Case of the Day – Friday, January 22, 2021

FORCE MAJEURE

Does anyone remember Hurricane Katrina? Who could forget the immensity of the storm, the devastation, the lives lost, the agony?

Ms. Title spent a lot of money in court defending herself against the Hoerners ... but she won this chic tote bag. She should read its message ... every day.

Ms. Title spent a lot of money in court defending herself against the Hoerners … but she won this chic tote bag. She should read its message … every day.

Doctor and Mrs. Hoerner, that’s who. These folks – Big Easy residents for 25 years – sued their neighbor, Beulah Title, under the Louisiana Civil Code article that governed negligence. It seems Ms. Title’s trees were kind of bushy, and the neighbors were always cutting them back. Ms. Title, a better neighbor to the Hoerners than they were to her, always let them trim the trees and even cut down an oak once when the Hoerners asked her to. She was a very a nice neighbor … a kindly lady who learned the hard way that Oscar Wilde was right: no good deed goes unpunished.

When the big blow came, it took down a couple of Ms. Title’s pine trees, damaging the Hoerners’ brick wall, patio and pool. And probably spilled their pitcher of martinis. Imagine the horror! We bet those poor folks in the Lower Ninth Ward didn’t have it any worse than the Hoerners. But the Hoerners had something those victims in the Crescent City’s worst neighborhood didn’t have: a lawyer. He sued Ms. Title, arguing that because she knew the trees were overgrowing the Hoerners and needed trimming, that she was liable for the damage caused when they toppled.

The courts made pretty short work of this. Rather patiently, we think, the Court of Appeals explained to the clueless (or avaricious, take your pick) Hoerners that the trees didn’t fall because of the overhanging branches. They fell because of this Cat 5 hurricane that hit the city, the one the Hoerners must have overlooked.

The Court held that even the branches had been the cause, Ms. Title could avail herself of the force majeure defense, specifically that even if she had exercised reasonable care, the injury couldn’t have been avoided because of the intervention of a greater force unforeseen by the parties.

Hoerner v. Title, 968 So.2d 217 (La.App. 4 Cir., Sept. 26, 2007). Be warned: Beulah Title is a person, not a title insurance company. Beulah Title the person had property right behind the home of Linda and Harry Hoerner. The Hoerners complained that that they had had problems with Ms. Title’s pine trees and other foliage along their brick wall since 1991. Yet, every time Dr. Hoerner sought permission to trim the trees and shrubs back to the property line, Ms. Title allowed him to do so. On many occasions, the Hoerners removed branches from Ms. Title’s trees that were hanging over the brick wall. On one occasion, Ms. Title removed an oak tree from her backyard at the Hoerners’ request. The Hoerners did not allege that the trees in question were defective, just that they were bushy.

During Hurricane Katrina, the trunks of Ms. Title’s trees were blown, damaging the Hoerner’s brick wall, patio, pool and landscaping. The damage was not caused by branches hanging over the wall, and the trees did not fall due to lack of maintenance or improper trimming. Nevertheless, the Hoerners sued Ms. Title for repairs to their property, alleging that she was strictly liable under Article 2317.1 of the Louisiana Civil Code. That provision directed that the owner of a thing (like a tree) was liable for damage occasioned by its defect upon a showing that she knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that she failed to exercise such reasonable care. Ms. Title argued that the trees were not defective and she is entitled to the defense of force majeure. The trial court agreed with Ms. Title, and the Hoerners appealed.

Force majuere - not a French superhero group - rather, a rational legal concept.

Force majeure – not a French superhero group – rather, a rational legal concept.

Held: Ms. Title was not liable. Under Article 2317.1, in order to establish liability a plaintiff must demonstrate that the owner of the thing knew, or should have known, in the exercise of reasonable care of the defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that the owner failed to exercise such reasonable care. Here, the Hoerners admitted that the trees were healthy, but they complained they were defective because they were neglected and overgrown and placed too close to the brick wall. The Hoerners cited a case where lack of tree maintenance was considered in finding that the owner had knowledge, but the Court observed that case involved a diseased tree. Ms. Title’s trees, on the other hand, were healthy.

Based on the evidence, the Court said, it did not find that Ms. Title’s trees were defective for lack of maintenance or location. While the Hoerners had shown Ms. Title’s trees had plenty of overgrowth into their yard, the evidence showed that the trees themselves were blown over and into the brick wall, causing all of the damage to the Hoerners’ property. It was not the overgrowth that did the damage. Additionally, Ms. Title was entitled to the defense of force majeure. The Court observed that the winds of Hurricane Katrina caused trees to fall and damage property regardless of maintenance or location all over the Greater New Orleans area. Thus, she could not be liable for the fallen trees under any circumstances.

– Tom Root

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And Now The News …

Cincinnati, Ohio, Enquirer, January 21, 2021: Customs seizes mislabeled shipment of 21 small trees from China in Cincinnati

U.S. Customs and Border Protection officers in Cincinnati say they recently seized a deliberately mislabeled shipment of 21 small trees from China. Likely intended to become Bonsai trees, they were labeled as a bracket, a vacuum pump and a pamphlet in a shipment purportedly from an electronics company in Shenzhen, China, headed to an individual in Brooklyn, New York, a customs news release said. “Specialists noted the trees were layered with various coverings – fabric padding, black plastic, bubble wrap, and, finally, tightly bound with colored tape – presumably as an effort to circumvent inspection,” the release said. The trees did not have a certificate from China attesting to the health of the trees as required for their importation, the release said, and were destroyed by customs officials…

Boston, Massachusetts, Globe, January 21, 2021: Boston scraps plans for Melnea Cass Boulevard following uproar over potential removal of trees

Boston officials have discarded a plan to revamp Melnea Cass Boulevard in Roxbury following last year’s community uproar over a proposal to remove scores of trees that line the roadway. In a Thursday letter to the community, city officials said they remain committed to crafting a new plan to make the road safer, enhance its open space, and increase “resilience in an area prone to flooding.” “We are confident that this process will realize a final design that reflects the aspirations and needs of the communities abutting the corridor,” read the letter, which was signed by Chris Cook, the city’s environment chief, Karilyn Crockett, the city’s equity chief, and Chris Osgood, the city’s streets chief. The city’s decision came as welcome news to Tomiqua Williams, a community activist who said she wanted the area to be kept “as green as possible,” something that would help residents’ mental health. “That’s awesome that they’re listening to the community,” Williams said…

Spokane, Washington, The Spokesman-Review, January 21, 2021: Gardening: Late-blooming apricot tree varieties suited for Spokane region

I love apricots! My favorite way to eat them is as apricot pineapple jam. The sweet apricot blends beautifully with the tangy pineapple, especially on a piece of homemade bread. Unfortunately, apricots aren’t the easiest tree to grow in our region. They often bloom very early in the spring and get hit by frost which kills the flower. Take heart though, with careful variety selection, you can assure yourself of a good harvest most years. The key to selecting the right variety is to look for ones that bloom later than other apricots. Normally, apricots bloom at the end of April. Late-blooming varieties bloom closer to mid-May, a timeframe that can avoid the last of the killing frosts. Another characteristic to watch for is whether the variety is self-fertile or needs another apricot variety nearby to cross pollinate with. Here are a few late blooming varieties to look for. All are hardy to USDA Zone 4 and all are late bloomers. Canadian White Blenheim, as its name indicates, was developed in Canada, which is much colder than Spokane with later springs. This tree is partially self-pollinating, so it needs to be planted with another late blooming variety for a heavy crop. Any of the varieties listed below will work. The challenge is whether you have room for two trees in your garden. If fully pollinated, the tree bears a heavy crop in late summer and has gold orange skin around firm, sweet white flesh. The fruit can be eaten fresh, canned, dried or made into jam…

Wellesley, Massachusetts, Wicked Local, January 21, 2021: Real Estate Advice: Trying to save a screen of trees

Q: The association board in my condominium complex is planning to cut down a bunch of trees behind my unit. The trees are not especially pretty trees, but they do provide me with a lot of privacy and shade, and do not present any danger to the building. Since this decision mainly affects me, is there anything I can do to prevent this from happening?
A: Before I discuss the recourse part of your question, have you talked to the board to find out why they are taking down the trees? Are the trees infected with something? Are they hosting pests of some sort? Also, is the board planning to replace the trees with some other type of trees, bushes, landscaping, etc., or just planning on leaving the area clear? If they are planning on replacing the trees with another type of tree, it might work out all right for you. Whatever the reason the board has decided to take down the trees, it should be noted that condo association boards, in general, have wide latitude in governing the association. But just because board members have broad authority to handle the affairs of the association does not mean that they are infallible or always make the best decision. Sometimes they make poor decisions…

Portland, Oregon, Oregon Public Broadcasting, January 21, 2021: Whither Eastside Screens? New guidelines allow cutting larger trees east of the Cascades

New federal guidelines allow cutting large trees that have been off-limits to logging for nearly three decades across 8 million acres of Eastern Oregon. The U.S. Forest Service last week approved amendments to what’s known as the Eastside Screens, a plan to manage old-growth forests, rivers and streams, wildlife habitat, and more for six national forests east of the Cascades. The amendments do away with the “21-inch rule,” which prohibited cutting trees larger than 21 inches in diameter and safeguarded many of the oldest trees. Rob Klavins, Northeast field coordinator for the conservation group Oregon Wild, said axing the rule removes “the only real meaningful protections for old-growth forests in Eastern Oregon.” “The logging lobby has been trying to kill old-growth protections for 25 years,” he said. “And the Trump administration just gave them what they wanted.” The Forest Service made its decision in the name of wildfire preparedness. Decades of aggressive fire suppression has left many Northwest forests overgrown with hazardous fuel. Ochoco National Forest supervisor Shane Jeffries said the 21-inch rule made it difficult to remove fire-prone species like grand fir and white fir without a lengthy regulatory process…

Entomology Today, January 20, 2021: The Warmer the Better: Gloomy Scale Can Be a Big Problem on Urban Landscape Trees

Few would dispute that scale insects are not exactly the “charismatic megafauna” of the insect world: They’re small, largely immobile, and often go unnoticed by the untrained eye. These insects feed by tapping their long mouthparts down into cells to extract plant fluids. Many different species of scale are common on trees, both in natural and more managed areas. In most cases—especially in natural areas—scales do little to no measurable damage. However, trees in urban landscapes are particularly susceptible to injury from scale insects for a variety of factors. To learn more about the implications of gloomy scale (Melanaspis tenebricosa), I spoke to the authors of a new article published in December in the Journal of Integrated Pest Management that highlights the ecology and management of this pest on landscape trees. Michael G. Just, Ph.D., now a research ecologist at the U.S. Army Corp of Engineers’ Engineer Research and Development Center, is lead author on the paper and conducted research on gloomy scale while a postdoctoral research fellow at North Carolina State University (NCSU)…
Q: There are a lot of scale species. What makes gloomy scale stand out from the others?
A: The fact that they don’t stand out. I mean, they can be pretty hard to detect on red maples, as they are a similar color to the host’s bark and they don’t move much. (Female adults do not move at all). Also, when compared to some other insect pests, they are not very flashy when it comes to tree damage. They will not denude a canopy in a single season. Instead, they are a chronic pest and it takes some time before host damage is easily spotted. They are also notable because after being described as one of the most important enemies of shade trees in North Carolina, there was a pause on gloomy scale research for almost a hundred years…

Everett, Washington, Herald, January 20, 2021: Madrone tree to make way for bigger McDonald’s in Oak Harbor

An Oak Harbor woman had hoped to save a large Pacific madrone tree that is slated be cut down to accommodate planned demolition and expansion of the city’s McDonald’s restaurant. Despite being named a Tree City USA by The Arbor Foundation for the 17th year in a row, the City of Oak Harbor has no special protection in place for the native tree species, Arbutus menziesii, commonly referred to as the madrona. Carol Johnston works as a dental hygienist in a building next to McDonald’s and has watched the tree grow for the last 14 years. “I love this tree. It’s probably the biggest in Oak Harbor,” Johnston said, referring to the madrone. The large, orange-skinned madrone tree is next to the drive-thru line. Johnston can see it from her window and noted that many patients comment on its beauty when they come in for a cleaning. The multi-trunk tree is likely between 25-30 feet tall and has a diameter of more than 12 inches…

Mountain Home, Arkansas, Baxter Bulletin, January 20, 2021: Almost time to prune fruit trees

Fruit trees should be pruned every year just before the beginning of active growth to maintain their health, encourage balanced growth and productivity, and control their size and shape. When you plant a fruit tree, you should be dedicated to giving the tree proper care and pruning to maximize both fruit quality and quantity throughout the life of the tree. Understanding the principles of pruning and practicing them are important. The objectives of tree pruning are (1) to develop strong tree structure: This should begin when trees are planted and continue each year thereafter; (2) provide for light penetration: Good light quality throughout the tree increases fruit bud development for following years and increases the quality of the current crop; (3) control tree size: Most fruit trees require pruning to control branch spread as well as tree height. This also serves to encourage new growth that will result in new fruit-bearing areas; (4) remove damaged wood: Some wood damage occurs almost every year from such things as wind damage, fruit weight, winter injury and disease and insects…

Moraga, California, Lamorinda Weekly, January 20, 2021: Thousands of dead trees pose extreme fire risk in Lamorinda

You do not have to drive very far in Lamorinda before you see dead or dying trees. “I removed thousands of dead trees in Lamorinda last year,” said Brian Gates of Expert Tree Service in Orinda. “By summer, there will be thousands more.” And that is precisely what officials of the Moraga-Orinda Fire District fear: That thousands of dead trees, particularly Monterey pines, will mar the district landscape, adding yet another hazard to a potentially catastrophic fire season ahead. The problem of dead and dying trees is not restricted to the summer. Tom Smith of the California Department of Forestry and Fire Protection toured the Northern California region in December, stunned at the number of sick and dying bay laurel and Monterey pine trees. “There is a lot of death and destruction here,” he said. Residents of Moraga and Orinda have recently reported hundreds of these dead trees to the fire district. “There was enough of an uptick that we took notice,” said MOFD Fire Marshal Jeff Isaacs, who plans to ramp up enforcement of tree removal this year. “Dead trees equal dead fuel. Even a healthy Monterey pine drops a lot of material, and it can land on a roof. When Monterey pines are dying, it’s dead fuel dropping.” Adding to the nuisance value of Monterey pine trees, the U.S. Forest Service says that Monterey pine wood is light, soft, and coarse grained, with little commercial value in the United States except as fuel wood…

American Association for the Advancement of Science, January 19, 2021: Aphids suck: Invasive aphid found on Danish apple trees

The spirea aphid, Aphis spiraecola, an invasive pest, has been discovered for the first time in Denmark by University of Copenhagen researchers. The extent of its current distribution remains unknown, but in time, it could prove to be a troublesome pest for Danish apple growers. Whether the discovery of this aphid in Denmark is an isolated incident, or if the species has made itself at home due to a milder climate, remains unknown to the researchers. Closer investigation is needed. In a collaboration with colleagues at the University of Budapest, University of Copenhagen researchers have analysed and compared a number of samples of green aphids from apples around the world and discovered a new apple-loving pest in Denmark. The bright greenish yellow spirea aphid–Aphis spiraecola– which most likely originates in East Asia, has gradually become a widespread pest in tropical and temperate regions around the planet. While it is especially problematic for citrus and apple trees, it can attack many other plant species. The aphid has been in the United States for the last 100 years and was discovered in Mediterranean countries in 1939. However, the spirea aphid has never been witnessed in the Nordic countries before…

Coastal News Today, January 19, 2021: Houston’s Newest Heroes Are Native ‘Super Trees’ With Special Eco-Powers

Deer and bobcat have left tracks in the mud. Coyotes have dropped furry scat. Hawks soar overhead.The Port of Houston built the berm, a 2.6-mile-long, 20-foot-high ridge that curves from about Texas 146 to Galveston Bay, to buffer the communities of Seabrook and Jardin del Mar and preserve nearby natural areas from the sights and sounds of its busy Bayport Container Terminal. A massive land development is now under construction on the terminal side. But wildlife sights and sounds appear to be increasing, too. The berm sits along the Great Texas Coastal Birding Trail, an important stop for migrating and overwintering birds. Before heavy industry arrived, the whole area was a wildlife paradise. Patches of it still are. Armand Bayou Nature Center is nearby, and other surprisingly lush pockets of undisturbed marshland and woods lie between the berm and Galveston Bay.It isn’t so obvious yet, but volunteers have planted about 2,500 native tree saplings on the berm since July. And that number will double by the end of March, says Deborah January-Bevers, the president and CEO of Houston Wilderness, a nonprofit founded in 2002 to support and coordinate the work of many partners who want to preserve and promote the 10 diverse eco-regions that lie within the Houston metro region’s 13 counties…

Dublin, Ireland, The Independent, January 20, 2021: The Scots Pine is a native Irish conifer tree

The Scots Pine grows widely throughout Europe and Asia. Its distribution range extends eastwards from western Europe to the eastern extremity of Russia, northwards to Scandinavia and southwards to the chain of mountains stretching from the Pyrenees and Alps to the Balkans in central Bulgaria. Where the tree thrives, it often forms dense forests, an outstanding example being the old Caledonian pine forest of the Scottish Highlands where the species is the dominant tree; hence its name and its special link to Scotland. Pines are a family of evergreen trees distinguished by their scaly buds, the structure of their cones and the way their needle-like leaves are borne spirally. The number of needles is always two, three or five. Scot’s Pine is a two-needle species. It used to be believed that Scots Pine was not native to Ireland and that our pine trees were all imported from Scotland. From research carried out by scientists based in Trinity College Dublin we now know that that Scots Pine is native to Ireland and was living here thousands of years before the any trees were imported from Scotland…

New Orleans, Louisiana, Times-Picayune, January 18, 2021: Arbor Day: Plant trees for the environment and the senses

Events to observe Arbor Day are under way in St. Tammany Parish, with more than 1,000 tree seedlings expected to be distributed and planted this year. Arbor Day began in 1872 and has continued as an annual project that encourages people to plant trees. It is held during the optimal planting season, which varies across the country. In Louisiana, Arbor Day is observed the third Friday in January. Catherine Casanova, arborist and landscape inspector with the city of Mandeville, agreed that now is the time to plant trees. “When it’s so cold outside you don’t know if you can dig a hole,” it is time, she said. “We want people to take a tree and plant a tree wherever you can.” Mandeville, Covington and Slidell are among 12 designated as a Tree City by the National Arbor Day Foundation. Tree giveaways are held annually in each location, and more than 400 bare root seedlings have already been distributed during a drive-thru at Fritchie Park…

Flagstaff, Arizona, Associated Press, January 18, 2021: Predicted Arizona dry year could impact trees, cause fires

Experts have predicted another dry year for Arizona following 2020, when the driest year on record stressed forests across the state’s northern region. The dry conditions could have significant impacts on the health of trees and increase wildfire danger, Arizona Daily Sun reported Saturday. The U.S. Drought Monitor reported Flagstaff experienced only 9.56 inches (24 centimeters) of precipitation in 2020. Coconino County, which reaches to the northern border with Utah and includes Grand Canyon National Park, experienced what was termed an exceptional drought. Ponderosa pine forests across northern Arizona are already stressed by overgrown forests and a warming climate. Adding drought can be “a little bit of a one-two punch,” said Andrew Sanchez Meador, executive director of the Ecological Restoration Institute at Northern Arizona University…

International Business Times, January 18, 2021: Oak Trees Take Root In Iraqi Kurdistan To Help Climate

Delband Rawanduzi spoke softly to her oak seedlings, as if willing them to grow fast and repopulate forests in Iraqi Kurdistan depleted by war, illegal logging and fires. Over the next five years, the 26-year-old aims to plant one million oaks — resilient trees that can endure both the cold of northern Iraq and the dry spells of one of the world’s hottest countries. Her plan is taking root in her native Kurdistan. In a pilot project late last year “we planted 2,000 oak trees. And in the upcoming autumn we will plant 80,000,” said Rawanduzi, a hiker and rock climber. She has mobilised visitors and shepherds who collect oak seeds from the mountains, which are then planted in two greenhouses donated by a private university in the Kurdish regional capital of Arbil. Once the young seedlings grow into a saplings, they are re-planted in mountain areas selected by the Kurdish agriculture ministry…

Baton Rouge, Louisiana, The Advocate, January 18, 2021: Lichens can be a sign a tree or shrub is stressed

Now that the majority of our deciduous plants have dropped their leaves, you may notice gray growths on the trunks of some trees and shrubs in your landscape. Most likely, these are lichens, which, while not harmful themselves, can be a sign a plant is being stressed. Lichens are rarely found on healthy, vigorous trees. But remember that lichens do not cause the problem; they just benefit from unfortunate situations. Because lichens photosynthesize, they prefer sunlight and moisture provided by trees that have suddenly lost leaves or branches. More light can reach the trunk surface where lichens have set up camp, encouraging them to grow. You can lightly prune damaged branches to stimulate new branch growth. This helps establish a fuller canopy. Try to identify and address stressors such as drought, poor drainage, plant competition, root stress, soil compaction, poor nutrition and improper soil pH. Insects and diseases as well as injury from trimmers, poor planting techniques and chemical injury from herbicides also can cause plants to decline…

Los Angeles, California, Times, January 17, 2021: Consortium wants to cut down L.A. County Arboretum trees to make room for storm water treatment

Officials at the Los Angeles County Arboretum and Botanic Garden are in an uproar over a plan to manage storm water and boost climate resiliency by cutting down “specimen trees” — some 70 years old and more than 100 feet tall — to make room for groundwater recharge ponds and a pump station. The strategy was crafted by a consortium of five foothill cities and Los Angeles County Public Works. They believe a portion of the 127-acre paradise of flowering trees and shrubs in Arcadia, which draws more than 500,000 visitors each year, is conveniently located to capture, clean and store storm water pumped out of the nearby Arcadia Wash. Construction of the facility that would consume up to 4 acres of the arboretum’s Australia section could begin within a year or two, according to the group, which comprises the cities of Arcadia, Bradbury, Duarte, Monrovia and Sierra Madre, plus the county. In the meantime, opponents led by executives of the Los Angeles Arboretum Foundation, a nonprofit founded in 1947 to raise financial support for the botanic garden, are sounding the alarm…

Springfield, Massachusetts, Masslive, January 19, 2021: Springfield police asked the city to cut back trees; lawyers claim it sabotaged a drug suspect’s defense

Terrence D. Gaskins and his lawyer Lisa J. Steele contend the police department’s request for the city forester to trim trees on Fort Pleasant Avenue — one day after the court ordered police to arrange a site visit for the defense team — amounted to the “destruction of exculpatory evidence” that could have been favorable to Gaskins’ defense at trial. Springfield police spokesman Ryan Walsh said the allegations are empty, and that the department’s request to trim the trees had nothing to do with Gaskins’ case. The tree work was done, he said, to improve visibility after a surveillance camera was installed in response to a string of shootings. Attorneys for Gaskins have made the argument twice before, and it has been rejected both times. Once was at Gaskins’ May 2019 jury trial, where he was found guilty and sentenced to two years in jail. The trial judge at the time expressed doubts about the timing of the police request and whether it was coincidental, but allowed the case to continue. The other time was last month, when the state Court of Appeals upheld the guilty verdict and rejected Gaskins’ bid to have it tossed out…

Chicago, Illinois, WBBM-TV, January 16, 2021: 311 Calls To Trim Dangerous Trees Are Being Marked ‘Completed,’ Sometimes With Claims There’s ‘No Tree’

We’ve reported on stories across the city of 311 requests being marked completed before the job was done – from trash cleanup to an abandoned car. Now, as CBS 2’s Tim McNicholas reported, a South Side alderman says the same thing has been happening in his ward with tree-trimming requests. “These are the ones that keep falling off,” said Selene Arroyo as she showed us branches on a tree. And Arroyo knows money doesn’t grow on trees. “I can’t spend my savings on unnecessary things,” she said. She said the tree at 56th Street and Hoyne Avenue in West Englewood is costing her money. “I have called several times because the branches keep falling,” Arroyo said. “They’ve actually broken two of my windshields already, and an antenna. Records from 311 show a June 10 tree-trimming request at Arroyo’s address. In November, the request was marked “completed” in 311, but she said no one ever trimmed the tree. In fact, a city worker even noted “no tree.” Arroyo wishes that were true…

Bangor, Maine, Daily News, January 15, 2021: Maine wants to pay landowners to fight climate change with their trees

Denis Gallaudet is a retired banker, so he knows the value of things. Take, for example, his trees. There is value in the carbon that his 25-acre woodlot in the town of Cumberland sucks out of the atmosphere and converts into lengthening branches and thickening trunks. That’s because large companies, including Amazon and Disney, are willing to pay landowners for tree growth in order to offset their own carbon emissions. But Gallaudet, a member of Sierra Club Maine, can’t sell his carbon because it’s not financially feasible. The markets where sequestered carbon are bought and sold, including California’s “cap and trade” market, are only available to forest landowners with tens of thousands of acres, due to the high costs of quantifying and verifying projected carbon sequestration in trees. That could soon change. A variety of groups are ramping up efforts to open up the multi-billion dollar carbon offset market to small forest landowners. They want their efforts to financially boost small landowners while also enlisting more corporate polluters to mitigate the harmful effects of climate change on the nation’s most forested state…

London, UK, The Guardian, January 15, 2021, One, two, tree: how AI helped find millions of trees in the Sahara

When a team of international scientists set out to count every tree in a large swathe of west Africa using AI, satellite images and one of the world’s most powerful supercomputers, their expectations were modest. Previously, the area had registered as having little or no tree cover. The biggest surprise, says Martin Brandt, assistant professor of geography at the University of Copenhagen, is that the part of the Sahara that the study covered, roughly 10%, “where no one would expect to find many trees”, actually had “quite a few hundred million”. Trees are crucial to our long-term survival, as they absorb and store the carbon dioxide emissions that cause global heating. But we still do not know how many there are. Much of the Earth is inaccessible either because of war, ownership or geography. Now scientists, researchers and campaigners have a raft of more sophisticated resources to monitor the number of trees on the planet. Satellite imagery has become the biggest tool for counting the world’s trees, but while forested areas are relatively easy to spot from space, the trees that aren’t neatly gathered in thick green clumps are overlooked. Which is why assessments so far have been, says Brandt, “extremely far away from the real numbers. They were based on interpolations, estimations and projections…”

Berkeley, California, Berkeleyside, January 14, 2021: UC Berkeley removes hundreds of trees in the Oakland hills to ensure fire evacuation route

John Radke is a UC Berkeley associate professor who specializes in fire modeling. As part of his coursework, he likes to lead students into the winding thickets of Claremont Canyon in the Oakland hills, where the underbrush can reach chest-high, to show them the likely site of one of the next major East Bay fires. “I was up there one day in the fall and you could hear the leaves cracking they were so dry,” Radke said. “Going in, my students said they were doing great – this is wonderful, we’re out in nature. Then after describing how the fire would burn, I asked them, ‘How do you guys feel?’ They said, ‘We can’t wait to get out of here. Because it’s a fire trap.’” The funneled geography of the canyon and the vegetation that grows in it – vegetation that’s becoming drier each year in our warming climate – creates a natural chimney that’d be devastating in a fire. Winds blowing from the west would drive heat and radiation upslope in a ferocious purge. In Diablo conditions, with gusts surging over the ridge from the east, flames would pour downslope wiping out vegetation and homes – similar to what happened with the destructive 2018 Woolsey Fire in the L.A. region…

Anaheim, California, Orange County Register, January 14, 2021, Diagnosing why some fruit trees produce inconsistently

Lately I have received quite a few inquiries about inconsistent fruit production in citrus and other fruit-bearing trees. Why does a fruit tree produce so much one year, then hardly anything the next year? This phenomenon is called “alternate-year bearing” and is common to almost all fruit and nut trees. Tree branches have spurs, little twig-like growths that can produce either flowers/fruit or leaves. Not surprisingly, it takes much less energy to produce leaves than fruit. If the tree has undergone some sort of stress, it will reduce its fruit production in favor of leaf production. This stress could be environmental (drought, extreme heat, frost), pest or disease, or improper pruning. When a tree is happy and healthy (not stressed), its leaves produce plenty of sugars that are stored in the branch wood near the spurs. These sugars are used to fuel blossom and fruit production the following spring. Improper pruning can remove these food stores and result in diminished fruit production…

Bangor, Maine, Daily News, January 12, 2021: Bangor neighborhood complaint against Versant Power dismissed after tree-trimming

Maine’s Public Utilities Commission has dismissed a complaint against Versant Power from 13 residents of Bangor’s Fairmount neighborhood, though the commission found the complaint about power reliability in the neighborhood had merit. The complaint, sent Oct. 31, 2020, alleged that Bangor’s Fairmount neighborhood had experienced an unreasonable number of long-lasting power outages, and that the outages had grown worse over the last five years. There were at least three multi-hour or multi-day outages in large swaths of Fairmount in 2020, with other, smaller outages occurring in smaller areas of the neighborhood. The Fairmount neighborhood is roughly the area between Third Street, Union Street and interstates 95 and 395. Versant in October 2020 blamed the neighborhood’s high prevalence of tall, old trees situated near power lines. When a branch from one of those trees falls, it can knock out power to multiple streets, or even the entire neighborhood. Though Versant had already done work to improve reliability in the neighborhood, including moving most of the neighborhood off an old substation on Webster Avenue and onto a more reliable one in Hampden, outcry from residents on social media appears to have prompted an extensive tree-trimming effort by Versant last year…

Houston, Texas, Chronicle, January 13, 2021: ‘For our environment’ Branford tree planting helps offset carbon emissions

The town Community Forest Commission and Department of Public Works planted 55 trees on town property in 2020, helping to offset carbon emissions and preserve the environment, said Patrick Sweeney of the Community Forest and Conservation and Environment Commissions. Over their predicted lifetime, this year’s planting will sequester 422 tons of carbon, Sweeney said — equivalent to the carbon produced by more than 80 typical passenger vehicles in a single year. The town sets a goal to plant about 50 trees on town property each year. In 2020, it exceeded that goal, Sweeney said. “Planting new native trees and ensuring the well-being of those we already have is one of the most important things that the town can do for our environment and the health of our residents,” Sweeney said in a release…

Dallas, Texas, KXAS-TV, January 11, 2021: McKinney Resident Tries to Dispose of Christmas Tree in Fireplace

The City of McKinney is reminding residents to properly dispose of their Christmas trees after a fire damaged a McKinney home on Saturday. According to the McKinney Fire Department, officials responded to a call about a structure fire in the 4400 block of Rancho Del Norte Trail. Officials said firefighters arrived to find that a Christmas tree had been placed into a home fireplace. Only the top of the tree was in the fire, so the flames traveled down the tree and out of the fireplace, officials said. According to the McKinney Fire Department, the fire was quickly extinguished after firefighters arrived. The damage was limited to the area right around the fireplace, and one person was treated for minor smoke inhalation at the scene, officials said…

Baton Rouge, Louisiana, The Advocate, January 11, 2021: Now is the time to plant a tree

Consider this Chinese proverb: “The best time to plant a tree was 20 years ago. The second-best time is now.” That is especially true in Louisiana. Planting during December, January and February provides plants with several months to develop a strong root system before they put out a new flush of leaves and flowers in spring. Nurseries are bringing in woody trees and shrubs to plant now. Tropical plants will be available later in the warmer season when they are less likely damage by colder temperatures. The National Arbor Day Foundation has started the “Time for Trees” initiative to highlight how “trees clean our air, protect our drinking water, create healthy communities and feed the human soul.” Founded by J. Sterling Morton in 1872 in Nebraska City, Nebraska, where an estimated 1 million trees were planted, Arbor Day is celebrated every year. While much of the country celebrates Arbor Day on April 30, the LSU AgCenter Botanic Gardens, 4560 Essen Lane, will hold its annual Arbor Day event from 9 a.m. to 1 p.m. Jan. 23. Free and open to the public, the event will feature educational talks on native trees given by experts from the LSU AgCenter. You can plant a tree while there and get GPS coordinates so you can come back and visit “your” tree and watch it grow for generations to come…

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Case of the Day – Thursday, January 21, 2021

THAT’S PERSONAL

Reader Paul D. sent a comment yesterday:

Figuring damages for tree loss… I don’t understand why you would use diminution of property value… Unless you were going to soon sell the property or you had a business on the property or your property generated some kind of income. But if the trees were for a personal reason, such as shade or privacy, wouldn’t the better way of proving damages be the current value of trees removed or at least restoration costs?

I think placing a diminution price on a residential property can often be very subjective and inaccurate, especially compared to having a qualified arborist make a value assessment .

Paul asks a good question. Why would anyone prefer diminution in property value over restoration costs or stumpage value?

Here’s a prime example of someone who might: A few years ago, a tree service company sent a crew to an address in Grove City, Ohio, to remove a maple on the front lawn. Instead of going to 1553 Main Street, the crew mistakenly went to 1533 Main Street. That house, coincidentally, also had a maple tree in its front lawn, a magnificent and healthy specimen that the homeowner loved very much.

You can guess what happened. While the homeowner was obliviously toiling in his office 10 miles away, the tree cutting crew made short work of the beautiful maple. When the owner arrived home that evening, his arboreal pride and joy was nothing but a stump and some sawdust.

There was no question about liability: the tree service company goofed. But how much to pay for the tree? Stumpage value makes no sense. The homeowner wasn’t raising the tree to sell the timber. Replacement cost for the tree might be a fairer measure. However, the largest tree that could be planted for the homeowner – with costs of a few thousand dollars – will not begin to replace the lost tree.

In our homeowner’s case, the measure of damages we finally settled on was a real estate appraisal that concluded that the value of the home had been lessened by about $17,000 by the removal of the mature tree.

Today’s case considers what might happen if the removal of the trees does not diminish the value of the property. A man named Chung bought a parcel of land for a home. When he had a tree cutting service clear the land for construction, the cutters crossed the line onto Rora Park’s land, and removed about 560 trees. The decision only implies this, but it appears that the “accident” might not have been accidental at all. Rather, Chung may have steered the cutters in the wrong direction in order to improve the view from his land.

Whatever the reason, the liability was certain. The problem arose because removing 560 trees didn’t really decrease the value of Rora Park’s land at all. Hard to believe, but then, Alaska is a pretty big place. So Ms. Park demanded restoration damages, payment of the cost of restor-ing the property by planting new trees. That would have been about $400,000. The trial court granted damages equal to the cost of replanting 50 trees, but the Alaskan Supreme Court reversed.

Chief Justice Oliver Wendell Holmes, Jr.

       Chief Justice Oliver Wendell Holmes, Jr.

It seems that if the wronged property owner doesn’t have a “reason personal to the land-owner for restoring the trees,” an Alaskan court won’t use that measure of damages. In this case, Ms. Park waxed eloquent about how that she had once had cancer, and “this natural beauty of my yard is [a] healing spot for me, and . . . after work I come by, see my property and see the natural beauty and the trees and all that[. W]hen I [saw] that all cut out it just [made] me very – [it] just [broke] my heart, and then very angry . . .” Unfortunately for her, she later tried to downplay how often she visited the property.

The trial court wouldn’t let her have it both ways, and found that she hadn’t justified restoration damages. But, apparently troubled by Ms. Parks’ neighbor getting away with a fast one, the trial court nevertheless awarded her restoration damages anyway. It may have seemed like justice, but it wasn’t the law.

The Alaskan Supreme Court said that restoration damages could be awarded only if Park had a “reason personal” for restoring her property. Because she failed to prove she had such a reason, she ended up being entitled to pretty much nothing.

There’s something not right about letting a slippery character like Chung pull a fast one, cut down 50 of the neighbor’s trees for a better view, and not have to pay damages for it. But that’s the system for you. It reminds one of a quotation attributed to Oliver Wendell Holmes, Jr: “This is a court of law, young man, not a court of justice.”

Chung v. Park, 339 P.3d (Sup.Ct. Alaska, 2014). Landowner Rora Park sued her neighbor Christopher Chung for trespass, alleging that he cleared about 50 trees from her property without permission. The trial court found that the tree cutting did not diminish the property value and that there was no reason personal to the landowner for restoring the trees. But the trial judge nevertheless awarded damages equal to the cost of restoring 50 trees on the property.

Ordinarily, a landowner damaged by a trespass may recover either the loss in property value or reasonable restoration costs. But restoration costs are inappropriate if they are disproportionate to the loss in property value, unless there is a reason personal to the landowner for restoring the land. We thus conclude that we must vacate this award.

Chung hired a company to build the foundation of his new house. As part of that project, the contractor agreed to clear trees and other vegetation from the lot. Aerial photographs indicate that some trees were removed from Park’s property near the border of Chung’s lot between August 2008 and the end of September 2008, and more trees were removed between 2008 and 2009. The trees appear to have been removed more or less directly behind the house built on Chung’s property. Timber debris, presumably from the cleared trees, was also discovered buried on Park’s property. An expert witness hired by Park estimated that 562 trees were cleared from about a third of an acre of Park’s property. He calculated that it would cost over $400,000 to restore the property to its former condition. But Chung’s expert witness testified that the market value of Park’s property was likely not affected by the removal of trees.

trespasstimber150126The trial court found Chung liable for the trees removed from Park’s property. Although the court acknowledged that Park had not proved that the tree cutting reduced the value of her property and found that Park had no reason personal for replacing the trees, it nevertheless concluded that “it would be reasonable both aesthetically and legally to award damages that would permit replacement of trees on that first portion of the lot that can be clearly shown to have been scraped clean as of September 27th, 2008.” The court therefore awarded Park the cost of replacing 50 trees, $23,500. Because the court found that Chung’s trespass was intentional, it awarded treble damages under AS 09.45.730.

Chung appealed.

Held: The Alaska Supreme Court vacated the damage award. It held that a party who is injured by an invasion of his property not totally destroying its value may choose as damages either the loss in value or reasonable restoration costs. But reasonable restoration costs are an inappropriate measure of damages when those costs are disproportionately larger than the diminution in the value of the land and there is no reason personal to the owner for restoring the land to its original condition. A reason personal is one that is “peculiar or special to the owner.” The Court said “We require the landowner to demonstrate a reason personal because we believe it indicates circumstances where the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.”

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     Ms. Park tried to sell the court that the trees were her “personal healing spot.” New wave … or just trying to pump up her damages?

During trial in this case, Park tried to establish a reason personal  for replacing the trees that Chung had allegedly removed. She talked about having had cancer, and relying on her property as a “healing spot for me.” But later in the trial, she downplayed her visits to the property. As a result, the court found that Park had not established a reason personal for restoring her property.

According to the unrebutted testimony of Chung’s expert witness, the removal of trees from Park’s property did not appreciably affect the value of her property. The trial court accepted that testimony in its findings of fact. Therefore, the Supreme Court concluded, the damages the trial court awarded – $23,500 before trebling – were disproportionate to the diminution of the property value. The Court said that the trial court could award restoration damages only if it found that Park had a reason personal for restoring her property. Because it did not, the trial court’s award of compensatory damages that exceeded the diminution in the market value of Park’s property was not appropriate.

– Tom Root

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Case of the Day – Wednesday, January 20, 2021

TOPPER

We have seen our share of “obstructed view” cases, in which landowners were not liable because their vegetation obscured traffic signs.

But what if the landowner does something to the tree or vegetation to exacerbate the situation? Is that even possible? More to the point for a negligence calculus, does a landowner owe a duty to motorists?

Today’s case asks just that question. A utility company that took the easy way out, and simply topped a pine tree standing under one of its lines. Topping is a lousy way to trim a tree. No self-respecting arborist would have anything to do with it. And, it turns out, that topping did not stop the tree from growing. It simply forced the tree to grow out instead of up.

Iglehart v. Bd. of County Comm’rs, 60 P.3d 497 (Supreme Ct. Okla. 2002). Brenda Iglehart failed to stop at a county road intersection where crossing traffic had the right-of-way. She was broadsided. She sued everyone she could think of, including the Board of County Commissioners for maintenance of the road, and – relevant to this appeal – Verdigris Valley Electric Cooperative. She alleged Verdigris, which owned an easement alongside the road, contending it negligently maintained a white pine tree by “topping” it in order to keep the tree limbs from interfering with electric lines. By so doing, Brenda said, Verdigras caused the tree to grow laterally and more densely, obscuring the stop sign. According to plaintiffs, Verdigras owes a duty of care to motorists traveling on the adjoining roadway, or at least a duty to warn of a hazardous condition within its control, and that its breach of this duty directly caused Brenda’s injuries.

The trial court granted summary judgment to Verdigras and the Commissioners). The Court of Civil Appeals reversed the summary judgment for Board, but upheld summary judgment in favor of Verdigras. The appellate court held that a utility company does not owe a duty of care to travelers on roads adjacent to its power lines which are under its maintenance.

Brenda appealed to the Oklahoma Supreme Court.

Held: A utility company owes a duty of care to traveling motorists on adjoining roads when its substandard maintenance of trees could foreseeably cause danger to the public.

The Court observed that to establish negligence liability for an injury, Brenda must prove that (1) Verdigras owed her a duty to protect her from injury, (2) Verdigras breached that duty, and (3) its breach was a proximate cause of Brenda’s injuries. The burden is not cast upon Brenda to establish that Verdigras was negligent in order to escape its motion for summary judgment. Rather, to avoid trial for negligence, Verdigras must establish through unchallenged evidentiary materials that, even when viewed in a light most favorable to Brenda, no disputed material facts exist as to any material issues and that the law favors Verdigras.

Verdigras contends that (1) no duty existed and that (2) if a duty existed, the company did not breach it, and that (3) its actions were not a proximate cause of plaintiffs’ injuries.

The threshold question for negligence suits is whether a defendant owes a plaintiff a duty of care. “We recognize,” the Court said, “the traditional common-law rule that whenever one person is by circumstances placed in such a position with regard to another, that, if he (she) did not use ordinary care and skill in his (her) own conduct, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” Among a number of factors used to determine the existence of a duty of care, the most important consideration is foreseeability. Generally a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous. Foreseeability establishes a “zone of risk,” which is to say that it forms a basis for assessing whether the conduct creates a generalized and foreseeable risk of harming others.

The question of whether a duty is owed by a defendant is one of law; a breach of that duty is a question of fact for the trier. Here, the Court held that a utility company indeed owes a duty of care to traveling motorists on adjoining roads when its substandard maintenance of trees could foreseeably cause danger to the public. Citing the Oregon Supreme Court’s decision in Slogowski v. Lyness, the Court ruled it was potentially foreseeable to a utility company that a tree it maintained could cause a hazardous condition to motorists on an adjacent roadway. Once having undertaken the task of trimming and inspecting trees within its easement, a party must act reasonably in the exercise of that task.

In this case, the Court said, Brenda has raised a disputed issue of fact as to the foreseeability of the injuries she suffered, sufficient to avoid summary process. According to the affidavit of her expert witness, James R. Morgan, the white pine tree in question had been “topped.” The main tree trunk has been cut off in the upper quadrant of the tree. Once this occurs, the upward growth is halted, and the tree instead increases density and limb growth. These results, the affidavit stated, are particularly true for the type of pine tree on question, and is common knowledge among those who cut trees.

Verdigras challenged the certainty with which the expert made his determination, but at this stage of summary process review, the Court said, “we must view facts in the light most favorable to plaintiff. Mindful of this rule, we hold that – given the proximity of the tree to the stop sign and the common-sense notion that without a visible stop sign, an intersection, such as that here in question, poses an obvious hazard” Brenda had raised a disputed issue of material fact as to the foreseeability of the accident arising from the action of Verdigras. “Foreseeability must hence be left for a jury evaluation.”

– Tom Root

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Case of the Day – Tuesday, January 19, 2021

THE CONTRACT SAYS WHAT?

springsnow160321Somewhat to my surprise, my snowdrops poked their little green shoots through the cold soil two weeks ago. But with the arrival of snow this past weekend, they are buried under several inches of white stuff. Which is good, because they are not usually seen until the second week of February, here in the Great Lakes Basin just 30 miles south of the Canadian border.

My wonder dog Winnie found this morning’s walk a little nippy, but tomorrow will be in the 40s. She’ll find it more to her liking, just fine for chasing deer (she flushed nine of them today, pursuing them like the 40 lbs. of bad news she can be when chasing game, small and large).

So I walk my dog on a cold day. Who cares? Landscaper Superior Property Management Services, Inc., sure did when Colleen Hill decided to do that. Utah-based Superior had been hired by the Waterbury Homeowners Association to landscape and maintain the grounds at beautiful Shanty Acres. The parties had a standard contract, one that – among other things – called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season.” Elsewhere, the contract directs the landscapers to “trim . . . small and lower branches” on trees.

The contract was just a formality. Superior has been in business since the bristlecones were seedlings, and its crews thus knew exactly what needed to be done. They often went beyond the literal terms of the contract, which – as was typical for landscaping contracts – were not especially detailed. Over the seasons, Superior maintained Shanty Acres very well, and the contract was repeatedly renewed. The Happy Homeowners Association was indeed happy.

Then condominium resident Colleen Hill ventured outside to walk her dog one cold day. When she followed the cavorting canine onto the lawn, she tripped over a basal shoot growing from a tree root, fell, and hurt herself. She sued both Superior and the Association, claiming that Superior owed her a duty of care because of what it agreed to do in the contract. Superior, she alleged, was negligent in not trimming the basal shoots.

But how could Superior owe Colleen Hill a duty? Its contract was with the Association, and the Association thought Superior had done a fine job. True, Superior prided itself on doing more than the contract called for, but that was what a good landscaper did. Thus, Superior’s crews normally trimmed basal roots … but if Colleen’s complaint was to be believed, it appears Superior’s workers may have overlooked the shoots that proved a snare to her feet.

Superior should have trimmed the exposed roots, Colleen said, whether the contract said it should or not ...

Superior should have trimmed the exposed roots, Colleen said, whether the contract said it should or not …

The courts finally concluded that Superior owed Colleen no duty. Its obligations were to the Association, and those obligations were those spelled out in the contract, not what additional services Superior might gratuitously provide. The landscaper won in the end, but only after four years of expensive litigation.

So what does the professional arborist or landscaper learn from Superior’s legal travails? The first lesson is to read the contract form he or she is using. Does it adequately define the services being provided? If the arborist will be performing more services than those described in the contract, those probably should be described in the contract.

At minimum, the contract should clearly provide that any services provided beyond those required by the contract are being provided as a courtesy only, and that the contract does not establish a duty between the arborist and anyone other than the client.

Will this be enough to save the arborist from frivolous lawsuits? Probably not in this society. But an ounce of careful contract drafting now may be worth a pound of lawyers later.

Hill v. Superior Property Management, Inc., 2013 UT 60 (Utah Supreme Ct., 2013). Superior Property Management had held the contract to maintain premises for the Waterbury Homeowners Association for years. The form contract called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season” and to “trim . . . small and lower branches” on trees. After resident Colleen Hill, while walking her dog one early spring day, tripped on a growth from a tree root, she sued Superior for negligence because it had not trimmed the root.

Held: The landscaper didn’t owe Colleen a duty of care. As the Supreme Court of Utah observed, the “law draws a critical distinction between affirmative acts and omissions. As a general rule, we all have a duty to act reasonably in our affirmative acts; but no such duty attaches with regard to omissions except in cases of a special relationship.”

The Court agreed that sometimes, such a special relationship might be rooted in a contract. But it held that neither specific obligation in the contract – the obligation to mow the grass weekly and edge bi-weekly “throughout the normal growing season,” or the obligation to “trim . . . small and lower branches” on trees – created a duty flowing from the landscaping company and the injured property owner.

Lesson: No contract is the ultimate contract, but that doesn't mean you shouldn't try for comprehensiveness in drafting ...

Lesson: No contract can plan for every contingency, but that doesn’t mean you shouldn’t try for comprehensiveness in drafting whenever possible …

The Court noted that “in the first place, it is not at all clear that mere failure to perform would sustain liability in tort. A breach of contract, after all, typically gives rise to liability in contract … Even assuming that Superior’s maintenance contract could sustain a tort duty, moreover, there is still no basis for liability here, as neither of the provisions required Superior to perform the acts it is now charged with omitting.” The Justices analyzed the contract provisions, pointing out that the accident happened in early spring, outside of the “normal growing season.” What’s more, the dictionary definition of “branch” is “a stem growing from the trunk or from a limb of a tree” or a “shoot or secondary stem growing from the main stem.” Therefore, the Court reasoned, “the ‘branches’ to be trimmed under Superior’s maintenance contract are protrusions from the main trunk only, not separate shoots stemming from the tree’s roots. Superior could not be in breach for failing to trim back those shoots.”

Maybe so, argued the homeowner, but regardless of what the contract may have said, the landscaper’s obligations “were not comprehensively detailed in its maintenance contract, but encompassed acts that it habitually engaged in over time.” The Court rejected this dangerous notion, declaring that there “is no room in our law for a tort duty arising from course-of-performance acts that are nowhere provided by contract.” The Justices reasoned that “where a duty is rooted in the express language of a written contract, the parties are on notice of their obligations, and are in a good position to plan their activities around them. That is not at all true for … extracontractual, course-of-performance acts relied on” by Ms. Hill. “If we were to impose a duty in connection with those acts,” the Court said, “we would establish a troubling perverse incentive. A party facing a tort duty in connection with any undertaking not required by contract would be discouraged from such undertaking. And a disincentive for gratuitous service benefiting another is not the sort of conduct that our tort law ought to countenance. In any event, to the extent injuries ensue from negligence in the performance of such activities, liability would properly be governed by a different branch of our tort law – by the standards governing liability for a voluntary undertaking, a theory we … find unavailing.”

– Tom Root

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Case of the Day – Martin Luther King, Jr., Day 2021

SOME THINGS EVEN A COURT CAN’T DO

The majestic courage shown by the Selma marchers 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today's plaintiff.

The courage shown by the Selma marchers over 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today’s plaintiff.

For a country that was supposed to be sailing into a post-racial world after the election of President Obama in 2008, we’ve had a rough time of it in the last 13 years.  In race relations, 21st century-style, there is the deadly serious (such as Ferguson, Chicago, ClevelandCharleston and Minneapolis) – the merely reprehensible (a busload of drunk, rich white kids being stupid, callow and mean, all at the same time) – the head-scratching (trees can be racist?), and a very soon to be ex-President who is or is not racist, depending on your political viewpoint. That last issue, and exactly how he may have referred to the governance and economics of Haiti, El Salvador and some countries in Africa, are a suitable launching point for a trip into the absurd. The absurd is something we’ll look at today, on Dr. Martin Luther King’s birthday commemoration.

Sigmund Freud was famously but questionably credited with having said “sometimes a cigar is just a cigar.” In today’s case, a matter of trespass to trees was somehow recast into a federal civil rights action by the plaintiff, who was a man with a litany of offenses committed against his ancestors which he wanted to redress.

Mr. Brewer apparently trespassed on Mr. Lance’s property and removed three trees. Rather than an appropriate trespass to trees action (with a request for treble damages) in South Carolina courts, Mr. Lance went for broke, suing Mr. Brewer for violation of his civil rights under 42 U.S.C. § 1983.

A § 1983 action is a powerful one, authorizing a federal court action to be brought against persons who, under color of state law, deprive another of his civil rights. It has been used against those who discriminate in housing, police officers who wrongly beat suspects, employment discrimination, and even in zoning decisions.

But § 1983 doesn’t do everything. Here, Mr. Lance argued that not only had Mr. Brewer falsely claimed to have the County’s permission to cut down the trees, but Mr. Brewer’s grandfather had defrauded Mr. Lance’s cousin in a land deal about 40 years before. When the Federal magistrate judge recommended dismissal of the § 1983 action, Mr. Lance objected, arguing rather ineloquently that ““GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction.”

cartoon150313Destruction was something the federal court was willing to risk, holding that no matter how it tried to construe Mr. Lance’s complaint, there just wasn’t a civil rights violation alleged. Of course, he was free to pursue his complaint in state court, and we assume he did so.

Lance v. Brewer, Slip Copy, 2007 U.S. Dist. LEXIS 30247, 2007 WL 1219636 (D.S.C., Apr. 24, 2007). In late 2005 Defendant Brewer cut down three large trees and other tree limbs on Plaintiff Lance’s property without permission. Lance asserted that Brewer, who ran a business named Don’s Scrap Metal and Iron, sold these trees for profit but that he and his relatives did not receive any profit. Lance alleged that Brewer told him the county gave him permission to cut down the trees, but according to Lance, a county employee told him that the Brewer did not have permission to cut down the trees. In addition to these claims, Lance argued that Brewer’s grandfather purchased the property adjoining his property forty to fifty years ago by “fooling” Lance’s cousin into selling 20 acres of river-front property for $200.00.

Lance alleges Brewer’s actions constitute racism and discrimination under 42 U.S.C § 1983, and he seeks $85,000.00 on behalf of the heirs of his cousin, Willie Lance. A U.S. Magistrate Judge recommended that Lance’s claim be dismissed. Lance disagreed, and sought rejection of the Report & Recommendation.

Dr. King stood for equality and justice… not nonsense.

Held: Lance’s tree-cutting-as-civil-rights case was dismissed. The Court observed that the Plaintiff had objected to Report and Recommendation, because “GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction. The United States Court has Federal Jurisdiction, because this is a Civil Rights Violation.” The Court said, “[t]he Plaintiff’s unsubstantiated statement that the Court has federal jurisdiction because this is a civil rights violation does not change the fact that even liberally construing the Plaintiff’s complaint, it fails to state a claim for a federal civil rights violation.” Here, Brewer is a private individual.

What’s more, Lance tried to state a claim pursuant to § 1981. The Court held that Lance has failed to allege an essential element of a § 1981 claim, that there is a contract or property law right enjoyed by white citizens but not by the Plaintiff, who is black. The Court concluded that, tree or no tree, no federal question was raised by Lance’s claim, and thus jurisdiction did not exist.

– Tom Root

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Case of the Day – Friday, January 15, 2021

SO WHAT IF YOUR NEIGHBOR BUGS YOU?

You remember that neighbor kid when you were young, the one who was always threatening to tattle to his mother or father about your alleged misdeeds?

All right, you never committed misdeeds. I did, however, and I remember my neighbor Rick, who would run to his parents at the drop of a hat. One July 4th, he told them I was responsible for some shenanigans that resulted in his burning his eyebrows off – I won’t go into details (but it involved gunpowder Rick had obtained by cutting open 12-gauge shotgun shells). I escaped liability only because I happened to be 500 miles away at summer camp at the time.

Even then, his parents blamed me.

Some people never grow out of that urge to tattle and whine. When they become adults, they like to call the police, complain to the zoning people, and even sue. Many times, they complain about conduct that is legal (or nearly so), but merely bothersome: the neighbor puts her garbage out early, or shovels his walks late or not at all, or never weeds the garden, or parks his truck on the street, or his boat in the yard…

Nuisance is the legal doctrine that lets you bend your neighbor’s conduct to your whims. It is not easy to prove a nuisance, nor should it be. It must be an unreasonable, unwarranted or unlawful use of one’s property, and even then, the use has to annoy, inconvenience or disturb you enough that the law will presume damage.

In today’s case, the neighbor’s stand of trees bugged Chuck Merriam – literally. But swarms of disgusting insects was not enough to convince the court to boss around Chuck’s neighbor for his benefit.

Merriam v. McConnell, 31 Ill.App.2d 241 (Ct.App. Illinois 1961). Charles Merriam and next-door neighbor Jean McConnell lived in a well-populated residential area of Northfield. Jean was growing a large number of box elder trees on her property. As part of the box elder ecosystem, Jean played host to box elder bugs – ugly, black and red, three-quarter inch long insects – that infest the box elders every summer. Swarms of the bugs migrated from the trees to Chuck’s house and yard, endangering his “comfortable and peaceable use and enjoyment” of his residence, impairing the value of his property, and “embarrassing and distressing” his guests. The bugs invade Chuck’s residence and mess the furniture and draperies, which are expensive and time consuming to clean.

Chuck complained to Jean repeatedly, but she was powerless to keep the bugs out unless she cut down the trees, which she was not about to do. Chuck asked for $150.00 in damage (this being 1961) and for an injunction to get rid of the trees.

The trial court dismissed Chuck’s complaint, and he appealed.

Held: Jean’s box elders were not a nuisance, and Chuck had no basis for an injunction against her maintenance and growing of box elder trees or, alternatively, the control of the box elder bugs.

Chuck’s complaint was based on the theory of private nuisance. In general, a private nuisance is an individual wrong arising from an unreasonable, unwarrantable or unlawful use of one’s property producing so much annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage.

This means that the complaint, in order to be successful, ought to allege facts that justify the inference that the defendants are using their property in an unreasonable, unwarrantable or unlawful way.

The Court cited Michalson v. Nutting for the notion that “an owner of land is at liberty to use his land, and all of it, to grow trees. Their growth naturally and reasonably will be accompanied by the extension of boughs and penetration of roots overhead and into adjoining property of others.” The Michalson court thought it “wiser” to adopt the common law practice of leaving the neighbor to his own protection “if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

The Court noted that no Illinois precedent enjoined the operation of natural forces. Instead, only where “a human agency has intervened in a negligent, careless or willful way to turn the natural creation into a nuisance, as for instance, where cities have polluted natural water courses, or an individual has done so.” The court said

a nuisance cannot arise from the neglect of one to remove that which exists or arises from purely natural causes. But, when the result is traceable to artificial causes, or where the hand of man has, in any essential measure, contributed thereto, the person committing the wrongful act cannot excuse himself from liability upon the ground that natural causes conspired with his act to produce the ill results.

The Court observed that Chuck asked that Jean be forced to take “necessary steps” to limit the bugs to her property. “On its face,” the Court said, “this prayer is obviously impossible. Plaintiff does not suggest how the defendant could limit the bugs to her property. He asks that defendant be restrained from growing box elder trees upon her property. There is nothing unlawful about growing of box elder trees: Jean may grow trees to whatever extent she wishes on her own property. “The fact that box elder bugs may annually infest the trees, in our opinion, does not make the trees a private nuisance nor does the conjunction of the bugs and the trees constitute a private nuisance.”

The law requires that Jean would have to be guilty of some carelessness, negligence or willfulness in bringing, or helping to bring, about a harmful condition in order to entitle Chuck to the relief he sought in his complaint.

The Court concluded:

When a person moves to a wooded suburban area he should know that he is going to a place where nature abounds; where trees add to the pleasure of suburban life; and where the shade of trees, leaves, overreaching branches, roots, squirrels, birds, insects and the countless species of nature tend to disregard property lines. The effects of nature are incidents of suburban living…

We think that reversing the decree before us would probably expose property owners, especially in wooded suburban areas, to much vexation. And, it might result in adding the weight of “clothes-line” disputes, which ought to be settled amicably by neighbors, to the mounting burden of law suits now impeding the administration of justice… Equity should not lend its jurisdiction to the control or abatement of natural forces as though they were nuisances.

– Tom Root

TNLBGray