the accident, but the boys had been playing among the trees when it happened. The palms were in a row alongside a fence at the border of the Severyns’ property, with short, squat trunks and narrow, long fan leaves.

Peter’s parents sued the Severyns to recover for injuries Peter suffered as a result of a “sharp palm frond penetrating his left eye” while he was playing on the Severyn property as an “invited guest.” The complaint alleged that the palm trees “had a misleading hidden and dangerous defect to a child of tender years, which danger defendants had specific knowledge of,” and that it “constituted a hidden trap to children playing in the area.”

The Severyns got the case thrown out by the trial court on summary judgment. The single question on appeal was whether the trial court erred in doing so.

Held: Dismissal was proper. A landowner’s duty to a person on his property is determined by that person’s status. The evidence shows that young Peter was a social guest. In Arizona, a social guest is not an invitee but merely a licensee despite the fact that he is on the premises pursuant to an invitation from one in possession. The general rule is that one who goes upon another’s property as a gratuitous licensee must take it in the condition he finds it and must assume all risks incidental to such condition. This rule applies to children as well as adults, and to natural as well as artificial conditions. The owners of the premises owe no duty to a guest other than to refrain from knowingly letting him or her run upon a hidden peril, or wantonly or willfully causing the guest harm. However, the rule is that a host who knows of a concealed danger upon the premises is guilty of negligence if he permits the guest, unwarned of the peril, to come into contact with that danger, and he may be held liable to the guest for an injury thus sustained.

Palm trees can provide the unsuspecting with an unpleasant time.

Palm trees can provide the unsuspecting with an unpleasant time.

The Court held that the “hidden peril” doctrine did not apply. The trees were neither hidden nor did they have a deceptive quality. The accident occurred during daylight hours and the trees were clearly visible. Peter had been cautioned by his father before to be careful playing. The Court said that even if it assumed that the Severyns were negligent in failing to trim the branches, such a failure did not give the trees a deceptive or innocent appearance. If a dangerous condition existed, the Court held, it was an obvious one, and the Severyns thus had no duty to warn. The Robles stressed Peter’s age, arguing that a 3-year old child could not have realized that these trees were dangerous. While the Court admitted that was true, it did not believe that “all circumstances giving rise to a possible danger to a child create a factual question as to whether a ‘hidden danger’ exists. One would have to ‘childproof’ his property if such were the case.”

The Court ruled that while the care to be taken by the owner or occupant must be commensurate with the danger to, and with the immaturity and inexperience of, the child to be protected, any requirement in this respect must not be so onerous as to make the ownership or possession of property burdensome instead of enjoyable. The use of property should not be burdened with the need to take precautions against every conceivable danger to which an irrepressible spirit of adventure may lead a child. There is no duty to take precautions where to do so would be impracticable, unreasonable, or intolerable.

– Tom Root


Case of the Day – Friday, August 16, 2019


fence150722We continue our tour through the House of Bad Neighbor Horrors today (see our post from Tuesday) with a look at neighbors Paula A. Luckring and Christopher Blair.

An old legal adage holds that “a bad settlement is better than a good lawsuit.” Paula sued her neighbor, arguing that branches from his trees overhung her property, and that they were doing all the kinds of things trees do – you know, dropping twigs and leaves, leaking sap, growing roots, just normal tree stuff. Paula insisted that she was entitled to something north of $13,000 because the trees were “trespassing” on her property, making claims that sounded a lot like her lawyer had read Fancher v. Fagella.

Neighbor Chris Blair counterclaimed, pointing out that if Paula wanted to really get technical, her deck – which she claimed was being damaged by his trees – was built partly on his property, and it should be removed.

The case looked like the trial would be the Saturday night main event, but alas … before trial, the parties settled. There’s nothing wrong with that. Civil actions are just a formalized means of settling disputes, a little more complex and fact-driven than “rock, paper, scissors,” but often, it seems, just as random. When the parties find a means short of a full-blown trial to resolve things, time and money are saved, and people are able to get on with their lives.

That must be what Chris Blair thought, because he settled the case with Paula Luckring before trial. He agreed to give Paula title to an 11-foot strip of his own land and to build, at his own expense, a fence marking the new boundary line between their properties.

appease150722We have to hand it to Chris. He apparently was a Bible scholar, and remembered Matthew 5:39 – 40: But I say to you, do not resist an evil person; but whoever slaps you on your right cheek, turn the other to him also. If anyone wants to sue you and take your shirt, let him have your coat also…” For that matter, Neville Chamberlain thought that giving Hitler Czechoslovakia would keep the brown shirts out of Paris.

We’re not saying Ms. Luckring was evil, nor would we ever equate her territorial ambitions with those of the Third Reich. For a concession to be effective, however, the party being appeased has to be acting in good faith. This is rarely the case. Rather, the problem is that the party being appeased has probably acted in bad faith in order for affairs to get to the point that appeasement is necessary. Hitler had the “Anschluss.” Without it, Chamberlain wouldn’t have needed to make a deal. Putin started by taking South Ossetia from Georgia. Then, he grabbed Crimea, and now he wants a piece of Ukraine (if not Moldova, Estonia and the other Baltic states as well). History has shown us that appeasement doesn’t work, because appeasement only convinces the appeased party that bad conduct pays.

Just ask Chris Blair. Chris thought he had bought peace by giving away a piece of this land. But when Chris hired a fence company to build the agreed-upon fence along the new boundary, Paula Luckring refused to let the contractor set foot on her property during the construction process. It’s hard to build a fence from one side only. To further appease Ms. Luckring, the contractor built the fence 13 inches into Chris’s side of the boundary. After that, when Chris’s caretaker (Chris himself had severe Parkinson’s, a condition that undoubtedly only goaded Ms. Luckring into further predations) would try to use a weed whacker on the grass growing in the 13-inch space between the new boundary and the fence, Ms. Luckring demanded that he do the cutting without setting foot on her property. However, she magnanimously conceded, she would cut the grass on the 13-inch strip … if Chris gave her an easement for the 13 inches of space.

nomans150722The trial court was drawn back into what it called the “predictable drama” that arose by Ms. Luckring’s demands. It told Paula that she had to pay to have the fence moved and reinstalled right along the boundary. No 13-inch “no man’s land.” No easements. No more trespassing actions.

Naturally, Ms. Luckring appealed. The appellate panel was having none of it. It held that “a mere cursory review of the Plaintiff’s pleadings and her own testimony … adduces an ongoing pattern of bullying of a Defendant who granted her the moon and the stars in acquiescing to her unceasing demands, and yet was confronted with demands for more …” It’s not unheard-of for a plaintiff to cripple her case by her own testimony, but to prove yourself to be a bully?

Under the circumstances, making Paula pay to relocate the fence seemed to the court to be a lot like justice. Approximate justice, but still justice.

Luckring v. Blair, 2014 Pa. Dist. & Cnty. Dec. LEXIS 3 (Com.Pl.Ct. Pennsylvania, Dec. 3, 2014). Paula Luckring sued neighbor Christopher Blair, alleging that his pine and sycamore trees trespassed onto her property, causing public safety issues that had been presented to the local township authorities. She additionally complained of damage caused by “tree sap, needles, branches, cones, roots” constituting a “nuisance” because the trees overhung, fell upon, and grew under her property which caused damage such as a broken window, damage to a deck and stamped concrete, as well as clogging a sewer line and causing landscape damage. She demanded $13,369 for cutting down or trimming the offending trees and restoring her property to its previous condition.

trespass150722Blair countered that he had given Luckring permission to trim the sap-dripping white pine tree all the way back to its trunk, but her trimming caused the sap to drip excessively because there were no tree branches remaining to catch and absorb its flow. He also said that she had previously accepted his written permission and cut down the encroaching white pine tree at her own expense. He argued she should not now be able to renegotiate that contract. He also counterclaimed, alleging that Luckring was trespassing on his property with her deck and retaining wall.

The parties settled the case before trial by signing a settlement agreement that called for Blair to grant title to Luckring, free of charge, to an 11-foot strip of his own land and to build, at his own expense, a fence marking the new boundary line between their respective parcels. Nevertheless, the parties were back in court a year later seeking to resolve the predictable drama ensuing from the Plaintiff’s abject and literal refusal to allow the fence company to set foot on her newly acquired property in order to erect the structure. The contractor then built the fence thirteen inches inside the Blair’s side of the new property line in order to appease the Plaintiff in that regard. Adding further insult to injury to Blair, who suffered from severe Parkinson’s Disease, Luckring demanded that when Blair cut the tall grass and weeds on the 13-inch strip of his property on Luckring’s side of the fence, such work must be accomplished without setting foot on her land. She offered to cut the grass and weeds herself, but only if Blair granted her an easement to that additional piece of his property.

The appellate court enforced the settlement agreement by ordering Luckring to move the fence to the boundary line of the respective properties at her own expense.

Luckring appealed.

Held: The enforcement of the settlement agreement was upheld.

The appellate panel noted with disdain that after Blair applied for a building permit for the fence in May 2013, Luckring made multiple calls to Haverford Township officials to note her opposition to the fence despite having agreed in the settlement not to oppose in any manner the erection of the fence and to waive any and all objections thereto. She also erected signs on her property pointing in the direction of Blair’s residence saying “No Trespassing,” and put up a sign on her property order-ing the fence company not to install the fence all the way to the sidewalk, contrary to Blair’s in-structions. She also initiated a verbal confrontation with Mary Blair, in which she accused the Blairs of being “too cheap to get their own survey”, even though the settlement agreement required Luckring to bear the expense; and she hammered stakes into the ground on Blair’s property and – after the fence was built – she entered Blair’s property to “wash” the brand new fence.

Whatever Ms. Lucking might do for a living, we're betting it's not driving the Welcome Wagon.

Whatever Ms. Lucking might do for a living, we’re betting it’s not driving the Welcome Wagon.

The Court noted that when Luckring was asked at the hearing to expound upon her belief that the parties must strictly adhere to the terms of their settlement agreement regarding the need to care for the portion of the Blair’s land outside the fence line and abutting her property, she replied that, if the caretaker stepped on her property during this process, he would be trespassing and that she would sue.

The Court concluded that a “mere cursory review of the Plaintiff’s pleadings and her own testimony at the Hearing on the Defendant’s Petition to Enforce Settlement adduces an ongoing pattern of bullying of a Defendant who granted her the moon and the stars in acquiescing to her unceasing demands, and yet was confronted with demands for more. The parties’ Settlement Agreement and Release provided for a fence to be built by the Defendant on his side of the new boundary line of the neighboring properties, albeit without trespassing on the Plaintiff’s land. A reasonable interpretation of this requirement would result in the edge of the fence being placed on the edge of the Plaintiff’s new property line and not crossing this point of demarcation. Moreover, the momentary intrusion involved in its construction would be of no concern whatsoever with regard to the fence contractor’s presence on the Plaintiff’s side of the boundary line in order to complete the effort. However, the Plaintiff took the extreme position that enforcement of these provisions must be strict, and refused to permit the fence installer to step on her property to undertake its construction in the place designated by the Defendant in express accordance with the parties’ stipulated Agreement. As a result, the fence contractor took it upon itself to erect the structure thirteen inches inside the Defendant’s side of the boundary line, instead of on the line itself, in order to placate the Plaintiff. The Plaintiff then added to this mix of unreasonableness and bad faith by complaining that the Defendant’s landscaper was stepping on her property when clearing weeds and high grass growing on the thirteen inch strip on her side of the fence that remained in the ownership and possession of the Defendant.”

Calling Luckring’s conduct “obdurate and [in] bad faith,” the Court concluded that Luckring had not acted in good faith, and the trial court’s order that she pay to move the fence “ was warranted and necessary to achieve justice in this case.”

– Tom Root