Case of the Day – Friday, September 22, 2017


Midsummer’s Night fell exactly one season ago, today being the autumnal equinox and all (at 4:02 p.m. EDT for you Type As), but we nevertheless still feel a little Puckish. So we thought we’d examine two neighbors, neither of whom reacted thoughtfully to a dangerous tree. “Oh, what fools these mortals be!” Midsummer Night’s Dream, Act III, Scene 2.

Traditionally, the Massachusetts Rule – which could be summarized as “I don’t owe you nuthin’ – held that a landowner had no liability to his neighbor for harm done by overhanging branches and encroaching root systems. If the neighbor didn’t like the mess, he or she could trim away the offending branches or roots up to the property line. The courts simply didn’t want to hear about it.

However, courts had traditionally held an urban landowner to a higher standard of care when the people being protected were passing motorists on a public highway. In those cases, an urban landowner was obligated to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

bellyachin140304In today’s case, Lois Lockhart had a decaying tree on her property. Neighbor Carl Mahurin complained about it, primarily because one of the branches was overhanging his property. But Lois did nothing. Neither did Carl – unless belly-aching counts as putting forth an effort.

Finally, the branch broke off and hit Carl, who was standing beneath it. You knew that had to happen, or else why would we be telling you this story? Being injured –and a little piqued that Lois had ignored his entreaties for so long – Carl sued. (You knew that would happen, too.)

Lois tried to get the case thrown out of trial court. She pointed out that Carl had nothin’ coming from her. The traditional rule – read “Massachusetts Rule” here ­– dictated that she had no duty to protect Carl from the natural condition of her tree.

But as the great bard once wrote, “I do perceive here a divided duty.” Othello, Act I, Scene 3. And so did the trial court. It was troubled that Lockhart’s duty to strangers passing by in their Hudsons and Desotos was greater than to her neighbor. That seem divided, and irrationally so.

Lois said, “Heaven is my judge, not I for love and duty, But seeming so, for my peculiar end.” Othello, Act I, Scene 1. The trial court said that might be so, but it nevertheless sent the case to the Court of Appeals for the appellate court’s opinion as to her duty.

William Shakespeare - he foresaw the problems with the traditional liability rule hundreds of years ago.

William Shakespeare foresaw the problems with the traditional liability rule urged by Ms. Lockhart hundreds of years ago. “Wondrous strange!” indeed.

The appellate panel said, “O day and night, but this is wondrous strange!” Hamlet, Act 1, Scene 5. It could see no reason for the disparate treatment, either. Certainly, just as Lockhart owed a duty to Mordred and Mildred Motorist, she must owe the same duty to her neighbor, Carl. However, the Court of Appeals did allow that Mr. Mahurin could have entered onto Ms. Lockhart’s place and cut the tree down itself. So he might be contributorily negligent. Likewise, could he have been a knucklehead for standing under a tree he had complained was dangerous?

To Lockhart, the Court said “There are more things in heaven and earth, Lois, than are dreamt of in your philosophy.” Hamlet, Act 1, Scene 5. Such as… a single duty owed by a landowner to both travelers passing on the road and her next-door neighbor. It sent the case back to trial.

Mahurin v. Lockhart, 71 Ill.App.3d 691, 390 N.E.2d 523 (Ill.App. 5 Dist. 1979). Plaintiff Carl Mahurin brought this action to recover damages for personal injuries he suffered when a dead branch extending over his property fell from a tree belonging to defendant Lois Lockhart, an adjoining landowner, and struck him. In his complaint, Mahurin alleged that Lockhart failed to prune the tree or take other necessary precautions after he warned her of the condition of the tree and the dangers it posed.

Lockhart moved to dismiss the complaint, arguing that a landowner is not liable for physical harm to others outside of her land caused by a natural condition. The trial court denied the motion to dismiss, certified that the question of law raised in Lockhart’s motion presented substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.

Held: The Court held that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.

The narrow issue before the court was to determine the extent, if any, of the duty that a landowner in a residential area owes to persons outside of his premises to remedy some defective or unsound condition of a tree upon his land when the tree and its condition were of a purely natural origin. Mahurin urged the Court to adopt the traditional rule set forth in section 363 of the Restatement (Second) of Torts. This section provided that neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land. However, if the landowner was in an urban area, he was subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The traditional rule applied even though the landowner is aware of the dangerous natural condition and the expense necessary to remedy the condition is slight.

The Court noted that the traditional rule of non-liability developed at a time when land was mostly unsettled and uncultivated. The landowner – unable to keep a daily account of and remedy all of the dangerous conditions arising out of purely natural causes – was therefore shielded from liability out of necessity.

But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it? Duh, Carl ...

But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it? Duh, Carl …

The Court disagreed that the duty an urban landowner owed to a neighbor should be less than owed to people passing in cars and trucks. It thus ruled that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.”

Therefore, Lockhart’s duty to Mahurin should “be defined using the ordinary rules of negligence. It is therefore appropriate for the trier of fact to consider … such factors as “the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented” in resolving the issue of liability.

The Court noted Lockhart’s argument that Mahurin was contributorily negligent because he stood under a tree that he, by his own admission, knew was dying and dangerous. The Court noted that the Restatement provided that a landowner is privileged to enter upon a neighbor’s land to abate a condition thereon which constitutes a private nuisance. “While this privilege alone does not establish the contributory negligence of plaintiff, it could be considered by the jury in resolving this issue.”

The Court remanded the case for trial, using the standards it had adopted.

Tom Root


And Now The News …

Jacksonville, Florida, WJAX-TV, Sept. 21, 2017: I-TEAM probe leads to arrest of tree trimmer, money returned

It took less than two days. An I-TEAM investigation that began Tuesday ended Thursday afternoon with the State Attorney’s Office directing the arrest of a local tree trimmer — a man with a lengthy criminal history. Shawn Curtis Albin, who has been arrested by the Jacksonville Sheriff’s Office 22 times since 2003, is now behind bars accused of stealing from a Hurricane Irma storm victim. Our investigation began immediately after Army veteran Greg James contacted the I-TEAM asking for help for his mom. He told us the day after Irma hit, his mother — Wyannette Ephron — paid a $700 down payment to Albin to take care of trees damaged by the hurricane.  But, both mother and son say Albin did not do the work. “I just want to get justice for my mom,” James told us…

Atlanta, Georgia, Saporta Report, Sept. 21, 2017: Trees Atlanta hosts tree protection event as city embarks on redo of tree ordinance

As Atlanta city officials look to revamp the city’s tree ordinance, Trees Atlanta is hosting more than 100 folks at a conference where they are slated to hear practical advice on how to become effective advocates for the city’s tree canopy. The two-day event, Atlanta Canopy Conference: Giving Voice to Tree Protection, started Thursday evening with a presentation by the US Forest Service’s acting assistant director, Alice Ewen. This event marks a return to Atlanta for Ewen, whose first job with Trees Atlanta was to plant trees for the 1996 Summer Olympic Games. After three years with Trees Atlanta, she worked for two tree advocacy organizations before joining the US Forest Service in 2011 as national program for the Urban and Community Forestry Program. On Thursday, Ewen was slated to deliver a presentation, How to be Effective Now in Environmental Advocacy. On Friday, Ewen is listed as the closing speaker at the conference and is to draw from her personal history of advocacy to urge tree advocates to speak with an organized, cohesive voice when discussing tree conservation efforts…

Washington, D.C., WUSA-TV, Sept. 21, 2017: Fight over a DC tree has one man saying not in my front yard

It’s a fight over a tree. D.C. wants to plant more. Charley Pereira of NW D.C. says “not in my front yard.” Problem is, that’s exactly where the District wants to dig. “Just another example of government abuse of power,” said Periera.  Periera lives in the Crestwood neighborhood. He bought the home in 2009. He lives there with his wife and kids. They like their front yard the way it is. On Wednesday, Perieria says they got a visit from DC Arborist Shaun McKim. “He said ‘I’ve decided I’m going to put a tree right here in your front yard.’ Well, what do you mean?…’Well, I’m the D.C. arborist and I decide where all trees are going to go in Washington, D.C.” Periera says McKim told him his family has no say in the matter…

Hagerstown, Maryland, Local DVM News, Sept. 21, 2017: Judge fails to rule on tree cutting court fight

A U.S. District Court Judge has once again declined to rule on whether or not to allow tree cutting to take place on the Georgetown Branch Trail as part of Purple Line construction. The Friends of the Capital Crescent Trail are currently seeking a preliminary injunction to prevent trees from being cut down on the trail, which runs from Bethesda to Silver Spring. However, this lack of a decision can be seen as a win for the Purple Line. A spokesperson for the project said they will resume clearing work on Monday. For now, the Georgetown Branch Trail remains closed to the public and is considered an active construction zone…

Bay City, Michigan, Times, Sept. 20, 2017: Judge orders Bay County tree service to stop certain operations

A judge has ordered a Bay County tree service to cease certain operations after it allegedly ignored orders from the state to address multiple job-site hazards and violations. On Monday, Sept. 18, Bay County Circuit Court Judge Joseph Sheeran ordered Sunset Tree Service and Landscaping to stop several operations of its business until it complies with abatement requirements issued earlier this year by the Michigan Occupational Safety and Health Administration (MIOSHA). Specifically, the company agreed in court to not use its Bandit Chipper, engage in any work that requires the implementation of traffic control devices, and to employ any workers that have not received training in the hazards of tree trimming operations. Owner Chad Nichols told The Bay City Times-MLive he’s still in business and that he won’t be using the chipper until its repaired and up to safety standards…

Minneapolis, Minnesota, Star-Tribune, Sept. 20, 2017: Wisconsin trees may have less vibrant fall colors this year

With the first day of autumn right around the corner, experts predict recent weather conditions in Wisconsin could mean fall colors will be less vibrant. Colleen Matula, a forestry specialist with the Wisconsin Department of Natural Resources in Ashland, said forest health, temperature, precipitation and cloud coverage can all affect how quickly leaves turn color and how vibrant that color is. She told Wisconsin Public Radio that increased rain this year means many trees are getting fungal diseases on the leaves. Matula said fungal diseases can affect the color and volume of leaves. Southwest Wisconsin is dealing with a different type of weather problem. National Weather Service officials in La Crosse said southwest Wisconsin recently has had abnormally dry conditions…

Gulfport, Mississippi, Sun Herald, Sept. 20, 2017: If you see these trees, report them to the Mississippi authorities

Everybody loves popcorn, right? Depends. If by popcorn, you mean the fluffy, buttery, salted puffs of popped corn that we gorge on at the movies, yes. If you mean the trees that produce seeds that look just like popcorn, not so much. Popcorn trees, also known as Chinese tallow trees, or Triadica sebifera, are an invasive species in Mississippi and many other Southern states, from Texas to the Carolinas. In fact, the trees were imported decades ago from eastern Asia. Now, the Mississippi Forest Commission is trying to get a handle on just how many popcorn trees are in the state. An online map at lets anyone report popcorn tree sightings throughout the state…

Los Angeles, California, Times, Sept. 20, 2017: Laguna Beach barks up the wrong pepper tree

For a city whose DNA instinctively says no, why did Laguna Beach so easily say yes to cloning a dying, dangerous pepper tree? The City Council is inexplicably spending way too much time and money on a tree. Granted, it serves as the annual Christmas tree and is sentimental to some. But it’s 135 years old and has “serious” structural defects. Over the years it’s been filled with concrete and foam in order to extend its life. It’s time to let it go. Instead, we have costly heroics. The latest is a $13,000 cloning experiment, which the City Council appears willing to endorse. If this weren’t so troubling, it would be laughable…

Tampa, Florida, WTSP-TV, Sept. 19, 2017: Lakeland tree survives Irma, but city still plans to remove it

A popular tree in Lakeland that’s scheduled to be removed is still standing after Hurricane Irma. City officials determined “Lover’s Oak” is decaying and is a risk to people’s safety after a big branch fell on a car a few months ago.  “That’s not a good sign,” Parks and Recreation Director Bob Donahay said. “That tells you something’s going on.” The tree got its name because two separate oak trees intertwined and became one. The tree, or trees, survived Irma, while several trees around it didn’t. People are pointing out the irony, and someone even put up a sign that says, “I survived Irma only to be doomed by city hall…”

Dayton, Ohio, WHIO-TV, Sept. 20, 2017: Middletown police: Beware tree-trimming scam

Middletown police are warning residents of “unscrupulous tree trimmers” who have been taking advantage of elderly people. The police department posted its warning Tuesday on its Facebook page. One incident was thwarted, but the culprits were paid in another incident. Police remind residents that door-to-door solicitors need a permit in the city. Call police if tree trimmers knock on your door uninvited. Ohio Attorney General Mike DeWine offers tips to avoid tree-trimming scams. Beware of a tree trimmer who…

Icas Network, Sept. 19, 2017: Tree removal – What you should know

Getting rid of a tree can be a risky and complex task if you do not know how to do it in a correct manner. It is something that should never be endeavoured by someone who is not skilled in tree removal to prevent serious accidents. If you flop the tree removal it could lead in a re-growth of the tree from a stub that was not managed in a proper manner. It could also lead to destruction to cars, power lines, homes, and people. In case, you have a tree that needs to be detached there are some groups that give support to help pay for the tree to be removed. Furthermore, some groups charge no fees at all. Tree removal begins with a tree valuation and the location of the tree. To be sure that the tree is taken out in a safe manner the tree trimmer needs to chalk out the procedure. They need to safeguard that it is done with least harm to the objects around it. If the tree is close to power lines or a home the path of the fall of the tree must be calculated accurately…

Florence, Alabama, Courier-Journal, September 19, 2017: O Mythmas Tree! Debunking the myths behind the real vs. artificial tree debate

Here comes Santa Claus … and a sleigh full of confusion about Christmas trees. Better to buy real or better to buy artificial? Popular myths are that real trees are bad for the environment, artificial trees make more financial sense and real trees are just a hassle, but read on for some facts that will set the record straight and some thoughts that might turn your head on some of the more subjective sides of the debate. If your No. 1 concern is the environment, your No. 1 choice should be a real tree. Growing, using and recycling real Christmas trees is good for the environment. Research shows that when compared on an annual basis, the artificial tree has three times more impacts on climate change and resource depletion than the natural tree. Real Christmas trees are biodegradable and can even be recycled or reused for mulch, and every year the circle of life continues. Artificial trees are petroleum-based products and most are imported from overseas. Many are thrown away seven to 10 years after they’re purchased, and every year the landfills where they will stay (literally for centuries) get a little bit bigger…

Rochester, New York, Democrat & Chronicle, Sept. 18, 2017: Upstate hemlock trees under attack from woolly invader

The dabs of white on the twigs of hemlock trees could be fresh, wind-driven snow. But they’re nothing so benign. Instead, they’re the telltale signs of tiny insects that are slowly sucking the life out of the hemlocks on which they’re found. Hemlock woolly adelgids, aphid-like insects that create the white egg sacs, are a conspicuous entry on a growing list of invasive species that are threatening or outright killing western New York trees. Joining them in the rogue’s gallery are fungi, beetles, moths, planthoppers and other insects — all of them foreign to our region, some ushered into New York by rising temperatures associated with climate change. “There’s just a lot of stuff that’s popping up. It’s now become an epidemic. It seems like we’re dealing with more diseases and more pests,” said Gary Koplun, a forester with the state Department of Environmental Conservation in Avon, Livingston County. Hemlock woolly adelgids, which are smaller than a poppy seed, first appeared in the Rochester region a decade ago, having slowly migrated northward as warmer winters made local forests a hospitable winter habitat…

Toledo, Ohio, Blade, Sept. 18, 2017: Unsightly black spots on maple trees mostly cosmetic

We live in a crisis-a-day world where television news seems obligated to give us at least one story each cycle that is dripping with fear and angst so it produces cardio-vascular tremors: cyber security threats, gas price spikes, hundred-year storms, race issues, terrorism, and antibiotic resistant bugs — all legitimate concerns and they are all out there, dressed like the grim reaper. There also are plenty of things we worry about that often are not as bad as they initially appear to be: The arrival of Y2K, colorful weather radar images, professional hockey in Arizona, retirement party speeches, family reunions, and the open-all-night drive-thru. Across the local landscape, a frightening-looking scourge has hit many of our maple trees and although this initially appears to be a leaf version of leprosy that certainly has to be a killer, it actually is the fungal version of a sheep in wolves’ garb. To accompany its dreadful appearance, this malady has an equally unsettling name — tar spot — and its large, dark lesions are quite menacing looking. But this is not the plague many homeowners fretting about their landscaping perceive it to be…

San Diego, California, Free Press, Sept. 18, 2017: Rare and endangered Torrey Pine trees should be tested for aluminum poisoning

Torrey Pines State Natural Reserve just north of San Diego is a majestic wilderness with views to the ocean, scenic sandstone cliffs and is home to one of the world’s rarest pine trees, the Torrey Pine.  Anyone who has visited Torrey Pines Reserve in the past two years will have seen the large numbers of trees that died.  You see them along both sides of the main road to the visitor center, along Guy Fleming Trail, and several other locations.  As I watched them die, I wondered why nobody was testing the soil, analyzing tree samples, or doing anything that might help determine the cause.  I wanted to do something but didn’t know what. The media reported that the die-off was due to drought and beetles, but Torrey Pine trees were dying on the irrigated Torrey Pines Golf Course too, which is right next to the Reserve.  Drought couldn’t be the cause of their deaths. I started doing my own investigation and found the aluminum level in tree bark was high.  The analysis showed 418 parts per million (ppm) of aluminum…

New York City, News12, Sept. 18, 2017: Woodlawn homeowners frustrated with city over hazardous tree

Homeowners in Woodlawn are frustrated about a city-owned tree that they say has mangled their sidewalk. The McCarthy family has lived on the corner of Kepler Avenue and 239th Street for over three decades. They say in recent years they have been battling the city to repair the sidewalk in front of their home. Technically they can patch up the sidewalk on their own, but they say the city won’t allow them to touch the tree that is causing the problem. They say they are worried the tree, which also has a large detached branch, could harm a home or someone walking through the Woodlawn neighborhood…

St. Paul, Minnesota, KSTP-TV, Sept. 17, 2017: Minnesota seeing growing number of sick maple trees

Many maple trees across the Minneapolis area are sick and have been turning color and dropping leaves before the official start of autumn. Alan Branhagen is the director of operations at the Minnesota Landscape Arboretum. He told the Star Tribune that the arboretum has been flooded with questions about the early leaf drop. “It’s becoming epidemic,” he said of the distressed, yellow-leafed maples, some already with bare branches that have raised curiosity and concern this growing season. Branhagen said rot may be causing the maples to decline. Irrigation systems and thick mulch can result in conditions that are too soggy for the trees. “Sugar maples like it moist but not wet,” Branhagen said…

Raleigh, North Carolina, WRAL-TV, Sept. 17, 2017: University of Nebraska program to train future tree climbers

An assistant professor is working on creating a new regional and community forestry degree program at the University of Nebraska-Lincoln. Eric North tells The Lincoln Journal Star that he’s trying to coin the term ‘Treehuskers’ for the students who participate because UNL students are known as Cornhuskers. North is working in a position funded through the U.S. Forest Service and the School of Natural Resources. North said faculty are busy designing courses and curriculum to create the degree program. It’ll train everyone from urban arborists to conservationists to scale trees safely and efficiently. The program will give students hands-on experiences, such as learn planting, pruning and diagnosing tree problems on an East Campus grove that will double as a learning lab and recruiting tool. “If we could just name the major, it would be ‘People in trees,'” North said. “That’s really what urban forestry and horticulture is about, the human-tree interaction and teaching people how to work with both…”

Spokane, Washington, Spokesman-Review, Sept. 17, 2017: Massive tree that withstood deadly Oso mudslide comes down

In healing, there are seasons. There are moments of strength and moments of loss. For nearly three and a half years, the damaged Sitka spruce has stood guard at the site of the Oso mudslide. More than 100 feet tall, it was the largest tree to withstand the force of the mud. The spruce was buried some two stories deep. As it was uncovered, local carver Bruce Blacker helped fashion a sign from a cedar plank. It reads: “Oso. 10:45 a.m. 3/22/14.” For those who were part of the recovery effort, the tree and the sign have been reminders of resilience. The sight stayed constant while the land changed around them. The mud eventually dried into hillocks. Seed was spread, and the earth turned green again. Now, the grass is waist-high and there are saplings in the distance, closer to the scarp.  Some say it’s getting harder to remember what the neighborhood looked like before, when there were gardens kept and children raised and fish pulled from the river. It doesn’t change, the catch in your throat, even if you drive past every day. Chad White owns Oso’s Evolution Tree Experts. He’d limbed the spruce long before the slide, for the previous owner. He and others have known for a long time the tree wasn’t going to make it. He believes it was suffocated by the mud…

Democratic Underground, Sept. 17, 2017: Key swamp tree faces extinction by beetle; guacamole, root beer supply at risk

A massive extinction event is unfolding before our eyes in the heart of America’s Amazon, where a fungus carried by an invasive beetle from China is wiping out the native redbay, one of the most common trees in wetlands across Alabama and the southeastern United States. Redbay trees, common from Virginia to Louisiana, are succumbing to a disease known as laurel wilt, characterized by the sudden transformation of the tree’s glossy dark green leaves. Once stricken, all of the leaves on the tree wilt on the stems, turning a deep mahogany color as the tree chokes to death. The disease showed up in the Mobile-Tensaw Delta, the famed America’s Amazon, in recent months, and has spread with gathering speed. A survey cruise by through our coastal rivers and the Delta revealed dead trees along every waterway, and in every wetland. Laurel wilt, as the disease is known, has shown up with a vengeance in the last few months. It hits members of the laurel family, which also includes both sassafras and avocado trees. So far, there appears to be no way to stop it. That’s a frightening prospect for another reason, as sassafras roots are used to make root beer. In one fell swoop, a single disease could potentially wipe out redbay, and threaten U.S. production of both guacamole and root beer…

US News and Report, Sept. 14, 2017: Scientists: Ash tree species pushed to brink of extinction

A scientific group says five prominent species of ash tree in the eastern U.S. have been driven to the brink of extinction from years of lethal attack by a beetle. The International Union for Conservation of Nature says tens of millions of trees in the U.S. and Canada have already succumbed, and the toll may eventually reach more than 8 billion. The pest is the emerald ash borer, which was accidentally introduced to North America in the late 1990s. On Thursday, the scientific group classified the green, black, white, pumpkin and blue ash as “critically endangered…”

Greenville, South Carolina, WHNS-TV, Sept. 15, 2017: Clemson professor weighs in on “when to cut your tree”

Darin Beasley says his wife planted a pine tree that once stood in his front yard nearly 50 years ago. When Irma came through Anderson County, the tree toppled over from the winds. It took out a transformer and blocked the road for 24 hours. “If it was dead, I’d cut it down,” said Beasley. “But it was alive so I was going to let it live.” Many trees crashed down around the Upstate. Some because of the winds like Beasley’s pine, but others may have been dead. Dr. Steven Jeffers is a professor of plant pathology and extension specialist at Clemson University. He specializes in disease in plants, and says those dying trees are accidents waiting to happen. “Most trees do not give you any evidence that they’re weak or about ready to fall,” said Dr. Jeffers…

Glens Falls, New York, Post-Star, Sept. 14, 2017: Foliage turning early for some types of trees, but good season forecast

Those who enjoy looking at fall foliage should see better color this year than the past couple of years, and it may come a little sooner for some types of trees. A drought that plagued the Northeast for nearly two years stressed trees in many areas, causing them to drop leaves prematurely and show little color change. This year, though, lots of rain in spring and early summer ended the drought and made for a more normal summer for color-producing trees. Some maple trees, though, are turning early for reasons that are not clear. Pete Olesheski, senior naturalist at Up Yonda Farm in Bolton, said conditions are setting up for a better fall of leaf peeping this year than the past couple of years. Trees are not stressed by the weather as they were in 2015 and 2016, he said. “I think there will be better colors,” he said. “When it was so dry, some of the leaves just turned brown…”

Atlanta, Georgia, WGCL-TV, Sept. 14, 2017: Homeowners confused about responsibility after downed trees

Thousands of trees fell down after Irma swept through Georgia. Josh Marotta with Atlanta Arbor has been inundated with calls. Homeowners are confused with what they are responsible for. “A lot of insurance won’t cover it unless it’s on your house, shed, driveway shed, garage, car [or] something like that,” says Marotta. But here is the tricky part — when a tree falls over onto a neighbor’s property, a homeowner is often left to wonder if he or she is liable. Most people assume that they are liable since it is their tree. However, this is not always true. “Wherever a tree lands is where the ownership lies of the tree, so if your tree falls on my house, I have to take responsibility of it” says Marotta…

San Francisco, California, KNTV, Sept. 13, 2017: Tree topples onto parked cars in SF, One person rescued: SFFD

Fire crews on Wednesday responded to a fallen section of a tree on some parked cars in San Francisco, according to the San Francisco Fire Department. A section of a large tree toppled at Clement and 38th Avenue a little before 3:30 p.m., and there was one man trapped inside a vehicle, a fire official said. Firefighters at the scene said the man appeared to be OK. They were able to extricate him by about 3:55 p.m. No injuries were reported…

Bad Axe, Michigan, Huron Daily Tribune, Sept. 13, 2017: Scientists: Future of oldest tree species on Earth in peril

The bristlecone pine tree, famous for its wind-beaten, gnarly limbs and having the longest lifespan on Earth, is losing a race to the top of mountains throughout the Western United States, putting future generations in peril, researchers said Wednesday. Driven by climate change, a cousin of the tree, the limber pine, is leapfrogging up mountainsides, taking root in warmer, more favorable temperatures and leaving no room for the late-coming bristlecone, a study finds. Researchers compare the competing tree species to a pair of old men in a slow-motion race up a mountainside taking thousands of years, and climate change is the starting gun. “Limber pine is taking all the good spots,” said Brian Smithers, a Ph.D. candidate at the University of California, Davis, who led the research. “It’s jarring…”

Columbus, Ohio, Dispatch, Sept. 12, 2017: Chain-saw-toting nun cutting Irma debris becomes online sensation

A Florida nun is pitching in on the cleanup efforts following Hurricane Irma by taking a chain saw to downed trees while dressed in her full habit. Miami-Dade police posted video of Sister Margaret Ann at work on social media taken by an off-duty officer who came across her. Police said the nun was cutting trees to clear the roadways around Archbishop Coleman Carrol High School near Miami. Sister Margaret Ann is the school’s principal, according to its website. Police said “acts of kindness” like Sister Margaret Ann’s remind residents that they’re all part of the same community…

Jacksonville, Florida, WTLV-TV, Sept. 13, 2017: Man’s home uninhabitable after government tree falls during storm

“I’m scared to open up my front door,” Denton Bailey said while climbing under, over, and through tree limbs that fell during Hurricane Irma just to reach his house. The roof and ceiling in his Ida Street home in Northwest Jacksonville have caved in after the storm. The two-story home is invisible from the street. “That’s the city tree that fell down on top of my house here,” Bailey said while pointing to a giant fallen tree whose limbs, entangled with other trees, engulf his home. “That’s a city tree! It’s on city property line,” Bailey exclaimed. What has Bailey and his neighbors particularly upset is that they claim to have warned the City of Jacksonville on multiple occasions that the tree was dead, dangerous and could come down at any time…

New York City, Daily News, Sept. 12, 2017: Mom whose spine was fractured in Central Park tree fall plans $200M lawsuit

A mother who was badly hurt trying to protect her kids from a falling tree in Central Park plans to file notice Wednesday of a $200 million lawsuit against the city, her lawyer said. Anne Monoky Goldman fractured her C-1 vertebra on Aug. 15 while protecting her three children from the toppling tree on West Drive near W. 62nd St., attorney Jordan Merson said. Her 2-year-old son, Grant, suffered a concussion and bleeding around his brain. “A whole family’s lives have been turned upside down,” Merson said. The 39-year-old mother, who works in social media for the fashion company Tory Burch, faces a grueling recovery. “She’s not allowed to move her neck for at least two to three months — that is a form of torture,” Merson said. “She can’t pick up her baby, she can’t breastfeed, she can’t do her job…

Orlando, Florida, Sentinel, Sept. 12, 2017: Hurricane Irma: How to find tree trimmers and fence contractors

Fence contractors and tree-removal companies are overwhelmed with calls in Central Florida after Hurricane Irma. Beaver Tree Service in West Orlando posted a notice on Facebook that customers should text them with a photo of their problem instead of calling. Owner Tim Jennings said he had 231 photos texted before noon Tuesday. “We are prioritizing based on quality-of-life issues before inconveniences,” the company said in its post. Trees were lying on houses, fences, roads and cars. Even more serious, some huge trees were leaning and still in danger of falling into homes. Several state agencies warned consumers that contractors from across the nation would descend on Florida, and that not all of them would be qualified — or honest. The most important thing is to verify the person you hire has a proper license to operate in Florida, which you can do on the state’s website at…

American Web Media, Sept. 12, 2017: If you see a bent tree like this in the woods, it has a meaning very few people know about

Nature is capable of doing countless things. Plants and trees can survive stark conditions and grow in all sorts of directions just to get more sunlight and thrive better. And if you see a tree bent in the woods, you’d probably just assume it just grew like that for some reason. But that presumption might not just be wrong, it could be unfortunate. American Forests, a non-profit that is more than 100 years old and still works to conserve the landscape of our great country, revealed that bent trees might have a much more significant meaning. Learn what it is below. Bent trees in the woods are sometimes “landmarks that helped guide indigenous people on their way,” American Forests’ former managing editor, Katrina Marland, said. “Native Americans would bend young trees to create permanent trail markers, designating safe paths through rough country and pointing travelers toward water, food or other important landmarks.” Because these trailer markers happened centuries or decades ago, the trees are much bigger than their sapling former selves…

Atlanta, Georgia, WXIA-TV, Sept. 12, 2017: Homeowners: City tree removal process is part of the problem

Some Atlanta homeowners say the city makes it too hard to cut down danger trees. Log by log, David Packwood cleaned up storm debris outside his home on Tuesday. It’s a chore he’s grown used to for years. “Since I’ve lived here, I’ve seen the street closed 10 times at least from trees down…there’s always something,” he said. As Irma passed through the area on Monday, trees knocked out electricity on Packwood’s street. Packwood believes the city’s tree ordinance exacerbates the problem. The city requires homeowners to get permission before cutting any tree down. “I’m all for preserving the trees, it’s what makes Morningside beautiful,” he said. “But it’s becoming a little bit of a problem…”


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


Case of the Day – Thursday, September 21, 2017


They may just be the best doughnuts on earth ...

They may just be the best doughnuts on earth …

On Tuesday, we took up the case of a chagrinned Mazda RX-8 owner. Why was he unhappy? Was it the 18 mpg he got from the rotary engine? Was it the high-priced premium gas he had to burn? Was it the squirrely techniques he had to master for handing the temperamental little Regenesis engine? Of course not! RX-8 owners love their cars. Our guy was unhappy because a limb from his landlord’s tree had fallen on his pride and joy. He wondered whether he could sue.

The answer is, of course, sure he can sue. But, you ask, can he win? That’s a different question altogether. We tried to take up a collection to finance his lawsuit, but we got distracted once we had enough for a box of Lerch’s doughnuts. In the alternative, all we can do is consider his question. And we have an answer — a resounding, 9,500 r.p.m. “maybe!”

The car was damaged, the sandwich was a total loss. A tragedy of epic scale ...

The car was damaged, but Ms. Israel’s sandwich was a total loss. A tragedy that easily rivals the plagues visited on Pharaoh’s Egypt …

In Tuesday’s post, we looked at South Carolina’s duty of care for rural landowners. In today’s case, we see that the duty of care that urban or residential landowners owe to invitees and passersby is much stricter. Ms. Israel was sitting in her car one breezy spring day enjoying what was arguably the 21st best barbeque in the South when a large branch from a neighboring property fell on her car, destroying it and her sandwich. She was troubled about the damage to her car; she was devastated by loss of the uneaten sandwich. So, naturally, this being the United States of America, she sued everyone.

The trial court awarded her thousands of sandwiches worth of damages, but the Court of Appeals reversed. As the owner of property in a residential or an urban area, the neighbor had duty to others outside of his land to exercise reasonable care to prevent unreasonable risk of harm arising from defective or unsound trees on his premises, including trees of purely natural origin. The evidence showed that the decayed tree could be seen from the ground. So the tree’s owner was toast.

But the Court wasn’t willing to serve any barbeque up on the toast. The owner of the pulled pork stand had a duty to his customers to exercise reasonable or ordinary care, measured by his ability to anticipate danger. In the absence of evidence that the restaurant owner either saw or could have seen the decayed limb from his property, he wasn’t liable.

The scene of the mishap - Orangeburg - is n the center of South Carolina "mustard-based" country.

The scene of the mishap – Orangeburg – is in the center of South Carolina “mustard-based” barbeque sauce country, a fact probably having nothing to do with the falling tree branch or the subsequent lawsuit …

So away from the succulent pork (covered in a mustard-based sauce, no doubt) and back to the gutsy little RX-8. The landlord certainly has a duty to his tenants, who are, after all, invitees. And we suppose the house is in a residential area. But was it clear from the ground that the limb was about to let go? If so, the landlord had a duty to fix it. If it was just one of those things, well … that’s what they call an ‘act of God.’

Israel v. Carolina Bar-B-Que, Inc., 292 S.C. 282, 356 S.E.2d 123 (Ct.App. S.C., 1987). Charlotte Israel sued for injuries she received, when a large limb from a tree on property owned by Andrew Berry, Trustee, fell over and onto the car in which she was seated and which was parked in the parking area of the Carolina Bar-B-Que. She sued both the owner of the real estate on which the tree was located and the owner of the land onto which the tree fell.

The next-door lot (the “Berry lot”) was 173 by 135 feet, on which there were a number of trees. Some large water oaks, planted about 1911, were located about 25 to 30 feet from the BBQ property line. These trees had received a radical pruning in 1971. Pictures showed visible signs of decay and rot in one of these trees. Some smaller oaks, planted about 1955, were located some 4 to 10 feet from the property line, between the large water oaks and the BBQ parking lot. These trees were bushy with some limbs overhanging the barbeque operator’s property, and having trunks of no more than 12 inches in diameter. A picture showed these trees in their relation to the barbeque parking lot. The Carolina Bar-B-Que owner occasionally pruned branches off those trees to the extent they were overhanging his lot. The limb that hit the car came from one of the large water oaks, and had a diameter of between 12 and 25 inches. The limb was so large that the Israel car was, in effect, totally destroyed.

The Carolina Bar-B-Que’s manager said that no limbs from the large tree were overhanging his property. He noticed no decayed limbs on these trees. He surmised that the high winds that day “pushed [the limb] out” onto the Barbeque property. When he later removed the trees on this lot, he discovered only one tree in “bad shape” and it was not the tree from which the limb fell. A police officer who investigated the accident said that limb was about 25 feet long, and that he saw a tree from which the limb apparently came. He admitted that he couldn’t testify that there was a decayed portion of the limb visible from the Barbeque lot. However, the tree could have been inspected from the Berry property.

Ms. Israel sued the trust owning the Berry lot and Carolina Bar-B-Que. The jury awarded an $80,000 verdict (or about 27,119 really good BBQ sandwiches) against both the Barbeque and Mr. Berry. They both appealed.

crush160720Held: The Court reversed the judgment against the Barbeque, but affirmed it against the Berry trust. The Court admitted that at common law, Berry would not have been liable for falling tree or limb. However, the realities of modern life had modified the rule. A landowner in residential or urban area has duty to others outside of his land to exercise reasonable care to prevent unreasonable risk of harm arising from defective or unsound trees on his premises, including trees of purely natural origin.Here, the Court said, the evidence support ed finding that Berry, the owner of the land from which the tree limb fell, was negligent. The tree was partially decayed, the limb’s dangerous condition and the likelihood of its falling could have been observed by reasonable inspection, and a reasonable person should have been aware of the danger which the decayed limb posed to persons on the adjoining property.

The Barbeque owed to a duty of care to the invitees or business visitors, one of exercising reasonable or ordinary care for the invitee’s safety. Reasonable care required by a business with respect to its invitees is measured by ability of reasonably prudent man to anticipate danger under conditions known or reasonably anticipated to exist. In the absence of evidence that the BBQ owner either saw or could have seen a dangerous condition from the Barbeque property with regard to a tree limb on the adjacent property, Carolina Barbeque was not liable to Ms. Israel.

– Tom Root

Case of the Day – Wednesday, September 20, 2017


There’s an old saying that goes something like if you’re not the lead dog, the view never changes. Of course, the obverse of that aphorism is that if you are a lead dog, the view can be stunning indeed.

Appropriately enough, the plaintiffs in today’s case are the Boxers, a pair of top dogs if ever there were any. From their fancy home on South Spalding Drive, they “were accustomed to having an unobstructed view of the hills of Beverly Hills, the Hollywood Hills, and the Los Angeles basin, including the Hollywood sign, the Griffith Observatory, downtown Los Angeles, and-on a clear day-Mounty Baldy 50 miles away.”

But then, in 1989, the City of Beverly Hills had to spoil things by planting 30 trees in nearby Roxbury Park. And not just any trees: the City planted coastal redwoods, which only grow to be the tallest tree in the world. The Boxers doggedly complained to the City, and in 2005, Beverly Hills responded by trimming the trees (but not completely restoring the view the Boxers loved so much). In 2013, the Boxers whined again, “but this time, the City simply ignored Plaintiffs’ concerns.”

So the Boxers sued, claiming that by destroying the view they loved so much, the City had impaired their view and decreased the value of their property.

The 5th Amendment prohibits the government from taking your property “without just compensation.” There are regular plain-vanilla takings, such as when the government bulldozes your house in order to let developers build a fancy high-priced neighborhood with houses, a marina, shops and restaurants.

And then there are inverse condemnations, where the government does not take your land, but just does something else to make it uninhabitable, such as building a sewage treatment plant upwind to your house, planting a freeway embankment in front of your place, or extending a commercial airport runway to your front door stoop.

The Boxers blamed the City’s “plan, design, and maintenance of the redwood trees” for wrecking the view and increasing a risk of fire. The City demurred, which is the legal way of saying “even if everything they say in their complaint is true, they’ve got nothing coming.”

In California, property is taken or damaged, so as to give rise to a claim for inverse condemnation, when it has been physically invaded, or physically damaged, or an intangible intrusion onto the property has that places “a burden on the property that is direct, substantial, and peculiar to the property itself.” But no one has a basic right to an unobstructed view over adjoining property, unless they have contracted with the adjacent property owners for it or the legislature provides for it.

Here, despite the Boxers’ rebellion, there had been no physical intrusion onto their property, and the fact that absent the view of the Beverly hills the property wasn’t worth as much does not constitute a taking or damaging. Imagine the mess were the court to agree with the Boxers: your neighbors’ house is painted a garish color that is an eyesore, or a new hotel goes up a block away that spoils your view of the sunrise, or a new grade school is built in the next block, and playground noise upsets your cats. If changes in the use of surrounding property – or, as here, the incremental growth of trees – that affect the character of the neighborhood in a way you don’t like somehow gives you the right to collect money damages from another, progress would grind to a halt. What would be as bad, you would be as restricted in making use of your property as you could restrict others.

Boxer v. City of Beverly Hills, 246 Cal.App.4th 1212 (Ct.App. 2nd Dist., 2016): The Boxers owned a house on Spalding Drive in Beverly Hills. They filed an inverse condemnation action against the City of Beverly Hills, seeking damages and injunctive relief based upon impairment of the views from their backyards by coastal redwood trees the City planted in Roxbury Park. They complained that they were accustomed to having an unobstructed view of the hills of Beverly Hills, the Hollywood Hills, and the Los Angeles basin, including the Hollywood sign, the Griffith Observatory, downtown Los Angeles, and even Mounty Baldy. Since their planting in 1989, the redwood trees had grown to block the previously unobstructed view. Plaintiffs wanted money, and an order that the City had to trim or remove the trees.

The trial court agreed with the City that as a matter of law, inverse condemnation provides no remedy for impairment of view from private property.

The Boxers appealed.

Held: The Boxers went down for the count. The Court held that for inverse condemnation purposes, property is ‘taken or damaged’ within the meaning of the California Constitution when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself.”

Where there is no physical intrusion, such as in this case, the plaintiff must allege that the intrusion has resulted in a burden on the property that is direct, substantial, and peculiar to the property itself. The diminution in the value of the property alone does not establish a compensable taking or damaging of the property. Rather, diminution in value of the property is just an element of the measure of just compensation when such taking or damaging has otherwise been proven.

The Boxers did not allege any physical intrusion, occupation, or invasion of their property or any physical damage to their property. The trees about which they complained were not located on their land. The Boxers necessarily relied upon the intangible intrusion theory and argued that because a “property owner’s loss of view is an aspect of compensable damage” in eminent domain cases, the impairment of their views is a harm sufficient to support their inverse condemnation claims.

It is not. While “a compensable visibility interest” has been recognized when the government has physically taken part of someone’s property, that interest is not itself a taking or damaging of the property.

The Court held that the Boxers did not have a property right to an unobstructed view, and they did not allege that either the trees in question or anything associated with the trees physically invaded their property, either tangibly or intangibly. Thus, they could not maintain an inverse condemnation cause of action.

– Tom Root


Case of the Day – Tuesday, September 19, 2017


An alert reader sent us a link to a sports car forum recently in which the proud owner of a Mazda RX-8 bemoaned the fact that his car had been hit by a limb that fell from his landlord’s tree. The owner wondered whether his landlord was liable for the deductable on his insurance.

Collisions with trees can be harrowing, whether in a care or on a bicycle.

Collisions with trees can be harrowing, whether in a car or on even just riding a bicycle.

Good question! Because the RX-8 and the tree both are South Carolina, we looked first at Staples v. Duell. In that case, Ms. Staples was driving down a rural road when she came upon one of Mr. Duell’s trees, which had fallen across the road. She came upon it rather suddenly, because she collided with it. She sued Mr. Duell, who was a landowner of some magnitude (about two miles worth of real estate along each side of the road).

Mr. Duell had an employee who was assigned the task of checking the security of the estate, including looking for dead trees, on a daily basis. Somehow, he must have missed this 100-foot pine’s condition. Ms. Staples sued Mr. Duell for negligence.

The Court found for Mr. Duell. It held that in South Carolina, rural landowners have no duty to others to inspect and improve their land. The fact that Mr. Duell voluntarily did so by sending an employee around didn’t create a duty where none existed. And that makes sense: if voluntarily performing a good deed created a legal duty to perform such deeds, no one would ever perform a good deed, that is, to go beyond the minimum the law requires for fear they would become liable for a good deed.

This doesn’t exactly answer our driver’s lament. After all, the landlord may be an urban landowner, and the Court suggests that an urban owner’s duty is different. Also, as a landlord, the tree owner’s duty may be greater. We’ll consider that tomorrow.

Meanwhile, good news from the Mazda front… our hapless sports car owner reported that his landlord’s insurance will cover his deductable.

Mr. Duell owned a lot of trees ...

Mr. Duell owned a lot of trees …

Staples v. Duell, 329 S.C. 503, 494 S.E.2d 639 (S.Ct. S.C. 1997). Ms. Staples was driving from Charleston toward Summerville on Highway 61 when she encountered a dead pine tree in the road. She swerved but collided with the tree, a 100-foot long dead pine.

The tree fell about sixty feet from the roadway and was located on Mr. Duell’s land, a plantation that stretched for about two mile along both sides of the road. In this area, only one residence – a cabin – stood. About 13,500 vehicles a day passed by Duell’s two-mile stretch of land on Highway 61. Duell owned Middleton Place National Historic Landmark, a tourist attraction which received about 100,000 admission-paying visitors a year. The only public entrance or exit to Middleton Place is on Highway 61. Duell maintained a 250-foot buffer zone of trees on both sides of the highway to protect the scenic beauty of the road. Duell’s employee, James Woddle, took care of the woodlands at Middleton Place. Woddle’s job duties included twice a day driving around the perimeter of Middleton Place to inspect the premises. During his inspections, he looked for trespassers, abandoned vehicles, and dead trees.

Staples sued Duell for negligence in permitting the tree to become a hazard. The trial court directed a verdict for Duell, holding that because the land from which the tree fell was rural, he had no common-law duty to discover and prevent the dangerous condition caused by the dead pine tree. Even if Duell had a policy of searching for dead trees along the roadway, his voluntary practice did not create a duty. Duell could have abandoned it at any time and it did not increase the risk.

Staples appealed.

gooddeed140925Held: The Court found for Mr. Duell. To prevail on her theory of negligence, Ms. Staples had to establish that (1) Duell owed her a duty of care, (2) that by some act or omission, he had breached that duty, and (3) that as proximate result of his breach, she had been injured. The Court ruled that as an owner of rural property adjacent to a highway, Duell did not owe duty of care to motorists on highway to inspect and improve his land. Rural landowners have different duties and responsibilities from city dwellers, the Court said, based on the different level of risk posed by defects on rural land and the burden of maintaining larger tracts of real estate. Thus, unlike urban landowners, rural landowners do not have a duty to inspect and improve land.

Mr. Duell’s policy of searching for dead trees on his property was good stewardship, but it did not result in his assuming a duty to motorists for injuries resulting from trees falling onto the road. His policy of examining his trees didn’t increase risk of harm to motorists. The people driving by had no prior knowledge of the policy and thus did not detrimentally rely on it. This of course makes one wonder – if people did rely on Mr. Duell’s perspicacity and gumption, would the Court have turned his voluntary good deed into a duty? A scary thought…

– Tom Root


Case of the Day – Monday, September 18, 2017


crazy160718Summertime has run away from us like the sands of an hourglass. We are mere hours from the autumnal equinox (happens this Friday at 4:02 p.m. EDT, so be prepared to balance your egg and to be disappointed), but the hot weather is hanging on. 
We’re still stopping by the old swimming hole, and reflecting on the sad fact that summer is not so far gone that tragic things cannot happen.

We must make extra effort to be caerfull careful. This might be a good time to consider due care, that is, our duty of care to others.

In a negligence action, a plaintiff generally has to show that (1) the defendant had a duty of care in relation to the plaintiff, (2) the defendant failed to conform its conduct to the requisite standard of care; and (3) an injury to the plaintiff was proximately caused by the failure.

Do you really want to be eating food that's staring back at you?

That’s what “fisheye” is all about: Do you really want to be eating food that’s staring back at you?

The duty of care is a moving target, depending to a large extent on the relationship of a defendant to the plaintiff. If someone delivering your double-anchovy pizza and atomic wings falls into an open hole in your front yard, the law treats your liability a whole lot differently than if, say, a thief sneaking around at night trying to steal your garden troll statue falls into the same hole. (But even if the law doesn’t wonder, we’re puzzled that you’d order a double-anchovy pizza).

No-DivingIn today’s case, a young man was paralyzed for life when he dove into the lake at his parents’ house. He had made the same dive countless times before, but the defendant in the case — the non-profit corporation that owned the lake — had recently installed a dredge pipe underwater near the shore. The pipe apparently was just below the surface of the lake.

The lake’s owner argued that the young man was merely a licensee, not an invitee. The difference was crucial, because a licensee pretty much takes the property in the condition he or she finds it. The trial court agreed that the plaintiff was much more than that, and after a jury trial, the young man was awarded $1 million.

The appellate court looked at the corporate purpose of the non-profit lake owner, as well as the terms under which it acquired the lake from the public utility that had owned it previously. Both required that the lake be maintained for public purposes, despite being ringed with private homes, and that evidence convinced the Court of Appeals that the young man wasn’t just someone who was using the lake with the permission of the defendant non-profit corporation. Instead, he was an invitee, someone to whom an invitation had been extended to enter or remain on land for a purpose for which the land was being held open to the public. As such, the landowner had a much higher duty of care to the young swimmer, a duty it violated by not being more careful in installing and marking the dredge pipe.

Not all shallow water is so well labeled.

Not all shallow water is so well labeled.

Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475 (Ct.App.Ind., 2007). Twenty-six year old Justin Stichnoth was visiting his parents at their house located on Lake Shafer. During a conversation that day, Justin’s father, Kerry, told Justin about a dredge pipe that Shafer & Freeman had installed in the channel near their dock. Kerry explained that recently he had gotten his boat “hung up” on the dredge pipe. Shortly thereafter, Justin took a running dive off of his parents’ dock into the channel, something he had done often over the years. Justin struck his head on the dredge pipe, which was located on the channel floor about 17 feet from the dock. Justin was left a paraplegic. He sued Shafer & Freeman, alleging that the firm’s negligence caused his injuries because it didn’t warn that there was a pipe underwater, it didn’t mark the pipe so that it would be visible to users of the lake, and it didn’t use reasonable care in dredging the lake.

Shafer & Freeman denied the allegations of negligence. Later, it filed a motion for summary judgment on the issue of whether Justin was a licensee of Shafer & Freeman. The trial court denied it, and a jury found it liable to Justin, awarding $1 million to the injured plaintiff. Shafer & Freeman appealed.

Be careful when diving into unfamiliar water.

Be careful when diving into unfamiliar water.

Held: Justin was an invitee. Indiana law holds that a person entering upon the land of another comes upon the land either as an invitee, licensee or trespasser. The person’s status on the land defines the nature of the duty owed by the landowner to the visitor. Licensees have a license to use the land and are privileged to enter or remain on the land by virtue of the permission of the owner or occupier, but they take the premises as they find them. Invitees, on the other hand, are owed a much higher duty of care. The decisive factor with regard to whether a landowner has extended an “invitation” or “permission” is the interpretation that a reasonable man would put upon the owner’s words and actions, given all of the surrounding circumstances. Here, the Court found, the lake was held open to the public, even though it was surrounded by private property, and thus Justin — who dove off a dock and struck his head on a dredge pipe located on channel floor — was an invitee rather than a licensee for purposes of personal injury action. The Court held that the articles of incorporation of Shafer & Freeman, the non-profit corporation that owned the lake, provided that the corporation would protect and enhance the water quality of lake in order to facilitate public recreational use and ensure continued public access.

What’s more, the Court said, the agreement by which Shafer & Freeman acquired the title from the electrical utility, provided that Shafer & Freeman would hold the lake for public, charitable, recreational, conservation and environmental purposes. It is not enough, to hold land open to the public, that the public at large is permitted to enter at will upon the land for their own purposes. As in other instances of invitation, the Court said, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use, and that the public will not merely be tolerated, but is expected and desired to come. When a landowner lets local boys play basketball on his vacant lot they are licensees only. If he installs playground equipment and posts a sign saying that the lot is open free to all children, there is then a public invitation, and those who enter in response to it are invitees.

– Tom Root

Case of the Day – Friday, September 15, 2017


Doug Van Dyne had big plans for getting folks back to nature. He wanted to build a nature trail along a ravine that split his property and that of his waffling neighbor, Eunice North. People could enjoy the birds, the babbling brook, the scent of pine… that kind of thing.

If you ever wonder whether it’s a good idea to get agreements in writing, Doug’s $70,000 mistake will settle that question for you. Because Doug’s nature path would meander a bit onto Eunice’s side of the ravine, he told her about his plans for the trail. Eunice, who admitted that she really had no idea what Doug was talking about, said she just “shrugged my shoulders” and replied that “I guess it would be okay.”

To Doug, that was like the green flag at Indy.  But little did he know that Eunice promptly began to fret about her confused acquiescence. She had trouble sleeping for her worry, and finally asked a friend about the plan. Her friend told Eunice the trail idea was a mistake. Armed with this advice, Eunice said, she reneged. She claimed she told Doug that she didn’t want him around.

“No probalo,” Doug, who had no intention at all of honoring Eunice’s ukase, allegedly said. Regardless of his actual intentions, Doug promised Eunice that he “would go to a different plan.”

That different plan seems to have involved having his contractor run the bulldozers at full throttle instead of half throttle. By the time the diesel fumes cleared, 20 of Eunice’s trees had been ground under Caterpillar treads and the trail encroached on her land.

Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded Eunice $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. It mattered little that Doug and the contractor both told a different story, the bulldozer operator testifying that Eunice had agreed to Doug’s plan. The jury believed Eunice.

Juries do that, often buying one side of the story and not the other, many times against common sense. We don’t know that that happened here, but it sure did not help Doug that he had not bothered to have the property boundaries surveyed before the ‘dozers started dozing.

Much of Doug’s appeal focused on damages. The jury agreed that Doug’s dozing had made Eunice’s side of the ravine unstable. Eunice’s expert testified that there were three ways to repair the damage, but none of the tree would restore the ravine to its pristine state. Doug argued that said because the land could not be repaired to the way it was before the bulldozers rolled through, then the diminution of the fair market value of the ravine was all that matters.

Not so, the court said. The law does not require that the evidence show that the damage can be repaired so as to make the property as good as new. While it is a general rule of Iowa law that the cost to repair property is the fair and reasonable cost of repair not to exceed the value of the property immediately prior to the loss or damage, all Eunice was required to do was to establish a fair and reasonable cost to fix things up in order to arrest further deterioration and make the place as good as it can be made. In this case, Eunice showed that she had three means of stabilizing the steep bank after Doug’s earth-moving frolic, and only one of those made any sense. She established the cost of that repair, and the value of the property before the damage.

Because the damages did not exceed her expert’s $129,000 repair price tag, it was clear the jury fulfilled its function in weighing the evidence.

Next time, Doug, get the landowner’s OK in writing. Call a surveyor. Stake the property boundaries. Surely that’s cheaper than $71,000.

North v. Van Dyne, Case No. 16-0165 (Ct.App. Iowa, Sept. 13, 2017). Douglas Van Dyke hired Heck’s Dozer, Inc., to build a trail along a ravine between his property and adjacent land owned by Eunice North. Twenty of North’s trees were removed during the trail’s construction, and a portion of the completed trail encroached upon North’s property. Doug said Eunice gave him permission. Eunice said she initially sort of equivocated, but later told Doug in no uncertain terms that he was to stay off her land.

Doug said he would do so, but he never had the land surveyed or staked, and his guess as to the location of the property line was by guess and by gosh. Doug’s contractor said he met with Eunice, and she approved the plans. Eunice said she had never met the contractor.

Eunice testified that after she told Doug to steer clear of her property, she heard a “‘loud commotion.’ Standing on her deck, she saw ‘two pieces of heavy equipment’ below and ‘trees… flying.’ She decided not to go into the ravine to check on the commotion because she was ‘afraid’ she would get ‘hit with something,’ and she had physical difficulties getting ‘down there.’ Suspicious of an encroachment on her land, she commissioned a survey. The surveyor confirmed her fears.”

Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded her damages of $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim, Doug appealed.

Held: Eunice amply proved that Doug should pay treble damages under Iowa Code § 658.4 (2013). The statute requires the damage to trees be committed willfully or without reasonable excuse.” The term “willfully” has been characterized as an intentional and deliberate act without regard to the rights of others. Here, the Court of Appeals said, a reasonable juror could have believed that Eunice said “no” the jurors could have found Van Dyke “acted… without reasonable excuse.”

The jury additionally could have found that Doug’s failure to commission a survey before building the trail denied him any reasonable excuse for the trespass. The testimony established that Doug relied on an “old fence,” “old posts,” a “shed,” and a “roofline” to gauge the boundary.

The measure of damages is the cost of repair, as long as that cost does not exceed the value of the property prior to the damage. Doug complained that because Eunice’s expert testified only that the continued deterioration of the property could be stopped by stabilizing the steep bank, she was not able to show that the property could be repaired to its original state.

The Court of Appeals held that nothing requires that the repair estimate be enough to restore the land to its state before the damage. As long as Eunice provided evidence of the fair market value of the land before and after the damage, and a repair cost that is less than the value of the place before the damage – which she did – she met her obligation. Here, the damages awarded by the jury were higher than Doug’s estimate of $2,500.00 to fix it, but well below Eunice’s estimate of $127,000. Plus, the jury’s $50,000 award for trespass and lateral support was well below Eunice’s evidence that the land was worth $250,000.

The damage to the trees was assessed separately, with the value of the lost timber found to be $6,700, trebled to $20,100.

– Tom Root