Case of the Day – Friday, January 19, 2018


We like to deal in broad pronouncements of property law here, but the sad fact is that a lot of litigation about property rights is pretty small minded. The parties today, Steve and Maggie, had a fairly common arrangement. Steve’s house was landlocked, but he owned an easement to cross Maggie’s place on a driveway.

The easement was 50 feet wide, but the drive itself was only 12 feet wide. We cannot tell who started the sniping. Maybe it was Steve, who piggishly demanded dominion over all 50 feet of the easement, whether he used it or not, banning Maggie from landscaping even where it did not interfere with the driveway. Maybe Maggie set out to harass Steve by installing fences, placing ornamental boulders and planting trees to crowd the driveway.

Clearly, however, things devolved to the point that both Steve and Maggie felt it was worth it to pay lawyers to slug it out in court. Not that we think that’s all bad: lawyers have to eat, too. But the law was pretty settled, and it seems that the lawyers should have dragged their respective clients by the ear into a conference room, where the facts of life (and litigation) could be explained.

Still, there’s a worthwhile principle here for the many homeowners who complain to us every year about various utilities coming through their yards, trimming or removing trees, tearing up bushes and laying waste to landscaping. The utilities invariably wave their easements at the homeowners and say, “read it and weep.” The homeowners angrily ask, “Can they do that?”

Then, we have to explain that the homeowner holds what is called a “servient estate,” which is as subordinate and groveling to the easement holder, the “dominant estate,” as the names imply. The utilities and their maraudering contractors can do what is reasonable to permit they to get the benefit of the easement for which they bargained.

As well, there’s a second worthwhile principle in today’s case. If you get into a kerfluffle as a property owner or an easement holder, try to work it out. The old legal aphorism is true: a bad settlement is better than a good lawsuit.

Campbell v. Sullivan, Case No. FSTCV166028793S (Superior Ct. of Connecticut, Dec. 11, 2017) 2017 Conn. Super. LEXIS 5104: Maggie Sullivan is the homeowner at 1 Lennon Lane in Wilton. Steve Campbell owns the abutting property at 2 Lennon Lane. Steve has an easement for a 50-foot wide strip across Maggie’s property to be used as “a right of way for all lawful purposes of ingress and egress, including public utilities.” The easement is the only way Steve has to get from the street to his property.

The fifty-foot-wide right of way described by this easement contains a paved driveway about 12-foot wide known as Lennon Lane.

Steve sued Maggie, claiming that over time, she had placed rocks and erected fencing within the 50-foot right of way, as well as “allowing” trees and other overgrowth to impede ingress and egress through the easement. Maggie argued that that any actions she has taken to encroach into the easement are minimal, reasonable, and do not impede Steve’s access to 2 Lennon Lane. For her part, Maggie complained that Steve had trimmed trees and other plants within the 50-foot right of way, which are actually located on her property, without her consent. Steve responds that he is entitled to the entire 50-foot right of way as granted by the easement, and anything Maggie places within the 50 feet violates his rights.

Held: Steve and Maggie couldn’t work things out for themselves, so the court did it for them, giving each a little and taking from each a little.

To figure out the nature of Steve’s rights, the court started with the deed itself, and then looked to the situation of the property and the surrounding circumstances, all in order to “ascertain the intention of the parties…” The language of the grant is given its ordinary meaning in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent.

The principle is that the “holder of an easement… is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude.” This means that the easement holder can use the easement in any way reasonably necessary to fulfill the intent of the parties. The court held that the “right of way is for ingress and egress. This is broad enough to include the ability to turn around, reverse, and enter and exit safely. It does not include the right to park on the right of way. On the other hand, merely because the defendant owns the fee in the right of way, she does not have the right to obstruct the plaintiffs right for all lawful purposes of ingress and egress.”

The court said it was Steve’s job to maintain the easement, but his maintenance had to be reasonable. “The holder of an easement,” the court said, “is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment. The law is settled that the obligation of the owner of the servient estate, as regards an easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it.

Under these circumstances, the court said, Steve has no right to compel Maggie to maintain it for his benefit. He had to do it, and do it “in a reasonable fashion.”

Steve spun a tale about expecting “prefabricated modules” that would be used as additions to his house. He said he would need at least 30 feet of the 50-foot easement for the trucks. It turned out, however, that Steve had not exactly ordered the prefabs yet, did not know when he would order them, and when he would pay for them. The court was unimpressed, saying, “As of the time of this decision, the plaintiffs plans to remodel his home are not definitive reasons as to why… he would need access to the entire fifty-foot right of way .

The court ordered some of the rocks, fencing and bushes removed. It prohibited Steve from parking in the easement, and limited tree trimming to one area where the branches interfered with ingress.

– Tom Root


And Now The News …

Prince George, British Columbia, Citizen, January 18, 2018: Trees being burned on border of Jasper park to combat mountain pine beetle

Foresters and provincial officials are burning tens of thousands of trees east of Jasper National Park to try to slow the spread of mountain pine beetles. “There’s a lot more activity in the Edson-Hinton region, higher than past years, as we deal with some of this immigration that’s occurring,” said Mike Underschulz of Alberta Agriculture. The province expects to cut and burn up to 90,000 trees killed by the beetles this year throughout the province, Underschulz said. Fully half of them will be in the Edson-Hinton region, where smoke from the burning obscured parts of the Yellowhead Highway earlier this week. The area has seen a huge influx of the pests from the park. Beetle infestation in Jasper is considered rampant and uncontrollable, and foresters along its edge saw a tenfold increase in the problem in just months last year. “We’re trying to limit the damage,” Underschulz said. “We’re trying to buy some time…”

Salem, Massachusetts, News, January 18, 2018: Tree ordinance reintroduced in Salem

A proposed ordinance aimed at protecting city trees has been revived. Ward 5 Councilor Josh Turiel reintroduced the 26-page draft ordinance, which also provides guidelines for planting new trees, at the City Council meeting last Thursday. It is headed to the council’s ordinance committee first. The draft was created by the city’s LORAX task force — a reference to the Dr. Seuss book that stands for “Leaf-Oriented Resiliency and Arboricultural Expansion — which spent nearly two years preparing the document. It died on the vine last year in the council’s ordinance committee, when Ward 7 Councilor Steve Dibble, also a task force member, objected to suspending the council’s rules that would have allowed the proposal to carry over to the beginning of the new year. “Unfortunately, due to a bunch of hullabaloo it didn’t wind up getting officially submitted last month, but it’s getting submitted now,” Turiel said…

Rochester, New York, WHAM-TV, January 18, 2018: Canal Corporation scales back on tree-cutting project, halts all work until February

The New York State Canal Corporation is changing its plans in regard to a controversial tree-cutting plan along sections of the Erie Canal. During a special informational meeting Thursday in the Town of Pittsford, the corporation announced it was scaling back on its original plan, instead focusing on clearing dead trees and underbrush. This, it said, would be done to identify any current weaknesses or issues with embankments. The corporation says it will also be working with property owners and members of the affected communities to address any concerns going forward. The goal of the project was to remove trees and other vegetation from along certain stretches of the canal. The corporation said the presence of some plant life could endanger embankments – which could, in turn, result in damage to which could, in turn, result in damage to property or loss of life. The plan was criticized by many, who said the project would have a detrimental result on quality of life and tourism. Three towns had joined together in pursuing legal action in order for a comprehensive environmental study to be conducted…

Fort Morgan, Colorado, Journal-Advocate, January 18, 2018: Winter tree watering necessary during drought conditions

Despite a relatively small amount of precipitation falling recently, the most recent U.S. Drought Monitor map indicates that nearly all of Colorado is currently experiencing some level of drought. Trees in urban and community settings throughout this region are dormant now, but still require occasional watering during dry winters to remain in top health. Keith Wood, urban and community forestry manager for the Colorado State Forest Service, says planted trees in Colorado, especially at lower elevations, often require additional watering in the winter months during extended dry periods (e.g., more than two weeks without lasting snow cover).”Adequately watering your trees is the best way to ensure optimum health and vigor that will carry through to the growing season,” said Wood. “Overly dry trees become susceptible to root and branch die-back, and subsequent insect and disease problems…

Jacksonville, Florida, Florida Times-Union, January 17, 2018: Clearing trees from I-95 in Georgia will make roads safer, DOT says

The drive along Interstate 95 in Georgia gets uglier by the day as trees are taken down, but state transportation officials say the clear cutting will improve safety. The “vegetative management projects” along I-95 are aimed at reducing the number of traffic fatalities and serious injuries along the interstate corridors in the state’s coastal region, said Jill Nagel, spokeswoman for the DOT’s District 5 office in Jesup. The projects incorporate safety features to keep vehicles on the road and widen the “clear zone,” the unobstructed area off the edge of the pavement, to give drivers time to stop or regain control of their vehicles, Nagel said in an email. The work is based on data that show 51 percent of single-vehicle fatalities in Georgia occur from striking a fixed object, such as a tree or bridge, she said…, January 17, 2018: Plant disease control possible through tree pruning

Homeowners and landowners looking over their property should take quick action if their trees and shrubs are observed to have wilted branches or dieback. “It is important to closely monitor landscape trees and shrubs for symptoms of disease,” said Robert Bourne, Bryan County Extension director and agricultural educator. “Quick action can possibly save the plant.” Diseased limbs should be pruned at least 10 inches from the dieback and into healthy wood, according to recommendations from Oklahoma State University’s Division of Agricultural Sciences and Natural Resources, of which the Oklahoma Cooperative Extension Service is a part. “With fast-spreading diseases such as fire blight, it is better to prune 12 to 18 inches below the discolored sites,” Bourne said. “If the symptoms have reached the main trunk, it may not be possible to save the plant.” When pruning, it is best to prune plants when it is dry and when weather is expected to be dry for the next three or four days. Bourne reminds landscape managers that sanitation is critical for preventing the spread of plant diseases…

Do Bianchi, January 17, 2018: Killer trees and a long road to recovery in California wine country

Beyond the myriad hand-painted posters thanking first responders for their efforts during the October wildfires, there weren’t a lot of signs that Sonoma wine country had been devastated by a natural disaster when I visited last month. But when winemaker Sam Coturri invited me to jump into one of his company’s off-road trucks and we headed “up the mountain,” it didn’t take long for us to come upon blackened areas and “killer trees,” like the one above. State recovery crews, he told me, remove some of the most dangerous burned-out trees. But many property owners are left to clear out the precarious “snags” as they are known in wildfire terminology. The government team marks them for you. But you have to remove them yourself. Burned out trees and acre upon acre marred by damaged fences and cattle guards were just some of the issues that Sam was dealing with the day we visited in early December…

Sacramento, California, Bee, January 17, 2018: California needs smart solutions to dead trees

Last month the U.S. Forest Service released astonishing estimates that the number of trees killed by drought and pine beetles in California has risen to 129 million in the past five years. Rather than respond in a way driven by science, ecological values and common sense, state and local agencies continue to seek ways to remove dead trees. The first option they turn to is to burn dead trees in dirty incinerators. The logging industry is chomping at the bit for new land in remote areas. This is a misplaced approach. Dead trees are vital components of the forest ecosystem and should be removed only when necessary. A dead tree near a home, power line or other infrastructure is downright dangerous, but there are not 129 million trees in this category…

Chicago, Illinois, Tribune, January 16, 2018: A neighbor’s damaged tree hangs over nearby properties. What can those homeowners do?

We have a next-door neighbor who has a very large, tall cypress tree on her property. The tree overhangs three adjacent properties and homes, including ours.  Over the years, we, along with the other property owners, have all trimmed branches and limbs that overhang our properties. These were all done with city permits, taking into account the health and structure of the tree. The tree owner has done nothing in the last 15 years to care for her tree. There is a fair amount of dead wood in this tree. Last October, a windstorm twisted off a very large live limb, which fell into the property directly behind the tree owner’s property, just missing the house, but smashing the fence between the houses… The storm also left a number of partially broken limbs hanging up in the tree. We consulted two local arborists about the tree, concerned there was real danger of the tree throwing more limbs. They said it could cost up to $10,000 to deal with all the issues they could see from the ground, but there could well be more, once they got up into the tree to investigate…

Raleigh, North Carolina, WRAL-TV, January 16, 2018: Will historic Goldsboro tree be cut down to boost downtown development?

A symbolic tree planted in the middle of downtown Goldsboro is facing demolition because it could stand in the way of the next phase of the city’s downtown development. The Willow Oak tree on the edge of Downtown Goldsboro was planted over four decades ago by then Mayor Tommy Gibson to honor Air Force Captain Peter Cleary and other missing United States troops. “The tree was only about two feet, three feet. it was a twig.” Former Mayor Gibson said. “God has blessed us with its growth and health. The potential for losing this tree is a very real possibility…”

College Station, Texas, KBTX-TV, January 16, 2018: How colder weather affects your trees

Freezing temperatures don’t just make us cold, they also affect the trees. Zaina Gates with the Texas A&M Forest Service said different trees react to the colder weather in a number of ways. “If you have a native tree that’s meant to grow here then you should be fine. If the tree has been in the ground for three years or longer planted it’s established. It should be fine. It should tolerate the weather that we have,” said Gates. For those younger or newly planted trees there are ways you can protect them. “You can mulch around the trees roots to help insulate and also water the night before. It freezes to help insulate the roots.” For non-native trees the forest service recommends wrapping and covering them…

Sacramento, California, Sacramento Bee, January 16, 2018: Why millions of dead trees in the Sierra may have helped save water during the drought

The millions of trees that died in the Sierra Nevada during California’s five-year drought may have actually helped the state’s water supply once the historic dry spell finally ended, according to a new study. Scientists led by UC Merced’s Sierra Nevada Research Institute examined how much water was being absorbed by plant life in 1 million acres of Sierra forest along the watershed that feeds into the Kings River east of Fresno. The study, published Friday in the journal Scientific Reports, spanned the years before, during and after the drought, which officially ended last year. Federal forestry officials estimate that during that time, more than 100 million trees in the central and southern Sierra died before the drought ended. So many trees died from wildfire and bark beetles in the study area that once the rains returned, potentially as much as 217,000 acre-feet more water ended up in the Kings River basin than it would have otherwise. The reason? After they’d died, the trees were no longer sucking water up through their roots, leaving more in the watershed, said Roger Bales, the study’s lead author at the Sierra Nevada Research Institute…

Santa Rosa, California, Press Democrat, January 15, 2018: State tree-cutting rules eased for wildfire victims

Michael Wagner doesn’t like the idea of cutting down trees on his 71-acre Santa Rosa ranch, blackened by October wildfires. But if he has to do it to rebuild his damaged house, he will. And he welcomes emergency measures from state officials that could make the job easier — and possibly put money in his pocket. “It’s kind of like you’re putting the old horse down,” said Wagner, whose Blue Gate Road property was in the path of the Tubbs fire. “You don’t want to do it unless you absolutely have to.” Under a proposal that could benefit Wagner and other fire victims, the state Board of Forestry and Fire Protection has agreed to waive its requirement that residents file costly timber harvest plans before removing scorched trees to be sold for lumber. The waiver would apply to stands within 300 feet of damaged or destroyed structures and would be in place for at least six months, speeding recovery and saving land owners up to $40,000 for the cost of timber plans…

Halifax, Nova Scotia, Chronicle-Herald, January 15, 2018: Antigonish tree enthusiast on quest to save American beech

It would be too easy to blame Queen Victoria. And certainly the aging monarch played her part. But she couldn’t have known the end result of sending a European beech sapling to Halifax in 1897 to celebrate her half-century on the throne would end in the near elimination of this province’s most plentiful hardwood. Because that little sapling planted dutifully by her subjects in Halifax’s Public Gardens had a little critter in it — a sapsucking insect the size of an aphid that punctures a little hole in the bark where it lays its eggs. Alone, the insect would have been a minor nuisance, but the little holes it pricked with its stylus were the perfect entrance point into beech’s thin bark for a fungus. Though the queen’s European beech was immune, our American beech weren’t. Within five years American beech trees around Halifax were dying…

Rochester, New York, WHAM-TV, January 15, 2018: Aftermath of Erie Canal tree-removal project on display in Brockport

After public outcry, the Canal Corporation agreed to temporarily stop clearing trees and brush from various areas of the Erie Canal’s embankments. The cutting started in Medina and was slated to end in Fairport, but the corporation stopped the project near the Village of Ogden after the push-back.  However, many west of Ogden are living with the aftermath of the canal’s project. Cody Butlin bought his home on Quarry St. in Brockport eight years ago. He says he never would’ve purchased the property there had he known this project would ever occur.  “We bought it because it was right up against the canal and it was beautiful,” said Butlin. “Now it’s completely visible, where it was complete privacy in the past.” Butlin says “hundreds” of trees were cut in the matter of hours from canal embankment bordering his property last month…

Norfolk, Virginia, The Virginian-Pilot, January 15, 2018: Before you prune your trees, read this

It’s January and your trees are bare of leaves. Is the time right to prune? There’s more to consider than timing, said certified arborist Brendon Phillips of Phillips Family Tree Care in Western Branch. The chief factor: Is pruning necessary at all? “You don’t prune trees just to prune them. They have thousands of years of practice and do fine on their own,” Phillips said. Topping – cutting off all of a tree’s upper branches or even the upper portion of the main trunk – is a common example of over-pruning. “It’s a terrible practice. If the tree doesn’t die, the stuff that grows back is only half as strong (as what was removed),” Phillips said. “The biggest reason I’m called in to take out a hazardous tree is from over-pruning years ago…”

Dallas, Texas, Dallas Morning News, January 11, 2018: This is what happens to trees when they’re struck by lightning

Trees struck by lightning can show several symptoms and have a range of damage. In general, when lightning hits a tree, the water in the cells beneath the bark is heated and boils. Steam causes an explosion that knocks the bark off.  A continuous groove of bark stripped along the entire length of the trunk or main branch is common. A crack that does not run the length of the trunk may indicate a side flash of lightning that strikes the tree, travels down the trunk, then jumps to an object with less electrical resistance. If lightning strikes a bit deeper into the trunk, the entire tree may blow apart, or all the bark will blow off. The tree may or may not have blackened or charred areas on the trunk. In some cases, the internal wood may be burned without obvious external symptoms. This wide range of damage is related such factors as intensity of the strike, moisture content on and in the tree, and the type and structure of the tree…

Redmond, Oregon, KTVZ-TV, January 11, 2018: ‘Tree City USA’ Sisters cracks down on tree-cutters

The city of Sisters, known as a “Tree City USA,” is cracking down on people cutting down city-owned Ponderosa pines. Some homeowners are in trouble when it comes to trimming or cutting down trees. Sisters resident Jack Lincke didn’t want to go on camera, but he told NewsChannel 21 Thursday he reached out to city officials about concerns he had about some trees in front of his house that he feared could damage his home if they fell.  Lincke said someone from the city came out to his home on November 2016 to evaluate the trees but never followed up with him. This month, he hired a tree service to cut down several large Ponderosas. Lincke said the tree service told him he didn’t need permission from the city to cut down the trees. Adrienne Brown, a neighbor who lives across the street, said she was upset those healthy trees would be cut down without the city giving the green light. “He made a mistake by not going through the proper channels,” she said. “And the trees — the nine trees were all healthy, and all of us are upset, because they were beautiful trees, and they have to be checked out by professionals before they are cut down by homeowners…”

Orlando, Florida, Sentinel, January 11, 2018:  Commentary: Sen. Greg Steube: Set Florida trees free from local control

America’s Founders understood unmistakably that private property is the foundation, not only of prosperity, but of freedom itself. Therefore, through the common law, state law and the Constitution, they protected our property rights — the rights of people to freely acquire, use and dispose of property. Thomas Jefferson said, “The true foundation of republican government is the equal right of every citizen in his person and property and in their management.” However, in recent years we have seen these basic rights infringed by local governments in everything from renting your property to trees. According to the Florida Constitution, it is a basic right of all natural persons in our state to acquire, possess and protect property. (See Article I, Section 2 of the Florida Constitution.) Many cities and counties in this state require you to obtain permission from them, the government, in the form of a permit, to cut down a tree, your tree, on your property. To me that flies in the face of your constitutional rights. As a property owner, you should not be required to obtain permission from the government — i.e., a privilege — to remove a tree, on your property. It’s your tree, not the government’s tree…

Quincy, Illinois, Herald-Whig, January 12, 2018: Does the city remove dead trees from the right of way?

There seems to be a lot of dead trees on the right of way that need to come down. Does the city do that? The Department of Central Services has a forestry crew that handles tree removal, as well as trimming of trees that are on city rights of way. In 2017, the forestry crew closed 865 tickets, according to Central Services records. This includes tree trimming and tree and stump removal, as well as other tree and other cleanup-related issues. Director of Central Services Kevin McClean said the best way for a resident to notify the city about a tree that should be removed is by contacting an alderman, who passes it along to Central Services. Aldermen contact information is on the city’s website, In the case of the city’s emerald ash borer management plan, it has hired private contractors to remove some larger ash trees that are not being treated with an injectable pesticide…

Hood River, Oregon, Hood River News, January 10, 2018: Tree virus found in Gorge region

Cherry Leaf Roll virus has been found in The Dalles and Oregon State University officials want growers to stop its spread by removing infected trees this spring. Also making an appearance in local orchards is Little Cherry Disease, already in play in the Willamette Valley and in Washington State. In addition, several viruses transmitted by microscopic worms, including Tomato ringspot and Tobacco ringspot, have been discovered in Hood River, The Dalles and Grand Ronde Valley orchards and vineyards. “I think if we get on top of the situation we can minimize the spread of the problems,” said Dr. Jay W. Pscheidt, an OSU professor and a plant pathology specialist. He said eliminating the problems is essential to the industry since Oregon is one of the top producers of sweet cherries in the United States, supplying about 10 percent of the total market. “For most growers and field representatives, the world of cherry viruses is a confusing bowl of alphabet soup,” said Pscheidt…

Sarnia, Ontario, The Sarnia Journal, January 10, 2018: With the tree bylaw dead, city eyes alternate restrictions

City Hall is once again pondering the protection of trees on private property after at least 20 mature trees were removed from a Murphy Road lot. The grove of hardwoods was cut behind the Brothers of St. Louis property at 1316 Murphy Rd. The property owner, Steeves & Rozema, also owns the adjacent Twin Lakes Terrace long-term care home. CEO John Scotland said some of the trees were diseased and posed a risk to nearby buildings. The “cut back” also eliminated cover for vandals that frequented the property, he said. “They’re not being cleared, and we’re also doing everything we can to maintain a healthy separation between our neighbours, which are residential lots to the north and to the east,” he said…

Washington, D.C., Post, January 10, 2018: Considering trimming or getting rid of an old tree? Not so fast.

Old magnolias never die, they just fade away. That seems to be the fate of the most historic tree at the White House, a Southern magnolia planted by Andrew Jackson and now so ancient and fragile that part of it was dismantled last month.  The decision to take down or at least dismember an old tree is neither easy nor always objective, but professional arborists are guided by a risk assessment protocol that brings a rationality to the process. The evaluation assesses the tree’s vigor, the thickness of its sapwood shell, its disease stresses, the state of the roots and the like. Arborists also consider its location and the proximity to what they call “targets” — property and people. “A tree in the middle of the woods is not a problem,” said arborist Paul Wolfe of Integrated Plant Care in Rockville, Md. “In an urban area, that’s some problem…”

Kalamazoo, Michigan, WWMT-TV, January 10, 2018: Michigan revises order to protect walnut trees from disease

State officials have revised a quarantine of some walnut products intended to protect Michigan trees from a fatal disease. The Michigan Department of Agriculture and Rural Development is trying to ward off an outbreak of thousand cankers disease, which has killed numerous walnut trees in the western U.S. The quarantine generally prohibits shipment of walnut nursery stock, certain walnut timber products and hardwood firewood into Michigan from infested states. Walnut furniture, veneer, kiln-dried walnut lumber without bark and walnut nuts and nutmeats are exempt…


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Case of the Day – Thursday, January 18, 2018


When we last left our intrepid Air Force Academy cadets, they had just been rescued in the nick of time from the runaway train that was the U.S. District Court for the District of Colorado. At the same time, the dastardly Jim Nelson saw the Tenth Circuit Court of Appeals snatch the cadets’ $7.7 million (it was probably the mortgage money) from his grubby mitts.

OK, that’s both hyperbolic and fictional. The 4,400 USAFA cadets had not been sued individually, but rather the U.S. government was the defendant. What’s more, Jim was not dastardly. His hands may have been grubby, but that was because he fell into a massive sinkhole on what may or may not have been a bike path on the expansive Academy property. The District Court found the Academy management had breached a duty to Jim, who it found was USAFA’s invitee (despite the bike path having signs warning against trespassing). But the Tenth Circuit Court of Appeals rode (or flew) to the Academy’s rescue, applying the Colorado Recreation User Act and holding that USAFA was immune from liability because it had opened up its bike path without charge for the public’s use, whether it intended to (or even knew it had) or not.

But the Tenth Circuit decision had a little “gotcha” right at the end. After finding the RUA applied, the appellate court remanded the case to the District Court to determine if an exception to the RUA’s liability limitations applied — whether the Air Force Academy’s actions constituted a “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm…” Such a failure is an exception to the RUA’s broad immunity.

Last spring, the case was again in front of the District Court, who seemed just a little too enamored of the bike rider and too dismissive of USAFA management for our tastes. After all, a sinkhole big enough to swallow Jim? We’ve seen the Academy grounds, even the unimproved parts, and they are pretty wide open, sparse of trees and underbrush. How did Jim, who admitted he rode the trail regularly, miss seeing the sinkhole well before he rode into it?

Alas, we’ll never know. What we do know is that the District Court concluded that the Academy folks knew people used the trail although they were not supposed to. A USAFA employee who maintained the 40-square mile grounds saw and photographed the sinkhole a few weeks before the accident, but because he himself did not know that people were using the path despite the signs, he saw no reason to fill the sinkhole.

But thanks to the tort doctrine of respondeat superior, which is a Latin way of saying the company is to blame when its employees are negligent in the course of their employment, the District Court strung together management’s knowledge that people ignored the signs and used the path with the employee’s knowledge of the sinkhole, and found that USAFA willfully failed to guard or warn against a known dangerous condition…”

Voilà! Just like that, the Air Force Academy was back on the hot seat, and Jim rode off on his bicycle with 160 lbs. in his rucksack, which is about what $7.3 million in 100-dollar bills weigh.

Nelson v. United States, 256 F. Supp. 3d 1136 (D.Colo. 2017): James Nelson was seriously injured in a bicycle accident on September 3, 2008, when he encountered a sinkhole/washout on a bike path on United States Air Force Academy land. He sued under the Federal Tort Claims Act for damages. The Tenth Circuit previously determined that the Academy was immune from liability within the limits of Colorado’s Recreational User Act.

USAFA knew, prior to Jim’s accident that the path existed on its property, and that members of the public used the path where Jim was injured. Upkeep of the property was the Academy’s responsibility. The Academy had a Trails Management Plan that provided guidance about the proper maintenance to be performed on official trails, but the asphalt path on which the biking accident occurred was not on the Academy’s Real Property Record, so maintenance of the path did not fall within the scope of a contract the USAFA had with a maintenance company.

The sinkhole Jim encountered was the result of off-site water flowing onto Academy property that overwhelmed the culvert running under the path, causing a washout. Dr. Brian Mihlbachler, an Academy contractor responsible for grounds maintenance, testified that the sinkhole was large and readily visible during the day. However, a witness who encountered the sinkhole while jogging the morning after Jim’s accident thought the sinkhole was water until he was significantly closer to it.

Dr. Mihlbachler said the condition of the path with the sinkhole would be a safety hazard for users of the path if it were an official Academy trail. Thus, if it were an official trail, he would have reported the condition of the path to maintenance to get it repaired. He was the only Academy employee actually aware of the sinkhole before the accident, and in fact had photographed the sinkhole two weeks before Jim was injured. However, he did not report the sinkhole or to anyone else before the accident, because the trail management plan did not reference any asphalt surface trails. There was no rule or regulation in the trail management plan or otherwise that would have required fixing a hole on an unofficial path such as the asphalt path. Dr. Mihlbachler also said the Academy’s trail management plan contained guidelines about what constitutes a safe trail for the users, and that “criteria would have applied in this situation [to the asphalt path] had I known that it was designed – . . . as a trail, yes.”

The Court held that Dr. Mihlbachler chose not to do anything about the sinkhole when he encountered it (other than to take its picture). His decision was based on his perception that it not the Academy’s responsibility because he did not think people were using the path for recreational purposes. He “didn’t feel the Air Force Academy considered it to be a trail of any sort” and that the hole was thus unlikely to cause anyone harm.

The Court found the Academy unreasonably failed to exercise reasonable care to protect against a danger – the sinkhole on the path caused by erosion – of which it actually knew. Under the respondeat superior doctrine, “an employer or principal is liable for acts that its employee or agent commits on behalf of the employer or principal within the scope of the employment or agency… based on the theory that the employee acts on behalf of the employer when the employee is acting within the scope of his authority.” The evidence shows that Dr. Mihlbachler knew of the significant erosion problems in the immediate area of the path and its condition prior to Jim’s accident.

The RUA places the risk of injury for recreational activity upon the recreational user rather than the landowner subject to certain specifically enumerated exceptions to its limitations on landowner liability. One of these exceptions to liability is a landowner’s “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.”

The RUA does not define the terms “willful” or “malicious,” but the court concluded the phrase had its plain and ordinary meaning of “voluntarily, purposefully and with a conscious disregard for the consequences of the act”. Willfulness does not require that a government employee be consciously aware that his acts or omissions create danger or risk to the safety of the public. It was enough that the Academy knew that the asphalt path existed on its property and knew that persons used the path for recreational purposes, including bicycling, by invitation or with permission.

What’s more, the Court said, the Academy knew that people were using the path for recreational purposes, yet chose not to communicate that to its agent Dr. Mihlbachler even though he played a safety role at the Academy in connection with his role as Trail Manager. Thus, the court concluded, Dr. Mihlbachler acted “voluntarily, intentionally, and with a conscious disregard for the consequences of the act” when he chose not to make the sinkhole a priority or to do anything to warn about it or guard against its danger.

Despite the immunity normally afforded by the RUA, the Air Force Academy was liable to Jim.

– Tom Root


Case of the Day – Wednesday, January 17, 2018


We’ve talked before about recreational users acts, which are statutes in just about every state that encourage landowners to permit recreational activity on their undeveloped land. The notion goes that by shielding property owners from liability when Connie Klutz, out for an afternoon of bird-watching, blunders into a pool of quicksand, they will magnanimously open their lands for free to the litter, noise and hubbub of the general public.

That’s the theory.

But sometimes, an RUA can ride to the rescue of a landowner who never intended that people traipse across his or her land. Why would that be? Imagine you live in Colorado. And why not? It’s a nice place, Rocky Mountain highs, nowadays from marijuana as much as from taking in the scenic splendor. One day, some knucklehead ignores the “trespassers will” signs posted around your property, hikes through your fields, and falls in a gopher hole. It could happen, you know. His lawyer shouts “negligence.” And you respond, “I let him take the path that was just as fair, and having perhaps the better claim… Therefore, I am protected by the RUA.”

Your alternative to RUA protection is hardly as pretty. If you invited him onto your premises, and he was not a recreational user, you owed him “the highest duty of care.” If he was a mere licensee, a person “who enters or remains on the land of another for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s permission or consent”, you still are liable if there is an “unreasonable failure” on your part to exercise reasonable care with respect to dangers you created or failure to warn of dangers you did not create but which “are not ordinarily present on property of the type involved and of which the landowner actually knew.” Even if your clumsy hiker is simply a “trespasser,” a person who “enters or remains on the land of another without the landowner’s consent,” he may recover only for damages you willfully or deliberately caused.

How much easier just to make anyone who gets hurt on your land a recreational user. Under Colorado’s RUA, “the owner of land who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes” will not be responsible for “any injury to person or property… caused by an act or omission” of the landowner.

The Colorado landowner under the gun in today’s case is the United States Air Force Academy. USAFA has a sprawling complex of academic buildings, airfields, athletic complexes, housing for support personnel, and a lot of undeveloped land, all nestled up against the Front Range. Within the 40 square miles or so of Academy land was a bike trail, ominously marked at the entrance with a sign prohibiting entrance. Another sign, put up by persons unknown but not removed by Air Force Academy folks, said “Bicycle Path – No Motorized Vehicles.”

Jim Nelson, a guy who regularly ignored the “Entry Illegal” signs, managed to ride into a “large sinkhole” – what, Jim, you didn’t see it? – and racked himself up rather badly. At trial, he stuck it to USAFA to the tune of millions of dollars. The Tenth Circuit, however, had other ideas. Whether it invited Jim or not (and the Academy was sure it had not), he was a recreational user, and the Academy seemed to be as free as a falcon.

Who said “doing nothing is not an option?” Certainly not the Tenth Circuit.

Nelson v. United States, 827 F.3d 927 (10th Cir. 2016). Jim Nelson was a regular user of a bicycle path located on property that is part of the United States Air Force Academy. While riding in the fall of 2008, he struck a large sinkhole and severely injured himself.

Two signs stood near the path’s entrance. The first sign was erected by the Academy and informed visitors that entry was illegal without permission. The second sign, located closer to the path’s entrance and easier for bikers to read, stated, “Bicycle Path, No Motorized Vehicles.” The Academy did not erect the “Bicycle Path” sign, nor did anyone there know who did or when. But the sign was displayed for at least as long as Mr. Nelson had been using the path.

A year before the accident, the Colorado Department of Transportation offered to remove the sign, which was near the right-of-way on Interstate 25 as the highway crosses Academy property. The Academy, however, never responded to this email and the sign remained in place until Mr. Nelson’s accident the following year. After the accident, the Academy closed the path.

Mr. Nelson sued the United States  for his injuries. The district court found the Academy knew the path was used for recreational purposes such as jogging and biking, although USAFA considered bike path users trespassers on Academy land. Nonetheless, the Academy never confronted recreational users or prevented them from using the path. The district court also found that the Academy did not intend for the path to be a recreational trail open to the public.

Based on these findings, the district court held the Academy could not take advantage of the limitations on liability under the Recreational Use Act because the Academy had not intended to open the path for public recreational use. And since the Academy knew bikers were using the path and was aware of the sinkhole, it breached its duty of care by failing to repair the sinkhole or warn users of the risk.

Held: USAFA is entitled to rely on the Recreational Use Act. The U.S. Court of Appeals for the Tenth Circuit held that the Academy was shielded from Jim Nelson’s tort claims because it knew the bike path was being used by the public and took no steps to block such usage. Thus, for purposes of the Act, the Academy “indirectly permitted” Jim’s use for recreational purposes. The Court of Appeals said the RUA extends protection to any person the landowner “directly or indirectly invites or permits” to use property for recreational purposes. Under Colorado law, “permission” is defined as “conduct that justified others in believing that the possessor of property is willing to have them enter if they want to do so.”

No one thought USAFA directly permitted use of the path – in fact, the Academy considered users of the bike path to be trespassers. But the Air Force Academy knew people used the path all the time, knew someone had placed an unauthorized sign at the start of the party, and never removed the sign or otherwise prevented use of the path. This conduct, the Court said, “can only be seen as indirectly permitting bikers such as Mr. Nelson to use the path for recreational purposes.

The Court said there was no “subjective intent requirement” required under the RUA. In other words, you don’t have to intend to offer your land for free recreational use. It’s enough that you don’t stop people.

Here, the Court said, the Academy’s purposeful actions implicitly allowed or acquiesced in Mr. Nelson’s use of the path. USAFA’s knowledge that the path was used by the general public, combined with its knowledge of the sign and its refusal to remove it, was enough to demonstrate permission under the Act. The Court ruled, “Landowners are entitled to protection by knowingly permitting recreational use of their property. Under a plain reading of the statute, the Academy “indirectly permitted” Mr. Nelson’s use of the path through its conduct.”

Sounds like a sweet deal for the Zoomies, right? Just wait until tomorrow…

– Tom Root


Case of the Day – Tuesday, January 16, 2018


pixie150916Last Friday, we took up the question of trees on tree lawns, an issue that arose because Jim Busek, a Norwalk, Ohio Reflector columnist, was up in arms over that city’s plans to cut down 62 boulevard trees that were interfering with the sidewalks.

Instead of removing the trees, Jim proposed that the offending roots be chopped out, and the trees then be encouraged not to grow any to replace them. While Jim was busy whispering to trees, we were wondering whether he might be liable if a dead ash tree standing on his tree lawn fell onto a passing motorist. Now, mind you, we don’t know whether Jim even has any trees on his tree lawn, but you know how it is when you hold yourself to the public as a famous columnist. You become a lightning rod. Sorry, Jim … you’re fair game.

In our discussion of Wertz v. Cooper, we delivered the bad news that Jim, as owner of the strip of grass between the public sidewalk and street, may well be liable. As an urban property owner, he has a duty to inspect and remove trees that may reasonably pose a danger to third parties passing on public streets. So Jim’s hanging out there a country mile (or maybe a city mile, because he is an urban landowner, and Wertz tells us they’re different).

But is he hanging out there alone? Although Jim owns the tree lawn, it lies within in the 60-foot wide right-of-way of the street. The Ohio Supreme Court has pointedly said that the “roadway, the space immediately above the roadway, the shoulder, the berm, and the right-of-way are all under the control of the political subdivision … [which] has a duty to keep the areas within its control free from nuisance, i.e., conditions that directly jeopardize the safety of traffic on the highway. Where the [subdivision] fails in its duty, it may be liable for injuries proximately caused by the nuisance.” Manufacturer’s Nat’l Bank of Detroit v. Erie County Road Comm (1992), 63 Ohio St.3d 318, 322-23.

So the City has Jim’s back (or is on the hook, depending on your viewpoint) in case the pixie dust dosen’t work on the tree roots. Of course, the City has to have actual or constructive notice of the defect, just like the landowner in yesterday’s case. However, the City has already noted that 62 trees should be removed, and – if the homeowners balk enough to convince the City otherwise – the City’s previous decision that the trees should go would cut against any denial by the powers-that-be that they were blissfully unaware.

All of which brings us to today’s case. This lawsuit relates to an unfortunate man who was killed when a dead tree fell onto his car one stormy November night. The tree was on private property out in the country, but it had been dead for so long that the landowner may have had liability. We can’t tell, because this case — in the Ohio Court of Claims — was solely against the Department of Transportation. The Court held that ODOT would be liable, notwithstanding the fact that the tree was on private land, if it had breached its duty to inspect the tree.

If "Lance" happens to ride a bike, he might be at risk from the decayed tree, too ...

If Jim happens to ride a bike, he might be at risk from the decayed tree, too …

ODOT had a “drive-by” inspection program, reminiscent of one we considered recently in Commonwealth of Kentucky v. Maiden. The victim’s heirs argued that if ODOT had gone around behind the tree (away from the road), they would have seen the decay. Well, yes, the Court said, but that’s beside the point. ODOT has over 40,000 miles of road to inspect, and to inspect every tree in the manner suggested by the plaintiff would be economically infeasible.

Still, the principle we take away from this decision is that just because the tree is on private land, the City of Norwalkl would not get off the hook. That doesn’t mean that Jim’s going to feel that much better in the defendant’s dock if the mayor has to stand next to him.

Our sad conclusion: Jim may not be the only one liable here. He knows the City has identified the trees as a hazard, and that alone places him on actual notice. If his 98-cent remedy of cutting some roots and hoping for the best doesn’t work, both his homeowners’ insurance and the City’s pocketbook could get a workout.

What a pain in the ash that would turn out to be!

Blausey v. Ohio Dept. of Transp., Not Reported in N.E.2d, 2005 WL 894878 (Ohio Ct.Cl.), 2005 -Ohio- 1807. Dale Blausey was killed during a windstorm when the car he was driving was struck by a falling Norway spruce tree on a U.S. highway in Erie County, Ohio. The tree had been growing on a roadside right-of-way obtained by defendant on land that was owned by Joe Henry but occupied by a tenant. The primary proximate cause of the fall was the severe deterioration of the roots on the east side of the tree and the high wind that blew the tree onto the highway. The tree had been struck by lightning in 1973, and the damage from that strike led to interior rotting and an infestation of carpenter ants, the combination of which destroyed much of the root system. The deterioration had existed for as long as ten years, gradually weakening the tree to the extent that it became a hazard.

Before it fell, the east side of tree that faced the highway showed little, if any, evidence of decay. Dead limbs were not clearly visible from the highway. Limbs had been removed from the lower part of the tree, which was not uncommon as landowners sought to mow, decorate, or otherwise use the land. Additionally, the lower part of the tree was obscured by bushes and vegetation. The upper growth of both the healthy and the diseased spruce trees was green and quite similar, although on close inspection, the growth on the healthy spruce appeared to be slightly more dense. Cone growth was normal on both trees. Although the 1973 lightning strike had caused the tree to lose its “Christmas tree” shape at the top, the loss was not very noticeable. However, an inspection of the west side of the tree would have revealed evidence of deterioration and of a potential hazard. The State had not inspected the tree except from the highway, and that inspection did not reveal any defect.

Blausey’s executor sued the State for negligence in not identifying and removing the danger tree prior to the accident, and accused it of maintaining a nuisance.

Held: The State was not negligent. In order to prevail upon a claims of negligence, a plaintiff must prove by a preponderance of the evidence that defendant a duty, that it breached the duty, and that the breach proximately caused the injury. The State has a duty to maintain its highways in a reasonably safe condition for the motoring public, but it doesn’t have to become an insurer of the safety of state highways.

treedown140513To constitute a nuisance, the thing or act complained of must either cause injury to the property of another, obstruct the reasonable use or enjoyment of such property, or cause physical discomfort to such person. In a suit for nuisance, the action for damages is predicated upon carelessly or negligently allowing such condition to exist. But in order for liability to attach to a defendant for damages caused by hazards upon the roadway, a plaintiff must show the defendant had actual or constructive notice of the existence of such hazard. The distinction between actual and constructive notice is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever from competent evidence the trier of fact is entitled to hold as a conclusion of fact and not as a presumption of law that information was personally communicated to or received by a party, the notice is actual. Constructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. To establish that defendant had constructive notice of a nuisance or defect in the highway, the hazard “must have existed for such length of time as to impute knowledge or notice.

The court found that there was insufficient discernible evidence available to defendant’s inspectors to warrant further investigation of the damaged tree or to determine that it was hazardous prior to the accident. While a close inspection of tree would have revealed that tree was a hazard, the deteriorated condition of tree was not apparent through Department’s routine visual inspections from roadway, and with over 40,000 miles of road to inspect, the Department was not — as a matter of social and economic policy —expected to individually inspect the trees.

– Tom Root


Case of the Day – Martin Luther King Day 2018


The majestic courage shown by the Selma marchers 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today's plaintiff.

The courage shown by the Selma marchers over 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today’s plaintiff.

For a country that was supposed to be sailing into a post-racial world after the election of President Obama in 2008, we’ve had a rough time of it recently.  In race relations, 21st century-style, there is the deadly serious (such as Ferguson, Chicago, Cleveland and Charleston) – the merely reprehensible (a busload of drunk, rich white kids being stupid, callow and mean, all at the same time) – the head-scratching (trees can be racist?), and a President who is or is not racist, depending on your political viewpoint. That last issue, and exactly how he may have referred to the governance and economics of Haiti, El Salvador and some countries in Africa, are a suitable launching point for a trip into the absurd. The absurd is something we’ll look at today, on Dr. Martin Luther King’s birthday commemoration.

Sigmund Freud was famously but questionably credited with having said “sometimes a cigar is just a cigar.” In today’s case, a matter of trespass to trees was somehow recast into a federal civil rights action by the plaintiff, who was a man with a litany of offenses committed against his ancestors which he wanted to redress.

Mr. Brewer apparently trespassed on Mr. Lance’s property and removed three trees. Rather than an appropriate trespass to trees action (with a request for treble damages) in South Carolina courts, Mr. Lance went for broke, suing Mr. Brewer for violation of his civil rights under 42 U.S.C. § 1983.

A § 1983 action is a powerful one, authorizing a federal court action to be brought against persons who, under color of state law, deprive another of his civil rights. It has been used against those who discriminate in housing, police officers who wrongly beat suspects, employment discrimination, and even in zoning decisions.

But § 1983 doesn’t do everything. Here, Mr. Lance argued that not only had Mr. Brewer falsely claimed to have the County’s permission to cut down the trees, but Mr. Brewer’s grandfather had defrauded Mr. Lance’s cousin in a land deal about 40 years before. When the Federal magistrate judge recommended dismissal of the § 1983 action, Mr. Lance objected, arguing rather ineloquently that ““GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction.”

cartoon150313Destruction was something the federal court was willing to risk, holding that no matter how it tried to construe Mr. Lance’s complaint, there just wasn’t a civil rights violation alleged. Of course, he was free to pursue his complaint in state court, and we assume he did so.

Lance v. Brewer, Slip Copy, 2007 WL 1219636 (D.S.C., Apr. 24, 2007). In late 2005 Defendant Brewer cut down three large trees and other tree limbs on Plaintiff Lance’s property without permission. Lance asserted that Brewer, who ran a business named Don’s Scrap Metal and Iron, sold these trees for profit but that he and his relatives did not receive any profit. Lance alleged that Brewer told him the county gave him permission to cut down the trees, but according to Lance, a county employee told him that the Brewer did not have permission to cut down the trees. In addition to these claims, Lance argued that Brewer’s grandfather purchased the property adjoining his property forty to fifty years ago by “fooling” Lance’s cousin into selling 20 acres of river-front property for $200.00.

Lance alleges Brewer’s actions constitute racism and discrimination under 42 U.S.C § 1983, and he seeks $85,000.00 on behalf of the heirs of his cousin, Willie Lance. A U.S. Magistrate Judge recommended that Lance’s claim be dismissed. Lance disagreed, and sought rejection of the Report & Recommendation.

Dr. King stood for equality and justice… not nonsense.

Held: Lance’s tree-cutting-as-civil-rights case was dismissed. The Court observed that the Plaintiff had objected to Report and Recommendation, because “GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction. The United States Court has Federal Jurisdiction, because this is a Civil Rights Violation.” The Court said, “[t]he Plaintiff’s unsubstantiated statement that the Court has federal jurisdiction because this is a civil rights violation does not change the fact that even liberally construing the Plaintiff’s complaint, it fails to state a claim for a federal civil rights violation.” Here, Brewer is a private individual.

What’s more, Lance tried to state a claim pursuant to § 1981. The Court held that Lance has failed to allege an essential element of a § 1981 claim, that there is a contract or property law right enjoyed by white citizens but not by the Plaintiff, who is black. The Court concluded that, tree or no tree, no federal question was raised by Lance’s claim, and thus jurisdiction did not exist.

– Tom Root


Case of the Day – Friday, January 12, 2018


busek150915We read a lot of newspapers. Some are truly excellent. Some are pretty good. A few are so-so.

Then there’s the Norwalk, Ohio, Reflector, which we read for reasons too complex to explore here. Suffice it to say, if you have a parakeet, the Reflector is all the newspaper you’ll ever need. 

A couple of years ago, Reflector columnist Jim Busek complained about the city’s plan to axe 62 trees that are accused of wreaking havoc with sidewalks. Jim bemoaned the fact the City had removed a number of ash trees eight years ago (which he admitted was a “smart ash policy”). Jim was pleading for the 62 targeted trees, publicly and plaintively asking Norwalk Safety Director Josh Snyder whether there wasn’t an alternative to cutting down these old trees. Surely, Jim hypothesized, these at-risk trees are so mature that if the offending roots were cut, no new ones would dare grow, and the sidewalks would thus remain in place. Right?

Maybe if we cut the trees' roots, but ask it real nicely, it won't grow any new ones ...

Maybe if we cut the trees’ roots, but ask them real nicely not to grow any new ones, our problems will be solved …

Sure thing, Jim. While Norwalk arborists are busy looking for the anti-root pixie dust that Jim figures will prevent new growth, we thought we’d consider the strange legal limbo in which property owners find themselves when tussling with municipalities over trees located on tree lawns.

It turns out that Norwalk – known as the Maple City – didn’t rid itself of all of its ash trees. A few still stand on city streets, and ash borers haven’t overlooked them. So who’s responsible for those dead trees? Ironically, we’ve seen the issue arise before, as cities – operating under tight budgets – lean on homeowners to pay for the removal of tree lawn trees. So exactly whose problem is it?

An interesting question, and one we’ll consider for the next two days. Actually, there are two questions, and we’ll pick on Jim in order to answer them. Let’s say for example, that the dead ash on Jim Busek’s tree lawn falls on a motorist. Is Jim’s ash in a sling? And might the Maple City be liable as well?

So someone’s gotta do something about the tree. But who – Jim or the Mayor?

The infestation on this ash is pretty obvious.

The infestation on this ash is pretty obvious.

Today, we’ll consider Jim’s liability. There’s no doubt that the tree lawn is Jim’s property, despite the fact it is subject to the City’s highway dedication. There’s a lot an owner can’t do with a tree lawn because of the City’s highway rights, but it’s still his or her property. Generally, the owner can plant and take down trees. And the fact that an owner has the right to add or remove trees suggests that he or she has a duty to as well.

Let’s consider that duty. In Wertz v. Cooper, one of Cooper’s trees fell onto Wertz’s fence during a storm. When Wertz sued her, she countered that she had no idea the tree was diseased, and that the tree’s falling over was an act of God. The Court agreed. It held that in order for a landowner to have a duty, the evidence must establish that he or she had actual or constructive notice of a patent danger that the tree would fall.

There is an exception. Where the tree overhangs the street in an urban area, an owner may be held liable on negligence principles under certain circumstances for injuries or damages resulting from the tree or a limb falling onto the highway. Generally, an urban owner has a duty of reasonable care relative to his or her trees, including inspection to make sure that they are safe.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

So Jim may have a problem, beyond the fact that he’ll find no tree-root pixie dust at the nearby Home Depot. The duty to inspect isn’t an issue here. If Jim owns that dead ash tree, he already has notice that the tree’s dead. The bare branches in mid summer, the sloughing bark, and the borer tracks looking like spaghetti done in bas relief, is more than enough constructive notice anyone ever had. Whether the City does something about the dead tree or not, Jim would do well to hire an arborist to inspect the tree. If the tree should go for safety’s sake, Jim shouldn’t wait for the City to do it.

Would the same apply if tree roots damaged the sidewalk, making pedestrian passage dangerous? Absent any municipal code relieving property owners of liability for condition of the sidewalks, it would hardly be a stretch for an unfortunate passerby suing under the law of nuisance. Need an illustration? Look no further than Fancher v. Fagella.

Tuesday: Would the Maple City be liable to remove the tree, independent of Jim’s obligation as a landowner?

Wertz v. Cooper, Case No. 06CA3077 (Ct.App. Scioto Co., Dec. 13, 2006), 2006 WL 3759831. Following heavy rains, a tree that sat on Cooper’s property tore loose from its roots, and leaned into Wertz’s fence and into a Shriner Colorado Blue Spruce tree that sat upon Wertz’s property. Wertz sued Cooper, complaining that Cooper failed to timely remove her tree. Wertz sought damages, including the cost of removing the fallen tree, the expenses to replace the damaged Blue Spruce, and other incidental damages.

Cooper argued that she had no knowledge of a defective condition of the tree, that she could not have been negligent in failing to maintain the tree, and that she could not be liable for the damage when an “act of God” caused the tree to uproot. The trial court agreed that there was no evidence that the tree was deteriorating, and that Cooper was not liable for an Act of God.

Wertz appealed.

If the dead tree falls n a car, watch the scramble to avoid liability begin ...

If the dead ash tree falls on a car, watch the scramble to avoid liability begin …

Held: Judgment for Cooper was upheld. A negligence action in Ohio requires a plaintiff to establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered injury. In order for a plaintiff to establish the duty element in a negligence action arising from a fallen tree, the evidence must establish that the landowner had actual or constructive notice of a patent danger that the tree would fall.

There is an exception to the general rule, however, concerning the duty of a property owner relating to growing trees with limbs overhanging a public street or highway. An owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property. In addition, there appears to have developed a distinction throughout the United States that there is a lesser standard of care with reference to rural, farm, timber, or little used land as opposed to strictly urban property. Generally, an urban owner has a duty of reasonable care relative to the tree, including inspection to make sure that it is safe. The duty placed upon the urban landowner, who has only a few trees, is not a heavy burden. This is in contrast to the rural landowner who may have a forest full of trees, which would impose a duty of immense proportions, and constitute an onerous burden on the owner.

Despite the heightened standard to be applied to an urban tree, Wertz had no evidence in this record to establish that Cooper had either actual or constructive notice of a defective condition of the tree. While Wertz advanced her belief that the tree was dead or dying, her allegation was conclusory. She presented no evidence to support her claim. What’s more, even if Wertz were right that she believed that the tree was dead or dying hardly establishes that Cooper knew or should have known that the tree was dead or dying.

– Tom Root