Case of the Day – Monday, March 20, 2023


After the Virginia Supreme Court decided in Fancher v. Fagella that Linda Landowner has a duty to ensure her trees don’t become a nuisance to her neighbor Arnie Adjacency, you could be forgiven for reasoning that she also has a duty to be sure that her trees don’t fall on Mortimer and Mildred Motorist. After all, a duty to protect others from physical harm ought to rank higher on the hierarchy of social good than keeping Arnie’s retaining wall from collapsing.

One of the beauties of the law, however, is that it often does not make sense. The Virginia Supreme Court had an opportunity to underscore that unsurprising phenomenon when it ruled that Fancher’s departure from the old Virginia Rule of Smith v. Holt didn’t extend to a landowner’s duty to the passing public. When a tree in the front yard dies, decays, and falls on the road, let the driver beware …

Cline v. Dunlora South, LLC, 726 S.E.2d 14 (Supreme Ct. Virginia, 2012). Cline was driving on a public road when a tree fell and crushed the roof of his car. Cline suffered severe and permanent injuries, including fractures of his cervical spine.

The tree was located about 16 feet from the edge of the road, on land owned by Dunlora South. At the time of the mishap, the road was traveled by about 25,000 vehicles per day. The tree, about 25 inches wide, was “dying, dead, and/or rotten” at the time it fell. It had been in this condition for “many years,” the Court said, “and exhibited visible signs of decay, which were open, visible and/or obvious.” According to Cline, the tree’s condition was or should have been known by Dunlora, just as the company should have been aware of the hazards presented by trees being next to the public highway. Cline sued, but the trial court held that Virginia law did not provide for recovery of personal injury damages caused by a private tree falling on a public highway. Cline appealed, and the case reached the Virginia Supreme Court.

Another Latin phrase ... this one more familiar ...

Another Latin phrase … this one more familiar ...

Held: The Court held that, even after Fancher v. Fagella, a private landowner was not responsible for damages to a person using a public highway, when that damage was caused by a tree located on the landowner’s property. At common lawthat is, law imposed and changed incrementally by judicial decisions handed down over the years – a landowner owed no duty to those outside the land with respect to natural conditions existing on the land, regardless of the danger posed by such dangerous conditions. Although Virginia courts had never recognized that principles of ordinary negligence apply to natural conditions on land, in Smith v. Holt, an adjoining landowner was held to have a nuisance cause of action if an injury was inflicted by the protrusion of roots from a noxious tree or plant on the property of such adjoining landowner. The Court observed that the duty it recognized in Smith v. Holt was “in accord with the broad common law maxim: ‘sic utere tuo ut alienum non laedas’ – one must so use his own rights as not to infringe upon the rights of another … The principle of sic utere precludes use of land so as to injure the property of another.”

It was this principle that gave birth to the “Virginia Rule,” a splitting of the difference between the Massachusetts Rule and the Hawaii Rule.

Fancher changed a lot, the Court admitted. It modified Smith’sVirginia rule” by discarding the subjective requirement of “noxious” nature and imposing a limited duty on owners of adjoining residential lots to protect against actual or imminent injury to property caused by intruding branches and roots. Fancher established a rule allowing relief where trees encroaching onto the land of another begin to constitute a nuisance, that is, when they encroach upon the property of another such that they cause actual harm or the imminent danger of actual harm. Fancher recognized that a trial court must determine whether circumstances are sufficient to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots.

We bet the driver heard this one ...

We bet the driver heard this one …

The Court held here that the Fancher rule imposing a duty on a tree owner to protect a neighbor’s land from damage caused by the tree, only “addresses a narrow category of actions arising from nuisance caused by the encroachment of vegetation onto adjoining improved lands.” The Fancher and Smith duties are dramatically different than imposing a duty on a landowner to monitor the natural decline of his or her trees adjacent to a roadway. Fancher does not impose a duty on a landowner to inspect and cut down sickly trees that have the possibility of falling on a public roadway and inflicting injury.

Instead, the duty owed by adjoining property owners is to not do anything to make the highway more dangerous than it would be in its natural state. In this case, no one suggested that Dunlora engaged in any affirmative act that made its property adjoining the highway different than it had been in its natural state. Cline’s complaint was that Dunlora failed to act, and Virginia common law tort principles do not hold that a landowner owes a duty to take affirmative acts to protect travelers on an adjoining public roadway from natural conditions on his or her land.

– Tom Root


And Now The News …

Washington, DC, Post, March 18, 2023: Climate change makes cherry trees blossom early — and puts them at risk

Washington’s cherry trees are on the verge of peak bloom several days earlier than normal, while blossoms are appearing earlier than ever seen in Tokyo. It’s the result of mild winter temperatures sending a signal that it’s safe for the trees to wake from hibernation. But is it? As fast-warming winters encourage early blooms, they also risk exposing the trees to damage from cold snaps that remain common into March at the mid-latitudes where the ornamental cherry trees have long thrived. A close call is in the forecast this weekend, with temperatures possibly dropping into the upper 20s in Washington. It isn’t the only threat climate change presents: Come summer, hot and muggy nights make it hard for the trees to repair themselves. All year round, floods inundate their roots with salty water. Here is a look at how climate change is affecting the beloved blooms…

Albuquerque, New Mexico, KOB-TV, March 17, 2023: Landscaping this spring? Where you cut your tree can impact the rest of its life

It might not feel like spring just yet, but that doesn’t mean spring isn’t on its way. Monday is the official first day of spring. It’s this time of year, right before everything blossoms, when you should be thinking about landscaping your trees. “This is a good time of year because they haven’t broken dormancy quite,” said Aiessa Thomas, a certified Arborist with the ISA. Thomas said there are different methods to groom your tree, but some are more harmful. “Tree topping is something that is not optimal for a tree’s longevity or health,” Thomas said. That’s when you take off over 30% of the tree by making large cuts to central branches. “The tree doesn’t have the ability to heal itself- there are special cells right here in the collar that are especially designed to wrap around the wound,” Thomas said. “The longer that wound stays open it’s more suspectable to pests, disease, getting in there and harming the tree. Also, when you’re making large cuts you’re kind of taking away the tree’s ability to feed itself.” If too many branches are gone, there won’t be enough leaves for photosynthesis…

The Spruce, March 19, 2023: What Are Tree Burls and How Do They Happen?

A tree burl (or “wood burl”) is a bulbous, woody growth that you may spot on a trunk or branch. A burl forms as the result of stress that its tree has undergone. Though burls can raise concerns for new tree owners because of their strange appearance, they’re quite harmless: the presence of a burl doesn’t signal any problem in tree health you need to address. Some people feel burls mar the appearance of a tree, but artisans value them as raw materials for making high-end furniture, vases, and more. Learn what tree burls are, how they happen, why creative types are fascinated by burls, and how to harvest one if your own creative side finds inspiration. Tree burls can even form below ground level, but, since they go unnoticed, we are usually only aware of the burls that form on a tree’s trunk and/or branches. The size of burls varies greatly, with the larger ones being of greater interest to woodworkers (some, for example, are large enough to be crafted into table tops). The shape is irregular but generally rounded…

Chicago, Illinois, Tribune, March 19, 2023: You can protect your ash trees from emerald ash borer with the right treatment plan

Q: We have been on a two-year treatment schedule to protect our ash trees from emerald ash borer and have been fortunate to keep nearly all the trees growing and healthy. Recently we heard that it was possible to extend to a three-year treatment schedule and was wondering if this would be OK for our ash trees to save on costs?
A: Your contractor is most likely using a trunk injection of TREE-äge™ (emamectin benzoate) to treat your ash trees for control of emerald ash borer. You would lose your ash trees to this insect without these regular treatments. This is an insect pest that requires regular insecticide applications for control. Recent studies have shown that you can extend to a three-year treatment schedule even though the label recommends two. This will reduce your costs while adequately protecting your trees. There are some things to consider before making the change. There are not many ash trees left in the Chicago area landscape, so there is probably low emerald ash borer activity in the vicinity of your garden. If there was high pressure from emerald ash borer locally, it would be safer to stay with a two-year treatment schedule. If any of your remaining ash trees are of particularly high value to you or are under stress from other factors such as drought, keeping the two-year treatment plan is a good idea…

Asheville, North Carolina, Citizen-Times, March 16, 2023: Bradford pears: Sometimes Arbor Day is for cutting trees

The world’s first Arbor Day was declared April 10, 1872. J. Sterling Morton, the Secretary of the Territory of Nebraska, established the day to promote the idea of planting trees for conservation, wildlife habitat and human use. By 1920, more than 45 other states had adopted Morton’s idea and declared their own Arbor Day. In 1907, President Theodore Roosevelt wrote a declaration in support of Arbor Day, praising trees for “what they yield in adornment, comfort and useful products.” In 1967, North Carolina joined in, designating their Arbor Day as the first Friday following March 15… Unfortunately, over the years, some of our past Arbor Day trees have brought more problems than benefits. Among the trees that North Carolinians brought to our state, few have brought on as many headaches as the Bradford pear (Pyrus calleryana). Native to eastern Asia, the first Bradford pear trees were brought to the U.S. by Frank N. Meyer, a plant explorer for the U.S. Department of Agriculture. In the following years, Bradford pears were widely cultivated as ornamental trees. Their round shape, white flowers and bright fall colors made them attractive for suburban lawn plantings. Their high tolerance of pollution, compacted soils and dry conditions kept them healthy where other trees wouldn’t thrive…

Mullica Hill, New Jersey, South Jersey Times. March 16, 2023: A clear-cut case of tree destruction | Editorial

There’s no excuse for private landowners who use protected New Jersey wetlands improperly or illegally, but alleged violators of state Department of Environmental Protection regulations now may be able to cite their own “What about …?” defense. The DEP itself, or, more specifically, one of its divisions, stands accused of destroying wooded acreage in a Gloucester County wildlife preserve that the state owns. “Whataboutism,” as it’s come to be known in political circles, attempts to refute criticism by claiming that the accuser or their supporters have engaged in exactly the same kind of behavior. It’s safe to say that the what-about card has been played very effectively in the last few years of national discourse…

Providence, Rhode Island, March 15, 2023: Battle of the bugs: RI deploys predator beetles to protect hemlock trees from invasive insect

Rhode Island is mobilizing a small army of “tiny but mighty” bugs to help save its majestic hemlock trees. Brought into the Ocean State from Virginia, the predator beetles named Laricobius nigrinus were released in the Richmond woods earlier this month, so they can eat a tiny, invasive insect called the hemlock woolly adelgid, which attacks hemlock trees. The beetles are “pretty hungry predators,” said Alana Russell, a research assistant with the University of Rhode Island Biocontrol Laboratory. “They’re tiny but mighty.” Only about one-tenth of an inch in size, the beetles have been brought to Rhode Island to protect trees that can grow to 100 feet tall and live 800 years…

Modesto, California, Bee, March 16, 2023: Escape Modesto tree damage in wind but wonder if you’re at risk? Here’s some advice.

Fallen trees damaged cars, fences, homes and other property when strong winds ripped through the rain-soaked Modesto area on Tuesday. If you were fortunate enough to escape harm, here’s some information to keep it that way: A combination of saturated soil and strong winds can cause trees to uproot because trees’ movement in a storm can turn soil into “gravy-like consistency,” according to Auburn University’s Alabama Cooperative Extension System. Auburn University’s tree science specialists also noted factors of tree failure to consider of before heavy winds and rain have the chance to take out a tree, including: the mismanagement of landscaped trees, root decay, trees in compacted soil and tight spaces. North Carolina-based Integrity Tree Care company details even more noticeable signs of unhealthy or dying trees. It states ignoring these signs can cause trees to fall and potentially cause injury or property damage. In California, the stress put on trees – especially old ones – by drought and heat can weaken their immune systems, making them more vulnerable to insect infestation, disease and parasites such as mistletoe, a Modesto arborist told The Bee several years back…

San Antonio, Texas, KSAT-TV, March 15, 2023: 7 hurt after tree branch falls on benches at the San Antonio Zoo

Seven people were injured, one seriously, when a large part of a tree broke off and fell on some occupied benches at the San Antonio Zoo on Wednesday, authorities and a witness reported. The branch “unexpectedly” fell at around noon, the zoo said. According to the fire department, one of the injured guests was seen as “level 1 priority care,” while the other injured guests were sent to the hospital out of precaution. The zoo’s security and emergency services staff responded quickly and began treating the injured guests, according to the zoo. San Antonio Police and fire officials responded to the scene within minutes, zoo officials said. The conditions of the injured guests are unknown at this time…, March 15, 2023: A non-native tree species reclaims its prominence after extreme weather

The long-term effects on forests of more extreme climate events, plus other drivers of forest change, are highly uncertain. A new study of the tropical forests across Puerto Rico and the U.S. Virgin Islands (USVI), spanning 19 years, found that after Hurricane Maria in 2017, the total biomass of a fast-growing non-native species, the African tulip Tree (Spathodea campanulata), may again be overtaking that of the most common group of native tree species, even though, at least for young and small trees, non-natives die at twice the rate of native ones. The work is published in the journal PLOS ONE. Extreme climate events are becoming more common in much of the globe. Record-breaking rainfall events have increased worldwide in recent decades. Hurricane Maria was the most intense precipitation event for Puerto Rico since 1956 and has been linked to climate change. The most severe drought event in the Caribbean since 1950 also occurred recently, from 2013-2016…

Canton, New York, North Country Public Radio, March 16, 2023: This weird winter is rough on New York apple trees, but this crop expert says, don’t panic

Apple growers in New York are keeping an eye on this mild, rollercoaster winter and the impact it could have on the region’s crop. NCPR caught Jason Londo, a crop physiologist at Cornell University, to find out how apple trees and growers are fairing. Londo says mild winters make it harder for trees to withstand the erratic changes in temperature we’ve been having. JASON LONDO: So far this winter, we look like we’re safe. My research program tracks the cold hardiness status of apple trees and grape vines through the whole winter so that we can send out alerts, if we get an event that looks like it’s going to cause damage. The vast majority of the varieties that we track have been perfectly safe through the whole winter. The line got very close to being crossed at that February drop; the reason the apples lost their cold hardiness was because of the heat just before that. So, we don’t expect there to be any appreciable damage this year. As for frost damage, that remains to be seen. If we keep our temperatures low, like they are now, all the way through March and into April, I don’t expect there to be too much of a problem. The only hedging we would put there is that if March warms up, then the trees are going to think it’s spring, and they’re gonna go for bud break. And then we are at a much higher risk of frost, particularly given that our last frost can occur as late as May…

Cincinnati, Ohio, WKRC-TV, March 15, 2023: 80-year-old tree torn down despite neighbors’ objections

A handful of people living in the CUF neighborhood went out on a limb to save a beloved sycamore tree, but their efforts failed Wednesday when the tree was brought down by construction workers. The lot the tree occupied, at the corner of the W McMicken Ave. and Straight Street, is being cleared to make way for a student housing complex. It will consist of three buildings, two parking lots, and a retaining wall, but will come at the expense of an estimated 85 trees. France and her neighbors erected signs and staged two protests Wednesday, but around 4:30 p.m., two backhoes arrived and toppled the tree, which France says is “the only sycamore in this part of town.” “You couldn’t move a retaining wall five to 10 feet and lose a few extra parking spaces to save a tree that’s been here for 80 years?” said Debbie Carr. Carr says she once owned some of the land being used for the project, and sold it on the condition that the sycamore tree be left alone…

Tuscaloosa, Alabama, News, March 12, 2023: Tree-mendous: University of Alabama tree could earn championship designation

The University of Alabama has built a reputation as the home of champions in athletics and academics. Now the Tuscaloosa campus could be home to a 70-foot-tall champion. A Southern Magnolia tree behind UA’s Bryant-Jordan Hall has been unofficially declared the largest of its kind in the Alabama. The tree was measured Thursday by the Alabama Forestry Commission as part of Alabama’s Champion Tree program, which aims to discover, recognize and preserve the largest trees of each species in the state. “Unless someone submits a much taller tree, and I don’t see that happening, you all have a Champion Tree,” said Katie Wiswall of the Alabama Forestry Commission. The commission uses a formula developed by American Forests, a nonprofit conservation organization, to determine the points assigned to a tree based on three size measurements: circumference, height and crown spread…

San Antonio, Texas, Express News, March 14, 2023: A San Antonio engineer says he can save the Brackenridge Park trees set for removal

A beleaguered project to improve Brackenridge Park is on hold — again — after San Antonians made a trek to Austin to oppose removing dozens of trees. Some asked that the city’s parks and public works team go back to design and devise a way to repair river walls in the 1920s Lambert Beach area that will retain most of the trees — even if it costs more.“I can make the retaining walls work to preserve the trees. Please give the trees a chance to live,” Moises A. Cruz wrote in a letter submitted to the Texas Historical Commission. Cruz is a San Antonio structural engineer who enjoyed the park as a boy. The commission delayed action on the city’s request for building and archaeological permits for the first phase of a two-part, $7.74 million 2017 bond project at Brackenridge Park…

Charlotte, North Carolina, WSOC-TV, March 13, 2023: Homeowner fed up with nuts from neighbor’s tree falling onto property

Many people contact Action 9′s Jason Stoogenke who are angry about trees in neighbors’ yards. They say they’re worried the tree is about to fall onto their houses or cars. A northeast Charlotte homeowner says her neighbor’s tree dumps hundreds of hickory nuts onto her property. It may not seem like a big deal, but she says the nuts fall all onto her driveway, dent her car and creates a slipping hazard. “It’s just gotten worse and worse,” Pearl Williams said. “It is really ridiculous. It honestly is.” Williams said that she has to constantly sweep the fallen nuts off her driveway. “I just feel like something should be done about it,” she said. Williams says she asked the owner to do something about the tree, but nothing has changed. “And I don’t feel like that should be because this is my property,” Williams said. “If the shoe was on the other foot, I don’t think she would accept it like that. She would want me to do something about it.” Williams says she would handle the situation differently if it was her tree imposing on a neighbor’s property. “If it was messing up her property, you bet your life I would,” she said. Williams says her neighbor’s house is a rental property…

Portland, Oregon, Oregonian, March 13, 2023: What’s bugging this Italian plum tree? Ask an Extension expert

Q: I have a flowering plum tree in my backyard next to an Italian plum tree. The last couple years the bugs are destroying my fruit-bearing tree before I get any plums. What type of spray should I spray them with? The picture is of my Italian plum tree leaves. I identified the bugs on the leaves last year and they were ladybugs in the caterpillar stage. They were all over my tree. – Multnomah County
A: The photo unfortunately is a small file size, so I cannot zoom in more, however it looks like the holes may actually be caused by a shot hole disease. Ladybug larvae will not cause holes in your leaves, I am guessing there were some aphids (or other soft insects) on the leaves that the ladybugs were feeding on. Here is some information about this disease. If you are not doing any preventative sprays on your plums, you may want to look at this publication and apply a fungicide in the spring for shot hole (leaf spot). You also may want to consider dormant oil in the winter, which will help with aphids. This article has information that will help. Also, in reference to the lack of fruit, are they blooming and fruit isn’t forming or do they not bloom at all?

Washington, DC, WRC-TV, March 12, 2023: Cherry Blossom Watch: Tidal Basin Cherry Trees Reach Stage 4

The cherry trees at the Tidal Basin have reached peduncle elongation, stage four of their blooming cycle, the National Park Service (NPS) announced Saturday. “Peduncle Elongation! It’s not funny, it’s science. (Ok, it’s kind of funny.) We’re at the 4th of 6 stages on the path to peak bloom,” @NationalMallNPS tweeted. The blossoms reached stage three on March 7 and stage one on Feb. 23. Puffy white is the last stage before the Yoshino Cherry trees reach peak bloom. Peak bloom is defined as when 70% of the blossoms on the Yoshino cherry trees along the Tidal Basin have bloomed, according to the NPS…

Pittsburgh, Pennsylvania, WESA Radio, March 12, 2023: Oak trees take center stage at a federal courthouse

An environmental group is suing to stop the U.S. Forest Service from moving forward with a project that would clear-cut 1600 acres in the Wayne National Forest, about two hours southwest of Pittsburgh. The case was heard this week in the U.S. District Court for the Southern District of Ohio in Columbus. The Sunny Oaks Project, which spans 25,000 acres of the Wayne, was first proposed in 2018 by the Forest Service to create young, brushy forest and grow a new crop of oak trees. The project has a preference for white oak, and aims to contribute to the local economy through commercial timber harvests. In its lawsuit, the nonprofit Ohio Environmental Council claims the project will destroy older oak trees and is unlikely to regrow new oaks, and that it is a violation of the Wayne’s 2006 Forest Plan. Oak trees, especially white oaks, are used for things making furniture, and barrels for bourbon, an important industry in this region. Oaks are considered an ecological powerhouse, producing acorns that many birds, bears, and other species rely on, and hosting hundreds of species of insects…

Case of the Day – Friday, March 17, 2023


Crunch. And after the tree falls, the insurance company adds insult to injury.

Crunch. After the tree falls, the insurance company adds insult to injury.

An unhappy homeowner from urban Cincinnati, Ohio – we’ll call her Sylvia Glade – wrote to us about her neighbor’s oak tree. It seems that one of the oak’s branches was overhanging Sylvia’s home. The branch constantly dropped sticks, and the tree itself has been shedding branches regularly. As far back as the late 1990s, Sylvia thought the tree was dangerous and began asking her neighbor, whom we’ll call Elouise, to do something about it. A tree expert whom Sylvia hired five years ago to inspect her own trees agreed, saying the big oak should go.

The elderly Elouise was unmoved. She gave Sylvia permission to cut down the tree (as long as Sylvia paid for it), but then denied her the right to enter the property to do so. With the property line hard up against Sylvia’s house, Sylvia couldn’t even get a ladder under the branch to cut it away without Elouise’s cooperation (which, it is obvious by now, was not to be forthcoming).

But there’s good news: Sylvia doesn’t have to worry about that branch anymore. Sadly, there’s bad news, too: the branch is no longer a hazard because it fell on a windy day, crushing two floors of Sylvia’s house. Her neighbor’s insurance carrier said, “Oops, looks like an act of God! Not our responsibility.” Sylvia thinks God should be left out of things, because the branch — which broke right at the trunk — looked very decayed.

Elouise’s insurance company says Elouise had no idea the tree wasn’t healthy. “She didn’t know, so we don’t owe,” the company’s mantra seems to be. Sylvia complains she told the neighbor on many occasions, and even the neighbor admits she saw decayed branches that had fallen from the tree. Once, Elouise even hired Sylvia’s son to haul away some large branches that the old oak shed in a windstorm. Sylvia asked us what duty of care Elouise owed her under Ohio law.

We start with the evolution of the Massachusetts Rule. Originally, the Rule held that a homeowner usually had no remedy against overhanging branches, other than his or her right to trim the branch back to the boundary line. That Rule has been limited in the last decade or so, notably in the Virginia Supreme Court case of Fancher v. Faglia (2007) and the North Dakota Supreme Court holding in Herring v. Lisbon Partners Credit Fund, Ltd. (2012). Both of those courts ruled that while a property owner might be limited to self-help where an encroaching tree was only doing what trees do – that is, dropping leaves, nuts, berries, seedpods and twigs – where a tree becomes a nuisance, the owner of the tree is liable for removing it.

The relevant Ohio case is Nationwide Insurance Co. v. Jordan. In that case, Mrs. Jordan’s big maple tree fell, damaging the neighbors’ place. They sued Mrs. Jordan, claiming the tree trespassed.

No dice, the Court said. The trespass claim would only work if the tree were an absolute nuisance, and that isn’t the case. Mrs. Jordan would be liable, the Court held, if she actually knew the tree was dangerous or if she reasonably should have known the tree was dangerous. The Court decided Mrs. Jordan has neither kind of knowledge. The neighbor, although vociferous in her condemnation of the tree to anyone else in earshot, admitted that she never complained to Mrs. Jordan about it.

In Sylvia’s case, the insurance company is wrong. It’s not enough that the neighbor says she didn’t know the branch was dangerous. The other half of the question is this “should have known” business. Was Elouise on constructive notice that the tree was dangerous, that is, should she reasonably have known the decay was making the tree unsafe? If Sylvia is right, the evidence will show the neighbor was told many times the tree was a hazard. Elouise had witnessed the tree drop a number of large branches in the previous years. She had to hire Sylvia’s brawny son to clean up the mess. And Sylvia told her about the danger, even agreeing to pay for the removal of the tree herself.

Several Ohio cases (such as Wertz v. Cooper) suggest that neighbor Elouise – being an urban dweller – has a greater duty to inspect her trees than would a country squire. The evidence suggests Elouise had every reason to be concerned about the tree, and thus had a duty to inspect it to be sure it wasn’t about to collapse Sylvia’s house.

claim140414Elouise’s insurance company may want to rethink its position… and start looking for its checkbook.

Nationwide Insurance Company, et al. v. Jordan, 639 N.E.2d 536 (1994). This action arose between adjoining landowners as a result of the falling of a mammoth maple tree. The insurance company, which had paid the damages to its insured’s place, sued for trespass and negligence. The defendant tree owner testified that she had no notice the tree was susceptible to falling. Her tenant likewise testified that she had no notice of the tree’s danger. The defendant’s tree service manager testified that he worked on the property’s trees every two years and that the tree in question was not unsafe less than two years before it fell. The only person to testify to notice that the tree was rotten and likely to fall was the plaintiff’s insured.

The trespass claim arose because the plaintiff maintained that the falling tree trespassed on the insured’s property. The trial court made short work of this, holding that the only way liability could be imposed on Mrs. Jordan without proof of fault would be if the tree were an absolute nuisance. Healthy trees growing on real property, even urban real property, are not absolute nuisances, the trial judge said. Thus, the insurance company had to prove that Mrs. Jordan either knew or had constructive knowledge that the tree was likely to fall. The insurance company couldn’t prove that, so the trial court found for Mrs. Jordan. The insurance company appealed.

A diagram of one modern method of measuring a tree's decay. Elouise had any number of options - some cheap, some costly, some old school, some high-tech - for verifying the health of her big old oak.

A diagram of one modern method of measuring a tree’s decay. Elouise had any number of options – some cheap, some costly, some old school, some high-tech – for verifying the health of her big old oak.

Held: Mrs. Jordan was not liable. The Court said that there was no evidence that Mrs. Jordan actually knew or had any reason to know that the maple tree was in danger of falling. The neighbor complained that the tree’s propensity to fall was obvious to her, but she admitted he never told Mrs. Jordan. The Court observed that “[h]ad the plaintiff conveyed this knowledge to her neighboring landowner, the danger might well have been obviated, or, alternatively, the plaintiff’s hands would be clean and the defendant would have been on notice and resultantly liable for the fall.”

The Court further held that a tree on an owner’s property was not an “absolute nuisance,” and thus the adjoining landowner could not proceed merely upon strict liability against the owner. Instead, the neighbor was required to prove negligence. To recover on a theory of negligence arising out of a falling tree, a plaintiff’s evidence must establish that defendant had actual or constructive notice of patent danger that the tree would fall. Here, Mrs. Jordan had neither actual notice nor constructive notice of the tree’s dangerous condition. Both Mrs. Jordan and her tenant testified that they had no notice of the tree’s danger, Mrs. Jordan’s regular tree trimming contractor worked on the property’s trees every two years and found that the tree in question was not unsafe not more than 24 months before it fell.

The Court ruled in favor of Mrs. Jordan.

– Tom Root


Case of the Day – Thursday, March 16, 2023


rube150402In my years in the business, I have seen negligence claims that run from the ridiculous to the absurd: such as, the corrections officer who sued cellphone carriers because inmates made calls using the carriers’ system during which they conspired to shoot him, or the victim of a falling limb who sued an electric utility because its tree trimmer should have noticed that a tree that the company had no right to trim was dangerous.

The case we’re looking at today features a tortuous and complex argument that would make Rube Goldberg envious. A tree branch fell in a storm and knocked out power to a subdivision. Matthew Phillips and his father decided to fire up their standby generator and plug it into the house system, a few hours of darkness being too big an inconvenience for them to bear.

Something happened. No one’s sure what. But, if you believe the Phillips’ lawsuit, the downed branch crossed some wires, which fed power past and around a transformer, bypassing several obvious shorts it could have taken to ground, then into the house, into the power lines, bypassing yet other ground circuits, into and through meter boxes, into the ground line of the home but not safely to ground, but rather into the power line leading to the generator, where the electricity finally leaped into Matthew, seriously injuring him.

ball150402Of course, it’s unlikely that Matt or his Dad did anything stupid, like failing to disconnect the master switch connecting the house to the power grid. Much more likely that electricity defied several laws of physics, and that the blame must rest with the tree trimming company for not having pruned back the branches that fell in the storm. Or maybe it was ball lightning. Or Zeus throwing lightning bolts.

The problem was a practical one: Matt’s family didn’t have the wherewithal to pay the medical expenses. Neither did Zeus. But the electrical utility and its vegetation management contractor did. Thus, the inevitable lawsuit followed.

Fortunately for all of us, common sense prevailed. The courts pointed out that Asplundh, the tree trimming company, had a contract with AEP, and that the contract did not create a duty between Asplundh and Matt. The contract only let Asplundh cut where the utility told it to cut. The Court very reasonably pointed out that if Asplundh had done what Matt said it should have done – that is, to trim trees on the Phillips property – it would have been a trespasser and subject to treble damages.

Where the claim is nonfeasance – that is, where the defendant is alleged to have wronged the plaintiff by not doing something it should have done – the law demands that the duty the defendant owes the plaintiff must be very clear. Where the contract does not permit the tree trimmer to do anything other than what the utility tells it to, the trimmer lacks the ability to exercise any independent authority. In that case, the fact that it did not do that which it was not allowed to do doesn’t make the trimmer wrong. Instead, it makes it prudent.

Sadly, in this litigious society, it doesn’t make it lawsuit-proof.

Phillips v. American Electrical Power, 2011 Ohio 6731 (Court of Appeals, Jefferson County, 2011). An early March thunderstorm rolled through Wintersville, Ohio. During the storm, the power went out when a tree branch fell across an Ohio Power electrical distribution line. Matt and his father tried to power their house with a portable electric generator. In the process of trying to operate the portable generator, Matthew received an electrical shock and suffered very severe injuries, including permanent brain damage.

Matt sued American Electric Power Company, Inc. and a laundry list of affiliates and subsidiaries, as well as Asplundh (which had a tree maintenance contract with AEP) for negligence. His reasoning, as far as the courts were able to surmise, was that one or more rotten trees were blown down in the storm, which caused the power to go out, which caused the Phillips men to try to connect their portable generator to power the house wiring. Matt claimed that the power line wires had become coupled due to the fallen branches, creating a completed electrical circuit, which sent electricity around the electrical transformer on the pole outside the Phillips residence – bypassing the grounding wires located at the pole – and down the service line to the house, through the meter box into their breaker box (somehow bypassing the grounding line at the breaker box), into the ground circuit wiring of the house, then around an electrical generator transfer switch the Phillips had installed, then through the grounding line to a secondary electrical outlet box, where it connected to the box’s metal chassis. Matt posited a variety of theories as to how the electricity passed through him via the outlet box, the portable generator, or from the ground.

No one knows exactly what happened, but it was a cinch that Asplundh wasn't to blame.

No one knows exactly what happened, but it was a cinch that Asplundh Tree Service wasn’t to blame.

At some point, the Phillips settled with everyone except Asplundh. The tree service then filed a motion for summary judgment, arguing it owed no duty of care to Matthew because AEP determined the locations where Asplundh was assigned to work, and because AEP never assigned Asplundh to inspect or service the area at issue in this case. The trial court granted summary judgment, finding no evidence that AEP assigned “Asplundh to work on the portion of the electrical circuit in the area of the tree which allegedly caused the injuries to the Plaintiff. Nor have the Plaintiffs produced evidence that it was the responsibility, or duty, of … Asplundh to determine which parts of the AEP distribution circuit were to be trimmed. Rather the evidence establishes that… AEP… determined what trimming was to be done and then would assign that work to… Asplundh.” Finally, the trial court said, no evidence showed that Asplundh created a condition that caused the tree to fall or failed to trim the tree after being put on notice of the need to do so.

Matthew appealed.

Held: Asplundh was not liable for Matt’s injuries.

Matt’s lawyers fired a blunderbuss of claims against Asplundh: ordinary negligence, failure to maintain AEP’s easement, failure to remove foreseeable safety hazards, and failure to fulfill its contractual duties to inspect and manage vegetation for AEP. Matt claimed he subjected to an ultra-hazardous danger by Asplundh’s recklessness, and that Asplundh breached a duty imposed by safety statutes and regulations regarding electrical and hazardous substances and vegetation management. He also claimed Asplundh failed to warn, prevent or remedy unnamed defects, and that Asplundh caused them to be exposed to hazardous or toxic substances.

The Court of Appeals noted that Matt’s allegations against Asplundh “are intrinsically connected to the contract to perform right of way maintenance. Thus, the overall claim is for negligent or reckless performance of a contract,” and every issue on appeal boiled down to one question: did Asplundh owe a duty of care to Matthew in light of the contract that Asplundh entered into with AEP.

The Court noted that the existence of a duty of care is fundamental to a negligence claim: “It is rudimentary that in order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom. The existence of a duty depends on the foreseeability of the injury.” Matthew contended that Asplundh owed him a duty of care, despite the absence of anything specific in the Asplundh contract that would have required the removal of the tree that apparently fell in the Phillips’ yard. Matt argued that Asplundh should have inspected the area near the Phillips home because there had been many prior electrical outages in that general area. He maintained that Asplundh was involved in the decision-making process to select which of AEP’s circuit areas were to be trimmed each year, despite the evidence showing that only AEP made the final decisions about where Asplundh would do its vegetation maintenance and trimming. Essentially, Matt contended that Asplundh’s authority to make suggestions at its annual meeting with AEP to determine vegetation maintenance was enough to give rise to a duty to protect Matt from the Rube Goldberg chain of events that began with a dangerous tree. In other words, Matt said that Asplundh’s failure to convince AEP to conduct tree maintenance on or near the Phillips place was itself a form of negligence.

The Court of Appeals disagreed, holding that none of Matt’s claims were supported by the record. In a case of nonfeasance, it said, the existence of a legal duty is critical and, unless a duty is established, Asplundh’s failure to act cannot create liability. In this case, AEP personnel testified that Asplundh had never been directed to trim trees in the area where the Phillips lived. Asplundh was permitted by its contract to patrol for danger trees only where AEP told it to do so. AEP picked those areas according to its own internal data, devoting attention to the 8% of circuits with the worst performance in the previous year. There simply was no independent decision-making or freelancing involved on Asplundh’s part. While some of Asplundh’s employees may have made suggestions at the annual planning meetings, the record reflected that the final decision was made by AEP, and there is no evidence to contradict this conclusion.

The Court of Appeals agreed with Asplundh that it could not have a duty to trim a tree in the Phillips yard unless it first had a right to do so, and there are very specific statutes that prohibit a person from cutting, removing, or injuring trees on private property. If Asplundh had no contractual authority to act as AEP’s agent and enter the area where the tree was located, the Court said, it would have been trespassing had its personnel entered the property, and would have been committing a fourth-degree misdemeanor crime and setting itself up for treble damages under O.R.C. § 901.51.

Matt argued that his injury was so foreseeable that the foreseeability of the injury alone created a duty for Asplundh to remove the dangerous trees. The Court rejected this argument, holding that foreseeability alone is not always sufficient to establish the existence of a duty, especially in nonfeasance situations in which the injured party is alleging that the defendant failed to affirmatively act to come to the aid of a person in danger or failed to prevent a third party from harming another. In such situations, a duty arises only if the defendant shares a “special relation” with the injured party that justifies the imposition of the duty. Here, the Court said, the alleged relationship between Asplundh and Matt “only exists by virtue of the tree-trimming contract between Asplundh and AEP. No amount of foreseeability can create a contractual duty where none otherwise exists.”

The appellate court concluded trial that Asplundh was under no contractual obligation to investigate or perform tree maintenance services in the area of the Phillips residence where the accident occurred: “Because there is no proof in this record that a duty existed,” the Court of Appeals held, “the trial court was correct in its judgment.

– Tom Root


Case of the Day – Wednesday, March 15, 2023


Donald Westlake could have used Lisa Huff for the dust cover model...

Donald Westlake could have used Lisa Huff for the dust cover model…

Recall the recent creative lawsuit we covered, in which Corrections Officer Johnson went after area cellphone carriers for having recklessly built towers close to a prison. Some of the inmates obtained contraband cell phones. The towers ensured they had excellent 4G service. Of course, the towers also ensured excellent coverage to the motorists on I-20, only a half-mile from the prison. The Court’s tallest order was addressing all the ways that Mr. Johnson’s lame attempt to find someone with a deep pocket was simply vibrating nonsense.

“OK,” you say, “but that was just some ambulance chaser’s attempt to shake down a phone company (an attempt most of us applaud once a month when the cell bill arrives). But that cannot happen in the staid world of arboriculture law.”

In response to that sentiment, we give you the Huffs. After a tree broke off in a storm and hit Lisa Huff on the noggin, she had little to go on other than the abiding sense that someone owed her money. But who? Sure she could sue the property owner. Any regular reader of this blog knows that. But the Huffs needed a deep pocket. After all, Lisa had been injured. Someone had to pay.

That was when some canny lawyer noticed that the tree was located near power lines. Sweet! Power lines suggested the electric company, and everyone knows that the electric company has lots of money. Just look at how much we send them every month.

Problem: the tree wasn’t exactly inside the Ohio Edison easement. But that was a mere technicality to the Huffs, who argued that Ohio Edison hired Asplundh Tree Service to keep the trees trimmed away from the power lines and that both the power company and the tree service must have known the tree that fell on Lisa was dangerous. This was the tort claim, and it might have merit if Lisa could prove they had actual or constructive notice of the tree.

But never stop with just alleging a tort, where you can pile on other legal theories as well. The Huffs’ attorney suggested a contract count, too. The Huffs, so the legal theory went, were the intended third-party beneficiaries of the contract between Ohio Ed and Asplundh. A third-party beneficiary can sue for a contract breach just as if she had signed the document herself. Asplundh had a contractual obligation to inspect and trim the trees so as to keep the public safe, the Huffs argued, and that included the passing public, which included the walking public, which included Lisa. Anything to get Ohio Edison and Asplundh to open their checkbooks!

deeppocket140507It was a novel theory, but the Ohio Supreme Court shot it down. The Ohio Edison – Asplundh agreement was intended to secure services that would keep the power lines clear. While the agreement did require that Asplundh perform the trimming in a safe manner so as not to hurt anyone while it was doing it, that requirement only lasted as long as Asplundh was trimming. The Court wasn’t about to interpret the contract so broadly as to grant contract causes of action to millions of people who were never intended by the signatories to gain party status to a contract. You think the courts are busy now (and insurance premiums are high)? Just wait …

The takeaway here is a passing observation by the Court that parties to a contract can avoid the litigation spawned here by the Huffs simply by stating clearly that their contract is intended to benefit no one but each other. Including such a provision is a cheap preventative to the kind of nonsense lawsuit decided here.

If you think this case is on the outer fringes of causation – like the suit against the cellphone towers – just wait…

Huff v. FirstEnergy Corp., (2011), 130 Ohio St.3d 196 (Supreme Court of Ohio). During a heavy thunderstorm, a large sugar maple tree split about 25 feet above the ground. A large limb from the tree hit Lisa Huff, who was walking along a country road, causing serious and permanent injuries. Lisa G. Huff was injured during a walk along a country road.

Ohio Edison maintained an easement near the tree, but the tree was outside the easement. The tree did not present a hazard or threat to the power lines owned by the utility. Ohio Edison had hired Asplundh Tree Expert Company to inspect trees and vegetation along its power lines in this area and to remedy any situation in which trees or vegetation might affect the lines. Ohio Edison and its contractors carry out this work to ensure that adequate clearance is maintained around electric lines. Generally, Ohio Edison deferred to Asplundh’s decisions regarding tree and vegetation maintenance and would perform an overview inspection only to determine whether any vegetation was growing into the electrical wires or equipment. Asplundh had last been in the area where Huff’s injury occurred three years before.

Huff sued Ohio Edison and Asplundh, as well as Ohio Edison’s parent company, FirstEnergy, and the people who owned the land on which the tree was located. She alleged that Ohio Edison and Asplundh were liable for her injuries based upon their failure to inspect, maintain, and remove the tree or to warn the landowner and the public of the danger raised by the tree.

Ohio Edison and Asplundh filed motions for summary judgment. Ohio Edison argued that it didn’t know that the tree was dangerous, that it owed and assumed no duty to Huff regarding the tree, and that it was not negligent and did not proximately cause or contribute to Huff’s injuries. Asplundh argued that it owed no duty to Huff and that its activities did not proximately cause the injury to Huff.

The Huffs argued that Ohio Edison had contracted with Asplundh to inspect and maintain trees within the easement and that Asplundh failed to recognize that the tree in question was diseased and a hazard, and failed to remove the tree when it was on site in May 2001. The Huffs also argued that Ohio Edison was responsible for maintaining trees within and around its easement, that Ohio Edison was aware of the tree, based on its location within an inspection zone, and that Ohio Edison had a duty to remove the diseased tree.

The trial court found that while the tree leaned about ten degrees away from the power lines, “there is absolutely no credible evidence about when the tree began to lean or if it was leaning because of the way it grew.” It also noted that the Huffs admitted that no one knew when the tree became a hazard. With no proof that Ohio Edison or Asplundh actually inspected the tree or removed any branches, the court held that the Huffs failed to show that either company ever had actual or constructive notice of any decay of the tree. Due to the tree’s location – leaning away from the power lines with no limbs near the power lines – Ohio Edison and Asplundh owed no duty to the Huffs.

After examining the contract between Ohio Edison and Asplundh, it concluded that the Huffs were not third-party beneficiaries under the contract. It accordingly granted summary judgment to Ohio Edison and Asplundh.

The Court of Appeals cited the portion of the contract providing that “[Asplundh] shall plan and conduct the work to adequately safeguard all persons and property from injury” could be read in two ways: (1) a narrow reading that provides Asplundh must protect all persons from injury while Asplundh works on the site or (2) a broad reading that requires Asplundh to protect all persons from injury at all times, regardless of when the work is done. The court found the contract to be ambiguous and reversed the trial grant of summary judgment to Ohio Edison and Asplundh.

The companies appealed to the Ohio Supreme Court.

Held: Summary judgment was granted.

The Court found that the contract between Ohio Edison and Asplundh did not create any duty to the Huffs as third-party beneficiaries. The Court employed an “intent to benefit” test. Under this analysis, if the promisee intends that a third party should benefit from the contract, then that third party is an “intended beneficiary” who has enforceable rights under the contract. If the promisee has no intent to benefit a third party, then any third-party beneficiary to the contract is merely an “incidental beneficiary,” who has no enforceable rights under the contract.

The law generally presumes that a contract’s intent resides in the language the parties chose to use in the agreement. Only when the language of a contract is unclear or ambiguous, or when the circumstances surrounding the agreement invest the language of the contract with a special meaning will extrinsic evidence be considered in an effort to give effect to the parties’ intentions. For a third party to be an intended beneficiary under a contract, there must be evidence that the contract was intended to directly benefit that third party. Generally, the parties’ intention to benefit a third party will be found in the language of the agreement.

dwntree140507In this case, the Court ruled, nothing in the agreement between Ohio Edison and Asplundh showed any intent to benefit the Huffs. The Huffs pointed to a part of the contract that they argue shows such an intent: an attachment to the agreement entitled “FirstEnergy Vegetation Management Specifications” that provided  the “Contractor shall plan and conduct the work to adequately safeguard all persons and property from injury.” The Huffs contended that this statement assigns to both Ohio Edison and Asplundh clearly defined duties – to safeguard the public – for the Huffs’ benefit.

The Court held, however, that the contract wasn’t entered into for the general benefit of the public walking on public roads, but instead was designed to support Ohio Edison’s electrical service. The purpose of the contract is to ensure that Ohio Edison’s equipment and lines are kept free of interference from trees and vegetation. The remainder of the contract sets forth how this work is to be carried out, including the standards by which Asplundh is to perform its work, the limits on liability for the performance of the work, and the necessary qualifications for the Asplundh employees who were to perform the work. The contract contains no language establishing an ongoing duty to the general public on behalf of either Ohio Edison or Asplundh.

The vegetation management provision incorporated into the contract provides that “[t]he objective of all work covered by these documents is to maintain reliable and economical electric service, through effective line clearance and satisfactory public relations.” The Court observed that working near electrical lines has its inherent hazards, and it was thus “clear that this portion of the agreement establishes safety guidelines designed to protect persons and property from injury while the contractor performs its work. This period is finite: until the work has been completed … [T]he agreement cannot be plausibly read to require Ohio Edison or Asplundh to safeguard all persons from injury at all times, regardless of when the work is completed.”

The Supreme Court concluded that the Huffs thus failed to qualify as intended third-party beneficiaries of the Ohio Edison ­– Asplundh agreement.

– Tom Root


Case of the Day – Tuesday, March 14, 2023



The Mexican Spotted Owl is easily identified by its distinctive headgear.

Now a paean to the Mexican Spotted Owl, that cute, furry little critter. Well, maybe it’s not furry – more like feathery – but the bird is an endangered species just the same.

When Precision Pine & Timber landed 14 contracts to destroy wildlife habitats — uh, make that harvest timber — its performance of the agreements got derailed by a U.S. District Court, which stopped the Forest Service because it had been sloppy in figuring out how to save the owls. The contracts covered the eventuality, but Precision Pines was entitled to ask for its “out-of-pocket” expenses incurred if the performance of the contracts was delayed. And performance was indeed delayed for up to 15 months as the Forest Service was sent back to school by the district court until it got its analysis of the spotted owl problem done to the court’s satisfaction.

The Forest Service extended the termination date of the contracts, but Precision Pines nevertheless counted up its expenses and turned in a bill for a breathtaking $13 million. The Forest Service took a sharp pencil to the invoice and offered about $18 grand. So Precision Pines sued, arguing it was entitled to a “lost volume” theory. Follow this: if Precision Pines hadn’t been delayed, it would have made a ton of money during that 15 months that, because of the interruption, it didn’t make until much later. If it had made the money when it originally contracted to make it, it would have used the profits to invest in other contracts, where it would have made profits to invest in other contracts, and so on.

Like a snowball rolling down a slope, the few bucks from the interrupted contract would have yielded an avalanche of green someday. But the Court said while that might be so, it didn’t make the deals that never were legitimate damages from the interrupted timber deals. The damages were simple: the profits that weren’t made during the period of delay, minus the profits made after the contracts resumed.

The wise old Mexican Spotted Owls couldn’t have reached a better decision.

Precision Pine & Timber, Inc. v. United States, 81 Fed. Cl. 235, 2007 U.S. Claims LEXIS 295, , 2007 WL 2753329 (Fed.Cl., Sept. 14, 2007). Precision Pine & Timber held 14 timber contracts with the U.S. Forest Service. In August 1995, the Forest Service suspended the contracts after a U.S. District Court required the Forest Service to submit its Land and Resource Management Plans for consultation with the Fish and Wildlife Service in light of the listing of the Mexican Spotted Owl as a threatened species.

About eight weeks after the Mexican Spotted Owl suspensions were imposed, the Forest Service released three of the 14 timber sale contracts from the suspension. The balance did not get released for more than a year afterward. Each of the suspended contracts contained a provision on interruption or delay that provided in the event of interruption or delay of operations, Precision Pine’s exclusive remedy was adjustment of the contract term and out-of-pocket expenses incurred as a direct result of the interruption or delay. Out-of-pocket expenses did not include lost profits, replacement cost of timber, or any anticipatory losses.

Profits begat profits, Precision Pine argued ... and the pile grows ever larger.

Profits begat profits, Precision Pine argued … and the pile grows ever larger.

Throughout the suspensions, Precision Pine considered the Forest Service to have breached the timber sale contracts, but Precision Pines treated the breaches as partial and resumed harvesting timber after the suspensions were lifted. Precision Pines requested contract term adjustments for each contract affected by the suspensions, which were granted, and it submitted claims for $13,097,209.62 in damages resulting from the suspension of the 14 contracts under the “lost-volume” seller theory. The Forest Service decided Precision Pines was entitled to only $18,242.78 in damages. Precision Pines sued.

Held: The Forest Service breached the contracts, but the damages were severely curtailed.

The Court held that the lost volume seller theory, as formulated by Precision Pines, depended on showing that its failure to make profits on the 14 timber contracts in a timely manner rendered it unable to participate in other future contracts, thus missing out on profits from those deals. The Court held that such future damages for independent and collateral timber contracts not related to the subject matter of the breached contracts were unrecoverable.


A wise owl, indeed …

The Court further held that permitting Precision Pines to use these unrecoverable damages to reduce the amount of the deduction required to be made in the lost profits calculus — to account for the profits earned on the breached contracts — would be the functional equivalent of actually awarding damages for the lost profits on the future additional contracts. What’s more, the Court said, that even if Precision Pine’s theory of recovery did not require it to show unrecoverable damages, Precision Pines had failed to that it met the criteria for application of a modified lost volume theory.

The Court found that the plaintiff was entitled to recover lost profits on the breached contracts as measured by the expected profits it would have earned on the breached contracts during the suspension period, minus profits it actually earned on the breached contracts in the post-suspension period. And that was it.

– Tom RootTNLBGray

Case of the Day – Monday, March 13, 2023



When is a tree not a tree?

Today’s case has nothing to do with trees, unless you count those awful faux-tree cellphone towers many cities are requiring cellphone carriers to erect. While not arboriculture-related, today’s decision illustrates the danger of stretching causation, a risk that has reared its ugly head in tree liability cases before (as we shall see tomorrow).

Captain Robert Johnson was a jailer at the Lee Correctional Institution in South Carolina. As a correctional officer, Mr. Johnson was responsible – among other duties – for seizing cellphones and other contraband from inmates.

In March 2010, an assailant entered Mr. Johnson’s home and shot him six times in the chest and stomach. His wife, Mary Johnson, witnessed the attack. Mr. Johnson survived but underwent many surgeries and months of rehabilitation.

The U.S. Attorney for the District of South Carolina concluded after a thorough investigation that a group of inmates ordered the attack in retaliation for Mr. Johnson’s confiscation of their contraband cellphones and other goods. The U.S. Attorney found that an unnamed inmate had used a cell phone to communicate with the shooter, Sean Echols. That inmate also paid Echols. Echols eventually pled guilty to conspiracy to use interstate facilities in murder-for-hire under federal law.

This is where the case begins to provide a lesson for those of us interested in negligence. One would think that the wrongdoers would be sued – the conspirators, the shooter – but the Johnsons knew full well that the inmates didn’t have anything, and the shooter, who’s now serving 20 years, was unlikely to have much of a pocketbook, either. The challenge for the Johnsons’ attorney was to find someone with a deep pocket.

He found someone (or several someones). Let’s shoot the messenger, or – in this case – the people who owned the medium used to delivered the conspirators’ messages. Using a “but for” analysis that would have impressed Mrs. Palsgraf, the Johnsons’ lawyer figured that but for the fact that cellphone towers were located near the prison, there wouldn’t have been any cellphone calls from the prison, and thus, no one could have called the shooter to importune him to shoot Capt. Johnson. For that matter, without cell phones, the prisoners wouldn’t have been stirred up to begin with. So who should we sue? The cellphone companies, of course, as well as the guy who owns the land the cell towers are sitting on, just for good measure.

Of course, this kind of attenuated reasoning is what makes fat people sue McDonald’s for selling Big Macs (no Big Macs, no temptation, no overeating, no fat people), or why a man sued Walmart because a plastic bag of groceries split in the parking lot, a can of LaChoy chow mein fell on his wife’s foot, the foot became infected and she died. Really.

It’s too bad Capt. Johnson got shot, and we’re all glad he recovered. But to conclude that cell carriers should pay is to stretch causation to the absurd. I blame the Johnsons’ lawyer, who should have known better.  Perhaps a copy of Prosser on Torts should fall out of his briefcase onto his foot, and… well, you get it.

Johnson v. American Towers, LLC, 781 F.3d 693 (4th Cir., 2015). Robert Johnson, a prison guard in Bishopville, South Carolina, was shot multiple times in his home. The ensuing investigation revealed that the attack was ordered by an inmate at the prison where Mr. Johnson worked, using a contraband cell phone. Mr. Johnson survived the attack and, with his wife, later brought suit. The Johnsons did not, however, sue the typical defendants – the shooter, a prison inmate or an employee. Rather, the Johnsons sued several cellular phone service providers and owners of cell phone towers, seeking to recover under state-law negligence and loss of consortium theories. The Johnsons alleged that the cell providers “were aware of the illegal use of cellphones by inmates using signals emitted and received at the defendants’ towers” and that “this use created an unreasonable risk of harm.” According to the Johnsons, the defendants failed to take steps to curb illegal cellphone use.

In the district court’s view, “the Johnsons’ argument suggests only a desire to conduct a fishing expedition to determine if there is any factual basis for asserting claims against any Defendants… This is not enough.” Thus, the trial court dismissed the case on several technical issues, the most significant of which was that the complaint, even if true, could not make the cellphone companies liable.

The Johnsons appealed.

messenger150330Held: The Johnsons’ claims fail due to the “speculative nature of their allegations.”

The Court of Appeals reviews rulings on motions to dismiss de novo, accepting all the factual allegations in the complaint as true, and drawing all reasonable inferences in the Johnsons’ favor.

Even reviewing the lower court’s decision according to this relaxed standard, the Court concluded that “the Johnsons have failed to allege sufficient facts to set forth a plausible claim for relief.” A complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face. A properly pleaded complaint must offer more than “’naked assertions’ devoid of ‘further factual enhancement.’” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. In other words, a complaint must include “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

The Johnsons’ complaint contained the bare assertion that “an inmate at the prison using a cellphone ordered a coconspirator outside of the prison to kill Captain Johnson.” The Fourth Circuit Court of Appeals held that the Johnsons had failed to offer “any further factual enhancement to support their claims against the Defendants. For example, the Johnsons’ complaint does not identify the wireless service provider who carried the alleged call or when the alleged call occurred. Without more factual allegations, it is impossible for a district court to assess the Johnsons’ claims.”

The Court said that the complaint would leave the cellphone carriers unable to determine whether it carried the alleged call without more identifying information.

The appellate court said that the Johnsons were free to file a new lawsuit if they could come up with additional information, because the district court dismissed the complaint without prejudice. However, “as currently drafted… the complaint resembles a prohibited fishing expedition rather than a properly pleaded complaint.”

– Tom Root