Case of the Day – Monday, October 18, 2021

THE RISK WAS OBVIOUS TO A CHILD

The McDonald's coffee lawsuit - easy to deride, but conventional wisdom is probably wrong.

     The McDonald’s coffee lawsuit – easy to deride, but conventional wisdom is probably wrong.

At least until the advent of social media, tort law was cited as the best evidence for the demise of the Republic. You know the folklore about the McDonald’s coffee case (which in reality, wasn’t so outrageous after all) and the phony “view with alarm” e-mails that circulate about absolutely fictitious decisions.

But truth be told, most tort law decisions aren’t nearly as outrageous as its would-be reformers would have us believe. Take today’s case. Some boys were playing at a school playground, and decided to raid oranges from a neighbor’s tree. After they had gotten all the low-hanging fruit, one of them stuck his bicycle handlebars in the chain link fence, climbed up his makeshift ladder, and reached across the fence. Naturally, the bike came loose from the fence and he fell, cutting himself on the sharp tines on top of the fence.

The boy sued the school district for maintaining a dangerous fence. The only outrage was that his lawyer decided to sue at all. The fact that no one had ever been hurt on the fence in 16 years didn’t matter. The boy’s attorney argued that it was reasonably foreseeable that young boys would be attracted to oranges adjacent to the fence and would use the fence (whether by climbing or using a bicycle or other means to fashion a ladder) to enable them to reach the fruit. The Court said ‘nonsense’.

Kids really do some pretty foolhardy things.

Kids really do some pretty dumb things.

Chain link fences are ubiquitous, the Court said, but not even kids — who are held to lower standards than adults — would think that it was a reasonable use of the property to thread bicycle handlebars through the links to make an impromptu ladder. The dangerous condition of property should be defined in terms of the manner in which it is foreseeable that the property will be used by persons exercising due care. After all, the Court said, any property can be dangerous if used in a sufficiently abnormal manner.

This decision would be refreshing were it not so commonplace. Fewer than 5 percent of all civil cases are torts, and only about 4 percent of those go to trial. Recent statistics show that plaintiffs only win about half of the trials, and only half of those winners get more than $24,000 in damages. Most tort lawsuits are losers. Contrary to conventional wisdom, tort law does not always come with a leprechaun and a pot of gold.

A Justin Bieber tattoo at age 13 would qualify as one ...

             A Justin Bieber tattoo at age 13 would qualify as one …

Biscotti v. Yuba City Unified School Dist., 158 Cal.App.4th 554 ( 2007). Nine-year-old Christian Biscotti and his friends were riding bicycles on the grounds of a public school. The boys decided to pick oranges from a tree located in a neighbor’s yard, which was separated from the school’s grounds by a metal chain link fence. The fence, installed when the school was built in 1959, had metal prongs across its top edge. After the boys had picked all the oranges they could reach from the ground, Christian placed a bicycle next to the chain link fence, poking one handlebar through an opening in the fence to help stabilize the bicycle. He then climbed up and stood on the bicycle, balancing himself with one foot on its seat and his other foot on the bar. While Christian reached over the fence and yanked on an orange, the bicycle slipped and he fell onto the fence. His left arm struck the metal tines and was cut.

For at least 16 years prior to the accident, there had been no reported complaints about the safety of the fence and no reported accidents or injuries related to it. That didn’t keep Christian from suing Yuba City Unified School District, which promptly won on summary judgment. Christian appealed.

Standing on the seat and handlebars of a bike leaning against a chain-link fence ... who could imagine that could go so wrong?

Standing on the seat and handlebars of a bike leaning against a chain-link fence. in order to pick an orange … who could imagine that such a reasonable activity could go so wrong?

Held: The school district was not liable. In California, public entity liability for personal injury — governed by statute — is imposed for injuries caused by a dangerous condition of public property where a plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. A “dangerous condition” of public property is a condition of property that creates a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable that it will be used. The intent of these statutes, the Court said, is to impose liability only when there is a substantial danger which is not apparent to those using the property in a reasonably foreseeable manner with due care.

The Court held that Christian failed to raise an issue of material fact as to whether the school district maintained a dangerous condition on its property. The Court said that the risk of falling and being seriously injured would be obvious even to a nine-year-old boy at the time Christian poked the handlebar of his bicycle into an opening in the chain link fence, climbed onto the bicycle, balanced himself with one foot on the seat and his other foot on the bar, and reached over the fence to pick an orange from a tree on the adjacent property. While unfortunate, the injury that resulted when the readily apparent risk of falling became a reality is not compensable. The undisputed facts established that Christian was not using the fence with due care in a manner in which it is reasonably foreseeable that it will be used.

The lesson the boy learned, the Court observed, is that tort law did not protect him from the consequence of his careless decision.

– Tom Root

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Case of the Day – Friday, October 15, 2021

SELF-HELP CONDEMNATION

Condemnation is the process by which a public entity takes private property. The 5th Amendment requires that due process be followed, in that the taking not be arbitrary and be the result of necessity, that the owner is fairly compensated for the property that has been taken, and of course that the owner have a chance to challenge the taking in court.

Occasionally, the government will take a piece of property by conduct. A good example would be passage of a state law to preserve wilderness, the effect of which would be to close roads through state forests that cut off access to private property for lumbering. Then, the proceeding is called inverse or reverse condemnation, a suit against a government to recover the fair market value of property which has in effect been taken and appropriated by the activities of the government when no eminent domain proceedings are used.

None of this seems to have much to do with trees, especially your rights to compensation if state employees come onto your land and cut down a tree because they’re geographical klutzes. After all, the state has to intend to take your property (and take specific steps to do so) in a condemnation action. Even where the condemnation is a reverse one, the state has to deliberately do whatever it does to cause your property to lose value.

That’s why I was surprised and a little troubled by the Commonwealth of Kentucky’s response to its highway department employees’ goof in cutting down a boundary line tree without approval of the private landowner. If the trespassers had been Joe’s Tree Service, we know how it would have turned out: a trespass action, with damages for the trespass and the tree removal. But because the employees worked for the state, poor Gini Grace found out much after the fact that what had occurred was not a trespass, but a reverse condemnation.

To be fair, Gini’s lawyer might have saved the action as a negligence case and not a reverse condemnation had the complaint alleged negligence-type damages beyond the loss of the tree. But to me, that note in the opinion seemed to be a make-weight. Had her complaint alleged torn up lawn, driven-over shrubs, and Moon Pie wrappers littered about, I suspect the court would have just found a different way to get to its reverse-condemnation conclusion.

Not only did the rules get rewritten when the state trespassed on Gini’s place, but they were rewritten after the fact. Gini, don’t ever play poker with the Commonwealth of Kentucky, lest you learn too late that a pair of twos really does beat a royal flush.

Grace v. Commonwealth, Case No. 2018-CA-001488-MR (Ct.App Ky. Oct. 11, 2019) 2019 Ky. App. Unpub. LEXIS 727.

The Kentucky Department of Highways (“KYTC”) is responsible for maintaining state highways, including elimination of hazards. In March 2012, KYTC removed a tree which KYTC believed to be located, at least partly, on the right-of-way and encroaching the highway. Gini Grace filed a complaint with the Kentucky Claims Commission, alleging KYTC negligently trespassed and cut down her tree. KYTC moved to dismiss the claim.

The Commission found that two-thirds of the tree was on the state right-of-way and the remaining portion was on Gini’s land. It found KYTC negligent for failing “to conduct a reasonable inquiry and ascertain where the property lines were before they cut the tree,” and awarded Grace $11,666.66 plus the cost of removing the stump.

The McCracken Circuit Court reversed the order of the Commission and dismissed Gini’s claim, concluding it was a claim for reverse condemnation, rather than negligence. And, because the Commission only has jurisdiction over “negligence claims for the negligent performance of ministerial acts against the Commonwealth,” the Court ruled, it lacked subject matter jurisdiction over Gini’s claim. Gini appealed.

Held: The Commission lacked jurisdiction over Gini’s claim, and the claim thus had to be dismissed.

The Kentucky Claims Commission has “primary and exclusive jurisdiction over all negligence claims for the negligent performance of ministerial acts against the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any officers, agents, or employees thereof while acting within the scope of their employment.”

Reverse condemnation is a suit against a government to recover the fair market value of property which has in effect been taken and appropriated by the activities of the government when no eminent domain proceedings are used. Gini Grace’s claim form filed with the Commission, alleged that a “tree, 3ft in diameter was cut down by the Highway Dept. without my permission.” This was the only injury asserted. Gini did not allege any additional damage to her property arising from KYTC’s negligence. Therefore, the Court ruled, Gini’s claim to recover the value of the tree “is in the nature of a claim for reverse condemnation.”

Gini argued that she claimed negligence because her claim form indicated KYTC “negligently trespassed” onto her property to remove the tree. The Court admitted that a trespass was necessary to cut the tree, but ruled that the damages Gini claimed do not emanate from the trespass, but from the taking.

KYTC was negligent in failing to determine whether the tree was on the state right-of-way, but Kentucky law holds that where an entity possessing the power of eminent domain prematurely enters upon private premises, the exclusive remedy of the landowners is based on Kentucky Constitution, Section 242, which provides that ‘just compensation for property taken’ shall be made. This rule preempts claims asserting negligent trespass that result in a taking.

Because Grace’s injury arose due to KYTC prematurely entering her property and removing the tree, her sole remedy lies in an action for reverse condemnation. Therefore, the Commission lacked subject matter jurisdiction of her claim.

– Tom Root

And Now The News …

Phoenix, Arizona, Patch, October 14, 2021: South Phoenix Residents Seek Preservation Of Historic Palm Trees Displaced By
Light Rail

On a late summer afternoon, Victor Vidales walked along the one-acre lot of his backyard that is temporarily housing more than two dozen palm trees. Dried weeds and rocky soil crunched under his flip flops. “If these trees could talk, what would they say?” Vidales said, as the tall and thin palm trees towered over him. Vidales, a South Phoenix resident who can proudly trace back his roots to the neighborhood for generations, is temporary steward of these palm trees, some with healthy green fronds, others bare at top. “They saw all the killings, all the murders, but they also saw all the quinceañeras, all the weddings,” Vidales said, imagining the stories the trees would tell. The palm trees housed at Vidales’ property were once a landmark of south Central Avenue. The trees were planted along the median and, residents say, had been there for about 60 years. The future of the iconic trees was endangered when plans for a $1.3 billion South Central/Downtown Hub project that will bring the light rail to south Phoenix were drawn up. To make way for the light rail tracks and system, the median and the trees would be gone…

Walla Walla, Washington, Union-Bulletin, October 14, 2021: New Walla Walla tree plan calls for planting 300 trees per year

A new plan for planting and maintaining trees in Walla Walla was approved unanimously at a Wednesday, Oct. 14 City Council meeting after a long, and at times, controversial process. The plan, which calls for $315,454 over five years for planting new trees and over $2.6 million for pruning and maintenance of the city’s nearly 8,000 trees, replaces the city’s 2003 Urban Forestry Management Plan. The plan calls for the city to plant nearly 300 new trees annually, or four new trees for every tree that needs to be removed every year on average. Pruning and maintenance is more costly than planting new trees, according to city staff, hence the larger budget for the former. New tree plantings would be concentrated in the city’s West and East wards, according to city staff, which have historically not had as many plantings. Several updates were made to the plan since it was last seen by the City Council in July, including a sample five-year budget for planting and plans to encourage community buy-in, as most land in the city where trees can be planted is privately owned, according to Parks and Recreation Director Andy Coleman. These updates came after weeks of review and community input, including vocal opposition from activist group Tree People of Walla Walla, who had criticized the lack of a planting budget in the draft plan presented in July. The inclusion of this budget in the plan approved Wednesday did not assuage their concerns, said Tree People co-founder Gayle Bodorff, who called the plan inadequate…

Farm Progress, October 13, 2021: My love-hate relationship with black walnut trees

On a mid-September day, I could hear the wind howling as I tapped away on my laptop keyboard. Sitting at the kitchen table, which is next to the back door to the porch, a loud thud grabbed my attention. It was followed by two more booming thuds and then a tap on the door. I thought it was strange someone would be visiting using the back door. From the racket, I was half expecting the Jolly Green Giant. But there were no visitors, unless you count the bushy-tailed kind, standing upright balancing on his back legs while his tiny paws clutched a nut covered with a lime-green husk. The thuds were black walnuts dropping on the porch from several of the 60-foot-plus-tall walnut trees in my backyard. One rolled to the door mimicking a knock. It’s been a banner year for walnuts. Some say that’s a sign of a long, cold winter ahead. I think it has more to do with the cycling of the tree, but believe what you will. Like a lot of people, I have a love-hate relationship with black walnut trees. In the summer — there’s more than a dozen in my yard — they provide great shade, and in the fall the leaves turn golden. But black walnut trees are very selfish. The roots, which may extend 50 feet or more from the trunk, exude a natural herbicide known as juglone, which is also found in the tree’s leaves and husks…

San Antonio, Texas, KSAT-TV, October 14, 2021: General Sherman tree still standing, but it’s not out of the figurative woods yet, as California wildfires rage on

General Sherman is still standing, but it’s not out of the figurative woods just yet, as it still towers in one of the county’s most famous stretch of woods. The biggest and most famous of all the sequoia trees in California’s Sequoia National Park, General Sherman, has yet to be affected by the surrounding wildfires plaguing the area and destroying other trees and acreage. There are concerns it might, given the tree’s base was wrapped in aluminum-based, burn-resistant material back in September. At 275 feet tall and more than 36 feet in diameter at its base, General Sherman is larger than the Statue of Liberty. It is estimated to be more than 2,000 years old, and was named after Civil War General William Sherman. Ever since lightning ignited the KNP Complex fires on Sept. 9, there have been more than 184,000 acres and at least 26 groves of giant sequoias that have been charred, according to an article in the Los Angeles Times…

San Jose, California, Mercury News, October 13, 2021: Why PG&E’s wildfire safety triggers are sparking controversy instead of deadly blazes

During this tinder-dry wildfire season, a change to Pacific Gas & Electric’s power lines has dramatically reduced the risk of sparking calamitous and killer blazes. But every time a rogue squirrel gets zapped, hundreds of rural residents are suddenly plunged into darkness – for hours, sometimes days. Computer screens go blank. Stoves don’t work. WiFi goes dead. Refrigerators stop cooling. “It’s like camping,” said Barbara Melchin, a 71-year-old widow who was forced to haul water in buckets during one recent outage in the Santa Cruz Mountains, because her well quit working. “Life is controlled by this thought: ‘Am I going to have power?’ These unplanned outages are different than the now-familiar Public Safety Power Shutoffs (PSPSs), like the one Monday that pre-emptively shut off power for 24,000 customers in 23 counties because of windy weather and high fire risks. In contrast, the new shutoffs are spontaneous and surprising, often on calm days…

South Bend, Indiana, WBND-TV, October 13, 2021: Tree removal companies busy after Monday’s severe weather

The cleanup continues two days after storms slammed Michiana. Torrential downpours and severe wind gusts sent many trees toppling. Tree removal crews were at a house in Granger Wednesday afternoon, armed with chainsaws, cranes, and woodchippers. A large tree crashed through the roof of a garage on Monday and needed to be cleared. The damage was caused by the combo of wet ground and strong winds. However, Michiana’s lack of fall weather so far means that most of the leaves are still on the trees. This can weigh things down and making it easier for trees to fall during storms, according to experts. “When there are leaves on the trees and they are wet, it’s like a sailboat,” Walt Temple, owner of Temple Tree Service explained. “The wind will catch onto those leaves and will add stress. If the tree is sitting in an area where the root-ball, the ground is so wet and you get that kind of leverage, it’ll tip right over, which is what we had here…”

South Windsor, Connecticut, Patch, October 13, 2021: Good Deed Shows No Tree Is Too Big For South Windsor Arborists

A South Windsor-based tree contractor had a chance to show off just what a new piece of equipment could do recently while also performing a good deed. Jason Yerke, a Vernon native and the owner of Distinctive Tree Care in South Windsor, recently purchased a new piece of equipment to take down dead and dying trees along roads and highways. He was looking for a place to get his crews practice time on the machine. Yerke and his company do a lot of work for the state Department of Transportation and Department of Energy and Environmental Protection removing dead and dying trees from along state highways and from state parks. The machines Jason has purchased enable his crews to do in a day what a traditional tree crew, using a bucket truck, would take weeks to achieve. The new one takes it to a new level…

Washington, Missouri, eMissourian.com, October 13, 2021: ‘Resilient’ trees taking root at Marthasville trailhead

A 200-yard stretch of the 240-mile Katy Trail got a bit nicer Saturday. Around 20 people, working with nonprofits Forest ReLeaf of Missouri and Magnificent Missouri along with the Missouri Parks Department, planted 65 trees along the trail near its trailhead in Marthasville. The trees included Kentucky coffeetrees, hackberries and a variety of oaks. The project, which started in March with a planting a few miles away in Dutzow, is part of a three-year quest to plant 300 trees on the trail using a $28,000 annual grant from the Robert J. Trulaske Jr. Family Foundation. “We’ve been scrambling to get it all done,” Meridith Perkins, executive director of Forest ReLeaf, said about three hours into Saturday’s planting. The groups plan to plant another 100 trees next year, starting in the spring. The grant also includes money for staff time…

Honolulu, Hawaii, KHON-TV, October 12, 2021: Christmas without a Christmas tree? Experts urging consumers to buy earlier due to possible shortages

Extreme weather along the west coast, including fires and heat waves, have impacted Christmas tree crop. Some Oregon farmers have lost up to 90% of their trees this summer, and a few local carriers rely on those farms and are pivoting to be able to provide this Christmas. Habilitat is already making adjustments to its Christmas tree order. “There was some damage created by the high heat that happened this year, especially some of the grand furs are going to be in short supply and some of the noble furs might be a little bit smaller than people are used to seeing,” said Becky Harrison, Habilitat marketing director. The nonprofit organization is still expecting to bring in 5,000 trees for its annual sale. Meanwhile, Paula Tajiri, owner of Christmas Hawaii, is relieved after checking on her crop in Washington. “Luckily our contracted farm has little damage so it didn’t really affect us too much,” said Tajiri. For local growers like Hamakua Christmas Tree Forest on Hawaii Island, they’re already selling to accommodate the impacts from mainland farms. “You can tag a tree, you can pay for it and put a tag on it, and then come back and get it in a month or so when you actually want it,” said Richard Bradwell, owner of Hamakua Christmas Tree Forest. “That way you can guarantee getting a tree without having to worry about it later. That seems to be where everybody’s worried about, that the trees wouldn’t be available…”

Denver, Colorado, Colorado Sun, October 13, 2021: Trout (and anglers) love Colorado’s Dream Stream — and transported trees could keep it thriving

On a brilliant October late afternoon, Jerry Backes casts a long shadow into the steady current of the South Platte River, in roughly the same direction he casts a fly to entice the teeming life below. The water carries his line for a few seconds but soon snags on vegetation coursing downstream. But for Backes, a 68-year-old retired electrical engineer from Missouri who ventures to Colorado a couple of times each year to experience what anglers call the Dream Stream, hope resides in the next cast. And soon he’ll feel the telltale tug that reminds him why he came here. “It’s a good time every time I come out,” he says. Situated at 8,700-feet elevation in one of the largest plateau basins in North America, cradled by hills with snow-dusted peaks in the distance, this stretch of the South Platte owes its reputation to a combination of circumstances that create ideal habitat for fish — largely brown and rainbow trout but also species like kokanee salmon. They not only breed in sustainable numbers but also live long and grow to eye-popping sizes…

The Architectural Review, October 13, 2021: Urban lumber: timelines of street trees

In cities across the United States and the world, street trees have, for centuries, been a crucial agent of urban beautification and identity. These trees have offered their own kind of spatial definition, extending the sense of enclosure and protection offered by buildings into spaces of public movement, rest and gathering. They define edges of urban thoroughfares, implying tunnels or partitions with their regularly spaced trunks. They form rooms and halls in the city, creating a verdant commons. Street trees make space and take up space through their physical form, but they also create dappled shade – extending Lisa Heschong’s enduring call for attention to ‘thermal delight’ in architecture, proposing an enhanced attention to the range of thermal experience offered by the built environment to the outdoors. Simultaneously, at the ends of their lives, these urban space- and shade-makers have frequently been unceremoniously chopped, chipped and hauled away. Their wood is often gnarly and wildly figured, and is commonly of unfamiliar species (in the context of lumber, not trees) that would confound all but the most versatile artisans and craftworkers. Over the past century and a half, street trees in many major cities have had to become resilient on terms that are very specific to the ways that the underground and overhead space of the street itself has modernized…

Jackson Hole, Wyoming, News & Guide, October 12, 2021: My failed, transformational fight for whitebark pine

At 3:45 a.m. I climb on my bike at the Elkhart Park trailhead, one of the many gateways into Wyoming’s mighty Wind River Range, and ride away from the mountains. I’m not entering the Winds here. Instead, I’ll pedal 65 miles to the Green River Lakes trailhead, then walk, climb and swim through the Winds until I’m back at Elkhart Park. Yes, swim. This is my third attempt at the Winds Picnic, a ludicrous adventure I’ve created that entails swimming five lakes on the way to the top of Gannett Peak, Wyoming’s highest point, then swimming five lakes on the way down, and linking both ends of this watery alpine traverse with a bike ride… This will be the adventure of my life, so far. But why? For the experience, the challenge, and to assuage the demons remaining from my brief time leading a small nonprofit advocacy group that championed a species of high-elevation pine tree. I founded TreeFight in 2009 to bring awareness to the devastation pine beetles caused whitebark pine due to the effects of climate change. After years of not noticing these distinctive, candelabra-shaped pines while skiing and climbing, I learned of this cataclysm to their numbers (50% of mature whitebark would eventually die in a five-year period) and was floored by what we were losing…

Phys.org, October 11, 2021: Moose appetite for deciduous trees counteracts warming effects

Fast-growing deciduous trees can respond more quickly to a warmer climate than conifers, so climate change will influence the composition of forests through increased deciduous tree growth. But deciduous species are also the most vulnerable to browsing. “We studied how moose modify the climatic effect on boreal trees on two continents,” says biologist Katariina Vuorinen, who defended her dissertation earlier this year. Vuorinen took her doctorate at NTNU, focusing on herbivore browsing in 47 demarcated sites in Norway and 15 sites in Canada. Many assistants supported her in taking the annual spring measurements in the relevant areas. Vegetation growth in fenced areas where moose were excluded was compared with the surrounding vegetation. The researcher modeled causal relationships that took into account different climatic factors, various tree species, competition between tree species, tree height, time, food availability and presence of herbivores as well as browsing intensity.Moose browsing led to less growth in rowan and birch trees in Canada and in birch and pine in Norway. In Canada, rowan grew 12 cm less and birch 13 cm less than in the fenced-in plots. In Norway, birch grew 8 cm less and pine 3 cm less than in similar exclusion plots. Vuorinen concluded that moose browsing counteracts the effect of a warmer climate on forest growth. But her research also shows that the foraging impact varies depending on other factors in each ecosystem, such as snow, which protected the trees from browsing moose…

Hyperallergic, October 10, 2021: Mourning a Tree That Has Lain Down

The story behind the piece “Fallen” (2021) by Jean Shin is that a hemlock tree, now horizontal, cut from its roots, and suspended above the ground by two boulders, was going to die anyway. The groundskeeping team at the Olana State Historic Site couldn’t heal it. Because of the tree’s size it was feared that in the upcoming winter storms it might fall and damage the nearby main house. Shin determined to commemorate this one death that stands in for many. The ongoing pandemic has felled hundreds of thousands of people, their lungs ravaged by a virus they couldn’t see, borne on the air we must breathe. Many of these people (including my grandfather) were buried hurriedly, without the presence of family to wave them on with loving rituals from this shore to the next. They did not have the benefit of being properly mourned, held, and released. So Shin gave this ritual gentleness to a tree. She coordinated with the state’s parks department to salvage the trunk and bark after they had cut it down. Working with William Coleman, the director of collections and exhibitions, Shin reenacted the stripping of the bark and then, using leather (which they term “dead stock”) sourced from fashion houses and the upholstery industry, she clothed it in that animal skin riveted together to form a funeral shroud…”

Albany, New York, Times Union, October 11, 2021: Watervliet launches program for public support to plant trees

The city owns 3,400 trees and is pushing its new Memorial Tree Program to let residents sponsor a tree in an attempt to create a sustaining effort to plant more trees on municipal property. All a person has to do is write the city a check for $150 to claim sponsorship for a tree, which will be numbered and include a small plaque with the name of the person for whom the tree is dedicated. “This way we’ll raise more money for more trees. It won’t cost the taxpayers anything,” said Bill Fahr, a member of the Watervliet Tree Committee. The flowering trees help brighten up the city when they bloom in the spring and when their leaves change colors in the fall. Crabapple, Callery pear and cherry trees are some of the types planted by the city, said Dan McGrath, an arborist and chairman of the Watervliet Tree Committee. “We try to go with the small trees,” McGrath said pointing out the difference between the trees considered appropriate for planting in street rights-of-way so they fit into the urban landscape and larger maple trees found in residential backyards which are bigger…

Palm Beach, Florida, Post, October 11, 2021: West Palm’s tree survey: It’s time to start planting more shade trees to combat climate change

A tally of West Palm Beach’s trees is underway, with a surveyor documenting the species, size and health of every shade-maker in neighborhood rights-of-way and medians. The count is part of the city’s effort to fight climate change and work toward its goal of reaching net-zero greenhouse gas emissions by 2050. That means encouraging people to walk or bike instead of drive, and to do that in South Florida shade is a necessity. “You don’t want to be biking or walking in the full sunshine, and because of climate change we are having more and more days that are hotter and hotter,” said Penni Redford, West Palm Beach’s resilience and climate change manager. “We have a focus on trees as a city and you can’t really manage and improve something that you don’t have a good metric on.” Palm Beach County’s average daily temperature has increased nearly 4 degrees since 1900, from 73 degrees to 2020’s average of 76.9, according to the National Centers for Environmental Information…

Washington, D.C., The Hill, October 7, 2021: Who is going to plant all those trees? Thune’s
bill addresses multi-year tree planting backlog

Trees have been getting a lot of attention as a natural carbon storage solution, and rightfully so. Trees are truly amazing; they act as sponges pulling in carbon dioxide from the air, absorbing the carbon, and then releasing oxygen back into the atmosphere. The carbon is then stored in the trees and forest soils. Even sustainable harvesting of trees converted to wood products like lumber, engineered wood products, and paper continue to store carbon. And trees are a renewable and sustainable resource — through growth, carbon storage, and harvest, the cycle of forest renewal can continue indefinitely for centuries. Congress has recognized the value of planting trees to mitigate and reverse the effects of a changing climate. Several bills introduced in this Congress call for increased tree planting and tree seedling production. These include the Trillion Trees Act (H.R.2693), the REPLANT Act (S.866), and most recently, America’s Revegetation and Carbon Sequestration Act (S.2836). The REPLANT Act provisions are included within the Senate Bipartisan Infrastructure bill that passed in August 2021. Each of these bills recognize the need to produce more tree seedlings and plant trees. But what is missing is a way to ensure there is labor available to plant the trees…

Las Vegas, Nevada, Sun, October 7, 2021: California fires may have killed hundreds of giant sequoias

Northern California wildfires may have killed hundreds of giant sequoias as they swept through groves of the majestic monarchs in the Sierra Nevada, an official said Wednesday. “It’s heartbreaking,” said Christy Brigham, head of resource management and science for Sequoia and Kings Canyon national parks. The lightning-caused KNP Complex that erupted on Sept. 9 has burned into 15 giant sequoia groves in the park, Brigham said. More than 2,000 firefighters were battling the blaze in sometimes treacherous terrain. On Wednesday afternoon, four people working on the fire were injured when a tree fell on them, the National Park Service reported. The four were airlifted to hospitals and “while the injuries are serious, they are in stable condition,” the report said. It didn’t provide other details. The KNP Complex was only 11% contained after burning 134 square miles (347 square kilometers) of forest. Cooler weather has helped slow the flames and the area could see some slight rain on Friday, forecasters said. The fire’s impact on giant sequoia groves was mixed. Most saw low- to medium-intensity fire behavior that the sequoias have evolved to survive, Brigham said…

International Business Times, October 7, 2021: Tree Unidentified For Decades Now Declared New Species

For decades, scientists have been baffled by a mysterious tree in the Amazon rainforest. Now, it has finally been declared a new species. Samples of the mysterious tree were first collected by scientist Robin Foster on a forest trail in Peru’s Manu National Park in 1973, Field Museum noted in a news release. It was about 20 feet tall and had small orange fruits that looked like orange Chinese lanterns. “I didn’t really think it was special, except for the fact that it had characteristics of plants in several different plant families, and didn’t fall neatly into any family,” Foster, now of the Smithsonian Tropical Research Institute, said in the news release. “Usually I can tell the family by a quick glance, but damned if I could place this one.” Other scientists were also stumped by the mysterious tree that remained unidentified for many years. In their new study, published in the journal Taxon, a team of researchers finally identified the tree as a new species. “Preliminary molecular analysis indicated that it belonged to the Picramniaceae, even though the vegetative features were discordant,” the researchers wrote…

Fort Worth, Texas, Star-Telegram, October 7, 2021: Experienced arborists can help you keep your trees vigorous for many more decades

My good friend, the late Benny Simpson, was once describing growing up in the Texas Panhandle. Benny was one of Texas’ most noted tree experts, and trees were a love of his from the time he was a child until the day that he died. He once told me, “When I was a kid on Sunday afternoons, my dad would take me down to the river to see the tree.” We all need to have that same level of appreciation for trees here in Texas. They shade us and they protect us. They make our recreational spaces enjoyable many months of the year. And, as if all that weren’t enough, a properly chosen, placed and cared for shade tree can be worth thousands of dollars in the resale value of a Texas home. That’s been especially noticeable in the frenzied housing market of the past couple of years. It only stands to reason then, that you’d want to protect that investment by hiring only highly qualified professionals to work on your trees. How do you find such a company?…

Chicago, Illinois, WBEZ Radio, October 7, 2021: Chicago has only 50,000 ash trees left. Should we spend millions to keep them alive?

Chicago has tried for more than a decade to slow the declining health of ash trees, some of the city’s oldest and most mature trees that provide communities benefits like shade and flood mitigation, as the trees have been overcome by a small but mighty green pest. Starting in 2008, the city began inoculating the ash trees, which numbered about 96,000 at the time, against the invasive emerald ash borer beetle. But by 2018, with almost half of the ash population dead and removed, the city decided to stop inoculations and let the remaining 50,000 ash trees die off. Now with a flush of federal money in the city’s coffers, some activists and aldermen are pushing for the city to bring that inoculation program back, arguing it could save Chicago’s most populous tree, a key part of the overall tree canopy. That’s in part because of the type of trees ash are — featuring larger, wider leaves…

Stamford, Connecticut, Advocate, October 6, 2021: Eversource appealing Darien tree warden’s decision to not remove trees

Eversource is appealing the town tree warden’s decision that keeps it from removing dozens of trees in the Little Brook Road area as part of the power company’s vegetation management plan. The proposal to cut the trees has sparked controversy in town with many residents speaking out against the proposal citing environmental, safety and quality of life concerns. Eversource maintains that the clear-cutting is needed to ensure the safety and reliability of the power grid. Darien Tree Warden Michael Cotta issued a decision on Sept. 22, saying 21 of the tagged trees could come down because they are “diseased, defective or dead and provide little or no environmental benefit.” The decision came a day after a virtual public hearing drew 100 people, with most of the speakers opposing the proposal. His decision only concerns the trees in the town right-of-way adjacent to Little Brook Road and Raymond Street. The bulk of Eversource’s plan — which spans 18 miles along the company’s transmission lines, including 3.5 miles in Darien — involves clear-cutting on the state Department of Transportation property along the railroad tracks…

U.S. News and World Report, October 6, 2021: A Chilean Tree Holds Hope for New Vaccines – if Supplies Last

Down a dusty farm track in Chilean wine country, behind a wooden gate wrapped in chains, forestry experts are nursing a plantation of saplings whose bark holds the promise of potent vaccines. Quillay trees, technically known as Quillaja saponaria, are rare evergreens native to Chile that have long been used by the indigenous Mapuche people to make soap and medicine. In recent years, they have also been used to make a highly successful vaccine against shingles and the world’s first malaria vaccine, as well as foaming agents for products in the food, beverage and mining industries. Now two saponin molecules, made from the bark of branches pruned from older trees in Chile’s forests, are being used for a COVID-19 vaccine developed by drugmaker Novavax Inc. The chemicals are used to make adjuvant, a substance that boosts the immune system. Over the next two years, Maryland-based Novavax plans to produce billions of doses of the vaccine, mostly for low- and middle-income countries, which would make it one of the largest COVID-19 vaccine suppliers in the world. With no reliable data on how many healthy quillay trees are left in Chile, experts and industry officials are divided on how quickly the supply of older trees will be depleted by rising demand. But nearly everyone agrees that industries relying on quillay extracts will at some point need to switch to plantation-grown trees or a lab-grown alternative…

Stuart, Florida, Treasure Coast Palm, October 7, 2021: Florida gardening: Is it illegal to grow Brazilian pepper?

Q: I have just read an article about the Brazilian pepper tree and wanted to know if it is illegal to have one in my garden. My neighbor has been complaining about it and wanted to know if I am legally obligated to cut it down.
A: Such a loaded question! Brazilian pepper was brought to Florida from South America in the 1840s as an ornamental plant that bears red berries around the winter holidays. It was soon found to be spreading over much of Florida without help from humans, and it now is considered one of the most aggressive and invasive species found in Florida. Brazilian pepper is classified with poison ivy, cashews, and mangos. Named Schinus terebinthifolius by scientists and horticulturists, it is easy to recognize by its form and fruit. Brazilian pepper is an evergreen tree that can reach over 40 feet in height and width… Brazilian pepper is classified by the state of Florida as a noxious weed. This means it is unlawful to introduce, possess, move or release any part of the plant in Florida. Also, the live plants are not protected by any local or state laws or ordinances. Ordinances or rules requiring the removal of Brazilian pepper trees vary by municipality. Many entities such as counties, cities or villages do not have requirements to remove them from private property unless the property undergoes development and a permit of any type is required…

Case of the Day – Thursday, October 14, 2021

MULLIGAN SEASON


I may slip over the border (the border between the U.S.A. and our neighbor to the north, now that I can again) to enjoy turkey and all the fixings. My favorite holiday of the year is Thanksgiving, and thanks to a cultural quirk, our Canadian cousins celebrate it way before we do. Monday may have been Indigenous Columbus Day in the United States, but its turkey day in the provinces. Well, turkey and Jiggs’ Dinner and butter tarts.

And then, we get a mulligan, a do-over, on Thanksgiving in 45 days. Life is good. And after that, we’ll get Thanksgiving Day over, and over and over until the leftovers are either eaten or spoil.  As Yogi Berra might have said, today’s case and Thanksgiving dinner will both be déjà vu all over again.

It seems there was trouble in Randolph County, Alabama, up near the Georgia line. The Ledfords had purchased a nice vacation home on a lake, next to a place owned by the Youngs. While the Youngs appreciated the natural setting, the Ledfords were more concerned that nature’s bounty – specifically one large pine tree on the boundary between the Ledford’s land and the Young property – was going to fall on their house. They wanted the tree cut down. The Youngs refused. The matter ended up in court.

Of course, regular treeandneighborlawblog readers know how that should have turned out: if the tree really sits on the boundary line, both landowners have to agree before it can be cut down. The trial court reasoned otherwise. Under the Massachusetts Rule, a landowner can trim parts of a tree that overhang or grow under his or her property, all the way from the center of the earth to the sky. So that meant the Ledfords could cut out half of the tree, the court mused. That would kill the tree, but the court interpreted the Massachusetts Rule to mean that since you’re allowed to hack at the roots and branches of a tree without regard to the damage you cause, then you can take down the whole boundary tree if you like. The trial court gave the Ledfords the go-ahead to take down the tree.

The Youngs appealed, and common sense prevailed. The Court of Appeals explained the proper boundary tree rule, and reversed the trial court’s errant ruling. But in so doing, a few judges on the appeal panel wondered aloud (or at least, in the written opinion) why the Ledfords hadn’t argued that they had the right to cut down the pine tree because it was a nuisance. Remember Fancher v. Fagella? One judge went so far as to say that if the record held evidence of nuisance, he would have upheld the trial court, wrong though its reasoning was.

Do we have to spell it out? The trial court was just plain wrong.

Do we have to spell it out? The trial court was plain wrong.

Well, the Ledfords could take a hint. When the case went back to the trial court “for proceedings consistent with this opinion,” as the court of appeals decisions like to say, they asked for a do-over, a second hearing, this one on nuisance. ‘Hold the phone!’ the Youngs cried. ‘The Court of Appeals said the Ledfords lost. The tree stays standing. Game over.’

The trial court gave the Ledfords their mulligan. It ordered a second hearing, and afterwards found the pine tree to be a nuisance. The Ledfords were told they could cut it down. Again.

The Youngs went back the court of appeals for a writ of mandamus, essentially a request that the court of appeals issue an order telling the trial court it couldn’t hold the second hearing. The court of appeals refused to do so. Applying an obscure rule called the “law of the case” doctrine, the appellate court held that while the trial court was required to apply the ruling the court of appeals had issued, that ruling was just that the Ledfords could not cut down a boundary tree without the agreement of their neighbors. The court of appeals did not say the tree had to remain – just that if it was to be cut down, it couldn’t be on the basis originally articulated by the trial court.

The lessons here? The Ledfords’ attorney should have argued nuisance to begin with. It should have been clear that arguing that his clients could cut down a boundary tree was a loser. Besides, in civil litigation, you argue as many alternative theories as possible to get your clients where they want to end up. Who knows which one will be a winner?

Of course, the Ledfords ended up winning, and the pine tree lost. But as an old judge once cautioned us, you should never dig up more snakes than you can kill. Why buy a second trip to the court of appeals by leaving out an argument, and asking for a mulligan later?

A few too many snakes? The Ledford's lawyer courted procedural trouble.

A few too many snakes dug up here? The Ledfords’ lawyer courted procedural trouble.

Ex parte Young, 79 So.3d 656 (Ala.Civ.App. 2011): The Ledfords owned a vacation house with a pine tree located slightly over 10 feet from Ledford’s house, on the boundary between their property and that of the Youngs. Fearing that [a] strong wind against the tree could cause it to fall on the home and could cause damage to the [house] as well as serious injury to any occupants,’ the Ledfords wanted a court order that they could cut it down.

The Youngs argued that the pine tree was ‘a true boundary line tree’ and contended that it could not cut down by either property owner without permission of the other. After a hearing in which the Ledfords, the Youngs, and a forester hired by the Youngs all gave testimony, the trial court held that Ledford and her husband could remove the tree at their convenience, taking steps to minimize damage to the Youngs’ lot. The trial court held that because Alabama law let a landowner remove any trees on his or her property up to the property line, and this right extended to the center of the earth and into the sky, the Ledfords were free to hack into the pine tree up to the property line and then cut from that point to the center of the earth and into the sky. The Court said that “[s]ince [the Ledfords] unquestionably has the right to remove any portion of the tree that is located on [their] side of the property line and since doing so would likely kill the tree, the Court is of the opinion that [they] should be allowed to completely remove the tree to ensure” that the property and the health of anyone there are protected.

When the case got to the Court of Appeals the first time, it was promptly reversed. Rejecting the trial court’s tortured “center of the earth to the sky” analysis, the appellate court ruled that “[i]n the special case of a boundary-line tree, … each adjacent landowner has ownership rights that cannot be trumped by the other’s desires in the manner suggested by the trial court’s judgment” and that the Ledfords – contrary to the trial court’s judgment – could not properly “‘cut into the tree to the property line and then cut from that point to the center of the earth and into the sky'” without incurring liability to the Youngs.

But the appellate court went a little further. In a concurring opinion, two of the judges on the appellate panel observed that the action had been argued on the basis of the Ledfords’ contention that they were entitled to remove the boundary-line tree at issue merely because its trunk was located in part on their property. The judges noted that whether the “boundary-line tree at issue in this case constituted a nuisance for which an exception to the general rule set forth in the main opinion might apply” had not been litigated. A third judge on the panel said that had the record contained evidence indicating that the tree at issue posed a danger to the Ledfords’ house,” he would have voted to affirm the judgment instead of reverse it.

After the appellate judgment issued, the Ledfords asked the trial court for another hearing to consider whether the pine tree was a nuisance. The Youngs argued that the appeals court had decided in their favor, and the case should be closed. But the trial court had another hearing, and afterwards decided that the tree was a nuisance, and that the Ledfords could remove it on that basis.

The Youngs filed a petition for a writ of mandamus, asking the appeals court to order the trial court to enter judgment for them, and end the hearing.

Held: The Ledfords could cut down the tree. A court will issue a writ of mandamus only when the petitioner has a clear legal right to the order sought; the respondent has an imperative duty to perform, accompanied by a refusal to do so; there is no other adequate remedy at law; and the court has jurisdiction of the court.

Mulligan140206Here, the Court of Appeals said, the only real question was whether the trial court had the right to hold a second trial in this matter. The Youngs contended that the prior appellate court’s decision was final as to all matters before it and that the trial court, after that initial appeal, was not allowed to hold another hearing and take additional testimony without permission of the appellate court to do so. The court of appeals agreed with that statement of the law, but said that only the particular issue that had formed the basis of the trial court’s judgment – whether Ledfords could unilaterally remove the boundary-line tree simply because the majority of it was located on their side of the common boundary – was addressed. Based upon that conclusion, the court of appeals had reversed the trial court’s judgment letting the Ledfords unilaterally remove the tree,” and remanded the cause “for further proceedings consistent with [that] opinion.”

Because of the limited scope of the trial court’s previous judgment, no one had ruled on whether the boundary-line tree posed a danger to Ledford’s home or amounted to a nuisance. While the prior decision was thelaw of the case,” nothing in the prior opinion limited the trial court from ruling on the nuisance question, which the court of appeals admitted remained open for decision. Deciding to examine the nuisance question did not put the trial court in the position of doing something contrary to what the court of appeals had ordered.

– Tom Root

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Case of the Day – Wednesday, October 13, 2021

BEING THERE

The governmental immunity doctrine, which exempts governments and their employees from liability when negligent acts occur during the performance of a discretionary government act, is pernicious.

The strictures seem rather artificial. If a tree is rotten and the municipal employees ignore it, the municipality may be immune from liability when the tree falls on some poor woman’s car (see case below). But if the employees come out to cut it down, and a branch falls on the same woman’s car, the municipality is liable. It would seem that the prudent municipal employee would wisely choose to do nothing except collect a paycheck.

What? You say that’s what most of them do anyway? Shame on you. Go to any DMV office, and you will see how mistaken you are.

But even the governmental immunity doctrine has its exceptions, fortunately enough. In Connecticut, if the employees can foresee that the victim is “an identifiable person” who would face “imminent harm” if they perform a discretionary act negligently, or negligently fail to perform a discretionary act, then the victim is able to defeat immunity and collect.

But what is an “identifiable person?” Ah, the devil’s in the details.

DeConti v. McGlone, 88 Conn. App. 270, 869 A.2d 271 (Ct.App. Conn. 2005). Maria DeConti was driving down Maple Street in New Britain, when a rotted tree fell on her car, crushing it. The tree was located in front of 281 Maple Street, about five houses from the Maria’s residence, on property controlled by the City of New Britain.

Maria sued Bob McGlone, the superintendent of parks for the city, and the Parks and Recreation Commission. The defendants filed a motion to strike on the ground that their actions were insulated by governmental immunity. The court granted their motion.

Maria appealed.

Held: Bob and the Commission enjoyed governmental immunity.

Generally, a municipal employee is liable for the negligent performance of ministerial acts but has a qualified immunity in the performance of governmental acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. In contrast, ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.

A municipal employee’s immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: (1) where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; (2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; or (3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.

The first exception has been expanded to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. However, the Court ruled, a person driving a vehicle who is struck by a falling tree limb is not an identifiable victim for the purpose of governmental immunity. It would be different, the Court ruled, if the tree had fallen on Maria’s house rather than on her car. But Connecticut law is clear that “would not be [an] identifiable person[], or an identifiable class of foreseeable victim[], if [she] were either [an] unfortunate person driving in a vehicle or pedestrian walking along a sidewalk who happened to be struck by a falling tree limb.”

Maria argued her case was different, because she was required to drive on Maple Street as a result of the location of her house and, as such, she was an identifiable victim. But Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred. Thus, a parent watching a son play at a high school football game was held not required to be at game, and a parent injured while visiting her child’s school voluntarily was not required to be there.

“Accepting as true all facts alleged in the amended complaint,” the Court said, “the plaintiff has failed to show that she is an identifiable victim or a member of a narrowly defined identified class of victims as required to fit within the first exception to the governmental immunity doctrine. Because that is the only applicable exception, the plaintiff’s amended complaint was legally insufficient, and the motion to strike properly was granted.”

– Tom Root

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Case of the Day – Tuesday, October 12, 2021

BROWN GETS A MULLIGAN

doover160921It’s been awhile, a long while, since we were young pups in law school. But we still seem to recall that when a plaintiff complains that she’s been damaged by a trespass, she has to put on some sort of evidence as to the amount of the damage. If the trial record closes, and the plaintiff hasn’t done so, time was she would be out of luck. No do-overs, no mulligans. One and done, as the sports guys say.

Well, apparently that’s no longer true in Mississippi. When Martha Murrell decided to build a fence in front of her house without checking her subdivision restrictions first, her neighbor Jeanette Brown took exception. It seems the restrictions prohibited building anything within 25 feet of the property boundary, and Martha crowded that a little – by about 23 feet. In fact, she put the fence so close to the property line that she had to hack off a few branches from one of Jeanette’s trees in order to finish the project.

Jeanette sued Martha, asking the trial court to order her to remove the fence and to give her $30,000 in damages because she had hindered Jeanette’s enjoyment of her property. Admittedly, we enjoy our property, too, especially sitting on the deck with an appropriate legal beverage, but $30,000? That’s a lot of hindrance being compensated.

The trial court granted the injunction, because the fence violation was pretty clear. Martha must have figured that showing the trial court her snapshots of the “mutilated” tree was good enough. The trial court must have found the pictures compelling, although not $30,000 worth of compelling. It awarded Jeanette $5,000.

mulligan160921The Court of Appeals was made of more skeptical stuff. It ruled that while the picture was good enough to show that Martha or her minions had trespassed onto Jeanette’s land, and had hacked up her tree, it was not good enough to show how much damage Jeanette had suffered. Despite a strenuous dissent from a judge who thought Jeanette had had ample opportunity to prove the amount of damages, the Court sent the case back to the trial court to give Jeanette a second bite of the apple.

Murrell v. Brown, 202 So.3d 287 (Ct.App. Mississippi, 2016). Jeanette Brown filed a complaint against their next-door neighbor, Martha Murrell, for constructing a fence in violation of their subdivision’s protective covenants. The North Colony subdivision covenants state that “[n]o fence shall be constructed nor any other structure be constructed within 25 feet of front property line.” Brown complained that Murrell built a fence within a few feet of the front property line in violation of this covenant, thereby diminishing the value of Brown’s property and “hindering her use and enjoyment of her property.” Brown wanted the fence taken out and damages of $30,000.

After a hearing, the trial court found Murrell in violation of the subdivision’s covenants and ordered her to remove the fence. The court further held that because Murrell or her agents mutilated Brown’s tree and came on to Brown’s property to do so, Brown was entitled to $5,000 in damages.

Murrell appealed.

butchered160921

Jeanette made out her damaged tree to look something like this, but while a picture’s worth a thousand words, it’s not worth five thousand bucks.

Held: The damage award was reversed. The Court of Appeals said that in awarding Brown $5,000, the trial court reasoned that Murrell or someone on her behalf “mutilated [Brown’s tree] by chopping off these limbs in such a way that I don’t know what it would look like when it grows back. And [the person] came several feet over onto [Brown’s] property to do it.”

Murrell asserted that the trial court abused its discretion in awarding damages for the tree, because Brown never mentioned the tree damage in her complaint. The Court, however, noted that while the complaint did not reference the tree damage, pictures of the tree were entered into evidence at the hearing, showing that the tree’s branches had been cut at the fence line, and Brown’s lawyer had written to Murrell about the damage before the case was filed.

Murrell also claimed that Brown failed to prove that Murrell or her agent caused the damage to the tree. Brown asserted at the hearing that Murrell “took a power saw and cut [her] tree to build the fence,” but Brown conceded that she did not personally witness Murrell, or anyone acting on her behalf, cut the tree. She simply testified that she “was informed [Murrell’s] father had cut the tree.” The appeals court, however, was satisfied that the trial judge, “as the fact-finder, clearly determined that Murrell or her agent cut Brown’s tree.” Circumstantial evidence, after all – such as limbs cut at the fence line – supported the trial court’s finding that someone acting on Murrell’s behalf cut the limbs during the construction of the fence. That was good enough.

The heart of Murrell’s appeal was that the award of $5,000 “for the mutilation of the tree” did not address the fair market value of the tree before and after the cutting. After all, the tree in question was not a fruit-bearing tree “and the cost of complete life maturity is no more [than] two hundred and fifty dollars.”

The appellate court held that while the trial court properly found Brown’s tree suffered some damage, and Murrell (or her agent) likely trespassed on Brown’s property to cut the tree, the award of $5,000 for the tree damage was excessive and not supported by substantial evidence. “Brown’s tree was not cut down,” the Court observed, but rather “the tree’s branches were merely cut back at the fence line. While the pruning was unsightly, there was no evidence presented that the tree was permanently damaged.”

apple160921Proof of actual damages must be shown in order to recover more than nominal damages, and Brown made little in the way of such a showing. The Court, however, held that Brown showed photos of “mutilated” tree and those photos were enough to let the judge ascertain damages. Once a judge is “presented clear evidence that [the plaintiff] owned the property and that the trees had been cut without [her] consent, the [judge] was obliged under the circumstances to award damages in some form.” So something is to be paid, but there has to be some evidence of what.

A dissenting judge complained that “Brown did not even establish what kind of tree is at issue in this appeal. It was Brown’s burden to prove her damages, and having failed to present any evidence of actual damages, she should not be given another opportunity to do so. “A litigant is entitled to but one bite at the damages apple…”

– Tom Root

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