Case of the Day – Tuesday, July 14, 2020

YOU CAN ALWAYS BE SAFER

The archetype of a safe man ... he wears both a belt and suspenders.

The archetype of a prudent man … he wears both a belt and suspenders.

No matter how safe you try to be, there is always something else you could have done to be safer. We all make compromises when the utility of what we are doing to be safer becomes more burdensome than the incremental increase in safety our act attains. On one hand, it’s safer to wear seat belts than not to wear them, and the cost of wearing them is exceedingly slight compared to the benefit derived. On the other hand, while it would be a lot safer for all traffic not to exceed 15 mph, the cost of such an act far outweighs the benefits derived from enforcing such a rule.

A similar situation applied in this landmark municipal liability case from Omaha. During a windstorm, a motorist pulled over because he couldn’t see to drive. A tree belonging to the City fell, hitting his car and paralyzing him. The tree, a silver maple, was badly decayed. The motorist sued the City, arguing that for a tree owner to permit a danger tree to stand violated the City’s own ordinances. At trial, the disabled plaintiff was awarded $5 million.

On appeal, however, the Supreme Court of Nebraska was more persuaded by the City’s argument that if every person in its arborist crew spent an entire work year inspecting silver maple trees, each tree would only receive a 12-minute inspection. The City had a tree inspection program in place, and the Court found it reasonably conceived and discharged. Could the City have done more? Certainly. Had it done so, would the damaged tree have been found? No one could say.

The City’s tree inspection program was reasonable, and that was all that was required. The verdict was reversed.

treecar140425McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545 (S.Ct. Neb., 1984). Mr. McGinn was driving in the City of Omaha on a rainy, blustery afternoon, when the inclement weather made him pull over to park. As he was doing so, a silver maple tree fell in front of him, and a branch struck his car, rendering him a quadriplegic.

Photographs taken after the accident revealed that the trunk of the tree was extensively decayed. McGinn sued the City, arguing it was negligent in failing to inspect the tree for disease, decay, and structural defects, and in violating a city ordinance making it unlawful for a landowner to permit a dangerous tree to stand. The City countered that McGinn was contributorily negligent and that the storm, which could not have been reasonably anticipated, caused the tree to fall. The trial court rendered judgment in favor of McGinn and awarded $5 million in damages.

The City appealed.

Held: The judgment was reversed. The Nebraska Supreme Court held that city was not negligent for having failed to remove the tree where there was no evidence that inspection program conducted by city was negligently designed or carried out, or that the tree had been found to be hazardous as a result of any inspection made by the city.

Normally, governmental units are liable under ordinary negligence principles for injuries or damages which result from a tree falling onto a public road from land in possession of a governmental unit. In this case, while McGinn was correct that the City had violated an ordinance rendering it unlawful for any property owner to permit diseased or structurally weak tree from standing upon his property, the violation was at most evidence of negligence, and did not impose strict liability upon the City. Rather, negligence must be measured against particular set of facts and circumstances present in each case, and the utility of the City’s conduct has to be measured against the magnitude of the risk.


Here, the City had established an annual inspection program to check for hazardous trees. The program was neither negligently designed nor negligently carried out. Alternatives might have reduced the risk, such as cutting down any silver maple older than a certain age or conducting lengthy, individual tree inspections, but these remedies were expensive and unreasonable. There was no indication that the tree which fell on McGinn’s car during the severe storm had been found to be hazardous during any inspection made by the city.

Thus, the Court said, the city was not negligent in not having had the tree removed, and thus was not liable for personal injuries sustained by McGinn.

The takeaway here is that in a proper weighing of the reasonableness of a defendant’s actions, courts traditionally weigh the magnitude of the task. A homeowner with ten trees cannot reasonably fail to ascertain the condition of his or her trees. A municipality with 10,000 trees can get away with failing to ascertain the condition of any particular one of those trees if it has an inspection program that is a reasonable balance of cost and efficacy.

– Tom Root

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Case of the Day – Monday, July 13, 2020

THE RESTATEMENT RULE FALLS AWAY, CHIP BY CHIP

In the development of liability law for danger trees, the “every-dog-for-himself” school of thought has reigned supreme for 150 years. The authoritative Restatement of Torts (2nd) rule says that “a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land, except in an urban area, where the possessor is liable to people using a public highway for physical harm resulting from his or her failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of his or her trees.”

A real mouthful, the Rule said in so many words, “if you live in the country, you owe nobody anything. If you live in the city, you owe a duty to someone on the highway, but no one else.”

The Restatement – which ideally states the law as it generally exists in the 50 states – has instead become the driver. The rule is followed almost everywhere, with the Restatement being cited as the authority. So instead of summarizing what the various state court have held, the Restatement has made the law in many places. 

But times change, populations shift, and what was a workable (or at least an acceptable) rule suddenly makes little sense. That happened in today’s case from the Hoosier State, in which a neighboring landlord neglected a danger tree. After all, he was a landlord, and what landlord will spend a dime that won’t increase his return?

So the neighbor pointed out the decaying tree, the City pointed out the decaying tree, and all the chattering passersby pointed out the decaying tree. And then, the landlord found a drive-by arborist who eyeballed the tree (without even being able to identify the species as a Basswood from his quick “look-see”), and pronounced it fit as a fiddle. A Basswood fiddle.

Except it was not so fit. When the tree fell on the neighbor’s house, her insurance paid for repairs and then (justifiably) came after the landlord. He said, “Tough luck. The Restatement rule says I’m only liable to people on the public street.”

And that was what the rule said. So the Court changed the rule. And that, boys and girls, is how the law evolves.

Marshall v. Erie Insurance Exchange, 923 N.E.2d 18 (Ind.App. 2010). John and Marjorie Marshall owned many rental properties, which John supervised. One was a vacant lot next to Cindy Cain’s home.

A tree stood on Marjorie’s lot near the boundary of the two parcels. From the time Cindy purchased the home, she worried about the tree’s health and the danger it might pose. Cindy talked to her neighbor about the tree, but got nowhere. She talked to a City code enforcement officer about the tree. The officer told Marjorie’s property manager the tree had to come down. He also spoke to John, who said he would have the tree checked. Cindy told a guy who worked for the Marshalls’ maintenance worker and a woman who claimed her husband was the Marshalls’ new maintenance worker about the hazard tree. The man Cindy spoke to agreed that the tree should be taken down and said he would speak to John about it.

On New Year’s Eve, the tree fell onto Cindy’s house, knocking over her chimney and causing damage to the roof and frame. Cindy filed an insurance claim with Erie, which held her homeowner’s insurance policy. Erie reimbursed her for the necessary repairs to her home (minus her deductible, of course). Then, Erie sued the Marshalls for damages stemming from their negligent maintenance of the tree.

Jake Denlinger, a professional arborist, testified that before the tree fell, he had looked at the tree at John’s request. Jake inspected the tree but did not take any samples of the tree’s core. He testified he did not see enough evidence of decay in the tree to warrant removing the tree. His cross-examination must have been withering, because Jake – filled with doubt –  Jake returned to the vacant lot after his testimony to look at the tree stump to determine what type of tree had fallen on Cindy’s house. He found it was a Basswood tree, and returned to testify that it is difficult to judge a Basswood’s health without internal sampling, because the trees do not show many exterior signs of decay.

The trial court found for Erie, and the Marshalls appealed.

Held: The trial court’s decision in favor of Erie Insurance was upheld.

The Court said that to recover in negligence, a plaintiff must establish a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; a failure on the part of the defendant to conform his conduct to the standard of care; and (3) an injury to the plaintiff proximately caused by the breach.

Absent a duty, there can be no breach and, therefore, no recovery in negligence.

In Valinet v. Eskew, the Indiana Supreme Court adopted the rule in Restatement (Second) of Torts section 363, that a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land, except in an urban area, where the possessor is liable to people using a public highway for physical harm resulting from his or her failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of his or her trees.

The Court of Appeals observed that the Valinet rule seemed to foreclose the issue of whether the Marshalls owed a duty to protect Cindy from the fallen tree. The Court, however, was unwilling to “leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure an obviously decayed and dangerous tree simply because it was a natural condition of the land.”

The Court concluded that it should depart from “the strict application of the Restatement rule in the context of urban or residential property.” That Rule was adopted when land was mostly unsettled and uncultivated. In urban or residential areas, however, the Court held, it should not be an undue burden for a landowner to inspect his or her property and take reasonable precautions against dangerous natural conditions. “Living in close quarters with one’s neighbors in an urban or residential setting substantially increases the risk that a falling tree will cause damage to property or injury to persons, and, similar to the problem relating to a highway, the reduced size of property lots in an urban or residential setting makes the burden of time and money to inspect and secure trees on one’s property relatively minor especially as compared to the potential damage that could result from the tree’s fall.”

Thus, the Court said, an urban or residential landowner has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners, arising from the condition of trees on his or her property. Whether the land in question is of sufficient population density to invoke the rule is a factual question for the fact finder. In addition, in determining whether the landowner exercised the requisite reasonable care, the fact finder must weigh the seriousness of the danger against the ease with which it may have been prevented. In some circumstances, fulfilling this duty may require a landowner to conduct periodic inspections of his or her property.

In this case, the Court said, the trial court applied a duty of reasonable care to the Marshalls with respect to preventing the damage caused by the fallen tree. The trial court heard evidence that the code enforcement officer contacted the Marshalls to inform them of the dangerous tree and the need to remove it, and several witnesses testified to the physical state of the tree. True, the Marshalls provided some evidence they contacted a tree specialist, but he only performed a superficial examination of the tree and did recommend its removal. Because reasonable minds could draw different conclusions from the facts in evidence, it was for the trial court to determine whether the Marshalls’ conduct breached the duty of reasonable care. Sufficient evidence supported the trial court’s judgment that the Marshalls did so, and that Cindy’s home was damaged as a result.

– Tom Root

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Case of the Day – Friday, July 10, 2020

WHAT DID THE GOVERNMENT KNOW, AND WHEN DID IT KNOW IT?

One of the enduring lines from the endless (or so it seemed at the time) Watergate investigation was Howard Baker’s famous question, “What did the president know and when did he know it?” On the answer to that question turned the culpability of the President for the high crimes and misdemeanors of his minions. It still does, despite the fact that we now know that the Watergate investigation timetable was a rocket ship compared to Whitewater-Lewinsky, Valerie Plame, BenghaziFast and FuriousIRS, and Trump-Russia.

It’s a great question. Many plaintiffs have discovered that possessing or lacking the answer to it often is the difference between winning and losing a tort action.

We talked about strict liability yesterday, but that’s not generally the way we do things. Were it otherwise, commerce and society would screech to a halt, because anything act, regardless of how responsibly it was performed, could lead to liability and financial ruin.

Consider today’s case. A tree branch cracked and settled so far down the tree that it dangled dangerously low over a road. Linda hit it, damaging her car. No one would disagree that the branch should not have been there. Nevertheless, the harm it caused did not mean Linda could pick the State of Ohio’s pocket for repairs itself unless the State had a duty to the motoring public which it failed to discharge.

Shouldn’t the Ohio Department of Transportation have known about the danger? Should it not have corrected the defect before Linda happened along? Shouldn’t those highway workers do something to justify their paychecks? That all depends on the State’s knowledge of the defect. Or, as the late Sen. Howard Baker might have put it, “What did ODOT know, and when did it know it?”

Coleman v. Ohio DOT, 2009-Ohio-6887 (Ct. Claims, Aug, 25, 2009), 2009 Ohio Misc. LEXIS 3. One February day, Linda Coleman was driving along a state highway a half mile outside of the village of Westville, Ohio, when her 2004 Honda Accord hit a very low tree branch overhanging the road. The impact broke the windshield and damaged the right side of her car.

Linda sued ODOT, theorizing that the damage to her car was proximately caused by ODOT’s negligence in failing to maintain the roadway free of hazardous conditions. She sought a paltry $745.01, the cost of fixing her Honda.

ODOT denied liability, contending that none of its employees or agents had any knowledge of the hazardous overhanging tree limb prior to Linda’s collision with it. ODOT denied receiving any reports about the limb prior to the accident from anyone. ODOT did receive a report after Linda struck the tree, and responded by dispatching two ODOT workers to remove the tree limb the same day Linda hit it. ODOT argued that the facts suggested that “it is likely the tree limb existed for only a short time before the incident.”

ODOT related that its manager for that county inspected all state roadways n the county at least twice a month. Apparently, no overhanging tree condition was discovered at Milepost 2.50 on State Route 560 the last time that section of roadway was inspected.

Held: ODOT had no liability to Linda.

To be sure, ODOT has the duty to maintain its highways in a reasonably safe condition for the motoring public. However, the state agency is not an insurer of the safety of its highways. In order to prove a breach of ODOT’s duty to maintain the highways, Linda would have had to prove that ODOT had actual or constructive notice of the precise condition or defect alleged to have caused the accident. ODOT would only be liable for a roadway condition of which it has notice but failed to take reasonable steps to correct.

In order to recover on a claim of this type, the Court said, Linda had to show either that ODOT had actual or constructive notice of the low-hanging tree limb and failed to respond in a reasonable time or responded in a negligent manner, or that ODOT in a general sense maintains its highways negligently. For constructive notice to be proven, Linda would have had to show that sufficient time has passed after the dangerous nature of the tree limb came into being, so that under the circumstances, ODOT should have learned of its existence.

The court hearing the case may not infer that ODOT knew, unless Linda presented evidence of when the defective limb first appeared to be too low over the roadway. Here, Linda had no proof that ODOT had any notice, either actual or constructive, of the damage-causing tree limb.

Generally, to prove negligence, a plaintiff must prove that a defendant owed her a duty, that it breached that duty, and that the breach proximately caused her injuries. She must also show she suffered a loss, and that this loss was proximately caused by the defendant’s negligence.

Linda had no evidence that her injury was proximately caused by ODOT’s negligence, because she could not show when the dangerous condition came into being. Therefore, she was unable to show that the damage-causing object was connected to any conduct under ODOT’s control, or to any ODOT negligence.

– Tom Root

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And Now The News …

Israel21c, July 8, 2020: Scientists discover trees have a mutual aid network underground

Israeli scientists have recently discovered that trees of different species utilize underground fungal networks to transfer carbon among them. Tamir Klein, principal investigator at the Weizmann Institute of Science’s Tree Lab, and PhD candidate Ido Rog, installed underground devices and employed sequencing techniques to analyze 1,000 root tips from 12 trees of four different species. They unearthed intricate fungi networks that connected the trees’ roots to one another and proved that they serve as a conduit for carbon sharing. While tree kinship would suggest that carbon sharing would only occur between trees of the same species in order to give them an evolutionary edge over others, carbon was found to be transferred among four species — spruce, pine, larch and beech — indicating that a different actor might be responsible for this resource management. “The fact that trees are ‘sharing their wealth’ across species suggests that there is some sort of ‘hidden’ management occurring. We think the management is dominated by the fungi,” says Klein. “Fungi need to secure their own carbon sources; it is in their best interest to ensure that all the trees within the network are healthy and strong…”

Charleston, South Carolina, WCSC-TV, July 9, 2020: Construction and tree preservation to begin on scenic Hwy. 61

The South Carolina Department of Transportation announced Thursday it will begin construction on 14.75 miles of Highway 61 in Dorchester County to improve the road’s safety and quality. Construction will begin first on the scenic 6.5-mile portion of Highway 61 from the intersection of Highway 165 to the Charleston County line. Improvements will include a new roadbed and pavement, two 11-foot wide lanes with three-foot paved shoulders, safety rumble strips on the centerline and edge lines, higher-visibility paint and reflectors and warning signs at curves. “Our refined design for Highway 61′s improvements preserves the corridor’s live oak trees that are hundreds of years old and improves citizens’ safety as they drive along the scenic route,” Secretary of Transportation Christy Hall said. “Based on a detailed analysis of seven years of crash data and significant input from the community, we were able to work with Gov. Henry McMaster and other stakeholders to alter our plans to maintain the area’s historic beauty while fulfilling our commitment to make our roads safer…”

Milwaukee, Wisconsin, OnMilwaukee.com, July 9, 2020: Why were the Mount Mary University pine trees cut down?

If, like me, you’re one of the folks that is blessed enough to be able to enjoy the lovely grounds of Mount Mary University along the Menomonee River Parkway on Milwaukee’s far west side, you may have been surprised to see portion of it undergoing drastic change this week. A wooded site at the north end of the campus, along Burleigh Street, is being cleared to make way for a new $45 million housing development – by Mount Mary, the School Sisters of Notre Dame Central Pacific Province and Milwaukee Catholic Home – that will offer intergenerational living for sisters and seniors, as well as supportive housing and education for students at the university who are single mothers. Thus, the site is no longer wooded. Radio personality Gino Salomone noticed and posted about it on social media. “Almost every day, I would walk through the quiet and beauty of a pine forest at Mt. Mary College,” he wrote. “The majestic trees that were around for who knows how many years are gone.” According to a fact sheet provided by Mount Mary spokeswoman Kathleen Van Zeeland, about 300 trees are being cut down to make way for the building, and 225 of them were non-native Scotch pine trees that were found to be diseased and “reaching the end of their life…

Auburn, New York, Citizen, July 9, 2020: Eco Talk: How to spot the tree-eating gypsy moth

Gypsy moths have been making the news recently, as their population in some regions of the state is causing a lot of defoliation. According to the New York State Department of Environmental Conservation website, they are causing noticeable defoliation in both central and western New York. Gypsy moth populations can remain at almost undetectable numbers for a number of years, and then for some unknown or unexplainable reason the population skyrockets. When populations are high, there are an estimated one million caterpillars per acre in some forests. While a single year of defoliation will not kill hardwood trees, there is decreased fall foliage. As you may already suspect, the gypsy moth is not native to the United States. They were brought here from France in the late 1860s with the intent of developing a silk industry in the United States. The experiment was not successful and some of course escaped, becoming established in Medford, Massachusetts, and since spreading. By 1981, the gypsy moth was found throughout New York state, and they are now considered to be naturalized in New York’s forests. It is not the adult moth that causes the problem. It is the larvae (caterpillars) that hatch from overwintering egg cases in April and May that start eating the emerging young leaves of many tree species. The early damage from the tiny caterpillars often goes unnoticed. Once the caterpillars are close to an inch in length, their huge appetites kick in and become visible with thinning tree canopies. The caterpillars will grow to just over 2 inches…

Washington, D.C., Post, July 8, 2020: D.C. has become a leader in a movement to plant more diverse city trees

If you are looking for rays of hope in dark times, consider this: The urban forest in Washington is lush and vital. It is one part of our (green) infrastructure that is being maintained proactively and, from a plant lover’s perspective, has never looked more interesting or been more inspiring. Those of us who have lived in this town for a long time remember when that wasn’t the case, with an alarming decline in the canopy of the urban forest due to neglect and development, a situation that led to the creation of the nonprofit Casey Trees. The condition of the urban forest goes beyond pure aesthetics. A leafy city is a cooler, cleaner city; it’s simply a nicer place to live, and it makes us healthier in mind and body. The tree, it turns out, is the one hugging us. Today, the city government has an active program of replacing dead trees and uses interactive maps to encourage residents to get involved in the care of newly planted trees. Moreover, there is a collective sense that in an age of climate change and more extreme weather, the need for a healthy urban forest has never been greater…

Ramona, California, Sentinel, July 8, 2020: Preservationists grieve the loss of an historic Colonnade tree

A fragment of history has been ripped out of Ramona with the recent removal of a eucalyptus tree in the Ramona Main Street Colonnade. Many of the Colonnade trees were planted in 1909 to be grown and harvested for railroad ties until it was discovered the wood often splintered and cracked. Nonetheless, the trees provided welcome shade to locals traveling by horse and buggy and later offered a scenic corridor for drivers of all sorts of vehicles. The value of having a majestic gateway to Ramona that reflects the town’s rural character was recognized by the State Historical Resources Commission on Aug. 3, 2018. By unanimous approval, the commission placed the Colonnade on the National Register of Historic Places. The historic tree that was reported to have been felled June 15 was located between O’Reilly Auto Parts store at 1935 Main St. and Tanguay’s Ramona Truck & Auto repair shop at 1939 Main St. Chris Anderson, secretary of the Ramona Tree Trust which works to preserve and protect the Colonnade, said this particular tree was a replacement tree planted in 1993. Anderson said replacement trees were needed back then when the road was widened in the late 1980s and again in the early 1990s. Area landowners along with Kmart operators worked out a deal to replace the trees with Caltrans, which has jurisdiction over their right of way. Ordinarily, Anderson said a permit is needed from Caltrans to plant or remove a tree…

Durham, North Carolina, WTVD-TV, July 8, 2020: ‘I have had enough loss:’ Raleigh woman upset after she says fruit tree was trimmed without warning

“Everything you see here, my momma planted it,” Jinnean Evans told ABC11. “And my momma is gone now. My sister is gone. I have had enough loss.” She’s upset because she awoke on Tuesday morning to discover that City of Raleigh workers were cutting her beloved fruit trees. “I come down and all I could see were these four guys and they were having at it,” she said. Evans said the men told her there was a complaint that people couldn’t see when going around the curve near her Farmington neighborhood home. “All they had to do was call me and say, ‘Ms. Evans, we had a complaint,'” she said, “and I would have told them I already made arrangements to have those trees trimmed back when the fruit is gone.” The City of Raleigh said a “visual obstruction” complaint was made in 2019. According to a statement from the city, “the limbs were encroaching into the street 2-3 feet making it a safety issue for drivers and pedestrians regarding visibility…”

Cleveland, Ohio, WKYC-TV, July 8, 2020: How to keep your trees healthy during the heat wave

Trees help to clean the air. They also help to provide shade this time of year. Of course, trees are also a great way to add a little beauty outside your home and keep things inside nice and cool. But with temperatures soaring into the 90s these last few days, keeping trees healthy can be a challenge. “Trees will show signs of drought stress when we haven’t had periods of rain,” explains Tedd Bartlett from Davey Tree. “You’re going to see some curling, some dropping, even some premature fall coloring.” Bartlett says while your outdoor plants require some water on a daily basis, your trees do require way more water. “The best thing you can do is regular watering. What you want to do is water your tree 3-5 times a week depending on the rainfall,” Bartlett says. He also recommends paying attention to what’s around the base of the tree and doing what he describes as “deep watering.” “Pull away some of the mulch from the base of the tree and create a well. When I say deep watering, it doesn’t mean digging out any soil away from the tree. It means applying enough water that filters into the root system deeper into the ground,” he explains. If you do notice that your tree has started to die, don’t worry. There is still time for it to recover if you catch it in time…

New Atlas, July 7, 2020: Beverly Hills to turn green with $2 billion tree-filled development

A sizable area of Beverly Hills, Los Angeles, is set to turn green – literally – thanks to a new plant and tree-filled development designed by Foster + Partners. Assuming all goes to plan, the project will create two new residential towers and a hotel, and will feature sustainable design, including extensive greywater recycling to meet its considerable irrigation needs. The project, named One Beverly Hills, is being created in collaboration with Gensler, landscape architect Mark Rios, and developers Alagem Capital Group and Cain International. It will be located on a 17.5 acre (roughly 7 hectare) site currently home to the Waldorf Astoria Beverly Hills and Beverly Hilton hotels. The existing hotels will be integrated into the new development, which will add an “ultra-luxury hotel,” two greenery-covered residential high-rise towers containing 303 residences in total, and a pavilion with retail and dining space. There will also be 4.5 acres (1.2 hectares) of publicly accessible botanical gardens and sculpture gardens, with pathways and extensive landscaping. In all, over 300 species of plants and trees will be planted…

Palm Springs, California, Desert Sun, July 7, 2020: UC Riverside scientists discover treatment for disease that threatens California citrus trees

UC Riverside today announced that its scientists have discovered a new treatment for a disease that has affected millions of acres of citrus crops worldwide and continues to threaten crops in California’s citrus hot spots including Riverside County. Fingertip-sized, moth-like flying insects spread citrus greening disease, also known as Huanglongbing or HLB, which can destroy plants’ vascular systems and render fruits misshapen and unsellable, and typically kills infected trees within a few years. The new treatment is an antimicrobial peptide that kills the bacterium in affected crops. It’s a naturally occurring molecule found in wild citrus relatives, but it needs to be applied a few times each year to fend off new insects that can keep re-infecting crops as time goes on. There remains no one-time systemic cure for the disease, although researchers contend the new treatment can be sprayed on healthy crops periodically as a preventive measure…

Harrisburg, Pennsylvania, Pennsylvania Post, July 7, 2020: Family that lost hundreds of trees to failed pipeline project settles with company, gets land back

A Northeastern Pennsylvania family who watched as work crews, accompanied by armed federal marshals, destroyed their budding maple tree farm to make way for the failed Constitution Pipeline has settled with the company Williams for an undisclosed amount. A federal court has also vacated the eminent domain taking of about five acres, reversing an order it made more than five years ago. “We’re really glad that it’s ended,” said Catherine Holleran, co-owner of the 23-acre property that has been in the family for 50 years. “We’ve gotten our land returned to us. That was our main objective right from the first.” The Constitution Pipeline project would have carried Marcellus Shale gas from Pennsylvania to New York state. Though the project received federal approval and the necessary permits from Pennsylvania regulators, New York blocked the pipeline by not issuing permits. Williams dropped the project in February. The Holleran family of New Milford fought a lengthy battle to prevent the company from building the pipeline across their property. But in March 2016, the crews arrived at the 23-acre farm in rural Susquehanna County along with the federal marshalls, who wore bullet proof vests and carried semi-automatic weapons. The crew spent several days clearing about 558 trees, including some that were hundreds of years old…

National Science Foundation, July 7, 2020: Warming reduces trees’ ability to slow climate change

The world’s forests play an important role in mitigating climate change. Trees are carbon sinks — they absorb more carbon dioxide than they emit. But according to new National Science Foundation-funded research, the most prolific tree in North America, the Douglas fir, will absorb less atmospheric carbon dioxide in the future and therefore do less to slow climate change. “More warming for trees could mean more stress, more tree death and less capacity to slow global warming,” said University of Arizona dendrochronologist Margaret Evans. Dendrochronology is the scientific method of dating tree rings, which can provide data on climate and atmospheric conditions. “Until now, forests have stabilized the climate, but as they become more drought-stressed, they could become a destabilizing carbon source,” Evans said. Evans is senior author of a study published in Global Change Biology. To study the impact Douglas firs could have on future climate, researchers gathered a massive amount of data to understand the relationship between tree-ring width and climate. Tree rings are annual layers of growth made of carbon. When rings are thinner, that suggests the trees pulled less carbon dioxide from the atmosphere. “We chose to study Douglas firs because they have a huge environmental niche,” Evans said. “Douglas firs grow in the western half of North America, ranging from as far south as the mountains of southern Mexico, to the mountain peaks punctuating the Sonoran Desert, to the Pacific Northwest rainforests, to the frigid peaks of the Rocky Mountains…”

Lansing, Michigan, WSYM-TV, July 6, 2020: Homeowner tries to protect 100-year-old tree from sidewalk project

A Delhi Township woman is vowing to do whatever it takes to protect a more than 100-year-old tree on her property from a sidewalk construction project. The project is a part of the “Safe Routes 2 School” program. Holt Public Schools and Delhi Charter Township received a grant from the state to make safer routes for children walking to and from school. “I contacted the community development as soon as it started and I said, you know I have this big tree out front,” said homeowner Jessica Bouvier. “I really want to make sure you guys don’t cut into the roots, so is there any way that we can build above the tree so we don’t kill it.” Construction crews plan to work to remove earth and clear a path to level the ground in front of the tree for a sidewalk. Monday, Bouvier stood in front of the tree to prevent that from happening. She said the township previously told her the tree’s root system would be avoided. “It would cut into more roots and it would definitely kill this tree, for sure,” Bouvier said. “I had an arborist come out here he said if they cut into it, it’s going to die…”

Concord, New Hampshire, Monitor, July 6, 2020: If you want a tree that will last a century, what should you plant?

Everybody knew that COVID-19 would bring a lot of changes but I’m not sure many people anticipated society’s sudden love of bushy trees. “This is our busiest spring ever. We have never sold as many big trees as we have this year,” is how Rob Farquhar, garden center manager at Brochu Nursery in Concord, put it. What’s the COVID connection? Social distancing. “People say: How can I hide my neighbor? I’ve never been home this much!” Farquhar said. “They want big shade trees and evergreen screening.” Even without neighbors to hide from, I’ve spent a lot more time contemplating the trees on my property during these stay-at-home months and have become positively Lorax-like in my admiration. When you really look at trees you have to admit that they are weird, monstrous, incredibly cool things. But they also seem imperiled. I’ve lost track of how many of our tree species are being attacked by invasive insects, invasive plants, new diseases, the shifting climate or a combination of all four. Pine, oak, maple, hemlock; varieties of each seem like potential candidates to join elm and chestnut – and, soon, ash – on the list of tree species wiped out in North America. That leads to a question: What should I plant if I want the tree to last for a century or more and turn into a gorgeous giant like a century-old ash tree I’ve admired in a neighboring town?

Denver, Colorado, KCNC-TV, July 6, 2020: Forest Service Shuts Down Scenic Railroad’s Tree-Cutting Operation

An attempt by the Durango & Silverton Narrow Gauge Railroad to remove trees considered to be a wildfire risk along a stretch of track was halted by a cease-and-desist order from the United States Forest Service. This after the Forest Service filed a $25 million lawsuit last year against the railroad for allegedly causing one of the largest wildfires in the state’s history. The federal government claims a cinder from one of the railroad’s coal-fired steam locomotives ignited the 416 Fire in June 2018. That blaze burned more than 54,000 acres. The railroad faces other lawsuits seeking liability for the fire, including one from the insurance company of a nearby ski resort that was forced to close during the fire. The railroad denies its locomotive caused the fire, but months later committed to converting at least one locomotive to diesel fuel from coal. By the time the Forest Service cease-and-desist order was issued in late May, eight miles of the tree-cutting project had already been completed. Now, however, tree-cutting is at a standstill as the historic locomotives run on a limited schedule and USFS personnel review what has been downed and cleared thus far. “One of the chief complaints we hear is about fire mitigation,” said John Harper, general manager of American Heritage Railways, which owns DSNGRR. “And now we’re actively mitigating and people are concerned and upset about it…”

Nature, Reply to “Height-related changes in forest composition explain increasing tree mortality with height during an extreme drought” (July 7, 2020)

Recently, we published a study1 tracking tree mortality through an extreme drought for ~1.8 million individual trees over 8 years, revealing a continuous upward trend in mortality risk with respect to tree height. In the accompanying paper, Stephenson and Das dispute our findings, highlighting two scenarios in which broad changes in forest composition control mortality trends. We re-analyze our full tree-level dataset2, controlling for forest type by testing for an increasing height-mortality trend in ten unique topographic positions and ten unique forest types (Fig. 1). In all topographic positions and all forest types covered in the original 40,000-ha study area, we still find a consistent upward trend in mortality rate with increasing tree height. We also find that plot-based sampling schemes may not confidently detect the full height-mortality trend due to undersampling of tall trees in forests. Our remote sensing-based approach helps solve this logistical challenge. With these lines of evidence, alongside our original findings1, we argue in favor of a broad height-mortality trend that is interactive and modulated by species-specific factors. Drought-induced tree mortality is controlled by a complex series of interacting stressors—not by a single binary factor…

Toronto, Ontario, Star, July 6, 2020: Toronto unleashes killer fungus in its last stand against an invasive insect wiping out our ash trees

The city is betting on an experimental program to control emerald ash borers before the destructive bugs kill off what’s left of our ash trees. Before the invasive species of Asian insect started making its way up the Highway 401 corridor from the U.S. about 10 years ago, Toronto was home to an estimated 860,000 ash trees. Since then, the emerald ash borer infestation has killed or resulted in the removal of all but about 10,000 ash trees in the city, with the rest likely headed for the same fate unless a solution is found. The answer — hopefully — is blowing in the wind and dangling from the high branches of ash trees in the Guild Park and Gardens, where the final battle is underway. My regular walking route includes the Guild Park, where signs were recently attached to ash trees asking people not to fool around with ropes that lead to two types of traps suspended far above the ground. Josh McMeekin, a forest health care inspector with urban forestry, said the Guild area is “a unique place, very ash dominant…”

Decatur, Illinois, Herald-Review, July 5, 2020: Code change would regulate what Decatur residents can grow on their property

City officials are seeking to regulate how residents can grow native prairie grasses on their properties, aiming to allow those plantings without bringing unwanted wildlife and other problems into neighborhoods. The Decatur City Council on Monday will consider amending city code to allow for native planting areas, with guidelines and some restrictions. In a memo to the city council, City Manager Scot Wrighton said the goal was to offer an ordinance that “adds value to the urban landscape while still controlling the undesirable elements of uncontrolled prairie grass pastures.” Wrighton said the proposed rules were developed after staff met with an advisory committee that included representatives from several organizations, including the Macon County Conservation District, Richland Community College, U of I Master Gardeners Club of Decatur, Macon County Soil and Water Conservation District, Sustain Our Natural Areas and the Decatur Audubon Society. The council has a history with the issue. Members agreed last year to consider amending city code to allow for native planting areas and approved a temporary moratorium on the enforcement of high-grass nuisance code violations for properties that claimed to have authentic native or prairie grass landscaping…

Los Angeles, California, Times, July 3, 2020: Worries mount in Yucca Valley that Joshua trees will be designated an endangered species

To hear local leaders tell it, the proposed listing of western Joshua trees as an endangered species would be an economic catastrophe for the high desert Town of Yucca Valley. It would place an onerous regulatory burden on property owners, they say, at a time when they are being pinched by declining revenue due to the COVID-19 pandemic and a state mandate to install a $375-million sewer system on parcels where the trees grow, as some residents put it, “like weeds.” But state wildlife authorities have recommended that Joshua trees be considered for listing. The recommendation was based on a review of a petition submitted by the Center for Biological Diversity, which argues that the trees are facing the risk of extinction after years of development, drought and more frequent wildfires due to climate change. And therein lies the pickle for the town of 21,000 residents along California 62 about 25 miles north of Palm Springs. On Monday, Assemblyman Chad Mayes (I-Yucca Valley) added a new wrinkle to the controversy on behalf of his constituents: He introduced a hastily crafted emergency bill that would amend the California Endangered Species Act to make it easier to take a threatened or endangered species found to be causing significant economic hardship or impacting critical infrastructure such as a sewer system. Mayes is especially interested in changing regulations that grant temporary protection to Joshua trees or any other species in the process of being considered for listing. “If the tree is just a candidate for listing,” Mayes said in an interview, “it doesn’t seem fair to make our struggling desert communities pay a heavy price for the international problem of climate change…

Urbana, Illinois, University of Illinois Extension Service, July 5, 2020: Illinois’ big trees are on the map

From the depths of the Shawnee National Forest to backyards in the suburbs of Chicago, Illinois’ biggest trees are branching out. For the first time, the state’s champion trees are now available as an interactive digital map. “For more than 58 years, the Illinois Big Tree Register has inspired generations of big tree hunters who relish the opportunity to find and nominate the next champion tree,” says Jay Hayek, a University of Illinois Extensionforestry specialist in the department of Natural Resources and Environmental Sciences (NRES). “The map is an exciting new way for us to continue to discover and recognize the value of our largest native tree species.” NRES graduate and forestry technician Julia Allison developed the map, available at go.illinois.edu/championtrees, to give big tree hunters access to detailed information about each of the 88 champion trees listed on the Illinois Big Tree Register. The map includes tree species details, GPS coordinates, measurements, and their resulting scores, as well as a list of the 10 largest trees on record to date. Big tree enthusiasts can use the map to track down Illinois’ top-ranked tree, a 122-foot tall Eastern Cottonwood in Ogle County, and the county with the most champion trees, Union County in Southern Illinois. The register began in 1962 as a citizen-science outreach project to recognize the Prairie State’s largest native trees, and anyone with a tape measure can nominate a tree…

Ellsworth, Maine, American, July 1, 2020: Hungry, itch-inducing caterpillars take toll on humans, trees

If there is one good thing to say about browntail caterpillar season, it’s that it is wrapping up. As far as enemies go, this foe is unassuming. But don’t be fooled by its small, fluffy appearance. The caterpillar’s hairs can cause a fierce itch when they land on skin. “It’s awful — the itch is worse than chicken pox,” says Valerie Folckemer, who encountered the insects at her house on Newbury Neck in Surry. The caterpillars are brown and can be identified by the two white stripes that run along their backs and by two distinctive orange dots. Their tiny hairs are barbed and toxic. “I am covered in a severe rash from this stupid caterpillar and have been for an entire week now; it just seems to be getting worse, not better,” said Jill Rothrock of Hancock. The itching started June 17 when she was running errands in Ellsworth. Her daughter spotted a caterpillar on her shirt. “I didn’t even look, I just screamed and tried to shake it off my shirt. My daughter screamed and ran away,” Rothrock recalled. A friend plucked the insect off her shirt with a paper towel. “Then the rash started getting worse. By the time I went to bed, I had what looked like hives on my chest, shoulder and neck.” The following Monday she went to the doctor, who prescribed a compound for the rash. It didn’t help much. “My doctor and his nurse said they are getting so many calls about this caterpillar and rashes that it is causing people,” she said. There is little good to say about browntail caterpillars, according to Tom Schmeelk, a forest entomologist with the Maine Department of Agriculture, Conservation and Forestry…

Rosenberg, Texas, Fort Bend Herald, July 1, 2020: Cost of free oak trees could cost city $344,000 in maintenance annually, report says

In February, Fort Bend County Road and Bridge granted the city of Rosenberg 280 free oak trees. But nothing is really free. At the most recent Rosenberg City Council workshop meeting, council members discussed the cost of landscape irrigation for the live oak trees donated by Fort Bend County. City staff revealed that irrigation and installation for the trees could cost anywhere between $240,000 and $344,000. This project would be scheduled in three phases to allow the county’s contractor time to prepare the trees. Council agreed in February that the trees would be planted at center medians along major thoroughfares along Bryan Road, Spacek Road and possibly Town Center Boulevard. City staff explained that while the trees would be free, the city would have to pay for irrigation and other upkeep. “When we first discussed this, I had a feeling this was going to cost hundreds of thousands of dollars,” council member Isaac Davila said. “We have more important things to spend money on. That’s a wish list. If we had a lot of extra money then maybe. But we don’t. I’m against it.” Mayor Bill Benton said nice towns have a lot of things like sidewalks and trees. “I think we are out of touch with our constituents, especially the poorer ones,” Davila responded…

Southern Living, July 1, 2020: The Manchineel Is a Scary Tropical Tree That Can Kill You

There’s a toxic coastal plant you need to know about, and it’s called the manchineel tree. You may have seen one during your travels—it’s often accompanied by cautionary signs and a bright red band painted around its trunk as a warning to all who pass by. While not all manchineel trees are so painted, they require a fervent advisory, because they are one of the most dangerous plant species around. The manchineel (aka Hippomane mancinella, aka the Tree of Death) is native to coastal areas in southern North America, such as South Florida, as well as the northern reaches of Central and South America and the Caribbean. The plant gets its name from the Spanish word manzanilla, which means “little apple.” It is so named because the fruit and foliage of the plant resemble those of apple trees. It’s also been called manzanilla de la muerte, or “little apple of death,” a foreboding moniker if ever we’ve heard one. As it happens, all of the fearsome names are warranted. The manchineel has bright green leaves and round, yellowish-green fruits, making it a rather ordinary looking tropical plant. Don’t let it fool you, though: Every part of the manchineel is poisonous. The fruit is toxic, and the sap from the leaves and stems is too. If touched, the irritants found in manchineel sap can produce inflammation and painful blisters on the skin. Passersby are warned not to stand underneath the tree when it’s raining, as dripping water can transfer toxins from the tree to anyone nearby. And finally, burning manchineel bark has been known to cause irritation, even blindness, due to airborne poison ash…

Arkansas City, Kansas, Cowley Courier Traveler, July 1, 2020: Tree removal digs up complaint

Some of the trees planted as part of a 2006 Summit Street beautification project are being cut down and removed in response to complaints from businesses. But removing the trees has also led to complaints from residents who like them. Public Services Supervisor Tony Tapia said several business owners in the 100 block of South Summit Street want the trees removed because they hide their signs and make their location less visible. “Like TCK investments,” he said. “They’ve got a new sign and they want the tree removed.” Tapia said that Riggs Tax Service has also complained about his sign being blocked and was also concerned about the tree on the north side of his building. He said the tree was breaking up the sidewalk and filling his bottom stairwell with leaves. “So the only thing I can do is take them out,” Tapia said. In some areas, the trees are causing a lot of damage, Tapia said. Sidewalks in front of Starlyn Venus Insurance at Summit Street and Chestnut Avenue are being badly damaged by tree roots. Another problem area is near the Council on Aging building in the 300 block of South Summit Street. He said Bob Niles complained that the roots were popping up the tile work in the doorway, so that tree was also removed. Tapia said the city is not planning to remove all of the trees, just the ones causing problems and receiving complaints. The only other tree slated for removal at this time is in front of The Grinder Man restaurant…

 

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Case of the Day – Thursday, July 9, 2020

STRICTLY SPEAKING

Strict liability statutes, also known as “liability without fault,” occupy the blameless end of the “mens rea” spectrum. Our traditional notions of fair play lead us to believe that people should not be held to blame for injury unless they are somehow at fault, either being negligent, grossly negligent, reckless, or just plain acting with intent to bring about the harm they cause.

But at common law, some acts were considered to be so inherently dangerous – the classic case was a lion that escaped from a keeper of exotic animals – that courts let the res ipse loquitur, the “thing speak for itself,” and found the owner liable for whatever mayhem ensued from a force that had once been under the owner’s control. Negligence need not be shown.

Remember the radioactive spider that bit Peter Parker and made him super-powered Spiderman? Peter (or maybe Spidey) could have sued the lab that let the spider escape. Everyone knows that a radioactive spider is an inherently dangerous instrumentality, and whoever the last guy was to have the arachnid in captivity had better be prepared to pay big, regardless of whether he was at fault or not.

But should strict liability extend to dogs? Speaking as the owner of a 37-lb. canine who is a terror to woodchucks but a marshmallow around humans, we don’t really see why they should. Nevertheless, many states have dog bite statutes that make owners strictly liable for their canines’ misdeeds, regardless of fault. To be sure, some of the statutes are hybrids, making the owner absolutely liable except for all the cases in which he or she is not. In today’s case, the statute at issue made an owner strictly liable for his or her dog’s bite, unless the person so bitten was engaged in criminal trespass or other criminal conduct, or was tormenting or teasing or harassing the dog. So the owner is absolutely liable… sort of.

Today’s case is the kind of tree law/neighbor law mashup that you have come to rely on us to deliver. The trial court here made the tree trimmer into a trespasser, despite the obvious fact that the power company had every right to enter its easement to prune back trees. The Court of Appeals could not swallow that, but instead suggested that while not a trespasser, the employee owed the dog’s owner notice that he was entering the premises, so the owner had the chance to control his dog.

With Chief Justice Roberts disappointing troglodytes everywhere by deciding cases according to his perception of the law rather than the politics (you can tell I’m a fan of Supreme Court judges who act contrary to their perceived politics), there will be a lot of talk over the next few months about “judge-made law.” You want to see judge-made law? Just look at the gyrations of the trial and appellate court in the case below.

The judges here clearly could not accept that the dog’s owner should have to pay, when the dog had been contained in a yard behind a fence and a “no trespassing” sign, but a stranger – regardless of intention and right – barged in anyway, and complained because the dog chased him. And they found a way to bend the law to suit their sense of propriety.

Collins v. Bergman, 2010-Ohio-6213 (Ct.App. Montgomery Co., Dec. 17, 2010), 2010 Ohio App. LEXIS 5233, 2010 WL 5274. Jason Collins worked for Nelson Tree Service, which was under contract with the power company to remove trees that were too close to utility poles and lines. Jason’s job was go from house to house inspecting inspect all trees encroaching DP&L utility lines and poles, so any trees too close could be trimmed back at a later time.

When Jason reached Jeff Bergman’s house, there was no answer when he knocked on the door. Jason left a courtesy card on the door, notifying Jeff that a tree trimming would occur in the future. Jason then went around the back of the house to count the trees. He could hear a dog barking. The dog was a Labrador-Rottweiler mix named Taz. Jason didn’t know Taz had a dog door giving him unfettered access to the back yard.

Jason could see that Jeff and his neighbor had built 6-foot privacy fences, which made it impossible for the power company to check its easement. Thinking that Taz was inside, Jason entered the fenced-in back yard through a gate marked “no trespassing.”

Taz was not inside. As Jason fled the barking dog, the cantankerous canine planted his fretwork in Jason’s pant leg. Jason tried to climb the privacy fence, but fell back, injuring his shoulder.

Jason sued Jeff under Ohio’s dog bite statute, O.R.C. 955.28. Jeff filed for summary judgment. At the time, that statute provided that “the owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property… or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog …”

The issues in this case were whether Jason entered Jeff’s property pursuant to the utility easement, and whether he was a trespasser within the meaning of the dog bite statute.

The court determined that Jason was injured within the easement, where he had a right to be. However, the court said, the easement did not provide a specific place for the utility to enter the property, and therefore Jason was required to make use of the easement in a reasonable manner. The court found that Jason did not act reasonably in deciding to enter Jeff’s property without notice and through a latched gate and a fence with a posted “no trespassing” sign. The court also noted that Jason failed to follow his own company’s policy in entering a property when there is a dog barking in an enclosed area. Because Jason did not make reasonable use of the express easement granted the utility company, he was a trespasser within the terms of O.R.C. 955.28(B). The trial court granted Jeff’s summary judgment motion.

Held: Jason was a trespasser and not entitled to damages.

The Court of Appeals agreed with Jason that he had a right to enter the easement, and because it was blocked, he the only reasonable avenue open to him through the backyard fence.

However, in determining whether a person is a “harborer” under the statute, the Court said, “the focus shifts from possession or control over the dog to possession and control of the premises where the dog lives.” The hallmark of control is the ability to both prevent and exclude others from coming onto the property. Because Jason entered the property without permission, Jeff lost the ability to control his property at the time of the incident. Thus the trial court properly denied Jason’s motion for partial summary judgment and properly granted summary judgment to Jeff on the O.R.C. 955.28 claim.

– Tom Root

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Case of the Day – Wednesday, July 8, 2020

WERE WE ALARMISTS?

Yesterday, we noted the incremental creep of the law toward imposing an affirmative duty to inspect trees. The Turner v. Ridley court suggested that it was no longer enough that an owner lacked actual or constructive knowledge of a defective tree. In some cases, he had a duty to inspect, and in the absence of having done so, he was charged with knowing that his trees were dangerous.

Which one is Tilford E. Dudley?

Which one is Tilford E. Dudley?

Were we wrong in predicting that Turner portended the judicial application of a duty to inspect? Today’s case was decided only a few years after Turner by the same court, the District of Columbia Court of Appeals. In this case, a tree standing next to an apartment house fell across an alley onto Tilford E. Dudley’s place. The name itself is classic – evocative of a titled cousin come to visit the Granthams at Downton Abbey.

Tilford sued the apartment owner, Meadowbrook, Inc. At trial, (land)lord Dudley showed that the tree, although quite alive at the time it fell, had a five-foot long concrete patch in one side and was decayed from the inside out. It hadn’t been shedding branches, but due to the proximity of the apartments, soil had been banked several feet high around the tree and a “well” had been dug at its base for the trunk.

The trial court threw out the case after Tilford Dudley finished his direct case, holding that the defendants won as a matter of law, because there was no evidence they were on notice that the tree was defective.

A concrete patch in a tree.

A concrete patch in a tree.

The Court of Appeals was apparently rather impressed that the tree had been patched with enough concrete to build rebuild the 14th Street Bridge. Concrete plugs in trees was a common enough treatment to fend off decay years ago, but – like physicians’ blood-letting as a cure for illness – it has fallen into disfavor recently. But in this case, the Court said, such a big concrete patch – as well as, possibly, the banked soil and apartment building only four feet from the truck ­– ought to have caused the owner’s manager to do something to inspect the tree or, importantly, hire an arborist to inspect the tree. There may have been evidence she did so, but the Court of Appeals said that Meadowbrook couldn’t hide behind a general lack of obligation to inspect.

The Court thus nudged the standard a bit further along. If something in the tree’s history – and the concrete patch apparently was over 10 years old – might suggest that it was diseased or injured at one time, the Court seemed to say, an owner might have an affirmative duty to inspect, or even to hire an expert to inspect, her trees.

Of course, there’s no telling what condition might trigger such an affirmative obligation. Decayed trunk? Dead limbs? Bracing or cabling installed by a tree service? A surfeit of twigs shed by the tree? Insects clinging to the bark? There’s no telling, but you can be sure that a court will be more willing to Monday morning quarterback a defect that results in collapse, holding that the property owner should have been inspecting for that.

Dudley v. Meadowbrook, Inc., 166 A.2d 743 (C.A.D.C. 1961). A large tree on Meadowbrook’s property fell across an alley and onto Dudley’s premises, damaging his garage and other property. Dudley sued for his damages. At the end of his case the trial court found for Meadowbrook, ruling that it was unnecessary for the defense to put on any answering evidence.

Dudley appealed.

Held: The holding was vacated, and the vase returned to the trial court.

The tree, which had been growing since before 1942, fell at a time when no strong wind was blowing. When an apartment house was built there, the soil had been banked 2 or 3 feet deep on two sides of the tree and a concrete well was built around the tree trunk. The apartment building was about 4 feet from the tree well and a paved parking area was about a foot away. Dudley testified that the tree was about 75 feet tall and 2 .5 feet wide at the base. Where it broke off at ground level there were indentations extending about 6 inches below the ground and into the base of the tree trunk, and an area of about 2 feet inside the trunk appeared to be “spongy, decayed and soft,” although no decay showed on the outside of the trunk. Dudley said the tree was in full foliage with no dead branches but that on one side of the trunk there was a strip of cement extending from near the base to a height of about 5 feet . The cement had been there for at least 12 years before the tree fell.

No longer part of an arborist's bag of remedies ...

No longer part of an arborist’s bag of remedies …

The Court admitted that the law was muddled, but held that “the sound and practical rule is that liability in such cases is to be determined by the test of negligence and that a landowner should be held to the duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor’s property.” It then opined that “[a] healthy tree does not ordinarily fall of its own weight without some exterior force being directed against it. Though some evidence indicated that the tree looked sound, it was in fact full of decay. At least 13 years earlier it had been subjected to surgery and a large area filled with concrete. We think it cannot be said as a matter of law that during all the intervening years the owners were under no duty to inspect it or have it examined by an expert to see whether it required further attention and whether it was safe to let it remain standing.”

Without any evidence other than its own sense that something didn’t seem right that the tree had fallen without any apparent external factor and that it had once had surgery, the court substituted its judgment for the evidence in the record. Some of its holding can be ascribed to as courts’ natural bias in favor of letting a jury decide rather than having the case taken from the factfinder by a trial judge. But if evidence of surgery more than 13 years prior is sufficient to “require … [the owners] to produce evidence as to what they knew about it or what examinations they made during the many years since the tree was last treated,” then a generalized rule that requires urban owners to inspect their trees cannot be far behind.

Here, the case was sent back for a new trial.

– Tom Root
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Case of the Day – Tuesday, July 7, 2020

YEAH, LITERALLY

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One of the many badges that marks us as curmudgeons, according to a recent book, is our preoccupation with proper language. Sure, we used the current slang, “just sayin’, yesterday, but we trust you recognize irony when it smacks you in the face.

We are not ashamed to admit that our gorge rises when people say “irregardless” when they mean “regardless,” say “affect” when they mean “effect,” or use “like” every third word or so. And don’t get us started about made-up nonsense like “ze” or “Mx.” As far as we’re concerned, “ze” should always precede the word “plane” and be shouted by Tattoo. “MX” will always be a missile program.

But what metaphorically drives us batty is the casual and improper use of the word “literally.” The word means “actually” or “without exaggeration.” Believing as we do that the widespread devaluation of like every corner of the English language is like literally going to send us to hell in a handcart, we were surprised to see that today’s case ­– well over 50 years old – featured a witness describing “literally thousands of bees inside the trunk” of the decayed tree.

We were fascinating that, with such a swarm pursuing him, the witness took the time to count the bees, at least until he passed 2,000. That took nerves of steel. Literally.

Beyond our disquiet over the witness’s imprecise and flawed language, we were interested in the application of both Hay v. Norwalk Lodge No. 730, B.P.O.E., 92 Ohio App. 14, 109 N.E.2d 481 (Supreme Court, Ohio, 1951) and Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231 (3rd Cir. 1951). While those decisions – which we’ve discussed recently here and here – related to injury to passing motorists, the court here couldn’t see any practical difference between the landowner’s duty to a motorist and to a parked car. Furthermore, it found that the tree was so obviously dead and dangerous that the landowner was chargeable with knowing about its condition, although he’d only owned the property for a few weeks.

How many bees? Literally thousands ...

How many bees? Literally thousands …

The court said that a few weeks was not so legally insufficient a period time for him to have gotten over and inspected the place that the factfinder was wrong for finding him liable.

The trend here is clear: the law was moving toward holding that a property owner had an affirmative duty to inspect the land. Actual or constructive knowledge wasn’t enough. The absentee owner should have done a drive-by, the court decided by implication. And thus, the evolution of a requirement that an owner affirmatively care for his or her property continued.

Turner v. Ridley, 144 A.2d 269 (Ct.App.D.C. 1958). Turner owned a house facing a street on which automobiles were regularly parked. The small front yard featured a single large tree. On a fall evening, Ridley’s friend parked Ridley’s car at the curb in from of Turner’s house. Early the next morning, with no inclement weather to blame for the event, the tree toppled and fell across the sidewalk, striking Ridley’s car.

At the time the tree fell, according to the man who had parked Ridley’s car – a man named Reid ­– the tree ‘was rotten and looked like it was dead and had very few leaves on it.’ and on the night before it fell he had remarked to a friend ‘that tree looks like it is going to fall some day.’ The tree in falling broke off even with the ground, and then it was observed that the tree was hollow and badly decayed with ‘literally thousands of bees inside the trunk.’

Turner testified he had purchased the property through an agent at a foreclosure sale a month before the mishap, that the property had been vacant since he purchased it, that he had never seen the property or the tree, and that he had no notice or knowledge that the tree was in a dangerous or rotten condition. The trial court awarded judgment to Ridley for the damages he sustained.

Turner appealed.

Held: Turner was liable for the damage to Ridley’s car. While prior cases diverge somewhat, the Court found the Ohio decision in Hay v. Norwalk Lodge No. 730, B. P. O. E., instructive, holding that “an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway.”

Knowledge could either be actual or, as held in Brandywine Hundred Realty Co. v. Cotillo, constructive, “if such condition was known or by the exercise of ordinary care could have been known by the defendant.”

The car was the first casualty ... but not the only one.

The car was the first casualty … but not the only one.

The Court admitted that Hay and Brandywine dealt with personal injuries to travelers on the highway, but it observed that there is “no distinction in principle between the case of personal injury to one lawfully traveling on a highway and the case of property damage to a vehicle lawfully parked on the highway.” The issue was whether the owner – who had only owned the property for a few weeks and who had never seen it before – could be charged with constructive knowledge of the tree’s condition. There was no question that the tree was obviously dangerous and quite dead. The Court acknowledged that “[a] three-week period is no great length of time, but we cannot rule that such period was legally insufficient time for appellant to look over his property and observe the condition of the tree and take steps to prevent its fall. We think the evidence presented a factual question as to notice and lack of care.”

“Hard cases are the quicksands of the law,” as an old maxim put it. Here, the intersection of an absentee owner, an obviously defective tree, a fairly minor damage bill, a colorful witness and lack of any defense by Turner, combined to bring about a holding that imposed additional duties on a landowner.

– Tom Root

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