Case of the Day – Thursday, March 21, 2019

SOMEBODY OWES ME MONEY

Donald Westlake could have used Lisa Huff for the dust cover model...

Donald Westlake could have used Lisa Huff for the dust cover model…

Recall the recent creative lawsuit we covered, in which Corrections Officer Johnson going after area cellphone carriers for having recklessly built towers close to a prison. Some of the inmates obtained contraband cellphones. The towers ensured they had excellent 4G service. Of course, the towers also ensured excellent coverage to the motorists on I-20, only a half mile from the prison. The Court’s tallest order was addressing all the ways that Mr. Johnson’s lame attempt to find someone with a deep pocket was simply vibrating nonsense.

“OK,” you say, “but that was just some ambulance chaser’s attempt to shake down a phone company (an attempt most of us applaud once a month when the cell bill arrives). “But that cannot happen in the staid world of arboriculture law.”

In response to that sentiment, we give you the Huffs. After a tree broke off in a storm and hit Lisa Huff on the noggin, she had little to go on other than the abiding sense that someone owned her money. But who? Sure she could sue the property owner. Any regular reader of this blog knows that. But the Huffs needed a deep pocket. After all, Lisa had been injured. Someone had to pay.

That was when some canny lawyer noticed that the tree was located near power lines. Sweet! Power lines suggested the electric company, and everyone knows that the electric company has lots of money. Just look at how much we send them every month.

Problem: the tree wasn’t exactly inside the Ohio Edison easement. But that was a mere technicality to the Huffs, who argued that Ohio Edison hired Asplundh Tree Service to keep the trees trimmed away from the power lines, and that both the power company and the tree service must have known the tree that fell on Lisa was dangerous. This was the tort claim, and it might have merit if Lisa could prove they had actual or constructive notice of the tree.

But never stop with just alleging a tort, where you can pile on other legal theories as well. The Huffs’ attorney suggested a contract count, too. The Huffs, so the legal theory went, were the intended third-party beneficiaries of the contract between Ohio Ed and Asplundh. A third-party beneficiary can sue for a contract breach just as if she had signed the document herself. Asplundh had a contractual obligation to inspect and trim the trees to as to keep the public safe, the Huffs argued, and that included the passing public, which included the walking public, which included Lisa. Anything to get Ohio Edison and Asplundh to open their checkbooks!

deeppocket140507It was a novel theory, but the Ohio Supreme Court shot it down. The Ohio Edison – Asplundh agreement was intended to secure services that would keep the power lines clear. While the agreement did require that Asplundh perform the trimming in a safe manner so as not to hurt anyone while it was doing it, that requirement only lasted as long as Asplundh was trimming. The Court wasn’t about to interpret the contract so broadly as to grant contract causes of action to millions of people who were never intended by the signatories to gain party status to a contract. You think the courts are busy now (and insurance premiums are high)? Just wait …

The takeaway here is a passing observation by the Court that parties to a contract can avoid the litigation spawned here by the Huffs simply by stating clearly that their contract is intended to benefit no one but each other. Including such a provision is a cheap preventative to the kind of nonsense lawsuit decided here.

If you think this case is on the outer fringes of causation – like the suit against the cellphone towers – just wait…

Huff v. FirstEnergy Corp., (2011), 130 Ohio St.3d 196 (Supreme Court of Ohio). During a heavy thunderstorm, a large sugar maple tree split about 25 feet above the ground. A large limb from the tree hit Lisa Huff, who was walking along a country road, causing serious and permanent injuries. Lisa G. Huff was injured during a walk along a country road.

Ohio Edison maintained an easement near the tree, but the tree was outside the easement. The tree did not present a hazard or threat to the power lines owned by the utility. Ohio Edison had hired Asplundh Tree Expert Company to inspect trees and vegetation along its power lines in this area and to remedy any situation in which trees or vegetation might affect the lines. Ohio Edison and its contractors carry out this work to ensure that adequate clearance is maintained around electric lines. Generally, Ohio Edison deferred to Asplundh’s decisions regarding tree and vegetation maintenance and would perform an overview inspection only to determine whether any vegetation was growing into the electrical wires or equipment. Asplundh had last been in the area where Huff’s injury occurred three years before.

Huff sued Ohio Edison and Asplundh, as well as Ohio Edison’s parent company, FirstEnergy, and the people who owned the land on which the tree was located. She alleged that Ohio Edison and Asplundh were liable for her injuries based upon their failure to inspect, maintain, and remove the tree or to warn the landowner and the public of the danger raised by the tree.

Ohio Edison and Asplundh filed motions for summary judgment. Ohio Edison argued that it didn’t know that the tree was dangerous, that it owed and assumed no duty to Huff regarding the tree, and that it was not negligent and did not proximately cause or contribute to Huff’s injuries. Asplundh argued that it owed no duty to Huff and that its activities did not proximately cause the injury to Huff.

The Huffs argued that Ohio Edison had contracted with Asplundh to inspect and maintain trees within the easement and that Asplundh failed to recognize that the tree in question was diseased and a hazard, and failed to remove the tree when it was on site in May 2001. The Huffs also argued that Ohio Edison was responsible for maintaining trees within and around its easement, that Ohio Edison was aware of the tree based upon its location within an inspection zone, and that Ohio Edison had a duty to remove the diseased tree.

The trial court found that while the tree leaned about ten degrees away from the power lines, “there is absolutely no credible evidence about when the tree began to lean or if it was leaning because of the way it grew.” It also noted that the Huffs admitted that no one knew when the tree became a hazard. With no proof that Ohio Edison or Asplundh actually inspected the tree or removed any branches, the court held that the Huffs failed to show that either company ever had actual or constructive notice of any decay of the tree. Due to the tree’s location – leaning away from the power lines with no limbs near the power lines – Ohio Edison and Asplundh owed no duty to the Huffs.

After examining the contract between Ohio Edison and Asplundh, it concluded that the Huffs were not third-party beneficiaries under the contract. It accordingly granted summary judgment to Ohio Edison and Asplundh.

The Court of Appeals cited the portion of the contract providing that “[Asplundh] shall plan and conduct the work to adequately safeguard all persons and property from injury” could be read in two ways: (1) a narrow reading that provides Asplundh must protect all persons from injury while Asplundh works on the site or (2) a broad reading that requires Asplundh to protect all persons from injury at all times, regardless of when the work is done. The court found the contract to be ambiguous, and reversed the trial grant of summary judgment to Ohio Edison and Asplundh.

The companies appealed to the Ohio Supreme Court.

Held: Summary judgment was granted.

The Court found that the contract between Ohio Edison and Asplundh did not create any duty to the Huffs as third-party beneficiaries. The Court employed an “intent to benefit” test. Under this analysis, if the promisee intends that a third party should benefit from the contract, then that third party is an “intended beneficiary” who has enforceable rights under the contract. If the promisee has no intent to benefit a third party, then any third-party beneficiary to the contract is merely an “incidental beneficiary,” who has no enforceable rights under the contract.

The law generally presumes that a contract’s intent resides in the language the parties chose to use in the agreement. Only when the language of a contract is unclear or ambiguous, or when the circumstances surrounding the agreement invest the language of the contract with a special meaning will extrinsic evidence be considered in an effort to give effect to the parties’ intentions. For a third party to be an intended beneficiary under a contract, there must be evidence that the contract was intended to directly benefit that third party. Generally, the parties’ intention to benefit a third party will be found in the language of the agreement.

dwntree140507In this case, the Court ruled, nothing in the agreement between Ohio Edison and Asplundh showed any intent to benefit the Huffs. The Huffs pointed to a part of the contract that they argue shows such an intent: an attachment to the agreement entitled “FirstEnergy Vegetation Management Specifications” that provided  the “Contractor shall plan and conduct the work to adequately safeguard all persons and property from injury.” The Huffs contended that this statement assigns to both Ohio Edison and Asplundh clearly defined duties – to safeguard the public – for the Huffs’ benefit.

The Court held however, that the contract wasn’t entered into for the general benefit of the public walking on public roads, but instead was designed to support Ohio Edison’s electrical service. The purpose of the contract is to ensure that Ohio Edison’s equipment and lines are kept free of interference from trees and vegetation. The remainder of the contract sets forth how this work is to be carried out, including the standards by which Asplundh is to perform its work, the limits on liability for the performance of the work, and the necessary qualifications for the Asplundh employees who were to perform the work. The contract contains no language establishing an ongoing duty to the general public on behalf of either Ohio Edison or Asplundh.

The vegetation management provision incorporated into the contract provides that “[t]he objective of all work covered by these documents is to maintain reliable and economical electric service, through effective line clearance and satisfactory public relations.” The Court observed that working near electrical lines has its inherent hazards, and it was thus “clear that this portion of the agreement establishes safety guidelines designed to protect persons and property from injury while the contractor performs its work. This period is finite: until the work has been completed … [T]he agreement cannot be plausibly read to require Ohio Edison or Asplundh to safeguard all persons from injury at all times, regardless of when the work is completed.”

The Supreme Court concluded that the Huffs thus failed to qualify as intended third-party beneficiaries of the Ohio Edison ­– Asplundh agreement.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, March 20, 2019

WHO GIVES A HOOT?

mexowl160422

The Mexican Spotted Owl is easily identified by its distinctive headgear.

Now a paean to the Mexican Spotted Owl, that cute, furry little critter. Well, maybe it’s not furry – more like feathery – but the bird is an endangered species just the same.

When Precision Pine & Timber landed 14 contracts to destroy wildlife habitats — uh, make that harvest timber — its performance of the agreements got derailed by a U.S. District Court, which stopped the Forest Service because it had been sloppy in figuring out how save the owls. The contracts covered the eventuality, but Precision Pines was entitled to ask for its “out of pocket” expenses incurred if the performance of the contracts was delayed. And performance was indeed delayed for up to 15 months as the Forest Service was sent back to school by the district court until it got its analysis of the spotted owl problem done to the court’s satisfaction.

The Forest Service extended the termination date of the contracts, but Precision Pines nevertheless counted up its expenses, and turned in a bill for a breath-taking $13 million. The Forest Service took a sharp pencil to the invoice, and offered about $18 grand. So Precision Pines sued, arguing it was entitled to a “lost volume” theory. Follow this: if Precision Pines hadn’t been delayed, it would have made a ton of money during that 15 months that, because of the interruption, it didn’t make until much later. If it had made the money when it originally contracted to make it, it would have used the profits to invest in other contracts, where it would have made profits to invest in other contracts, and so on.

Like a snowball rolling down a slope, the few bucks from the interrupted contract would have yielded an avalanche of green someday. But the Court said while that might be so, it didn’t make the deals that never were legitimate damages from the interrupted timber deals. The damages were simple: the profits that weren’t made during the period of delay, minus the profits made after the contracts resumed.

The wise old Mexican Spotted Owls couldn’t have reached a better decision.

Precision Pine & Timber, Inc. v. United States, Case No. 98-720 C, 2007 WL 2753329 (Fed.Cl., Sept. 14, 2007). Precision Pine & Timber held 14 timber contracts with the U.S. Forest Service. In August 1995, the Forest Service suspended the contracts after a U.S. District Court required the Forest Service to submit its Land and Resource Management Plans for consultation with the Fish and Wildlife Service in light of the listing of the Mexican Spotted Owl as a threatened species.

About eight weeks after the Mexican Spotted Owl suspensions were imposed, the Forest Service released three of the 14 timber sale contracts from the suspension. The balance did not get released for more than year afterward. Each of the suspended contracts contained a provision on interruption or delay that provided in the event of interruption or delay of operations, Precision Pine’s exclusive remedy was adjustment of the contract term and out-of-pocket expenses incurred as a direct result of the interruption or delay. Out-of-pocket expenses did not include lost profits, replacement cost of timber, or any anticipatory losses.

Profits begat profits, Precision Pine argued ... and the pile grows ever larger.

Profits begat profits, Precision Pine argued … and the pile grows ever larger.

Throughout the suspensions, Precision Pine considered the Forest Service to have breached the timber sale contracts, but Precision Pines treated the breaches as partial and resumed harvesting timber after the suspensions were lifted. Precision Pines requested contract term adjustments for each contract affected by the suspensions, which were granted, and it submitted claims for $13,097,209.62 in damages resulting from the suspension of the 14 contracts under the “lost-volume” seller theory. The Forest Service decided Precision Pines was entitled to only $18,242.78 in damages. Precision Pines sued.

Held: The Forest Service breached the contracts, but the damages were severely curtailed.

The Court held that the lost volume seller theory, as formulated by Precision Pines, depended on showing that its failure to make profits on the 14 timber contracts in a timely manner rendered it unable to participate in other future contracts, thus missing out on profits from those deals. The Court held that such future damages for independent and collateral timber contracts not related to the subject matter of the breached contracts were unrecoverable.

youlose160422

A wise owl, indeed …

The Court further held that permitting Precision Pines to use these unrecoverable damages to reduce the amount of the deduction required to be made in the lost profits calculus — to account for the profits earned on the breached contracts — would be the functional equivalent of actually awarding damages for the lost profits on the future additional contracts. What’s more, the Court said, that even if Precision Pine’s theory of recovery did not require it to show unrecoverable damages, Precision Pines had failed to that it met the criteria for application of a modified lost volume theory.

The Court found that the plaintiff was entitled to recover lost profits on the breached contracts as measured by the expected profits it would have earned on the breached contracts during the suspension period, minus profits it actually earned on the breached contracts in the post-suspension period. And that was it.

– Tom RootTNLBGray

And Now The News …

Asheville, North Carolina, Citizen-Times, March 19, 2019: Patton Avenue business owner levied $19K fine for illegal tree topping, won’t have to pay

The owners of a West Asheville strip mall who illegally pruned a dozen cherry trees last fall will get a reprieve from a $19,000 city fine. The trees along the 800 block of Patton Avenue, in front of the Sav-Mor and Harry’s on the Hill, owned by Town and Country Shopping Centers, were “topped,” or had their crowns, upper limbs and parts of their trunks cut down. The fine was for improper and noncompliant tree pruning, in violation of the city’s tree care regulations, section 7-11-3(f)(6) of the Unified Development Ordinance, according to a notice of violation issued to the owners on Dec. 7, 2018. The notice of violation gave Town and Country 30 days to correct the violation or pay the $19,000 fine Stephen Hendricks, chair of the Asheville Tree Commission, which advises City Council on tree protection and tree ordinance violations, said that while private homeowners are free to prune trees as they wish, commercial properties, those in the city’s right of way and residential complexes of a certain size, must comply with certain tree pruning and removal rules…

New York City, Patch, March 19, 2019: Court Hearing Scheduled For Fort Greene Park Fight To Keep Trees

The city’s attempt to appeal a ruling that it must had over unreacted documents about Fort Greene Park to a group trying to stop a controversial revamp of the grounds will get its day in court in the next few weeks. The city has said it believes a court decision in October that it must had over a full 2015 report on the park is incorrect and will make its appeal in front of The New York State Appellate Division of the Supreme Court at a 2 p.m. hearing on April 4. The report, which the city originally released with entire pages redacted, is one of several documents a local group requested under the Freedom of Information Law as part of their effort to stop a $10.5 million reconstruction of the park’s northwest corner, mostly due to the fact that it would mean cutting down at least 58 trees…

Chicago, Illinois, Tribune, March 19, 2019: Spring is the time to target scale insects on magnolia trees

It’s time for a sneak attack. Now, while magnolia trees are still dormant, you can take action against scale insects by smothering the juveniles with an oil made for the purpose. Scale insects spend most of their lives flattened against the bark of trees and shrubs, sucking their sap. In late March, the insects are still so small they are barely visible, according to Sharon Yiesla, plant knowledge specialist at the Morton Arboretum in Lisle. “If you spray the tree with dormant oil while the insects are still tiny, you can suffocate them,” she said. It’s important to do this before the magnolia tree begins to open its leaf buds, but when the temperature is predicted to stay above freezing for at least 24 hours. It’s also essential to use the right product. A dormant oil is a horticultural oil applied when plants are dormant. The label will tell you whether a particular oil product is effective against scale insects and whether it can be used as a dormant oil…

Everett, Washington, Herald, March 19, 2019: BPA could remove thousands of trees from Renton to Monroe

Bonneville Power Administration is planning to remove hundreds and possibly thousands of trees along a transmission line stretching from Renton to Monroe beginning next month. The decision comes after Bonneville Power Administration (BPA), a federal energy corporation, reclaimed the line from Puget Sound Energy after a 50-year lease expired last fall. The two companies have different standards and trimming schedules for lines they manage, which means BPA will increase the clearance area around the transmission lines by around 26 feet. This will include removing trees, shrubs and undergrowth along 53 miles of line. Kevin Wingert, spokesperson for BPA, said they usually remove vegetation even further, up to 75 feet on either side of the center line, for a full clearance of their easement. Clearing plants helps protect the lines from falling trees or from electricity jumping to nearby trees and shrubs beneath. This protects the property and the reliability of the grid. Puget Sound Energy removed vegetation from around 36 feet on either side. BPA has proposed increasing this to 62.5 feet on either side…

Washington, DC, WTTV, March 18, 2019: Tracking the weather’s impact on the cherry blossom trees

Thanks to that warm-up last week, green buds are sprouting on cherry blossom trees around the Tidal Basin on the National Mall! But the first sign of spring has some people barking up the wrong tree. If you’ve seen budding blossoms, National Park Service officials say they were likely magnolia blooms because the cherry trees have little green buds that will reach peak bloom during the first week of April. On Monday, FOX 5 talked to some tourists who say they are disappointed they won’t be here to see the iconic cherry blossoms. The NPS says the buds are a bit behind last year and this current cold spell is slowing things down a little bit more, but officials say not to worry because this is totally normal. The trees have reached Stage 2 of the six bloom cycles, which means florets are visible, whereas magnolias are almost at full bloom, but that’s the only thing that sets these two flowers apart…

Charlestown, South Carolina, WCSC-TV, March 18, 2019: James Island homeowners frustrated over tree trimmings

James Island homeowners are frustrated with SCE&G after two years of fighting over their tree trimmings. Neighbors living on Riverland Terrace say it’s an ongoing issue. Teresa Gill said she felt threatened when an SCE&G worker told her they were going to tow her car. Gill said SCE&G workers showed up to her neighborhood to trim the trees as part of maintenance they do every five years so they’re not in the way of power lines, but she said they showed up unannounced and her car was parked right under a tree. She said they went up to her property around 3 or 4 times telling her to move the car and they had permission from the Charleston County Sheriff’s Office to do so. “I called the police, the sheriff’s office, and someone came out and told them they didn’t have the right to tow my car. It wasn’t parked illegally, and asked me if I can have it moved by morning,” said Gill. Gill said this time she wasn’t trying to block the trees, but other people in the area are trying to protect the trees by parking in front of them…

Pasadena, California, KPCC Radio, March 18, 2019: New Edison tree-trimming campaign to reduce fire risk is getting local pushback

When work crews hired by Southern California Edison cut back the canopy of shade trees in unincorporated Altadena last month, many residents of the foothill community were angered that their trees were left unsightly and mangled. Altadena residents’ startled and angry responses to the cutting could be repeated in the other fire-vulnerable parts of Edison’s vast service area — because over the next two years, the utility is mounting a massive new tree-trimming campaign. It’s aimed at reducing the risk that its power lines might spark new fires — in which case, Edison could have to pay billions of dollars in liabilities…

Los Angeles, California, KCBS-TV, March 18, 2019: Woman Plans To Save 400-Year-Old Oak Tree That Fell Down In Her Yard

Pasadena homeowner, Betty Lujon, says the centuries old oak tree had been coming down gradually when it finally touched down in her backyard last week. To her surprise, the tree remained rooted and alive and she intends on keeping it that way. “I would never kill it. In a million years, I wouldn’t let it die. The roots are all there. I think, and they think too, the arborist says it will live and do alright,” Lujon told CBS’ Hermela Aregawi. According to the 82-year-old, the oak tree has provided shade and joy for parties and weddings for nearly 50 years, and she wants to save it for future generations to enjoy…

Portland, Oregon, Oregon Public Broadcasting, March 17, 2019: Feds Investigate Oregon Company’s African Rainforest Hardwood Products

Roseburg Forest Products, one of the country’s leading manufacturers of particleboard and plywood, has ended production and sales of certain lumber products in the midst of a federal investigation into whether the wood came from the illegal logging of African rainforests. U.S. Immigration and Customs Enforcement confirmed to OPB that its Homeland Security Investigations division has an ongoing investigation into illegal imports of okoumé, a wood used for plywood and veneer siding. The Lacey Act prohibits the trade of plants and wildlife taken, stored or transported illegally. Okoumé hardwood trees grow in the rainforests of west-central Africa, where the deforestation of habitat for endangered species is drawing the concern of conservationists and scientists alike. Okoumé is used in some of Roseburg’s Real Wood Siding products, which are sold by major retailers including Home Depot and marketed as “environmentally friendly…”

Seattle, Washington, KIRO-FM, March 17, 2019: UW cherry trees close to blossoming

A short burst of spring-like weather may have you wondering about the cherry blossoms at University of Washington. Short answer: they’re not quite ready ready. The school said on Tuesday that peak blossom time is about a weekend away. That said, a trip to UW’s Quad this weekend won’t disappoint. The blossoms are close. Historically, the blossoms usually peak the third week in March, but heavy snow in February may have contributed to a later showtime. “Temperature and amount of sunlight are the big factors that determine bloom timing,” campus arborist Sara Shores said in a news release. “Once the trees reach peak bloom, then we hope that the temperatures drop and the air is fully still for two or three weeks. That will help the blossoms last longer…”

Redding, California, KHSL-TV, March 17, 2019: Concern grows about trees damaged during Camp Fire

The tree pictured above is marked ‘P2’ by PG&E tree crews, meaning it is supposed to be taken down. The property owners are conflicted. The lot it is on is a small one off of the Paradise Memorial Trailway. There was a large house on one side of the large oak, and a smaller “granny” house on the other side. Both homes burned, so the tree has obviously been damaged. Is the tree dead? Is it too close to the power lines? Should it be left standing for a few years just in case it can survive? Many people who lost homes during the Camp Fire are now complaining that their properties have been clearcut. Others complain that damaged trees on a neighbor’s property might fall and destroy their homes that are still standing, and they want the trees removed. Some tree advocates are lobbying for some of the trees to be left standing until they can really determine their viability. The suggestion has been three years for oaks and two years for conifers. Arbor Day is usually celebrated in early April with the planting of trees, but it’s too early for that on many burned properties scarred by the Camp Fire…

Save Delete, March 17, 2019: The importance of tree removal for a beautiful home

Trees are nature’s gift to heal, protect and add beauty where they are. However, when a tree is past its prime and nears the end of its life, or it undergoes unsupervised growth or sustains damage, it becomes a liability. Tree removal becomes a necessity when you want to safely remove a tree without causing harm to it or the surroundings. Arborists or professional tree removal service providers render their service for tree removals. They can also assess the tree for its overall condition, and its requirements such as nutrients and alternative solutions. Tree removal, especially in an urban environment involves careful planning and execution. Professionals can do so by carefully removing the plant without any disturbance to the human as well as the tree population in its proximity. Apart from human expertise, highly sophisticated technology is an essential requirement to execute the removal successfully. It is quite possible that an established company conducts the removal using state of the art and expensive tools and equipment. This is why any random person driving around in a pickup truck plastered with posters and flyers and saw will not do. Any adult with a saw can cut a tree easily, but is it safe for the tree as well as its surroundings? You do not buy fertilizer from any one who has not tested your soil. Why should trees be treated differently?

Richmond, Virginia, WWBT-TV, March 14, 2019: Tree woman was worried about falls on her deck; who foots the bill?

A common legal question played out in a real-life drama in Henrico County. Nakita Lynch had been complaining about a tree in her neighbor’s yard she was worried would fall and cause damage. Well, Thursday, that’s exactly what happened. “I’m so glad I wasn’t outside because I usually come out on the deck just to look around,” Lynch said. “The way it hit, it probably would have hurt us. The way it fell it probably would have hurt us very bad, very bad.” Lynch had not complained to her neighbor about the tree because a different tree in that same neighbor’s yard had fallen two years ago and bad blood over that incident has led them to no longer speak with one another. “She just stopped speaking to me so that’s why I never said anything to her about the tree,” Lynch said. There is recourse for homeowners who suffer damage from a neighbor’s tree, but they have to be proactive and document their concerns before the damage occurs. “Had she given notice to the other property owner that the tree posed a risk to her property and had it documented, potentially she could collect under that lady’s liability insurance or be reimbursed for her damages,” State Farm Insurance agent Michael Fisher said…

Raleigh, North Carolina, WRAL-TV, March 14, 2019: Missouri man practices patience with family walnut tree farm

On a February weekend, in freezing temperatures, 72-year-old Mike Trial is dressed in work boots and jeans sawing his trees into boards. The 200 acres he owns west of Columbia are full of rolling hills, wooded patches and 50 acres of eastern black walnut trees planted in neat rows. The trees will be dormant until April or May, but there’s still plenty to do. For 50-plus years, the Trial family has spent the winter months painstakingly preparing their tree farm for spring, the Columbia Missourian reported. “The work never ends on a tree farm,” he said. Trial knew when he took control of his family’s farm in 2007 that it would be an exercise in patience. His father, George Trial, started planting eastern black walnuts in 1966 at the age of 56. It wasn’t until 2016 — years after his father died — that Trial finally harvested the first of his father’s walnut trees. Of the 25 trees he cut, only 10 were of high enough quality to be sawed into boards…

Cleveland, Ohio, WOIO-TV, March 14, 2019: Here’s how to inspect your trees to see if they’re strong enough for Northeast Ohio’s severe weather season

Winter in Northeast Ohio was a windy, and as we head into severe weather season, you may want to do a visual inspection of your trees to make sure they don’t crash onto your home. Experts warn to be on the look out for a particular beetle. “The ash trees have been getting killed off by the emerald ash borer,” according to Jeff Mueller, the Lawn and Garden Manager at the Petitti Garden Center in Strongsville. Experts warn to be on the look out for a particular beetle. “The ash trees have been getting killed off by the emerald ash borer,” according to Jeff Mueller, the Lawn and Garden Manager at the Petitti Garden Center in Strongsville. Here’s what to look for in the case of the ash borer: • Dead branches on the top of the tree; • Branches that didn’t leaf out last year; • Split bark on the trunk; • “D” shaped holes where bark has split and usually sap oozing out…

Oreno, Maine, University of Maine, March 14, 2019: As climate continues to warm, study finds several barriers to northward tree migration

Extensive land development, invasive species and too many deer may make it difficult for tree migration to keep pace with climate change in the Northeast, according to newly published research. The study, led by Kathryn Miller, a plant ecologist with the National Park Service Inventory and Monitoring Division, and Brian McGill, a University of Maine professor of ecological modeling, analyzed U.S. Forest Service data covering 18 states from Tennessee to Maine. The researchers found a large swath of land in the mid-Atlantic states that was severely lacking in forest regeneration. Even where present, species regenerating on the forest floor were different than those making up the forest canopy. Earlier studies have raised concern about regional regeneration, but this is the first to document the sheer extent and severity of the problem, according to Miller, who recently earned a Ph.D. from the UMaine School of Biology and Ecology. Coining the term “regeneration debt” to describe this phenomenon, the researchers found the region simultaneously faces challenges of increasing invasive plants, deer overabundance and heavy land development by humans…

Hartford, Connecticut, WFSB-TV, March 13, 2019: Eversource invests millions to trim trees along 4,000 miles of electric lines

Eversource said it is investing millions of dollars to trim trees near power lines. The power company said it is investing $83 million to trim trees along 4,000 miles worth of electric lines. It cited last year’s back-to-back nor’easters and spring tornadoes as the reason to fortify its electric distribution system. That wasn’t all. “The long-lasting effects of the drought that plagued the region over the last several years, coupled with consecutive infestations by the gypsy moth and the emerald ash borer have weakened trees around the state,” said Alan Carey, Eversource vegetation management manager. “Removing hazardous trees is vital to ensuring our customers have energy for every moment of their lives. Our team of licensed arborists are experts at identifying vulnerable trees that threaten the electric system and they work closely with community leaders to carefully balance the aesthetics of neighborhoods and the need for reliability…”

London, UK, Daily Mail, March 13, 2019: Golf club greenkeeper, 35, was found dead by his girlfriend after a poplar tree he was cutting fell on top of him and fractured his skull, inquest hears

A golf club greenkeeper died after a poplar tree he was cutting fell on his head and fractured his skull, with his girlfriend and her father later finding his body. Father-of-one Martin Davenport, 35, most likely died instantly when the tree hit him in Christleton, Cheshire on January 7 last year. A jury inquest at Warrington Coroner’s Court yesterday was told that Mr Davenport suffered a fractured skull and brain haemorrhage. His body was later discovered by his girlfriend Megan Grindley and her father when they went to search for him. A jury inquest is required by law if a death occurs following an accident at work. Mr Davenport, from Kelsall, Cheshire, worked as a greenkeeper at Eaton Golf Club in Waverton but was acting as a self-employed contractor when he was hired to cut down poplar trees. Health and Safety Executive inspector Simon Bland said the tree involved was leaning, causing it to act like a ‘spring’ with compression on one side and tension on the side nearest Mr Davenport…

Washington, Indiana, Times Herald, March 13, 2019: Tree harvest at Glendale is about habitat

Visitors to the Glendale Fish and Wildlife area have noticed something unusual lately. The area, which is about woods and water, has had some trees coming down. State officials say they have some good reasons for the work. “The trees were taken down to create wildlife habitat,” said Tara Wolfe, communications director with the Indiana Department of Natural Resources. “We also had some specific trees cut down to ease the transition from forest to field.” By taking out the trees and putting in some shrubbery, state officials say they are improving the habitat for a lot of small game and birds. In particular, the move is considered beneficial for rabbits, quail and song birds. Wild turkeys also benefit from the improved habitat. Besides improving the habitat the removal of some of the less desirable trees improves the forest. “When we take the trees out it allows the sunlight to reach the forest floor,” said Wolfe. “That gives us an opportunity to grow more oak and hickory trees in the woods.” Officials say the work at Glendale is not unusual. They call it part of the regular land management to improve the quality of wildlife habitat…

San Diego, California, KSWB-TV, March 13, 2019: Family of motorcyclist injured by fallen tree seeks answers

The family of a Vista man involved in a crash with a fallen tree in Fallbrook Friday are seeking answers about what happened as the man remains in critical condition. California Highway Patrol officers say a fallen tree near South Mission Road and West Elder Street led to a horrible crash involving 41-year-old Sergio Mendez, who was on his motorcycle. Investigators believe the tree fell right in front of Mendez rather than right on top of him but can’t determine exactly how the crash happened. Mendez’s family is also struggling to put the pieces together. “We do want answers because we really don’t know other than a tree filling up on my brother but we don’t know how it happened, why it happened, or if it could’ve been prevented, or anything,” said Ali Saad, Mendez’s brother. Strong winds had already caused more than one downed tree in the area the same day. “Maybe 10 minutes prior he did call my sister-in-law to tell her I’m going to be a little bit late because there’s a tree down,” said Saad…

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Case of the Day – Tuesday, March 19, 2019

SHOOTING THE MESSENGER

celltree150330

When is a tree not a tree?

Today’s case has nothing to do with trees, unless you count those awful faux-tree cellphone towers many cities are requiring cellphone carriers to erect. While not arboriculture related, today’s decision illustrates the danger of stretching causation, a risk that has reared its ugly head in tree liability cases before (as we shall see tomorrow).

Captain Robert Johnson was a jailer at the Lee Correctional Institution in South Carolina. As a correctional officer, Mr. Johnson was responsible – among other duties – for seizing cellphones and other contraband from inmates.

In March 2010, an assailant entered Mr. Johnson’s home and shot him six times in the chest and stomach. His wife, Mary Johnson, witnessed the attack. Mr. Johnson survived but underwent many surgeries and months of rehabilitation.

The U.S. Attorney for the District of South Carolina concluded after a thorough investigation that a group of inmates ordered the attack in retaliation for Mr. Johnson’s confiscation of their contraband cellphones and other goods. The U.S. Attorney found that an unnamed inmate had used a cellphone to communicate with the shooter, Sean Echols. That inmate also paid Echols. Echols eventually pled guilty to conspiracy to use interstate facilities in murder-for-hire under federal law.

This is where the case begins to provide a lesson for those of us interested in negligence. One would think that the wrongdoers would be sued – the conspirators, the shooter – but the Johnsons knew full well that the inmates didn’t have anything, and the shooter, who’s now serving 20 years, was unlikely to have much of a pocketbook, either. The challenge for the Johnsons’ attorney was to find someone with a deep pocket.

He found someone (or several someones). Let’s shoot the messenger, or – in this case – the people who owned the medium used to delivered the conspirators’ messages. Using a “but for” analysis that would have impressed Mrs. Palsgraf, the Johnsons’ lawyer figured that but for the fact that cellphone towers were located near the prison, there wouldn’t have been any cellphone calls from the prison, and thus, no one could have called the shooter to importune him to shoot Capt. Johnson. For that matter, without cellphones, the prisoners wouldn’t have been stirred up to begin with. So who should we sue? The cellphone companies, of course, as well as the guy who owns the land the cell towers are sitting on, just for good measure.

Of course, this kind of attenuated reasoning is what makes fat people sue McDonalds for selling Big Macs (no Big Macs, no temptation, no overeating, no fat people), or why a man sued Walmart because a plastic bag of groceries split in the parking lot, a can of LaChoy chow mein fell on his wife’s foot, the foot became infected and she died. Really.

It’s too bad Capt. Johnson got shot, and we’re all glad he recovered. But to conclude that cell carriers should pay is to stretch causation to the absurd. I blame the Johnsons’ lawyer, who should have known better.  Perhaps a copy of Prosser on Torts should fall out of his briefcase onto his foot, and… well, you get it.

Johnson v. American Towers, LLC, Case No 13-1872 (4th Cir., Mar. 25, 2015). Robert Johnson, a prison guard in Bishopville, South Carolina, was shot multiple times in his home. The ensuing investigation revealed that the attack was ordered by an inmate at the prison where Mr. Johnson worked, using a contraband cellphone. Mr. Johnson survived the attack and, with his wife, later brought suit. The Johnsons did not, however, sue the typical defendants – the shooter, a prison inmate or an employee. Rather, the Johnsons sued several cellular phone service providers and owners of cell phone towers, seeking to recover under state-law negligence and loss of consortium theories. The Johnsons alleged that the cell providers “were aware of the illegal use of cellphones by inmates using signals emitted and received at the defendants’ towers” and that “this use created an unreasonable risk of harm.” According to the Johnsons, the defendants failed to take steps to curb illegal cellphone use.

In the district court’s view, “the Johnsons’ argument suggests only a desire to conduct a fishing expedition to determine if there is any factual basis for asserting claims against any Defendants… This is not enough.” Thus, the trial court dismissed the case on several technical issues, the most significant of which was that the complaint, even if true, could not make the cellphone companies liable.

The Johnsons appealed.

messenger150330Held: The Johnsons’ claims fail due to the “speculative nature of their allegations.”

The Court of Appeals reviews rulings on motions to dismiss de novo, accepting all the factual allegations in the complaint as true, and drawing all reasonable inferences in the Johnsons’ favor.

Even reviewing the lower court’s decision according to this relaxed standard, the Court concluded that “the Johnsons have failed to allege sufficient facts to set forth a plausible claim for relief.” A complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face. A properly pleaded complaint must offer more than “’naked assertions’ devoid of ‘further factual enhancement.’” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. In other words, a complaint must include “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

The Johnsons’ complaint contained the bare assertion that “an inmate at the prison using a cellphone ordered a coconspirator outside of the prison to kill Captain Johnson.” The Fourth Circuit Court of Appeals held that the Johnsons had failed to offer “any further factual enhancement to support their claims against the Defendants. For example, the Johnsons’ complaint does not identify the wireless service provider who carried the alleged call or when the alleged call occurred. Without more factual allegations, it is impossible for a district court to assess the Johnsons’ claims.”

The Court said that the complaint would leave the cellphone carriers unable to determine whether it carried the alleged call without more identifying information.

The appellate court said that the Johnsons were free to file a new lawsuit if they could come up with additional information, because the district court dismissed the complaint without prejudice. However, “as currently drafted… the complaint resembles a prohibited fishing expedition rather than a properly pleaded complaint.”

– Tom Root

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Case of the Day – Monday, March 18, 2019

UNDER THE COTTONWOODS

We don't know him ... but he's reputed to be good at what he does.

We don’t know him … but he’s reputed to be good at what he does.

Anyone who has suffered through more than an hour of daytime television is familiar with personal injury lawyers’ ads. One of Ohio’s PI stars is Tim Misny, whose bald pate is immediately recognizable to any Buckeye State dweller with a TV set, along with his trademarked slogan, “I’ll make them pay.”

Tim cautions his would-be clients that the slogan isn’t a guarantee. It’s too bad that Sara Burnett’s Colorado attorney – who was not Tim Misny, and for that matter, may not even have been bald – didn’t tell her as much. Sadly for her, after five years of litigation, she got nothing.

Sad for her, but not for the public, whose pain in the pocketbook is all too often forgotten. It seems that Sara and her friend Mackenzie went camping at a suburban Denver state park, just a pleasant July evening under the cottonwoods. Unfortunately for Sara, one of the cottonwoods she camped under picked that same night to shed a branch. A big branch. The falling limb demolished Sara’s tent and badly hurt her head and back. Fortunately, Mackenzie was able to drive both of the young women to the hospital.

For Sara, under the cottonwoods – unlike the book – did not have a happy ending.

     For Sara, “under the cottonwoods” – unlike the book – did not have a happy ending.

Sara then embarked on a campaign to make the State of Colorado pay for her injuries. The State defended on the grounds that it was immune from suit.

The notion of governmental immunity, fully known as “sovereign immunity,” traces its origins from early English law. Back then, the sovereign – that is, the king – was deemed incapable of committing a legal wrong. Thus, his majesty (and by extension his entire government of officials, ministers, clerks and knaves) was immune from civil suit or criminal prosecution.

The doctrine survives today in the United States. The Federal government, all state governments and most political subdivisions thereof are immune from liability for the conduct of their officers, agents and employees acting within the scope of their employment. Unsurprisingly, there are exceptions, cases in which the government has permitted itself to be sued. A good example is the Federal Tort Claims Act, which permits certain types of actions (such as negligence) to be brought against Uncle Sam, subject to some limitations.

Colorado has a statute similar to the FTCA, known as the Colorado Governmental Immunity Act. Generally, courts require that statutes like the FTCA and CGIA be strictly construed in favor of the sovereign and may not be enlarged beyond the waiver its language expressly requires.

In Sara’s case, the Colorado Supreme Court observed at the outset that “governmental immunity is sometimes inequitable, but … governmental  entities provide many essential services that unlimited liability could disrupt or make prohibitively expensive … The balance between these two competing interests ‘is for the legislature alone to reach’.”

The CGIA held that the State retains immunity for “an injury caused by the natural condition of any unimproved property.” This seems to pretty much slam the door of Sara claiming that a branch falling out of a tree should open the Colorado treasury to her. But her lawyer was crafty. He learned that the Park employees sometimes trimmed trees that required it. Thus, he argued, the trees ceased being in “natural condition” because the State altered that condition through incidental maintenance. Plus, because the State built the campsite next to and under the trees, those trees became “incorporated” into improved property.

Works in real estate ... for tort claims against the State – not so well.

Works in real estate … But for tort claims against the State?  Not so well.

The Colorado Supreme Court rejected Sara’s claims. Parsing the voluminous history of the CGIA, the Court concluded that the Act did not permit the “spatial analysis” she proposed. In other words, it doesn’t matter how close to the improved facilities an unimproved natural object – like a cottonwood – might be. What matters is what caused the injury. Here, it was a branch from an unimproved tree in its natural condition. Its location next to a campground did not alter its natural state.

For that matter, neither did the State’s occasional cleanup of that tree and others like it when dangling limbs caused Park employees to trim and haul away detritus. The State had no duty to do so, the Court said, and the fact that it may trim on a volunteer basis did not convert what was not a duty into a legal obligation.

The Court’s decision is a interesting tutorial on governmental immunity, and on the balancing of competing interests in making unimproved land available for recreation and protecting the public from hazards created by governmental action. As well, it’s a reminder that sometimes, no lawyer is good enough to “make them pay.”

Burnett v. Dept. of Natural Resources, 346 P.3d 1005 (Supreme Court of Colorado, March 23, 2015). One summer night, Denver area residents Sara Burnett and Mackenzie Brady were camping at suburban Cherry Creek Park. The pair chose a campsite which included a utility hookup, a parking area, a picnic table, and a level dirt pad, pitching their tent under a canopy of four mature cottonwood trees that flanked the campground. Early the next morning, while Burnett and Brady were sleeping inside their tent, a tree limb from one of the cottonwoods fell on their tent. The blow seriously injured Sara. Mackenzie suffered minor injuries, but was able to drive Burnett to the hospital.

Due to the density of the canopy, Park employees who subsequently investigated the accident could not determine the source of the fallen tree limb.

Sara sued the State of Colorado Department of Natural Resources, Division of Parks and Outdoor Recreation for negligence. She relied on section 24-10-106(1)(e) of the Colorado Government Immunity Act to argue that the Park was a “public facility” and the branches overhanging the campsite constituted a “dangerous condition” of it. The State moved to dismiss, asserting sovereign immunity under a separate provision of the CGIA, by which a public entity retains immunity for “an injury caused by the natural condition of any unimproved property.” The parties agreed that the improved campsite was a “public facility” under the CGIA, and that the trees adjacent to it originated on unimproved property.

The trial court applied Rosales v. City & County of Denver, 89 P.3d 507, 510 (Colo. App. 2004), determining that the sole issue was whether the trees adjacent to Sara’s campsite constituted a “public facility.” The trial court conducted a two-part Rosales analysis, concluding that the trees were not integral or essential to the campsite and thus could not constitute part of a “public facility” under § 24-10-106(1)(e). The court of appeals agreed, holding as well that because the trees were a “natural condition of … unimproved property,” § 24-10-106(1)(e) precluded Sara’s suit.

The suburban Denver state park where the mishap occurred.

The suburban Denver state park where the mishap occurred.

Sara appealed to the Supreme Court of Colorado.

Held: The State is immune from liability under the CGIA.

In the CGIA, a public entity waives its immunity to suit for an injury arising from a “dangerous condition of any .. public facility located in any park” it maintains. But the public entity retains immunity for injuries “caused by the natural condition of any unimproved property, whether or not such property is located in a park …” Therefore, the Supreme Court said, “irrespective of what constitutes a public facility, the government retains immunity here if the tree at issue falls within the ambit of the natural condition of unimproved property limitation.”

The CGIA does not define “natural condition of any unimproved property.” Sara argued that, the trees were in their “natural condition” until the State altered their condition through incidental maintenance. Plus, because the State built the campsite next to and under the trees, the State “incorporated” the trees into improved property. Therefore, she argued, the trees ceased to be a natural condition of unimproved property. The State, on the other hand, reasoned that where trees are native flora to property, their character as a “natural condition of unimproved property” remains regardless of incidental maintenance or their proximity to improvements on the land. Because the statute lacked a definition, the Court looked at the substantial amount of CGIA legislative history.

Prior to 1971, Colorado had no governmental immunity statute. Rather, immunity existed only as a court-made doctrine. That year, the Colorado Supreme Court “held that judicially imposed sovereign immunity was inappropriate and abolished such immunity at every level of government.” The legislature responded the next year with the CGIA. Fourteen years later, municipal insurance rates had skyrocketed. In response, the General Assembly rewrote the statute to afford the government greater protection against liability. A report supporting the amended law illustrated the legislative intent: first, it distinguished between dangerous conditions arising from man-made objects and natural objects; second, it explained that immunity should turn on the precise mechanism of the injury; third, it expressed the intent to exempt public entities from a duty to maintain any natural conditions; and fourth, it stated the policy goal of encouraging public entities to make unimproved, government-owned property open to the public without exposing those entities to the expense of defending claims brought by people injured while using the property.

Cottonwoods in the park ... If you know cottonwoods, you know how they like to shed.

Cottonwoods in the Park … If you know cottonwoods, you know how they like to shed.

Based on the CGIA’s legislative history, the Court concluded that “the legislature intended to retain immunity for injuries caused by native trees originating on unimproved property regardless of their proximity to a public facility …” Applying its interpretation to this case, the Court concluded that because a branch from trees originating on unimproved property caused Sara’s injuries, the natural condition provision of the CGIA precludes her suit. As for Sara’s argument that the statute can be interpreted that the State waives immunity for injuries caused by natural objects that are contiguous to improved property, the Court concluded that nothing in the legislative history indicated that the General Assembly intended the “spatial analysis” for which she was advocating. A rule that a public entity waives immunity for injuries that are caused by natural conditions and occur on improved property would create “a literal line drawing problem,” requiring courts to adopt an arbitrary rule to determine when natural objects – such as trees – sit on improved property and when they do not. The Court tersely noted, “We are not at liberty to create this third category.”

Because the CGIA retains immunity for injuries caused by a “natural condition of … unimproved property,” immunity turns on the mechanism of Sara’s injuries, not her location when the injuries occurred. The Court found that the cottonwoods bordering Sara’s campsite were “native vegetation of the unimproved property,” and the branch at issue fell from one of those cottonwoods. “Thus,” the Court held, Sara’s “injuries were caused by a natural condition of unimproved property, such that the natural condition provision precludes her suit.”

In reaching that holding, the Court rejected Sara’s argument that the State altered the natural condition of the trees by having previously pruned them. “Under the CGIA,” the Court ruled, “the State did not have any duty to prune the limbs, nor did it assume a duty to continue to prune them once it chose to do so … An assumed duty would be contrary to the public health and safety, as it would discourage the State from undertaking any pruning whatsoever.” The Court refused to create a rule “that would transform natural conditions of unimproved property into improved property where, for the public health and safety, a public entity performs such incidental maintenance.”

In what was little more than a footnote at the end of the decision, the Colorado Supreme Court observed that “the trial court and court of appeals relied upon the two-part analysis delineated in Rosales … first, was the tree an “integral” part of the public facility …” and “second, was the tree “essential” for the public facility’s intended use?” Noting that “these questions do not originate in the CGIA,” the Court overruled its 11-year old Rosales rule.

The Court admitted that Sara’s “injuries are tragic,” but it concluded that “eliminating governmental immunity in this case would only compound the tragedy by sidestepping legislative intent and providing a disincentive for the government to facilitate access to public lands.”

– Tom Root

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Case of the Day – Friday, March 15, 2019

THE JURY IS INSTRUCTED TO DISREGARD THE SMELL

Once the skunk lands in the jury box, the smell tends to follow ... no matter what the judge may say.

Once the skunk lands in the jury box, the smell tends to follow … no matter what the judge may say.

Trial courts often must give juries instructions to disregard certain evidence they have heard in reaching their verdicts. As a court once described it, “if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.

Today’s case starts out to be pure California … a landslide, a muddy pool, emotional distress because of a dirty carpet. Oh, the humanity! The injured Ms. Rahmanian claimed that her neighbor Nelson had suffered a water leak, and the leak damaged her property. The extent of the damage was grievous, Ms. Rahmanian pled, well over $200,000. Her house was a mess, carpets ruined, pool filled with mud … she demanded justice!

But it turns out that Ms. Rahmanian had already gotten twenty grand from her insurance company, and she hadn’t used a penny of it to dry out carpets, clean walls, empty the pool — the usual cleanup performed to keep a bad mess from becoming worse. The defendant managed to sneak that piece of evidence into the record, and as a result, the plaintiff only collected about $110,000, just about half of what she wanted. How could she ever clean the drapes on that?

People damaged by the negligence of others have a duty to mitigate. That means that they are expected to take reasonable steps to minimize the damage. It only stands to reason. The courts will try to put the innocent injured back in the position they occupied before the damage. But the innocent aren’t expected to sit on their hands, either … or spend money intended to clean up the damage on mimosas at the Beverly Wilshire.

Ms. Rahmanian complained on appeal that the jury shouldn’t have heard about the insurance money. She was literally correct. Who got what from their insurers is irrelevant to whether a party was negligent, and whether that negligence caused damage. But the Court of Appeals clearly lacked sympathy for her. It held that — while the evidence about the insurance money shouldn’t have come in — Ms. Rahmanian didn’t suffer for it, because the trial court told the jury to disregard it.

Never mind that it might be hard for the jurors to ignore the fact that a poor pool-deprived supplicant like Ms. Rahmanian already had collected some dough from her insurance company and spent it on … well, pedicures, poodles in purses, whatever Californians fritter money away on when they don’t mitigate. The Court did some rough justice here, something that happens more often than you might think.

To hear Ms. Rahmanian tell it, her bungalow was fouled beyond salvation.

To hear Ms. Rahmanian tell it, her bungalow was fouled beyond salvation.

Rahmanian v. Nelson, Not Reported in Cal.Rptr.3d, 2007 WL 1123983, 2007 Cal. App. Unpub. LEXIS 3060 (Cal.App. 2 Dist., Apr. 17, 2007). Nelson’s house is located above the house owned by Sharon Rahmanian. A water leak on Nelson’s property caused the slope located at the back of her land to collapse, leading to a mudslide that covered her pool and patio area. She sued Nelson for negligence and trespass.

Nelson did not dispute liability. The primary issue at trial was the amount of damages. Rahmanian’s witnesses testified that the mudslide caused damage to the pool and patio, and to the French doors at the back of the house. In addition, mud or muddy water entered the house, causing damage to everything located near the doors, including carpets and drapes. Rahmanian’s expert testified that to repair the slope would cost about $75,000, plus $24,440 to re-landscape the slope. The cost to repair the pool and house would added another $134,000, and she lost use of the pool to the tune of $1,153 a month. For good measure, she complained of damages from physical symptoms and mental suffering she had experienced since the mudslide.

Nelson’s witnesses said the mudslide could not have caused much damage to the patio or pool. They also questioned whether water or mud caused any damage to the interior of the house. Nelson’s experts estimated it would cost $89,371 for repairs and re-landscaping. During the trial, there were three references to $20,000 Rahmanian had already received from her insurance carrier, but had not used to repair any damage.

The jury awarded Rahmanian $80,000 for slope repair; $21,000 for other property damage; $5,000 for loss of use; and $4,000 for emotional distress. Not satisfied with this amount, Rahmanian moved for a new trial, which the court refused. She appealed.

Held: The trial court shouldn’t have let testimony about the $20,000 in insurance money in, but that wasn’t enough to give Ms. Rahmanian a new trial. Under California’s collateral source rule, if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.

Too many mimosas, too little cleanup.

Too many mimosas, too little cleanup.

In order to permit such evidence to be introduced, the trial court must first weigh the relevance and probative value of evidence of plaintiff’s receipt of collateral benefits against the inevitable prejudicial impact such evidence is likely to have on the jury’s deliberations. Here, that advance weighing was not done. But, the Court said, Rahmanian was not prejudiced. The jury asked the court for guidance on the impact of the $20,000 during deliberations, and the court instructed the jury to ignore what it had heard repeatedly. Ms. Rahmanian did not object to the language of the court’s instruction: in fact, her counsel supplied the key wording used by the court, so she was not allowed later to raise an objection concerning its clarity.

Because the court, with the assistance of counsel, was able to intervene during deliberations to prevent the jury from acting on the misleading information it received concerning the $20,000, the jury’s verdict could not have represented an improperly discounted award. Thus, the appellate court said, no miscarriage of justice occurred.

The trial court also gave an instruction to the jury that Ms. Rahmanian had a duty to mitigate the damage, that is, to take immediate steps after the landslide to minimize the long-term effects. Ms. Rahmanian maintained that the only evidence to support the instruction was the improperly admitted evidence of the $20,000 insurance money. The Court said that because the trial court had given a curative instruction about the insurance money, the appellate court presumed the jury followed the court’s final directive to “not consider” the $20,000 in calculating damages.

– Tom Root

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Case of the Day – Thursday, March 14, 2019

RESISTANCE IS FUTILE

One of the back room perks of running a tree law website is that we can see what kinds of searches lead readers to our little patch of the Internet. Probably the top search is some kind of encroachment issue, where neighbor’s tree is overhanging the searcher’s property, or a dead tree next door is about to fall on the searcher’s roof… that kind of thing.

But a perennial also-ran is the irate homeowner or tree-hugger complaining about a swarm of cretins wielding chainsaws, trimming trees for the benefit of power lines exercising the same care and restraint William T. Sherman showed when he toured Georgia in the fall of 1864.

There are two immutable truisms to remember when the power company tree-trimming contractors come around. First, the odds are very high that the power company does own an easement across your property that lets Leatherface and his buddies butcher your trees. Second, if you want to stop the sylvan massacre, you will soon discovery that – as the Borg liked to say – resistance is futile.

Today’s case, from California, illustrates just how immune utilities and their contractors are to the entreaties of the homeowners whose lands the easements cross. The Sarales, who ran a walnut farm, sued to stop Pacific Gas & Electric from excessively trimming their walnut trees. The California Court of Appeals agreed with them that it had jurisdiction to determine whether PG&E’s easements across their lands were valid. But once the easements were held to be valid, the courts’ inquiry ended. Any complaint that PG&E was being unreasonable in its use of the easement, that is, in how enthusiastically it was hacking up the trees within the easement, could only be done in a proceeding before the California Public Utilities Commission.

Cutting a swath through Georgia prepared General Sherman for a career as a tree trimming contractor for an electric company.

Such a hearing with the Commission, pitting a homeowner against a public utility before a government agency that regulates that utility is akin to putting a mouse between two cats. But such is the law almost everywhere.

Sarale v. Pacific Gas & Electric Co., 117 Cal.Rptr.3d 24, 189 Cal.App.4th 225 (Ct.App. 3rd Dist., 2010). The Sarales own farmland across which PG&E claimed an easement land for electric transmission lines pursuant to a 1915 written grant. The right-of-way gave PG&E “the right of erecting, constructing, reconstructing, replacing, repairing, maintaining and using for the transmission and distribution of electricity… and also a right of way [giving PG&E] full right and liberty of cutting and clearing away all trees and brush on either side of said center line whenever necessary or proper for the convenient use and enjoyment of the said line of towers and wires and right of way…”

Until November 2004, PG&E periodically trimmed the Sarales’ walnut trees for about 10 feet on either side of the lines. After November 2004, however, over the Sarales’ protest, PG&E began trimming the walnut trees up to 20 feet away from the lines, rendering unproductive what had been “producing trees.”

The Sarales sued PG&E, which defended by saying it was “legally mandated to take appropriate measures to maintain vegetation clearances and, accordingly, we have trimmed and continue to trim all trees that may interfere with our electric power lines-pursuant to both our rights under our easement/ right of way as well as the rules and regulations under which we are required to operate.”

The Sarales denied the existence of a utility easement on their land, but said if the easement were found to exist, PG&E should be “authorized by law to trim no further than the distance established by the court, radially measured at time of trimming, and not further, without [the Sarales’] permission.” They sought an injunction preventing PG&E from “destroying vegetation or trimming crops under cultivation…” and demanded damages for trespass.

PG&E responded that California Public Utilities Code § 1759 barred the court from exercising jurisdiction over the Sarales’ claims because to do so would interfere with “an ongoing supervisory or regulatory program over which the public utilities commission has sole jurisdiction.”

PG&E’s contractors were only reasonably managing the easement.

The trial court agreed with PG&E, reasoning that the acts alleged by the Sarales “involving and related to… PG&E’s vegetation management practices under and around its power lines, fall within the commission’s regulatory jurisdiction. This court therefore has no jurisdiction over the Sarales’ first amended complaint… Before proceeding against PG&E in superior court… the Sarales must first seek a finding from the public utilities commission that PG&E’s vegetation management practices are excessive or otherwise out of conformance with regulations.’

Held: The Court of Appeals agreed with the trial court. The California Public Utilities Commission holds the “broad authority to ‘supervise and regulate every public utility in the State’.” Section 1759 of the Public Utilities Code bars any court action that hinders or interferes with the exercise of regulatory authority by the Commission.

This broad authority authorizes the commission to “‘do all things, whether specifically designated in the Public Utilities Act or in addition thereto, which are necessary and convenient’ in the exercise of its jurisdiction over public utilities.”

No court in the state, except the Supreme Court and the court of appeals, has jurisdiction to reverse a Public Utilities Commission order. Nevertheless, the state legislature has provided for a private right of action against utilities for unlawful activities and conduct. The right of action is limited to those situations in which an award of damages would not hinder or frustrate the commission’s declared supervisory and regulatory policies.

The California Supreme Court has a three-part test to determine whether an action is barred by § 1759: (1) whether the commission had the authority to adopt a regulatory policy; (2) whether the commission had exercised that authority; and (3) whether the superior court action would hinder or interfere with the commission’s exercise of regulatory authority.

Here, the Sarales conceded the commission had authority to regulate trimming distances around power lines. The commission’s authority to “supervise and regulate every public utility in the State” included the authority to require utilities to maintain its systems and equipment “in a manner so as to promote and safeguard the health and safety of its employees, passengers, customers, and the public.” The court said regulating tree trimming distances around power lines effectuated this purpose.

The commission had clearly exercised its authority. Its General Order No. 95 provided rules governing the construction of overhead electric lines. Rule 35 of General Order No. 95 specifically governed tree trimming, and had been changed in 1997 to require wider trimming margins from power lines.

The court held that for purposes of applying the test, “what matters is that the commission has exercised its authority to adopt a regulatory policy relating to tree trimming around power lines…”

Finally, the court held that an action for damages against a public utility is barred by § 1759 “not only when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would ‘reverse, correct, or annul’ that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would ‘hinder’ or ‘frustrate’ or ‘interfere with’ or ‘obstruct’ that policy.”

Here, the Sarales’ suit against PG&E essentially advance claims of “excessive” tree pruning based on past vegetation management practices. Section 1759 saves the commission and utility companies from defending against lawsuits every time adjustments are made to protocols for vegetation management around power lines. The record in this case indicates that the standards for vegetation management surrounding power lines had been revised by the commission 13 times in 57 years. “Allowing owners of land containing overhead power lines to seek individualized judicial determinations of what might be ‘necessary’ or ‘proper’ vegetation,” the court said, “would cause a regulatory nightmare for the commission that § 1759 was intended to prevent.”

– Tom Root