Case of the Day – Thursday, July 5, 2018

IT DOESN’T TAKE THAT MUCH TO BE RECKLESS

We all have some sense of what kind of conduct is reckless. At least, to channel the late Justice Potter Stewart, we’re pretty good at knowing it when we see it. Riding a motorcycle into a wall at 100 mph while drunk? Yeah, probably reckless. Standing on a ledge at the top of a skyscraper for a selfie? You bet. Lying between railroad tracks while a train passes? We’ll give you that one, too.

But when the law uses the term “reckless,” in fact when the law adopts any standard, the term has to have a specific definition. If not, laws punishing conduct that did not meet the standard would be arbitrary (as well as falling short of their goal of causing people not to be reckless in the conduct of their affairs).

Sorry, Justice Stewart, “knowing it when [you] see it” is trenchant, but it’s not a good way to regulate conduct.

In today’s case, a Buckeye State classic, a car repair business trespassed on a neighboring business’s land to hack away at some spruce trees. The car repair manager thought the trees belonged to his company, but his belief – which flew in the face of the facts – was so heedless of the consequences that the court found him reckless.

We have seen worse cases called mere negligence, and we cannot discount that the trial court in this case was influenced by the extent of the damage to the “visual barrier” between the professional building (populated with the offices of  lawyers, doctors and engineers) and the seamy oil-change-and-lube joint next door.

“Recklessness” let the trial court grant treble damages under Ohio law to the office building owner. Unsurprisingly, recklessness is what the trial court found. Maybe cynicism is creeping into our analyses as we age (we prefer the expression “as we get wiser”), but if the real estate owner had made the same unsupported surmise about the grease monkey’s trees, we suspect his misfeasance would be found to fall somewhere short of “reckless.”  Just sayin’.

ALH Properties, P.L.L. v. Procare Automotive Service Solutions, LLC, Case No. 20991, 2002-Ohio-4246 (Ct.App. Summit Co., Aug. 21, 2002) 2002 Ohio App. LEXIS 4412. ProCare and ALH were adjoining landowners. ALH had an office building on its property, and ProCare operated an auto repair facility. Between the two properties stood a row of large Norway spruce trees, providing a visual buffer between the two businesses. The trees are on ALH’s property, although some of the branches extend over ProCare’s property. ProCare cut branches off of the lower ten feet of the spruce trees, destroying the visual buffer. The branches will not grow back.

ALH sued, alleging reckless injuring of the trees under Ohio Revised Code 901.51. The trial court entered judgment against ProCare for $34,200.

ProCare appealed.

Held: ProCare was liable to ALH.

Do you see any recklessness here?

Section 901.51 of the Ohio Revised Code provides that “[n]o person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another… “In addition to a criminal, the statutes subjects a violator to treble damages for the injury caused.

The Court held that as used in the statute, the term “recklessly” has the same meaning in a civil claim for treble damages as it does in a criminal proceeding for violation of the statute. A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

The Court acknowledged that a privilege exists at common law for a landowner to cut off branches of an adjoining landowner’s tree that encroached on his land. But here, ProCare trimmed not just branches of the trees that faced its property, but also branches facing ALH’s property as well. ALH’s president testified he had not given anyone permission to trim the trees, and that he had previously trimmed branches that hung over his parking area and had removed one of the trees entirely because it died.

ALH offered a videotape its president had made on the day ProCare trimmed the trees, which included his running commentary on the damage done to the Norways, and the property line marker – a large post – was clearly visible. Pictures taken both before and after ProCare trimmed the branches were admitted into evidence. ProCare stores old tires, oil cans, and a dumpster in the area near the trees, and the photos showed how the trees had created a visual buffer from ProCare’s property and alleviated some traffic noise.

Martin Long, a ProCare manager, testified he thought the spruce trees were on ProCare’s property and that he assumed the trees were ProCare’s because “nobody ever took care of them.” He said he trimmed other branches hanging over ProCare’s property on two previous occasions with no negative consequences. While he admitted that on one occasion, one of the Norways, which was dying, had been removed by someone other than a ProCare worker. However, he pointed out, in the spring ProCare would mulch the trees, and no one ever told him that the trees were not on ProCare’s property.

Long believed that only limbs that faced a direction other than toward ALH’s property were cut off. He said that when Myers approached him about ProCare trimming the trees, it was the first indication he had that the trees were not on ProCare’s property. Long admitted that when the spruce that was dying was removed, he did not know who removed it, but he did know that he, personally, had not directed anyone to remove it, nor did he have to pay for its removal. He stated that he thought ALH had removed it because of the risk it posed to ALH’s buildings.

The trial court found that the removal of the tree branches was reckless because Long had reason to know facts that would lead a reasonable person to question whether the trees belonged to ProCare. The trial court held that that the complete removal of a large spruce tree in this row of trees at no expense or trouble to ProCare was an indication that ProCare did not own the trees nor were they responsible for maintaining them. The trial court also noted that Long’s testimony that the only branches cut were those which overhung ProCare’s property was disputed by the videotape and photographs which clearly showed other branches were cut that did not overhang ProCare’s property.

The Court of Appeals found that the trial court’s conclusion that ProCare was reckless was not against the weight of the evidence. The Court held adequate evidence showed ProCare disregarded a known risk with heedless indifference to the consequences when it trimmed branches of trees that were clearly on ALH’s property.

ProCare also argued the trial court’s calculation of damages is against the manifest weight of the evidence.

ALH’s president testified that soon after ProCare trimmed the trees, he contacted two landscaping companies to install arborvitae to replace the barrier. A landscaper submitted a quote for $3,850 to plant 35 arborvitae, although he said planting arborvitae was inadvisable. He also said it was impractical to replace the spruce trees with ones of a similar size, given their 60-foot height. The landscaper provided a separate quote of $18,923 to remove the spruce trees, grind the remaining stumps, and plant a row of Colorado spruce.

A different a landscape contractor testified for ProCare, and said $3,750 to plant a row of arborvitae was appropriate, and that the shrubs would provide an adequate screening between the properties. He quoted $12,200 to remove the Norway spruce, grind the stumps, and plant Colorado spruce. He thought, however, that Colorado spruce would not provide an adequate barrier because they cannot be pruned properly. He recommended planting White Pine instead, because White Pine can be pruned and trimmed more easily than the spruce. His estimate to plant a row of White Pine was $11,400.

The trial court found that the best solution to replace the visual screening between the two properties was to replant trees, but that planting Colorado spruce was a disproportionate expense. It ruled that White Pine was a reasonable tree type for restoration, and awarded damages of $11,400. The amount was trebled pursuant to O.R.C. 901.51, for a total award of $ 34,200.

The court of appeals held that the trial court’s decision was reasonable.

– Tom Root

TNLBGray140407

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