Case of the Day – Friday, May 24, 2019


king160615At common law, it was always good to be king. Because a cool crown and a nice castle to live in, the king could not be sued by his subjects without his permission. This concept is known as “sovereign immunity.” Sadly, the concept never extended to a private citizen. This is hardly surprising. A sovereign usually takes care of itself, not his subjects. However, where social utility calls for it, states have extended immunity to the common man and woman.

The most obvious of these kinds of statutes are “Good Samaritan” laws in the United States and Canada, legislation that shields from liability those who choose to aid the injured or ill. The laws are intended to reduce bystanders’ hesitation to assist out of fear of being sued for unintentional injury or wrongful death.

Of particular interest to us is the class of immunity laws known as recreational user statutes. Recreational user statutes, although they vary from state to state, generally create tort immunity for landowners who open their land to the public free of charge for recreational use. If you let people wander your woods, you weren’t liable if they step in a woodchuck hole. The statutes serve a public purpose. If you had to shell out every time Bertha Birdwatcher tripped over an exposed root, then you would respond by posting your land to prohibit hikers, campers and boaters.

The public benefits from getting back to nature are obvious. In fact, in many cases, the recreational use statutes apply to governments as well, such as the nice little park a small town maintains around the municipal reservoir. Recreational use acts are intended to encourage landowners to offer free use of their land to the public for recreational purposes in order to preserve and utilize the state’s natural resources.

The foregoing has not ridded us of creative lawyers. We all dislike crafty litigators (at least, until we need one ourselves). Today’s case – which is, unfortunately, very timely – concerns a little girl who was camping with her family in a California state park. During the night, a tree 60 feet from her campsite fell, hitting the family’s tent and leaving the 3-year old with severe brain damage. A sad state of affairs to be sure, one that makes the plaintiff a very sympathetic party.

The family’s crafty litigator figured out the California recreational use statute only applied to unimproved land. The tree was on unimproved land, but the campsite it fell on was improved. The plaintiff’s attorney argued that because the injury occurred on improved land, California was liable for little Alana’s serious injuries.

angels160615Much of the decision turned on whether one measure “unimproved area” from where the defect it located, or where the injury occurs. Remember President Clinton? It depends on what the meaning of “is” is. Often on the heads of such semantic pins an entire case can turn. Here, it did not matter whether Alana was on improved property when she was hurt. It mattered whether the tree that fell was standing on improved property because it toppled.

Alana M. v. State of California, Case No. A142240 (Ct.App. Calif. 1st Div., March 29, 2016).  Three-year old Alana M. was camping with her family in Portola Redwoods State Park, which is owned by the State and is located in existing forest in the Santa Cruz Mountains.

As Alana’s family slept in their tent, a tanoak tree fell directly on the campsite and struck Alana on her head, resulting in brain damage. The tree was a growing on a hillside about 60 feet away from the Campsite. Tanoak trees are indigenous to the area. The nearest man-made object to the tree before it fell was a picnic table at Campsite 42, which was about 30 feet away. The tree broke about three feet from the ground.

The State had built improvements and amenities in the Park, including roads, campsites, hiking trails, a visitor center and various other buildings. The amenities are scattered throughout the park, occupying about 5 percent of the parkland.

Tanoak tree

Tanoak tree

Alana sued the State, asserting claims of premise liability under Government Code § 815.2, and dangerous condition of public property under Government Code § 835.2. She said the tree that fell had rot, a cavity, and a hatchet wound and it “was overextended with poor taper.” Alana alleged the State negligently failed to properly maintain Campsite 41 “and its environs” and negligently failed to warn of the danger of falling trees and, further, the State knew or should have known of the structural defects of the tree that fell and injured her.

The State argued it was immune from liability under Government Code § 831.2 because Alana was injured by a natural condition of unimproved public property. The State pointed to Alana’s concession that the fallen tree “was an object of nature.” Alana maintained there was a dispute of fact as to whether the tree that injured her was on improved or unimproved public property. She relied on the Department’s Tree Hazard Program, which established a process for identifying and removing dangerous trees from developed areas. In Portola Redwood State Park, the Tree Hazard Program applied to all the trees in the campgrounds, including the tree that fell. Under the program, the campground was subject to biannual tree inspections, and periodically hazardous trees were removed. Alana cited language from a Department operations manual that said the Tree Hazard Program applied “solely within the developed areas of all parks operated by the Department.” The publication thus raised a question whether the entire area of the campground, including the tree that injured her, was “improved public property” outside the ambit of § 831.2.

The trial court granted summary judgment to the State, and Alana appealed.

Held: Alana failed to raise an issue of fact as to whether the tree was on “unimproved public property” for purposes of Government Code § 831.2, and the State’s “natural condition immunity” applied.

Government Code § 831.2, commonly referred to as the “natural condition immunity,” provides that “[n]either a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.” The statute provides for absolute immunity, intending “to encourage public entities to open their property for public recreational use” by providing immunity “because the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.” The natural condition immunity applies even “where the public entity had knowledge of a dangerous condition which amounted to a hidden trap,” and even “where a governmental entity voluntarily assumes a protective service” – such as the Department’s Tree Hazard Program – that induces “public reliance, and through the negligent performance of that protective service concurrently causes a member of the public to be victimized by a dangerous, latent, and natural condition.”

It is also the rule that “improvement of a portion of a park area does not remove the immunity from the unimproved areas.” Otherwise, the Court said, the immunity of an entire park area would be wiped out even if only a small portion was improved.

Finally, because the phrase “of unimproved public property” in § 831.2 modifies the “natural condition” that caused the injury, the relevant issue for determining whether the immunity applies is the character (improved or unimproved) of the property at the location of the natural condition, not at the location of the injury.

tent160615Alana did not dispute the tree that injured her was a natural condition under § 831.2. Portola Redwoods State Park is existing natural forest and tanoaks are indigenous. There is no evidence of any artificial change in the tree’s condition nor any evidence of artificial improvements to the tree. Alana argued there was a causal link between the improvements to the campsites and the dangerousness of the tree because “the campsites increased the likelihood that humans would be present when a tree fell in the area and hence increased the likelihood that one of them might be injured.” But, the Court said, the public is always more likely to visit public lands with amenities such as parking, informational signs and maps, toilets, lifeguards, fire rings, hiking trails, picnic tables, campsites, and the like, than similar public lands with no amenities. Such amenities do not abrogate the natural condition immunity for areas that are not improved. If Alana’s argument were to prevail, this would seriously thwart accessibility and enjoyment of public lands by discouraging the construction of such improvements as restrooms, fire rings, camp sites, entrance gates, parking areas and maintenance buildings.

California’s natural forests provide great natural beauty and recreational opportunities along with natural hazards. Alana points to “evidence that all trees eventually fail” and “the simple fact that the tree that fell was 86 feet tall and only 60 feet from Campsite 41” as evidence the tree that injured her was on improved property. This evidence, however, only shows there is risk associated with spending time among the trees of Portola Redwoods State Park; it does not show the tree that fell was on improved property. The Court said, “We do not believe the State became a guarantor of public safety by providing campsites.”

Alana argued the fact the tree was subject to the Tree Hazard Program “leads ineluctably to the inference that the [Department] considered that tree to be standing on improved property within the meaning of § 831.2.” Even if this were so, the Court said, Alana offered no authority for the proposition a defendant’s belief regarding a legal conclusion creates a triable issue on the matter in the absence of any evidence supporting that legal conclusion. Here, there is no evidence raising a triable issue of fact as to whether (1) there was a physical change in the condition of the property where the tree grew or (2) an improvement or human conduct contributed to the danger of the tree. The Department’s belief that the tree was on improved property is not competent evidence on either of these issues.

Essentially, the Court concluded, Alana’s position is she was entitled to a campsite in the forest safe from falling trees, but this “is exactly the type of complaint § 831.2 was designed to protect public entities against.”

– Tom Root


And Now The News …

New York City, The New York Times, May 23, 2019: As California wildfire season looms, finding tree trimmers is a new problem

Pacific Gas & Electric has a big problem. Its equipment keeps coming into contact with dry trees and shrubs and starting devastating wildfires. So the company is scrambling to trim or cut down hundreds of thousands of trees across its vast Northern California territory. But it has another problem: finding people to do that work. Beyond the tight labor market, there is the challenge of enlisting a certain kind of worker for the difficult and dangerous job. To trim trees well, especially the 200-footers in the Sierra Nevada forests, contractors must be strong and agile, and able to handle fear and adrenaline surges. When all goes well, “it’s like Cirque du Soleil up in the trees,” said Jose Mercado, founder of the Hispanic Arborist Association, who climbed trees professionally for more than two decades near Los Angeles. “You’re in the best physical condition of your life.” When things go wrong, the consequences can be deadly. Since 2017, the Labor Department has tracked 127 deaths related to tree work nationally, including 20 in California. Among the top causes of injury or death are strikes by branches, electrocution and falls. PG&E and other utilities farm out tree work to a network of contractors. Those businesses, in turn, cast a wide net to find qualified workers, with entry-level wages starting at $15 an hour…

Wilmington, Delaware, News Journal, May 23, 2019: ‘Like Edward Scissorhands’: Residents angered by ‘aggressive’ tree work on Del. 52

Greenville and Centerville residents are enraged about Delmarva Power crews “aggressively” trimming trees along Del. 52 (Kennett Pike). The butchered trees and their remains have opened up views of private property and ruined areas along the picturesque drive northwest from Wilmington to Pennsylvania. “You don’t go on somebody else’s land and cut down their trees,” attorney and Kennett Pike resident Richard Abbott said. After angry calls from residents and the Kennett Pike Association, the power company has agreed to walk the area with a local arborist and notify residents when tree removal is planned, Delmarva Power’s spokesman Timothy Stokes said. Abbott, who had trees cut down on his own property and also represents another resident along Del. 52, said the Delaware and Maryland electric company cut down several of his client’s trees and destroyed dozen of others. “I just want them to be a little less like Edward Scissorhands,” Abbott said…

Crystal River, Florida, Citrus County Chronicle, May 23, 2019: Businessman receives second citation for tree removal

A Homosassa businessman who was cleared in February by Citrus County commissioners of illegal tree-removal allegations was cited this week for essentially the same thing. Citrus County Code Compliance accused Vision VI Investments LLC of illegally removing trees on property adjacent to the Riverhaven community on Halls River Road. Principal Byron Rogers, who also co-owns Crump Landing at the former KC Crump’s site, will hear the allegations at a June 19 special master hearing. According to the county code, he faces a fine of up to $15,000. Rogers could not be reached for comment. Frank Fazioli, who lives in Riverhaven nearby, said he called the county’s code compliance division when he saw trees being removed from the property. “I’ve complained several times, as a matter of fact,” Fazioli said. “This county commission has rolled over and let them do what they wanted…

Washington, D.C., Post, May 23, 2019: Want to understand the biodiversity crisis? Look at the trees in your backyard.

Wander into the woods in most places in the eastern United States and you’re likely to come across a towering trunk with sandy-colored, diamond-shaped ridges rising to bare forking branches and little holes peppering the bark, signaling where small, green beetles have crawled out and flown away after doing their dirty work. This decaying monument is — or rather, was — an ash tree. Its kind will not be back in your lifetime, perhaps ever. If you live in the other half of the country, just wait a few years. The emerald ash borer is coming for your trees, too. Humans are setting in motion a mass extinction of life, only the sixth in Earth’s 4.5 billion-year history. A recent United Nations report put this in stark numerical terms: As many as 1 million plant and animal species are at risk of annihilation. Such an astronomical figure, while intended to impress, can actually make the threat hard to relate to…

North Andover, Massachusetts, Eagle-Tribune, May 22, 2019: ‘The tree looked like it had a mullet’: Resident questions utility contractor’s tree trimming plan

When Martin Cannard heard tree trimming outside of his home recently, he didn’t think anything of it — until his 16-year-old son Sebastian alerted him that something was wrong. When Cannard saw the family’s beloved 18-year-old Christmas tree in the front yard, he saw it had been shaven down beyond repair. “The tree looked like it had a mullet,” Cannard said of the tree, which had been cut by contractors with the New Hampshire Electric Cooperative. “It just seemed like a really odd thing to do.” The nearly 20-foot-tall tree was untouched at the crown, but all of its branches were removed in the front. According to Cannard, the top of the tree is about 10 to 15 feet lower than the powerline. Cannard contacted arborists for NHEC to find out why the tree was cut the way it was. According to Cannard, an arborist said the tree would have been cut differently if it were him, adding that trimming a few feet off of the top and some on the side would do. Cannard called the company soon after the tree was trimmed to cut the tree down completely…

Toronto, Ontario, Star, May 22, 2019: New at MOCA: The surprisingly active life of a dead tree

It looks like an autopsy: the white ash rests on its side on the Museum of Contemporary Art’s third floor, ready for your examination. The roughly 60-foot tree has been cut into sections and reassembled on top of metal sawhorses. Its root ball hangs from a gantry at the far side of the room. The in-house researcher puts its age at around 150 years, but it’s already been dead at least a year. And though the researcher can’t definitively name its killer, the tree is riddled with evidence of the emerald ash borer, an invasive Asian beetle that has speedily pushed Ontario’s ash tree population toward extinction. The exhibition invites viewers to study the remains. While a close encounter with a deceased tree may sound unexceptional, shown in this irregular context — the majestic ash extracted whole, transported inside the usually sterile white cube space and presented in exploded view — what becomes startlingly evident is just how alive a dead tree really is. There are patches of fungi and moss, a crust of blue-green lichen, spiderwebs just hours old and an assortment of arthropods, including several ant species, which have already begun colonizing the gallery floor. (Is it OK that they’re doing that?) There are so many that you can hear them. They sound like boiling water…

Washington, D.C., May 22, 2019: Leaning tree of DC: Park service lifts toppled Washington Monument mulberry tree

A mulberry tree on the grounds of the Washington Monument in D.C. that toppled due to saturated ground from heavy rain was raised by the National Park Service. But not by much. The white mulberry tree that predates the 1885 dedication of the monument fell over during Mother’s Day weekend, and the park service mulled options on how to save it. On Wednesday, NPS announced that they successfully raised it by 10 degrees, the right conditions for root generation without causing additional stress on the root system. NPS said that the exposed roots will be pruned and covered with topsoil. NPS had hoped for a partial raise and a custom prop, according to NPS arborist Jason Gillis in a tweet. While the tree’s roots were exposed, they were watered twice a day…

San Antonio, Texas, KENS-TV, May 22, 2019: ‘What does it take for it to be an issue?’: Uvalde family demands city to cut down aging tree that killed 6-year-old

For a city that praises itself as Tree City, USA, it’s exactly that that’s left Uvalde resident Olga Cano and her family devastated. “He was my baby,” said Olga, Giovanni’s mother, as she began to cry. “That was my baby, no matter what.” On Sunday, Uvalde Police responded to South Hight Street after calls that a child was hit by a tree limb. Police say the branch was partially hanging near the roadway when Giovanni Cano was playing with it. The limb broke off and hit the 6-year-old. He was quickly rushed to the hospital, where he was pronounced dead. Now his family is demanding answers as to why the old tree was still up in the first place. “I still feel like this can’t be real,” said, Veronica Cano, Giovanni’s aunt. “That branch was falling. I don’t know how the city workers and all the police officers that pass daily, multiple times…this street was way too active for them not to see it. “It was falling.” Neighbors told KENS 5 someone reported the downed tree earlier that Sunday, but no one from the city came to clean it up. Uvalde Police tell KENS 5 that, to their knowledge, there were no reports before the incident that killed Giovanni…

New York City, WCBS-TV, May 21, 2019: Tourist critically injured after being hit in the head by falling tree branch in Washington Square Park

A tourist from Virginia was hit in the head by a falling tree branch in Washington Square Park Monday evening. Police identified the victim as Penny Chang, 55. She was sitting on one of the benches on the west side of the park at around 7:30 p.m. when the 30-foot branch broke off and slammed into her head. Her 19-year-old son Jacob was sitting with her and wasn’t injured. Chang was rushed to Bellevue Hospital in critical but stable condition. She has a fractured skull and spine. Savage says there may have been a few seconds of warning before the 30 foot branch broke off and slammed into Chang’s head. “I heard a cracking sound and I didn’t know what it was. I looked around scared,” Manhattan resident Betty Savage told CBS2’s Marc Liverman. When Savage looked around, she saw a woman lying on the pavement right in front of some benches. “People were running over to her, screaming ‘Get a doctor! Get a doctor!’ She was not moving at all,” Savage said. “I was very shaken up. It was horrible. I was scared to death.” Another witness told Liverman that warning sound may have been the only reason no one else was hurt. “People were trying to get away, and she was trying to get away too, but the tree hit her, boom, right on the head and she fell on the floor,” Lower East Side resident Tyrone Taylor said…

Do It Yourself, May 21, 2019: How to Combat Blight on Trees

Blight is a quick and deadly tree disease that can potentially affect almost any tree in the U.S., which makes it a huge problem. Knowing how to combat blight is essential. If you don’t treat this problem as soon as it strikes, it can kill not just one tree but entire tree populations. There are several types of tree blight, but the treatment is generally the same for all these different diseases. Fire blight causes discoloration, usually on the bark of trees, though it can also affect blossoms and roots. There is no cure for fire blight. Once it affects your trees, your only hope is to completely eliminate the blight by pruning it off the tree. To successfully remove fire blight, you actually have to over-prune. You need to cut 12 to 18 inches above and below the areas of the tree that are visibly affected…

Derby, UK, Telegraph, May 21, 2019: How Brexit could make these two types of tree extinct in Britain

Palm and olive trees could be at risk of extinction on British shores post-Brexit, claims a leading online garden centre. Experts from have claimed that plants of Mediterranean origin are at risk of supply shortages should import restrictions be tightened after the UK finally leaves the EU. Gardeners’ warm weather favourites such as palms and olives are susceptible to plant diseases that are only found in that region of South Europe and North Africa. With a natural range from Portugal and Morocco to the Levant, the olive tree has been popular since prehistory and its branches are a symbol of peace. Palm trees, meanwhile, are one of the most cultivated species worldwide and can bring a touch of tropical greenery to UK gardens. Currently their quantity and quality is monitored before potential quarantine, with importation regulated by EU laws…

New York City, WPIX-TV, May 21, 2019: Property owners and city disagree about tree ownership on Staten Island street

Three trees off Taylor Street on the North Shore of Staten Island are growing into a controversy. An abandoned house was recently demolished and the property owner has new plans for the corner lot. Frank Martarella with thinkDESIGN Architecture is working on the new multi-family, residential building on the property. Zoning regulates the number of off-street parking spaces and the placement of driveways and curbs. “Based on numerous regulations required for curb-cut locations, we are forced to remove several trees,” Martarella said. They say the permit for tree removal would be $592,000. “Nobody is against trees. We have been planting within the property, at the street and the curb, for decades. We understand the importance,” Martarella said. Some Staten Island property owners have filed a lawsuit to challenge the NYC Parks Department process. Attorney Robert Fishler represents some of the owners and developers and calls it a case of property rights…

Asheville, North Carolina, Mountain Express, May 20, 2019: From CPP: To cut or not to cut? Disagreement over US Forest Service’s plans for trees

The U.S. Forest Service plans to harvest the majority of trees at 16 sites in Nantahala National Forest beginning next year as part of its Southside Project. Conservation organizations argue the trees at several of these sites represent exceptionally older and rarer growth than the Forest Service has recognized and are calling for the project to be withdrawn or revised after the Forest Service completes the revision of its land management plan for the Pisgah and Nantahala national forests in Western North Carolina, a draft of which is expected later this year. “Only one-half of 1 percent of the forest is old growth in the Southeast,” Buzz Williams of the Chattooga Conservancy told Carolina Public Press. “That is the reason within itself to leave it alone.” Williams recently visited a 23-acre site on a ridge below Round Mountain, near the headwaters of the Whitewater River in Jackson County. He removed a sample of wood with the diameter of a chopstick from the core of a towering chestnut oak growing on the ridge. By viewing the rings that are visible in the sample, Williams estimated that the tree is nearly two centuries old. And it’s not alone: Scattered on the ridgeline are aging white oaks and other tree species that eluded the heavy logging of the region a century ago…

Los Angeles, California, KNBC-TV, May 20, 2019: Judge OKs Trial For Family’s Suit Over Woman’s Death From Fallen Tree

Family members of a 61-year-old woman who died when an 80-foot tree fell on her at her daughter’s wedding party in Whittier in 2016 can take their lawsuit against the city to trial, a judge ruled. Norwalk Superior Court Judge Kristin S. Escalante heard arguments on the city of Whittier’s dismissal motion on Thursday, then took the case under submission before issuing a final ruling Friday. Trial is scheduled Sept. 30. The relatives of the late Margarita Mojarro filed the lawsuit in Los Angeles Superior Court in April 2017, alleging wrongful death and that a dangerous condition of public property existed. The case was later transferred to Norwalk Superior Court. The plaintiffs include the woman’s husband, Feliciano Mojarro; and four of her children, including the bride, Patricia Mojarro…, May 20, 2019: Native plants amazingly resilient when invasives removed, says Penn State study

When invasive shrubs are removed from the forest, native plants can rebound more strongly than expected, according to researchers at Penn State. The native plants demonstrated unexpected ability and vigor to recolonize spots from which invasive shrubs were removed. “The regeneration of native plants that we saw where invasive shrubs had been removed exceeds what we expected from looking at uninvaded parts of the forest,” said researcher Erynn Maynard-Bean, who recently earned her doctoral degree in ecology. “We believe that’s because invasive shrubs take up residence in the best spots in the forest. They are most successful where there are the most resources — sunlight, soil nutrients and water. Then, when invasive shrubs are removed, the growth of native plants in those locations beats expectations.” Maynard-Bean arrived at that conclusion through a long-term project that spanned 7 years in the Arboretum at Penn State. Researchers repeatedly removed 18 species of invasive shrubs and then monitoring the response by native plants…, May 20, 2019: Can a hands-on model help forest stakeholders fight tree disease?

When a new, more aggressive strain of the pathogen that causes sudden oak death turned up in Oregon, scientists and stakeholders banded together to try to protect susceptible trees and the region’s valuable timber industry. Sudden oak death is a serious threat. Since 1994, the disease has killed millions of trees in California and Oregon. If the disease spreads from an isolated outbreak in Curry County, Oregon, to neighboring Coos County, the impact could be severe: a 15% reduction in timber harvest, loss of 1,200 jobs and about $58 million in lost wages, according to an Oregon Department of Forestry report. Researchers with North Carolina State University’s Center for Geospatial Analytics reached out to help in Oregon, offering Tangible Landscape, an interactive model that allows people of all skill levels to control complex simulation models with their hands and collaboratively explore scenarios of management decisions…

Couer d’Alene, Idaho, Press, May 19, 2019: The mighty oak tree has long been revered in history, with 600 different kinds around the world — but none native to Idaho

After starting as a small acorn, oak trees can grow to a huge size and survive life facing torrential rains, bitter winters, drought, disease and raging fires — but not man’s ax. The oak is a treasure to humans and animals and is well recorded in history since ancient times — not really surprising because people are like oak trees: “The acorn does not know that it will become a sapling. The sapling does not remember when it was an acorn, and only dimly senses that it will become a mighty oak. The oak recalls fondly when it was a sapling, loves being a mighty oak, and joyfully creates new acorns,” says writer J. Earp. Idaho’s biggest oak tree is a bur oak (Quercus macrocarp) in the Julia Davis Park in Boise, standing 105 feet tall with a trunk waist just over 14 feet. Sadly, it receives little mention by Boise Parks & Recreation. Oaks are not native to Idaho, but in addition to the Boise bur oak, there is at least one English oak and one northern red oak…

Oakland, California, KNTV, May 17, 2019: Vandals rip out 2,000 cherry trees out of Former 49er Newberry’s Brentwood orchard

A former San Francisco 49ers player turned cherry farmer is now experiencing a sour note. Jeremy Newberry was set to start his first Brentwood cherry harvest season, but instead he arrived this week to find thousands of his newly-planted cherry trees ripped from the ground. “Literally this whole area was ransacked,” Newberry said. “I was sick to my stomach.” Newberry discovered Wednesday someone vandalized his orchard, ripping out 2,000 newly-planted cherry trees. “They yanked them out of the ground at the root and snapped them in half so you can’t replant them,” he said. Newberry plans to sleep in a trailer on the property to keep watch over his new field of dreams…

Virtual Strategy, May 20, 2019: A massive willow tree fell in Richboro, and Giroud Tree and Lawn saves it by…

April showers bring May flowers, but heavy showers can bring big problems for trees with compromised root systems! That was the case with a beautiful Willow Tree in Richboro, Pa. when it crashed down during a windy storm. The homeowners were worried the tree would have to be removed. Thankfully, Vice President and ISA Certified Arborist, Drew Slousky, from Giroud Tree and Lawn determined that the tree could be saved and stood up again. Check out the incredible video showing how Giroud Tree Crew Leader, Leonardo Marquez worked with the Giroud Crew to stand up the Willow Tree. Disasters such as this one can leave homeowners wondering what could have been done to prevent such a big problem on the property. “Sometimes when Mother Nature calls, there are tragedies that just can’t be prevented,” explains ISA Certified Giroud Arborist, Rob Nagy. “When conditions are the perfect mix of saturated soil with too much wind, trees can just uproot. But there are many things you can do strengthen your trees so they are better prepared for these situations…”

Canadian Broadcasting Corporation, May 20, 2019: To save the species, conservationists work to build a tougher butternut tree

Conservationists in southwestern Ontario are working to fight back against an insidious, tree-killing canker that threatens butternut trees across Eastern Canada. Never an overly abundant species, butternuts are revered by woodworkers and were an important food source for Indigenous people. But a canker first found in Wisconsin in 1967 had, by the early 1990s, taken root in Ontario. Butternuts are found throughout Ontario and as far east as New Brunswick. John Enright is a forester with the Upper Thames River Conservation Authority (UTRCA). He’s also a big fan of the butternut tree. One reason? He believes the nuts they drop in the fall exceed walnuts when it comes to flavor. “I know most people haven’t had a chance to eat a butternut but if you ever do get one, they are excellent, much better and sweeter than walnuts,” he said. “They’re a good nut for human consumption but also for wildlife…”

New York City, Wall Street Journal, May 15, 2019: G&E Caused Fire That Killed 85, California Concludes

California investigators found that PG&E Corp.’s equipment sparked the deadliest wildfire in state history, putting additional pressure on a company already facing billions of dollars in fire-related liability costs. The California Department of Forestry and Fire Protection said on Wednesday it had determined that a PG&E electric-transmission line near the town of Pulga, Calif., ignited last year’s Camp Fire, which spread quickly across dry vegetation in the forested foothills of the Sierra Nevada, killing 85 people and destroying the town of Paradise. State fire investigators also said they identified a second point of ignition where vegetation blew into the company’s electric-distribution lines, starting another fire that was consumed by the first one. Cal Fire sent its investigative report to the Butte County District Attorney’s office, which will determine whether the company will face criminal charges. The findings—which end months of speculation about the utility’s role in the massive wildfire—raise the likelihood that PG&E could face billions of dollars in liability costs related to its role in the November fire. PG&E sought bankruptcy protection in January in anticipation of more than $30 billion in potential liability costs. It said earlier this year that its equipment was probably the cause of the Camp Fire. State fire investigators previously determined that the company’s equipment contributed to sparking 18 blazes that together killed 22 people in 2017…

Chatham, New Jersey, Patch, May 16, 2019: Cutting Down Trees Could Cost Chatham Property Owner $25K

A Chatham property owner could face upwards of $25,000 in fines for clearing too many trees from a property located at the corner of Mountainview Road and Fairmount Avenue, according to Chatham Township Administrator Robert Hoffman. There were a total of 29 summonses issued to the property owner that are related to the illegal removal of trees. “They were issued to both the property owner and Tree Service,” Hoffman told Patch. According to Hoffman, the property owner attempted to use the fact that he is not a native speaker of English and that English is his second language as a reason for the additional tree removal. Hoffman noted there was a permit issued to authorize the removal of eight trees and that the tree service used understands English. “Math is international,” Hoffman said. “Numbers don’t change from one language to another.” Hoffman said the homeowner will have to appear in court and will have to explain to the judge why he took down three times as many trees as he was allowed…

Shelton, Connecticut, Herald, May 16, 2019: Eversource rights of way: Tree, brush removal has some residents seeing red

Darlene Masciola and her husband bought their Dickinson Drive home 15 years ago knowing an Eversource right of way — with a transmission tower at the property’s rear left corner — traversed the lot. While the Masciolas own the land, Eversource must maintain these rights of way by trimming or removing trees and shrubs to help protect the towers and lines. But what happens when this work leaves unhappy residents? Just ask the Masciolas and another nearby homeowner, the Fernandeses on Webster Drive. “This is just ugly,” said Masciola as she stood in her backyard, looking at what she termed a mess left behind from subcontractors who clear cut the entire section of the right of way on her property, leading back to adjoining lots, late last year. This is view Darlene Masciola sees when looking at her yard, which sits in an Eversource right of way. Eversource subcontractors trimmed trees in January, and Masciola has been unsuccessful in attempts to get the area cleaned up with new shrubs planted for screening. “I work hard on the rest of my property. Now I look out from my backyard, and I am just sick,” she said. “What I see makes me sick.” “I was shocked, devastated,” said Kathy Fernandes. “I was so depressed, I cried. What was worse was that I could not get in touch with anyone. I wanted them to see what was done. I understand they can do work in the right of way, but I did not sign up for them to destroy my backyard…”

Whittier, California, Daily News, May 16, 2019: Lawsuit filed after a falling park tree killed a grandmother may survive Whittier’s request to dismiss it

A Norwalk Superior Court judge said she’s likely to allow the lawsuit against the city of Whittier, brought by family members of a 61-year-old grandmother killed when a Penn Park tree toppled onto her, to continue. Margarita Mojarro of San Pedro was attending a wedding in December 2016 when a massive eucalyptus fell on the the party as it was posing for photos. Twenty people were injured in the injured in the tree collapse, but Mojarro was the only person killed. The city of Whittier had asked Judge Kristin S. Escalante to dismiss the case. But on Thursday, she said she’s inclined not to grant that wish. Escalante, who is expected to make a final ruling in the next couple of days, said she based her tentative decision on opinions of experts who examined the remains of the 80-foot tree and concluded the city should’ve known its poor condition. In a declaration filed by the Mojarros’ attorney, Matteo Garbelotto, who holds a doctorate in forest pathology and microbiology, said it was obvious the tree was compromised…


Case of the Day – Thursday, May 23, 2019


Lon Chaney was not a part of this lawsuit.

Lon Chaney was not a part of this lawsuit.

It’s hard to feel too much sympathy for Mr. Chaney (Dave Chaney, not Lon Chaney) in today’s case. He and his wife lived in a hollow on the Ohio River, downhill from the Wilsons.

When the Chaney homestead filled with mud because of a landslide, the Chaneys saw green where most homeowners would just see brown. They sued the hilltop Wilsons, complaining that their neighbors had trespassed and cut down some 400 trees, many of them belonging to the Chaneys. The Chaneys alleged that the removal of the trees — insulting enough on its own — led to the hillside ending up in the Chaneys’ living room.

The trial court got the two sides to agree that their surveyors would decide on the proper boundary. The surveyors did so, and concluded that Mr. Wilson had cut down his own trees, not Chaney’s trees. Meanwhile, The Chaneys lost or fired their attorney — we’re unclear what happened, but regardless, it came at a bad time — and proceeded to lose on summary judgment. They then appealed, arguing for the first time that they hadn’t agreed to have their surveyor work with the other side’s surveyor.

The Court of Appeals ruled against the Chaneys, holding that their allegation was too little, too late. Because it hadn’t been raised in the trial court (where it could have been corrected), the argument could not be raised on appeal. Besides, the Chaneys’ lawyer had agreed to the two-surveyor mechanism, and that agreement was binding on the parties.

There may have more to the Court’s repudiation of the Chaneys’ position. The trial judge was clearly a little put off that the Chaneys had told their insurance company that the landslide was caused by rain, thus collecting a cool $200,000 for the damage (the Chaneys must have had quite a living room). Now, the Chaneys were saying that the mudslide resulted the Wilsons’ alleged tree cutting. The shifting story didn’t especially smack of sincerity.

Most people see a mudslide as a disaster ... the Chaneys saw it as a ticket to Easy Street.

Most people see a mudslide as a disaster … the Chaneys saw it as a ticket to Easy Street.

It is considered poor form to try to collect twice.

Chaney v. Wilson, Not Reported in S.W.3d, 2007 WL 2019673 (Ct.App. Ky., July 13, 2007). Philip and Michaelynn Wilson owned property adjacent to David Chaney’s property in Maysville, Kentucky. The Chaneys lived at the bottom of a steep hill near the banks of the Ohio River. The Wilsons lived at the top of the hill, overlooking the river.

The Chaneys charged that the Wilsons caused timber to be cut and removed from the Chaneys’ property, and that such actions caused the removal of lateral and subjacent support, either causing or aggravating a landslide that damaged their property. At the behest of the trial court, two surveyors surveyed and agreed on boundary line between the parcels. The surveyors also concluded that any trees that had been cut were in fact on the Wilsons’ property.

The Chaneys may have been perfectly honest with the insurance company ... but if they were, it meant they were trying to snooker the court.

The Chaneys may have been perfectly honest with the insurance company … but if they were, it meant they were trying to snooker the court.

The trial court entered a final order, incorporating by reference the surveyors’ agreed description as the disputed boundary line and granting the Wilsons’ motion for summary judgment. Regarding the Chaneys’ claim that some 400 trees had been cut, the trial court found that the physical evidence on the site did not support the allegation, and, “based upon the boundary line as agreed and established by the parties two independent surveyors, any minimal cutting of trees occurred on the defendant’s side of the established boundary line, effectively negating any claims of improper ‘cutting of timber’ as alleged in the Complaint.”

The court also took judicial notice of a separate legal proceeding filed by the Chaneys against their insurance company in which they also alleged that their home was damaged by a landslide in March 1997 – nine months before the Wilsons cut down any trees –which had been triggered by heavy rains. The Chaneys had received a settlement of $200,000 from their insurer for the landslide damage.

The trial court dismissed the Chaneys’ complaint. An appeal followed.

Held: The summary judgment was upheld. On appeal, the Chaneys — who had lost their attorney during the proceedings — only made one argument, that they did not authorize counsel to agree to the surveyors’ collaborating on the legal description of the disputed boundary line. But the Court held that while an attorney cannot substantively settle a case without his client’s express authority, a party is nonetheless bound by the procedural agreements and stipulations of its attorney in the conduct of the litigation for which that attorney was hired. The agreement entered to have the surveyors conduct a joint survey was such a procedural agreement, and was within the attorney’s authority.

What’s more, the Chaneys never complained in the trial court that their attorney lacked the authority to make the agreement. The Court noted that an issue not timely presented to the trial court may not be considered for the first time on appeal.

Tom Root

Case of the Day – Wednesday, May 22, 2019


It’s easy enough to imagine the liability headaches a political subdivision might face operating parks. There are so many ways to get into trouble in a park: There are ponds to drown in, gopher holes to step in, cliffs to fall over, and the occasional falling tree.

Most states have recreational use statutes that limit public and private liability for the noncommercial use of land in its natural state. Before one can sue a sovereign – not just a king, but the federal government, state government or a political subdivision, permission to do so (these days, in the form of federal and state tort claims acts) must give permission to sue.

In California, for instance, an injured park user must show that a dangerous condition of public property existed. This is not your average gopher hole: instead Government Code § 830(a) says it “means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” To win money from the State of California, which (despite the legislature’s best efforts, still has some left), one must show 1) a dangerous condition of public property; (2) a foreseeable risk arising from the dangerous condition of the kind of injury the victim suffered; (3) either negligence on the part of a public employee in creating the danger or failure by the political subdivision to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the victim’s injuries; and (5) actual injury suffered by the victim.

That’s a pretty tall order for a victim to fill. And if that were not enough, the State has granted itself “trail immunity.” Section 831.4 of the Government Code holds that a political subdivision “is not liable for an injury caused by a condition of… [a]ny unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas… [and] any trail used for the above purposes.”

You may see where this is headed. A 10-foot-long eucalyptus branch split off from a tree in July 2013 and fell on Lorin Toeppe while she was walking with her boyfriend. Lorin, a physical therapist, suffered a crushed leg, fractured spine and lacerations to her face.

She sued the City, alleging its workers negligently maintained eucalyptus tree that dropped its branch on her. The City countered that she was walking on a park trail when it happened, so the City had “trail immunity.”

Lorin appealed, and – even in the face of dire predictions that parks would close – the court held that things were not quite as cut and dried as the City argued they were.

Toeppe v. City of San Diego, 13 Cal. App. 5th 921, 220 Cal. Rptr. 3d 608 (Ct.App. 4th Dist. 2017). While Lorin Toeppe was walking through Mission Bay Park with her boyfriend, a branch fell off a eucalyptus tree and struck her. She was badly hurt.

Lorin sued, claiming the tree constituted a dangerous condition of public property under Gov. Code 830(a). The City moved for summary judgment, arguing it was immune from liability under Gov. Code § 831.4, because Lorin was on a trail when she was injured. The trial court agreed, holding “[t]he evidence shows the injuries to Toeppe were caused when she was walking on the trail. Although it is disputed whether she was actually on the physical paved trail or just off of it, Toeppe’s contention is that the trail immunity does not apply to the other condition (failure to adequately maintain a tree next to the trail). Even if… the tree’s condition was a dangerous condition – and… substantially contributed to the accident, it does not create liability to fulfill its purpose, the immunity should apply to the tree (and its condition) because of the location of the tree to the trail.”

Lorin appealed.

Held: The City’s tree maintenance is not immune from negligence claims just because the trees are near a trail.

Lorin argued that between 2004 and 2013, a City employee negligently trimmed the eucalyptus tree. She claimed the City created and was aware of a dangerous condition of the tree, and as such, the City is liable for the harm caused by the falling branch.

The Court noted that trail immunity “is afforded ‘to encourage public entities to open their property for public recreational use, because the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.

     That’s what the City thought… but the Court saw it differently.

Lorin argued that trail immunity applied to the condition of the trail, not the fact that she may have been on the trail. She claimed that the negligently maintained eucalyptus tree was the dangerous condition giving rise to the City’s liability and her damages, not the trail. The City countered that Lorin was on the trail when she was struck by the branch, and the dangerous condition at issue here was thus connected to the trail.

In short, the Court said, “this is not a case about trails. It is about trees. Trees that were planted and maintained by the City. Trees that were not naturally occurring in Mission Bay Park. This is not a case where Toeppe was injured walking on a City trail in a naturally occurring forest. This is not a case where Toeppe had to walk on a trail to reach a dangerous condition or a dangerous condition was part of the design of the trail. Instead, Toeppe was injured when a tree branch struck her. She maintains the branch fell on her because the City was negligent in maintaining the eucalyptus trees in the park. There are no allegations that she was harmed based on a condition of the trail. There are no allegations that she was injured because of the location or design of the trail. On the record before us, we find no basis on which to apply trail immunity.”

The Court was not persuaded by the City’s argument that finding trail immunity does not apply here could result in the closing of City parks in which trees exist. “Although it might be prudent for the City to evaluate its maintenance of trees in its parks,” the Court said, “we do not foresee several park closures based on this opinion. Here, we merely conclude trail immunity is not applicable based on Toeppe’s allegations and the evidence submitted in support of and in opposition to the City’s motion for summary judgment. This case does not establish that the City is liable for Toeppe’s injuries.”

– Tom RootTNLBGray

Case of the Day – Tuesday, May 21, 2019


Delaware Water Gap National Park

Delaware Water Gap National Park

Ms. Merando and a friend had been enjoying the scenery of Delaware Water Gap National Park – a beautiful place – one summer day, when a tree (which had previously been topped) fell from an embankment and crushed the car, killing Ms. Merando and her young daughter, Kaylyn.

It was a tragedy, and sometimes tragedies drive the bereaved to push harder than makes sense. That happened here, where Ms. Merando’s husband sued the National Park Service for not having removed this topped tree before it fell. The tree was a disaster waiting to happen, a dead, previously-butchered hulk leaning over the road like an ogre waiting to pounce.

A legal tradition – dating back to the days of knights and knaves and peasants and ogres – holds that no one may sue the king without the king’s permission. The doctrine is known as “Sovereign Immunity.” To address the unfairness of this rule, the U.S. government and virtually all states have passed tort claim acts, which give permission in certain circumstances to sue the sovereign (here, the sovereign is an Uncle named Sam, not a King or Queen).

The federal statute is called the Federal Tort Claims Act. Under the FTCA, an individual may sue the government in some cases but not others. There are limitations. One of those limitations is that you can’t sue the government if it failed to perform a discretionary act. Whether hazard tree removal is a discretionary function is at the heart of this case.

The Court of Appeals upheld the lower court, dismissing Mr. Merando’s case. The National Park Service, it appears, had written guidelines that essentially directed every park to adopt a hazard tree removal policy that makes sense for the individual park. The result is a patchwork of unwritten policies. That sounds like a prescription for chaos.

Actually, it’s a prescription to avoid liability. If the Service had a written hazard tree removal policy and the local rangers hadn’t adhered to it with the tree in questions, then liability on the part of the government would be pretty clear. But, as some sharp National Park Service lawyer undoubtedly figured out — and yes, even Smokey the Bear has his own mouthpiece — if you don’t write it down, it’s that much harder for a plaintiff to prove that you failed to follow it.

The Delaware Water Gap National Park had a rather amorphous “drive-by” inspection policy, and Mr. Merando was unable to demonstrate that anyone had violated it. The lesson seems to be that “the less you do, the safer you are.”

Some hazard trees are easier to spot than others ...

Some hazard trees are easier to spot than others …

Merando v. United States, 517 F.3d 160 (3rd Cir., 2008). Janine Noyes, Kathleen Merando and Kathleen’ daughter, Kaylyn, were sightseeing in Delaware Water Gap National Recreation Area. While traveling in Ms. Noyes’s car along the New Jersey side of the Park, a large dead oak tree fell from an embankment and crushed the vehicle. Mrs. Merando and her daughter were killed instantly. The tree was approximately 27 feet in length, and had been had “topped” and delimbed, leaving it standing in a “Y” shape with no bark or branches and with the dead tree pole leaning toward the roadway.

The 63,000-acre Park lies along four miles of the Delaware River in Pennsylvania and New Jersey. It is mainly forested land, and is accessed by approximately 169 miles of roadways, 68 miles of trails, and several streams. As with other national parks throughout the country, the National Park Service, an agency within the U.S. Department of the Interior, is responsible for maintaining the Park, including the area where the accident in question occurred. The Government took title to the land where the oak tree was situated in 1969 and to the roadway itself in 1996.

Plaintiff, as administrator of the estates of Ms. Merando and her daughter, sued the Government for negligence, alleging that the Government negligently pruned the tree causing it to die and eventually collapse, and that the tree constituted a hazardous and extremely dangerous condition of which the Government knew or should have known and that it negligently failed to act to remove the tree. The Government moved to dismiss the complaint on the basis of the discretionary function exception to the Federal Tort Claims Act (“FTCA”). The Government also argued that the New Jersey Landowner Liability Act barred the action. The trial court dismissed on the basis that the FTCA stripped the court of jurisdiction to hear the case. Mr. Merando appealed.

Held: The district court’s dismissal was affirmed. The federal, as a sovereign, is immune from suit unless it consents to be sued. That consent, and the extent of the consent, is set out in the FTCA. It is the  plaintiff’ burden to prove that the FTCA has waived the immunity. Generally, the government is immune from a suit claiming negligence in the discharge of a discretionary function.

car150518The purpose of the discretionary function exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. In determining whether the discretionary function exception applies in any particular case, a court must first determine whether the act giving rise to the alleged injury involves an element of judgment or choice. The requirement of judgment or choice is not satisfied if the law, a regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive. – But even if the challenged government conduct involves an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The focus of the inquiry is on the nature of the actions taken and on whether they are susceptible to policy analysis.

In this case, determining whether the discretionary function exception applied to a tort action arising when the dead tree fell on the passing car, the relevant conduct was not the National Park Service’s alleged violation of its mandatory policy not to “top” trees, because there was no evidence that the Government was involved in or consent to the topping of the tree. Instead, the relevant conduct was the Service’s decisions that comprised its hazardous tree management plan and its execution of that plan. The issue was whether the controlling statutes, regulations, and administrative policies required the Park Service to locate and manage hazardous trees in any specific manner. The Court concluded that the Service’s unwritten tree management plan did not mandate any particular methods of hazardous tree management, and its choice to use “windshield inspections” in low usage areas of the park was a discretionary decision — driven by limited resources — not to individually inspect every potentially hazardous tree in the park.

– Tom Root


Case of the Day – Monday, May 20, 2019


This bunch is pretty happy ... The Wongs? Not so much.

This bunch is pretty happy … The Wongs? Not so much.

The Wong family, through their company Happy Bunch, LLC, was quite happy indeed with the nice piece of property the family occupied. The Wongs especially liked the 10 trees that lined one boundary. They had planted and nurtured them for 20 years or so, and the trees had gotten big enough that eight of them actually straddled the boundary line with their neighbor.

But what a hot dog the neighbor turned out to be! Grandview North was a developer, and planned a Wienerschnitzel franchise on the lot next door. The City required that Grandview add about four feet of fill to the lot, and Grandview was afraid the Wongs’ boundary trees would get in the way. Grandview had a survey done, and the company knew the trees were on the boundary line, with most of the trunks on the Happy Bunch land (two were entirely on the Happy Bunch side of the boundary). So what? After finding itself unsuccessful at getting Mr. Wong to consent to the trees being cut down, Grandview made its view grander by taking out the trees itself. Mr. Wong was done wrong …

Happy Bunch sued. The trial court ruled that Grandview owed $32,000 or so for the trespass to timber, but it refused to impose statutory treble damages, finding them not applicable to boundary trees.

The Court of Appeals, in a case of first impression, disagreed. It ruled that boundary trees in Washington State are owned by both landowners as common property, and neither may cut them down without the consent of the other. The Court ruled that damages when a boundary tree is cut down is the replacement value of the tree, apportioned by the percentage of the trunk on the injured landowner’s property, a method that strikes us as rather artificial and likely to undervalue the tree to the injured property owner. What, Happy Bunch gets half a tree back? There was a little justice, however: the Court of Appeals ruled that the treble damage statute for trespass to timber applied to boundary trees as well as other trees.

Happy Bunch, LLC v. Grandview North, LLC, 173 P.3d 959 (Wash.App. Div. 1, 2007). The Wong family owned land through its limited liability company, Happy Bunch LLC. Grandview, was a property development company that purchased a parcel of property next door the Happy Bunch property to build a Wienerschnitzel drive-through restaurant. The City of Mount Vernon required that four feet of fill be placed on the Grandview property as part of the planned development.

cutdownTwelve mature trees stood either on or near the boundary line between the Happy Bunch and Grandview properties. Some portion of the trunks of 10 of the trees — all originally planted by the Wongs some years before — extended from the Happy Bunch property onto the Grandview property. Grandview believed it couldn’t meet the city’s fill requirement without putting a retaining wall on the Happy Bunch/Grandview property line. Because the roots and trunks of the trees extended onto Grandview’s property, Grandview believed that they would interfere with the construction of the retaining wall and decided to move them, even though Grandview knew a survey showed the trees’ true location on the property line.

The Happy Bunch was not happy, not agreeing with the plan, and found through its own survey that the trees were either on the boundary line or entirely on the Happy Bunch land. Despite Happy Bunch’s opposition, Grandview cut down all ten trees. Happy Bunch sued, claiming that it had acquired title to the land under and around the trees by adverse possession due to the Wongs’ maintenance of the trees and surrounding area. It also sought damages for both the value of the cut trees and the estimated $15,065 cost of digging up the trees’ root systems and repairing damage to the Wongs’ driveway likely to be sustained as a result. Happy Bunch also requested that the entire award be trebled pursuant to Washington law because of Section 64.12.030 of the Revised Code of Washington, the state’s timber trespass statute, thus seeking a total damage award of $168,294.

Hotdogg160610The trial court ruled that Grandview committed timber trespass by cutting the trees on the Wong/Grandview property line. The trial court took the damage figure to the trees of $40,033, and multiplied it by the percentage of the cut trees that had been growing on Happy Bunch’s property, resulting in damages of $32,519.22 to Happy Bunch on its timber trespass claim, as well as $2,500 for the cost of grinding out the remainder of the stumps. The court denied the damages of $15,065 for completely removing the trees’ root systems and repairing the resulting damage. Finally, the trial court ruled that Happy Bunch was not entitled to treble damages as provided by the timber trespass statute “[b]ecause the trees that were cut straddled the common property line.”

Happy Bunch appealed.

Held: Judgment was reversed on most counts. The Court of Appeals concluded that Happy Bunch was only entitled to recover damages for injury to those portions of the trees growing on its land. However, the Court found that RCW § 64.12.030’s treble damages provision did apply.

In most jurisdictions, a tree standing on a common property line is considered the property of both landowners as tenants in common. Although Happy Bunch admitted that courts commonly calculate damages based on the value of each cut tree, apportioned according to the percentage of the tree that was located on the injured landowner’s property, it contended that the proper approach here was the one applied in the Colorado case, Rhodig v Keck. Rhodig held that absent a showing of an agreement to the contrary, a boundary line tree belongs entirely to the party on whose land the tree was originally planted, with damages calculated accordingly.

The Court of Appeals rejected Rhodig, holding that adoption of its rule would enable Washington landowners to effect boundary line adjustments with trees, creating “an entirely new theory of adverse possession without a basis in either the statutory or common law of this state.” The Court said the Rhodig holding would mean that Happy Bunch acquired title to the land under the trees simply because had once had planted the trees. Therefore, the Court held, a tree standing directly upon the line between adjoining owners so that the line passes through it is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other. Grandview had an interest in the trees proportionate to the percentage of their trunks growing on Grandview’s property, and thus, the trial court correctly awarded Happy Bunch only that portion of the trees’ value reflecting Happy Bunch’s property interest in them.

Happy Bunch contended that an award of treble damages was mandatory pursuant to RCW § 64.12.030, unless Grandview proved one of the mitigating factors listed in the statute. The Court agreed, holding that the trespasser must allege and prove mitigation, and absent such a showing, treble damages will be imposed. The Court rejected Grandview’s argument that it believed it had a right to remove the trees, noting that Grandview possessed a survey that indicated that the majority of the trees were predominantly located on Happy Bunch’s property, and that at least two of the trees were not located on Grandview’s property at all. The Court said that where a person has been given notice that another has an ownership interest in trees, and the person nonetheless cuts them down, the actor will be liable for treble damages under the statute. Both the punitive and compensatory policies underlying the statute are implicated with respect to boundary line trees, the Court reasoned, and for that reason, the statute must be applied.

– Tom Root


Case of the Day – Friday, May 17, 2019


Think how much litigation a talking horse might have saved ...

Think how much litigation a talking horse might have saved …

A horse is a horse, of course, of course…

Sherri Ann Konieczny — and we’ll just call her Sherri Ann — was horseback riding at the Dmytros’ farm. Sadly, her horse, who was neither named “Mr. Ed” nor could talk, was unable to warn her about the pile of timber hidden in the tall grass. Instead, the horse struck the pile of wood left by Mr. Dmytros along a fenceline, and then tripped and fell. Sherri Ann fell, too, and the Dmyrtos’ insurer got sued.

But Sherri Ann was a non-paying guest of the Dmytros. Their insurer thought her claim was… well, was the kind of stuff you find falling from the south end of a northbound horse, if you get our allusion. The insurance company defended under the recreational user immunity statute.

That statute hardly applies, the grievously injured Sherri Ann argued, because Wisconsin’s recreational user immunity law only relates to the condition or maintenance of the land. A stack of timbers, she said, aren’t related to the condition or maintenance of the land.

Maybe Sherri Ann’s horse couldn’t talk, but the Court of Appeals could: it said “neigh.” The Court ruled that the intent of the recreational use law was to encourage landowners to open their lands to the public. The Dmytros’ act of storing lumber on their land was the kind of thing a landowner would normally do. Clearly, if the courts started drawing such artificial lines – such as holding that a landowner’s typical use of his or her land might negate recreational user protection – then landowners would be unable to  trust the recreational use statutes, and they simply wouldn’t open their lands to recreational users at all.

It’s a constant balancing act between giving injured people the right to collect for injuries caused by the negligence of others and encouraging a socially useful end like public access to recreational opportunities. The Court did it well in this case.

Konieczny v. Wausau-Stettin Mut. Ins. Co., 740 N.W.2d 902 (Wis.App. 2007). Sherri Ann Konieczny was injured while horseback riding on William and Cecilia Dmytro’s property. According to Konieczny, her horse struck a piece of timber that was lying next to a fence line, causing the horse to lunge forward and throw her to the ground.

The Dmytros had obtained the timbers about five months earlier when William Dmytro helped a neighbor demolish a barn. The timbers had been stored by the fencerow ever since.

Konieczny sued the Dmytros’ insurer, Wausau-Stettin, which moved for summary judgment under Wis. Stat. §895.52, the recreational immunity statute. Konieczny argued the recreational immunity statute did not apply because the storage of the timber on the Dmytros’ property was unrelated to the condition or maintenance of the land. The trial court ruled that Konieczny’s claim was barred, and she appealed.

Held: Konieczny’s claim was properly rejected under the Wiconsin recreational use statute.

So an owner's clutter might constitute a "condition of the land?"

So an owner’s clutter might constitute a “condition of the land?”

Horseback riding is explicitly included within the statutory definition of “recreational activity.” A plain reading of the statutory language, the Court said, appeared to bar Konieczny’s claim because the Dmytros had no duty to keep the property safe or to warn Konieczny about the timbers. Konieczny claimed the statute did not apply where a landowner’s conduct causes injury and that conduct is not directly connected to the condition of the land. But, the Court noted, the recreational immunity statute was designed to immunize people in their capacity as landowners to encourage them to open their land for public use.

Here, the Dmytros’ act of storing timber along their fence line is not distinct from their capacity as landowners. The timber constituted a condition on the Dmytros’ land and their act of putting it there created that condition. Contrary to Konieczny’s assertion, the timber was not unrelated to the condition or maintenance of the land. This situation fits squarely within the parameters of the recreational immunity statute, the Court held.

– Tom Root