Case of the Day – Friday, May 14, 2021

SHE FELL FROM HER HORSE, BUT THE COURT SAID, “NEIGH”

Think how much litigation a talking horse might have saved ...

Think how much litigation a talking horse might have saved …

A horse is a horse, of course, of course…

Sherri Ann Konieczny — and we’ll just call her Sherri Ann — was horseback riding at the Dmytros’ farm. Sadly, her horse, who was neither named “Mr. Ed” nor could talk, was unable to warn her about the pile of timber hidden in the tall grass. Instead, the horse struck the pile of wood left by Mr. Dmytros along a fenceline and then tripped and fell. Sherri Ann fell, too, and the Dmyrtos’ insurer got sued.

But Sherri Ann was a non-paying guest of the Dmytros. Their insurer thought her claim was… well, was the kind of stuff you find falling from the south end of a northbound horse, if you get our allusion. The insurance company defended under the recreational user immunity statute.

That statute hardly applies, the grievously injured Sherri Ann argued, because Wisconsin’s recreational user immunity law only relates to the condition or maintenance of the land. A stack of timbers, she said, isn’t related to the condition or maintenance of the land.

Maybe Sherri Ann’s horse couldn’t talk, but the Court of Appeals could: it said “neigh.” The Court ruled that the intent of the recreational use law was to encourage landowners to open their lands to the public. The Dmytros’ act of storing lumber on their land was the kind of thing a landowner would normally do. Clearly, if the courts started drawing such artificial lines – such as holding that a landowner’s typical use of his or her land might negate recreational user protection – then landowners would be unable to trust the recreational use statutes, and they simply wouldn’t open their lands to recreational users at all.

It’s a constant balancing act between giving injured people the right to collect for injuries caused by the negligence of others and encouraging a socially useful end like public access to recreational opportunities. The Court did it well in this case.

Konieczny v. Wausau-Stettin Mut. Ins. Co., 740 N.W.2d 902 (Wis.App. 2007). Sherri Ann Konieczny was injured while horseback riding on William and Cecilia Dmytro’s property. According to Konieczny, her horse struck a piece of timber that was lying next to a fence line, causing the horse to lunge forward and throw her to the ground.

The Dmytros had obtained the timbers about five months earlier when William Dmytro helped a neighbor demolish a barn. The timbers had been stored by the fencerow ever since.

Konieczny sued the Dmytros’ insurer, Wausau-Stettin, which moved for summary judgment under Wis. Stat. § 895.52, the recreational immunity statute. Konieczny argued the recreational immunity statute did not apply because the storage of the timber on the Dmytros’ property was unrelated to the condition or maintenance of the land. The trial court ruled that Konieczny’s claim was barred, and she appealed.

Held: Konieczny’s claim was properly rejected under the Wisconsin recreational use statute.

So an owner's clutter might constitute a "condition of the land?"

So an owner’s clutter might constitute a “condition of the land?”

Horseback riding is explicitly included within the statutory definition of “recreational activity.” A plain reading of the statutory language, the Court said, appeared to bar Konieczny’s claim because the Dmytros had no duty to keep the property safe or to warn Konieczny about the timbers. Konieczny claimed the statute did not apply where a landowner’s conduct causes injury and that conduct is not directly connected to the condition of the land. But, the Court noted, the recreational immunity statute was designed to immunize people in their capacity as landowners to encourage them to open their land for public use.

Here, the Dmytros’ act of storing timber along their fence line is not distinct from their capacity as landowners. The timber constituted a condition on the Dmytros’ land and their act of putting it there created that condition. Contrary to Konieczny’s assertion, the timber was not unrelated to the condition or maintenance of the land. This situation fits squarely within the parameters of the recreational immunity statute, the Court held.

– Tom Root
TNLBGray

And Now The News …

Washington, DC, Counterpunch, May 13, 2021: Emergency Federal Protections Sought for Imperiled Joshua Tree

WildEarth Guardians has submitted emergency petitions (here and here) to the U.S. Fish and Wildlife Service to immediately provide federal Endangered Species Act (ESA) protection for both the eastern and western species of Joshua tree, icons of California’s Mojave Desert. Guardians submitted these petitions to list the Joshua tree on an emergency basis under the ESA, while simultaneously challenging the Service’s 2019 decision under the Trump administration to deny Joshua trees protected status as a “threatened” species in federal court—a listing decision that was prompted by a previous petition submitted by Guardians in 2015. Guardians’ emergency petitions were submitted in advance of what is expected to be yet another severe fire season in Southern California. Last summer, the Mojave Desert reached a record-breaking 130 degrees while enormous wildfires like the Dome Fire also decimated thousands of acres of Joshua tree habitat, destroying an estimated 1.3 million Joshua trees. Joshua trees have existed for over 2.5 million years, but multiple published, peer-reviewed climate models show that climate change will eliminate this beloved plant from the vast majority of its current range, including its namesake National Park, by century’s end without robust efforts to dramatically reduce carbon emissions and address threats from invasive grass-fueled wildfires…

Canadian Broadcasting Corporation, May 13, 2021: When it comes to sucking up carbon, not all trees are equal

This newsletter has often looked at the part trees can play as part of the climate change solution, with their ability to suck carbon out of the atmosphere and store it. As with so much else, however, there is nuance — we need to be careful about assuming trees alone can save us. With wildfires and natural die-off, trees sometimes give off more carbon than they absorb. And when it comes to sequestration, some trees and their ecosystems appear to be more effective than others over time. With that in mind, it is noteable to see a new tree-related carbon project finding favor with some high-profile corporations. Proctor and Gamble, Apple and Gucci have all announced projects to protect and restore the mangrove, a woody tree or shrub living in salty coastlines in the tropics and subtropics. Mangroves (like the one being repopulated in the photo above) hold a particular allure as carbon sinks. “At a high level, [mangroves] are salty and wet, and that keeps the carbon from breaking down,” Jen Howard, senior director of the blue carbon program for the American non-profit Conservation International, told GreenBiz. Conservation International says mangroves, which have been in decline in recent years, can sequester up to 10 times as much carbon compared to terrestrial forests…

Toronto, Ontario, Star, May 13, 2021: Mature trees are ‘carbon-capture heroes.’ This community program helps them live even longer

A lot of big old trees could use some fixing, and there’s a group of honest-to-goodness tree huggers trying to come to their rescue. My recent columns about mature trees that stand out for their size and place in neighbourhoods prompted lots of email about local trees that readers love or are trying to save from development or other predations. One that jumped out came from Toni Ellis, manager of an Elora-based group called Tree Trust, which raises money to pay arborists to work on old trees that wouldn’t otherwise get the care needed to extend their lifespan. Toronto and other municipalities put substantial resources into maintaining trees on city property, even pruning and removing limbs. That leaves trees on private property to fend for themselves, unless the owner maintains them. Ellis, an environmentalist and former co-manger of the old borough of East York’s recycling program, founded Tree Trust in Elora in 2019, as a way to preserve mature trees that she describes as “ecological workhorses.” A mature tree captures and stores tonnes of carbon, releases oxygen into the atmosphere and provides shade for people and habitat for birds and animals, making them far more valuable than it might seem, she said. “What we’re doing is stalling the inevitable,” she said. “Trees are living things. They only last so long. But you can give them a lot more time to do their job by taking care of them…

Houston, Texas, Chronicle, May 13, 2021: Texas veteran defends right to fly flag from tree after HOA cites him for violation

A Texas-based Navy veteran has flown his American flag in the same spot for the past 17 years, but he’s now being told to change it. Gary Pirics said the flag has always been displayed on a tree in the front yard of his Avery Ranch neighborhood home in Austin, per Fox News’ Audrey Conklin. It’s been up for so long, the bark of the tree has started growing around the bracket, per CBS Austin’s Walt Maciborski. But in December, Pirics received a letter from the homeowner’s association saying the placement violates U.S. Flag Code and Texas Flag Regulations.””The flag’s important to me for several reasons. One is both my father and my wife’s father were World War II veterans,” said Pirics, as reported by Conklin. “I served in the United States Navy as an officer in Charleston, South Carolina, during the Vietnam War. So that flag does several things.” Kirsten Voinis, a neighbor of Pirics’, also received a violation letter over her flag, which she’s flown in her yard since 2003, according to Maciborski. These violations inspired Jim Dufner, another neighbor, to fly an American flag in solidarity. Dufner has since been served with two violations, per Maciborski. According to the HOA, the residents were never asked to remove the flag — just to fly it in accordance with local and national codes…

Vancouver, British Columbia, The Guardian, May 13, 2021: Chainsaw massacre: tree poaching hits Canada amid lumber shortage

Two tree stumps signaled to Larry Pynn that something was wrong. Jutting from a mossy forest floor in western Canada, the fresh stumps were the final remnants of two western red cedars that had been chopped down by chainsaw. Nearby, a set of deep tire tracks ran for nearly a kilometer in the mud before terminating at the main road. “I immediately suspected that this is the work of poachers,” said Pynn, a journalist who lives nearby. “These are clearly valuable trees and they were likely cut because of that.” Since January, local officials on central Vancouver Island say at least 100 trees have been illegally chopped down. As lumber prices across the continent soar – prompting a flurry of memes and conspiracy theories – ecosystems full of valuable old growth trees have increasingly become a target for poachers. The section of forest Pynn found the stumps in is part of a municipally owned 5,000 hectare swath of woods known locally as Six Mountains. The area, popular with hikers and mountain bikers, is also home to the endangered coastal Douglas fir ecosystem, which is on the verge of vanishing after centuries of logging and urban development…

Georgetown, South Carolina, Post & Courier, May 10, 2021: Georgetown tree ordinance update could protect more trees from development

In light of the heavy development happening around Georgetown, specifically in the Waccamaw Neck, county planning director Holly Richardson is proposing updates to its tree ordinance to ensure more of the region’s beloved forestry is preserved. One of the main changes to the ordinance is a site inspection requirement before any ground is broken. Richardson said previously, tree site inspections would sometimes occur in tandem with stormwater site inspections, but not because of any written requirement. Making it a requirement to have specific tree site inspections will ensure less foliage is cut down sooner, Richardson said. Other amendments include adding in a tree fund, which would fund landscaping, public parks and the replanting of trees in the county from fines developers pay for various violations, such as cutting down unapproved trees…

Popular Science, May 12, 2021: Trees need wind to reproduce. Climate change is messing that up.

Trees may seem sedentary, but movement is a big part of their lives. To reproduce, many trees rely on wind to move their pollen and seeds around, says Matthew Kling, a postdoctoral researcher in plant biogeography at the University of California, Berkeley. A study led by Kling, published on April 27 in the journal Proceedings of the National Academy of Sciences, examines how wind patterns affect the exchange of DNA between populations of trees. Their findings suggest that factors such as wind strength and direction can help mold the genetic makeup of forested landscapes. As the climate heats up, some plants won’t thrive as well in their current environments, and will need to be in historically cooler locations to stay within a comfortable temperature range, says Kling (for many plants, this is already happening). But plenty of questions remain around precisely how the plants will get there, he says, “and one of the biggest areas of uncertainty in plant movement is related to wind,” because wind dispersal can be tricky to measure at large scales. Kling and his coauthor David Ackerly, a professor of integrative biology at UC Berkeley used 72 previously published scientific papers to gather genetic data on nearly 2,000 populations of trees belonging to nearly 100 different tree species around the globe. The researchers took this genetic data and compared it to a “windscape” model they developed, which pulls from three decades of hourly wind data. The wind model provides a prediction for the way we would expect dispersal of seeds and pollen to take place across large geographic scales and long time periods, says Kling. “And the genetic data provides a measured estimate, totally independent of the wind data, of the way that the seeds and pollen have dispersed across large landscapes in the past.” The authors then compared the predictions made by the wind model to the observed genetic patterns, allowing them to test whether the wind was actually driving them…

Phys.org, May 12, 2021: Earliest forest fires evidence of ancient tree expansion

The Earth’s first forest fires appear to have occurred earlier than previously thought, pointing out a link between widespread wildfires and ancient tree evolution, according to researchers at The University of Alabama. Although small wildfires of primordial vascular plants without leaves, branches or a developed root system, and sparked by lightning or lava occurred as early as 420 million years ago, these are not believed to be widespread because the plants needed water or a wet climate to survive. However, using fossil charcoals and geochemical signals from ancient rock layers, UA researchers found the early forest fires started to spread about 383 million years ago. This is also evidence that more mature plants of trees and shrubs spread through forestation into relatively arid and inland environments. The study was an invited submission and published recently in a special issue of the journal Palaeogeography, Palaeoclimatology, Palaeoecology. It demonstrates the methods used to find evidence of these ancient forest fires are useful to discover more about paleoecological and paleoclimate indicators…

Boston, Massachusetts, Globe, May 10, 2021: Mass Audubon promised to preserve wildlife. Then it made millions claiming it could cut down trees

The Massachusetts Audubon Society has long managed its land in western Massachusetts as crucial wildlife habitat. Nature lovers flock to these forests to enjoy bird-watching and quiet hikes, with the occasional bobcat or moose sighting. But in 2015, the conservation nonprofit presented California’s top climate regulator with a startling scenario: It could heavily log 9,700 acres of its preserved forests over the next few years. The group raised the possibility of chopping down hundreds of thousands of trees as part of its application to take part in California’s forest offset program. The state’s Air Resources Board established the system to harness the ability of trees to absorb and store carbon to help the state meet its greenhouse gas reduction goals. The program allows forest owners like Mass Audubon to earn so-called carbon credits for preserving trees. Each credit represents a ton of CO2. California polluters, such as oil companies, buy these credits so that they can emit more CO2 than they’d otherwise be allowed to under state law. Theoretically, the exchange should balance out emissions to prevent an overall increase in CO2 in the atmosphere. The Air Resources Board accepted Mass Audubon’s project into its program, requiring the nonprofit to preserve its forests over the next century instead of heavily logging them. The nonprofit received more than 600,000 credits in exchange for its promise. The vast majority were sold through intermediaries to oil and gas companies, records show. The group earned about $6 million from the sales, Mass Audubon regional scientist Tom Lautzenheiser said…

Seattle, Washington, KIRO-TV, May 10, 2021: Olympia homeowner loses fight to save ‘boundary tree’ from chainsaws

An Olympia homeowner who challenged the city of Olympia and a builder lost his struggle to save a 150-foot Red Cedar tree, which stood on the boundary between his property and a construction site, where a housing development is being built. On Monday morning, the tree was cut down on the development side while the homeowner and several neighbors leaned against the other side in protest. Nearby, five Olympia police officers looked on, warning the protesters not to cross the property line. “They cut the tree over the top of our heads,” said Andrew Hannah, the homeowner who owns the property. He admitted only a small fraction of the tree was on his side. “The majority of it is on his property, and only a portion of it is on my property,” said Hannah, while pointing out state law, which states if two property owners share a part of a tree, then they own the tree equally. This time, the city of Olympia settled the dispute. Below the tree, the city of Olympia posted a sign, stating the city’s urban forester, engineer, and certified arborist determined the tree could not be preserved in a healthy condition because the construction project would damage the tree’s critical root structure. A city spokesperson told KIRO 7 the building permit allowed the developer to legally take the tree down…

Canadian Broadcasting Corporation, May 10, 2021: Tree experts stumped by case of ‘elephant trunk’

While out in the woods at Murphys Point Provincial Park near Perth, Ont., in late April, chief park naturalist Mark Read stumbled across a tree unlike any he’d seen in his seven years on the job. “I thought it looked very much like a palm tree,” Read said. Though a common local species, the trunk of the American beech Read was looking at had an uncommon wrinkled appearance. “I did pass the photos around and I had comments back that said, ‘That looks like an elephant’s trunk,'” he said. “[The discovery was] totally new for me. Quite amazing.” The consensus among both Facebook sleuths and more seasoned tree experts seems to be that “rippled beeches,” while documented and possibly more common in the United Kingdom, aren’t well understood. While Read isn’t sure what’s creating the effect, he believes it likely occurred during the tree’s earlier development. Paul Sokoloff, a botanist at Ottawa’s Canadian Museum of Nature and a member of the board of directors of the Field Botanists of Ontario, confirmed it’s a rare find, and a first for him, too. “My first impression was, oh, the bark is slipping off, which is of course not what’s happening,” Sokoloff said…

Houston Texas, Chronicle, May 10, 2021: Houston-area oak trees are still recovering from the winter storm

More than two months following the record cold temperatures of Winter Storm Uri, Texans are noticing that some oak trees are still struggling to recover. This has left many of our state’s experts wondering why. Even Neil Sperry, a Texas gardening and horticulture expert known across the country, has been stunned by the variability, and the scope, of damage left behind by the freeze. Followers of his Facebook page have submitted over 2,000 photos of struggling oak trees, including all varieties of species and from every single region of the state. “I have been in this business professionally since 1970, and I’ve never seen anything like this,” said Sperry. “We think of oaks as permanent as concrete and steel, and for them to selectively be affected by this freeze is particularly odd.” After spending weeks responding to residents and landowners who are concerned about the health and condition of their trees, Sperry decided to pull together a blue-ribbon panel of certified arborists, foresters, extension specialists, nursery leaders, horticulturists and garden communicators to send out a unified message. Their advice to those wondering what they should do, and whether they should cut down their valuable trees, is simple: just wait…

Portland, Oregon, The Oregonian, May 9, 2021: Oregon’s post-fire logging is taking trees that may never be hazards, experts say

Tree No. 252256 is a 95-foot Douglas Fir that stands south of Oregon 22 east of Mehama, one of dozens of trees in this patch of the Santiam Canyon that has been tagged to be cut as part of the state’s troubled hazard tree removal program. The massive undertaking is slowly creeping westward, leaving swaths of denuded highway and private properties in its wake. This particular tree, one of nearly 143,000 that officials estimate needs to be removed statewide, was inspected March 21, and its removal was approved by a certified arborist from Pennsylvania who is now working in Oregon. Details about the tree come from a mapping database that CDR Maguire, the contractor monitoring the program under a $75 million contract, is maintaining to document the work for reimbursement by the federal government. The data includes pictures of every tree, some basic measurements, and the names of the inspectors and arborists who evaluated it. But there’s not much information on the call to cut No. 252256. “Condition: Poor; Recommendation: Remove” Yet the owner of the land and two independent tree experts who toured the forest patch Monday raised concerns about this tree and others tagged in this tiny portion of the immense project. “Light to moderate” bark char extends only 15 feet up the trunk of the tree, they said, and the crown – the top branches – look healthy. “There is just very light cosmetic damage to the tree,” Rick Till, a certified arborist and qualified tree risk assessor from Portland, said after shaving off a bit of blackened bark with his hatchet. “If it did fall, it would fall into the woods. It is a very low-risk tree, yet it’s marked for removal, and someone’s going to get paid a few thousand bucks for cutting down this tree, which should take about 10 minutes work…”

New Orleans, Louisiana, Times-Picayune, May 8, 2021: What if trees covered half of New Orleans? City teams with nonprofit to try

Walking along Nunez Street, Old Algiers native Alex Selico Dunn Sr., 65, waves his hand toward nearby rooftops. “When I was young, that would all be trees,” he said, recalling how leafy giants once towered above and between houses. There are still trees in Old Algiers. But as in much of New Orleans, Hurricane Katrina’s vicious winds and prolonged flooding laid much of its canopy to rest. About 100,000 trees were lost citywide, earning New Orleans a spot among the nation’s most deforested cities. Under then-Mayor Mitch Landrieu, City Hall in 2010 set an ambitious goal in its master plan to increase the tree canopy to cover 50% of the city by 2030. Now, 11 years later, city officials have taken the next step, signing an agreement last week with a local environmental nonprofit to develop a $140,000 reforestation plan. Founded by Susannah Burley, Sustaining Our Urban Landscape, or SOUL has led volunteer plantings in several neighborhoods since 2016, including one that added almost 900 trees in Old Algiers. Next, it will plot the city’s plans toward reestablishing the canopy…

Southern Living, May 10, 2021: We Love the Yellow Flowering Magnolias for Small Yards

While white- and pink-blooming magnolias blanket the South, there’s something wonderfully unexpected about yellow magnolia blossoms, and every year, we’re seeing more of them planted in lawns and gardens. Best of all, some of them grow compactly, making them ideal for small yards and tight spaces. Many different sorts of magnolias produce yellow blossoms, but two of our favorites are ‘Daphne’ and ‘Golden Gift.’ ‘Daphne’ magnolia is one of the most vividly yellow bloomers. It produces big, long-lasting flowers in deep yellow hues. The blooms are held above the foliage. The tree itself has a narrow, upright form, which is great for tight spaces, and it grows from 10 to 20 feet tall. It can thrive in many climates, from the coastal south through the lower, mid-, and upper south regions. Another magnolia that produces beautiful deep yellow blooms is ‘Golden Gift.’ This is a smaller magnolia that grows from 8 to 15 feet tall and 5 to 10 feet wide. The deep yellow blooms are 2 to 5 inches wide and appear throughout the spring. It can also thrive in a variety of areas and has been grown successfully from the coastal south all the way through to the upper south. There are several other members of the magnolia genus that grow compactly and produce yellow blooms. Some of our favorites are… Magnolia figo, also known as banana shrub, is an evergreen shrub planting that grows slowly. It will typically reach 6 to 8 feet tall, sometimes 15 feet tall in the right conditions. It has glossy leaves and blooms heavily in spring. This magnolia produces blossoms that are small and creamy yellow, as well as a strong fruity fragrance…

Reuters, May 8, 2021: Mexican president pushes trees-for-visas plan in call with Harris

Mexican President Andres Manuel Lopez Obrador pitched a tree-planting jobs program in Central America that he said should lead to U.S. work visas, in talks with U.S. Vice President Kamala Harris on Friday about root causes of migration. At the start of the call, Harris said the United States and Mexico must fight violence and corruption together, to help diminish migration from Central America. “Most people don’t want to leave home and when they do it is often because they are fleeing some harm or they are forced to leave because there are no opportunities,” said Harris. Lopez Obrador, 67, said he had a specific proposal he wanted to discuss with Harris. He did not give details, but told reporters minutes earlier that the tree planting idea was at the top of his mind. “We agree with the migration policies you are developing and we are going to help, you can count on us,” he said. The Mexican leader told reporters at a news conference Friday morning that legal routes were the best solution to migration. “If there’s a regular, normal and orderly migratory flow, we can avoid the risks migrants take who are forced to cross our country,” he said. The trees-for-visas proposal was met with some surprise when Lopez Obrador previously raised it at a Washington climate summit in April…

Canadian Broadcasting Corporation, May 6, 2021: Tree poaching on Vancouver Island prompts spike in forest patrols

The municipality of North Cowichan, B.C., is stepping up patrols of the region’s forest reserve, after an increase in timber theft in the area, which lies 70 kilometres north of Victoria on Vancouver Island. Since January, approximately 100 trees, including Douglas fir and Western red cedars have been poached and local residents and officials believe the spike is likely tied to the surge in lumber prices. North Cowichan resident Larry Pynn stumbled upon a large cedar tree stump along slabs of crudely cut wood while he was out for a walk two weeks ago in a forested area known as Stoney Hill. “I immediately thought that this had to be the work of a poacher,” he said in an interview with CBC News. “Something like this is not being taken for firewood. It’s a valuable tree.” Pynn estimated the tree was 87 years old because he counted the rings on the remaining stump. Not far from it, the mossy ground had been torn up by what appeared to be ATV tracks…

Washington, D.C., Post, May 6, 2021: Pipeline tree stand protesters get jail time, fines

Two Mountain Valley Pipeline protesters have been sentenced to months in jail and ordered to repay the cost of removing them from tree stands they were chained to along the pipeline’s path. The Roanoke Times reports that Montgomery County General District Court Judge Randal Duncan convicted Alexander Lowe, 24, of Worcester, Massachusetts, and Claire Fiocco, 23, of Dorset, Vermont, on Wednesday of obstructing justice and interfering with Mountain Valley’s property rights. Fiocco, who occupied a tree from early January until March 23, was sentenced to 158 days. Lowe was sentenced to 254 days after occupying a tree from November until state police removed him on March 24. Later in the day, the pair appeared before Circuit Court Judge Robert Turk, who ordered them down from the trees. Turk fined Lowe $17,500 and Fiocco $10,000 for defying his order. He also ordered them to pay more than $140,000 to Mountain Valley to cover the cost of extracting them. A crane hoisted two state police officers to where the protesters were chained on wooden platforms about 50 feet above the ground. “I appreciate the passion you had in your protests,” Turk told them before they were taken away. “You just did it the wrong way…”

New York Magazine, May 6, 2021: Suzanne Simard Changed How the World Sees Trees

Suzanne Simard has given her life to the study of trees. She sweated for them. Bled for them. Damn near died for them — once at the claws of a grizzly, and once from the invisible clutch of cancer. (Working with toxic herbicides and radioactive isotopes in the course of her research likely contributed to her breast cancer, which resulted in a double mastectomy.) But Simard’s sacrifices as a forest ecologist have paid off. Her work with herbicides uncovered the fact that denuding tree farms doesn’t help them grow faster — a finding that overturned the forestry industry’s prevailing logic for half a century. Later, upending basic Darwinian logic, she showed conclusively that different trees — and even different tree species — are involved in a constant exchange of resources and information via underground fungal networks, known technically as mycorrhizae and popularly as the Wood Wide Web. Her long fight against the twin patriarchies of the logging industry and the scientific Establishment has yielded startling discoveries about tree sociality — and even, some believe, about tree sentience. Now Simard, a professor at the University of British Columbia, has published a memoir, Finding the Mother Tree: Discovering the Wisdom of the Forest — which is being adapted into a film, with Amy Adams set to star. We spoke recently about what studying trees has taught her about how to live in our increasingly tenuous world, and how forests can help fix our compounding problems…

Discover, May 6, 2021: 10 Golden Rules For Reforestation Show How To Plant Trees The Right Way

Large-scale tree planting is often presented as a simple solution to conserving the environment and preventing climate change through carbon capture. But reforestation is more complicated than it looks. “It’s very easy to say, you’re going to plant a tree,” says Erin Axelrod, the program director for Jonas Philanthropies’ Trees for Climate Health initiative. “It’s very, very complex, to actually follow that pledge through to the outcome of having a tree that is not only effective at removing carbon dioxide from the atmosphere, but also effective from the standpoint of doing all the other great things that trees can do.” In recent years, massive reforestation efforts have included shockingly high numbers of tree-planting goals linked to them as a low-cost, high-impact solution to climate change. In 2019, Ethiopia claimed to have planted 350 million saplings in under 12 hours, breaking the world record for trees planted in a day. China is on course to plant 87 million acres of trees by 2050 to make a “Great Green Wall” the size of Germany. And just last year, the World Economic Forum began its 1t.org project, aiming to conserve, restore or grow one trillion trees by 2030…

Santa Rosa, California, Press-Democrat, May 5, 2021: Giant sequoia tree in Sequoia National Park still smoldering from 2020 Castle fire

A giant sequoia has been found smoldering and smoking in a part of Sequoia National Park that burned in one of California’s huge wildfires last year, the National Park Service said Wednesday. “The fact areas are still smoldering and smoking from the 2020 Castle fire demonstrates how dry the park is,” said Leif Mathiesen, assistant fire management officer for Sequoia and Kings Canyon National Parks in Central California. “With the low amount of snowfall and rain this year, there may be additional discoveries as spring transitions into summer.” The smoldering tree was found recently by scientists and fire crews surveying the effects of the blaze, which was ignited by lightning last August and spread over more than 270 square miles (699 square kilometers) of the Sierra Nevada. It took five months to fully contain. Most of California is deep in drought, with severe to extreme conditions in the mountain range that provides about a third of the state’s water. On April 1, when the Sierra Nevada snowpack is normally at its peak, its water content was just 59% of average, according to the state Department of Water Resources. The dryness could set the stage for a repeat of last year, when wildfires, many of them ignited by thousands of dry lightning strikes, burned a record 6,562 square miles (16,996 square kilometers) in the nation’s most populated state…

Ashland, Oregon, Daily Tidings, May 5, 2021: Hazard tree logging should stop temporarily

There is plenty to debate about salvage logging of burned trees after wildfires. The timber industry says it’s important to cut down and remove still-usable trees before they rot and become worthless for lumber, and then replant to replenish the forest for future generations. Environmentalists say cutting down burned trees does more harm than good, damaging fragile soils and making logged areas more vulnerable to future fires, not less. But some burned trees must be removed because they pose a hazard to human life and property. But there are rules about how many can be cut and where, and those rules should be followed. It appears unscrupulous contractors may be ignoring those rules, and that should stop. So-called hazard trees, if left standing after a fire, can fall across roads and highways, potentially causing injury or death to motorists, and those standing near homes can pose a danger as well. The Oregon Department of Transportation has contracted with companies to remove hazard trees left standing after last year’s wildfires. But in testimony before the Senate Natural Resources and Wildfire Recovery Committee in Salem last Wednesday, whistleblowers, landowners and others told lawmakers the program lacks oversight and is plagued by unqualified staff, disputes over what trees should be cut and even outright fraud. If confirmed, the allegations could jeopardize funding from the Federal Emergency Management Agency, which is reimbursing the state for the work…

New York City, WNBC-TV, May 5, 2021: NY’s Attempt to Cut Down Thousands of Trees for Snowmobile Path Blocked By Court

New York cannot cut down thousands of trees for a 27-mile snowmobile trail in the Adirondack Park without voters approving an amendment to the state constitution, the state’s top court ruled Tuesday. The 4-2 decision by the state Court of Appeals is a victory for environmentalists who sued over the partially built snowmobile trail, a wide “Class II” connector trail that was to be part of a larger network. Opponents claimed the Class II trail violates the “Forever Wild” clause of the state constitution, which protects state-owned forest preserve land. Lawyers for the state Department of Environmental Conservation argued that the number of trees affected per-mile would be relatively small and that any impact would be justified by increased recreational opportunities in the popular winter tourist destination, according to the decision. But the court wrote that the Class II trail, which requires rock removal, grading and cutting down 25,000 trees, is “constitutionally forbidden” without a voter-approved amendment…

Phys.org, May 5, 2021: Trees may work together to form resource-sharing networks with root grafts

A length of steel pipe and a heart monitor are the unlikely tools underpinning new research which suggests that trees may work together to form resource-sharing networks, helping the group collectively overcome environmental challenges. The findings, laid out in a paper published today in Communications Biology, offer fresh insight into how forests around the world might adapt to the increasing environmental stresses of climate change. Researchers from universities in the UK, Germany, France and Mexico partnered on the project, which investigated how mangrove trees form networks of root grafts in a Mexican coastal lagoon. Root grafts are physical connections between tree roots which can allow them to exchange water, carbon and mineral nutrients. Trees with less access to sunlight have been shown in previous studies to survive by sharing resources supplied from root grafts with better positioned neighboring trees. Very little research has been conducted into resource-sharing in more extensive networks, however, because mapping root grafts between trees requires costly, time-consuming and difficult excavation work…

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Case of the Day – Thursday, May 13, 2021

ALL YOUR TREE ARE BELONG TO US

If you were not following Internet culture (as oxymoronic as that phrase may be) back in 2001, you might not recognize the badly-mangled taunt “All your base are belong to us,” derived from the poorly-translated Japanese video game, Zero Wing. It became a cult classic in 2001, and the melodious strains of the techno dance hit Invasion of the Gabber Robots can be heard in some of the goofier corners of the ‘Net – and there are plenty of those – to this very day.

allyourbaseIn today’s case, an elm tree stood on the boundary line between the Ridges and the Blahas. One can almost imagine Mr. Blaha — who was tired of the mess the elm made every fall — announcing to the tree that “you are on the way to destruction!” But the problem was that, contrary to Mr. Blaha’s belief, all the tree’s base did not belong to him, at least not just to him. Rather, the base of the tree straddled the property line between the Blaha homestead and the Ridges’ house.

Unlike the Colorado decision of Rhodig v. Keck, the Illinois court did not require that the plaintiff show who had planted or cared for the tree. Instead, its analysis was simple: the tree grew in both yards, and thus, the Ridges had an interest in the tree, as did the Blahas. This made the landowners “tenants in common,” and prohibited either from damaging the tree without permission of the other.

The Illinois view, which is the more common approach that Colorado’s “husbandry” test, is the prevailing view in the United States. In this case, the Court issued an injunction against Mr. Blaha prohibiting him from cutting down the tree. For great justice.forgreatjustice

Ridge v. Blaha, 166 Ill.App.3d 662, 520 N.E.2d 980 (Ct.App. Ill. 1988). The Ridges sought an injunction against the Blahas to prevent them from damaging an elm tree growing on the boundary line between their respective properties. After living with the elm for many years, the Blahas tired of the tree’s unwanted effects and decided to remove it with the help of an arborist. The Ridges were not consulted, however, and when arborist Berquist came to remove the tree, plaintiffs objected that the tree belonged to them and that they did not want it destroyed.

Growing_TreeThe evidence showed that the base of the tree extended about 5 inches onto the Ridges’ property, but that the tree trunk narrows as it rises so that at a height of 1.25 feet, the trunk is entirely on Blahas’ side of the line. Photographs were also introduced which showed the tree interrupting the boundary line fence. The trial court found that no substantial portion of the elm’s trunk extended onto the Ridges’ property and that, as such, they did not have a protectable ownership interest in the tree. The Ridges appealed.

Held: The Ridges had a protectable interest. The Court held that the fact that a tree’s roots across the boundary line, acting alone, is insufficient to create common ownership, even though a tree thereby drives part of its nourishment from both parcels. However, where a portion of the trunk extends over the boundary line, a landowner into whose land the tree trunk extends had protectable interest even though greater portion of trunk lied on the adjoining landowners’ side of boundary. That interest makes the two landowners tenants in common, and is sufficient to permit the grant of an injunction against the adjoining landowner from removing the tree.

Move Zig.

– Tom Root

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Case of the Day – Wednesday, May 12, 2021

JUDGE JUDY HAS HER LIMITS, YOU KNOW

Ah, Cleveland! Renowned for the Rock and Roll Hall of Fame, world leader in the manufacture of duct tape, home to some really good beer and some really bad teams.  Sure, the Best Location in the Nation has the soon-to-be former Indians (still maddeningly mediocre, as my bride likes to put it) and the Cavs (lost LeBron to LA a few years ago, but maybe bouncing back), and the Browns. And maybe this is the year

Cleveland's gift to the world

Cleveland’s gift to the world.

Add to that impressive string of achievements one more jewel: Cleveland gave the United States its first small claims court in 1913. The People’s Court was not far behind.

Small claims courts exist in every state of the country, informal courts of very limited jurisdiction (awards of a few hundreds or few thousands of dollars), places where lawyers and formality are rare indeed. It was to just such a place that Mr. Iny dragged Mr. Collom. It seems the roots of Mr. Collom’s tree were breaking up the walls of his neighbor’s garage. Now, any fan of the Massachusetts Rule would have told the neighbor to get out there with a shovel and ax, and cut the offending roots at the property line. Self-help is, after all, as American as … well, as the Massachusetts Rule.

Of course, self-help doesn’t mean you can go onto your neighbor’s property, and it seems the homes and garages in this Long Island town were packed together like sardines. Mr. Iny couldn’t dig up the attacking roots without going onto Mr. Collom’s place, and we’re suspecting from the decision that these two guys were not the best of friends. So Mr. Iny took him to court.

The small claims court awarded him $2,100 for damages. Being of limited jurisdiction, the court couldn’t order Mr. Collom to cut down the tree or dig up the roots, so money was all that was available. Mr. Collom appealed (something you never see happening on TV).

Great Lakes' American pale ale, named for that embarrassing episode in 1969 when the Cuyahoga River burned.

Great Lakes’ American pale ale, named for that embarrassing episode in 1969 when the Cuyahoga River burned – not for the first time – and ended up as an icon for the nascent environ-mental movement. Incidentally, the river’s quite clean these days, and the brew’s a pretty fine pale ale.

The Supreme Court (which in New York State is not the state’s high court, but rather in this case just a court of appeals) reversed. The remedy here, the court said, shouldn’t have been money. It should have been to cut down the tree. But the small claims court lacked jurisdiction to do that. The Supreme Court itself didn’t have such constraints, so it reversed the money damages and instead ordered Mr. Collom to get rid of the tree.

The most interesting part of the decision is the lengthy and well-written dissent arguing that Mr. Iny’s tree claim was in fact a nuisance claim, and that money damages should have been awarded as well. The dissenting judge argued that New York has adopted its own tree encroachment rule, a hybrid of the Massachusetts Rule and Virginia Rule (which itself has since this case been abandoned by Virginia). In New York, the judge concluded, a complainant has to resort to self-help first. If that fails, the courts will intervene if the tree can be shown to be a nuisance — that is, if the tree “is causing substantial interference with the use and enjoyment of plaintiff’s land, that defendant’s conduct is intentional or negligent.”

Of course, the discussion is found in a dissent to a fairly low-level, unreported decision, but it’s a thoughtful analysis of the encroachment rule in a state where precedent on the subject is sparse. Good reading on cold winter night … unless, of course, another episode of Judge Judy is on.

Iny v. Collom, 827 N.Y.S.2d 416, 13 Misc.3d 75 (Sup.Ct. N.Y., 2006). The roots of a tree situated on Robert Collom’s property damaged the wall of a garage on Sol Iny’s property. Sol lacked the room to cut the roots out himself without trespassing on Bob’s land. He sought to get Bob to remove the objectionable tree, which he felt would have been the best way to fix the problem, but Bob refused. Sol sued in small claims to recover $2,100. The trial court awarded him this sum. Bob appealed.

Held: The decision was reversed. The Supreme Court noted that a New York small claims court is a court of limited jurisdiction and lacks the authority to grant any equitable remedy, such as directing the removal of a tree. Under the circumstances presented, the Court ruled, “substantial justice would have been most completely rendered had the court awarded judgment in favor of defendant dismissing the action on condition that he remove the subject tree within a specified period of time”. But the trial court couldn’t do that. The Supreme Court could, however, and ordered the case dismissed, conditioned on Bob removing the tree within 60 days.

One justice dissented. He believed that the trial court’s judgment awarding Sol $2,100 in damages was based on a nuisance claim, and should have been affirmed. The dissent said the issue faced in the case was whether under New York law, a property owner whose property is being encroached upon and damaged by the roots of a neighboring property owner’s tree may successfully assert a cause of action sounding in private nuisance if the property owner’s resort to self-help is unworkable, and the property owner’s attempts at obtaining assistance from the neighboring property owner to abate the roots’ encroachment have been unsuccessful.

The dissent argued that to establish a cause of action for private nuisance, the plaintiff must show that the defendant’s conduct causes substantial interference with the use and enjoyment of plaintiff’s land and that defendant’s conduct is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the laws governing liability for abnormally dangerous conditions or activities. The interference can be caused by an individual’s actions or failure to act. Where a defendant has been put on notice that his activity is interfering with plaintiff’s use and enjoyment of his land and defendant fails to remedy the situation, the defendant ought to be found to have acted intentionally and unreasonably.

Remember - the dissent is the opinion of the losers

Remember – the dissent is the only the opinion of the losers, amusing but inconsequential.

Furthermore, the dissent argued, “[u]nder New York law, a party is liable for failing to abate a nuisance [under a theory of negligence] upon learning of it and having a reasonable opportunity to abate it.” The question of whether there has been a substantial interference with plaintiff’s use and enjoyment of his/her property is one to be resolved by the trier of fact and involves a review of the totality of the circumstances based upon a balancing of the rights of the defendant to use his or her property against the rights of the plaintiff to enjoy his or her property. The balancing amounts to a risk-utility analysis weighing the social value of the conduct involved against the harm to private interests.

The dissent admitted that while the elements of a nuisance action appear straightforward, in New York there is a paucity of case law addressing nuisances arising from trees or other plant life. Nevertheless, the justice argued, there is substantial case law from jurisdictions outside New York, and he describes in detail the Massachusetts Rule, the Virginia Rule and the Hawaii Rule. The dissent concludes New York has “in large measure, adopted a hybrid approach somewhere between the Hawaii and Virginia Rules in determining the issue of nuisance liability. To sustain a cause of action for nuisance, a plaintiff must resort to self-help in the first instance, which does not appear to be a prerequisite under the Hawaii Rule. Once a plaintiff establishes that self-help failed or self-help was impracticable, he or she must (1) show sensible damage (this kind of “sensible” has nothing to do with common sense, but rather is an injury that can be perceived by the senses), (2) that defendant’s conduct is causing substantial interference with the use and enjoyment of plaintiff’s land, (3) that defendant’s conduct is intentional or negligent, and (4) that the continued interference with the use and enjoyment of plaintiff’s property is unreasonable.

Where a defendant has been notified that a tree was causing damage to plaintiff’s property and refuses to assist plaintiff in taking measures designed to abate the nuisance, the defendant should be found to have acted intentionally or negligently with regard to the nuisance. The unreasonableness of the interference will depend upon an overall balancing of the equities: the injuries to plaintiff and to defendant, the character of the neighborhood, the ongoing nature of the injury, and the nature of defendant’s actions.

Remember, the foregoing – while it may be eminently “sensible” in the meaning of the term – was the opinion of a lone judge, one who was outvoted. It makes for thoughtful reading. But don’t mistake it for the law.

– Tom Root
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Case of the Day – Tuesday, May 11, 2021

ALL FOR ONE AND ONE FOR ALL

Family reunions at the Halcumb homestead must have been rather awkward after sister Patsy sued her brother Ken for a hundred grand in cut timber.

Ken lived on land pursuant to a life estate, with Patsy holding the reversionary interest. Ken and his buddy Troy Denton decided to harvest the timber and sell it, thereby committing waste on the property. Sister Patsy sued brother Ken and collected $32,000. Only half a loaf, it turns out – Patsy had demanded treble damages under Arkansas’ wrongful cutting law – a statute similar to one in many states, which punishes wrongful taking of timber by tripling the damages to be paid by the wrongdoer. The trial court had denied treble damages, much to Patsy’s dismay.

She didn’t bother to appeal. Instead, right after Ken paid her off, she turned around and sued Troy, asking for the treble damages.

history140528Remember your mother warning you, “Don’t make me repeat myself?” Well, maybe you remember George Santayana.

Courts don’t like to repeat themselves, either. When a court has spoken definitively on an issue, that judgment binds those parties who had a fair chance to litigate it. This, in its various flavors, is res judicata (where the claim cannot be relitigated) or collateral estoppal (where only one or more points cannot be relitigated). Either is a defense to be raised against a claim.

Troy did just that, asking the trial court to dismiss the claim under the doctrine of res judicata, literally meaning “the thing has been adjudicated.” Patsy tried the novel argument that because her brother had the right to get contribution from Troy for the money he had to cough up to big Sis, she had the right to sue Troy as well. After all, Troy was a joint tortfeasor.

But the court said that begged the question. If her brother wasn’t liable for the treble damages, his partner-in-tort hardly could be. And that was the problem. Patsy had had a fair shot at the tree harvesters in the first trial. The law guarantees everyone one fair shot, but not two. Where the second case is based on the same events as the first, the Court said, it is precluded by issue preclusion, the concept that encompasses collateral estoppel, res judicata, and claims preclusion.

That just makes good sense — both from the standpoint of judicial economy and everyone’s interest in seeing litigation have some reasonable and final endpoint.

succeed

White v. Denton, 2007 Ark. App. LEXIS 824, 2007 WL 4181557 (Ark.App., Nov. 28, 2007). Patsy White owned timberland in Polk County, subject to a life estate in the property held by her brother, Ken Halcumb. In the summer of 2004, Halcumb contracted with Denton to cut and remove timber from the property. White sued her brother for conversion of the timber and for damage to the property, alleging the land sustained damage in excess of $100,000 plus more than $25,000 in cleanup and replanting costs. She asked for treble damages for the value of the converted timber.

White won a $31,202.80 judgment in 2005. In that judgment, the trial court denied White’s prayer for treble damages, finding that Arkansas law on treble damages for wrongful cutting of timber did not apply. The Court also refused to award damages for clean-up or replanting of the timber. She did not appeal, and her brother paid. A month later, she sued Denton for trespass and conversion of her timber, again asking for treble damages. Denton asked for summary judgment, asserting that White’s complaint was barred by the doctrine of res judicata, having been by the judgment she got against her brother. The trial court agreed and dismissed White’s complaint. While appealed.

Held: Denton is off the hook. White argued that the recovery of a judgment against one joint tortfeasor did not discharge the other joint tortfeasor. She said that Denton acted “jointly” with her brother to commit the torts of trespass and conversion of her timber, but contended that Denton is “independently liable” for those acts. She argued that her cause of action against Denton is not barred by res judicata because she hadn’t had a full opportunity to pursue Denton as a joint tortfeasor. She acknowledged that she received in damages the same amount of money that Halcumb sought to collect from the timber, but she contended that the judgment did not include the remaining damages that she claimed.

The Three Musketeers -

The Three Musketeers – “All for one and one for all?” Or were they merely joint tortfeasors?

The Court said that the term “res judicata” encompassed both issue and claim-preclusion. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. While state law established a common policy for loss distribution among joint tortfeasors, it didn’t give a plaintiff the right to sue each of multiple tortfeasors individually for the same damages. The Court noted that White recovered a judgment for the very claims that she subsequently attempted to assert against Denton. If she was unsatisfied with the amount of the judgment, the Court said, her remedy was to appeal, not a new suit against someone she could have included in the first action.

Here, the Court held, White’s suit against Denton arose from the same wrongful cutting of her timber and the damages that she sought were identical. While Patsy arguably asserted a somewhat different legal theory – negligence – as a basis for imposing liability against Denton, however, that fact made no difference.

– Tom Root

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Case of the Day – Monday, May 10, 2021

SMOKE GETS IN YOUR EYES

baby160601Anyone who’s ever sat next to a screaming baby on a red-eye flight knows “nuisance.” But what “nuisance” means in law may not be quite as readily identifiable as the wailing infant in seat 7B.

So just what constitutes a nuisance causing enough interference with an owner’s enjoyment of property to justify court action? The Haffners found out that wherever the line may fall, it was beyond the suffering they endured. And, in the process, they may have learned that the law is a poor bludgeon.

The Haffners had lived in the same house since 1977. The Clarks – who happen to run a tree service (but that’s not central to the case) – lived about 50 yards east of them, and the Nelsons live about 40 yards to the west. That wasn’t a problem until the Clarks and Nelsons became smokers.

They weren’t using tobacco, or even pot (this not being Colorado). Instead, they both installed rather old-fashioned but new-fangled outdoor wood furnaces. The Clarks were true early adopters, having used a wood-burning furnace since 1984. (Being tree trimmers, they had an abundant supply of fuel). The Nelsons installed their high-tech outdoor wood-burner in 2008.

smokeB160601Choking on the enveloping smoke, the Haffners sued, alleging that the Nelsons’ and Clarks’ furnaces “generated smoke, soot, noxious fumes, and fly ash, which damaged their property, caused them physical injury, and reduced the value of their property, as well as infringed on their use and enjoyment of the land.” The Haffners asked for an injunction from the court ordering the neighbors to quench their fires, along with some money to ease their suffering.

The case should have been a dead bang winner for the Haffners. Iowa law requires that people use their own property in a manner that will not unreasonably interfere with or disturb their neighbors’ reasonable use and enjoyment of their property.” In fact, Iowa Code § 657.2 specifically defines “[t]he emission of dense smoke, noxious fumes, or fly ash in cities [as] a nuisance …”

glass-houseBut their victory went up in smoke. It turned out that the Haffners were living in a glass house, having operated their own wood furnace for 20 years. They couldn’t very well prove any damage to their property or health arising from the Nelsons’ and Clarks’ wood furnaces when they were generating smoke with their own furnace like a politician on the hustings.  The medical maladies the Haffners said were caused by the smoke existed year around, even when the furnaces were stone-cold during the summer. Other neighbors who lived nearby testified that they had not been bothered by the Clarks’ and Nelsons’ furnaces.

We know what you’re thinking: there must be a backstory here. Indeed. There was some evidence of animosity between the Haffners and their neighbors that had nothing to do with smoke.

Haffner v. Clark, 795 N.W.2d 99 (Court of Appeals, Iowa, 2010). The Haffners lived between the Clarks and the Nelsons. In about 1984, the Clarks installed a wood-burning furnace to help heat their home. The Nelsons installed an outdoor wood-burner in 2008.

The Haffners sued, alleging that smoke, soot, fumes, and fly ash infringed on their use and enjoyment of their land. The Haffners asserted claims of nuisance, negligence, assault, and trespass, and sought a court order that the Clarks and Nelsons stop using their furnaces, and for damages.

The trial court found that the furnaces were not a nuisance and that the Haffners delayed unreasonably in suing (which is to say it accepted the defense of laches and estoppel).

The Haffners appealed.

Held:  The appellate court held that the Haffners had failed to prove the neighbors’ smoke was a nuisance.

smoke160601The law of nuisance directs that “parties to use their own property in a manner that will not unreasonably interfere with or disturb their neighbors’ reasonable use and enjoyment of the neighbors’ property. A private nuisance is an actionable interference with a person’s interest in the private use and enjoyment of the person’s land.” The definition of a nuisance is “[w]hatever is injurious to health, indecent or unreasonable offensive to the senses, or an obstruction to the free use of property, so as essentially to unreasonably interfere with the comfortable enjoyment of life or property…”

The Court of Appeals observed that in determining whether an activity is a nuisance, the standard is whether normal people in the community would regard the conduct as “definitely offensive, seriously annoying or intolerable.” Under this standard, the Court agreed that smoke, odor, and other attacks to the senses could constitute serious harm. The Court admitted that saving on fossil fuels might be a societal benefit, but it was of minimal utility compared to generating foul smoke.

Nevertheless, the Haffners’ complaints did not a nuisance establish. The Haffners – who themselves had owned their own wood furnace for 20 years – were unable to present evidence proving any damage to their property or health arising from the Nelsons’ and Clarks’ wood furnaces. The medical conditions that the Haffners alleged were caused by the smoke existed year-round, even during the summer. Other witnesses living nearby testified that they had not experienced any smoke infiltration, odors, fumes, or fly ash from the Clarks’ and Nelsons’ furnaces.

The Court found it was material to its decision that the Haffners had waited 20 years before lodging any complaint with authorities, and noted in passing that there was evidence that the Haffners and their neighbors did not get along for reasons that had nothing to do with furnaces.

– Tom Root

TNLBGray

Case of the Day – Friday, May 7, 2021

BROTHERS, CAN YOU COLLECT A DIME?

dime160531One of the first rules that personal injury lawyers learn in law school is “find the deep pocket.” After all, what good’s a million-dollar judgment against some guy whose earthly assets consist of a 1998 pickup truck and a rusty chain saw?

Today’s victim, one of the Brothers brothers, was hurt while he performed tree trimming. An employee of Tamarack Forestry Services, Bro was struck by an aerial lift truck operated by another Tamarack employee. Of course, workers comp would have covered the accident, and at the same time would prohibit him from suing his employer (one of the tradeoffs demanded by the workers’ comp system, which is intended to stand in place of the old “sue and score” personal injury lawsuit). That just wouldn’t do, because without a good negligence lawsuit, how could Brothers’ personal injury lawyer find a pocket to pick?

Lucky for Brothers that his employer, Tamarack, had been hired by New York State Electric and Gas Corp., a public utility that had plenty of money: just look at your light and gas bills if you doubt that. NYSEG was no patsy, pointing out that Tamarack was merely an independent contractor, a fact which normally would make NSYEG not responsible for the accident.

It seems, however, New York law has an exception where the employer of an independent contractor had a contractual duty that it couldn’t delegate, such as where it had agreed to be liable for a contractor’s negligence. It turned out NYSEG was working on a DOT right-of-way, and it annually got a blanket license from the State allowing it to do so. The license had some boilerplate in it that NYSEG would comply with federal and state worker safety regulations.

“Ah-ha!” cried Brothers’ lawyer, “a nondelegable duty!”

pocket160531“Ah-ha nothing!” cried the New York Court of Appeals (the state’s highest court), holding that the non-exclusive license to trim trees created no duty that NYSEG owed DOT. Besides, the court said, public policy (which is what the court cites when it knows where it wants to g0 but doesn’t know exactly how to get there) argues against such an unreasonable expansion of the “nondelegable duty” doctrine.

Which is not to say that the Court was wrong. It concluded that making NYSEG liable simply because the State of New York required it to buy boilerplate permits around the station would completely disrupt the company’s use of contractors to perform work, would bring utility maintenance to a screeching halt, at least until rate increases were approved to cover all of the

Brothers v. New York State Elec. and Gas Corp., 11 N.Y.3d 251 (N.Y. Court of Appeals, 2008). Mr. Brothers sued New York State Electric & Gas to recover damages for injuries he sustained as an employee when he was struck by an aerial lift truck operated by a coworker. The public utility had contracted with Brothers’ employer, Tamarack Forestry Service, Inc., to furnish all necessary labor, supervision, and equipment to clear trees and brush along electric lines. NYSEG routinely obtained annual blanket highway work permits from the New York State Department of Transportation for work to be performed along state highways. Under the permit, NYSEG was required to comply with various federal and state worker safety regulations. The trial court refused the grant NYSEG summary judgment dismissing Brothers’ action. Brothers appealed, and the intermediate appellate court affirmed the trial court. Brothers then appealed to the state’s highest court.

Held:   NYSEG could not be sued by Brothers. It’s true that in the work permit, NYSEG “assumed a specific duty by contract” to comply with federal and state worker safety regulations, but such a permit is not a typical “bargained-for exchange.” Although the State charges a fee for the permit, the fee is nominal consideration. A permit holder’s “breach” of the permit’s conditions does not give rise to the usual contract remedies. In fact, DOT may revoke the permit at any time whether or not there is a breach.

Nevertheless, the permit imposed certain obligations on the permit holder. Its terms and conditions are not meaningless or optional; instead, the permit holder agrees to abide by them in order to obtain DOT’s permission to work in the highway right-of-way. The Court said that the key issue was whether NYSEG has undertaken a nondelegable duty to comply with the safety regulations enumerated in the permit for Brothers’ benefit.

Gen. Robert E. Lee knew something about duty ... and even he couldn't have found that NYSEG owed one to Mr. Brothers.

Gen. Robert E. Lee knew something about duty … and even he couldn’t have found that NYSEG owed one to Mr. Brothers.

Whether a particular duty is properly categorized as ‘nondelegable’ necessarily entails a sui generis inquiry where “the conclusion ultimately rests on policy considerations.” And here, several policy considerations argued against sticking NYSEG for Tamarack’s negligence. First, the Court said, “expanding vicarious liability to cover these work permits would make NYSEG potentially liable to a large class of plaintiffs, thus extending its duty beyond any reasonable limit.” Every year, public utilities pull highway work permits covering extensive areas and, for practical reasons, routinely hire hundreds of independent contractors to perform the construction or maintenance needed. The Court said that while an injured employee’s recovery from an independent contractor is limited by workers’ compensation, “this is not sufficient justification to impose vicarious liability on a utility that does not supervise or control the injury-causing work.”

After all, New York law requires utilities to obtain permits, and they do not have the power to bargain for terms and conditions of those permits. Brothers complained that NYSEG should be liable because it voluntarily assumed a duty to comply with the safety regulations recited in the permit. The Court disagreed: “NYSEG does not really have a choice in the matter; it cannot shirk maintenance work in state highway rights-of-way.”

– Tom Root

TNLBGray