Case of the Day – Friday, December 7, 2018

THAT DOES NOT MAKE SENSE

The news report noted in yesterday’s “And Now the News” feed nagged at me all day. You recall, the report that an Elkhart, Indiana, resident got up one morning to discover that the City had cut down a beautiful 33-foot spruce in his tree lawn – that strip of grass between the sidewalk and street – for use as the municipal Christmas tree.

That does not make sense. Unless Indiana is different from most of the other states in the nation, a property owner whose property lies along a highway (known as an “abutting landowner”) is deemed to own the land to the middle of the highway, with the highway and portions beyond it merely reserved to the City or State (or whatever political subdivision it might be) as a “right-of-way.”

The thing about a right-of-way, which is simply one flavor of an easement, is this: the political entity (we’ll just say “City” here, because that’s the bad guy in the news report) is entitled to use the right-of-way for an intended purpose, a highway. If there comes a time when it ceases being a highway, the right-of-way  is extinguished, and the landowner is free to use the property all the way up to the centerline of the old road as he or she wishes.

And that’s what bothered me so. No one would question the City’s right to remove a tree that somehow created a hazard to the public using the highway. That is simply a reasonable exercise of the City’s privileges under the easement. But here, the City decided to save a few bucks by cutting down a free Christmas tree, not to facilitate use of the highway but instead for the purpose of decorating another part of town.

The article suggested that maybe the whole episode resulted because a prior owner has asked that the tree be removed. Elkhart Building and Grounds Department head Mike Lightner said, “We thought we were doing a good thing by getting a tree removed from the tree lawn, for a resident who wanted it removed, and being able to repurpose it as a Christmas tree for other people to enjoy it instead of hauling it away, while saving the city some money.”

Maybe so, but the City should not be imperiously telling people that it owns the trees in the tree lawn. It can do what it likes with the tree lawn, as long as the act is reasonably related to the purpose of its right-of-way. But it does not “own” the trees.

While I was researching the issue, I stumbled across the obverse situation, where a homeowner who was hurt by a falling tree in the tree lawn blamed the City for not reasonably using its right-of-way, more particularly, not properly discharging its duty to inspect.

Czaja v. Butler, 604 N.E.2d 9 (Ct.App. 3rd Dist. Indiana, 1992). Karen and Joseph Czaja lived along U.S. Highway 6 in Butler, Indiana. There were three trees located on the State of Indiana right-of-way in the front yard of their home. On January 25, 1990 two severe storms blew through the city, causing severe damage in the area and blowing over several trees. The first storm dropped a 12” diameter limb from one of the trees in Czajas’ front yard onto U.S. 6. The City removed it after the first storm passed through.

But later in the day, a second storm hit. Karen was returning from picking her children up from school during the storm. As she was waiting to turn into her driveway from the street, the tree closest to her driveway fell on top of her car, injuring her.

The storms that day caused extensive damage. Roughly eight whole trees were uprooted or broken off, and many others lost large limbs or parts of their trunks.

The Czajas sued the City, alleging city employees were negligent in failing to inspect the tree in front of the Czaja home and in failing to remove the tree which the city knew, or should have known, was dangerous. The City moved for summary judgment, which the trial court granted.

The Czajas appealed.

Held: The City was not negligent.

The City’s evidence described the storms’ intensity that day, including the facts that eight trees were blown over, four other cars were struck by fallen trees and an uprooted tree fell onto the roof of the Butler Quick-Mart. In addition, it filed deposition testimony of the City superintendent that he inspected the Czajas’ tree the following day and found that while the core was rotten to within four inches of the outside diameter of the tree, there were no outwardly visible signs that any part of the tree was dead or rotten. The evidence showed that before the tree fell, the superintendent had no actual notice that the tree was rotten. The tree had green foliage two years before when Joe Czaja spoke to him about removing it so that Czajas could widen their driveway.

In their depositions, the Czajas both admitted that before the tree fell, they had no reason to believe that the tree was likely to fall. Nevertheless, at the trial court, they pressed the argument that the City had an absolute affirmative duty to maintain an inspection procedure concerning all the trees located in its right-of-way along the highway.

The appellate court rejected the Czajas’ position, holding that while the City has a duty to keep its streets reasonably safe, the duty is only triggered when it has actual or constructive knowledge of the dangerous or defective condition. Here the City’s established it neither had knowledge that the tree was defective, nor did it have any reason to know the dangerous condition of the fallen tree.

All the Czajas were able to show was that during the years they had lived there, dead branches occasionally fell from the tree, the sidewalk had buckled from tree roots, and some erosion showed next to the curb near one of the trees.

The Court held that the Czajas’ evidence was insufficient to raise a genuine issue of fact requiring trial. “We take it to be common knowledge that mature trees, as these were described to be, have limbs and branches that die and occasionally fall from the tree,” the Court ruled. “It is also a common experience that the root systems of such trees buckle and crack cement sidewalks laid too close to the tree. Indeed, the city superintendent stated in his deposition that he attached no particular significance to these conditions. The Czajas have not pointed to any evidence supporting the notion that the city should have been forewarned in this particular instance that the tree was in danger of falling. It would be nothing but sheer speculation to draw that conclusion from the evidence relied upon. It follows that the summary judgment was properly granted.”

– Tom Root

TNLBGray140407

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.