Case of the Day – Wednesday, April 25, 2018

DIVING INTO THE SHALLOW END

diving140330The last snow has finally melted, and the first mowing of the grass is under our belts.  Can Memorial Day and the official start of the summer swim season be far behind?

The advent of the swim season got us thinking about – what else? – liability. Nationally, there are about 800 spinal cord injuries a year from swimmers — mostly young people — diving into shallow water. The idea that you ought to check the depth of the water before diving in is a pellucid as Bahamian waters. Yet diving accident victims and their families often litigate the issue anyway. Today’s case is an interesting application of the “open and obvious” doctrine.

The Koops, who were lakeside property owners, weren’t recreational users, because their property was open only to invited guests, not the public. So they had no immunity under Ohio’s recreational user statute. As invitees, their guests were owed ordinary care by the Koops – which included a warning of any dangers that weren’t open and obvious. When one guest ran across the dock and dove into 18-inch water — rendering himself a quadriplegic — he sued the Koops for negligence. The Court ruled that the danger was open and obvious.

Not to be deterred, Galinari argued he had been distracted by “attendant circumstances.” Not a bad argument: “attendant circumstances” can defeat the “open and obvious” doctrine. But such circumstances must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of injured party. Attendant circumstances in the past have included such circumstances as time of day, lack of familiarity with the route taken, lighting conditions, and accumulation of ice. But here, the best the plaintiff could muster was that the water was inviting, other people were swimming in the lake, and there were no posted warnings. Not enough, the Court ruled, to excuse the young man from the simple precaution of checking water depth first.

Not all shallow water is so well labeled ...

Not all shallow water is so well labeled …

Galinari v. Koop, Slip Copy, 2007 WL 2482673 (Ct.App. Clermont Co., Ohio, Sept. 4, 2007). In a tragic July 4 accident, 21-year old Nick Galinari dove off a dock into a shallow lake owned by Koop, severely injuring his spinal cord and rendering him a quadriplegic. Galinari was invited by his girlfriend, Kristin Bounds, to attend a family party hosted by Koops on their property.

The property included a small, man-made lake on which guests are permitted to swim, canoe, fish, and generally use for recreational purposes. On the shore of the lake, there was a ramp connected to a floating dock, all of which extends about 28 feet into the water. The water near the shoreline is quite shallow, fluctuating between approximately ankle-deep and knee-deep. Galinari and his girlfriend pitched a tent and then mingled with guests at the party for about 45 minutes. Galinari, Kristin, and Kristin’s sister then decided to go swimming. Kristin went into the lake while Galinari changed clothes. He then headed down the stairs to the ramp and floating dock to enter the water. He saw Kristin in the water near the end of the dock, but could not recall later if she was standing or swimming. Without stopping to check the depth of the water at the end of the dock, Galinari jogged to the end of the dock and attempted a “shallow dive” to the right of Kristin. The water where he dove was about 18 inches deep. He struck the bottom of the lake, severely injuring his spinal cord. There was no sign on the property, nor did anyone give any verbal warnings, about diving off of the dock due to the depth of the water.

Galinari sued the property owners for negligence for failure to warn him about a dangerous condition on their property. The owners moved for summary judgment, arguing that they were under no duty to warn Galinari of something as open and obvious as the shallow lake. The trial court granted the Koops summary judgment, agreeing that the shallow water was an open and obvious condition and that theytherefore had no duty to warn Galinari about a danger which he could have discovered through ordinary inspection. Galinari appealed.

Held: Galinari lost. he contended that despite the known dangers involved in diving, the question of the Koops’ negligence in failing to warn him of the shallow water required jury evaluation. He argued that he was a social guest on Koops’ property and that they breached a duty of care in failing to warn him of the dangers of diving off of the dock into their lake.

No-DivingThe Court disagreed, holding that in order to establish a cause of action for negligence, Galinari had to first show the existence of a duty. A social host owes his invited guest the duty to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises. This includes warning the guest of any condition of the premises known to the host and which a person of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover the dangerous condition.

However, a property owner owes no duty to warn invitees of dangers which are open and obvious. The rationale for this “open and obvious” doctrine is that the nature of the hazard serves as its own warning, and invitees then have a corresponding duty to take reasonable precautions to avoid dangers that are patent or obvious. In determining whether a condition is open and obvious, the determinative question is whether the condition is discoverable or discernible by one who is acting with ordinary care under the circumstances. This determination is an objective one: a dangerous condition does not actually have to be observed by the claimant to be an open-and-obvious condition under the law.

Here, the Court held, it is clear that the depth of water at the end of the Koops’ dock was a discoverable condition. Kristin was standing in the water near the end of the dock when Galinari dove in. The water on that day was at or below her knees. The lake bottom was clearly visible from the floating dock where Galinari dove. Galinari presented no evidence justifying any reason to believe that the water may have been deeper where he dove. He hadn’t been told he could dive from the dock and that he hadn’t seen anyone dive from that dock before him. Kristin was the only person he recalled seeing in the water as he jogged forward along the ramp and dove off of the dock. Based on this evidence, the Court said, the water was a discoverable condition by someone exercising reasonable care under the circumstances. Sadly, the Court said, if Galinari had merely looked at the water at the end of the dock, or stepped into the water to determine its depth, he would have easily determined that the lake was too shallow for diving. However, he took no precautionary measures prior to diving into the lake.

fall161214But Galinari argued that despite the open and obvious danger created by the shallow water, the doctrine of attendant circumstances precluded summary judgment. Attendant circumstances are an exception to the open and obvious doctrine and refer to distractions that contribute to an injury by diverting the attention of the injured party and reduce the degree of care an ordinary person would exercise at the time. An attendant circumstance must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of injured party. The phrase refers to all facts relating to the event, including such circumstances as time of day, lack of familiarity with the route taken, lighting conditions, and accumulation of ice. Galinari argued the “inviting nature of the water,” “other water activity” and the “lack of warnings” were circumstances contributing to his belief that the water was safe for diving.

The Court noted that while the nature of the cool water may have been inviting on a hot Fourth of July, it could not consider that to be an attendant circumstance distracting appellant from the ordinary use of care. Certainly, the Court said, inviting water did not prevent appellant from being able to discover its depth. Nor did the existence of other docks and slides, the length of the dock from which he dove, and the presence of people and canoes in the water create a visual appearance that diving from the end of the dock was safe. It was clear from this testimony that the “attendant circumstances” which Galinari asserted were not distracting him from exercising due care because he did not even notice them. These circumstances in no way prevented him from exercising the ordinary amount of care or led him to believe that the water was safe for diving.

– Tom Root

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And Now The News …

Greenfield, Massachusetts, Recorder, April 24, 2018: Residents taking city to court over tree removal

Some residents who want to protect shade trees are bringing the city to court over a plan to chop down healthy trees in a residential neighborhood so Berkshire Gas can more easily install gas lines. A hearing on a request for a preliminary injunction to stop the tree removal is scheduled for Monday, April 30, in Franklin County Superior Court. The case comes as residents have attempted to stop Greenfield from removing seven trees on Norwood Street where Berkshire Gas is replacing gas lines. “These are healthy trees,” complained Glen Ayers of 254 Davis St., who filed the complaint against the city with 21 others. “The only reason for removal of these trees is to facilitate the installation of a gas line.”  According to Ayers’ partner, Mary Chicoine, the removal of trees is affecting the public benefit that the trees provide, including improved cooling of homes and decreased flooding and storm water run off by the absorption of water through root systems, branches and leaves…

Chicago, Illinois, WLS-TV, April 24, 2018: Arlington Heights church’s expansion plans endanger 125-year-old tree

Saint Edna Catholic Church in west suburban Arlington Heights has announced expansion plans that endanger a very old tree. The parish will add a building and more parking in order to expand programs at the church. The plan presented to the village would also plant 46 new trees and remove 14, including a 125-year-old silver maple. “It’s a tree that changes with the seasons and it’s a maple tree. It’s very very colorful,” said Keith Grossich, parishioner and neighbor. Grossich actually supports the expansion, but not removing what he called the “majestic maple. One of the things that a little bit unsettling to me is it seems think they could try a little bit harder,” he said…

Realty Biz News, April 24, 2018: Boosting property value: What types of trees affect your home value

When most people consider upgrading their homes to boost their property value, they are thinking about the house itself. Often, the yard and landscaping gets neglected. However, adding landscaping and trees to your house can actually give you a solid return on your investment, even more so than anything interior. According to HGTV, studies have actually shown that homeowners get a 100 percent or more return on their money when they invest in landscaping, particularly in trees. But before you jump up and run to your nearest gardening supply store, you need to understand that the opposite can hold true as well. Some trees can negatively affect your home’s value and need to be avoided. So how do you know which ones to plant and which ones to steer clear of? Here is a helpful explanation. Not only do they look pretty, but flowering and leafy trees give off more oxygen, making their surroundings naturally healthier. They also provide shade from the heat, helping your home weather the sun’s intense rays better and prolonging inevitable upkeep. In some cases, trees can even protect your home from fires…

Environment & Energy News, April 24, 2018: Trees might cool things down more than scientists thought

It’s a well-established fact that forests are some of the world’s most important assets in the fight against climate change. They store vast amounts of carbon, while degrading or destroying them can release that carbon back into the atmosphere. But research suggests global forests protect the climate in another way, as well — they can actually help cool down their environment. “This is also important and comes into play when it comes to considering replanting forests and so on,” said Quentin Lejeune of the Berlin-based climate science nonprofit Climate Analytics. “It’s not only the carbon, but it can also influence the local climate.” A new study, led by Lejeune and just published in the journal Nature Climate Change, suggests that deforestation in the Northern Hemisphere has upset that cooling effect and helped make hot days even more intense. That’s on top of the influence of ongoing human-caused climate change…

Winchester, Kentucky, Sun, April 23, 2018: City removes trees causing pavement upheaval downtown, plans to replace

Main Street will look slightly less green for a little while as the City of Winchester has recently removed invasive trees from the sidewalks. Donnie Campbell of T&T Tree Service said a crew worked Saturday morning to remove the last of five trees — two from North Main Street and three from South Main Street. Crews cut the trees and then ground out the stumps. Shanda Cecil, Winchester Tree Board chairman, said the trees were removed because the roots were growing into the sidewalks causing upheaval of the pavement. However, the trees will be replaced with more appropriate trees once some repairs can be made to the sidewalks, she said. “When we are able to replace the trees, we will be using some new technology that will improve the condition of the trees downtown,” Cecil said…

Minneapolis, Minnesota, Star-Tribune, April 23, 2018: Iron Range man admits stealing birch trees on state land

An Iron Range man will pay a fine and restitution for cutting down and stealing roughly 1,200 birch trees from state land in northern Minnesota. It marks the first case of “timber trespass” involving birch trees yielding a charge above a misdemeanor, state officials said. David A. Lawrence, 41, of Aurora, pleaded guilty last week in St. Louis County District Court to timber trespass on state lands, a gross misdemeanor, in connection with stealing the paper-barked trees, which are a popular form of home decor and the target of illegal harvesting in Minnesota and Wisconsin. The agreement calls for Lawrence to serve one year of unsupervised probation, pay a $900 fine and make restitution for the damage he inflicted over a few days in March 2017 southwest of Embarrass in woods off Tower Biwabik Road. The felled trees were valued at roughly $3,400, which includes the trees and the cost to repair the damage to the woodlands, according to the Minnesota Department of Natural Resources (DNR). A harvester can generally sell each tree, referred to as a pole, for about $1…

Bridgeport, Connecticut, Connecticut Post, April 23, 2018: Town bids farewell to iconic, 200-year-old copper beech tree

Officials in a western New York town are bidding a sad farewell to an iconic 200-year-old tree. A public ceremony is planned Monday evening to commemorate the tree that towers over Copper Beech Park in the Rochester suburb of Pittsford. It’s dying from a devastating fungus. Town Supervisor Bill Smith tells WHEC that a lot of people think of the copper beech as a dear old friend. It’s even used in the town’s logo. Before it’s cut down, officials plan to photograph initials carved into its smooth bark by generations of young people. But pieces of the tree will live on. Cuttings have sprouted into more than 100 saplings that will be planted around town — but not in Copper Beech Park, where the soil is contaminated with the fungus…

Pottsville, Pennsylvania, Republican-Herald, April 24, 2018: Trees planted with charcoal in soil to be studied for positive benefits

Trees planted Monday at St. Nicholas Picnic Grounds might have extra help in becoming healthy and robust. Half of the 12 trees received biochar, charcoal that is added to the soil to improve fertility and plant hydration. It is believed that biochar will give the trees a better chance at a longer life. “It has a lot of benefits for tree growth,” Frank Snyder, volunteer with the Schuylkill County Conservancy and retired state forester, said, adding that includes absorbing moisture and holding in nutrients. The trees that were planted are about 10 feet tall and 4 to 5 years old. All of the trees were pin oaks except one — a honey locust. The trees could live between 150 to 200 years, Snyder said. Snyder said it is a controlled study to see if the biochar produces noticeable positive results for the trees. However, time is needed for the tree to re-establish a home at a new location, he said…

Boulder, Colorado, Public News Service, April 23, 2018: Beautiful springtime trees causing ugly problem in Hoosier State

Drive around Indiana, or anywhere in the Midwest, and you’re likely to see some trees that turn green early and have a beautiful white bloom early in spring. They’re likely Bradford pears, but state officials aren’t big fans and are asking residents to avoid planting them. Megan Abraham, director of the Department of Natural Resources says they’ve become very popular because they’re inexpensive and grow quickly. The problem is they’ve become invasive, taking over space where native grasses and plants, along with oak, maple or hickory trees should be. When Bradford pears first came on the market it was thought that they were sterile, but then they started cross-pollinating, and new varieties started flowering. “Which meant that the birds could feed off of them, and the birds are moving them now to some areas that aren’t forested where they’re able to out-compete some of the native trees and forbs and grasses, changing some of these ecosystems around us,” she explains. Abraham says millions of dollars a year are spent on pear trees in Indiana, and not only are they harming native vegetation, they’re not very sturdy and snap easily because they grow so fast…

Joplin, Missouri, Globe, April 22, 2018: As trees bloom, Missouri officials encourage more planting of dogwoods

With spring in full swing, native trees such as dogwoods are starting to bloom in the area, attracting locals and nonlocals alike to witness their natural beauty. Flowering dogwood, the official tree of Missouri, has become a popular sight for thousands of visitors traveling to its native habitat in the southwest region. Local cities have organized dogwood tours for years to introduce people to the tree’s unique allure. Neosho, which calls itself the Flower Box City, has held annual dogwood tours for 57 years, with people coming from as far as Wichita, Kansas, and Omaha, Nebraska, just to see the trees in bloom. Roy Shaver, a member of the Neosho Rotary Club, said the tours began as a civic effort to draw attention to the city’s beauty. He believes the tour became popular in Neosho because there is an abundance of dogwoods in town; the city has mostly white dogwoods, although a few pink trees pop up in certain areas. “It’s just a bank of beauty,” Shaver said…

Austin, Texas, KXAN-TV, April 22, 2018: Authorities arrest man they say set tree on fire in NE Austin

Authorities arrested an 18-year-old man suspected of setting a tree on fire in northeast Austin Sunday evening, said the Austin Fire Department. It happened at about 6:37 p.m. in the 6900 block of Wentworth Drive near the Travis County Expo Center. When firefighters arrived, they found a tree on fire next to a two-story fourplex and a wooden privacy fence, AFD said. They said the fire was extinguished in less than 20 minutes and there were no injuries. Investigators determined the blaze was intentionally set, and the 18-year-old man was taken into custody…

Lodi, California, News-Sentinel, April 22, 2018: Green deed appears to backfire for Lodi trees

Someone looking to keep Lodi green apparently has a black thumb. According to Caltrans Project Manager John Oliva, in May of 2017 the City of Lodi, Caltrans and Love Lodi volunteers partnered together to plant 70 crepe myrtle trees for a beautification project on the eastbound side of Kettleman Lane between the Union Pacific railroad overpass and Stockton Street. A couple of months after the trees were planted, someone put high concentrations of fertilizer on the trees, causing damage to many. Caltrans ended up removing 41 damaged trees and replanting them. However, last week it was discovered that someone applied what Oliva described as an oil based substance onto the trees, and as a result some of the trees are starting to show signs of defoliation. “We’re hoping the trees will be OK, but it appears that somebody may be trying to do something good, but it’s actually not good,” Oliva said…

Sacramento, California, KCRA-TV, April 19, 2018: Dozens of cherry trees uprooted, stolen in Stanislaus County

A Stanislaus County orchard is missing dozens of cherry trees after someone trespassed and ripped them out of the ground. Paul Van Konynenburg said he was taking stock of his Salida orchard Tuesday after a heavy rain when he noticed part of his new orchard was in disarray. He soon discovered bike tracks and believes a trespasser yanked out the trees one by one. Some were already too established to come up, while others came out. “This is going to cost me thousands of dollars, and literally the (thief) is probably going to make 15, 20 bucks at best — and so it’s just such a waste,” Van Konynenburg said. After filing a report with the Stanislaus County Sheriff’s Department and sharing his story online, a fellow farmer discovered a lead: Someone was selling identical cherry trees. The farmer bought two for $10 and returned them to Van Konynenburg…

Denver, Colorado, Post, April 19, 2018: Q&A: What to do about trees damaged when fierce winds blew through Colorado

Don’t blow off tree care in the aftermath of hurricane-force winds that rocked the Front Range on April 17, advised Denver’s City Forester Rob Davis. In the midst of emergency inspection of the city’s trees shaken by the windstorm, Davis granted a telephone interview:
Q. Which trees were hardest hit by the windstorm?
A. Conifers had the most damage and the majority of complete failures with the whole root plate upended.  Some silver maples and other trees were damaged, but a lot of Colorado blue spruces — our state tree — had the most damage, and some evergreens and pines. We had 90-feet-tall spruces down. We lost some big trees.
Q. What exactly happened to the trees?
A. In the majority of failures we saw, the tree just fell over with its big ball of roots sticking out of the ground. Some trees did snap at the base; the roots didn’t fail. It’s OK to see a tree swaying within the canopy. They have some movement, but this was quite an ordeal.
Q. Even if trees aren’t altogether toppled or suffering obviously broken trunks or limbs, they may have sustained more subtle damage in those high winds. How can people determine whether trees got too shaken by the storm?
A. Take a look around the base of the trunk and look for soil disturbance — any soil moving up or down. Look for fractures in the soil around the root plate. If you see ground around the base of a tree lifted or shifted, that indicates failure in the root system; and that’s cause for concern…

Hyderabad, India, The Times of India, April 16, 2018: Saline drip for a 700-year-old in Telangana

The world’s second largest Banyan tree in Pillalamarri  of Mahabubnagardistrict in Telangana is on ‘saline drip’ now as part of the rejuvenation of the tree that is almost dying. The 700-year-old ficus tree is now given treatment by injecting a diluted chemical to kill termite population that infested the tree. As pumping of chemical into the stem failed, forest officials are infusing the chemical solution drop by drop using saline bottles similar to a saline drip given to patients in the hospital. Termites had affected almost entire tree due to which parts of it are fallen, and it closed for tourists in December 2017. Officials have put the saline drip of diluted chemical Chloropyrifos bottles numbering few hundreds for every two metres of the giant banyan tree…

Abilene, Texas, KTAB-TV, April 19, 2018: Invisible danger: low humidity, high temps can create electrical arcs between power lines and trees

Low humidity and high winds can lead to grass fires. With conditions such as these, the ability of power lines to contribute to fires is increased as well. Power companies are constantly working to prevent problems, and you can help. When trees, branches, and debris come into contact with power lines, they could cause a spark or fire. Sometimes, the wire never even needs to be touched. Electricity can arc between the lines and nearby limbs and vegetation. “With all the dry leaves, one little spark can start those at these humidity levels, which otherwise, you’d never know.”, says ECCA Volunteer Fire Department’s Gary Young. That’s why companies like AEP and Taylor Electric Cooperative both work to keep their lines clear of debris. “One of our major goals in 2017 was to create our own tree trimming crews and maintenance programs.” says Elizabeth McVey of Taylor Electric. “They’ve been established for years, but we really amped it up. We’re always trying to make sure power lines are clear of debris and trees, and anything that might cause a problem…”

Tucson, Arizona, Arizona Daily Star, April 18, 2018: Tucson tree trimmer trapped by palm fronds lucky to be alive

A palm tree may seem like a harmless symbol of sunshine, but getting tangled up in one can be deadly. Tucson firefighters were able to prevent that tragedy Wednesday when they rescued a tree trimmer in danger of being crushed to death by fallen branches. Tucson Fire Department only gets a couple calls a year for palm tree rescues, and the incidents often are fatal, Capt. Andy Skaggs said. “When palm fronds come down on a worker, it is very rare that they live to tell about it. The fronds are extremely heavy and will do traumatic things to the body,’ he said…

Pittsburgh, Pennsylvania, KDKA-TV, April 18, 2018: Tree threatened to smash cancer patient’s home

A local woman battling cancer had a giant tree dangling perilously over her home.  She had no where to turn, so she turned to KDKA’s Marty Griffin and Get Marty.  “I am a 66-year-old cancer patient on social security. I have a tree leaning toward my house. It could fall at any time and would probably destroy my house. I don’t have relatives or anyone to help.”  That’s the e-mail sent to Get Marty by Judy Linhart. “When its windy out. I can see it out my bedroom going back and forth. I cant sleep at night. It’s the Lord who kept the tree from standing this long,” says Judy. Judy is fighting kidney cancer. She lives off of social security. She had several tree companies bid on the project. All of them told her it would cost seveal thousand dollars to removed the dead 120-foot tall tree from her property. “I just couldn’t afford it. I had to hope it wouldn’t fall…”

Yakima, Washington, Herald, April 18, 2018: Apple controversy: Who can sell Cosmic Crisp trees?

It’s an apple that could upset the cart. Or at least disrupt it a bit. Washington growers are so excited about the Cosmic Crisp’s potential, they already planted a half-million trees and plan to add another 5 million this year. Consumers will have to wait until fall of 2019 before these new apples hit the marketplace. But behind the scenes, there’s a courtroom battle brewing between one of the state’s major universities and a Seattle agricultural technology company over who has the right to sell the trees. But whatever happens, it’s not dampening growers’ enthusiasm for what 
 they see as a game-changing variety of apple. “I’m excited to see how it will disrupt the apple market,” said Mark Hanrahan, a Buena grower who has planted the trees…

Phys.org, April 18, 2018: Cities and communities in the US losing 36 million trees a year

Scientists with the USDA Forest Service estimate that between 2009 and 2014, tree cover in the Nation’s urban/community areas declined by 0.7 percent, which translates to losing an estimated 36 million trees or approximately 175,000 acres of tree cover annually. Pavement and other impervious cover increased at a rate of about 167,000 acres a year during the same period, according to research by USDA Forest Service scientists. Nationally, urban/community tree cover declined from 42.9 percent to 42.2 percent. Twenty-three states had a statistically significant decrease in tree cover, with a total of 45 states showing a net decline. Trees improve air and water quality, reduce summer energy costs by cooling homes, reduce noise, mitigate runoff and flooding, and enhance human health and well-being, making them important to human health and urban and community infrastructure. The annual benefits derived from U.S. urban forests due to air pollution removal, carbon sequestration, and lowered building energy use and consequent altered power plant emissions are estimated at $18 billion. The study by Dave Nowak and Eric Greenfield of the USDA Forest Service’s Northern Research Station, “Declining urban and community tree cover in the United States,” was published in the journal Urban Forestry and Urban Greening…

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Case of the Day – Tuesday, April 24, 2018

DOG BITES MAN

A little neighbor law today: Dog bites are big business in the United States. They happen all the time, which is why “Dog Bites Man” and its obverse are the archetypical predictable or unpredictable newspaper headlines. Man’s best friend sinks canine fretwork into a human over 3.5 million times a year. Insurance payouts for dog bites exceed $1 billion a year (or, by comparison, a week’s groceries at Whole Foods).  Some dog attacks can be fatal. Many more are just plain ugly.

Today’s case is one of those ugly ones, a sweet little 3-year old girl attacked without provocation by her cousin’s pit bull.   Our focus today is on the denouement, as the Delaware court apportions the financial blame for the accident.  Not that it much matters –the defendants didn’t bother to put on a case, which suggests that neither little Destiny or her mother will ever collect a dime. 

Still, it’s a reminder that (1) just about every state regulates the liability a dog owner has for the bites inflicted by Fido, and most of those statutes impose liability without any proof of negligence; (2) permitting a default judgment to be entered against you is a very bad idea; and (3) the concept of “joint and several” liability means that a plaintiff can collect it equally from several defendants, or all from one and none from the other. 

Campbell v. Robinson, 2007 WL 1765558 (Del.Super.Ct., June 19, 2007). Young Destiny Campbell was attacked by a dog kept by Frances and Turquoise Robinson. The attacked caused severe injuries, including the removal of Destiny’s right ear and a significant portion of her scalp, and created long-term physical and mental health consequences. Her mother, Alicia Campbell experienced emotional distress after witnessing the attack. 

Alicia sued on behalf of her daughter, complaining that as owner of the dog, Turquoise was liable under Del. Code Ann. Title 16, § 3053F, which imposes liability upon owners for injuries caused by their dogs. Additionally, she claimed that Turquoise was negligent in maintaining a dog she knew to be vicious and in failing to warn those on the premises of the dog’s vicious nature, and that Frances Robinson was liable for housing and maintaining a dog known to be vicious and dangerous, for failure to warn, and for failure to protect those who entered the premises.

The Robinsons apparently decided to let sleeping dogs lie, and failed to answer the complaint.  The trial court granted default judgment against both defendants, and set a hearing to consider damages.  The Robinsons showed up for that one, but did not testify.  That probably wasn’t such a good idea, because the trial court entered a judgment of $750,000 for compensatory damages against Turquoise Robinson. 

Based on the fact that the plaintiff alleged violation of the dog bite statute, the trial court reasoned that Frances Robinson could not be liable to Destiny Campbell because she didn’t own the dog.  The trial court apportioned $20,000 damages apiece against Turquoise and Frances for emotional distress caused to Alicia Campbell. 

Alicia appealed, complaining that the trial court should have made Frances liable for the $750,000 as well.

Held:   The Court agreed that the $750,000 must be apportioned equally between the Robinsons.  Delaware has long recognized that “when the negligent acts of two or more persons concur in producing a single indivisible injury, such persons are jointly and severally liable, though there was no common duty, common design, or concerted action.”  The joint and several liability of two codefendants, the Court said, entitled a plaintiff to seek recovery from either or both of the defendants, provided that total recovery does not exceed the full amount of damages. At the election of the plaintiff, either defendant may be held individually liable for the entire judgment. 

A default judgment constitutes a final judgment that provides a determination of the merits of a case, and — the Court noted — a defaulting party admits all of the allegations contained in a complaint.  Here, the Court said, its entry of default judgment established that both Robinsons were joint tortfeasors and were jointly and severally liable for all damages arising from both of the claims contained in Plaintiffs’ complaint.  The allegations in the complaint supported joint and several liability, charging wanton and negligent acts by the Robinsons, which combined to proximately cause harm to Destiny and her mother in a manner not “divisible” or separately attributable to either defendant. 

The Court held that the fact that Count I of the complaint was labeled “Count I-Violation of 16 Del.C. §3053F” does not permit Frances to evade joint and several liability to Destiny Campbell.  While she was not the dog’s owner and was not liable under the dog bite statute, Count I nevertheless established negligent and wanton conduct unrelated to the dog bite statute, and made Frances equally liable.

– Tom Root

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Case of the Day – Monday, April 23, 2018

ADVERSE POSSESSION BY COMMITTEE

Weyerhaeuser Co. bought a big old farm in southeastern Oklahoma for timber operations back in the 1980s. No sooner had it harvested its last tree but next-door neighbor Brantley started taking advantage of the absentee owner.

Not so fast, Mr. Brantley ... it's not quite that easy.

Not so fast, Mr. Brantley … it’s not quite as easy as all that.

Over a 20-year period, Brantley claimed, he had grazed his cattle on the place, even running off hunters authorized to hunt there and denying access to Oklahoma Wildlife officers who had a deal with Weyerhaeuser to open the place as a recreation area. But the farm was a big place and there were a lot of players. Brantley’s father grazed his cattle on the place, too, for awhile, but unlike his boy, Père Brantley had a lease from Weyerhaeuser. Brantley’s brother — cut from the same cloth as Brantley himself — grazed his cattle on the place and claimed a piece of it, too. Even Oklahoma State University had a lease from Weyerhaeuser to use part of the farm as a research facility.

Finally, the time came that Weyerhaeuser was ready to resume timber and gravel operations. it found Brantley to be underfoot, so the company sued him in trespass to remove him from the place. Brantley claimed he owned the place under the doctrine of adverse possession.

No, the Court said, he did not. Adverse possession requires, among other things, that the possession of the land be exclusive. Brantley’s possession of the place was more communal, the Court observed, with other actors coming and going all the time. You just can’t have a committee of people commonly possessing a place adversely. Where two people have entered on land, the one who has the better title is the one in possession. And in this case, that was the guy who occupied the land as lessee. Brantley’s Dad, who had leased the land from Weyerhauser, was the one in possession. Not his piratical son.

Weyerhaeuser Co. v. Brantley, 510 F.3d 1256 (Ct. App. 10th Cir., 2007). Sherrill Farm is located in a scenic portion of southeastern Oklahoma, along the Mountain Fork River and near the Arkansas border. Weyerhaeuser had owned the farm since the early 1980s at least, the entire period of the dispute. Young Carl Brantley claimed he had began grazing livestock on Sherrill Farm as early as 1980-81, although he had never had permission to use it. Since then, Brantley said he had built corrals, feed troughs, and fences on the property. He also removed brush, applied fertilizer, harvested wheat, and maintained roads. Although he installed a locked gate on the farm in the early 1980s, he never paid property taxes on the land. Brantley claimed his adverse possession of Sherrill Farm began in the winter of 1987-88, after Weyerhaeuser last harvested a stand of trees on the property.

During the years Weyerhaeuser used the area for its timber operations, it permitted others to use on Sherrill Farm. Brantley’s father had a license agreement to graze on Sherrill Farm beginning in 1983 until 1992. In 1987, Weyerhaeuser leased parts of Sherrill Farm to Oklahoma State University. OSU planted two research sites in the southern part of Sherrill Farm but made no use of the northern half. OSU complained to Weyerhaeuser about damage to its research plantations from livestock and built a fence to protect the plantations, but it did not seek to have Brantley’s cattle removed from Sherrill Farm entirely. OSU asked Brantley to cease grazing in the leased area, but Brantley was uncooperative. OSU also maintained its own locked gate to Sherrill Farm. Because of this alternative access, Brantley’s gate never prevented OSU or Weyerhaeuser from accessing Sherrill Farm.

In 1998, Weyerhaeuser and the Oklahoma Department of Wildlife Conservation included Sherrill Farm in the Three Rivers Wildlife Management Area. According to the agreement, the general public could access Sherrill Farm for hunting, fishing, and other recreation. Brantley’s locked gate prevented a state wildlife officer from accessing Sherrill Farm during some visits. Brantley testified he saw hunters on the property during this time and asked them to leave. In 2003, Weyerhaeuser granted an easement to another landowner to access her property across Sherrill Farm, but Brantley refused to allow access to the easement through his gate.

You can't adversely possess by committee ...

You can’t adversely possess by committee …

Oklahoma State’s lease terminated in 2004. Weyerhaeuser had to resume timber production and begin gravel mining, but Weyerhaeuser said Brantley’s presence delayed these activities, resulting in monetary damages. In 2006, Weyerhaeuser sued Brantley for trespass.

Brantley asserted adverse possession or prescriptive easement as affirmative defenses. After a trial, the district court entered judgment in favor of Weyerhaeuser. Both the parties appealed. Brantley argued he possessed the land adversely, and Weyerhaeuser complained it should have been awarded $200,000 in lost profits.

Held: Weyerhaeuser’s judgment was upheld, but not the lost profits. Under Oklahoma law, to establish adverse possession, Brantley had to show that his possession was hostile; under a claim of right or color of title; actual; open; notorious; exclusive; and continuous for the full 15-year statutory period.

Weyerhauser owns or controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum's rush.

Weyerhauser controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum’s rush.

The Court found that Brantley did not have exclusive use of property for 15 years – that length of time being the Oklahoma standard (your home state’s period may vary), and thus failed to establish adverse possession of the land. During the 15-year period, Brantley’s father held a grazing lease on property, Oklahoma State conducted activities on the property, Weyerhaeuser conducted activities such as road maintenance and gravel sampling on property, the land was part of a wildlife area managed by the State, it was open to the public, horses not belonging to Brantley grazed on the property and Brantley’s own brother also claimed grazing rights to property by adverse possession. To show exclusive possession, Brantley had to show an exclusive dominion over the land and an appropriation of it to his own use and benefit. Two persons cannot hold one piece of property adversely to each other at the same time, the Court said, and where two persons have entered upon land, the one who has the better title will be deemed to be in possession.

However, Brantley did not have to pay the $200,000 special damages for trespass. A forest manager’s testimony that, but for the presence of Brantley’s cattle, the property owner would have netted $200,000 in profits from gravel mining — based on 150,000 tons during first year and 300,000 tons during second year — was held by the Court to be too uncertain and speculative to support damages award for lost profits. But the award of $10,000 against Brantley based on Weyerhaeuser’s lost timber sales, was reasonable: Weyerhaeuser had previously used the property for timber harvesting, and the property was currently suitable for planting and harvesting. Weyerhaeuser’s witness was a certified forester who had submitted an affidavit identifying methodology for his damage calculations.

– Tom Root


TNLBGray140407

Case of the Day – Friday, April 20, 2018

I NEED THE MONEY, MAN

The old fence marked something ... just not the boundary.

The old fence marked something … just not the boundary.

Poor (and we mean that literally) Mr. Hartshorne. He and next-door neighbor Coldsnow had had some disagreements about the property boundary about 25 years ago or so, and it’s fair to conclude that the Hartshornes probably don’t ask the Coldsnows over for tea and crumpets all that often.

In the late 90s, Mrs. Hartshorne went to her reward. Her death left Mr. Hartshorne saddled with debts, and he sold some of his timber to pay for it. He probably should have had his property surveyed (which would have cut into the timber profits, meager though those might be). Instead, Widower Hartshorne just told the logger that he could log to the old fence, which the Hartshornes had always thought was the property boundary.

It wasn’t. You know how these things go.

Sadly, had the timber sale been enough to cover Mr. Hartshorne’s debts, no one would ever have discovered that some of trees he sold had actually belonged to his neighbor. But the proceeds were a little light. Thus, Mr. Hartshorne divided his property in order to sell some of it off. When you divide property, you have to line up a surveyor. The survey showed Mr. Hartshorne that the old fencerow was not the boundary after all.

His neighbor, Coldsnow (perhaps aptly named for all the sympathy he showed a poor widower), found out the same, and realized that this meant that some of the trees Hartshorne’s logger had cut were on his land. Coldsnow sued for trespass, and asked the court to treble the damages under the Ohio treble-damage-for-timber-trespass statute. The jury agreed with Coldsnow that the cost to restore or replace the timber was $11,500, and that Hartshorne was reckless. The damage award trebled to $34,500.

Hartshorne complained that the proper measure of damages should have been the decrease in value of Coldsnow’s land, and anyway, he wasn’t reckless. He had just made a mistake, and regular negligence did not support treble damages under the statute.

The Court of Appeals didn’t buy it. Coldsnow’s successful conflation of a few isolated border skirmishes over an eight-year period into a boundary war convinced the Court that Hartshorne — knowing of Coldsnow’s prior aggressiveness in enforcing the boundary — should have gotten a survey. Frankly, we suspect that Mr. Hartshorne must not have cleaned up very well for court, because there’s very little in the written decision that supports a conclusion that he acted recklessly, and thus, no other reason the Court should have oppressed him so.

work_for_freeWe don’t think a lot of this decision. The Court is saying in essence that the more unreasonable your neighbor is, the more careful you’re required to be. It certainly makes it hard to define a community-wide standard of care. Because I live next to a sweet old lady who would let me sell her front door if I wanted to, I should be held to a lower standard of reasonableness? That simply does not make sense.

Knowing that your neighbor’s a curmudgeon is hardly a basis for saying that your failure to take his cantankerousness into account is reckless conduct.

Coldsnow v. Hartshorne, Not Reported in N.E.2d, 2003 WL 1194099 (Ohio App. 7 Dist.), 2003-Ohio-1233. Coldsnow sued Hartshorne for cutting down some of the trees on Coldsnow’s property. Hartshorne began to cut down some trees, one of which was near the fence line between his and Coldsnow’s property, in 1991. At the time, Coldsnow complained to Hartshorne about cutting down that tree and Hartshorne stopped cutting down trees near the fence line. In 1995, Hartshorne had problems with people trespassing on his land to hunt. In response, Hartshorne bought some “no trespassing” signs and placed them all around his property. He also spray-painted orange circles on trees near the signs to bring them to people’s attention. Some of the trees he spray painted were on Coldsnow’s property. Coldsnow complained about the signs and the spray paint to the Hartshornes. In 1997, Hartshorne’s wife died, and to pay the bills from her illness, Hartshorne decided to log and sell some of the trees on his property. He hired a forester, to do the logging and agreed to evenly split the profits with the forester.

Lawyers always advise their clients to dress well for court. Maybe Mr. Hartshorne ignored his attorney's advice. What else would account for this whacked decision?

Lawyers always warn their clients to dress well for court. Maybe Mr. Hartshorne ignored his attorney’s advice. What else would account for this whacked decision?

Hartshorne asked the forester to selectively harvest the forest, in order to thin out the canopy to allow smaller trees to grow more quickly. He also showed the forester the property lines and asked him to only log trees more than 15-20 feet away from those lines. He did not have his property surveyed before hiring the forester, instead just showing him an old fence line which Hartshorne believed was the property line. Coldsnow became aware of the tree harvesting when Hartshorne’s property was being surveyed so a portion of it could be sold as another means of paying off his wife’s debt. Coldsnow hired a surveyor, who found that some of the stumps from trees which had been harvested were on Coldsnow’s property. Coldsnow sued, claiming trespass and a violation of §901.51 of the Ohio Revised Code, and Hartshorne claimed adverse possession, a claim that was dismissed before the end of trial. The jury returned a verdict in favor of Coldsnow in the amount of $11,500 as the cost of restoration or replacement, and found Hartshorne had acted recklessly. Accordingly, the trial court granted judgment in the amount of $34,500. Hartshorne appealed.

Held: The jury verdict was upheld. The Court found the jury’s damages award was reasonable and its conclusion that Hartshorne acted recklessly was not against the manifest weight of the evidence. Hartshorne argued that the proper measure of damages was the diminution of value of the real estate because of the logging. But in a case involving a violation of O.R.C. § 901.51, the Court said, the restoration/replacement cost of the trees is a proper measure of damages when the injured party intended to use the property for residential and/or recreational purposes, according to their personal tastes and wishes. As Coldsnow used his property in this way, the Court held, he did not first need to show a diminution in value of the land before receiving restoration damages. The Court found that the jury’s conclusion that Hartshorne acted recklessly was not against the manifest weight of the evidence, because the evidence showed that Hartshorne had a history of ignoring the boundary line between the properties.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, April 19, 2018

CRUISIN’

cruiseE151026Huey Lewis and Gwinneth Paltrow covered Smokey Robinson’s 1979 hit, “Cruisin’,”in a duet recorded in 2000.

They weren’t talking about the kind of cruising we’re looking at today. We’re interested in timber cruising.

An interesting decision in U.S. District Court for the Southern District of Illinois contains a trove of judicial findings of fact and application of law in a timber trespass case, including an explanation of timber cruising. The Court presided over a trial of an overzealous timber harvester, whose timbering activities went beyond the owner’s property and took 231 of Uncle Sam’s trees formerly attached to the Shawnee National Forest.

cruiseB151026The case is interesting not so much because the Court wisely slapped down the tree cutter’s claim that the Government had to show he intended the trespass (read yesterday’s discussion of Stukes v. Bachmeyer on that subject) — but because the Court carefully describes the technique of timber cruising and differentiates between stumpage value and timber value. You should read the full case: the Court finds tree cutter Kosydor liable through a carefully-constructed wall of direct and circumstantial evidence, it finds against the Government on unjust enrichment, and it gives a shaky analysis of why the suit against Kosydor was filed within the statute of limitations.

And if you’re of a mind to read more, the U.S. Forest Service has a detailed handbook on tree cruising available for downloading, as well as some pretty slick software.

U.S. v. Kosydor, Slip Copy, 2007 WL 2409557 (S.D.Ill., Aug. 21, 2007). Larry Griffin, a conservation officer for the Illinois Department of Natural Resources, went to Terry Foster’s property to investigate a deer hunting complaint. He noticed timber cut off of what appeared to be the Shawnee National Forest. At the time, the boundary line between Foster’s property and the Shawnee was not marked, and no survey had ever been conducted to establish the boundary line.

cruiseD151026After Griffin reported matters to the U.S. Forest Service, the agency conducted a survey to establish the actual boundary line between Foster’s property and the Shawnee. Once the boundary was marked, the Forest Service initiated a timber cruise.

Timber cruising includes identifying a tree species, taking stump diameter measurements, taking measurements from the stump to the top of the tree left on the ground, taking measurements of any logs left on the ground, and recording measurements on a tally sheet. A total of 231 tree stumps were counted on the Shawnee property in the area adjacent to Foster’s property. Information regarding each stump was recorded, including its species, its diameter, and the distance from the stump to the corresponding treetop left in the woods.

Kosydor owned and operated a timber logging business. He contracted with Foster to harvest timber from Foster’s land. His agreement provided for a 50/50 split of proceeds generally, with a 70/30 split on walnut veneer in favor of Foster. Although Kosydor, who was aware that Foster’s property bordered the Shawnee, denied cutting any trees in the National forest, one of his employees testified emphatically that he had cut trees from the Shawnee National Forest under Kosydor’s direction.

As for the owner, Mr. Foster was unaware of anyone else, other than Kosydor, doing logging off of those areas during the period of time that he has lived there. The only reasonably available route for accessing and removing the wrongfully cut timber passes over Foster’s property and within very close proximity to his residence.

cruiseA151026Held: Kosydor was liable to the government under the Illinois Wrongful Tree Cutting Act. The Court found that Kosydor had voluntarily taken on the responsibility of determining the boundary line between Foster’s property and the Shawnee, despite a provision in their contract that Foster would be responsible for doing so, and that he was responsible for the entire logging operation. The Court noted that to prevail on the WTCA claim, the government had to prove that Kosydor intentionally cut or knowingly caused to be cut trees belonging to the United States which he did not have the full legal right to cut.

Kosydor argued the government had to prove that he intended to trespass on the National Forest land, but the Court disagreed. All the United States had to do, it held, was to prove he intended to cut the trees that happened to belong to the Government. Kosydor’s allegedly innocent mistake as to the location of the boundary line, the Court said, was not a defense to the WTCA claim. The Court observed that it is rational that the burden of establishing boundaries be placed on a defendant who orders wood to be cut. Otherwise, it would be advantageous for a defendant to cut now and worry about tree boundary lines later, since the maximum financial burden he would face would be the stumpage value of the severed trees.

One purpose of the WTCA is to discourage timber cutters from cutting trees without thoroughly checking out the boundary lines. The Act is meant to discourage not only the malevolent timbermen but also errant timbermen.

cruiseC151026Under the WTCA, stumpage value is used to calculate the underlying value of the timber. Stumpage value and timber value estimates, the Court said, are both depend upon timber volume estimates, which in turn are based upon the raw data collected in the field by timber cruisers. Put another way, estimating the value of timber taken in a trespass involves a three-step process. First, a timber cruise is conducted and measurements are taken in the field. Second, the collected measurements are then converted into volume estimates using established mathematical formulas. Third, those volume estimates are then converted into value estimates.

The distinction between timber value and stumpage value only comes into play during the third step of the process. Stumpage value which is the value of standing trees or what one might pay for the right to cut and remove trees. Timber value which is the value paid by mills for cut logs. In this case, the Court held, the stumpage value was about $12,500, reduced from the Government’s estimate by 10% to give Kosydor the “benefit of the doubt.” Because the trebling of stumpage value is mandatory under the Illinois WTCA, the total loss was about $37,500.

The Government had already reached a separate peace with Foster, who paid $18,000 to make his problem go away. This was deducted from the judgment, and Kosydor was ordered to pay about $19,500.00.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, April 18, 2018

YOU’LL GET NOTHING AND LIKE IT

We’ve all had it happen to us. Our next-door neighbor gets drunk and rams his bulldozer into our best shade tree, gouging it up pretty badly. Then we have to sue, and while the torn-up grass he left behind and shrubs he rolled over get paid for, we get nothing for the tree. All because he wounded it but didn’t kill it.

What? You say it hasn’t happened to you? OK, but it did happen to Mike and Melissa in Huron County, Ohio. When neighbor Bob Tite got a little tight and rammed their tree, the trial court told them they’d get nothing for the wounded walnut, because it’s not dead. Dead trees we can figure the cost of, but a wounded tree… Well, it may die sooner instead of later, but who can say? The trial court said the damage is “speculative.”

Speculative? If Mike or Melissa had been rammed by the tight Mr. Tite, they would have been able to collect for their injuries without having to die first. And trees are people, too, right? Well, maybe not, but a tree probably shouldn’t have to die before a property owner can get compensation for damage to it.

Tinney v. Tite, 2012-Ohio-2347 (Ct.App. Huron Co. 2012). One summer day, Mike and Melissa Tinney heard a loud noise outside of their house. When they looked out through the window, they saw their across-the-road neighbor, Bob Tite – quite inebriated at the time – sitting on his bulldozer lodged hard up against a sizeable black walnut tree in their back yard. Deep ruts across their lawn and two smaller trees splintered on the ground marked the path the bulldozer had taken.

The Tinneys sued Bob for the damage. Their certified arborist expert said damage to the walnut covered 25 to 30 percent of the circumference of the tree. He testified the extent of the damage “ruined” the tree because, although it would not kill the tree immediately, it would result in “a slow decaying process” that would eventually compromise the structural integrity of the tree and cause it to become a hazard. The arborist was unsurprised that the tree was still producing leaves one year after the incident. He said the wound was starting to develop a callus as the healing process proceeded, but the tree would weaken over time because the wound would not heal completely before decay sets in. He could not say that the tree would die from the wound, but he said that the structural integrity of the tree is likely to become a dangerous factor in the future.

The Tinneys also called a witness who had a degree in landscape horticulture. He said the severity of the damage would probably stress the tree out, and eventually, the old walnut would die. He testified that as the years progressed, the Tinneys could expect more decay and more branches showing signs of decline. He said the tree’s declining and potentially dying was “not an immediate thing. It’s going to take some time” because “it’s a long process for this tree to decline.”

Bob’s sister testified in support of her brother, however, testifying that she saw the damaged black walnut the summer after the incident, and it looked “healthy, green, and alive” despite the wound on the trunk.

The Tinneys won a judgment $3,410.00. The award covered the lawn and the saplings, but included nothing for the wounded but still living walnut tree because the trial court found that giving them damages for the injury to the walnut would be “potentially temporary and speculative at best” since “its appearance remains the same.”

The Tinneys appealed.

Held: The Tinneys were entitled to damages for the injured walnut tree.

The Court observed that most decisions involving O.R.C. 901.51 – the Buckeye State’s statute on wrongful cutting of trees –  involve situations where trees have been completely cut down, making it considerably easier to determine the full extent of the damage. In this case, the tree is still alive, even if it is not necessarily guaranteed to stay that way for decades to come. Nevertheless, the Court said, temporary damages to vegetation are recoverable, because it is a “fundamental rule of the law of damages is that the injured party shall be fully compensated.”

As a general rule, speculative damages are not recoverable. An award of damages must be shown with a reasonable degree of certainty and in some manner other than mere speculation, conjecture, or surmise. However, the Court ruled, if an appellant “establishes a right to damages, that right will not be denied because the damages cannot be calculated with mathematical certainty.” Even when permanent damages are awarded for trees that were cut down, temporary damages may still be awarded if the permanent damages alone do not fully compensate the plaintiff. 

Both of the Tinneys’ experts testified it was reasonably certain that the tree was permanently damaged, because it would not heal before decay set in. The Tinneys furnished precise calculations on the reasonable restoration value of the property. Therefore, the Court ruled, they had shown “with a reasonable degree of certainty what would be required to reasonably restore their property. The damages to the tree must have had some value, but the plaintiffs were awarded nothing, even if just a nominal amount for the temporary trespass onto their property.”

The Court of Appeals sent the case back to the trial court for a calculation of damages to the wounded walnut tree.

– Tom Root

TNLBGray140407