POUND ON THE TABLE
Will Mark and Elizabeth Heil be having their neighbors Stewart and Christina Hines over to enjoy margaritas and the sun set over the ocean? Don’t bet on it for two reasons, neither of which is more likely than the other: First, the Heils and Hines are neighbors on beautiful Hilton Head Island, South Carolina, and thus, it’s physically impossible for them to watch the sun set in the east over the Atlantic. The second reason is that they’re pretty clearly NILOs (neighbors in location only). They may have homes next to each other, but there’s no love lost between them.
The Heils had a vacation home on the Island, next to a house owned by the Hines (who, being more frugal, perhaps, rented it out to tourists). One November, the Heils visited their Shangri-La, only to notice branches from one of the Hines’ healthy oak trees overhanging the house’s roof. They observed no roof damage, and saw nothing to suggest the tree was diseased or failing. Nevertheless, the Heils asked the Hines to do something about it.
The Hines were good neighbors, albeit thrifty ones. They asked the Heils to get some bids from tree services, and the Heils complied with bids in the thousands. The Hines found Sam’s Tree Service, a guy with no insurance, an undocumented worker (attention, President Trump!), and probably a beat-up truck, too, for all we know. But he was properly licensed, and had no record of complaints. More important for the Hines, Sam did the job for a mere $500.00.
Many months later, when the Heils next visited their house, they found a hole in the roof and water damage everywhere. Their insurance carrier denied coverage because inspectors determined that the Hines’ tree had rubbing against the roof, causing the hole. (That alone is worth a whole blog, but we’ll pass on that issue). The Heils demanded that the Hines and Sam pay for the damage, but both declined.
Sam said his climber performed the limb removal while he supervised from the ground, and never stood on the roof. Instead, he was suspended above the roof on a safety harness. The encroaching limbs were tied off, cut and lowered down to the ground. While performing the trimming, Sam’s man noticed only a dented shingle, nothing that would affect the roof’s integrity, so he did not pass on the information about the shingle.
The Heils, of course, sued. They fired a negligence blunderbuss at the Hines, saying they were negligent for not inspecting the tree, for hiring Sam, for paying so little to have the work done, and even for letting an undocumented worker do the trimming. The trial court found no evidence that the Hines had breached any duty to the Heils by failing to inspect and maintain their tree, and by negligently hired Sam’s Tree Service.
The court gave them short shrift, upholding the standard that homeowners have no duty to repair damage caused by their healthy trees of which they are not aware. The Hines hired a tree service within a month of being asked to do so, and no evidence explained why – let alone showed that – Sam’s low price, lack of insurance, or undocumented worker led to the hole that the Heils found in their roof.
The real problem here was that the Heils, apparently unaware of the Massachusetts Rule or too chary to care, left it to well-meaning neighbors to remedy a problem that belonged to them. The Hines’ principal mistake was in not telling the Heils to pound sand to begin with, and to trim the branch themselves.
Sure, you say, but how about the Hawaii Rule? Fancher v. Fagella? To that we say, even if the Heils could have shown that the tree was a nuisance – which on verdant Hilton Head Island, where the vegetation grows prodigiously, might be a real stretch – the costs borne by both parties probably would have been less. The branch was healthy, the cost of remediation was slight, and the Heils are consenting adults who should look after the integrity of their own house.
There’s an old legal aphorism that when your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on both the law and the facts, pound on the table.
The Heils broke the table.
Heil v. Hines, Case No. 2015-001988 (Court of Appeals of South Carolina, Nov. 9, 2016). Mark and Elizabeth Heil had a vacation home on Hilton Head Island, next to a rental house owned by the Stewart and Christina Hines. One fall, the Heils observed branches from a healthy oak tree owned by the Hines overhanging their house roof. They saw no roof damage, and no disease or decay on the tree. The Heils asked the Hines to trim the tree.
At the Hines’ request, the Heils provided bids from tree services, but the Heils hired a local company, Sam’s Tree Service. Sam’s was licensed but not insured, and used a worker who was an illegal alien. Sam’s charged $500.00 to trim the tree.
The following spring, the Heils found substantial water damage in their home from a hole in the roof. Their insurance company denied them coverage, because inspectors found the damage was from a roof hole caused by the Hines’ tree.
The Heils sued, contending that the Hines were negligent for not inspecting the tree, for hiring Sam’s, who must have caused the damage and was too cheap, uninsured and an employer of illegals. The trial court granted summary judgment to the Hines, finding that the Heils had no evidence that the Hines had neglected their healthy tree, or that Sam’s removed the branch in a negligent manner.
The Heils, of course, appealed.
Held: The Court of Appeals ruled that the Heils “produced no evidence from which an inference could be made that [the Hines] breached their duty of care.” The Court held that to make out a claim for negligence, the Heils had to allege facts showed (1) a duty of care owed by the defendant; (2) a breach of the duty by a negligent act or omission; and (3) damage proximately caused by the breach.
Here, the Court said, the oak tree was a live, healthy tree, and the Heils – who didn’t see any roof damage themselves ¬– presented no evidence that the Hines “could have observed, by reasonable inspection, the damage possibly caused by the tree limb.” Note the word “possibly” – the plain fact was that the Heils had no evidence that the tree limb caused the hole, or even when the hole was formed.
What’s more, the Court said, when the Hines were notified the tree needed to be trimmed because it was encroaching on the Heils’ roof, the Hines hired Sam’s Tree Service and the work was completed within a month of notice. The Heils had no explanation – let alone evidence – for their claim that Sam’s Tree Service use of an undocumented worker and its low fee somehow constituted a breach of the Hines’ duty to the Heils.
The Heils had no proof that Sam’s Tree Service performed its work in a negligent way or that “another tree service company would have known or communicated that a single dented shingle was cause for structural concern – if the dented shingle was the cause of the damage.”
– Tom Root