Case of the Day – Monday, August 20, 2018


Cicero rails against Cataline in the Senate.

Cicero rails against Cataline in the Senate.

That great Roman senator and statesman, Marcus Tullius Cicero, was raging against Cataline when he uttered the now-famous phrase “O tempora, o mores!”

“Oh, what times, oh, what customs!”

We took Latin in high school, and – thanks in no small part to the late Emily Bernges of Sturgis, Michigan, our magnificent Latin teacher – we developed great respect for Cicero. Senator Marcus T. had plenty of his own problems to deal with when he gave his first oration against Cataline, but we threw up our hands like he did and asked the same question about today’s case. We have charted how, during the 20th Century, the law governing landowner liability had crept inexorably toward mandating that property owners inspect their trees. In today’s case, a New Jersey court likens trees to product liability, in that a property owner who sells his or her land may remain liable for what happens to the trees well after the new owner takes possession.

“Bull-pucky!” you say. “I sold the place, I’m done with it!” To that we respond first that you need a better class of epithet, and second that you are sadly mistaken.

NBS140428Mr. Narsh had the misfortune to be driving by a wooded lot belonging to a local church, when a tree fell on his car. After the funeral, his estate sued the church, as well as the previous owner, the owner before that owner, and the owner before that owner. It’s surprising that the Lenape Indians – who had owned the area back when Giovanni da Verrazzano arrived in 1524 – weren’t co-defendants, too.

It turned out that Zirbser Brothers, Inc., had bought the land three years before the accident. That corporation sold it 18 months later to Zirbser-Greenbriar, Inc. (“ZGI”), which – as its name suggests – was another company owned by the same people who owned Zirbser Brothers, Inc. ZGI built a nursing home on some of the land, and conveyed the rest, including the part with the dead tree, to St. Stephen’s Lutheran Church just a few weeks before the accident.

A jury decided that the Estate that had sold the property to Zirbser Brothers, Inc., and the Church were not liable. However, the Zirbser brothers’ two companies were found liable, despite the fact that neither owned the property when the tree fell.

The court first observed that in New Jersey, one who places or maintains in or near a highway anything which, if neglected, will render the way unsafe for travel, is bound to exercise due care to prevent it from becoming dangerous. This rule places an affirmative duty on the landowner to prevent trees from becoming dangerous.

We could see that coming from the decisions we reviewed last week. It seems, however, that there was more. The Court said it saw “no reason why an owner who would be liable to a member of the public under the rule … should be absolved from liability by the simple act of the sale of his property.” Calling the rule that a landowner was no longer liable once the property was sold an “[a]ncient distinction,” the appellate court compared the matter to product liability – where manufacturers and everyone else in the supply chain remain on the hook for defects for what seems forever (just ask the general aviation industry) – holding that the landowner could remain responsible for defects even after the land was sold and he could no longer remedy any problems.

The Court found “no support in reason and logic for any distinction between the liability of a vendor of land in an urban area who erects a tower on his land, and one who maintains a rotten tree on his land.” The Court concluded that “[t]he obligation of reasonable inspection which may be involved if a vendor is to be held liable for dangerous conditions existing on his property at the time of its conveyance, is small when compared with the danger posed by a rotten tree poised over a busy highway. The fact that the vendor may have lost the right to go on the property and make repairs is beside the point–the rule is aimed at inducing him to make inspections and guard against dangers before conveyance. The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times.”

Yeah, right. What this means to the prudent homeowner is that any conveyance of real estate should be accompanied by a tree inspection by a certified arborist, insurance against the outside chance that someone gets hurt or property gets damaged by a falling tree in the future.

How long in the future? This liability for property that has been sold can’t go on forever, right? After all, the Lenapes didn’t get sued. The Court said that “where an owner of land adjacent to a highway in an urban area, conveys his land, on which is located a tree which he knows, or should know, presents an unreasonable risk of injury to the public, he remains subject to liability for physical harm caused by such condition after his vendee has taken possession … until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

What’s reasonable? That’s probably for the jury to decide. The problem is, if you’re in front of a civil jury, that means you’re in trial, and you’ve already lost even if you win. Better to spend the extra money early for an arborist’s inspection at closing.

More cost. More uncertainty. More precautions. Oh, what times! Oh, what customs!

Narsh v. Zirbser Brothers, Inc., 111 N.J.Super. 203, 268 A.2d 46(N.J.Super.A.D. 1970). On April 28, 1967, James H. Narsh met his death when a large tree fell upon him as he was driving his car on North Evergreen Avenue in Woodbury. The plot on which the tree had been standing was heavily wooded with old trees, a number of them being close to the sidewalk. A witness who resided in an apartment across the street heard a cracking noise and saw the tree fall onto decedent’s car. He had previously noticed that the tree, which was very close to the road, was dead, shedding branches, and appeared quite rotten.

The plot on which the tree had been located had been sold three years before by the estate of Alfred Green to Zirbser Brothers, Inc. Zirbser Brothers, Inc. retained title until for two years, then conveyed it to ZGI, a corporation formed by the Zirbser brothers and having the same stockholders, directors and officers as Zirbser Brothers, Inc. ZGI retained a portion of the tract for a nursing home, but on April 20, 1967, sold the remainder – including the portion on which the offending tree was located – to a church. The accident occurred eight days later. All four parties were sued.

The jury was exonerated the Green estate and the church, but found both Zirbser Brothers, Inc. and ZGI “guilty of negligence which was a proximate cause of the accident.” The jury awarded $85,000 in damages.

Zirbser Brothers appealed.

Held: Zirbser Brothers, Inc., remained liable for the tree for a reasonable period of time after transfer to the church.

There was ample evidence that the fallen tree, like many others on the property, was rotten, and that any owner should have known it. But Zirbser Brothers, Inc., neither owned nor possessed the lot in question at the time of the accident. Its conveyance to ZGI had taken place almost a year before, although Zirbser was on the property building the nursing home. Some of its construction materials, and its construction trailer, was still on the land when the accident occurred. Nevertheless, from the time of the sale to the church, Zirbser was without right to cut down trees or otherwise police the part of the property where the subject tree was located.

The Court held that as of the time of the accident, Zirbser’s presence on the property purchased by the church, standing alone, did not afford an adequate basis for a present duty on its part to guard against the falling of the tree.

Pay the inspector, Shirley ... it's a lot easier and cheaper to do it now.

Pay the inspector, Shirley … it’s a lot easier to do it now … and as a group, they’re cheaper than lawyers.

If one negligently creates a condition on land which is unreasonably dangerous to outsiders, the Court said, there is no good reason why his potential liability should stop either when he transfers possession of that land or when his successor in occupancy becomes liable either because of his possession or because of his fault in negligently omitting to repair the danger. The Court observed that the boundaries of tort liability for dangerous conditions on the land have gradually been extended by our courts in recent years. It held that “[t]he rationale which underlies [a landowner’s] continued liability for a structure on his land would apply equally to a tree which is so close to a highway as to endanger traffic thereon should it fall. In this day and age, with its attendant increase in population, greater use of automobiles and more intense use of land, the presence of a rotten tree along a busy highway poses dangers greatly in excess of those with which the courts were confronted in the cases in which appellant relies. The obligation of reasonable inspection which may be involved if a vendor is to be held liable for dangerous conditions existing on his property at the time of its conveyance, is small when compared with the danger posed by a rotten tree poised over a busy highway. The fact that the vendor may have lost the right to go on the property and make repairs is beside the point – the rule is aimed at inducing him to make inspections and guard against dangers before conveyance.”

The Court thus held that where an owner of land adjacent to a highway in an urban area conveys his land – on which is located a tree which he knows, or should know, presents an unreasonable risk of injury to the public – “he remains subject to liability for physical harm caused by such condition after his vendee has taken possession. If he has actively concealed the condition from the vendee his liability continues until the vendee discovers it and has reasonable opportunity to take effective measures against it, otherwise it continues until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

The takeway here: the prudent landowner will have regular inspections of trees done, with written reports, and will follow the reasonable advice of the arborists. When the property is sold, a home inspection may be requested by the buyer, but a grounds inspection should be ordered by the seller.

– Tom Root


Case of the Day – Friday, August 17, 2018


fees160104Let nothing come between a lawyer and his or her fee.

You might be cynical, and imagine that today’s case is nothing more than a lawyer worried about collecting a large and unwarranted fee. But the case is much more than that.

The facts are rather prosaic. Some landowners failed to carefully mark the common boundary with their neighbor before setting a timber company loose on the property. Sure enough, the cutters harvested some of the neighbor’s trees. That much wasn’t an issue.

When Valarie Garvey sued the Chaceys for timber tress, property damage and a collection of related causes of action, the Chaceys hired some aggressive litigators. Their lawyers knew that the best trial defense often is a good pretrial offense. They fought tooth-and-nail before trial, gaining their best tactical high ground when Valerie’s lawyer inexplicably didn’t identify the plaintiff’s timber expert by the pretrial deadlines.

The expert was crucial, because he was going to testify as to the value of the timber that had been wrongfully cut. But once the expert established the value of the missing trees, Section 55-332 of the Virginia Code would let Valerie Garvey collect three times the value of the wrongly-cut timber, plus reforestation costs, plus other damages to the property (such as the private road the timber harvesters ripped up) plus “legal costs directly related to the trespass.” In short, it looked like a big payday for Valerie Garvey. She just had to do one thing. She had to prove the value of the stolen timber.

Alas, she screwed it up. Perhaps it would be more appropriate to say her lawyer screwed it up. Without the expert, Valerie had no way to get the value of the timber into evidence. When the jury decided the case, it was able to award her the princely sum of $15,135.00 (only a fraction of the reforestation costs she estimated to be $ 78,000.)

expert160104Valerie’s lawyer, trying to save a case that was going south pretty fast, successfully convinced the trial court that the “directly associated legal costs incurred by the owner of the timber as a result of the trespass” included attorneys’ fees. Valerie claimed she had spent over $135,000 in legal fees, and the trial court awarded even more than that – $165,000 – in fees.

We doubt that Valerie’s lawyer was going to get all of that. In fact, Val had every right to be as mad as a wet hen over counsel’s missing the expert witness deadline. We suspect that the lawyer and client had made a deal to salvage something out of the case, and counsel would had ended up with little more than cabfare (but no malpractice claims). Unfortunately, we’ll never know, because on appeal, the Chaceys convinced the Virginia Supreme Court that whatever “directly associated legal costs” might be, they are not “attorneys fees.” The Supreme Court was impressed that wherever the legislature intended to authorize the award of attorneys fees – in over 200 statutes in the Code – it was able to clearly say so.

The Chaceys – not satisfied with hitting a triple – swung for the fence. They asked the Supreme Court to rule that where a plaintiff claiming timber trespass did not prove the value of the missing timber, the case should be thrown out. The Supreme Court disagreed. Proving a timber trespass does not require that one prove the value of the purloined pines. Of course, not doing so cuts the plaintiff out of a lot of damages, but the offense does not depend on proven damages. It just requires that a trespass to timber occur, whether the tree is worth anything or not.

As for Valerie’s attorney, we suspect he was on the phone pretty quickly, calling his malpractice carrier.

reforest160104Chacey v. Garvey, Case No. 150005 (Supreme Court of Virginia, December 30, 2015). In 1995, Valerie Garvey bought 50 acres of land from Allan and Susan Chacey. The Chaceys retained ownership of adjacent property, and they reserved to themselves an easement over Garvey’s property as a means for ingress and egress to their property.

At the end of 2012, Garvey sued the Chaceys and Blue Ridge Forestry Consultants, Inc., alleging timber theft and trespass. Garvey said the Chaceys had hired a logging company a few years previously to remove some timber located on their property, and that the company had trespassed on her property and removed timber without her permission. She alleged that she was entitled to damages for timber theft at three times the value of the timber on the stump, as well as reforestation costs not to exceed $450 an acre, the costs of ascertaining the value of the timber, and her attorney’s fees. She also asked for $30,000 for damages to her property caused by the trespass, including damage to the road, fencing, and the stone bridge.

Prior to trial, Garvey attempted to designate an expert witness for the purpose of establishing the monetary value of the timber on the stump at issue in the complaint. However, she did so too late, and trial court refused to let her expert testify during the three-day jury trial.

While she was testifying at trial, Garvey was asked by her attorney whether she had incurred legal costs in connection with the trespass. The Chaceys objected, but the trial court ruled that legal costs included attorney’s fees. Garvey told the jury that she had incurred more than $135,000 in legal costs, including attorney’s fees, which she claimed were all directly associated with the trespass. She also testified that she had negotiated with Bartlett Tree Services for the restoration of the trees, and she had paid a deposit of $440 towards that work, against a total price of $78,000.

The trial court ruled that Garvey could not recover treble damages since her expert evidence regarding the value of the timber on the stump had been excluded. However, the case could still go to the jury for consideration of damages for reforestation and legal costs.

The Chaceys argued that attorneys’ fees are not recoverable by a prevailing party in an action for timber theft pursuant to the Virginia Code § 55-331. They also contended that Garvey’s timber trespass claim should not have been submitted to the jury, because she had failed to provide any evidence related to the value of the alleged damaged timber. However, the jury found for Garvey on her claims of timber theft, trespass, and property damage. On the timber theft claim, the jury awarded Garvey $135.00 in reforestation costs. The jury also awarded her legal costs. On the trespass count, the jury awarded Garvey $15,000 in damages. The trial court held that Garvey was entitled to $165,135 in “directly associated legal costs incurred by Plaintiff as a result of the trespass, including attorney’s fees, in the amount of $150,000 …”

The Chaceys appealed.

needlawyer160104Held: The Virginia Supreme Court split the ticket. It observed that although Virginia Code § 55-331 permits any victim of timber trespass to collect “directly associated legal costs incurred by the owner of the timber as a result of the trespass,” whether Garvey was entitled to attorney’s fees depends upon the meaning of “costs.” Garvey argued that her attorney’s fees are legal costs directly associated with the trespass. The Chaceys argued that Garvey is merely entitled to the costs necessary for the prosecution of her suit.

Tracing the definition of “costs” in other proceedings, the Court held that “the term ‘costs’ is limited to the costs necessary for the prosecution of a suit, and does not include attorney’s fees. The Code of Virginia contains more than 200 instances where the General Assembly has determined a successful litigant is entitled to ‘attorney’s fees and costs’ or ‘costs and attorney’s fees’ … However, the General Assembly did not include the right to recover attorney’s fees in this statute, something it has done in more than 200 other separate instances.”

The Court disagreed with the Chaceys, however, about the timber trespass claim. The Chaceys, no doubt wanting to capitalize on their pretrial success in keeping Garvey’s expert off the stand, argued that the trial court erred in permitting Garvey’s timber trespass claim to proceed to the jury because Garvey failed to provide any evidence related to the value of the alleged damaged timber. Essentially, the Chaceys were contending that evidence related to the value of the damaged timber is a prerequisite to awarding any of the additional damages provided for under Code § 55-332(B).

Virginia Code § 55-332(B) holds that any person who removes timber from the land of another without permission is liable to the rightful owner for “three times the value of the timber on the stump and shall pay to the rightful owner of the property the reforestation costs incurred not to exceed $450 per acre, the costs of ascertaining the value of the timber, and any directly associated legal costs incurred by the owner of the timber as a result of the trespass.” The Court held that there was nothing in the statute that stated that an owner is only entitled to reforestation costs, legal costs, or the costs of ascertaining the value of the timber after he or she had first established the value of the timber that was improperly taken. Instead, the Court said, the statute made clear that the person who removed the timber “shall be liable to pay” all of these damages to the owner. The fact that Garvey was unable to prove the value of the timber on the stump in this case did not preclude her from being able to recover the other damages she was entitled to under Code § 55-332(B).

– Tom Root


And Now The News …

Chattanooga, Tennessee, The Chattanoogan, August 16, 2018: No one injured in crane accident on Wednesday

A crane operated by Big Woody’s tree trimming business toppled on top of some townhomes in the Jackson Square subdivision in the 1700 block of E. Boy Scout Road around 2 p.m. on Wednesday. Fortunately, no one was injured. Chattanooga firefighters and police officers responded to the scene and promptly shut down E. Boy Scout Road to protect the general public. After determining a course of action, two wreckers with Doug Yates Towing and Recovery were brought in to lift and remove the crane from the townhomes. It was a tricky operation as precautions had to be taken so that an underground gas line and high-voltage power transmission lines above were not adversely impacted. The wrecker operators worked in tandem to slowly lift and remove the crane. Shortly after 6 p.m., the operation was completed…

Redding, California, Record-Searchlight, August 16, 2018: Some trees will recover after Carr Fire, others won’t

Q: Our property, consisting of 6 acres, was completely burned. The fire burned through areas with significantly varying results. Some areas were left with nothing more than black sticks of manzanita. The fate of those areas are obvious. Other areas are much less obvious and the core of my question. Will an oak tree with a small percentage of green leaf survive? What about one with nothing but dead leaf? Are different types of oak trees more or less capable of coming back than others? How about manzanita or other types of common indigenous plants?
A: You are correct in thinking that in the areas where all that is left are black sticks the plants are not going to recover but in the other areas you may see plants return to normal growth next spring. The good news is that oak, pine and chaparral — which includes plants like manzanita, buckbrush and toyon — are relatively resilient in terms of potential for recovery after wildfire. The most important factor for oak tree recovery is the extent and depth of damage to the cambium the layer of tissue just under the bark that supports the structures that carry water and minerals from the roots through the tree. Oak trees with white- or pink-colored cambium under burned bark likely will survive, but dark or yellowish/caramel looking cambium tissue indicates it is also damaged and lessens the likelihood of survival…

Akron, Ohio, Beacon-Journal, August 16, 2018: Davey Tree Expert Co. to ‘adopt’ Akron’s Signal Tree for 5 years

The Davey Tree Expert Co. will “adopt” Akron’s centuries-old Signal Tree for the next five years to ensure the tree receives proper care, the company said in a news release. The iconic Signal Tree, in Summit Metro Parks Cascade Valley Metro Park, is a burr oak believed to be more than 300 years old. Davey Tree has helped provide care for the tree for more than 40 years. The adoption means the Kent-based company will now provide regular maintenance, and conduct annual assessments of the tree. While no one knows for sure why the tree is shaped with three tongs, legend holds that American Indians shaped the tree to provide direction for transportation routes. According to Metro Parks Chief of Natural Resources Mike Johnson, officials are sure the tree signaled something. But with Delaware, Mingo, Seneca, Erie and Shawnee tribes all active in this region, the tree could indicate anything from a favorite hunting site to a spiritual gathering place…, August 16, 2018: Researcher discovers genetic differences in trees untouched by mountain pine beetles

A University of Montana researcher has discovered that mountain pine beetles may avoid certain trees within a population they normally would kill due to genetics in the trees. UM Professor Diana Six made the discovery after studying mature whitebark and lodgepole trees that were the age and size that mountain pine beetle prefer, but had somehow escaped attack during the recent outbreak. After DNA screening, survivor trees all contained a similar genetic makeup that was distinctly different from the general population that were mostly susceptible to the beetle. “Our findings suggest that survivorship is genetically based and, thus, heritable,” Six said, “which is what gives us hope.” In western North America, whitebark pine, a high elevation keystone species recommended for listing as an endangered species, and lodgepole pine, a widespread ecologically and economically important tree, have experienced extensive mortality in recent climate-driven outbreaks of the mountain pine beetle…

Miami, Florida, WPLG-TV, August 15, 2018: Native palm trees under attack in South Florida, researchers say

Cabbage palms are a part of the native landscape of the southeastern United States, standing tall as the official state tree for both Florida and South Carolina. Because it’s a native species, the cabbage palm is important from both an ecological and environmental perspective. The fruits of the tree serve as an important food source for native wildlife and some species of birds will nest in the canopy But cabbage palms across South Florida are dying from a diseased called lethal bronzing. “This disease is caused by a type of bacteria that can only survive in a plant or insect host, sort of like a virus,” said Brian Bahder, of the University of Florida Agricultural Extension Office in Davie. The bacteria is introduced into the trees by an insect that feeds on the leaves of cabbage palms.  “And the bacteria is present in the saliva of this bug and it gets injected into the palm … (It) eventually causes symptoms and eventual death of the palm itself,” Bahder said. At the University of Florida’s Institute of Food and Agricultural Services, researchers are attacking the problem from multiple angles…

Asheville, North Carolina, Citizen-Times, August 15, 2018: South Asheville tree vandalism suspect arrested, police say

Police arrested a man Tuesday for reportedly vandalizing a giant oak tree at the corner of Mills Gap and Sweeten Creek roads. The department said Asheville resident Steven Barry McGuinness, 59, was arrested and charged on one misdemeanor count of injury to real property this week. It is in connection to a tree that was spray-painted with red and yellow paint over the weekend, forming cross signs. The tree also had been cut three-quarters of the way through, which a Duke Energy official said put it at risk for damaging power lines on Mills Gap. Duke worked with N.C. Department of Transportation crews to remove the tree Monday. It briefly snarled traffic as crews closed the intersection during rush hour to remove it…

Missoula, Montana, Missoulian, August 15, 2018: Tree thinning project proposed for Pattee Canyon

An order to remove wildfire fuels on 1,725 acres in the Pattee Canyon Recreation Area this fall will be implemented without a current environmental assessment, which is allowed under legislation passed earlier this year. The massive 2018 Omnibus Spending Bill contained an amendment to the Healthy Forests Restoration Act, which allows for “categorical exclusions” that don’t need to go through the full-blown and lengthy environmental impact statement process or the smaller environmental assessment effort for two reasons. The projects must be for fuel reduction purposes on less than 3,000 acres, and be within the Wildland Urban Interface. “Because of the presence of homes and development, these areas are priority fuel reduction locations for the Missoula Ranger District,” Boyd Hartwig, a communications officer, wrote in a press release. “Reducing fuels mitigates the potential for costly and high-intensity wildfire and can also reduce the exposure to firefighters during future fire events…”

Southern Living, August 15, 2018: So many suckers!

When you plant a tree or shrub, it’s supposed to stay where you put it, right? It isn’t supposed to sprout little shoots in the lawn 12 feet away. Alas, some plants have a bad habit of doing just that, which infuriates my faithful readers. Let’s review the cases of four common offenders, before Grumpy gives you a solution you probably won’t like. Southerners looooooove their crepe myrtles, until shoots with reddish leaves start popping up through the grass all around. Why does this happen? Root damage. Any time you sever a root while digging or throwing the javelin, the root doesn’t die. No, it decides to grow a brand new crepe myrtle and sends up root suckers. Removing or transplanting a big crepe myrtle can result in hundreds of suckers. Solution: Be careful where you plant a crepe myrtle, so you won’t need to transplant it. Plant anything that’s going underneath or beside it at the same time, so you won’t cut roots. If it’s already too late, you can try two things. First, apply Bayer Advanced Brush Killer to the shoots according to label directions. Don’t get any on plants you don’t want to kill. Or just keep cutting off the suckers at ground level. Without leaves to make food, the suckers eventually starve…

Salt Lake City, Utah, KSL-TV, August 14, 2018: ‘We lose a brother:’ Draper battalion chief killed by falling tree during California wildfire

City officials say a Draper firefighter died after a tree fell on him as he battled the Mendocino Complex Fire in California Monday. Draper Fire Battalion Chief Matt Burchett, 42, died in a hospital after sustaining injuries while fighting the blaze north of San Francisco, Draper Mayor Troy Walker said during an early-morning news conference. Burchett was struck by a falling tree and was airlifted within 40 minutes to a medical center after other firefighters administered medical aid, according to the Associated Press. He died soon after. Three other firefighters were also injured when the tree fell Monday, though officials have not yet confirmed where those firefighters were from. Burchett was one of five Draper firefighters sent to California to help fight the fire. Burchett was the crew’s task force leader…

Cleveland, Ohio, Cleveland Scene, August 14, 2018: It’s been 15 years since tree limbs in Cleveland killed 50 million people’s power

Only three days after half of Cleveland’s west side lost power, thanks partially to a backup line that’s been out of service since 2016, we commemorate the 15 year anniversary of the time Northeast Ohio killed power for more than 50 million people in the United States and Canada. The Northeast Blackout of 2003 began when tree limbs in the Cleveland area irritated powerlines, tripping circuits that led the system to draw large amounts of power from electric lines around Lake Erie to fill the gap. FirstEnergy’s alarm system intended to alert staff in Akron of the problem failed due to a technical bug, and a domino effect of blackouts followed suit. Investigators later reported FirstEnergy could have prevented the outage by monitoring and shutting down power to a limited region. What should have been a manageable, local blackout cascaded into collapse of the entire electric grid…

Knoxville, Tennessee, News Sentinel, August 14, 2018: Tree service worker rescued after being pinned 50 feet above the ground

A tree service worker escaped with only minor injuries after being pinned by a falling branch while suspended about 50 feet off the ground in South Knoxville. The worker, whose name was not available, was removing the tree piece by piece outside a residence Tuesday afternoon when he tried to cut off a branch and it buckled over, pinning his leg as he hung in a safety harness. The Knoxville Volunteer Rescue Squad’s vertical team and Rural Metro firefighters responded to the scene on the 3500 block of Maloney Road. The worker, however, was able to cut the branch loose and free himself. Rescue crews then threw the man a line, which he secured to the tree so they could lower him to the ground. “What made it easy was the rope skills of the climber,” said Rural Metro spokesman Jeff Bagwell. “The climber knew what to do…”

Chattanooga, Tennessee, Times-Free Press, August 14, 2018: Tree now at center of development debate

A tall, old tree is at the center of a debate between Mountain Creek residents living near the old Quarry golf course on Reads Lake Road and a developer who wants to turn his property into homes and apartments. Just how large the tree measures was a crucial point for residents attempting to prove the post oak was either a state or national champion that shouldn’t be cut down due to its historic classification. It was not, and developer James Pratt with Pratt Home Builders believes residents are trying to throw any excuse at him to stop the development. But some residents still say they believe saving the tree is crucial for the area, and they hope Pratt takes that into consideration when developing the property. “I think when we recognize that we have something like this, we should do what we can to preserve it,” resident Lorraine Forman said…

August 13, 2018: California fire map: 2,000-year-old Bennett Juniper threatened

The Bennett Juniper, largest juniper tree in the United States, is in the path of the Donnell Fire in California’s Sierra Nevada. Firefighters were building hand lines to attempt to contain the southern edge of the fire before it reached the tree and nearby structures in the Stanislaus National Forest. The Bennett Juniper is 82 feet tall. Its trunk at 5 feet off the ground is 14 feet in diameter, according to its steward, the Save the Redwoods League. The age has been hard to ascertain because of rotting wood at the heart of its core. The more conservative estimates put it around 2,000 years old. Some botanists believed it to be close to 6,000 years old, making it the oldest living tree on earth, the Save the Redwoods League said…

Denison, Texas, Herald Democrat, August 13, 2018: Denison enacts tree preservation, mitigation ordinance

The Denison City Council recently approved a new ordinance aimed at protecting the city’s native trees from clear-cutting and widespread removal during what has become period of growth and development. In addition to banning clear-cutting of protected trees 18-inches in radius or larger for larger developments, the new tree preservation ordinance also sets ways to mitigate the damage from tree removal. The motion to approve the new ordinance passed in a unanimous 6-0 vote with council member Kris Spiegel absent for the meeting. “The original idea behind this ordinance was to prevent clear-cutting,” Planning and Zoning Manager Steven Doss said during the meeting. “This ordinance does that, but then it kind of has grown into something different. Through our conversations with the (Planning and Zoning) commission, there was a desire to go one step further and not only prevent clear-cutting but also to set standards. If we aren’t going to allow clear-cutting, what are we going to allow?” City officials said the ordinance is primarily focused on larger developments, and does not apply to single-family residential lots of less than 10 acres…

New York City, The New York Times, August 10, 2018: He spoke for the tree. Then he got fired.

On a little hillside in the Brooklyn Botanic Garden, there is a patch of brown mulch that, until very recently, was a tree. It was not a rare kind of tree. It was not even a whole tree. It was the 10-foot-high living stump of what was once a mighty London plane tree, with a hollow inside big enough for people to stand in. The hollow tree had friends and fans. Children played in it. Adults stood in it and contemplated the inside-out view of the landscape. It served as shelter in downpours. People called it the treehouse tree. But according to the garden’s management, the treehouse tree was an accident waiting to happen. It had sprouted a bushy head of new branches that it could not support in the long run. Playing inside it was against the garden’s rules. The garden wanted to take the tree down to make room for a “vigorous young tree” that would help “make for a much healthier collection overall,” it said in a letter to members…

New Orleans, Louisiana, Times Picayune, August 13, 2018: Trees die when too much fill covers their roots – here’s why

Tree roots breathe in oxygen and breathe out carbon dioxide. They obtain the oxygen they need from the tiny air spaces in the soil. Because of this need, 85 percent or more of a tree’s roots are located in the upper 12 inches of soil where oxygen levels are highest. Many people are not aware of how shallow tree root systems are, and assume they must grow deep into the soil. With that attitude, they think applying fill over the roots should not make that much difference. Knowing that the roots are shallow due to their need for oxygen makes it easy to see why fill can kill trees.  If you apply too much fill over the roots of a tree, it blocks the ability of new oxygen to filter down into the soil. The roots use up the oxygen, and when it is not replenished, the roots suffocate and die. As they die, they stop absorbing the water the tree needs, and the tree eventually dies of thirst…

Science Magazine, August 9, 2018: Fears lessen that invasive fungi will completely wipe out Hawaii’s iconic native tree

Hawaii’s red-blossomed ‘ōhi’a is tough enough to colonize recent lava flows, but until this summer the iconic native tree seemed doomed. Four years ago, an invasive fungus began to kill ‘ōhi’a (Metrosideros polymorpha) on the island of Hawaii; by now, the blight has spread across 800 square kilometers. The news got worse in May, when dying trees tested positive for the fungus on the neighboring island of Kauai, fueling fears that rapid ‘ōhi’a death (ROD) would span the state. But the picture brightened at a meeting on Oahu late last month. Aerial surveys and studies on land and in the lab now suggest that some ‘ōhi’a will survive. The killer fungus turns out to be two distantly related species, one of them less deadly to ‘ōhi’a, and some trees seem to have a native resistance to both strains. Management practices such as fencing out animals also appear to slow the spread of the fungus. “We are not going to see an extinction of ‘ōhi’a,” predicts Flint Hughes of the U.S. Forest Service’s Pacific Southwest Research Station in Hilo, who is coordinating ROD research. “As we understand it more, our management tools are improving and we are learning about the potential weak points of the fungus and the strengths of ‘ōhi’a”…

Discover magazine, August 8, 2018: Despite deforestation, earth is gaining trees as land use changes

Scientists like simplicity as much as anyone. Elegant equations take up less room, well-designed experiments reduce clutter and Occam’s razor generally advises to keep things simple (within reason). But how far can you take it?  Say you want to know the exact amount of tree loss Earth has seen over time — can you look at a bunch of old satellite photos and just compare the greener areas? Well, according to a Nature paper out today, yes we can! The authors did almost exactly that, analyzing 35 years of satellite data to determine the changes in land cover. And while the methods may sound straightforward, the results are a bit less intuitive: It turns out Earth is actually gaining tree cover and losing bare ground cover. It’s sort of good news, and will help scientists better understand and model our planet’s changing climate…

Madison, Wisconsin, University of Wisconsin, August 9, 2018: Dutch elm disease claims “Elmer,” a campus tree more than a century old

The University of Wisconsin–Madison campus is saying goodbye to a beloved natural landmark. An elm tree that has stood for more than 100 years fell victim to Dutch elm disease and is in the process of being removed from the Hector F. DeLuca (HFD) Biochemical Sciences Complex by UW–Madison grounds staff. The tree – often known informally as Elmer – has a rich past with the Department of Biochemistry and surrounding departments in the College of Agricultural and Life Sciences (CALS), such as the Department of Horticulture. Thousands of students who have taken biochemistry courses or frequented that area of campus have gazed up at the old elm or enjoyed breaks in the shade it provided…

Victorville, California, Daily Press, August 9, 2018: How to remove a tree stump

So you removed that old or diseased tree from your property. That’s one problem solved … but now you’re left with a second dilemma: How to remove the tree stump? Check out this list of practical solutions. First: Why remove a stump? The question “How to remove that tree stump?” is best answered with another question. Why remove the stump? Your reasons will help determine the removal method you’ll use. Common motivations for getting rid of a tree stump are (1) Improve the appearance of your property. An ugly old stump has negative curb appeal; (2) Make it easier to cut the grass. You’ll also avoid accidental damage to your mower and other lawn care tools…

Hartford, Connecticut, Courant, August 8, 2018: Hartford Flagged Tree That Fell On 11-Year-Old Boy For Removal But Waited To Hear Objections

A large tree that fell Tuesday night at Goodwin Park, sending an 11-year-old boy to the hospital, had been flagged for removal last week by Hartford officials who waited 10 days to see if any residents objected to it being cut down. City officials said that the tree was identified as a problem on July 27, but was spared by the municipal ordinance requiring the waiting period so residents may challenge the decision. The ordinance allows for a tree to be removed immediately if city workers determine it’s an immediate danger. Officials said that was not the case with this tree. The tree, which stood next to a basketball court at the public park, came down on its own, apparently splitting at the base. A group of children playing basketball on the South End court heard it snap…

Huntington, West Virginia, WSAZ-TV, August 8, 2018: Trim your tree or pay the price

One village is going to great lengths to trim trees blocking the road. But if you don’t do it yourself in Oak Hill, Ohio, you’re going to be sent a bill. It’s the latest as cities and communities across the Tri-State and Kanawha Valley look to tidy up their town. Officials said it’s a safety issue they can’t afford to ignore any longer, for more ways than one. There’s a few spots that make drivers swerve, as long as someone isn’t in the other lane. We took a drive with Mayor Rob Leonard Wednesday afternoon. Even just pulling out of City Hall shows the problem. He said it’s the cause of multiple wrecks in recent years, including at least one involving a school bus. Tom Miller has lived in Oak Hill his entire life. “They need to trim them back, and I think it’d help a lot,” Miller said. The City Council will have a final reading to its tree trimming ordinance Tuesday, putting some teeth into its current ordinance for residents who don’t comply…

Portland, Oregon, KPTV, August 8, 2018: From Oregon, with love: Capitol Christmas Tree to come from Willamette National Forest

With summer in full swing, most people aren’t thinking about Christmas yet. But for the people tasked with choosing a national Christmas tree, the deadline is fast approaching, and they’re looking to the Willamette National Forest. Oregon is known for its trees, so you’d think finding a Christmas tree here would be a simple task… right? Not so much, says Jim Kaufmann, director of the Capitol Grounds and Arboretum at the Architect Capitol. “It’s almost like finding a needle in a haystack,” Kaufmann said. This isn’t the first year the Capitol Christmas Tree has come from Oregon. In 2002, the Capitol Tree came from the Umpqua National Forest. This year’s tree is coming from the Willamette National Forest. Kaufmann says it’s his job to choose the tree that will stand on the Capitol’s west lawn…

Minneapolis, Minnesota, Star-Tribune, August 8, 2018: S. Minnesota homeowner fatally shoots dog believing it was peeing on his trees

A southern Minnesota homeowner was charged with a felony for shooting and killing a dog because he believed it was peeing on his trees. Brian J. Johnson, 63, of Good Thunder, was charged in Blue Earth County District Court last week with animal cruelty and is scheduled to appear in court on Aug. 30. “I have mixed feelings, but I want justice for my dog and what he did,” said Carrie Dolsen, who adopted Diesel as a rescue puppy about four years ago. “He was our kid.” Jim Kuettner, Johnson’s attorney, said, “The dog was repeatedly coming onto Mr. Johnson’s property and [urinating], and the owner was not doing anything about it.” According to the criminal complaint, a witness approached a police officer midafternoon on June 3 and said there was a dog on Willard Street that appeared to be ill. The officer found the dog vomiting and took the dog to its home. Two days later, police were notified by the Dolsen family that the dog had died, and a week later they were told that Diesel had been shot in the abdomen with a pellet gun…

Looking for an older news story we featured on this page? Check our Prior News Links page.


Case of the Day – Thursday, August 16, 2018


Trees falling on vehicles never work out well for the vehicle.

Trees falling on vehicles never work out well for the vehicle.

A family’s Christmas – and for that matter, its future – was ruined on a rural Ohio one dark December night. 

Mike and Traci Reed were driving their two kids home from a Christmas celebration, Traci and her 5-year old son in her car following her husband and their daughter in his, because they had picked up her car at her office, where she had left it earlier. When Mike and daughter Samantha got home, Traci – who had been following them – was no longer behind them. Mike backtracked to find her car crushed by a tree. An EMS worker at the scene told him that his wife was dead and son in critical condition.

The wheels of justice ground slowly after the accident. Four years after the accident, the Ohio Court of Claims – which decides questions of the State’s liability – finally decided the question of the Ohio Department of Transportation’s liability. The case is of interest not just because of the dry reduction of human tragedy into dispassionate allocation of responsibility (although it is interesting for that, too). The findings of fact and conclusions of law handed down by the magistrate (who is kind of an assistant judge) illustrate a well-structured case presented by the plaintiff and a poor rebuttal by ODOT.

One wonders why the State of Ohio didn’t just settle the case if it was going to make such a poor showing. Its own employees made the plaintiff’s case, and its expert pretty much just “phoned it in.” But from the plaintiff’s perspective, the case is a veritable “how to” try a claim of liability against a state agency in a “danger tree” case.

Reed v. Ohio Dept. of Transportation, 2012-Ohio-1244 (Ct.Cl., Mar. 23, 2012). Traci Reed and her young son, Conner, were driving northward through the hilly eastern Ohio countryside, when a tree fell on their car. Traci was killed and her son was badly injured.

The tree that fell on Traci had shown as “substantial ‘lean’” in the year prior to the accident, and other trees on the same embankment had fallen during that time. Traci’s husband had observed this, but he had never complained to the Ohio Department of Transportation himself. Rather, he assumed that ODOT knew about the condition because road crews maintained the area throughout the years.


The Court noted that ODOT had a general duty to maintain its highways in a reasonably safe condition for the traveling public, but it is not an insurer of the safety of its highways. ODOT may be held liable for damage caused by defects, or dangerous conditions, on state highways where it has notice of the condition, either actual or constructive. Actual notice exists where, from competent evidence, the trier of fact can conclude the pertinent information was personally communicated to, or received by, the party. Constructive notice is that notice which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. Under Ohio law, in order for there to be constructive notice of a nuisance or defect in the highway, that nuisance or defect must have existed for such length of time as to impute knowledge or notice.

The plaintiff (who was the husband of the deceased wife and mother) presented several ODOT employees responsible for vegetation management and hazard abatement along the road in question. He established that some of the employees knew of the tree and believed it to be dangerous, and others – while not recalling the tree ­ – agreed when studying the accident photos that it was dangerous. Plaintiff called a surveyor to establish that the tree had fallen within the state’s right-of-way on the highway, and put people on the stand who had lived close to the accident site, and who testified that they had seen the tree and thought it was a hazard.

Additionally, the plaintiff produced an urban forestry consultant who was certified by the International Society of Arboriculture as an arborist. The forester prepared for his testimony by reviewing court documents, photographs, visiting the accident site, and examining cut-up tree remnants. He testified that that the tree was a 50-year old red oak, and that it contained “reaction wood,” which forms to counter a lean of the tree. He observed that the pith, the biological center of the tree, was off-center, and that the tree’s roots in the embankment showed mild to moderate decay. He concluded that the tree was “hazardous” (as defined by the International Society of Arboriculture Hazard Rating System). His conclusion was based on the tree’s potential to fail and the potential to hit a target, because of its significant lean, its location in a sloped embankment with exposed roots, and the visually obvious deadwood in the crown of the tree. He testified that once a tree is “off vertical” with unstable soil, each progressive year increases the risk of failure. The tree was located on a steep slope, which compromised its stability.

The expert concluded that ODOT failed in its duty to remove a hazardous tree that had several significant defects, readily observable from the roadway. He said it was “not a question of if, but a question of when” the tree would fall on to the highway.

ODOT presented the testimony of one of its employees who said he had removed the tree from the road after it fell, and he had been familiar with it prior to that time. He said he had never seen any condition that concerned him, and if he had, he would have reported it. ODOT also presented its own expert, who prepared his testimony in the same manner as did the plaintiff’s expert. He said that the tree has a “classic natural lean,” due to the fact that the tree was on the edge of the woods and it grew toward the sunlight. According to ODOT’s expert, the center of the tree was asymmetric but there was no indication that the tree was dead or distressed. The State’s expert opined that the tree falling was “natural, it was not predictable.” However, on cross-examination, he conceded that the tree’s center of gravity was “probably not over the roots” and that a tree does not have to be dead, decayed, or diseased in order to be a hazard.

The finder of fact – in this case, a magistrate who heard the evidence for the court ­– found the Reed’s expert to be more persuasive. The evidence about the tree’s shifted center of gravity carried the day; the court concluded that the red oak tree that fell on Traci Reed’s vehicle was a hazard to the motoring public. As for notice, although ODOT said it had received no complaints from either its staff or the public regarding the tree, two of its employees acknowledged that they were aware that the canopy of the tree extended over the roadway. The court found that ODOT had actual knowledge of the hazardous condition, which had existed for more than a year prior to the accident and which was within the State’s right-of-way.


An “Act of God?”

ODOT argued that the property owner where the tree was located was liable for the tree, but ODOT presented no evidence showing that the landowner had actual or constructive notice. As well, it argued that the tree fell due to an act of God. The court rejected that argument. The evidence showed that there was no weather than night that was sufficiently “unusual and overwhelming as to do damage by its own power” to make the falling tree an Act of God. Even if there had been an adverse weather condition on the night of the accident, the Court said, “it has also been the rule of law that, ‘[i]f proper care and diligence [on a defendant’s part] would have avoided the act, it is not excusable as the act of God.'” ODOT’s failure to exercise proper diligence resulted in the tree falling, the Court said, not an act of God.

ODOT was held liable for the falling tree, and Traci Reed’s death.

And after considering the damages showing? The Court awarded the family $4 million.

– Tom Root


Case of the Day – Wednesday, August 15, 2018


This looks like hostility... but is it?

This looks like hostility… but is it?

We all know the mantra of adverse possession — in order to establish that a party has obtained title to land pursuant to adverse possession, a party has to show that its possession of the land has been open, notorious, exclusive and hostile continuously for a period set by statute (from five to 21 years, depending on state law).

Likewise, we all have notions of what “hostile” means, and often real life isn’t like that. In today’s case, a small cemetery association had been using a gravel road it had gotten the right to by a poorly-drafted easement in an 1880 deed (the year James Garfield became president). The people who remembered the easement was there were still nearby, although about 6 feet deeper in the ground than they had been back when it was first written.

The cemetery association had been dumping dirt on the land next to the easement, but it stopped when next-door landowner Calvin Coyer asked them to, because they wanted to be “good neighbors.” No hostility there. But they still parked cars next to the gravel road, even while giving Cal permission to graze his herds there. But when the Association was finally compelled to sue to quiet title under the doctrine adverse possession, Cal argued that nice guys finish last.

Because the Association always thought it owned the property, Mr. Coyer argued, it couldn’t have possibly possessed the land with any hostility. Not so, the Court of Appeals said. The “hostility” element of the doctrine of adverse possession is satisfied where the possessor thinks he or she owns it, or where he or she knows someone else owns it but intends to possess it anyway.

Thus, Malcolm Forbes was right! “Contrary to the cliché, genuinely nice guys most often finish first or very near it.”

Union Cemetery Ass’n of Crawfordsville v. Coyer, 162 P.3d 1072 (Court of Appeals of Oregon, 2007). The Union Cemetery Association operated a 3.69-acre cemetery surrounded by Calvin Coyer’s 81 acres of grazing land. Coyer’s land connects the cemetery to a 28-foot wide roadway that, in turn, connects to a public road by means of a 14-foot wide gravel road.

niceguy170215The 100-year old gravel road provides the only access from the public road to the cemetery. The Association received a deed in 1880 for a “right of way for a wagon road” as to a portion of the gravel road in 1880 and to another parcel of property. In the final sentence of the deed, the grantors stated that they “hereby relinquish and quitclaim all our right, title and interest in said premises.” However, the sentence did not specify whether the described “premises” included the “right of way” which became the gravel road or whether the “premises” consisted solely of the other property conveyed under the deed.

Before Coyer acquired the land in 1991, the Association piled dirt on the lot. Coyer asked the Association to stop doing so, and the Association complied, even posting a sign that prohibited dumping. Association members believed the Association owned the subject property and, as a good neighbor, the Association gave Coyer permission to corral cattle and park farm equipment on the property in a way that did not conflict with the use of the road by cemetery traffic.

Inevitably, a dispute arose, and the Association filed an action for quiet title, seeking a declaration that it owned the entire subject property in fee simple based on either a conveyance or adverse possession. After trial, the court found that, by virtue of the 1880 deed, the Association held title to an 18-foot roadway, and owned the remaining 22-foot width of the subject property by adverse possession or, in the alternative, that plaintiff had established an easement by prescription over the entire subject property. Coyer appealed, challenging the conclusion that the Association’s possession of the land was hostile.

Held: The Association owned the land by adverse possession. The Court noted that in an adverse possession action, a party seeking to establish ownership by adverse possession must prove by clear and convincing evidence that, for a 10-year period, it or its predecessors maintained actual, open, notorious, exclusive, hostile, and continuous possession of the property.

adverse170215The requirement for actual use is satisfied if the plaintiff establishes a use of the land that would be made by an owner of the same type of land, taking into account the uses for which the land is suited. A use is “open and notorious” if it is of such character as to afford the owner the means of knowing of the use and the adverse claim. A use is “hostile” if the plaintiff demonstrates a subjective intent to possess the property, intending to be its owner and not in subordination to the true owner.

To establish hostility, an adverse possession claimant must show either that its possession of the disputed property was under an honest but mistaken belief of ownership, or that the possessor subjectively intended to possess the property intending to be its owner. Here, the Court ruled, the testimony of the Association’s board members that they believed the Association owned the 40-foot strip of land, but as a good neighbor, gave Coyer permission to corral his cattle and park farm equipment on the strip in a way that didn’t conflict with the Association’s use of the road for cemetery traffic, was sufficient to show that the Association believed — even if mistakenly — that it owned the property. That established hostility for purposes of the adverse possession claim. 

– Tom Root TNLBGray

Case of the Day – Tuesday, August 14, 2018


dancing-nuns140606If you’re suing a neighbor because you claim title to a piece of her property, the last thing you want to see happen is for her to sell it to the Sisters of the Poor before your lawsuit is completed. The neighbor makes off with the money from selling your property, and when you finally win, you have the PR problem of the bailiff dragging a gaggle of nuns off your land while TV crews report your heartlessness live on CNN.

It was for precisely this reason — well, maybe not precisely this reason — that the law has developed a mechanism known as lis pendens. A lis pendensliterally, “lawsuit pending” – is a notice filed with the office of the county responsible for deeds (often the county recorder) that puts the world on notice that litigation is going on that relates to ownership of the piece of land at issue. Practically speaking, the filing will send prospective buyers and lenders fleeing for the next county.

The purpose of lis pendens is laudable: it keeps wily defendants from transferring interests in land that is subject to a lawsuit, so a plaintiff doesn’t have to endlessly sue new buyers and lessees in order to collect on a judgment. But like with any reasonable and necessary mechanism, there are those who — as the legendary trickster Dick Tuck would have said — who want to run it into the ground.

In today’s case, the plaintiff sued the defendant over a large tree on the boundary between their properties, alleging that it had been negligently trimmed to lean onto their property, that it constituted a “spite fence,” and that its size and location constituted a nuisance. Of interest to us was the last allegation, that in a prior lawsuit between the parties, the defendant’s lawyer had filed a lis pendens on plaintiff’s lot that caused a sale to fall through. The plaintiffs said that the lis pendens — which a court had later thrown out — constituted a tort known as “slander of title.” This was so because the underlying litigation had nothing to do with whether the defendant claimed title or the right to possess the plaintiff’s property. Defendant’s lawyer filed it simply as a club with which to bludgeon the plaintiffs, as part of a take-no-prisoners litigation strategy.

kkdk73106pet1140606The defendant’s lawyer argued the slander of title had to be dismissed, because as counsel for the other side, he owed no duty to the plaintiffs. The California court conceded that he didn’t, but said that was irrelevant: slander of title is an intentional tort (like a judge hauling off and slugging a public defender). Unfortunately, the Court said, the plaintiffs’ pleading wasn’t very well written, and the Court couldn’t be sure that they had alleged malice. The more prudent course, the Court thought, was to offer them a chance to amend their complaint to make clear that they were alleging the defendant’s attorney had acted maliciously.

Castelanellis v. Becker, Not Reported in Cal.Rptr.3d, 2008 WL 101729 (Cal.App, Jan. 10, 2008). The Castelanellis owned real estate in Humboldt County. They sued the owner of the neighboring home, Kristine Mooney, and her lawyer Thomas Becker, alleging that on the border between their unimproved lot and Mooney’s property, “a large tree” curves from the bottom portion of its trunk toward the Castelanellis’ property and takes up so much space that “the subject property cannot reasonably be developed as a residential property.” They also claimed that Mooney’s house tree blocked light to the tree and caused the tree to grow almost exclusively over their property, and that Mooney had trimmed or negligently maintained the tree to contribute to its “odd and unusual angle.”

The complaint maintained that the tree constituted a spite fence within the meaning of California law, and was “maliciously maintained for the purpose of annoying the plaintiffs and in an attempt to gain ownership of plaintiffs’ land at less than fair value.” The complaint alleged nuisance, trespass, tortious interference with contractual relations, and tortious interference with economic relations. The Castelanellis alleged that Mooney sought to “purchase plaintiffs’ property at below fair market value” and had “threatened legal action if plaintiffs trimmed the subject tree in order to make their property capable of being developed and sold.” Finally, they alleged that Mooney and Becker published “false statements” in a lis pendens filed as to the Castelanellis’ property, and this lis pendens — later thrown out by another court — had prevented the Castelanellis from selling the property. The trial court agreed that because Mooney and Becker owed the Castelanellis no duty, there could be no slander.

The Castelanellis appealed.

Held: The Castelanellis had made out an adequate cause of action against Attorney Becker. A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged, called a lis pendens. Such a notice places a cloud on the title, and effectively keeps any willing buyer from wanting to close on a transaction until the lis pendens is cleared. In order to be privileged, so that no party may later sue a party or its attorney for filing such a notice, a notice of lis pendens must both (1) identify a specific action “previously filed” with a superior court and (2) show that the previously-filed action affects “the title or right of possession of real property.

In this case, the notice of lis pendens clearly identified that it was signed and filed in conjunction with litigation involving a tree growing upon a shared property line. But nothing in the record enabled the Court to determine that litigation involved the “right of possession” of either of the two properties involved in that litigation. If it did, a litigation privilege clearly applied, and the action against Attorney Becker could not stand.

Becker argued that he had no duty to the Castelanellis, and he could therefore not be sued by them. The Court pointed out that this would be true if the action were based on negligence. However, the action was an intentional tort, like the tort of malicious prosecution, and there need not be a duty of care owed to the victim by the perpetrator before an intentional tort can be inflicted. The Court said that while an attorney cannot be liable in negligence to a formerly adverse party, that rule does not exempt the attorney from liability for malicious prosecution.

The tort of slander of title does not rise to the level of either malicious prosecution or abuse of process. The elements of the tort have traditionally been held to be publication, falsity, absence of privilege, and disparagement of another’s land which is relied upon by a third party and results in a pecuniary loss. Slander of title does not include express malice as an intrinsic factor. Here, while the Castelanellis did not specifically plead malicious prosecution in their amended complaint, that complaint does include allegations that the actions “were done knowingly, willfully, and with malicious intent.” The allegations seemed to the Court sufficient to inject into the slander of title cause of action an allegation of malice, even as to attorney Becker.

punchIn any event, the Court said, the law is clear that in evaluating a complaint against a general demurrer, it is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action is alleged, the complaint is good against a general demurrer.

The Court held that the absence of any suggestion in the Castelanellis’ opposition to Becker’s demurrer that they either wished to amend or intended to plead some sort of intentional tort via their fifth cause of action left the Court reluctant to rule that the trial court abused its discretion by sustaining the demurrer without leave to amend. Under all the circumstances, the Court thought the better course of action was to remand this matter to the trial court with instructions to consider whether any intentional tort — as distinguished from a claim of negligence — was in fact pled by the Castelanellis and (2) if not, whether the Castelanellis wish to and can plead a valid intentional tort cause of action against Becker regarding the allegedly improper lis pendens.

– Tom Root


Case of the Day – Monday, August 13, 2018


The old trial strategy aphorism recommends that “if your case is weak on the law, pound on the facts; if it’s weak on the facts, pound on the law; and if it’s weak on the law AND facts, pound on the table.”

transguide140519It doesn’t always work all that well, as our hapless landowners in today’s case, the Wimmers, found out.

“Wimmer” rhymes with “winners,” which is ironic given the outcome in this case. It seems the Wimmers owned land for which they had given the electric utility an easement for its power lines. That’s pretty common – anywhere power or communications lines cross over land, or pipes run under the ground, there’s probably an easement involved. The easement in the Wimmers’ case let Ohio Edison trim and remove trees as needed to keep vegetation clear of the lines.

The Wimmers didn’t want to see much of their foliage cut away, and because trimming and removing trees costs money, the utility didn’t want to do more than was absolutely necessary. Thus, there was a happy confluence of interest that continued for years.

transdanger140519Then came August 14, 2003. Some high-voltage transmission lines owned by the same Ohio Edison – hot from weather and the high electrical demand of the day – sagged into untrimmed trees just south of Cleveland. Three lines shorted out simultaneously. Normally, such a condition would have tripped an alarm at a monitoring center, letting technicians redistribute the load. But a bug in the software permitted what engineers call a “race condition,” and the alarms didn’t sound. The result was a cascading power failure that became the great North American Blackout of 2003, affecting 55 million people on the eastern seaboard and midwestern United States, as well as the province of Ontario.

After that day, everything changed. The public fumed, the media chastised, politicians fulminated. Changes had to be made. Ohio Edison was understandably humiliated by being the utility whose poor vegetation management started it all. Suddenly, occasional and desultory tree trimming became much more scorched earth. For the Wimmers, that meant that the power company’s crews showed up at their place one day to clear-cut the entire easement.

The family took exception to the plan, and sued to stop it. While their case was wending its way through the courts – not very satisfactorily to them, because Ohio Edison was winning every step of the way – the Ohio Supreme Court handed down its decision in Corrigan v. Illuminating Co. (which we, being the thorough types that we are) have discussed previously.  Corrigan held that vegetation management issues fell within the exclusive jurisdiction of the Public Utilities Commission of Ohio. Common pleas courts had no authority to decide whether tree trimming and removal within easements was prudent or unduly robust.

Mulligan140519The Wimmers recognized a break when they saw one, and promptly took a mulligan. Sadly, they fared no better before PUCO than they had in the state court system. That might be because Ohio Edison rolled out the IEEE standards for vegetation management to an expert witness who had inspected the easement, could identify the individual trees involved, and had facts and figure at her fingertips on the risk each tree posed to the power lines.

There wasn’t any question that the easement permitted Ohio Ed to cut down trees. The only issue was whether it was reasonably necessary. The Wimmers didn’t have any facts to counter the power company’s showing. They didn’t have any compelling legal arguments. All their lawyer could do was pound on the table, and argue that it was speculative that the trees would grow to be a hazard to the power lines.

Well, sure… the expert was only speculating that the trees would grow, and that they would reach the average height for that kind of tree, and for that matter, that there would ever be a high wind or ice storm that would cause them to ensnare the electric lines. Likewise, it’s speculation that the sun will rise in the morning, based on nothing more than a sheer guess loosely based on the fact that it’s done so for the past 1.6 trillion days since the earth was formed. You see where this is going?

Neither PUCO nor the Ohio Supreme Court – which reviewed the agency’s denial of the family’s complaint – was impressed with the Wimmers’ defense. “Who are you going to believe – me, or your own eyes?” their lawyer seemed to argue. The Commission and the Court both answered that question. Actual evidence carried the day.

Pound on the table, indeed.

Wimmer v. PUCO, 131 Ohio St.3d 283, 964 N.E.2d 411 (Sup.Ct. Ohio, 2012). Ohio Edison owned a transmission-line easement running over the Wimmers’ property. For years, Ohio Edison – in accordance with the company’s general policy – trimmed and once in a great while removed trees growing in the easement. But its policy changed after the 2003 Northeastern United States blackout. When the company tried remove all of the trees in the easement, the Wimmers sued to stop it. They went to court, where Ohio Edison won. But before the decision was final, the Ohio Supreme Court ruled in Corrigan v. Illuminating Co. that PUCO, not a court, was required to decide whether removal was reasonable.

The area of North America affected by the 2003 Blackout is marked in red.

The area of North America affected by the 2003 Blackout is marked in red.

The Wimmers then took their complaint to PUCO. After an evidentiary hearing, the commission ruled that Ohio Edison could remove the trees.

The Wimmers appealed.

Held: Ohio Edison was permitted to remove the trees. The Supreme Court held that there was “no question that the company has a valid easement,” that “the tree is within the easement,” and that the easement “grants the company the right to remove any tree within the easement that could pose a threat to the transmission lines.”

The Wimmers nevertheless argued that PUCO’s decision that the circumstances permitted Ohio Edison to remove the trees was not reasonable. They argued that Ohio Edison failed to present evidence that their trees “may interfere with or endanger the utility’s transmission lines.” The Wimmers maintained that the utility’s evidence was “long on Ohio Edison’s fear and speculation and short on hard facts.”

The Court disagreed. It found that evidence presented to the commission showed that “the vegetation in question has the genetic disposition to grow to heights tall enough to potentially interfere with” the power lines, and that Ohio Edison “reasonably determined that this vegetation may interfere or threaten to interfere with the transmission line and should be removed.” The utility had presented an expert witness who had described the trees growing in the right-of-way – which she had personally examined – and explained that their average mature heights were well above the height of the power lines. She had testified that “even with continuous trimming and pruning, at least one tree had already grown to within four feet of the line, in violation of the National Electrical Safety Code, which is published by the Institute of Electrical and Electronics Engineers and sets the industry-accepted safety standards.“

groucho140519The Wimmers didn’t present any contrary evidence or challenge the Ohio Edison witness’s credentials, but rather just complained that her testimony was speculative. In order to overturn PUCO’s determination, the Wimmers had to show that the decision was “so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty.” They did not come close to doing that.

The Ohio Supreme Court did, however, “note with approval the commission’s admonition that Ohio Edison ‘attempt to minimize the impact to property owners, to the extent possible and without sacrificing safety and reliability, when performing [utility-vegetation-management] activities’.” The Court dryly observed that “Ohio Edison must comply with the commission’s order.”

– Tom Root