Case of the Day – Friday, April 21, 2017

IT WAS SMALL WHEN I PLANTED IT

       It was such a safe vehicle … so it must have been the tree’s fault.

Times change and trees grow. That’s the lesson in today’s case.

Mr. Paredes was driving along I-805 in the driving rain, transporting his daughters in a superannuated Volkswagen with bald tires. He lost control of the VW and it slid down a bank, colliding with a eucalyptus tree located about 25 feet from an on ramp. His 6- and 9-year old daughters died in the accident, and he was badly hurt.

Normally, one would shake his or her head and observe that Mr. Paredes maybe was going too fast, or driving a junker in weather that was too bad, or perhaps engaging in risky conduct by relying on bald tires. But this being America, it had to be someone else’s fault.

Mr. Paredes blamed Caltrans, the California Department of Transportation. It was the agency’s fault, because the trees were closer to the on ramp than permitted by Caltrans standards, and in fact shouldn’t have been there at all. Only problem was, when the trees were planted, they complied with all standards. Even today, they were more than 30 feet from the road and 25 feet from the on ramp. In other words, Caltrans may have set in motion the factors that caused the damage, but it didn’t create it negligently: the construction complied with all standards when built.

Under the law, the agency had to have actual or constructive knowledge of the dangerous condition. Splitting hairs, the Court found that Caltrans knew that the trees were planted where they were planted: after all, Caltrans had planted them. But, the Court said, Caltrans didn’t have knowledge that the trees, located as they were, were dangerous.

It strikes us as maybe parsing things a little too finely. But as we’ve said before, hard cases make bad law. Here, the jury may have gone off on a frolic, and — notwithstanding all of the expert testimony — figured that Mr. Paredes was a little too much at fault to be entitled to much. The Court of Appeals, which is legally disposed to defend a jury verdict anyway, may have agreed.

Driving 60 mph in a beater of a car with bald tires through heavy rain? So exactly who was negligent here? Some workers who planted a tree 15 years ago or the idiot who jeopardized his most precious possession — two little girls — in his haste to get somewhere?

Mr. Paredes claimed the trees were too close to the road ...

Mr. Paredes claimed the trees were too close to the road …

Paredes v. State, 2008 WL 384636 (Cal.App. Feb. 14, 2008). Marco Paredes was injured and his two daughters killed when Paredes lost control of his vehicle in heavy rain, after which the vehicle slid down an embankment and struck a eucalyptus tree. Paredes claimed that California Department of Transportation (Caltrans) employees created the dangerous condition by creating the slope and planting eucalyptus trees within 30 feet of the on ramp without protecting them with guardrails, demonstrating negligence per se as well as placing Caldrons on notice of the defect.

The jury disagreed. It found that the property was in dangerous condition at the time of the accident and was a substantial cause of Paredes’s injury and the death of his children, but it nonetheless concluded that the State did not have actual or constructive notice of the condition in sufficient time before the incident to protect against it. The jury also found the dangerous condition was not caused by a negligent or wrongful act or omission of a State employee acting within the scope of employment.

Paredes appealed.

Held: The verdict against Paredes was upheld. The Court of Appeals observed that California law held that except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The law, the Court said, plainly requires a finding that a public entity’s negligent or wrongful acts created a dangerous condition. It does not impose liability for mere creation of a dangerous condition. In this case, the jury was instructed that the plaintiffs had to establish that negligent or wrongful conduct by a State employee acting within the scope of employment created the dangerous condition. The Court concluded that substantial evidence from State’s expert, as well as Paredes’ own experts, supported the jury’s finding that State did not act negligently or wrongfully in planting the accident trees on the slope along the accident site.

The State’s expert explained that the standard applicable at the time of the planting was Caltrans’s “clear zone principle,” which required only that trees be planted 30 feet beyond the traveled way of the I-805 mainline and 20 feet from the on-ramp. For that matter, Paredes’ expert agreed the accident tree was over 31 feet from the edge of the traveled way of the I-805, and 25 feet from the edge of the traveled way of the nearby on-ramp. Another expert explained that a fixed immovable object under the Caltrans clear zone standard was a tree having a trunk with eight inch diameters or greater. The State’s expert testified that a guardrail would not have been required at the site of the accident tree applying standards prevalent at the time of trial.

The testimony of a single witness may be sufficient to establish substantial evidence, the Court said, and here, the jury as the exclusive judge of credibility was entitled to believe defendant’s witnesses.

Someone should have told Mr. Paredes this ...

Someone should have told Mr. Paredes this …

The Court also concluded that substantial evidence supported the jury’s finding that State did not have actual or constructive notice of the dangerous condition. A public entity has actual notice of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. A public entity has constructive notice of a dangerous condition only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Here, State employees planted the accident tree as well as other trees on the embankment. But the Court refused to fault the jury’s finding that the public property was in a dangerous condition at the time of the accident required it to also find the State had notice of that condition. On the evidence here, the jury could have concluded that the planting of the young eucalyptus tree on the embankment was not dangerous in 1979 or 1980 when that project was completed, but became dangerous only when its trunk grew to a larger diameter. Thus, while State may have had notice of the physical condition it had created — the presence of trees on the slope — the jury was entitled to conclude it did not have notice that the condition was dangerous. Substantial evidence supported such a conclusion, the Court held.

– Tom Root

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And Now The News …

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Jackson, Michigan, Citizen-Patriot, April 20, 2017: Massive oak tree splits in half, smashes several Jackson garages

A large, double-trunk oak tree came crashing down on Jackson’s west side Thursday afternoon, crushing a handful of garages along N. Brown Street. Firefighters with the Jackson Fire Department responded to the 200 block of N. Brown Street just before 4 p.m. April 20, where the towering tree, which had split down the middle, had obliterated one resident’s garage and severely or partially damaged three others. Jackson Fire Capt. Bob Walkowicz, who was on scene with city inspectors around, confirmed three of the structures hit by the falling tree had been condemned by the city. “The inspection department is taking pictures and they’ve already condemned the three structures, the three garages,” Walkowicz said. “They will need further attention (but) we have secured the power to … two garages, where they’re not any threat; the power’s not still on to them…”

New Orleans, Louisiana, WWL-TV, April 20, 2017: Thieves pulling trees out of the ground in Broadmoor

Tuesday, four olive trees were reported stolen, uprooted right from the ground from South Prieur, and General Taylor. Just two blocks down, the same thing had happened to Karen Chustz’s magnolia trees. “One day I’m picking up trash something looks different, and I see a huge hole,” Chustz’s said. “So somebody had stolen three of my trees right out of the ground and left two.” Angered, she gave the other plants to neighbors so thieves wouldn’t have a chance to finish the job. “At the time they had been planted for a year and a half, and so they were so so high,” she said. Of course, some might say, they’re just plants, it’s not a big deal. Owners like Chustz say they’re still personal property and they mean something…

NAS Patuxent River, Maryland, Tester, April 20, 2017: Pax River American elm tree may help save species

From coast to coast, American elms were the tree of choice to line Main Street USA because of their spreading canopies that gracefully arched across roadways and shaded residents below. “Cedar Point Road aboard NAS Patuxent River was also once lined with American elm trees from Route 235 to the water, and along Millstone Road from Cedar Point to Millstone Landing,” said Kyle Rambo, Pax River’s conservation director. “They were a very common tree here, but we’ve lost hundreds of them on the installation due to Dutch elm disease.” Dutch elm disease is a lethal fungus that was introduced in the United States by accident in the 1930s via infected logs from Europe. Spread by bark beetles, it has been responsible for the deaths of American elm trees by the hundreds of thousands throughout the country. “We’ve been watching them go and it’s a painful thing to see; like a piece of America that’s disappearing,” Rambo said. “There are some elms left on Cedar Point Road but you can tell they’re sick. They’re bigger, gnarly-looking trees with dead limbs and sap weeping down the sides of the trunk. There are some expensive treatments, but once the fungus has spread within them, it’s really a losing battle…”

Belen, New Mexico, News-Bulletin, April 20, 2017: Armstrong arrested, cited for defending large trees

A Belen man was arrested Monday afternoon after he says he was trying to save trees from being cut down in his neighborhood. Pete Armstrong, 69, a member of the city’s planning and zoning commission, a member of the Belen Rotary Club and a past president of the Greater Belen Chamber of Commerce, was taken into custody by Belen police and has been charged with one count of assault, a petty misdemeanor. Armstrong brought a piece of one of the trees that were cut down by a company contracted by the city to cut down trees to Monday’s city council meeting. He told the council he would do it again if he could save just one more tree. “There is nothing wrong with it,” Armstrong told the councilors Monday as he held up the large piece of tree for them to see. “It was in front of my neighbor’s yard.” Armstrong, a retired landscaper, told the councilors about his arrest, saying he was talking to the contractor that the city hired to take down trees in his neighborhood. He said it was the eighth large tree that the city had cut down in a week…

Seattle, Washington, KCPQ(TV), April 19, 2017: Tree-cutting West Seattle homeowners fined $440,000; city warns it could have been even more

The city of Seattle is taking a stand against cutting down city-owned trees. Now, West Seattle homeowners who admitted to chopping down dozens of green space trees will have to pay. That price tag for two families is $440,000 as part of a settlement agreement announced Wednesday. The more 70 trees, each about six inches in diameter, used to grow on a steep slope above Admiral Way in West Seattle. The city says the neighbors simply wanted a better view. Trees are a vital resource,” says City Attorney Pete Holmes, “and this settlement puts people on notice that we will not allow any unauthorized cutting of city-owned trees.” This is the partial city view from the front deck view that Marty and Karrie Riemer have at their home where 35th Avenue SW dead ends into the green space. The neighbors across the street, Stanley and Mary Harrelson, face the identical penalties. No one was home at either house when Q13 News reached out for reaction to the settlement. In what amounts to about $6,000 per chopped down tree, it’s a price the city attorney Pete Holmes says is actually a good deal. Holmes says they would have levied much larger fines against the homeowners if the two families didn’t name 11 other neighbors who may have been a part of this and another separate clearing of trees nearby. The second clearing of trees brings the felled tree count to a total of around 150. These 11 neighbors now face similar charges and fines in a new revised legal complaint…

Canandaigua, New York, Daily Messenger, April 19, 2017: Trees to take root in Victor

The tree-killing emerald ash borer made its way into Victor Municipal Park, damaging numerous ash trees in the 47-acre park. Now that crews with the town and village have removed those diseased trees, the ground is ready for planting. On Saturday, April 29, volunteers will dig in for the annual Village of Victor Arbor Day celebration. As in previous events, everyone is invited to join in. Forty trees will be ready to take root in the park on Paparone Drive. The mix of new trees will include: European larch, concolor fir, Norway spruce, London planetree, swamp oak, catalpa, river birch, dawn redwood, elm, Kentucky coffeetree and hackberry…

Ask Ghost, April 19, 2017: How is this even possible, giant tree relocated in India

Finding it hard to digest this VIDEO asGiant Tree Relocated in INDIA is the craziest thing I have ever seen. India is well known for its love for nature, but this time they raised the standards to next level by saving this old tree. This tree in India grew old and helped countless citizens of Nagpur City. But when Nagpur Metro Train route crossed the land already occupied by this amazing tree, Nagpur metro rail corporation limited (NMRCL) decided to do something unthinkable for this amazing tree. Instead of killing or chopping it down for the standing between the Metro Train Route. NMRCL decided to relocate the tree to a nearby spot…

Los Angeles, California, LAist, April 19, 2017: Southern California’s trees are dying, and the effects could cost $36 billion

Let’s clear up misconceptions first: Los Angeles is not a desert. Los Angeles is a semi-arid zone with a Mediterranean climate. The distinction may sound small, almost semantic, but when you look to the hills or the undeveloped lands north of the Valley you don’t see sand dunes, you see oak trees and chaparral. Los Angeles and the rest of Southern California has spent the better part of a century building up its vegetation (a drive down the tree-canopied streets of Bel Air or Pasadena’s Oak Knoll will make this readily apparent), but all that may be changing. The Southland is in the midst of a massive tree die-off. “We’re witnessing a transition to a post-oasis landscape in Southern California,” Greg McPherson, supervisory research forester at the U.S. Forest Service, said, notes the Los Angeles Times. “Many of the trees we grow evolved in temperate climates and can’t tolerate the stress of drought, water restrictions, higher salinity levels in recycled water, wind and new pests that arrive almost daily via global trade and tourism, local transportation systems, nurseries and the movement of infected firewood.” One of these pests is the polyphagous shot hole borer beetle, already found in parts of the Southland. McPherson conducted a recent survey that concluded that the effects of this single beetle could kill off 38% (27 million) of trees throughout Los Angeles, Orange, San Bernardino, and Riverside counties, causing irrecoverable losses to the ecosystem and some $36 billion in economic damages…

CBS News, April 18, 2017: Capitol Hill worker killed by falling branch

A freak accident has taken the life of a Capitol Hill worker. “It is with deep sorrow that we announce the passing of Architect of the Capitol employee, Matthew McClanahan, following an accident on the U.S. Capitol Grounds,” Stephen T. Ayers, the architect of the Capitol, said in a statement Tuesday afternoon. “A large branch of an American Elm fell and struck Matt, who was working nearby on an irrigation pipe. Matt was a talented, dedicated pipefitter in the Maintenance Division of Capitol Grounds. Please keep his family, friends and colleagues in your thoughts and prayers during this difficult time.” McClanahan is survived by his wife, Lauren, and their children Evie and Andrew. He was transferred to a local hospital after being removed from under the tree by the fire department employees and EMS technicians, according to WUSA. The accident happened around 9:15 a.m…

Wausau, Wisconsin, WSAW-TV, April 18, 2017: Thieves stealing trees as demand for birch furniture and home decor skyrockets

Candle holders, coffee tables, coat racks and even bed frames all made of white birch are fueling a bizarre case of tree thefts– primarily in northern Wisconsin and Minnesota. Parks, forests and even private lands have fallen victim. “Most likely it’s going to lodges, cabins, more rustic feeling homes,” said Scottie’s Interiors owner Lecia Marks-Franson. Harvesting the white birch trees without a permit or on land that isn’t owned by the harvester, is illegal. Wisconsin Department of Natural Resources Warden Supervisor Dave Walz said incidents of birch theft cases are on the rise…

Bismarck, North Dakota, KXMB-TV, April 18, 2017: Tree Study Brings New Species to Western North Dakota

“Can’t complain about getting free trees,” says Williston City Forester, Bruce Johnson. And cities like Minot, Bismarck, Dickinson and Williston will be getting plenty of them. As part of a tree study conducted by the NDSU Extension Service, 20 tree varieties will be planted to test whether they will survive in the region. In Williston, homeowners who have previously had a diseased boulevard tree removed from their home will get priority. “This year, we want to use our open boulevards. Trees that were lost to Dutch Elm disease over the last 15-20 years. That way the homeowners don’t have to come up with any money themselves and plant trees in the boulevard,” says Johnson…

Chesapeake, Virginia, AP, April 18, 2017: Tree trimmer dies after being shocked by power line

Police say a tree trimmer has died after being shocked by a power line. WAVY-TV reported Tuesday that the man was suspended in a tree removing some limbs Monday afternoon. One of the branches was touching the man when it also struck a live wire. Police in Chesapeake confirmed the death on Tuesday. Authorities identified him as 39-year-old Muhammad Yahya Abdur-Raheem. He lived in Newport News. Dominion Virginia Power says he worked for Lucas Tree Experts, which the agency contracted for removal services. WAVY said the company has not responded to a request for further comment…

Fox News, April 17, 2017: New database gives tree scientists an important first

Tree lovers, take note: A new database called GlobalTreeSearch has for the first time provided a tally of all the world’s tree species. The answer: 60,065. Scientists from Botanic Gardens Conservation International in the UK spent two years compiling the database, relying on information from 500 published sources and from local experts around the world, reports NPR. In an article in the Journal of Sustainable Forestry, they note that it’s the first overview of all known tree species by scientific name. The database will be “hugely useful for us in prioritizing which ones we need to do conservation action on and which ones we need to do assessments to find out what their status is,” says BGCI exec Paul Smith. Among their findings: Brazil is home to the highest number of species at 8,715, and 58% of trees grow in just one nation, making them vulnerable if whatever country that happens to be is lax on protection…

New England Sports Network, April 17, 2017: This sad attempt to two out tree stump with SUV goes horribly wrong

Among the many interesting things about trees is how deeply rooted in the ground they often are. You’d think this would dissuade people from attempting to yank them out of the ground with anything other than a backhoe, but the world still is filled with many people who throw common sense to the wind. In a video recently uploaded to YouTube by Khaled A., someone can be seen attempting to tow a tree out of the ground with an SUV, and it goes about as well as you’d expect. After putting up with the vehicle’s persistent nagging, the tree finally fights back…

Sonora, California, myMotherlode.com, April 17, 2017: What To Replant After The Trees Die

The Sierra Nevada in is experiencing an unprecedented die off of trees on both private and public lands. Removing dead trees from your landscape is important, especially around the home, to prevent damage from falling trees to homes and infrastructure. Dead trees will also eventually fall to become large fuels on the forest floor leading to more intense fires. It is important to assess what is left after tree removal before considering replanting, as there is often a lot of live vegetation remaining. If you have a significant number of trees left, you may not need to replant. Make a survey of your property; map what is growing and where. Ponderosa pines grow well only in sunny conditions and do not tolerate shade. You may find young pines growing in sunny gaps created by canopy trees dying. Incense cedar and white fir tolerate shade and are often found growing in the understory. Oaks may be doing well where nearby conifers have died. Oaks have the ability to drop leaves during drought and can also re-sprout if their tops are killed. So, even oaks that look dead may be able to rebound. You may want to promote the smaller trees left after the dead ones have been removed. Thin trees out so that available sun and soil moisture is focused on the healthiest individuals. (Some watering of these trees in the summer may help counter stress caused by increased solar radiation.) Consider clearing out shrubs, grass and other competition. Digging up natural conifer seedlings and moving them is NOT recommended as this can harm the tree’s already developed root system…

Spokane, Washington, KREM-TV, April 17, 2017: City council members seek answers in South Hill tree removal incident

Spokane City Council members Breean Beggs and Lori Kinnear are seeking answers after dozens of trees along the South Hill bluff were bulldozed by mistake. A contractor bulldozed a road and removed the trees near the Qualchan Golf Course. As of Friday evening, no involved party has taken responsibility for approving the removal of trees on the bluff. The Parks Department and Avista confirmed that they never gave authorization to a logging company for destruction of the landscape and tree cutting…

AP, April 16, 2017: For tree lovers and woodworkers, there’s beauty in a burl

As you glance up into tree limbs, perhaps searching for some sign of spring in a swelling flower bud, your sight might be arrested by fat, rounded growths on the bark. On some trees, these hard, woody outgrowths — called burls — stand out on an otherwise clear trunk like a goiter. On other trees, the whole trunk might be covered with these masses. If you’ve never noticed these growths before, don’t be alarmed. They cause little or no harm to the tree. That said, burls might — just might — indicate that the tree has been under stress. All sorts of things have been implicated as the cause of burls. For instance, a burl could grow in response to a limb rubbing against the bark, to chewing by insects or some other physical injury. Perhaps the tree experienced or is experiencing some environmental stress — temperatures too cold or too hot, not enough food or not enough sunlight, for example. Diseases have also been held responsible for burls. However, no pathogens are found inside burls when they are cut open. Still, a pathogen could have done its job of inducing a burl, and then skipped on to other adventures. We could also blame genetics, because some tree species are more prone to developing burls than others. Redwoods are renowned for their burls, which are often sold as souvenirs…

Ipswich, Massachusetts, Wicked Local, April 16, 2017: Ipswich DPW worker seriously injured by falling tree

An Ipswich Department of Public Works employee was injured by a falling tree Sunday, according to Ipswich Police Chief Paul Nikas. At approximately 10:20 a.m., Acting Fire Chief Jeff French called into the Ipswich Communications Center requesting a medical helicopter to transport an injured Ipswich DPW worker who had been struck by a falling tree. Ipswich firefighters, along with members from the Massachusetts Bureau of Forest Fire Control and Ipswich DPW crews, were conducting overhaul operations in the forests off Pineswamp Road and Linebrook Road in Ipswich. The overhaul operations are designed to seek out and wet down hot spots left over from Saturday’s forest fires, which 14 area fire departments were called in to extinguish. Fire crews remained on scene conducting overhaul operations later Sunday…

New Providence, New Jersey, TAPInto, April 16, 2016: JCP&L’s 2017 Tree Trimming Program Underway Work Includes 3,600 Miles of Lines and Will Help Enhance Reliability

Jersey Central Power & Light (JCP&L) plans to spend nearly $34 million in 2017 to trim trees along 3,600 miles of power lines to maintain proper clearances around electrical equipment and help prevent tree-related outages. During April and May, the work is being performed in nearly 80 municipalities across JCP&L’s 13-county northern and central New Jersey service areas.“Proper tree trimming helps reduce the frequency and duration of power outages,” said Mark Jones, vice president, Operations, JCP&L. “Our foresters and certified tree experts work year-round to properly maintain trees and vegetation. This work pays dividends in fewer service disruptions, particularly during severe storms that can do tremendous damage to trees, which then have the potential to damage our equipment.” JCP&L’s tree trimming program, conducted by certified forestry contractors under the company’s direction, includes inspecting vegetation near the lines to ensure trees are pruned in a manner that helps preserve the health of the tree, while also maintaining safety near electric facilities. Trees that present a danger or are diseased may also be removed. As part of the notification process, JCP&L works with municipalities to inform them of vegetation management schedules. In addition, customers living in areas along company rights-of-way are notified prior to work being performed. To further decrease tree-related outages, JCP&L’s foresters also are working to educate residents who live near company equipment about the importance of properly maintaining the trees on their own property…

West Palm Beach, Florida, WPTV, April 16, 2017: Study: More beetles can carry disease killing avocado trees

University of Florida researchers say they’ve found more beetles that can carry a disease threatening avocado trees. The redbay ambrosia beetle considered the main carrier of laurel wilt is rare in avocado groves. But in a new study in the Journal of Economic Entomology, plant pathology professor Randy Ploetz said scientists found three more beetles that can carry the tree-killing disease. Ploetz says the study shows that focusing on redbay ambrosia beetles may not save avocado trees from laurel wilt. Jonathan Crane at the university’s Tropical Research and Education Center in Homestead says avocado growers “have known for some time that other ambrosia beetle species” can spread disease in their groves…

St. George, Utah, Independent, April 13, 2017: Topping hurts trees

Every year, there are beautiful trees whose lives will be cut short by improper pruning. The indiscriminate cutting of tree branches can ruin your trees. St. George is a unique city in the desert southwest. We are a community with a wonderful urban forest. Our downtown streets are lined with shade trees. We as a community take pride in our “oasis” in the desert. Our trees provide shade and relief from our hot summer sun. The practice of topping causes a tree to go into stress mode. When a tree is topped, 50 to 100 percent of leafed branches are removed, taking away the tree’s food source. Trees store carbohydrates or “food” in their branches, trunks, and roots. Topping a tree can remove valuable energy stores and a tree’s ability to perform photosynthesis. When all of a tree’s leaves are removed, a tree will sprout water suckers from dormant buds along the remaining branches. Water suckers are fast growing branches that have a weak attachment to the tree’s trunk. These branches are where future branch failures can and will occur…

Seattle, Washington, Times, April 13, 2017: Seeing the forest for the trees: What one oak tells us about climate change

It is the time we wait for all winter, as spring’s first green leaves unfurl. The joy we feel is the thrill of a new season, kicked off by the masterful work of trees. Trees, it turns out, are up to far more marvelous things than we ordinarily think. Mute, passive, unmoving, solitary? Actually, no. Trees talk. Move. Breathe. So numerous are their abilities, and so embedded in a continuum of thrumming life are trees, that to know even one well is to be dazzled. I learned this from one tree, in particular: a big oak I got to know over the better part of two years, from the tossed sunlit glory of its airy crown, to the small skitter of busy lives in the soil at its roots. It all started by working with a scientist and his research crew, probing deeply into the lives of trees at Harvard Forest, a 4,000-acre laboratory of mostly scrappy third-growth trees, on former pastures and farms west of Boston. I was interested as a journalist in looking for new and better ways to tell the story of our changing climate. It has been a yawner for too many — a distant debate about treaties, dueling science and doomsday scenarios. The stakes are high: the function of natural processes; the viability of habitats; even the survival of species, including our own. But the facts won’t matter if we can’t get anyone to pay attention…

Gizmodo, April 13, 2017: Apple is buying all the good trees for its new campus, and the tree people are fighting back

A tough truth about Apple is making headlines this week, and you’d better hold on to your butts, because it is salacious. Apparently, Apple is snatching up all the very best trees for its new campus, leaving local tree purchasers scrambling for solutions. The scoop was buried in a recent San Francisco Chronicle story about construction of the Transbay Transit Center in San Francisco. One of the futuristic travel station’s highlights is a 5.4-acre green roof which will eventually feature 469 trees (nice). The paper’s J.K. Dineen reports on the struggle to find all those trees: Buying trees is a surprisingly cutthroat business. And it’s been especially challenging to locate desirable specimens because Apple has been buying up 3,000 trees for its new Cupertino headquarters. When Greenspan and Trollip found a tree they fancied they would “tag it” with a locking yellow tag, so that nobody else — like Apple — could get it. Eventually all the tagged trees were moved to a nursery in Sunol, where the transbay project team leased 4 acres. Whoa, Greenspan and Trollip are taking this very seriously. And they should be…

Atlanta, Georgia, Journal-Constitution, April 13, 2017: Trees inside sewer lines? DeKalb spends $7.2M to clean them out

For more than 50 years, trees took root and grease built up inside DeKalb County sewer lines. These blocked pipes caused repeated sewage spills and threatened the county’s ability to grow. The DeKalb Board of Commissioners voted 7-0 on Tuesday to clean congested sewer trunk lines for the first time in decades. Government officials hope the $7.2 million cleaning contract will allow the county to add sewer capacity without having to spend far more money on new infrastructure…

San Francisco, California, SFist, April 12, 2017: The Great tree fight: How Eucalyptus Trees have divided Bay Area environmentalists for decades

If you’re relatively new to the Bay Area, and particularly if you’ve never lived or spent much time in the East Bay, it will be news to you that a great many people passionately despise the eucalyptus trees that are clustered throughout the Oakland and Berkeley hills, and around the UC Berkeley campus. The bath-shop-scented, stripe-barked, tall beauties, technically called Tasmanian blue gum trees, have elongated leaves that create a pleasant hushed rustling in the breeze. But they are not native to the Bay Area, and they’ve long been pointed to as a primary culprit in the Oakland Hills Fire of 1991. Many people still love them, have tied themselves naked to their trunks to protect them, and they deny that they have any special flammability and see them as vital habitat for birds and other species. These eucalyptus lovers also don’t think that whatever could be planted to replace them will be any less of a fire hazard in what is already a fire-prone region. The Chronicle’s East Bay columnist Chip Johnson came down on the side of “chop them all down” in a 2015 column about the trees, arguing that “human life tops the list” of things we should be worried about preserving. At the time, a project was set to begin with the help of a $4.6 million federal grant to thin the forest along a 20-mile stretch of the East Bay ridgeline, cutting down eucalyptus trees along with diseased or dying Monterey pines and other non-native species. Johnson quotes a UC Berkeley professor of fire sciences, Scott Stephens, who says the eucalyptus trees are absolutely a hazard even if they aren’t close by. He points to the university’s effort to clear trees on the upper slopes surrounding the campus because the trees can burn at such high intensity that they can deposit embers more than a mile downslope from them. “Given the conditions of the hills and the vulnerabilities of the people living in the area, it’s the right thing to do,” Stephens said, “and the next time we get a great, big fire, we’re going to be happy that we did this…”

Syracuse, New York, WSYR Radio, April 12, 2017: Syracuse Man Arrested For Tree Vandalism

A Syracuse man has been arrested after city police say he caused more than 25 thousand dollars in damage in several city parks. 30 year old David Thomas is accused of using his car to run down over 60 tree at those parks. The parks that were hit include McChesney Park, Schiller Park and Rose Hill Cemetery. Thomas has now been charged with criminal mischief and city police say they don’t know the reason Thomas wanted to damage the trees. Most of the small trees were completely uprooted and damaged to the point that they are now expected to survive if they were replanted…

Pasadena, California, KPCC(FM), April 12, 2017: There are 60,000-plus tree species worldwide, scientists say

Wondering how many kinds of trees there are? There’s now a database that can answer that. Scientists from the U.K.-based Botanic Gardens Conservation International say they have compiled the first-ever comprehensive list of all known tree species, totaling 60,065 different kinds. The database includes information about where each species is found geographically. More than half of those species are only found in one country, the researchers wrote in the Journal of Sustainable Forestry. And many of them are threatened with extinction. The researchers hope the database, called GlobalTreeSearch, will provide a practical tool for conservationists. It could help to develop “species-specific action” for threatened trees, they stated, “as individual tree species face threats that are unique to that species…

Seattle, Washington, KIRO Radio, April 12, 2017: Worker killed in logging accident at Snoqualmie Tree Farm

A worker died from injuries received while operating logging equipment on the Snoqualmie Tree Farm. On Tuesday at about 2 p.m., firefighters from the Snoqualmie Fire Department were called to a report that a logging worker had been seriously hurt while on the job at a site 26 miles into the tree farm. Fire crews were escorted to the site by the Campbell Global Timber Management security division. The trip took about an hour because of the rough terrain. When crews arrived, they found the victim about 500 yards down a steep embankment…

Mansfield, Ohio, News-Journal, April 10, 2017: ‘Shawshank Redemption’ tree – what was left, anyway – cut down

The last remaining vestiges of the tall oak tree beloved by fans of “The Shawshank Redemption” was taken down Saturday by a co-owner of the field in which it stood. Dan Dees said it was time for what was left of the damaged tree, on Pleasant Valley Road, near Malabar Farm State Park, to disappear. His father would like to farm that land, he said. The huge oak tree was featured in a scene in which Red (Morgan Freeman), paroled from prison, walked along a hayfield and removed stones from a rock wall where Andy (Tim Robbins) had buried money embezzled by the warden. The big oak. located a little east of the entrance to Malabar Farm State Park, was a popular stop on the Richland County Convention and Visitors Bureau’s “Shawshank Trail” driving tour, which took advantage of the movie’s wide popularity, encouraging tourists to visit some of the sites where “Shawshank” was filmed…

Agri-news, September 10, 2017: 10 steps to successful tree planting

Successful tree planting depends on a well-planned and executed approach. Lenny Farlee, Extension forester at Purdue University, shared advice about planting trees and shrubs for conservation purposes. “When we think about conservation planting, a lot of it started in the 1920s and ’30s in Indiana,” he said. “It was in relation to some pretty bad choices we had made in terms of landscape management. “There were a lot of agricultural practices done on land that couldn’t sustain those practices. It ended up in a lot of erosion.” Now trees often are planted to provide wildlife habitats, improve environmental quality, provide future timber production, sequester carbon and more. Farlee shared 10 tips for planting trees…

Windsor, Ontario, Star, April 10, 2017: Controversial tree cutting to start next week in transmission corridor

A Hydro One official said Tuesday 100 “danger trees” will be cut down within a six-kilometre high-voltage transmission corridor between LaSalle and Windsor but denies there would be any clear-cutting. LaSalle Mayor Ken Antaya said he heard clear-cutting was the plan for the corridor linking Brunet Park to Windsor’s Keith transmission station, a route which slices through the town’s environmentally sensitive LaSalle Woodlot. “The character of the entire woodlot would be destroyed,” Antaya said, who has called on Hydro One to handle the situation in its right-of-way “in an accountable way.” On Tuesday, the utility was trying to allay concerns. It held a morning news conference followed by an afternoon meeting with Antaya and town councillors to explain its intent. Hydro One area superintendent Jake Zink told the Star there is no plan to clear-cut and create a meadow through the corridor, which runs for two kilometres in LaSalle, from Brunet Park to Todd Lane, and four kilometres in Windsor from Todd Lane to the transmission station. Zink said a total of about 100 “danger trees” need to be taken down, 60 to 65 of them in LaSalle…

Santa Barbara, California, KEYT-TV, April 10, 2017: Man killed in tree-trimming accident near Gaviota identified

The Santa Barbara County Sheriff’s Office has identified 38-year-old Carpinteria resident Marcelino Gorostieta as the man tragically killed in Monday’s tree trimming accident at Hollister Ranch near Gaviota. The Santa Barbara County Fire Department was dispatched to the ranch at 10 a.m. but medical personnel pronounced the man dead at the scene, according to Santa Barbara County Fire Capt. Dave Zaniboni. The victim has not been identified pending next-of-kin notification. The Santa Barbara County Sheriff’s Coroner’s Office is investigating the death…

New York City The Wall Street Journal, April 9, 2017: The oak that shaded George Washington

In a few weeks, my town will bid farewell to its eldest resident, departing this world at age 600. Or 550 or 500—no one knows for sure. The great white oak standing beside the Presbyterian Church in the center of town is one of the oldest of its kind in North America. Even before the announcement last fall that the ailing tree could not be saved, visitors had been arriving in steady streams to gaze at the barren branches, trimmed and truncated—the remains of a once-massive canopy shading the tombstones of 35 Revolutionary War veterans. It’s strange that a tree could elicit feelings normally reserved for a loved one. But that’s exactly the way many think of the great oak: as a beloved figure around which the town grew from a small log cabin built 300 years ago…

Washington, D.C., WJLA-TV, April 10, 2017: Cherry trees damaged by cold temps, tornado in D.C. to be replaced

Days after an EF-0 tornado hopped around the Tidal Basin, a path of destruction is left behind. Twisted branches are scattered, cordoned off by yellow caution tape. Tree trunks are snapped like matchwood. Debris is piled up, among the sawed-off remains of giant trunks. “Mother Nature’s a beast,” says Dan Marcy, a visitor from New York state. “This is a little surprising. I was unaware a tornado that came through last week.” The shriek of chainsaws and the roar of wood chippers echoed across the basin Friday. The National Park Service says nine trees were damaged or destroyed by the storm. Four of them were cherry trees…

AP, April 10, 2017: Forget roses and birds. These folks like their big trees

A program in New Hampshire is working to protect the state’s vast forests, one tree at a time. Known as the New Hampshire Big Tree Program, it encourages residents to search the city’s streets, backyards and woods for the state’s largest trees. Then, a team of volunteers goes out to measure a tree’s circumference, height and crown to determine if they are county or state champs — or just leafy pretenders. More than 700 champions so far have been identified, including 10 that are the biggest in the country. The hope is that by searching for champions, residents will be motivated to protect forests from threats like development and forest pests…

Outdoor News, April 10, 2017, Wisconsin birch trees axed by thieves

People with axes and chain saws are plundering parks, forests and private land in Wisconsin’s Northwoods to cut down thousands of white birch trees. The Wisconsin Department of Natural Resources held a meeting late last week for law enforcement agencies, county foresters and others to address the issue, the Journal Sentinel reported. A story documenting similar activity in northern Minnesota, too, appeared last week on the Outdoor Newswebsite. And, it appears, the incidents are driven by the same thing. Natural resources department warden David Zebro said that many of the trees are sold to decorate homes, businesses and weddings. “It appears to be all market-driven,” Zebro said. “The ornamental market people are paying a lot of money for these types of birch trees. We didn’t see this type of issue a year or two ago, but it’s certainly here now…”

 

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

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Case of the Day – Thursday, April 20, 2017

EVERYONE KNOWS IT’S WINDY


Only a few weeks ago, we saw a tractor-trailer blown off the highway by a 50-knot west wind. And tonight, we had a wild line of spring thunderstorms roar through.

The wind reminded us of the case we’re writing about today. We’re not suggesting that the case has an Association to the 1960’s hit. But it was windy one night near the musical instrument capital of the world, and many trees in Elkhart County were blown over. The county crews worked diligently through the night cleaning up the mess, but Marvin Hochstetler rode his motorcycle down a dark county road in the predawn hours, he found a tree the county hadn’t gotten to — and he found it the hard way.

As he recuperated from his injuries, Mr. Hochstetler hired a canny personal injury attorney. The problem was that that the Indiana Tort Claims Act had an exemption carved out for conditions arising from inclement weather. Our intrepid cyclist’s response was two-fold: (1) this was so long after the storm (a whopping four hours) that it no longer qualified as storm damages; and (2) if the County hadn’t been negligent in maintain roads and trees prior to the storm, the limb he hit wouldn’t have been there. He lost in the trial court, but the Court of Appeals agreed with Hochstetler.

The Indiana Supreme Court wasn’t buying, however. It upheld the trial court, finding that the unrebutted evidence told of widespread damage and hard-working repair crews through the nighttime hours. To agree with Mr. Hochstetler that the limb with which he had become intimately familiar should have been removed prior to 5 a.m. was to hold the County to too high a standard.

mccrash150227Hochstetler v. Elkhart County Highway Dept., 868 N.E.2d 425 (Sup.Ct. Ind., June 20, 2007). At around 1 a.m. on June 12, 2001, Elkhart County was hit by a strong storm that produced many fallen trees and limb. The county started dispatching crews about 1:30 as calls began coming in to the highway garage. There were eventually 56 reports of fallen trees on county roads as a result of the storm.

Among these reports, received about 2 a.m., was a call about a tree down on County Road Four, north of State Road 120. It turns out that County Road Four is some seven miles long, and State Road 120 does not intersect with it. Riding his motorcycle sometime very early that morning, Marvin Hochstetler struck a tree that had fallen across County Road 4.

Hochstetler contended the erroneous report was about the tree he hit. Hochstetler sued the highway department, the county commissioners, and the county sheriff, alleging that they were negligent and careless in maintaining the county road. The county defendants moved for summary judgment on the basis of immunity under the Indiana Tort Claims Act. The trial court granted them judgment.

The Court of Appeals reversed.

The Indiana Supreme Court then heard the case.

association150227Held: The county defendants prevailed. A provision of the Indiana Tort Claims Act provides immunity for losses resulting from temporary conditions of public thoroughfare that result from weather. The Supreme Court held that the provision applied to county highway, sheriff’s departments and county commissioners insofar as the personal injuries went that Mr. Hochstetler claimed to have sustained when he hit a tree that had fallen on a county road.

The unrebutted evidence showed that the storm produced scores of trees and limbs down on roads, county highway crews were on the job almost immediately, and highway crews were still at work hours after storm had passed in middle of the night. The Court agreed that state and local governments may have tort responsibility for damages flowing from negligence, but the Tort Claims Act grants immunity for that negligence under certain specified circumstances. This was one such circumstance, the majority held.

The plaintiff tried to get around the weather exception by arguing that the weather-related hazard went on too long after the storm, and that there was an issue of fact whether poor design and maintenance — not the storm — was responsible. One judge thought the plaintiff had enough of a point so as to survive summary judgment, but the majority of five judges prevailed.

– Tom Root

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Case of the Day – Wednesday, March 19, 2017

YOU’RE A LOUSY LAWYER, DAD

bad160311Every so often, a case comes along that so warms the cockles of our hearts that we just have to share it, despite the fact that it may not be terribly relevant to tree or neighbor law. Today’s case from Delaware is such a wonderful tale.

The case began as a rather prosaic trespass. The homeowners, part of what is essentially a condo association, put their kids’ swingset and play gear on common land. Even after demand was made, the family refused to remove it, so the homeowners association —nonprofit corporation — sued the family for trespass.

Luckily for the homeowners (and we say that with a bit of irony), one of the couple was a lawyer, in a law partnership with his father. The two attorneys proceeded to turn a simple trespass case — in fact, a case which shouldn’t have happened at all, because the trespass was as plain as the nose on your face — into a legal circus, with multiple affirmative defenses and counterclaims. Perhaps the most creative defense: the homeowners claimed that the association was engaged in age discrimination, because the case dealt with a child’s playset, and children are … well, you get, they’re young.

"But, Your Honor," the defendant's lawyer argued, "it was just a tiny little swingset!"

“But, Your Honor,” the defendant’s lawyer argued, “it was just a tiny little swingset!”

We were a bit in awe at lawyer Ramunno’s creativity and legal legerdemain, but the trial court wasn’t. Believe it or not, there are rules against too much creativity and virtuperativeness — embodied in Delaware and many other states, as well as the federal system (see Fed.R.Civ.P. 11) — and here, the Chancery Court held that the Ramunnos and their attorney paterfamilias had crossed the line. What started out as a simple request to “move the playset” ended up a judicial order to “move the playset” … and to pay over $11,000 in the plaintiff’s legal fees.

We love a happy ending.

Fairthorne Maintenance Corp. v. Ramunno, Not Reported in A.2d, 2007 WL 2214318 (Del.Ch., Jul. 20, 2007).  This started out to be a simple case. Louis and Melanie Ramunno own a residence in the Fairthorne development of Wilmington, Delaware. To the rear of their residence is a portion of the 34 acres of private “open space” that is collectively owned and maintained by all of the homeowners in the Fairthorne development through a non-profit corporation known as Fairthorne Maintenance Corporation. By placing a playset, a park bench and other items on about 150 feet of the open space, the Ramunnos trespassed on common association property controlled by FMC. They resisted all demands that they remove it.

fix160311FMC sued for trespass. So far, so good. But Mr. Ramunno was a lawyer, and his partner was his father, who according to the account by the court was a zealous — perhaps over-zealous — advocate. The Ramunnos raised nine affirmative defenses and five counterclaims in their answer, which, they claimed, excused their conduct or required judgment in their favor. The trial court was so taken by the “apparent frivolity” of the answers and counterclaims (for example, the Ramunnos demanded that FMC pay for their playset because it didn’t provide any itself) that it threatened lawyer Ramunno with sanctions).

The Ramunnos backed off of seven of the nine defenses and all but one counterclaim. They then agreed to remove the personal property from the open space, but the parties couldn’t settle because the Ramunnos refused to pay FMC’s legal fees.

Held:   The trial court found that the “simple reality of this case is that the Ramunnos have been trespassing on FMC’s land since December 2005 and have been using this litigation to stall FMC’s landscaping and other projects in order to continue to enjoy the fruits of their trespass.”

You want a lawyer who won't clown around ...

You want a lawyer who won’t clown around …

The Ramunnos argued that as homeowners in Fairthorne they were privileged to use the open space for recreational purposes and therefore were permitted to place their play set there because it occupied little space and could be removed. But the Court held that the playset was large, designed to be permanent, not easily moved, and, in fact, it was never removed from the open space once placed there. Even if the Ramunnos had had some license to use the open space along with Fairthorne’s other residents, the Court said, they impermissibly exceeded that authority.

Trespass can occur despite “authority under [a] license to enter the property” because the actions taken exceed the permission given. It was no defense that the play set only occupied 150 square feet of the 34 acres of open space because there is no de minimis exception to trespass liability.

The court found that the Ramunnos had argued tangential issues designed solely to help them delay the legal consequences of the trespass. The arguments had unduly burdened the court, intentionally delayed resolution of the underlying dispute, and purposefully wasted FMC’s resources. Thus, under Chancery Rule 11, the Court found that the Ramunnos and their counsel, Attorney Ramunno, had acted in bad faith, and the Court ordered a shift of responsibility for fees under the “bad faith” exception to the traditional American Rule. The Court specifically “address[ed] a troubling pattern of conduct engaged in by Attorney Ramunno that does not befit an officer of this court. That conduct began with an adolescent letter writing campaign during discovery, continued with a procedurally improper and substantively baseless letter seeking the court’s recusal from this action, and culminated in the filing of a host of frivolous arguments that were made without sufficient grounding in law and fact.

The Court explained that “the attorney’s duty is one of reasonableness under the circumstances; a subjective good faith belief in the legitimacy of a claim does not alone satisfy the requirements of Rule 11. Where that obligation is not upheld, sanctions, including the imposition of the opponent’s costs, may be imposed. This is so even when frivolous claims are withdrawn.”

Based on a persistent abuse of the litigation process, the Court found that sanctions under Rule 11 were appropriate, and ordered the Ramunnos and their lawyer to pay FMC legal fees of $11,355.93.

– Tom Root

TNLBGray

Case of the Day – Tuesday, April 18, 2017

WHATCHA GONNA DO WHEN THEY COME FOR YOU?

cops150225Many people find it hard to believe that until 35 years ago or so, a citizen was largely without remedy when federal employees violated his or her Constitutional rights. Oh, sure, if the feds beat a confession out of you or took your stash of B.C. Bud without a warrant, you might get the confession suppressed or the fruits of the illegal search excluded from your trial. But this pretty much meant that only the guilty could get their Constitutional rights vindicated.

What if you were like Webster Bivens, whose door was kicked in by drug agents who had the wrong house? In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics403 U.S. 388 (1971), the Supreme Court said that when the government, its agents, its employees, or even its minions, breach a person’s Constitutional rights, a remedy must exist.

Badboys150226Since that time, Bivens actions have been employed (mostly without marked success) by citizens whose rights have been allegedly trampled by federal agents and employees. A lot of those citizens are not in very good positions to begin with (as you can see here at our sister blog). But some are just average Joes, like rancher Charlie Robbins. He bought a ranch whose predecessor had given the federal Bureau of Land Management an easement. But the BLM knuckleheads never recorded it, so when Robbins bought the place, he took the ranch free of the easement. BLM demanded he sign another one. He refused.

What followed was a disgraceful reign of harassment which caused one BLM official to resign, saying “[i]t has been my experience that people given authority and not being held in check and not having solid convictions will run amuck [sic] and that [is] what I saw happening.” But the BLM’s war of attrition was one of a thousand petty slights — trespasses, spurious administrative sanctions, even videotaping of his guests — and Mr. Robbins didn’t have the money or energy to litigate every one of them.

Too bad for him. The Supreme Court held that there was no Constitutional remedy for the non-stop harassment by government employees. Instead, the victim must bankrupt himself or herself by litigating the slights as they occur. It’s like suggesting that the best remedy for a death by a thousand cuts is a thousand Band-aids. And to add insult to injury, the Court held that what would be extortion if inflicted on an East Side shopkeeper by the Mob is perfectly lawful is practiced by a government employee to gain an advantage for the government.

"Nice place," BLM told Rancher Wilkie. "Can we harass you out of it, maybe?"

“Nice place,” BLM told Rancher Wilkie. “Can we harass you out of it, maybe?”

Wilkie v. Robbins, 551 U.S. 537 (2007). Robbins’s Wyoming guest ranch was a patchwork of land parcels intermingled with tracts belonging to other private owners, the State of Wyoming, and the federal government. The previous owner granted the United States an easement to use and maintain a road running through the ranch to federal land in return for a right-of-way to maintain a section of road running across federal land to otherwise isolated parts of the ranch. When Robbins bought the ranch, he took title free of the easement, which the Bureau had not recorded.

Robbins continued to graze cattle and run guest cattle drives under grazing permits and a Special Recreation Use Permit (SRUP) issued by the Bureau of Land Management. Upon learning that the easement was never recorded, a BLM official demanded that Robbins re-grant it, but Robbins declined. Robbins claims that after negotiations broke down, BLM employees began years of low-level harassment of him in order to force him to re-grant the BLM easement. This harassment included an unauthorized survey of the desired easement’s terrain and an illegal entry into Robbins’s lodge. In each instance, Robbins had a civil damages remedy for trespass, but he did not pursue it because the isolated trespass had caused inconsequential damages. BLM at the same time began vigorous — perhaps unduly vigorous — enforcement actions against Robbins, including administrative claims for trespass and other land-use violations, a fine for an unauthorized road repair, and two criminal charges.

Robbins had the opportunity to contest all of the administrative charges. He fought some of the land-use and trespass citations, and challenged the road repair fine as far as the Interior Board of Land Appeals, but did not seek judicial review after losing there. He exercised his right to jury trial on the criminal complaints, and the jury acquitted him after only 30 minutes deliberation. Although the quick verdict tended to support Robbins’ baseless-prosecution charge, the federal trial judge did not find the Government’s case thin enough to justify attorney’s fees, and Robbins appealed that ruling too late.

Extortion is ugly, no matter whether the Mob or Uncle Sam is behind it.

Extortion is ugly, no matter whether the Mob or Uncle Sam is behind it.

BLM also cancelled a right-of-way given to Robbins’s predecessor in return for the Government’s unrecorded easement, a 1995 decision to reduce the Robbins’ special recreational use permit duration from five years to one, and termination of the SRUP and a grazing permit in 1999. Robbins also alleged BLM employees videotaped his ranch guests during a cattle drive, and they attempted unsuccessfully to pressure a Bureau of Indian Affairs employee to impound Robbins’s cattle. Robbins has an administrative, and ultimately a judicial, process for vindicating virtually all of these complaints. Instead, he filed a claim against the BLM employees he alleged had orchestrated and carried out the low-intensity warfare against him to pressure him into granting BLM an easement, claiming that they had violated his due process rights under color of their office, relying on Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, a Supreme Court case from the 1970s that permitted citizens to sue federal employees who had violated their constitutional rights. Robbins also claimed the employees had engaged in RICO (Racketeer-Influenced and Corrupt Organizations Act) conduct by blackmail and extortion (a so-called Hobbs Act violation) in order to obtain a new easement. The trial court threw out the suit, but the 9th Circuit Court of Appeals reinstated it. The BLM sought review from the U.S. Supreme Court.

Held: The Supreme Court dismissed the case against the BLM employees. The Court held that a landowner did not have a private action against BLM’s employees for damages of the sort recognized under Bivens, and the alleged violations of the Hobbs Act and state blackmail statutes by BLM employees in their efforts to obtain an easement over landowner’s property for the exclusive benefit of the Government did not qualify as a predicate RICO offense.

The Court said that trying to induce someone to grant an easement for public use was a perfectly legitimate purpose, and, as a landowner, the Government had a valid interest in getting access to neighboring lands. To permit a lawsuit to redress retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing OSHA regulations. The Court observed that Congress is in a far better position than a court to evaluate the impact of a new species of litigation against those who act on the public’s behalf. At any rate, the Court said, the Hobbs Act does not apply when the federal government is the intended beneficiary of extortionate acts by government employees. given that the alleged conduct did not fit the traditional definition of extortion

The Court found it noteworthy that Robbins had had judicial and administrative remedies for all of the minor annoyances, harassments and inconveniences which he, in the aggregate, claimed merited a Constitutional rights lawsuit. He did not pursue many of these remedies, and those he did pursue he often did not pursue to the end. Given that the wrongs he complained of were not without remedy, the Court was uncomfortable with trying to create a new one, especially one which it feared would spawn so much litigation.

Two justices dissented in part to the decision.

– Tom Root

TNLBGray

Case of the Day – Monday, April 17, 2017

AT THE ZOO

Dick, Jane and Mom have fun at the Zoo ... as long as they can dodge the falling trees.

Dick, Jane and Mom have fun at the Zoo … as long as they can dodge the falling trees.

Simon and Garfunkel told us that the monkeys stood for honesty, the giraffes were insincere, and the elephants were kindly but dumb. We don’t know about that, but they were right when they sang that “it’s all happening at the zoo.”

Just ask Ms. Cherney. She’d tell you that one thing Simon and Garfunkel didn’t mention were the ficus trees. One ficus at the Zoo — the North Carolina Zoological Park — fell on poor Ms. Cherney, injuring her. That began an eight-year legal odyssey through the North Carolina legal system, through the Industrial Commission (which hears tort claims made against the state), the Court of Appeal, the Supreme Court, back to the Commission, and again to the courts.

In the penultimate chapter, the North Carolina Court of Appeals ruled that Cherney had no evidence that the Zoo personnel had any basis to believe the ficus was about to fall. Of course, the evidence also suggested that the whole idea of having a ficus growing too large in an indoor setting and not being properly maintained was rather daft. And whose fault was that? The beavers, perhaps?

A dissenting judge vigorously disputed this, pointing out that the tree had been cabled to a wall to help support it. The very fact that the Zoo believed that cables were needed was evidence that they knew the tree was a hazard, the dissenter argued.

Usually, dissenting opinions are curiosities, but little more. On three-judge appellate panels, 2-1 majorities carry the day. Despite the fact the dissenter probably thought he was talking to himself, he nonetheless explained in detail how the record supported finding the Zoo liable. This time, however, the dissenting judge found that he had some fans – the justices on the North Carolina Supreme Court.

The Supremes reversed the Court of Appeals in a terse per curiam opinion (that means “by the court”) agreeing with Judge Wynn’s analysis.

bracing150225This kind of thinking does raise a conundrum. Bracing or cabling a tree is a well-established practice in arboriculture. There’s even an ANSI standard for it. Could it be that cabling a tree may be prudent from an arboriculture standpoint but legally dangerous? A careful tree professional would probably take from this decision the notion that he or she would be well advised to tell any client for whom a tree is cabled or braced that the very fact the tree was braced means it should be considered to be a hazard tree. That of course would bring with it responsibilities for regular inspection and – just ask Ms. Cherney – notice to people who could be affected if the tree falls.

Cherney v. North Carolina Zoological Park, 648 S.E.2d 242 (N.C.App., Aug. 7, 2007), reversed, 362 N.C. 223, 657 S.E.2d 352 (N.C. Supreme Court, 2008). Tinya Cherney was in the enclosed African Pavilion at the North Carolina Zoological Park near the center when a large ficus tree fell hitting a palm tree. Both trees then fell on her, pinning her to the floor of the walkway in the African Pavilion. The impact caused vertigo, broke her right femur, cracked three ribs, broke her back and wrenched her knee.

The injury occurred because the ficus tree — which was indoors – had been permitted to grow too large for its roots, or alternatively, had not been properly maintained to prevent it from becoming unsafe. The ficus tree was under the exclusive control of the Zoo’s personnel and not subject to wind or any other natural force. A hearing examiner at the North Carolina Industrial Commission awarded Cherney $500,000 in damages. Unhappy at the result, the Zoo appealed.

If your tree needs to be cabled like this, it's time to let it go - preferably not onto a passerby.

If your tree needs to be cabled like this, it’s time to let it go – preferably not onto a passerby.

The full Commission reversed the award and found for the Zoo. Cherney appealed to the North Carolina Court of Appeals, which affirmed the Commission’s claim. She took it the North Carolina Supreme Court, which reversed and remanded. The Commission then entered a second decision denying Cherney’s claim. She again appealed.

The Court of Appeals held that the Commission’s second decision denying Cherney’s claim was proper, even though the Supreme Court had ruled in her favor on her appeal from first decision of the Commission denying her claim. The Court of Appeals agreed with the Commission’s finding that the evidence showed that neither the zoo’s curator of horticulture nor her staff knew or should have known that the ficus tree that fell in the zoo exhibit was likely to fall, and that there was no showing that any member of the curator’s staff violated any applicable standard of care.

In a carefully-crafted dissent, Judge Wynn observed that the evidence showed that when the ficus tree was replanted, “six, seven-strand 3/8 ” cables going in four directions were looped around the tree and attached to the planter walls” in order “to aid the tree in keeping it upright and to assist in monitoring the tree.” The cables were inspected monthly by the Zoo staff. Two of the four cables had snapped when the tree fell on Ms. Cherney. The judge argued that the “very fact that the tree was cabled to the planter walls illustrates that the Zoo and its employees had “express or implied knowledge” that the tree might fall; if there had been no danger, then the tree would not have needed to be cabled in such a fashion, nor would the Zoo employees have needed to monitor it so closely.”

bracingb150225The dissent argued that the question was not whether the tree was likely to fall, as the Commission thought it was. Rather, the issue was whether a Zoo visitor such as Ms. Cherney or one of the tens of thousands of kids who passed through each year – was unnecessarily exposed to danger and was not warned of a hidden hazard. The dissent believed that they were, and the Zoo had a duty to warn visitors of the possibility that the tree might fall.

The North Carolina Supreme Court reversed the appellate panel, and specifically adopted Judge Wynn’s reasoning as its basis for doing so.

– Tom Root

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Case of the Day – Friday, April 14, 2017

DON’T SIT ON YOUR RIGHTS

burgerk150223Today’s case appears at first blush to be nothing more than a titanic conflict between a fast food purveyor and a strip mall, hardly the material that will get a tree or neighbor law fan’s blood pumping. But it illustrates a few worthwhile points.

A Burger King and a Long John Silver’s sat next to each other in Bay City, Michigan. The owners of the lots agreed to mutual easements so that patrons of each could use a common driveway while their arteries clanged shut from the cholesterol and trans fat. The easements were written without benefit of a legal description of the land subject to the easement (perhaps to save the $300 or so a surveyor would have cost). Sometime after that, the Burger King was dethroned, and the restaurant was torn down. The buyer of the land, the strip mall next door, tore down the BK and expanded the mall. In so doing, the developer built over where one of the access drive easements lay (although the actual common driveway had never been constructed).

The Long John Silver’s crew observed the construction, but the company didn’t complain until the construction was completed. Then, the fish folks sought an injunction in federal court to get the offending building torn down. The Court agreed that the mall developer had violated the easement, but the facts that the remedy was so drastic (tearing down the building) and the fact that Long John Silver’s sat on its complaint during the construction, and said nothing when the mall developer could have remedied the problem easily. That is called “laches,” and the law doesn’t think much of people who engage in it.

The case wasn’t resolved at that point, but Long John Silver’s was more likely to just win the difference in value of the real estate (about $35,000, or 1,591 8-piece family meals). But the lesson is that if you sit on your rights and permit the other party to really damage you, you may be severely limited in your remedies.

The lesson of laches - don't sit on your rights.

The lesson of laches – don’t sit on your rights.

BR Associates, Inc. v. LaFramboise, Slip Copy, 2007 WL 1840031 (E.D.Mich., June 26, 2007). BR operated a Long John Silver’s restaurant just west of a busy intersection in Bay City, Michigan. LR owned a commercial plaza east of the Long John Silver’s at the intersection itself. In 2004, a Burger King operated on the LR site, but it closed and the site was sold to LR. LR demolished the Burger King and added on to its existing plaza, making space for five new tenants. BR’s fish fryers were aware of the construction, and they informed BR’s corporate offices of the activity.

BR never complained during the construction. But after LR was done, BR claimed that the plaza blocked an easement arising out of a written agreement entered into by BR and the old Burger King owner, in which BR and the prior owner gave a mutual “perpetual, non-exclusive easement” for the customers of each other to use two driveways (the “North Access Drive” and the “South Access Drive”) on the easement areas, which were the boundaries of the two properties. Under the easement, the parties had the right “to relocate from time to time and in each party’s own discretion, those driving aisles and ingress and egress points located on their own Parcels … provided that such relocation does not adversely effect the other party’s right to use the Easement Area … [and] upon the mutual written agreement of the parties hereto.” Apparently, the contemplated South Access Drive was never constructed when the Burger King still operated. The easement agreement did not specify the width or the length of the access drives nor did it have a legal description of the areas. LR did not get BR’s permission to move the North Access Drive, nor did it have permission to completely block the South Access Drive, which it did as a result of the construction.

BR sued LR for trespass during the construction, but mostly for breach of the easement agreement, seeking an injunction to compel LR to honor the easement. BR contended that LR’s conduct violated the easement agreement and placed an increased burden on the easement. LR’s actions constituted a trespass, in BR’s view, and created additional wear and tear on BR’s parking lots. Finally, LR’s activities interfered with BR’s business. BR claimed that the easement agreement simply did not contemplate loading and unloading of vendor vehicles as well as parking or that LR would use BR’s property for uses beyond simple customer ingress and egress contemplated by the easement agreement.

LR argued that any recovery for breach of the easement agreement should be limited to $35,000, because BR’s appraiser valued its property with the easement at $650,000 and without the easement at $615,000. BR and LR both moved for summary judgment on all issues.

Imagine 1,591 of these monster meals - that's probably what the damages will buy.

Imagine 1,591 of these monster meals – that’s probably what the damages will buy.

Held: BR was entitled to summary judgment on some claims, and others would go to trial. The District Court noted that Michigan law defined an easement as the right to use the land of another for a specific purpose. In order to create an express easement, there must be language in the writing manifesting a clear intent to create a servitude. Any ambiguities are resolved in favor of use of the land free of easements. The plain unambiguous language of an agreement controls the determination of whether breach has occurred.

Here, the Court said, there could be no dispute the LR breached the express terms of the easement when it constructed the addition to the plaza. The easement agreement provided that an “access drive” could only be relocated upon the mutual written agreement of the parties. LR didn’t contend that it got BR’s consent. Instead, it claimed that the South Access Drive never came into existence at all. No curb cut was made, and the electrical installations otherwise blocking the south access drive preventing its use were never removed. The parties’ course of performance, LR argued, demonstrated that there never an intent to open the south access drive.

But the Court found that the parties’ mutual intent was clearly expressed in the plain language of the easement agreement, which granted BR a “perpetual, non-exclusive easement.” The fact that one of the access drives hadn’t been built, the Court said, provided no basis for the Court to depart from the language of the agreement. However, the Court said, requiring LR to remove the building blocking the south access drive was unjustified, because BR waited until construction was complete to seek any type of relief and it couldn’t identify the specific dimensions of the South Access Drive, because neither party required that level of precision in the easement agreement. It would be difficult if not impossible, the Court said, to fashion such injunctive relief to the extent of the breach. Finally, destroying the structure would necessarily be economic waste.

The Court refused summary judgment on BR’s remaining issues, denied summary judgment on all of LR’s issues, and set trial dates.

– Tom Root

TNLBGray