THE COMPANY WE KEEP
Most of us heard our mothers tell us, once we turned 11 years old or so, that hanging with the wrong crowd could give us a bad reputation. Some of us heeded the advice. A few of us did not but emerged mostly unscathed. Others of us had our halos tarnished.
Scientists have now discovered that trees in every forest “are connected to each other through underground fungal networks. Trees share water and nutrients through the networks, and also use them to communicate. They send distress signals about drought and disease, for example, or insect attacks, and other trees alter their behavior when they receive these messages.”
They may also from time to time convince each other to engage in underage drinking, shoplifting, staying out too late, trying pot and engaging in reckless sexual conduct. That may be how good trees go bad.
Last week, a Michigan court said as much, arguing that if some trees on a property misbehaved and shed branches, breaking power lines, that made it reasonably foreseeable that other nearby trees would do the same.
And why not? The law has a canon of statutory construction, noscitur a sociis, meaning that a word is known by the company it keeps. It’s true for kids, true for words… Why not true for trees as well?
Holmes v. Consumers Energy Co., Case No. 365883 (Ct.App. Michigan, December 4, 2024), 2024 Mich.App. LEXIS 9654. A tree on Jim McGinn’s property lost a branch in a storm. The branch struck a power line, causing it to sag over the street. Brittany Holmes was injured when she drove her car into the line.
Brittany sued Jim McGinn and Consumers Energy Co., the utility that owned the power line, for negligence, alleging that they each had a duty to maintain the trees on the McGinn homestead so that a fallen branch could not create the kind of hazard that injured her. Brittany claimed defendants Jim and Consumers breached their duty by failing to trim the tree despite it having dropped branches in the past that hit the line.
Jim and Consumers countered that they did not owe Brittany a duty and that the storm that dropped the branch that hit the power line that sagged into Brittany’s car was not foreseeable. The trial court agreed that there was no evidence suggesting that the defendants could have reasonably foreseen that this particular branch on this particular tree would fall on the power line, and it granted summary judgment for Jim and Consumers.
Brittany appealed.
Held: Jim was off the hook, but the question of whether Consumers was liable would have to go to a jury.
To establish a prima facie case of negligence, Brittany had to show that the defendants owed her a legal duty, (2) the defendants breached that legal duty, (3) she suffered damages, and (4) the defendants’ breach was a proximate cause of her damages.
In determining whether a duty exists, courts must examine “a wide variety of factors, including the relationship of the parties and the foreseeability and nature of the risk.” No duty can be imposed unless the harm was foreseeable. “The ultimate inquiry in determining whether a legal duty should be imposed,” the Court said, “is whether the social benefits of imposing a duty outweigh the social costs of imposing a duty.”
A utility company, particularly an electric company, is charged with a duty to protect against foreseeable harm and must “exercise reasonable care to reduce potential hazards as far as practicable.” The question is whether it was foreseeable that the particular tree from which the limb fell would drop a branch on the particular line.
Here, records showed four different outages had occurred during the eight-year period preceding the mishap that injured Brittany in 2018. Consumers had responded to outages at Jim McGinn’s property due to downed trees in 2010, 2012, 2013, and 2014. “Given that these particular power lines had been damaged by trees so many times,” the Court ruled, “it was foreseeable that these particular power lines could once again be damaged by trees.”
Consumers argued that imposing a duty in this case would create a “doomsday scenario” in which utility companies would need to take “a scorched-earth approach to vegetation clearance” involving the removal of “millions of trees.” Not so, the Court said:
Rather, we make the simple observation that when trees repeatedly damage the same power line at the same location, it is reasonably foreseeable that this will continue to happen absent some sort of remedial action. We also note that cutting down trees is not the only option for preventing these hazards because there was evidence that the power line was not placed at a safe location, and there was evidence regarding the possibility of the utility line being buried.
The Court said that the fact that another tree caused damage at Jim’s place before is “strong evidence that Consumers failed to fulfill its duty to prevent another tree from causing damage at the same location.” The record contained no evidence that Consumers took any steps to prevent future tree problems. Consumers cited evidence it had followed prevailing industry standards regarding vegetation clearance. The Court was unimpressed: “While this evidence has the potential to be persuasive if presented to a fact-finder, it is not sufficient to prevent this case from being decided by a jury.”
What the Court said it meant by its decision is that “the history of trees damaging power lines at this location created a duty to prevent future damage, and there is a genuine issue of material fact regarding whether Consumers breached this duty.”
It seems more like the Court was ruling that a tree is known by the company it keeps.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 