Case of the Day – Monday, March 8, 2021

WHAT IS THIS CASE DOING IN MY COURTROOM?

socks150311

I recall once enjoying the spectacle of a young lawyer squirming during a pretrial hearing. I couldn’t help myself – he represented the opposing party and generally was insufferable. The judge picked through the sharp young attorney’s pleadings liked he was sorting a pile of smelly socks, and then demanded to know “what is this case doing in my courtroom?”

schadenfreude150311Ah, schadenfreude! Such a guilty pleasure, chiefly because I have no doubt that I myself have on many occasions given other lawyers opportunities to enjoy schadenfreude at my expense.

Still, there are a lot of cases that ought to never see the inside of a courtroom. Today’s case is a good example. A man named Klemme burned some brush one day. He carefully tended the burn pile, kept water and a phone handy lest the fire gets out of control, and checked for burning embers before he went home that night. He was on the scene the next day, too, and saw no smoldering debris. The next day, however, the wind came up, and somehow fire burned about 400 young seedlings planted in the neighboring unimproved property, owned by the widow Zech.

The seedlings were fewer than one percent of the 62,000 seedlings planted by the Zechs pursuant to a deal they had made with a federal conservation program. They had bought seedlings for about 30¢ apiece and planted them over a period of years. Then Mr. Zech died, and after that, Mrs. Zech never visited the property. She admitted she couldn’t say for sure that it had been Klemme’s burn pile that had started the fire. She admitted that a lot of other seedlings had died of natural causes and that she hadn’t replaced the seedlings allegedly killed by the fire or the ones that had simply died. Finally, she was unable to show that the fair market value of the real estate had fallen because of the damage to about 0.66% of the seedlings on the premises.

This case was not, to use as a Latin phrase, a “slam dunker” for Mrs. Zech. If she felt she had been damaged, why didn’t she spend $120.00 for 400 new seedlings? If she permitted many of the 62,000 seedlings to die without replacement, how seriously had her enjoyment of the property – which she didn’t visit because of the amount of snowfall and because it apparently evoked memories of her late husband – been compromised?

Mr. Klemme’s lawyer filed a motion for summary judgment, asking the Court to grant judgment for the defendant without a trial. Summary judgment is a useful device for economically ridding the court of a dog of a case, where there is no genuine issue of fact, and where one side is entitled to judgment as a matter of law. The trial court obliged him, holding that the proper measure of damages was decrease in the value of the property, and because Mrs. Zech could not show any evidence that the value of the premises had fallen.

Mrs. Zech appealed, arguing that the measure of damages should have been the replacement value of the seedlings. What, we’re talking $120.00 here? As little sense as that made, the trial court held that the seedlings were “special purpose” trees, because the Zechs were required to plant them as a condition of having the land enrolled in the CRP. Because they were “special purpose” trees, the proper measure was decrease in fair market value, the Court of Appeals held, thus agreeing with the defendant.

A priceless Ming vase (note the clear label)

A priceless Ming vase (note the clear label)

This is a peculiarity of the law of negligence. Not only must there be a departure from the standard of care (someone has to be a klutz), but there must be harm flowing from the klutziness. If I drop your priceless Ming vase, but it bounces without breaking, you have no claim against me for negligence. If it breaks … that’s another story.

Was Mr. Klemme negligent? Did his burn pile spontaneously combust? We’ll never know, because – whatever caused the fire – Mrs. Zech didn’t suffer any loss.

Zech v. Klemme, 803 N.W.2d 128 (Iowa App. 2011). One spring day, strong winds rekindled an ember in a burn pile located on Klemme’s property and started a grass fire that damaged trees on Zech’s property. Several days before, Klemme had burned brush and tree limbs in a burn pile located about 300 feet from the Zech property.

Klemme kept a water hose nearby and used the hose to wet down the adjacent area to prevent the fire from spreading. He also had a cellular telephone available to contact the local fire department if necessary. Klemme said he stopped burning at about 11 a.m. on April 2, and when he left his property at the end of the day, the burn pile had subsided to ashes. He worked on his property on April 3, and observed the pile throughout the day, noting no sign of any smoldering embers. Klemme also said he had no knowledge there would be any strong or sudden gusts of wind on April 4th.

fire150311Zech had enrolled the land where the fire occurred in the federal Conservation Reserve Program (CRP). The CRP required Zech to prevent erosion and provide wildlife habitat on the acreage and prohibited her from harvesting the trees or using the land for livestock or crop fanning. In exchange for her enrollment in CRP, Zech received an annual payment starting in 2002 and continuing through 2006. For conservation purposes, Zech and her late husband planted between 2,000 and 3,000 bare root seedling trees each year. At the time of the fire, about 62,500 trees of various species had been planted on the CRP land.

The Zechs purchased the bare root seedlings from the Iowa State Forest Nursery at about $0.30 each. Zech asserted that over 400 trees were damaged in the fire. In the ordinary course of nature, wildlife, insects, disease, and climatic conditions have also damaged or destroyed some of the trees on the CRP land. Zech has not removed, replaced, treated, repaired, pruned, trimmed, or cut down any of the trees that have been damaged or destroyed by the fire or by natural causes. She does not live on the CRP property and the fire did not change her use of the land.

Zech contended in her complaint the appearance of the burned branches on the trees she planted with her late husband has diminished her emotional enjoyment of the land. However, she did not argue the fire has diminished the fair market value of the land. The fire did not cause Zech to incur a loss of income, nor did it cause her to incur any additional expense. She also did not argue that the damaged trees had any historic value.

Zech had no personal knowledge as to the cause or origin of the fire, and she did not contend Klemme acted intentionally to harm the trees.

The trial court held that the trees on the land were “special purpose” trees, and that the measure of damages was the decrease in the fair market value of Zech’s property. Because there was no proof of any loss of market value, there were no damages, and Klemme was granted summary judgment.

Zech appealed.

Held: The trial court properly determined what damages should be considered, and correctly concluded that Zech had not been damaged.

The Court of Appeals observed that Laube had noted 25 years before that “[i]t is impossible to state a simple, all-purpose measure of recovery for loss of trees.” Therefore, trial courts are granted a degree of discretion to select how to assess damages based on the facts of each case.

seedlings150311Zech argued the appropriate calculation for damages should be the replacement cost of the seedling trees damaged or destroyed by the fire. Where trees can be replaced, a reasonable cost of replacement is the appropriate measurement of damages. Laube, the Court noted, involved the removal of about 100 walnut trees. The Laube court decided that the replacement cost measure “would obviously be inappropriate,” and the trial court in this case – which was dealing with about 400 trees – was likewise right that a replacement calculation would not work. Compounding the problem, Zech admitted she has not replaced or treated any of the damaged trees since the fire in 2005, nor has she expressed an intent to do so in the future.

Instead, the trial court concluded that the appropriate measure of damages for Zech’s loss should be the “special purpose” or “special use” calculation used in Laube. Where trees are put to a “special purpose” or have a “special use” – such as for windbreaks, shade or ornamental use – damages are based upon the difference between the market value of the land before and after the destruction of the trees. The trial court viewed the conservation use of the trees as required by CRP to be a special purpose, and thus concluded that any enjoyment Zech derived from the trees was incidental to the primary purpose of the CRP land. Besides, the Court of Appeals noted, while Zech herself had testified that the burned trees reduced her enjoyment of the land, she admitted she no longer regularly walks on the CRP land, citing the fact that “there has been too much snow for one thing.” She also admitted that she had ceased her custom of walking the land after her late husband passed away.

Zech also admitted that the fire did not cause her to change her use of the land. The trial court concluded that Zech’s deposition testimony did not establish a special use relating to her enjoyment of the land, nor a diminution in her enjoyment due to the fire. Using the ” special purpose” market value calculation, the trial court concluded that the issue of damages entitled Klemme to summary judgment because the record did not demonstrate a loss in market value of the land.

The Court of Appeals approved of these findings and left them undisturbed. Because Zech has not sustained any compensable economic loss as a result of the fire, the Court affirmed the trial court’s summary judgment ruling on damages.

– Tom Root

TNLBGray

And Now The News …


Boston, Massachusetts, Globe, March 7, 2021: A green barrier: To replace decrepit Bunker Hill complex, developers say, 250 trees must fall

With the Tobin Bridge looming above and a vast expanse of asphalt below, the towering maples, elms, and hundreds of other decades-old shade trees supply fresh air and a hint of grace to a bleak stretch of urban decay in Charlestown. But many of them may soon be cut down. To make way for the long-delayed replacement of the Bunker Hill public housing complex — a crumbling, infested warren of brick buildings in dire need of renovation — the developer and city officials say they must remove about 250 mature trees, three-quarters of those growing on the 26-acre property. It would be among the largest removal of trees in recent city history, double the number that the city last year planned to take down for a controversial road project along Melnea Cass Boulevard in Roxbury. The city withdrew the plan after protests. Opponents say the loss of so many trees — some nearly a century old — would devastate the neighborhood’s thin canopy, harm air quality, and deepen health disparities faced by low-income residents…

Bakersfield, California, Californian, March 4, 2021: Rosedale Ranch’s iconic palm trees are on the chopping block, and PG&E wields the ax

It was the 1940s, the end of World War II when U.S. Navy pilot Jim Gardiner came home to the fertile San Joaquin Valley and began to carve a working farm out of sagebrush and virgin land northwest of Bakersfield. At the gateway to the property stood more than 250 palm trees planted in double rows in the shape of a cross. The trees, now known as the Cross of Palms, have been there, it is believed, since the 1880s. “They are majestic, but PG&E is killing them one by one,” said Jim Gardiner’s son, Keith Gardiner. On Monday, a tree removal service contracted by the giant utility cut down seven trees. Some weeks before that, six trees were leveled. Keith Gardiner is beside himself with worry. He feels his family’s heritage and his community’s history are being threatened because PG&E placed the electrical lines too close to the already existing palms. “PG&E obtained an easement to place a power line 12 feet from the trees in 1958, decades after the trees were planted,” he said. “On occasion some palm fronds get close to the lines. It never has been a hazard and now they are claiming the trees are a danger…”

ABC News, March 5, 2021: First oak trees selected to replace Notre Dame’s spire

The first eight oak trees destined to replace the destroyed spire of Paris’ scorched Notre Dame cathedral have been selected from the Bercé forest in the French Loire region, church officials said on Friday. The iconic, 96 meter (315 foot) spire was completely destroyed in the fire that ravaged the Paris monument in 2019. It was made by architect Viollet-le-Duc in 1859. “It is a source of pride for the foresters of the National Forestry Office to participate in the rebirth of Notre-Dame de Paris,” said Forestry Office Director Bertrand Munch. The first oaks measure around one meter (3.2 feet) in diameter. Officials said the 1,000 oaks that are needed to fully rebuild the spire are all scheduled to be cut by the end of March…”

Munster, Indiana, Northwest Indiana Times, March 7, 2021: Ornamental pear trees … the Tribbles of our time

There’s a tree lurking in our neighborhoods secretly causing harm to nature preserves and the Indiana Dunes National Park, even as I am writing this column. Pyrus calleryana, commonly known as callery pear or ornamental pears, is quickly becoming one of Indiana’s worst invasive species, choking out prairies, oak savannas, forests and woodlands. You may know it by its white blossoms and names such as Aristocrat, Autumn Blaze, Bradford, Capital, Chanticleer, Cleveland Select, Redspire or Whitehouse. Unfortunately, while nurseries may have told us flowering ornamental pear trees are sterile, different varieties being planted next to each other are hybridizing. As a result, many of these trees are now producing small brown fruits, inedible to us, but desirable to squirrels and birds. Inside these fruits are viable seeds that can be pooped out miles away, producing saplings everywhere that are not susceptible to drought, heat and pollution. Suckers from the roots can also produce little trees, and those root-born trees spread infestations even further. These beautiful trees have endeared themselves to us over the years, reminding me of furry tribbles from a 1967 episode of “Star Trek.” The tribbles were adorable but, just like these trees, rapidly multiplied and spread across the landscape to the horror of the “Star Trek” crew. One of the first wild ones I spotted was along U.S. 12 in Porter County in the Indiana Dunes National Park. It was easy to identify because this tree typically begins blooming much sooner than all the other flowering trees. Eric Bird, stewardship manager with Shirley Heinze Land Trust, is also seeing these Tribbles pop up in Cressmoor Prairie Nature Preserve and other sites in Hobart. I hope we won’t end up like other parts of the state where thickets of them are everywhere, especially along rights of way…

Africa News, March 4, 2021: Where are the world’s tallest trees and why are they so important?

California redwoods are some of the tallest, most ancient trees on earth. Estimating their exact size, however, can be a difficult task. Until recently, the only way of working out just how big these trees were was to climb up them, approximate using the diameter of their trunks, or cut them down. But these methods are not particularly reliable and can have a large margin of error. Now, scientists at University College London and the University of Maryland have developed a way to calculate their total mass using lasers. It has allowed them to gain “unprecedented insights” into the 3D structure of these giant redwoods. Among the trees scanned was the 88 metre tall Colonel Armstrong. Located in the Armstrong Redwoods State Natural Reserve in California, US, it is 88 metres tall and estimated to be over 1400 years old. It was found that Colonel Armstrong may weigh around 110 tonnes or as much as roughly 10 double-decker buses. They discovered that these large trees could be as much as 30 per cent bigger than previously thought…

Cleveland, Ohio, Plain Dealer, March 4, 2021: North Olmsted focuses on urban canopy, seeks Tree City USA designation

Arbor Day will have a special feel this year, with the city currently reviewing and renewing its efforts to preserve and enhance its urban tree canopy for future generations. One of the first dominoes expected to fall is North Olmsted regaining its Tree City USA designation, which it had held for more than a quarter of a century before it lapsed in 2010. “We’re working on regaining our status as a Tree City USA this year,” North Olmsted Director of Planning and Development Kimberly Lieber said. “We’ve started fact-finding around the process and criteria, and are planning some type of Arbor Day recognition.” Arbor Day is April 30. Regarding Tree City USA criteria, Lieber said North Olmsted is in good shape. Not only does it have a forestry department and a tree ordinance on the books, but the city is currently spending at least $2 per capita on urban forestry needs…

Springfield, Massachusetts, Republican, March 4, 2021: ‘Trees don’t get COVID’: Sugar shacks reopen in Massachusetts after being closed during 2020 season due to COVID pandemic

After closing early due to the COVID pandemic in 2020, sugar shacks in Massachusetts have reopened their doors for another season. “We are boiling,” Steve’s Sugar Shack in Westhampton posted to Facebook on Feb. 26. In February, the sugar shack posted it was already fully booked for opening weekend, which is March 6. Due to COVID-19 regulations, seating is by reservations only. Coupled with a shorter season, the sugar shack expects these time slots to fill up quickly. “As you consider when to come, please note that we will only be open for total of 8 days, and we expect reservations to fill up fast,” the website states. As of Monday morning, there are still many open slots for the season, although there are some slots already booked through the last weekend Steve’s Sugar Shack plans to be open. They’re not the only ones. There are about 300 maple producers in the state. About 20 of those have restaurants and many more allow visitors to encourage sales. “Trees don’t get COVID and they’ll be making sap, so sugarmakers will be making maple syrup,” the Massachusetts Maple Producers Association website states. The season typically starts in mid to late February and lasts four to six weeks, “all depending on the weather,” Massachusetts Maple Producers Association said. The Maple Weekend is celebrated March 20 through March 21 this year…

Jamestown, North Dakota, Sun, March 4, 2021: Jamestown considers tree inventory project

There are a lot of trees on the public properties of Jamestown, although nobody is sure just how many, according to Eric Laber, Jamestown city forester. “The last inventory was in 2015,” he said. “Somewhere around 10,000 to 12,000 trees on the boulevards and in the parks in Jamestown alone.” Laber is proposing a project to update that inventory this summer and possibly include the Stutsman County Park Board in the project to count all the trees in its parks. “There is an economy of scale to do the project together,” Laber said. “The same inventory program and person could do all the work.” The tree inventory would only include trees on public lands such as street boulevards and parks. It would not include trees on private property. The project is not just a count of the trees but will include a breakdown by species. “It will be interesting to see how many elm have been lost to Dutch elm disease,” Laber said. “There are other trees that have been lost to the wind over the past few years too.”Previous inventories of trees in Jamestown have indicated about 45% were ash trees. “That is too much of one species,” Laber said. Laber said the emerald ash borer, an invasive insect from Asia that could decimate the ash tree population, is in the region, with confirmed reports in South Dakota, Minnesota and Manitoba. The forestry department is part of a trap and identify program checking for the presence of the emerald ash borer and the Asian longhorned beetle that also can kill trees…

National Geographic, March 3, 2021: Tree of heaven is a hellish invasive species. Could a fungus save the day?

Many trees would be lucky to be as beautiful as Ailanthus anltissima, also known as tree of heaven, a deciduous tree with quill-shaped leaves, light gray bark, and red-and-yellow-tinted seeds that resemble a sunset. But outside its native China, the plant has also earned the nickname “tree of hell,” due to its highly invasive nature: it can grow three feet a year, cloning itself via underground “suckers,” or through the hundreds of thousands of seeds each tree produces every year. The notorious plant wipes out native species with its dense thicket and toxins it excretes into the soil. It also emits a bad smell from its flowers; has no natural predators; and serves as a sanctuary for destructive invasive insects, such as the spotted lanternfly. (See pictures of 11 sacred and iconic trees.) Since its introduction by enthusiastic horticulturists to the United States nearly 240 years ago as a shade tree and botanical specimen, Ailanthus has spread to all but six U.S. states, and has gained a foothold on every continent except Antarctica…

Houston, Texas, Chronicle, March 3, 2021: Galveston’s iconic palm trees struggling to survive after deadly freeze

Galveston’s majestic palm trees could be another casualty of Texas’s four-day freeze last month. The cold snap that left millions of Texans without power and caused burst pipes across the state has also had a pronounced effect on local vegetation. Days after the freeze, with the winter weather now normalizing to mild temperatures for the region, many trees in Galveston remain in a torpid state — with brown leaves, broken branches and a general hang-dog appearance. “Your Queen Palms, Japanese blueberry trees, citrus trees, olive trees — there’s probably a 90 percent chance that those are just really not going to come back,” said Orvis Himbaugh, owner of Tree Worxx, a company that specializes in tree servicing in Galveston County and the Houston area. Galveston’s iconic palms, synonymous with the island’s laid-back ethos, bore the brunt of the impact from the harsh weather. The lofty trees — there are more than 20 species of palms on Galveston island — are surprisingly resilient, able to withstand the region’s volatile climate from hurricanes and tropical storms to the occasional frost. But the sustained subfreezing temperatures and vicious winds in February proved too severe for the trees to overcome…

Portland, Maine, Press-Herald, March 3, 2021: Oakland woman impaled by tree branch in ‘fair’ condition

An Oakland woman was listed in fair condition Wednesday at an Augusta hospital after a tree fell on a car she was traveling in and a branch penetrated the dashboard, impaling her Tuesday in Sidney. Theresa Roy, 79, was sitting in the front passenger seat of a 2016 Hyundai Santa Fe being driven north on the Pond Road by her husband, David Roy, 78, at 10:06 a.m. Tuesday when the crash occurred, according to Lt. J. Chris Read of the Kennebec County Sheriff’s Office. “High winds caused a large pine tree to snap and fall onto the vehicle as it traveled,” Read said Wednesday in a news release. “This caused heavy damage to the vehicle and a branch penetrated the dashboard, ultimately impaling Theresa…”

Grand Rapids, Michigan, Grand Rapids Business Journal, February 26, 2021: Wolverine Worldwide submits PFAS remediation plan for House Street property

Wolverine Worldwide recently submitted a feasibility study to the Michigan Department of Environment, Great Lakes and Energy outlining a comprehensive plan to address per- and polyfluoroalkyl substances at its House Street property. The proposal combines multiple remediation methods while working to preserve sizable greenspace that “complements the area’s rural character,” the Rockford-based maker of footwear and apparel posted on its blog, WeAreWolverine. The feasibility study and the remediation of the company’s House Street property is one component of its efforts to address per- and polyfluoroalkyl substances (PFAS) contamination in the area stemming from historic disposal of waste containing chemicals that were part of a previous formula for 3M’s Scotchgard product that Wolverine used to waterproof its leather shoes beginning in the late 1950s and early ’60s. PFAS have been linked to certain types of cancers and other health issues… The remediation plan for the House Street property combines two remediation methods to remove PFAS from the ground and further reduce the impact of PFAS on groundwater, Wolverine said. The first method, phytoremediation, is a process where the roots of trees planted on the property will pull PFAS out of the ground over time. The second method, strategic capping, involves installing specially engineered membranes over the thickest areas of PFAS, preventing that PFAS from getting into the groundwater. This “phyto-cap” plan addresses the remediation objectives outlined in the consent decree and has the added benefit of preserving a 76-acre green space in the middle of a rural residential area, Wolverine said…

Chicago, Illinois, Lake County News-Sun, March 2, 2021: Fate of centuries-old Waukegan oak tree unclear after being pruned in the name of progress

The bur oak tree on the corner of Green Bay Road and Grand Avenue in Waukegan was alive and growing before European settlers had even arrived in the area, then known as Little Fort. It survived as the town grew, even after roads were paved, streets and traffic lights were installed and two recent developments threatened its destruction. Now, the roughly 230-year-old tree is just a glimmer of its former glorious self, according to a Waukegan man and his two grandchildren who helped save the tree from being removed in 2015. This winter, “Commonwealth Edison has come along and cut half the tree down to string a new electric line,” said Pat Carry, who lives four blocks away from the tree. “I’m sure ComEd did have the right to do that, but seeing that the tree is so old, they could have gone around it.” The number of oak trees has been declining in northern Illinois, including in Lake County, for decades. ComEd said the pruning done on the tree was necessary to erect a new power line at the busy intersection to provide electricity to roughly 335 customers…

Mankato, Minnesota, Free Press, March 2, 2021: Ash borer expected to kill 17% of Mankato’s trees

The inevitable arrival of the tree-killing emerald ash borer is expected to take one in every six trees in Mankato in the next decade or so and leave hefty bills in the laps of homeowners with large backyard ash trees. A report to the Mankato City Council Monday night also warned of $1.5 million in expenses just to deal with the estimated 2,500 ash trees on city land. And the report sets out proposed processes for identifying infested trees on private property and requiring their removal at the property-owner’s expense, although options may be provided to pay the bill — which could top $1,000 for large, difficult-to-remove trees — over several years. “It’s going to have a big financial impact on all of our residents as well as the city of Mankato,” said Ashley Steevens, the city forester and superintendent of parks. An “Emerald Ash Borer Management Plan” was originally to be presented to the council a year ago before being delayed by a more pressing scourge — the COVID-19 pandemic. But with the invasive beetle closing in on Mankato from all directions, city staff said preparations for the ash borer can’t wait much longer. “With an estimated 17,400 ash trees on public and private properties combined in Mankato — including 2,500 in boulevards, parks and city managed properties — the city is at risk of losing approximately 17% of its existing tree population in the next 10 years,” the report states…

Boston, Massachusetts, Christian Science Monitor, March 2, 2021: For this community, trees bring more than shade. They represent justice.

The grumble of car engines whizzing by seems to fade when Yvonne Lalyre talks about the trees. Her eyes sparkle above her mask as she walks the row of natural sentinels between her neighborhood, Roxbury, and the asphalt urban artery that is Melnea Cass Boulevard. “They’re like lungs,” Ms. Lalyre says, looking up in reverence at the canopy of green. “Without the trees, we would just …” Her eyes dim as she trails off with a sigh. “I don’t know. It would be so much worse.” The trees that line the boulevard have been at the center of tensions between Roxbury residents and the city of Boston for the past year. City plans to overhaul the boulevard included cutting many of those trees, thus removing a large portion of the tree canopy in the low-income and largely Black and brown neighborhood. In cities across the United States, research has found that tree canopy typically inversely correlates with income – and that the lack of greenery is making those neighborhoods hotter and more polluted, among other detrimental effects. But in Boston and other cities, there appears to be a shift in thought. As more communities start to map their trees, more residents are getting involved in the conversation…

Pittsburgh, Pennsylvania, Post-Gazette, February 27, 2021: Felling trees for safety

Dozens of decades-old trees have been felled at the Short Line Hollow Park trail head in Ross as part of ongoing efforts to stabilize the hillside. In the wake of the work, a volunteer group that had been working with township officials to improve trails and access to the park has decried the denuding of the land, with one such volunteer proclaiming the park “dead” in a passionate post on the Friends of Short Line Hollow Park Facebook page. Municipal officials, as a matter of course, should work hard to preserve trees, especially those in green spaces — for their environmental value, their beauty, their history. However, when those trees stand in the way of safety or land stability, they must be carefully and minimally pruned, thinned or even cleared. The issue for Short Line Hollow Park began in 2019, when the nearby Reis Run Road experienced a landslide that blocked the moderately trafficked road with thousands of tons of “fill.” Township officials chose to dump some of the fill at the Short Line trail head on Cemetery Lane to reopen the road as quickly as possible, temporarily closing it to hikers and bikers and promising a multiyear plan to increase parking and make the trail head — formerly accessible only to experienced hikers — more accessible to the general public…

The Nature Conservancy, March 12, 2021: New Study: U.S. Needs to Double Nursery Production

In order to realize the potential of reforestation in the United States, the nation’s tree nurseries need to increase seedling production by an additional 1.7 billion each year, a 2.3-fold increase over current nursery production. Currently the nation produces 1.3 billion seedlings per year. These numbers, taken from a new study, show the promise of increased nursery output as a way to fight climate change, create jobs, and recover from uncharacteristically severe wildfires. With more than 200,000 square miles in the United States suitable for reforestation, ramping up nursery production could offer big benefits for the climate. Restoring forests is an important nature-based solution to climate change and a complement to the critical work of reducing fossil fuel emissions. “To meet the need for reforestation, we’ll need to invest in more trees, more nurseries, more seed collection, and a bigger workforce,” said the study’s lead author, Joe Fargione of The Nature Conservancy. “In return we’ll get carbon storage, clean water, clean air, and habitat for wildlife.” The new study, published in the science journal Frontiers in Forests and Global Change, was co-authored by 18 scientists from universities, nonprofits, businesses, and state and federal agencies…

Atlanta, Georgia, WSB-TV, March 1, 2021: Forest fires out West cause lumber prices to skyrocket here in Georgia

The cost of building a new home has spiked and it’s all because of forest fires. Last year’s wildfires out West destroyed millions of acres of trees that were supposed to become 2-by-4s. Now, there has been a huge increase in the price of lumber. Gwinnett County lumber yard owner Michael Johnsa told Channel 2′s Berndt Petersen when he saw what was happening, he knew it would turn the lumber industry upside down. “Most of the people who sell that building supply material have had a hard time getting it because of that. When you see something like that, it does strike you as a problem,” Johnsa said. Last year’s wildfires out West burned through millions of acres of trees that were supposed to end up in the form of lumber for new homes. Prices have skyrocketed. Even a do-it-yourselfer like Ray Phillips told Petersen that wood costs more everywhere. “Most of the retail stores like Home Depot and Lowes,” Phillips said. The pandemic also had a hand in this by forcing the sawmills to shut down. While many are back in business, socially distanced operations can’t cut nearly as much lumber…

Santa Rosa, California, Press Democrat, March 1, 2021: 224-acre logging plan above Russian River near Guerneville awaiting approval

A plan to log 224 acres of steep land above the Russian River, on the outskirts of Guerneville and Monte Rio, is expected to win approval in the coming days despite heavy opposition from residents and activists alarmed by the project’s proximity to rural communities and the natural landscape that draws tourists there. Representatives for the Roger Burch family, which owns the property and the Redwood Empire Sawmill in Cloverdale — where logs from the Silver Estates timber harvest would be milled — said the forest is overstocked and badly in need of thinning to promote the growth of larger trees and reduce excess fuels. But opponents say they remain unsatisfied by the planning process and have myriad outstanding concerns — everything from effects on wildlife habitat to soil stability, wildfire risks and visual impacts. They say the plan is governed by “outdated” forest practice rules that fail to account for climate change and heightened wildfire risks where wildland abuts or mixes with settled areas. “I still feel like we’re living with the legacy of Stumptown, and we still have to make amends,” said John Dunlap, a leader of the local Guerneville Forest Coalition. Stumptown was the nickname acquired by the community during the logging boom at the turn of the 20th century, when timber from the area helped rebuild San Francisco after the 1906 earthquake and fires. “It’s sort of like we’re not really listening to what the environment is telling us…”

Better Homes and Gardens, March 1, 2021: Money Almost Grows on Trees—When You Plant Them in Your Yard

Money may not actually grow on trees. But every leaf on every branch not only boosts curb appeal; it increases the value of your home in plenty of ways, including those you might not expect. Healthy, mature trees add an average of 10 percent to a property’s value, according to the USDA Forest Service. They reduce heating and cooling costs, increase privacy, soften noise, attract birds and pollinators, and create priceless memories. Like money, though, trees perform best when viewed as a long-term investment. To ensure your tree thrives, consider these tips based on a tried-and-true arborist rule: Plant the right tree in the right place at the right time. One tree can serve a variety of purposes. It can screen out a neighbor’s yard, add spring or fall color, create wildlife habitat, cut strong winds, and even cool a house with its shade. According to the Arbor Day Foundation, the net cooling effect of a young, healthy tree is equivalent to ten room-size air conditioners operating 20 hours a day. Aside from aesthetics and practicality, consider the easy outdoor recreation possibilities, from bird-watching to picnicking beneath the boughs. Fifteen years ago, I planted two river birches. In addition to shading the sunny front lawn in summer, softening the wind that whips down the street from the north, and hosting a variety of birds, they sport a much-used hammock tied between them…

San Francisco, California, KPIX-TV, February 28, 2021: Young Graduate Beginning His Career Killed by Falling Tree in Burlingame

The family of a young physics researcher at a Bay Area COVID-19 testing lab was in mourning Sunday after he was killed by a falling tree near the facility in Burlingame. Kahlil Gay had just graduated from Cal State East Bay in December and started working at the company. “At a very early age, he knew that he wanted to be in the physics or engineering field. He knew actually where he was going in life,” said the victim’s aunt, who declined to provide her first name. Family members said Gay was excited about his new job — working for Color, a health tech company that provides COVID-19 testing for several San Francisco city-run sites. “Kahlil had just called his parents to check in (before the tragedy,)” said the victim’s aunt. But that excitement quickly turned into a tragedy on his third day at the Color campus located on Mitten Road. “He was walking with a co-worker of his,” said Kahlil’s older brother, Darryl Gay, when the accident happened. Authorities told the family that around 4 p.m. Friday afternoon, Kahlil was walking with a co-worker on campus when he was struck by the tree. His injuries proved to be fatal. There’s no word on whether or not the co-worker was injured…

Davenport, Iowa, Quad City Times, February 28, 2021: It’s time to stop pruning oaks

The recent warm weather has given Midwesterners a taste of spring, which means it’s time to finish pruning oak trees for the year to prevent the spread of oak wilt. “The best way to prevent the spread of oak wilt is to not prune any oak tree between the end of March and the start of October,” said Tivon Feeley, forest health program leader with the Iowa Department of Natural Resources. “However, the warm weather conditions indicate that spring might be a bit early this year and for that reason, we recommend finishing your oak pruning by the end of the second week in March.” Oak wilt is caused by a fungus and has been present in the Midwest for many years. It most commonly impacts red, black and pin oaks, but can also infect white and bur oaks. If black, pin, or red oak are infected by the fungus they usually die within the same summer they are infected. White oak and bur oak can often take a number of years before they succumb. “A healthy tree can be infected by this fungus two different ways. The first is through open wounds during the growing season where the fungus is carried from a diseased tree to a healthy tree by a small beetle,” Feeley said. “The second is through root grafts between oak trees of the same species. For example, if a red oak is infected and there is another red oak within 50 to 100 feet there is a good chance that the roots of these trees are grafted and the fungus can move from the diseased tree to the healthy tree…”

Cleveland, Ohio, Plain Dealer, February 25, 2021: Holden Arboretum launches People for Trees campaign to green up balding patches of Cleveland, Northeast Ohio

Government can only do so much to solve the tree-cover crisis that’s spreading bald patches across Northeast Ohio, making communities uglier, less livable, more polluted, and more vulnerable to flooding, erosion and heat waves. That’s why the nonprofit Holden Forests & Gardens is launching a “People for Trees,’’ a campaign to enlist volunteers to plant 15,000 trees across the region by 2025. Holden, which operates a 3,500-acre arboretum in Kirtland and the 11-acre Cleveland Botanical Garden in University Circle, hopes to enlist some of its 17,000 members, 1,500 volunteers and 380,000 annual visitors to buy, plant, and care for the trees on private property, in yards or businesses. logic behind the campaign is that private property accounts for 85 percent of land within the region. If the public sector is responsible for only 15 percent, the private sector needs to step up, said Jill Koski, the president and CEO of Holden Forests and Gardens.That’s why the organization, which operates America’s 14th largest public garden, is reaching out to members and visitors two months ahead of Arbor Day, April 30. “We know who these people are,’’ Koski said. “We want to do more than a campaign. We want to start a movement. Long term, it’s not about a single organization. We need to bring more people into the fold…”

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Case of the Day – Friday, March 5, 2021

THE TROUBLE WITH TREBLES

No .. our troubles are with "trebles."

No .. our troubles are with “trebles.”

Most states have statutes on the books that increase the damages due for wrongful cutting of trees when that cutting is intentional. As we have seen in Johnson v. Tyler, statutory treble damages are intended to be applied instead of punitive damages. The treble damages are meant to punish a wrongdoer and deter misconduct.

But rare is the case where Charlie Chainsaw runs amok in your backyard, cutting down trees just for the thrill of watching them fall on your house. Now that would be “willful.” Usually, things are not – forgive the pun – that clear cut.

That’s the trouble with “treble.” The statute seems so limited in its coverage. Fortunately (that is unless you’re the malefactor), courts have defined “willful” expansively. You might think that “willful” means “intentional.” But you would be wrong. While “willful” is probably more than “negligent,” certainly more than mere “inadvertence” – it undoubtedly is “reckless.”

Whew! The whole concept’s kind of squishy. Listen to the Court of Appeals in today’s case: It said “willfulness” under Iowa’s treble damage statute is “under conditions that may be said to indicate something more than mere carelessness or recklessness. Of course, there was no personal malice against the owner. But there was a loose disregard for the rights of others … Certainly, there was something more than mere inadvertence.”

Got it?  Good for you, because we don’t.  More than “mere inadvertence” could be “gross negligence.” But what is “loose disregard for the rights of others?”  Generally, the law follows a continuum from strict liability – that is, liability without any fault at all – through negligence, gross negligence, recklessness, and intentional misconduct.

We’re tempted to suspect that the Court of Appeals found Lionberger’s and Norton’s conduct sufficiently outrageous that it was unwilling to let them off for a mere $1,500.00. Perhaps it believed the legislature intended that even negligence in the identification of boundaries should give rise to punitive damages. Whatever the Court’s rationale, it provided guidance to the definition of “willful” that shows a “loose disregard” for precision.

reckless150310Drew v. Lionberger, 508 N.W.2d 83 (Iowa App. 1993). Drew owned land that was surrounded by property owned by Lionberger. Codefendant Norton Lumber Company is in the logging business. In the fall of 1989 Lionberger hired Norton to log some trees on his land. Lionberger helped Norton in determining the boundaries of his land, but Lionberger never contacted Drew about the proper boundaries between the respective properties. As the result of improperly marked boundaries, Norton logged twenty-eight trees from Drew’s land. The trees were mature, some of them being as old as 150 years.

During trial, Drew testified he and his family used the land for hunting and hiking. He also produced testimony from an arborist that the trees were worth $17,053. Lionberger said the trees were worth between $535 and $1,500. The defendant’s expert based these figures upon the market value of the lumber cut from the trees.

The trial court determined that Lionberger and Norton were jointly and severally liable for the market value of the lumber produced from the trees in the amount of $1,473.

Drew appealed, claiming the trial court erred by using the market value of the lumber produced from the trees to measure damages, by not awarding treble damages for the willful cutting of the trees, and by failing to find that codefendant Norton Lumber Company trespassed on Drew’s land and wrongfully logged trees.

Held:  The district court was correct that the current market value of the lumber produced from the trees is the correct measure of damages. However, the trial court was wrong to conclude that treble damages were not warranted.

The Court of Appeals, relying on Laube v. Thomas, held that because Drew’s trees had no special use, the measure of damages was the commercial market value of the trees at the time of taking. The Court of Appeals held the district court’s finding that Drew was entitled to the market value of the trees – a princely sum of $1,473 – was right.

If you're dropping trees this close to the neighbor's house, you just may be in lines for paying some treble damages.

If you’re dropping trees this close to the neighbor’s house, you just may have a bill for treble damages in your future.

Drew also argued that Iowa Code § 658.4, applying treble damages, should have been applied. That statute provides that “[f]or willfully injuring any timber, tree, or shrub on the land of another, or in the street or highway in front of another’s cultivated ground, yard, or city lot, or on the public grounds of any city, or any land held by the state for any purpose whatever, the perpetrator shall pay treble damages at the suit of any person entitled to protect or enjoy the property.”

The Court of Appeals agreed. It found no substantial evidence to support the district court’s conclusion that Lionberger’s and Norton’s actions were not willful. The Court held that the trees were cut and removed “under conditions that may be said to indicate something more than mere carelessness or recklessness. Of course, there was no personal malice against the owner. But there was a loose disregard for the rights of others … Certainly, there was something more than mere inadvertence.”

Lionberger and Norton, on their own, had measured and marked what they thought was the Drew property. Because no boundary markers existed at the time the measurements were taken, they knew a question existed as to the boundaries of Drew’s property. Despite knowing this, the defendants never contacted Drew to determine whether or not the boundaries they measured were acceptable to him. Furthermore, neither Lionberger nor Norton communicated any intention to cut trees from the area in question to Drew prior to logging the trees.

Their failure to contact Drew or to obtain his input as to the existing boundaries before logging the trees, the Court concluded, was “clearly intentional. This conclusion is further supported by the fact that the defendants did their own measuring and then proceeded to cut the biggest and oldest trees from the area in question. Because we find the cutting of Drew’s trees to be willful in accordance with § 658.4, we conclude Drew is entitled to treble damages under the statute.”

Drew’s damage award thus went up from $1,473 to $4,418.

– Tom Root

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Case of the Day – Thursday, March 4, 2021

A DUTY TO HECTOR?

nag150327Today, we continue our consideration of the problem posed by Tracy from Pinebark, New York. You recall Tracy’s problem from yesterday: the neighbor’s arguably dead tree fell on her car, crushing it. She and her husband are tenants, and her landlady’s insurance carrier won’t cover the damage because it says the tree was dead. The neighbors’ insurance company won’t cover because it says the tree was alive. Tracy’s arborist agrees with her landlady that the tree was quite dead, and the neighbors appear to have had actual knowledge from work done by a previous arborist they had hired that the tree was a hazard.

Yesterday, we discussed why Tracy’s local lawyer should argue that the neighbors are liable, no matter what their skinflint insurance carrier may say. But Tracy, who understandably is looking for as many deep pockets as she can find, has asked whether her landlady is liable as well, because she knew the neighbor’s tree was a hazard but she never informed the neighbor of that fact. And that raises a very interesting (and rather creative) question.

Once again, we warn Tracy that we are not New York lawyers, and we are not rendering legal advice. She should see her local attorney for that. That being said, there’s not much guidance in New York law for her problem. A landlord who holds her land open to the public is under a legal duty to exercise reasonable care under the circumstances to maintain the premises in a reasonably safe condition. This duty is usually discussed in the context of landlords who don’t keep their premises secure against reasonably foreseeable criminal acts by third parties (locked doors, security cameras and the like). The duty “imposes a minimum level of care on landlords who ‘know or have reason to know that there is a likelihood that third parties may endanger the safety of those lawfully on the premises’.”

sign150327A landlord must anticipate the risk of harmful acts of third persons, adopting the duty of care set out in the Restatement (Second) of Torts § 344: a landlord must exercise reasonable care to discover that such harmful acts are being done or are likely to be done, give an adequate warning, or otherwise protect the visitors against it.

Most of these principles address the landlord’s duty to warn tenants and invitees of harmful conditions. Even if this created a duty on the part of the landlord to warn Tracy and her husband that the neighbor’s tree might fall, it doesn’t necessarily mean that the landlady had a duty to Tracy that required her to tell the neighbors that they had a dangerous tree on their hands. We just can’t find any holdings that create such a duty.

One part of the reason might be the futility of it. Telling the neighbor that he has a danger tree on his land that might someday injure the landlord’s tenant doesn’t really get anyone anywhere, because the landlord is without any power to remove or trim the tree herself (it was well within the neighbor’s premises). The landlord might have sued the neighbor for maintaining a private nuisance, and may have won a judgment against the neighbor — especially after limbs fell from other trees last summer, causing damage to the landlord and the tenant — but the likelihood that the suit would have been successful is problematic.

Another part of the reason might be Palsgrafian causation. Just like Mrs. Palsgraf in the famous Long Island Railroad case, the causation link — the landlady’s failure to warn the neighbors led to the tree falling and the injury — is pretty tenuous.

A third problem lies in Tracy’s analysis of her status as a tenant. As a tenant, she has the exclusive right to possession of the property. If the landlady had a duty to tell the neighbor about a danger tree on the neighbor’s property, we would be very surprised if Tracy didn’t have as much of a right and duty as did the landlady to tell the neighbor about the tree. Likewise, we would be surprised if Tracy couldn’t have maintained the private nuisance action against the neighbor themselves to force removal of the tree. Generally speaking, having the right of possession of a piece of real estate is a powerful club, one which lets the possessor wield nearly as much power as does the titleholder. In this case, we suspect that Tracy herself had the power to do what she complains her landlady didn’t. And clearly, she had as much knowledge of the tree’s condition as her landlady did.

And that brings us to the final point. Tracy makes a compelling case that the neighbors knew all about the condition of the dead tree. Their agent, the tree surgeon, certainly knew as well, because he had removed a diseased bough, and that knowledge is imputed to the neighbors. If the neighbors had gotten a report from the arborist on which they refused to act, it’s pretty hard to argue convincingly that things would have changed if the landlady or Tracy had also told the neighbors what they already knew: the tree was dangerous and should be removed.

Causation and foreseeability are often wrapped in the same package. In a New York case we’ll consider today, Mr. Fleury knew that his big ol’ apple tree was pretty close to the power line running to his house. Well, nature’s bounty — a really good apple crop — caused the tree to fall over partially, and the tree touched the wires. Mr. Fleury called the power company and said, “You need to fix this!” The power company said, “Nope, it’s your wiring from the transformer to the house. You fix it.” Mr. Fleury didn’t, and within about 10 days, the tree on the wires caused a short circuit.

appletree150327But, electricity being the capricious thing it is, it didn’t hurt Mr. Fleury. Instead, a “backfeed” went through the transformer and down his neighbor’s lines, setting fire to the neighbor’s place 165 yards away. Should Mr. Fleury be liable? He would have been if it had burned his own house. The Court said it all depended on whether Mr. Fleury could reasonably foresee that his procrastination at getting the tree trimmed might have the effect it had.

How likely is it that a court find that the landlady’s failure to hector her neighbor about a tree the neighbor already knew was a hazard would foreseeably lead to Tracy’s car being crushed? Probably not very. Such a holding would open the floodgates, making homeowners everywhere liable to their invitees if they were deemed not to have nagged their neighbors sufficiently over conditions which the homeowner had no power to correct. For example, we live on a side street where a neighbor has a testosterone-driven teenage son. He recklessly speeds his old junker of a car up and down the street. If we get run down by the lad, would we be liable on a claim that we had been negligent because we never complained to the boy’s mother about the kid’s speed? It seems an awful lot like “blame the victim.”

Certainly, Tracy should ask her local lawyer about her claim against the landlady. But we think it’s a stretch the courts won’t buy.

Allstate Ins. Co. v. Fleury, Case No. 5:99-CV-1261, 2007 U.S. Dist. LEXIS 29354, 2007 WL 1200137 (N.D.N.Y. Apr. 20, 2007)A fire took caused substantial damage to the Thaddeus Jastrzab residence. Allstate Insurance paid the Jastrzab claim, and then sued Niagara Mohawk Power Corporation and Jim Fleury, the next-door neighbor. It seems the fire started at the Jastrzab home, but it was caused by a “backfeed” from the NiMo transformer that fed both the Jastrzab and Fleury homes. Fleury had an apple tree that had grown near the lines for years without trimming. About 10 days before the fire, a large apple crop on the tree partially uprooted it, and caused a limb contact the electric wires feeding Fleury’s house. Fleury asked NiMo to fix it, but NiMo said Fleury owned the electric wires and was responsible for their upkeep. Fleury said he was concerned that the tree limb’s touching the wires might cause a fire, but he did nothing more after NiMo passed the buck.

fire150327After the Jastrzab fire, an investigation found that the backfeed was caused by a tree limb that touched the old-style two-wire system, forcing the wires into mutual contact. The contact energized the neutral line owned by NiMo, which dumped excess current through its transformer and down the electric lines supplying the Jastrzab home. The electricity caused the grounding wire to overheat and arc onto Jastrzab’s roof. The fire was intensified by the fact that Jim Fleury’s home was not adequately grounded at the time, sending the electricity to look for a ground at the Jastrzab’s place. The trial court found that neither Fleury nor NiMo liable for the damages caused by the Jastrzab fire. Allstate moved for reconsideration.

Held: Allstate loses. Allstate complained that the Court inaccurately applied the law of negligence and foreseeability to the facts in this case. It argued that the Court was wrong when it found that the fire at the Jastrzab residence was not a reasonably foreseeable consequence of Fleury’s failure to remove the apple tree limb from his power lines. Allstate argued that the “precise occurrence” did not have to be foreseeable in order for liability to be imposed on Fleury. Fleury would have been liable if the fire started at his house, Allstate said, and therefore, liability should be imposed for the fire that started 165 yards away.

The Court disagreed. The proper focus of the inquiry is on the foreseeability of the risk. This is an essential element of a fault-based negligence cause of action, because the community deems a person at fault only when the injury-producing occurrence is one that could reasonably have been anticipated. Although virtually every untoward consequence can theoretically be foreseen “with the wisdom born of the event,” the Court said, the law draws a line between remote possibilities. No person can be expected to guard against harm from events that are so unlikely to occur that the risk would commonly be disregarded.

The precise manner in which the harm occurred need not be foreseeable, but still, the Court held, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty requires on to try to prevent. Here, no fire took place on the Fleury property. Instead, it started 165 yards away. No one reasonably foresaw that happening.

The law draws a line between remote possibilities and those that are reasonably foreseeable. Here, the likelihood that Defendant Fleury could have foreseen the chain of events – that the tree limb touching his power lines might create an electric backfeed fire that damaged the Jastrzab residence – was too tenuous and remote to permit recovery under a negligence cause of action.

– Tom Root

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Case of the Day – Wednesday, March 3, 2021

SOMEBODY HERE OWES ME MONEY

Mailbag140924Today we go to the mailbag!

Today we consider an interesting problem, this one submitted by alert reader Tracy of Pinebark, New York. Tracy reports that “our neighbor’s old dead tree came down across our parking area, totaling both our cars. Their insurance company denied the claim saying no one notified them and that it was a live tree. My landlady’s insurance company denied the claim saying it wasn’t her tree, so she wasn’t responsible. She knew about the problem trees on their property and didn’t notify them. I need to get some sound legal advice and the NY state statutes to show first that the neighbor should have done something and that my landlady should have notified them that they should do something. Help!! Thanks so much.”

So, someone owes Tracy money.  But who?

Now this guy played a New York lawyer on TV - but Tracy needs to get one who, while not so photogenic, has a real New York license hanging on the wall.

Now this guy played a New York lawyer on TV – but Tracy needs to get one who, while not so photogenic, has a real New York license hanging on the wall.

First, our obligatory disclaimer, Tracy. We’re not New York lawyers, and for that matter, we don’t even play them on TV. For sound New York legal advice, you should consult a local attorney. Not Sam Waterston, either. But right now, get out your yellow pad and take down a few concepts to pass on to your solicitor.

There are two problems to contemplate here. First, what responsibility do the neighbors have? And second, what liability does your landlady have?

First, the neighbors: You reported that in the past year, a branch from the tree crushed your gazebo tent and another took out part of your landlady’s shed. You also said your landlady’s insurance company adjuster said it wasn’t her responsibility because the neighbors’ tree was dead. You told us that you agree with the dead tree analysis, because you had an arborist inspect the tree and arrive at the same conclusion. In fact, you reported, the neighbors have had work done on the tree before, so they had certainly had constructive notice of its precarious condition. But you say the neighbors’ insurance company asserts the tree was alive, so the neighbors aren’t liable. You think the insurers may be dissembling.

An insurance adjuster lie? Horrors!

An insurance adjuster tell a lie? Horrors!

We are shocked, shocked we say, by the suggestion that insurance companies would prevaricate! Let’s consider New York law with respect to the neighbors. In Ivancic v. Olmstead, the Ivancic boy was hurt when a branch fell from the Olmsteads’ tree. The Court held that a property owner has no duty to consistently and constantly check all trees for nonvisible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. If visible evidence of decay is present, the failure to inspect won’t be a defense.

We don’t think you’re quite correct on your mention of “constructive notice.” “Constructive notice” means the neighbors reasonably should have known. It’s much like if you’re sitting in your windowless cube at the office, and you see 10 co-workers get off the elevator, shaking water off umbrellas and removing water-spotted raincoats. You don’t have actual notice that it’s raining, but any reasonable person should be aware its probably raining just based on what you’ve observed. That’s constructive notice.

She's walking down the hall carrying a wet umbrella. Might it be raining outside?

She’s walking down the hall carrying a wet umbrella. Might it be raining outside?

Your neighbors, on the other hand, probably had actual notice, which you would have if you wandered into the corner office and saw the rain falling outside the window. Because the neighbors’ tree experts had removed one side of a “y” prior to the tree falling, they undoubtedly saw the decay and heard the arborists’ report. They didn’t have to know that the tree has to be dead — just that it was decaying in such a manner as to create a foreseeable risk.

If we were cynical, we’d suggest the neighbors’ insurance company is “gaming” you. Perhaps the adjusters figure that if it denies ten claims, some of the claimants – say four or so – will give up.  Six will press on.  By denying everything initially, the insurance company has cut its exposure from 10 claims to six. No claims examiner gets promoted for paying claims, we might suggest. If we were cynics. Which we’re not.

Your local lawyer might want to collect a good, written report with photos from your certified arborist, add to it observations that the neighbors were on notice of the tree’s condition, and write to the neighbors’ insurance company. It would be good not to feed your lawyer before he or she contacts the carrier, so he or she is especially grumpy. If that doesn’t work, your avenue for relief is going to court. We would strongly urge you to use legal counsel rather than trying to represent yourself in small claims court. It’s not that we get a commission from referring you to counsel. If we did, we’d send you to our Uncle Fred (who’s a pretty good mouthpiece). But you hired an arborist, so you already know the value of hiring people who know what they’re doing. You shouldn’t stop now.

You also asked about going after your landlady for not telling the neighbors they had a problem. That’s a fascinating question, one we’ll take up tomorrow.

Ivancic v. Olmstead, 66 N.Y.2d 349, 488 N.E.2d 72 (1985). Ivancic was working on his truck in the driveway of his parents’ home in Fultonville. Since 1970, Olmstead had owned and lived next door. A large maple tree stood near the border of the two properties, and its branches extended over the Ivancic land. During a heavy windstorm, an overhanging limb from the tree fell and struck Ivancic, causing him serious injuries. He sued, maintaining that the branches hanging over his parents’ property constituted trespass, and that the Olmsteads were negligent. The trial court refused to instruct on the trespass claim, but the jury found against the Olmsteads on negligence. The Olmsteads appealed.

Held:   The verdict against the Olmsteads was reversed. The Court held that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition of the tree. Ivancic made no claim that the Olmsteads had actual knowledge of the defective nature of the tree, and presented no evidence that the Olmsteads had constructive notice of the alleged defective condition of the tree. None of the witnesses who had observed the tree prior to the fall of the limb saw so much as a withering or dead leaf, barren branch, discoloration, or any of the other indicia of disease which would alert an observer to the possibility that the tree or one of its branches was decayed or defective.

Tracy - watch the insurance adjuster's nose carefully while he or she explains that the tree was healthy.

Tracy – watch the insurance adjuster’s nose carefully while he or she explains that the tree was healthy.

The Court held that as to adjoining landowners, a property owner has no duty to consistently and constantly check all trees for nonvisible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. Ivancic’s expert surmised that water invaded the tree through a “limb hole” in the tree, thus causing decay and a crack occurring below. But he admitted that the limb hole was about 8 feet high and located in the crotch of the tree which would have made it difficult, if not impossible, to see upon reasonable inspection. Although, the Court said, there may have been evidence that would have alerted an expert that the tree was diseased, there was no evidence that would put a reasonable landowner on notice of any defective condition of the tree.

Thus, the fact that Mrs. Olmstead testified that she did not inspect the tree for over 10 years was irrelevant. On the evidence presented, even if she were to have inspected the tree, there was no indication of decay or disease to put her on notice of a defective condition so as to trigger her duty as a landowner to take reasonable steps to prevent the potential harm.

As for the trespass, the Court held that the Olmsteads didn’t plant the tree, and the mere fact that they allowed what appeared to be a healthy tree to grow naturally and cross over into the Ivancic parents’ property airspace, could not be viewed as an intentional act so as to constitute trespass.

– Tom Root

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Case of the Day – Tuesday, March 2, 2021

TEACH YOUR CHILDREN WELL

Evil-Spawn-1Mrs. Dahlquist and her evil spawn, Jeff Zube, lived in pretty close proximity to several neighbors, including the Careys. The constant obscenities, threats, spitting from balconies onto the neighbors, rotten eggs and lit cigarette butts got a little wearing on the Careys. They finally sought an anti-harrassment order under a California statute — Section 527.6 of the Code of Civil Procedure — to get Ma Dahlquist’s gang of two to stop.

Common law provides no remedy to restrain a neighbor who unfortunately has a sewer for a mouth and a tar pit for a soul, sad to say. Statutes like the California’s CCP § 527.6 are not all that common, but they are becoming more and more so, because – and here we can all bemoan the erosion of the Republic – neighbors like Joe and Dorothy (who’ll mow your lawn for you and deliver warm brownies from time to time – are getting to be scarcer, and next-door harridans like Ms. D and her whelp are becoming more common.

The lesson in today’s case is that if you’re going to be nasty to one neighbor, be sweet to the others. If you’re a jerk to everyone, expect some piling on. Not surprisingly, that happened here: complainants against Ms. Dahlquist and fil came out of the woodwork, with everyone on the block more than happy to cite the constant bird-flipping, the obscene insults and the general squalor that surrounded the harpie and her mordent boy.

CarrieDahlquist and Zube of course denied everything. Movie fans will remember the memorable Blues Brothers scene with Jake Blue (John Belishi) telling a gun-totin’ Mystery Woman (Carrie Fisher) that “it wasn’t my fault!” In the face of rather detailed, graphic even, descriptions of the Dahlquist/Zube misconduct by the neighborhood, the trial court didn’t believe a word of it.

BelushiThe Dahlquist/Zube gang appealed. Appellate courts expect that, winner or loser, a party will give the court a reasonably complete and balanced assessment of the record below. Not Dahlquist and Zube. If the fact didn’t fit with their world-view, they just left it out. That didn’t leave much in their recitation of the “facts.” The Court of Appeals wasn’t detained long by this creative pleading: it held that the record below amply made out a pattern of harassment that was such that would cause a reasonable person to suffer substantial emotional distress. It certainly did for the Careys, and the Court found that under the circumstances, a three-year order was fully justified.

Carey v. Dahlquist, 2007 Cal. App. Unpub. LEXIS 10631, 2007 WL 4555793 (Cal.App. 1 Dist.)  Dahlquist and Carey live next door to each other in Sausalito, California. Dahlquisht’s 19 year old son, Zube, lives with her. Carey filed a § 527.6 petition alleging that, among other things, her neighbor Dahlquist screamed obscenities at her and used “constant foul language, verbal comments (‘this is war’) and written threats.” Dahlquist had also “ordered tree people onto my property and cut down (removed two 30 ft high trees).” Carey requested an order that Dahlquist stay away from her, and that “she not be able to come out on her deck and scream obsenities [sic] at me or my husband as I go up and down my stairs.” In addition, Carey asked the court to order that Dahlquist “not hire workmen to come onto my property and destroy my property” and that she “pay for the survey and replace the trees she removed.”

The same day, Carey filed an application for a temporary restraining order against young Zube, alleging that in a two-page list of “confrontations” with Zube, that he had thrown eggs from his balcony, shouted obscenities at her husband as he came up the stairs, threw poppers onto the stairs while Carey and her husband were walking up the stairs, made “exceptional noise” from Zube’s stereo, and that on multiple occasions when lighted cigarette butts were found on the wooden stairs at Carey’s house. Neighbors provided affidavits complaining of similar acts.

The record also contained a declaration from Jeff Zube’s father claiming that Carey was a chronic complainer, and anyway, young Zube would be leaving soon for Santa Barbara to attend college. Nevertheless, the trial court granted the petition as to both Zube and Dahlquist, holding Zube had “an out-of-control and extremely disrespectful side of you and I’ve seen it in court, and I’ve heard it from the testimony.” The court found that Carey and her witnesses were credible and that the testimony of Dahlquist and Zube was not. It issued a 3-year restraining order, and Dahlquist and Zube appealed.

restraining-order1Held: The order was upheld. Section 527.6 provides that a person who has suffered harassment as defined in the statute may seek an injunction prohibiting harassment as provided in this section. “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff. A “course of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail.

The Court decided that Carey had provided clear and convincing evidence of a knowing and willful course of conduct by Dahlquist. She described confrontations with Dahlquist in which Dahlquist threatened legal action against her and shouted obscenities at her husband as he came up the stairs. Carey found Dahlquist’s behavior threatening. Carey’s neighbor testified that he, too, had been on the receiving end of threatening and harassing behavior from Dahlquist, including her falsely accusing his wife of leaving an obscene message on her voice mail. The Court held that the trial judge had found substantial evidence on which the base the issuance of a permanent injunction.

badpennyAs for Zube, the evidence established that he had thrown lighted cigarettes on the wooden stairs leading to Carey’s home, that he had spit on the deck, and had thrown poppers on the stairs while Carey was walking up them and also shouted obscenities at Carey. Neighbors confirmed that this sort of behavior had been directed at them as well. Substantial evidence, therefore, supports the trial court’s issuance of the permanent injunction. The continuing course of harassing conduct by Zube and Dahlquist left both Carey and her husband fearful and distressed. This showing was sufficient to indicate a reasonable probability that the course of conduct would continue into the future. It didn’t matter that Zube was leaving for college. The trial court found his other testimony lacked credibility, and the Court of Appeals said it was entitled to disregard his representation that he was leaving.

Even if he did, like bad penny, he’d probably return.

– Tom Root
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Case of the Day – Monday, March 1, 2021

FOOL FOR A CLIENT

Abe Lincoln could have been talking about Mr. Victor, who has a real dummy for a client.

Abe Lincoln could have been talking about Mr. Victor, who has a real dummy for a client.

Honest Abe Lincoln was right: Mr. Victor had a first-class knucklehead for a client. The old lawyer’s proverb warns that “The man who is his own lawyer has a fool for a client.” Today’s case from Iowa puts meat on those bones.

Mr. Victor’s car was hit by a truck at an intersection. That kind of thing happens on a daily basis. After the crash, he took matters into his own hands. That does not.

Usually, people use lawyers for that kind of thing. Back when we had phonebooks, the solicitors we needed were on the back cover soliciting us. Those guys usually take cases like this one on a contingency basis, meaning that they don’t get paid unless you win.

Of course, lawyers tend to be picky about the kinds of personal injury actions they will bring, , for the same reason that more people bet on the horse “California Chrome” than lay money down on “Old Glue Factory.” Who wants to waste time and money?

Maybe Mr. Victor didn’t like lawyers. Maybe (as is more likely), no attorney would touch the case from a remote control bunker in the Amazon rain forest. For whatever reason, Mr. Victor represented himself. Apparently subscribing to the old Vladimir Ilyich Lenin maxim, “Quanity has a qualtity all its own,” Mr. Victor sued the other driver, the company that owned the truck the other driver was operating, the property owner whose trees allegedly obscured the stop sign, the county for poor maintenance of the intersection, and the state for poor design of the road. Certainly someone in that thundering herd must have a fat wallet. 

Mr. Victor did it all in federal court, no doubt because suing in federal court sounds a whole lot cooler than suing in state court. And it is, too, except for those pesky rules about jurisdiction and sovereign immunity. Guess he only skimmed those chapters in Personal Injury Law for Dummies.

You thought we were kidding? There's really such a book ...

You thought we were kidding? There really is such a book …

By the time the Court was done, the State of Iowa was dismissed as a defendant, as was the property owner. In fact, the only defendant left was the County, which was unable to prove that its tree-trimming practices were a discretionary function. Still, Mr. Victor got pretty badly decimated, proving once again that there’s a reason trained professionals cost money – it’s because they know what they’re doing.

Victor v. Iowa, 1999 U.S. Dist. LEXIS 23530, 1999 WL 34805679 (N.D. Iowa, 1999). A car driven by Martin L. Victor collided with a truck driven by Ronald Swoboda and owned by the Vulcraft Carrier Corp. The accident happened at the intersection of County Road C-38 and U.S. Highway 75. Then the fireworks started.

Victor, acting as his own lawyer, sued the State of Iowa, Plymouth County, Vulcraft and adjoining property owner Elwayne Maser in U.S. District Court. Vic apparently alleged (1) that “Iowa law regarding the right to sue private property owners for negligence is unconstitutional;” (2) that Victor should be allowed to sue Maser for acting negligently in failing to trim vegetation that obstructed his view of southbound traffic on U.S. Highway 75; (3) that the State of Iowa and Plymouth County acted negligently by failing to properly maintain a roadway, investigate the accident thoroughly, and place warning signs and markings appropriately; (4) that the highway patrol failed “to perform duties of safety officers, in assessment of dangerous conditions existing;” and (5) that Vulcraft is responsible for its driver’s failure to follow safety standards for commercial trucking. All the defendants moved to dismiss or for summary judgment.

Held: The State of Iowa was dismissed, because the Iowa Tort Claims Act, which gives permission to residents to sue the State, limits those actions to state court. The Court held that the 11th Amendment to the U.S. Constitution barred actions in federal courts against States except under narrow exceptions. One of those is that the State have given a waiver and consent that is clear and express that it has waived sovereign immunity and consented to suit against it in federal court. Although a State’s general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment. In order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court, and the ITCA does not do so. Therefore, Victor’s claims against the State of Iowa was dismissed.

It was just your basic accident ... until Mr. Victor made a federal case of it.

It was just your basic accident … until Mr. Victor made a federal case of it.

As for the property owner Maser, the Court ruled that Iowa law put no duty on a private property owner to remove trees which obstructed the view of a highway. Although Victor claimed the Iowa law on the matter unconstitutionally deprived him of the right to sue, he never explained why. The Court observed that “while mindful of its duty to construe pro se complaints liberally, it is not the job of the court to ‘construct arguments or theories for the plaintiff in the absence of any discussion of those issues’… Besides the bare assertion that the Iowa law is unconstitutional, Victor has provided no other discussion of the issue.” Thus, the property owner Maser was dismissed as a defendant.

Victor’s claims that Plymouth County was negligent in failing to install proper warning signs and cut tree branches that obstructed his were not dismissed at this point. Section 670.4 of the Iowa Code exempts a municipality such as Plymouth County from liability for discretionary functions, if the action is a matter of choice for the acting employee, and — when the challenged conduct does involve an element of judgment — the judgment is of the kind that the discretionary function exception was designed to shield. Here, Plymouth County’s policy directed that employees “may trim branches of trees because the trees may constitute an obstruction to vision of oncoming traffic at an intersection,” thus giving employees discretion in implementation of this policy. Thus, the Court said, “the action (or inaction) of which Victor complains was a matter of choice for the county’s employee.”

However, the Court said, Plymouth County’s policy did not encompass “social, economic, and political considerations” and therefore the discretionary function exception does not apply. Victor could proceed with rebutting the County’s claim that the view was not obstructed.

– Tom Root

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