Case of the Day – Friday, May 29, 2020

EXPERIENCE MATTERS

Ask a Cleveland Browns fan (if there are any left, that is):  Experience really does matter. Grabbing the hottest college quarterback (Charlie Frye, Brady Quinn, Colt McCoy, Johnny Manziel, Deshawn Kiser) with zero NFL experience has not been Jimmy Haslam’s ticket to the Super Bowl.  And now, we have Baker Mayfield. Another college QB standout, sent to Cleveland to die… True, he’s still on the team after two years, no mean feat at that franchise since its rebirth in 1999.

To borrow Samuel Johnson’s description of a second marriage, it’s the triumph of hope over experience.

Experience does makes a difference. That’s a lesson we can take away from today’s case.

There’s another lesson, too, illustrated by the old criminal law adage that no defendant should ever trust his freedom to 12 people who are too stupid to know how to get out of jury duty. Part of that maxim is based in reality: despite the Constitutional promise of a “jury of your peers,” most trial attorneys know that the jury generally ends up overpopulated with government workers (who get time off with pay for jury duty), such as county workers and schoolteachers, or retirees. Professionals, business owners and managerial types – to name a few – usually finagle their way out of the jury dock.

You're much more likely to get 12 confused jurors than you are to get angry ones ...

You’re much more likely to get 12 confused jurors than you are to get angry ones …

Historically, the facts found by the jury are virtually bulletproof. This is partly because tradition and the Constitution have sanctified the community judging concept represented by juries, and partly because the legal system has to have some method of deciding facts with some finality.

Nevertheless, social scientists tell use that there is wisdom in the crowd. So perhaps the jury is right more than it’s wrong. Perhaps it isn’t. Because the law accords such respect to the secrecy of jury deliberations, we may never know.

Today’s case illustrates how carefully appellate courts parse jury findings. It’s quite common for the trial-court loser to complain on appeal that the jury findings were wrong. As the Maine Supreme Court makes clear to us, it’s quite uncommon for the appellate court to agree.

Back in spring 2011, Keith Anthony asked his neighbor, Paul Gagnon, to help him cut down a rotten tree. Both Keith and Paul were accomplished tree professionals. Paul used a chainsaw on the 30-inch trunk while Keith pushed on it with a Bobcat. Suddenly, the tree “exploded.” A falling limb knocked Paul unconscious and seriously injured him. (Despite the fact that Paul subsequently died during the litigation, he did not succumb to injuries from the tree.

Paul sued Keith for negligence, arguing that Keith should have warned him that the tree could explode, and that he shouldn’t have been pushing on the tree with the skid-steer. In his answer to Paul’s complaint, Anthony argued that Paul was negligent, too, raising what’s known as the affirmative defense of comparative negligence. The trial court jury found that both Keith and Paul were negligent, and that Paul was at least as negligent as Keith in causing his own injuries.

explo151116The appellate courts do everything possible to tip the scales in favor of the jury. Its standard of review – the deference the courts of appeal will give the jury’s decision – is to uphold a jury’s verdict if, when viewed in the light most favorable to the winning party, there is any credible evidence in the record to support the verdict. This means that if five witnesses said Keith drove the Bobcat over Paul’s foot, but one witness said that Paul deliberately stuck his foot under the wheels, the jury’s decision to go with the one witness and reject the observations of the other five will be upheld. Appellate litigation can be like watching those hapless Browns get outscored 30-0 by Pittsburgh for the first 59:30 minutes of the game, only to have Cleveland score a single field goal in the final thirty seconds and win.

Here, the Court decided that no one expected the tree to explode. Shortly after the accident, Paul admitted that he didn’t think Keith was doing anything with the skid-steer that contributed to the tree breaking or falling too soon. Keith corroborated the accidental nature of the event, testifying that the tree “just dropped suddenly without warning or anything.”

The Court went out of its way to note that both Paul and Keith “had substantial experience cutting trees and working in the woods, and both were aware of the rotted condition of the tree they were working on.” A Maine arborist testified that using the Bobcat to try to bulldoze the tree over while someone else sawed at it was, charitably put, a stupid idea. Under the circumstances, the Court said, both Paul and Keith should have known better than to try to use a skid-steer to push the tree over.

As for the jury, the Court reasoned that from the evidence, a jury could have concluded that Keith was negligent in operating the Bobcat; (2) either Keith or Paul or both were negligent because they should have known that the way they were cutting down the tree was dangerous; or (3) no one was negligent, and the tree “explosion” was just one of those things. Because the jury could have gone any of several ways on the verdict, its conclusion that both of the guys were knuckleheads was supported by the record.

In other words, there was enough evidence in the record for everyone. When that’s the case, the jury’s decision as to which version to credit stands.

And if you’re experienced enough to know better, a jury is going to hold you to your experience.

A Bobcat of the type that Keith misused ...

A Bobcat of the type that Keith misused …

Estate of Gagnon v. Anthony, 126 A.3d 1142 (Supreme Court of Maine, 2015). Keith Anthony asked his neighbor, Paul Gagnon, to help cut down a rotted tree at Anthony’s place. Both men were experienced woodcutters. The tree to be felled was about thirty inches wide with a large limb growing out of it. Gagnon used a chainsaw to make a wedge cut in the tree below the limb while Anthony used the bucket of his Bobcat skid-steer loader to push the limb away from the house and a nearby sapling. As they performed their respective tasks, the tree “exploded” and the limb fell on Gagnon, injuring him. Gagnon sued Anthony, alleging that Anthony failed to warn him about the possibility that the limb could snap because of the rotted condition of the tree, and also alleging that Anthony was negligent in his operation of the Bobcat. Anthony raised an affirmative defense of comparative negligence under 14 M.R.S. § 156 (2014).

A trial jury found that both Anthony and Gagnon were negligent and that Gagnon was at least as negligent as Anthony in causing his own injuries. The Estate’s motion for a new trial was denied, and this appeal followed.

Held: The jury’s verdict was upheld. The Court said it would uphold a jury verdict if, when viewed in the light most favorable to the prevailing party, there is any credible evidence in the record to support the verdict. Gagnon, as the movant, was required to show that the jury verdict was so manifestly or clearly wrong that it is apparent that the conclusion of the jury was the result of prejudice, bias, passion, or a mistake of law or fact.

jury151116The Maine Supreme Court said it was clear from the record that neither man expected the tree to “explode” as it had. In a recorded statement that was admitted in evidence, Gagnon explained that the tree “broke way too soon, it should have never broke at that point.” In his statement, Gagnon placed no blame on Anthony, stating that he did not believe that Anthony was doing anything with the skid-steer that contributed to the tree breaking or falling too soon. Anthony corroborated the accidental nature of the event, testifying that the tree “just dropped suddenly without warning or anything.” Furthermore, the evidence showed that both Gagnon and Anthony had substantial experience cutting trees and working in the woods, and both were aware of the rotted condition of the tree they were working on. The Court dryly observed that “it would not be unreasonable to infer from this circumstance that both men knew, or should have known, the risks associated with cutting the rotted tree, and both should have known that the plan to use the Bobcat to fell that tree was ill advised.”

The Court said that the evidence was sufficient for the jury to decide any of three ways. The jury could have found that (1) Anthony was negligent in his operation of the Bobcat; (2) either Anthony or Gagnon or both were negligent because the dangerousness of the method they undertook to fell the rotted tree should have been obvious to each; or (3) neither of them was negligent, and the limb falling onto Gagnon was simply an unexpected accident. Where the causal fault of both parties is in dispute, the Court said, “it is the sole prerogative of the jury to determine the comparative degrees of fault of each of the parties to a negligence action.”

Although the record did contain evidence that Anthony accepted some responsibility for Gagnon’s injuries, and although a licensed Maine arborist testified that pushing a tree with a skid-steer is “not the proper way to do it,” the Court ruled that there was sufficient credible evidence in the record to support the jury’s finding that Gagnon was at least as negligent as Anthony.

Thus, the trial court didn’t abuse its discretion in denying Gagnon’s motion for a new trial.

  – Tom Root

TNLBGray

And Now The News …

San Francisco, California, Chronicle, May 28, 2020: 2nd tree this week drops limb at SF’s Washington Square Park

A ficus tree bordering Washington Square Park in San Francisco shed a roughly 12-foot-long limb Wednesday evening, the second tree in as many days to drop a branch near the North Beach park in as many days. No one was injured as a result of the 2-inch-diameter limb dropping off, but the event is jarring in light of the fallen branch that injured five people, including a young child, at the park on Tuesday. There were no major injuries reported as a result of that incident, though the child was taken to a hospital as a precaution, evaluated and released. The ficus that dropped the limb Wednesday was one of seven trees along Columbus Avenue that the Public Works Department had planned to cut down and replace last year. They were deemed to be too risky to leave standing. Public Works is responsible for San Francisco’s roughly 125,000 street trees. The Recreation and Park Department oversees the 131,000 trees dotting the city’s thousands of acres of parks — it was a park tree that dropped its limb Tuesday. Four years ago, a 100-pound limb fell on Emma Zhou’s head while she was watching her two children play in Washington Square Park, paralyzing her from the waist down. In 2018, the city agreed to pay $14.5 million to settle her legal claims…

US News and World Report, May 28, 2020: Regulators Approve PG&E Bankruptcy Plan Despite Safety Fears

California power regulators on Thursday unanimously approved Pacific Gas & Electric’s $58 billion plan for getting out of a bankruptcy caused by a series of deadly wildfires, despite ongoing worries about the utility’s ability to safely operate its crumbling electrical grid. The vote by the Public Utilities Commission came just a few hours after a federal judge ripped the company for continuing to engage in reckless behavior that he believes is endangering even more lives. U.S. District Judge William Alsup blasted PG&E for “flim flamming” him about its newfound commitment to safety in previous hearings. He also raised worries that state power regulators haven’t done enough to prevent “a recalcitrant criminal” from causing more death and destruction as the risk of wildfires rises with the summer temperatures. “If there ever was a corporation that deserved to go to prison, it is PG&E,” Alsup said. After enduring Alsup’s scorn, PG&E cleared a key hurdle to end its nearly year-and-half bankruptcy with the PUC’s approval of a complex plan resolving more than $50 billion in claimed losses after the company was blamed for igniting a series of catastrophic wildfires in 2017 and 2018. The Northern California fires killed more than 100 people and destroyed more than 27,000 homes and other buildings…

Phys.org, May 28, 2020: Global environmental changes leading to shorter, younger trees

Ongoing environmental changes are transforming forests worldwide, resulting in shorter and younger trees with broad impacts on global ecosystems, scientists say. In a global study published in the May 29 issue of the journal Science, researchers led by the U.S. Department of Energy’s Pacific Northwest National Laboratory found that rising temperatures and carbon dioxide have been altering the world’s forests through increased stress and carbon dioxide fertilization and through increasing the frequency and severity of disturbances such as wildfire, drought, wind damage and other natural enemies. Combined with forest harvest, the Earth has witnessed a dramatic decrease in the age and stature of forests. “This trend is likely to continue with climate warming,” said Nate McDowell, a PNNL Earth scientist and the study’s lead author. “A future planet with fewer large, old forests will be very different than what we have grown accustomed to. Older forests often host much higher biodiversity than young forests and they store more carbon than young forests.” Carbon storage and rich biodiversity are both keys to mitigate climate change. The study concluded, “Pervasive shifts in forest dynamics in a changing world,” determined that forests have already been altered by humans and will mostly likely continue to be altered in the foreseeable future, resulting in a continued reduction of old-growth forests globally…

Sacramento, California, Bee, May 28, 2020: Contractor electrocuted while working on trees in Sacramento, fire officials say

A contractor for a landscaping company was electrocuted by a power line Thursday while working on trees in Sacramento’s Land Park neighborhood, according to fire authorities. Fire and utility crews responded around 10:45 a.m. to the 1300 block of Marian Way for reports of a tree fire, according to a tweet by the Sacramento Fire Department. There was no fire upon arrival, but a man, in approximately his mid 40s, was found in a tree about 50 feet off the ground with apparent injuries caused by a nearby power line, Fire Department spokesman Capt. Keith Wade said. The injuries appear to be caused by high-powered electricity, and the man was unresponsive, Wade said. Wade said the man was pronounced dead at the scene…

San Francisco, California, Chronicle, May 27, 2020: Another tree limb injures people at SF’s Washington Square, raising questions about maintenance

The tree that shed a limb that injured five people at Washington Square Park Tuesday was a mature sycamore that had received a “good” bill of health following its last inspection in June 2017, officials with San Francisco’s Recreation and Park Department said Wednesday. None of the five people sustained serious injuries, although one, a juvenile, was taken to the hospital as a precaution, evaluated and released. But the episode has raised the memory of another, tragic accident at Washington Square four years earlier, when Emma Zhou was paralyzed from the waist down after she was struck on the head by a 100-pound branch that cracked off a pine tree while she was watching her two young children in the park’s playground. Two years later, the city paid $14.5 million to settle legal claims with Zhou…

New York City, WNBC-TV, May 27, 2020: 50-Foot Tree Falls on 4 People in Riverside Park

A massive, 50-foot tree fell onto four people who were enjoying a warm Wednesday out by the Hudson, sending at least three of them to the hospital. Witnesses described seeing the tree in Riverside Park falling in slow-motion before making a thunderous noise when it made contact with the ground near 92nd Street around 6 p.m. “It sounded like a gunshot. It was very scary,” a witness told NBC New York. One woman who was sitting on a bench was pinned right in between two large branches but the tree missed her by inches, another witness said.”I spoke to her and I said, ‘this is the luckiest day of your life,'” said the witness. After paramedics arrived at the scene, they were seen putting at least two patients on stretchers before transporting them to St. Lukes Hospital. Another woman was able to walk as she was treated for her injuries. The extent of their injuries is unclear. What caused the tree to fall is also unknown. The unfortunate incident was reminiscent of a similar scene in Central Park that occurred three years ago. A 75-foot oak tree there fell on a woman who was with her three young children. Witnesses also rushed to the scene then to help her out…

Oakland, California, Eastbay Times, May 27, 2020: Lafayette grudgingly allows PG&E to cut down 141 trees

The Lafayette City Council reluctantly agreed to grant a permit for a PG&E plan to remove 141 trees along two well-traveled roads — because the city has no legal authority to regulate the utility’s project. During the Tuesday remote meeting, city officials — and residents who submitted email letters criticizing PG&E — pointed out several concerns about the plan to uproot trees, many of them oak trees, along St. Mary’s and Moraga roads. “It really comes down to PG&E,” Mayor Mike Anderson said. “It’s their responsibility, and their reputation and credibility on the line that requires them to do a good job of informing the public.” Pacific Gas & Electric will begin a gas pipeline project in the area June 1 with the road closures, and the electric lines and tree removal begins June 14 with a different crew. The projects will be going on from 7 a.m. to 6 p.m. on weekdays through Aug. 14. PG&E utility will host a community webinar on the pipeline and tree-removal projects from 5 to 6 p.m. Thursday at https://primetime.bluejeans.com/a2m/live-event/adpsfgcv. PG&E said it needs to remove the trees, clear branches and trim vegetation because Lafayette is located in one of the East Bay’s high-risk wildfire zones. The utility is also combining the tree removal with a separate project to replace part of a gas pipeline along St. Mary’s Road to increase capacity. The utility was given a permit for that project earlier…

BBC, May 27, 2020: The tree that changed the world map

Unfurling in a carpet of green where the Andes and Amazon basin meet in south-western Peru, Manú National Park is one of the most biodiverse corners of the planet: a lush, 1.5-million hectare Unesco-inscribed nature reserve wrapped in mist, covered in a chaos of vines and largely untouched by humans. But if you hack your way through the rainforest’s dense jungle, cross its rushing rivers and avoid the jaguars and pumas, you may see one of the few remaining specimens of the endangered cinchona officinalis tree. To the untrained eye, the thin, 15m-tall tree may blend into the thicketed maze. But the flowering plant, which is native to the Andean foothills, has inspired many myths and shaped human history for centuries. “This may not be a well-known tree,” said Nataly Canales, who grew up in the Peruvian Amazonian region of Madre de Dios. “Yet, a compound extracted from this plant has saved millions of lives in human history.” Today, Canales is a biologist at the National Museum of Denmark who is tracing the genetic history of cinchona. As she explained, it was the bark of this rare tree that gave the world quinine, the world’s first anti-malarial drug. And while the discovery of quinine was welcomed by the world with both excitement and suspicion hundreds of years ago, in recent weeks, this tree’s medical derivatives have been at the centre of another heated global debate. Synthetic versions of quinine – such as chloroquine and hydroxychloroquine – have been touted and largely disputed as possible..

San Francisco, California, KPIX-TV, May 26, 2020: 2-Year-Old Hospitalized, 4 Others Injured After Tree Limb Falls In San Francisco’s Washington Square Park

San Francisco police and fire units responded Tuesday evening after a large tree limb fell in North Beach’s Washington Square Park, causing minor injuries to five people. San Francisco police confirmed that a large tree limb fell in the park and that branches from the limb struck a group of people. The good news was that the injuries appeared to be minor, police said. Police later said that one juvenile were transported to the hospital as a precautionary measures and four other people were treated and released at the scene for non-life threatening injuries. A section of the park was cordoned off by police tape where the limb came down. Emergency responders were seen with a stretcher at the scene. A witness who was shaken up by the incident said “it was a big explosion” that sent debris and splinters flying. “Everybody just ran over and picked up the tree branch and asked if there was anybody underneath,” the woman told KPIX 5…

Nashville, Tennessee, WKRN-TV, May 26, 2020: Antioch man accused of shooting at neighbors for being on his lawn

An Antioch man told his neighbors he was “going to kill them for being illegal,” then fired gunshots in their direction as they ran for cover, according to a police report. Metro officers responded Sunday evening to a report of gunshots fired at a duplex on Richards Road off Una Antioch Pike. An arrest affidavit states Felix Hernandez, who had been staying at the duplex, returned home to find his neighbors standing in the grass. The paperwork alleges the 40-year-old yelled at the neighbors to get off the lawn, then walked away and returned a short time later with a gun pointed at them. After stating he was going to kill them, police said Hernandez fired two gunshots. While the neighbors were not hit, officers revealed they were injured while running for cover. Both victims were transported to TriStar Southern Hills Medical Center for treatment of undisclosed injuries. Hernandez was arrested and booked into the Metro jail Tuesday morning on two counts of aggravated assault with a deadly weapon…

Cleveland, Ohio, WOIO-TV, May 26, 2020: ODOT addresses perennial problem of dead trees along the Shoreway in Cleveland

Crews are once again removing dead trees and planting new trees along the Shoreway in Cleveland. 19 News has been reporting on the story extensively, dating back to 2017, when the trees were first planted as part of the Lakefront West project, transitioning the Shoreway into a Boulevard. In 2018, one year after the initial planting, many of the trees died. One year later, in 2019, the new trees were also dead. “In mid-May work started in the median to remove dead trees, improve tree planting conditions, plant 51 condition-tolerant trees, plant 100 trees outside of the median, and ornamental grasses that are more suitable for the environmental conditions present,” said ODOT spokesperson Amanda McFarland. Davey Tree has been hired as a consultant to oversee the planting of the trees. Soil and root samples were taken to better understand why the trees weren’t growing. “Conditions in certain areas along the Shoreway weren’t conducive to trees and landscaping,” said MacFarland…

Miami, Florida, Herald, May 26, 2020: Cherry trees slammed by virus in Oregon, Washington this year. Is the harvest ruined?

If you stop at a fruit stand in Washington or Oregon this year, you might notice fewer cherries than normal, and the ones you do find may not be as sweet. Why? A virus that has commonly plagued cherry harvests in California and Canada is wreaking havoc on the Northwest’s cherry trees, forcing growers to chop down infected trees, Oregon Public Broadcasting reported. “Little cherry disease” hasn’t reared its ugly head in Washington since the 1950s, when acres of trees were cleared out in orchards around the state, according to Washington State University. The virus makes cherries smaller and more bitter because it reduces the sugar content of the fruit, WSU says. Since the disease can spread like wildfire from tree to tree in an orchard, trees that become infected with the disease have to be chopped down, according to the Associated Press. Symptoms vary between the types of cherry trees; Lambert and Bing, which are highly susceptible to the virus, look smaller with lighter colors, while Van and Sam might reach normal size, but the flavor is still affected, WSU says. “They’re small and pale, but they’re either bland or bitter,” Tianna DuPoint of WSU Extension in Wenatchee, Washington, told Oregon Public Broadcasting. “So they won’t hurt you if you eat them, but they’re not marketable…

Charleston, South Carolina, Post & Courier, May 23, 2020: Editorial: To end controversial Charleston tree trimming, get at the problem’s root

There are few news tips as frequent, as emotional and, sadly, as predictable as a neighborhood upset over work to trim trees from power lines. So it’s hardly surprising that after Dominion Energy’s contractors geared up to work south of Broad Street in downtown Charleston, there was a fresh backlash from residents. Befitting the large, influential neighborhood, residents formed a group called “Stop Dominion” and asked City Hall to rewrite its recent agreement with Dominion to minimize trimming and ensure it’s done in a more sensitive way. Protecting our trees and the beauty they add to the Lowcountry is important. But those who want to push back at the tree trimming status quo should aim higher than the city’s oversight of tree trimming. They should set their sights on the arm of state government that regulates utilities as well as on the city and utility officials who ultimately work together to decide how many power lines are placed underground. Simply put, city leaders feel there are limits on how far they can go in regulating the cutting. Yes, the city did strike an agreement with Dominion in which the city receives notice of tree trimming work on grand trees, but that work still is subject to trimming standards the utility feels it needs to minimize the chance its lines will be damaged by a downed tree limb during a major storm. “If we were to impose standards, they (Dominion officials) would challenge,” Charleston attorney Chip McQueeney says. “Ultimately, what a judge is going to hear is tree protection versus electricity protection, and we’re going to lose that every time…”

Phys.org, May 25, 2020, Scientists find genes to save ash trees from deadly beetle

An international team of scientists have identified candidate resistance genes that could protect ash trees from the Emerald Ash Borer (EAB), a deadly pest that is expected to kill billions of trees worldwide. In the new study, published today in Nature Ecology & Evolution, researchers from Queen Mary University of London and the Royal Botanic Gardens, Kew, sequenced the genomes of 22 species of ash tree (Fraxinus) from around the world and used this information to analyze how the different species are related to each other. Meanwhile, collaborators from the United States Department of Agriculture Forest Service in Ohio tested resistance of over 20 ash tree species to EAB by hatching eggs attached to the bark of trees, and following the fate of the beetle larvae. Resistant ash trees generally killed the larvae when they burrowed into their stems, but susceptible ones did not. The research team observed that several of the resistant species were more closely related to susceptible species than to other resistant species. This meant the UK-based genome scientists were able to find resistance genes, by looking for places within the DNA where the resistant species were similar, but showed differences from their susceptible relatives…

Salem, Oregon, Statesman Journal, May 22, 2020: Valley of the Giants, saved by Salem barber, features Oregon’s largest and oldest trees

There comes a moment, during the drive from Salem to the Valley of the Giants trailhead, when even the most mature adults transform into 6-year-old children. Are we there yet? No, seriously. Are. We. There. Yet? Although just 33 miles from Salem as the crow flies, the route to this hidden grove requires navigating a labyrinth of rough and unmarked logging roads deep into the Coast Range. Time seems to melt away on winding, car-sick-inducing curves that pass the ghost town of Valsetz and follow the Siletz River on a drive that totals about two hours and 15 minutes. But then you arrive. All the journey’s frustration vanishes into the breeze on a 1.6 mile trail below titanic Douglas firs and hemlocks twisting into the sky like gothic pillars, standing 250 feet above an emerald forest showcasing some of the largest and oldest trees in Oregon. In a landscape defined by logging, the Valley of the Giants is a 51-acre island of old-growth protected by the Bureau of Land Management as an Outstanding Natural Area. “It’s like a pocket of Coast Range forest that time forgot,” said Trish Hogervorst, an officer for the BLM’s Salem District. “There’s a long and bumpy ride to get there, but people really love it. It’s a real hidden jewel…”

New Orleans, Louisiana, Times Picayune, May 21, 2020: Cold damage in queen palms doesn’t show up right away; add mulch in the shade under large oak trees

Q: There is an area on the trunk of my queen palm that has me concerned. The outer layer of bark has peeled away, and it looks like the trunk is rotten in that spot. The top of the palm looks fine, and it has been sending out new fronds. But the area looks terrible, and I was wondering if there was something I should do to help the palm. — Cynthia Simms
A: The queen palm (Syagrus romanzoffiana) is a graceful, fast-growing and popular palm for New Orleans landscapes. Unfortunately, it is also the least cold-tolerant of the commonly planted palms. Queen palms can be badly damaged or killed by temperatures of 20 degrees or lower. Temperatures reached those lows back in February 2018. The fronds (leaves) of all the queen palms turned brown after the freeze. Some of them sprouted out in the spring, but many were killed. Of those queen palms that survived and recovered, some sustained cold damage to the trunks. This damage was not immediately apparent, however. As time goes by, you may see patches of the outer trunk peel away revealing decaying tissue, just as you describe on your palm. There is nothing you can or should do about this old cold damage. The palm may live for years, and you do not have to consider removal as long as the foliage of the palms stays green and healthy. Monitor the decayed area. If decay continues to eat into the trunk, it can eventually weaken the trunk to the point it may break. If the decay becomes extensive, have the tree evaluated by a licensed arborist and decide if removal is necessary…

Sacramento, California, Sacramento Magazine, May 21, 2020: New Life for Old Trees

The Sacramento Tree Foundation has come up with a novel way to manage wood waste from the urban forest. Through a program called Urban Wood Rescue, dead trees that normally would be chipped into mulch or sent to a landfill to decompose are turned into slabs of quality kiln-dried wood prized by artisans and do-it-yourselfers. “Trees inevitably die; that’s just a fact of the urban forest or any forest,” says Stephanie Robinson, communications and engagement manager for the organization. “But that really gorgeous, useable wood has a lot of environmental benefits if we retain it.” That’s because living trees capture carbon in their wood. “When we leave that wood in whole form, it locks down the carbon as long as that wood remains in whole form. If we chip it or burn it or let it decompose in the landfill, eventually all of that carbon is released back into the atmosphere,” Robinson explains. A grant from Cal Fire enabled the foundation to launch the wood rescue program. It all starts when a tree is removed and the donated log is delivered to the Urban Wood Rescue lumberyard, where it’s milled and dried in a vacuum kiln. “Once slabs are dry, we list them on our website and then sell them to the public. All of those proceeds go back to the tree foundation to further advance tree plantings and our programs,” says Robinson…

Dayton, Ohio, Dayton Daily News, May 22, 2020: Local garden centers see ‘record-breaking’ sales amid pandemic

Food, toilet paper and cleaning supplies aren’t the only items people have been craving during Ohio’s stay-at-home period. Local garden centers are reporting “record-breaking” sales during the coronavirus pandemic. The North Dayton Garden Center, at 1309 Brandt Pike, is having a “banner year,” said owner and co-founder Pete Kossoudji. “I’ve been hearing from customers who are enlarging their garden plots, some are even doubling them,” Kossoudji said. “Which makes me happy that they’re buying more, I’m grateful, but I am also fearful for my customers, for my friends and for my family. This is a scary time.” Marybeth Taggart, advertising manager for Grandma’s Gardens near Waynesville, said the garden center had a record-setting Mother’s Day sale. The average amount spent per purchase has increased this spring, too, according to Taggart. “With so many stuck at home, people are upgrading their gardens and landscapes,” Taggart said. “Growers are actually having a tough time keeping up with the demand…”

Saskatoon, Saskatchewan, CBC, May 21, 2020: Saskatoon residents outraged after CP Rail cuts down 2,000 trees

Saskatoon residents say they’re shocked CP Rail recently cut down an estimated 2,000 trees in their neighbourhood. They say CP owes them an explanation, but refused to talk to them before, during or after the operation. “This looks terrible. CP is being a bad neighbour,” said Melanie Vanderlinde, vice-president of the North Park Richmond Heights Community Association. CP recently removed nearly every tree from an embankment along 33rd Street, the residents say. Beginning near the South Saskatchewan Riverbank, the seven-metre-wide cut runs west for roughly one kilometre. A member of SOS Trees Coalition — a Saskatoon group focused on urban forest preservation — conducted a rough a count of the stumps. It estimates between 2,000 and 2,500 trees, most of them apparently healthy Manitoba maples, were felled. An estimated 2,000 trees to the left of this bike path along Saskatoon’s 33rd Street have now been removed by CP Rail, angering residents and tree advocates. (Submitted by Richard Kerbes) The affected embankment runs between the CP railway tracks and a bike path. The embankment is CP property, and the City of Saskatoon has no power to stop tree removal on private property, an official confirmed. CP officials declined a CBC News interview request, but emailed a statement saying CP conducts a “comprehensive annual vegetation management program across its rail network” and that safety “is integral to CP’s long-term success and the foundation of everything we do…

Louisville, Kentucky, Courier-Journal, May 21, 2020: Oldham County man dies after tree falls on him, police say

An Oldham County man was killed Wednesday afternoon after a tree fell on him while he was working with a crew to remove it from a property, police say. Benjamin Oliver, 33, of Crestwood, was pronounced dead just after 2:30 p.m. Wednesday at a property in the 6600 block of Kentucky Highway 329, where he had been struck by a falling tree, according to an Oldham County Police news release. Police learned that the homeowner had hired Crestwood Cutters to remove a large tree from the property. Oliver, who was employed by the tree removal service, had cut a wedge into the front of the tree while preparing to remove its base, according to his coworkers. As Oliver prepared to move to the rear of the tree to finish cutting it, the tree snapped and fell, trapping Oliver beneath it, according to police…

 

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Case of the Day – Thursday, May 28, 2020

TOO CUTE BY HALF

Years ago, I often crossed swords with a crusty old lawyer who favored flannel shirts and corduroys, as well as awful-smelling stogies that fogged up a deposition room like a sunny day in Beijing. When I would explore the state of any pending litigation with him, he always complained that my client needed to “get the money flowing,” by which he meant start the settlement talks.

A lot of personal injury lawyers live and die by that mantra, sometimes litigating a dog of a case because they are confident that before they have to face a summary judgment motion or, God forbid, an actual trial, the defendant will open its checkbook and pay their clients to go away.

That’s what happened in today’s case. To be sure, the deaths of two young men when a tree fell on their car was a tragedy. But somewhere along the way, the families of the decedents lost their way, and decided – when an expert told them frankly that they had no case – that they could fake it, shucking and jiving until the defendant’s insurance company paid up.

Sadly for the plaintiffs in today’s case, the defendant – a nonagenarian – passed away before trial, leaving a tough-minded executor who wasn’t going play footsie with some oily out-of-town lawyers. Also passing away before trial was the defendant’s insurance carrier: the company went bankrupt, so the liability coverage that might have otherwise paid a settlement went away, too. The plaintiffs, perhaps because the estate had money, perhaps because – like fighters in a 15th-round clinch – they were too exhausted to do anything else, played fast and loose with the discovery rules, not answering interrogatories, delaying trial in hopes of a settlement, even hiding the first expert’s report.  But, as sometimes (but not often enough) happens from time to time, the truth was found out.

The result was a vindication for a blameless old lady (who, although dead, nevertheless faced post-mortem indignity at the plaintiffs’ hands) and a well-deserved spanking for some lawyers who were about too cute by half.

Wade v. Howard, 232 Ga.App. 55 (Ga.App. 1998). Chris Wade and Ed Barnsley were driving along Briarcliff Road in unincorporated DeKalb County immediately after a thunderstorm. As they passed Grace Nesbitt’s 8-acre tract of property, they were killed when their car was struck by a large tree that fell across the road. At the time, Grace was 90 years old and very ill, and had not lived on her property for three years before the accident. The families of the deceased young men sued Grace for wrongful death.

During the 1980s, Grace had had trees removed from her property from time to time. In October 1987, she hired a man to remove two trees that were dying because they had been struck by lightning. At the same time, she asked a friend who was caring for her and seeing to her affairs to inspect her property for any other dead or diseased trees, He did so and found no other trees that needed cutting. This caretaker also testified that he looked at the trees along the roadway “many times” on later occasions as he walked Grace’s property at her request.

As for the tree that fell, he saw nothing about the tree that appeared unusual. The base of the tree was over 20 feet from the roadway, behind a fence and across a gully in a heavily overgrown area. Before it fell, the tree’s base was covered with heavy overgrowth and vines. The tree grew towards the sun over the roadway like other trees along the road. The caretaker observed the fallen tree while it was being cut up and saw no dead limbs on it; it was “just healthy on the outside, and this is what baffled everybody, you know.” He said that nothing visible on the tree indicated it was dangerous.

No one ever notified Grace or the caretaker of any problem with the particular tree.

The plaintiff families initially hired an expert who inspected the stump of the fallen tree within six months of the accident. He said the tree was severely decayed and hollow at the base, but that “this internal defect would not have been readily apparent [to] an untrained casual observer.” While the tree leaned over the road, predisposing it to fall in that direction, the expert explained it leaned and had more branches on one side because it was an “edge tree” seeking sunlight over the roadway, doing what all edge trees do. He stated that all edge trees behave like this. The plaintiffs didn’t much like his opinion, and fired him along with the lawyer who had hired him. Three years later, they hired a second expert, who filed an opinion based on looking at pictures of the accident scene. He never authenticated the photos in his report, however, and the trial court therefore rejected his opinion. Plaintiffs also obtained an affidavit of a neighbor who testified she believed the tree was dangerous because it leaned over Briarcliff Road. She admitted she had never told Grace or the caretaker of her opinion.

Grace died before trial, and her estate was substituted as a defendant. The trial court granted summary judgment in favor of Grace’s estate. The plaintiffs appealed.

Held: Grace was not liable for the fallen tree. The Court said that Georgia law governing a landowner’s responsibility for trees is well established. The prevailing rule distinguishes between rural landowners and urban landowners (who iare held to a standard of reasonable care in inspecting trees to ensure safety). Rural landowners are liable only where one of their trees has “patent visible decay and not the normal usual latent micro-non-visible accumulative decay.” In other words, rural landowners have no duty to consistently and constantly check all trees for non-visible rot, as the manifestation of decay “must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.” Just as the owner of a tree has no duty to check it constantly for non-visible rot, a city has no duty to check limbs overhanging a public road for non-visible rot. The Court held that while Grace’s land was unimproved, she did not live on it, and she was old and infirm, it nonetheless would assume for the sake of the case that it was urban land, because it was located in the Atlanta metropolitan area. Even under the urban landowner standard, however, the Court ruled that the plaintiff families had not shown that there was any question of fact that Grace had breached her duty to inspect. The Court said the Plaintiffs

failed to demonstrate patent visible decay in the tree before its fall. Their own expert witness testified that the decay would have been invisible to a layperson on inspection of the tree. Moreover, plaintiffs have not demonstrated that the decay would have been visible, apparent, or patent before the fall of the tree because of its inaccessible location and the heavy undergrowth and vines surrounding the tree’s base.

The Court of Appeals was not very happy with Plaintiffs. It noted they had fired their expert and first lawyer when they received an opinion that did not match their belief that they should make some money in this case. They “shopped” the case through a number of law firms before they found an attorney from out of town, who then proceeded to hide the first expert’s report from the defense until it was accidentally revealed. The plaintiffs did not respond to discovery requests, filed an expert’s opinion without authenticating photos, and sued everyone – Grace, the County, county employees, and even automobile insurers – in a “shotgun” approach that forced a number of blameless defendants to spend money defending themselves. Plaintiffs filed the day before the statute of limitations expired, and used every procedural trick in the book to delay the day of reckoning.

“Throughout the lengthy course of this action,” the Court complained, “plaintiffs have avoided stating a legal basis for their claims or the supporting facts until faced with an imminent ruling against them. While plaintiffs as laypersons may not have been informed of the controlling law or the substantial delay that occurred as a result of their counsel’s conduct, it is clear that counsel was well aware from the inception of this litigation that these claims have no merit.” The Court thus socked the plaintiffs’ lawyer with a $1,000 fine.

– Tom Root

TNLBGray

Case of the Day – Wednesday, May 27, 2020

CATCH A FALLIING TREE

Regular readers of our news feature (which follows the Case of the Day every day), knows that trees fall on people all the time. Adults get hurt, children get hurt, sometimes they get killed.

Each one is a tragedy, but the tragedies often go unnoticed. The news media, however, cannot fail to observe what happened when one or two of their own are involved. A television anchor and a photojournalist for a broadcast news station in South Carolina died a few years ago after a tree fell and crushed their sport utility vehicle while they were out covering severe weather . The anchor, Mike McCormick, and the photojournalist, Aaron Smeltzer, worked for WYFF News in Greenville, S.C., and were about 30 miles north of there in North Carolina when the tree struck their SUV as they drove along Highway 176.

The story was big, even being reported on network news and in The New York Times. We were a little miffed – when a 17-year old girl on a hike dies when a tree falls on her, the Times doesn’t pick up the story. When a 5-year boy died playing on a hammock when the tree it was anchored to fall on him, NPR didn’t breathlessly lead with it in the next day’s “All Things Considered.” Even when something as bizarre as a tree falling on a wedding party occurs, killing the mother of the bride, you don’t mention of it on the ABC evening news. But lose a TV anchor, and World War II doesn’t get as much ink or air time.

We don’t depreciate the loss of the two TV news people, but we do wish when ordinary folks are struck down by falling trees, the 4th Estate was as diligent in reporting it.

But here’s how the news ties into today’s case. What about that tree that crushed the reporters’ SUV? No doubt it was in the highway right-of-way (which is generally much wider than the paved road and shoulder). On the side street we live on, the R-O-W extends 30 feet from the centerline of the road, which brings to the edge of our tomato patch. As with an easement, we cannot do anything inside the right-of-way inconsistent with the city’s rights, but are we at all responsible for the trees standing there.

That was the question that woman who ran into a downed tree asked the Oregon Supreme Court. Back in the day, the landowner had no duty to people on the highway. But then along came the gasoline-powered car, and then another one, and another one, and pretty soon, society had changed. Had the duty owed the motorist by the property owner changed as well?

Taylor v. Olsen, 282 Ore. 343; 578 P.2d 779 (S.Ct. Ore, 1978). Bonnie Bell Taylor was driving on a Clackamas County road one dark and windy January evening when she ran into a tree which shortly before had splintered and fallen across the road. She sued Clackamas County, the owner of the right-of-way on which the tree was located, and Marion Olsen, the adjoining landowner who in possession of the right-of-way. The County was dismissed early on, but the case Bonnie had against Marion went to trial.

Bonnie argued Marion should have recognized the danger that the tree might fall onto the road. Marion maintained he had no duty of reasonable care with respect to Bonnie Bell where the fallen tree was concerned. The trial court directed a verdict for Mr. Olsen. Bonnie appealed.

Held: Marion had not violated any duty to Bonnie Bell.

Generally, the Oregon Supreme Court said, a possessor’s duty of reasonable care toward the traveling public will arise from actual knowledge of the dangerous condition of the tree. The more difficult question is whether the possessor will be held liable if he or she should have known of the danger, and specifically, under what conditions he or she has a duty to inspect his trees to discover a latent danger.

In assessing conditions under which the laws of other states have denied such a duty, the Oregon justices observed, those courts have based their conclusion on the impracticality or economic cost of obligatory inspection in relation to the probability of harm from falling trees or limbs. Half a century ago, the Supreme Court of Minnesota rejected such an affirmative duty in these terms:

Many of our public highways pass through timbered country, and upon the prairies owners have been encouraged to plant trees. It will add a very heavy burden on the servient fee owner if he must exercise the supervision and care for the dominant easement in this respect. If such a duty is laid upon him he becomes liable, in case of a failure, to respond in damages that may sweep away the value of his whole farm by some unfortunate accident like the present. Severe wind storms are not rare in this state, and a jury influenced by sympathy for the injured party are [sic] so prone to find the accident the result of negligence upon the slightest pretext.

In the 1930s, the view began to shift due to increasing automotive traffic and urbanization, with courts beginning to find liability when the latent decay of the falling tree was known or by the exercise of ordinary care could have been known by the landowner, where the tree stood in urban or suburban areas. However, nothing was said about trees along a rural road, and as late as the 1965 Restatement of Torts 2d, the duty to “exercise reasonable care” was assigned to the possessor in an “urban area” but rendered “no opinion” to “rural” areas.

The Court held that the question of a landowner’s or possessor’s attention to the condition of his roadside trees under a general standard of “reasonable care to prevent an unreasonable risk of harm” should be decided as a question of fact upon the circumstances of the individual case. The extent of his or her responsibility either to inspect the trees or only to act on actual knowledge of potential danger cannot be defined simply by categorizing land as “urban” or “rural.” “Surely,” the Court said, “it is not a matter of zoning or of city boundaries but of actual conditions. No doubt a factfinder will expect more attentiveness of the owner of an ornamental tree on a busy than of the United States Forest Service… but the great variety of intermediate patterns of land use, road use, traffic density, and preservation of natural stands of trees in urban and suburban settings prevents a simple ‘urban-rural’ classification.”

Even in a rural setting, the Court observed, it can make a difference whether the defendant or others for whom he is responsible are engaged in activities that involve the trees at the location in question or that alter the natural conditions at this location. When the owners of large tracts of rural land simply hold the land as landowners without engaging in such activities, the “practical difficulty of continuously examining each tree in the untold number of acres of forests” or in “sprawling tracts of woodland adjacent to or through which a road has been built can be so potentially onerous as to make property ownership an untenable burden. This would be particularly true for an absentee landowner.”

In this case, the road in question was a two-lane blacktop highway serving a number of communities in Clackamas County used by an average of 790 vehicles a day. A fallen tree thus might encounter a vehicle within an average of about two minutes, depending on the time of day. Marion purchased the land adjoining the road in 1973 for logging purposes, and during the five or six weeks before the accident he had logged about half the timber on his land. This included the trees next to the tree that eventually fell onto the road. Under these circumstances, the Court said, it would for the jury to decide whether Marion had taken reasonable care to inform himself of the condition of this tree, provided the plaintiff first provided evidence that an inspection would have disclosed its hazardous condition. Here, the evidence showed the tree broke and fell onto the road, and that the center of the tree at the point of the break was decayed. However, the decay did not extend through the bark. Only by chopping or boring into the trunk of the tree, the Court said, would there have been a substantial chance of discovering the decay.

Marion did not observe signs of rot, although he did not drill or chop into the tree. He did notice that the tree swayed in the wind. There was no evidence to suggest that chopping or drilling into the trunk would have been a normal or expected way to examine a standing tree in the absence of external indications that it might not be structurally sound.

The imposition of a duty to chop into a tree seeking hidden rot, the Court said, in the setting of this case requires more than the general observation that the tree sways in the wind. It requires some evidence either that the defendant should have been on notice of possible decay in this tree, or that cutting through the bark to the trunk is a common and ordinary method of examining trees generally. In the absence of such evidence, it was not error to direct a verdict for Marion.

– Thomas L. Root

TNLBGray

Case of the Day – Tuesday, May 26, 2020

SIC WHAT?

This is a logo for some financial planner, but it would work well for an arborist.  Just so it’s not “Sic utere tuo ut alienum non lædas.”

Today, we consider the final issues raised by our Iowa reader (see last Friday), who wrote complaining that her neighbor planned to bulldoze a driveway along a steep grade right next to his land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away his land.

We identified four questions in our reader’s inquiry. We have addressed the questions about her neighbor’s damage to trees that might be exactly on the boundary line, as well as those located on her land but with roots crossing the boundary line. Today we address the final question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well. Could our reader get an injunction to stop the harm before it starts? It’s a cliffhanger.

No fear, lovers of legal drama, because Iowa (as well as most states) has accepted in one form or another the doctrine of sic utere tuo ut alienum non lædas, meaning “so use your own property as not to injure that of your neighbor.” The doctrine has been held to have limits that fall well short of your basic trespass to real estate — in today’s case, a landowner tried unsuccessfully to stop the property owner above him from sending additional drainage down a creek, eroding his banks. But the Court acknowledged that sic utere tuo ut alienum non lædas did exist, and was illustrated in the generally-accepted right of lateral support.

Bad things can happen when lateral support is lost.

Bad things can happen when lateral support is lost.

And that right may be what rides to the rescue of our Iowa reader. The right to lateral and subjacent support means that a property owner has the obligation not to remove soil or change grades in such a way as to take away lateral support to the soils of her neighbor. The Court said it isn’t a silver bullet — it applies only to activities along the property boundaries – but that may be enough for our reader.

Bulldozing an already steep grade, and removing root systems — which in all likelihood play a substantial role in stabilizing the slope — may well violate the other landowner’s duty to provide lateral and subjacent support.

So what to do? As we saw several days ago, the Iowa courts have taken a rational view of how much harm is irreparable — and showing irreparable harm is essential to winning an injunction — making get a court order stopping the bulldozing before it starts is entirely possible. Our reader’s local attorney probably will want to engage an expert who can examine the situation and provide a detailed, technical affidavit predicting the extent and permanence of the harm which could result from bulldozing the already significant slope.

Our reader mentioned that she was also checking the various administrative agencies to be sure that the permit process was being followed. Often, a lot of potential harm can be headed off by arguing the case before agencies that — with stricter and more detailed requirements — can hobble ill-conceived projects before they take flight.

A word of caution: we’re throwing out ideas left and right, but we’re not anyone’s lawyers here. There is no substitute for local boots on the ground, an attorney from the area versed in land use law. We trust that our reader, perhaps armed with some good ideas, will refer the matter to her local lawyer.

Pohlman v Chicago, Milwaukee & St. Paul Railroad Co., 131 Iowa 89, 107 N.W. 1025, 6 L.R.A.N.S. 146 (Sup.Ct. Iowa 1906). The railroad had a track grade and bridge located near and above Pohlman’s property. Water traditionally drained off the Pohlman place through Poole Hollow, which went through a corner of the property. But the railroad decided to improve the flow of water around its grade by running a ditch of its own into Poole Hollow. The result was that more water flowed through the Hollow during rainstorms, and the flow was at a much more rapid rate. The fast-moving flow eroded Pohlman’s land, and he sued. In his action, he argued that the railroad company had damaged his real estate and violated the old doctrine of sic utere tuo ut alienum non lædas – which translates as “so use your own property as not to injure that of your neighbor.” The trial court granted a demurrer to the railroad, throwing the case for not stating a claim on which relief can be granted.

Pohlman appealed.

Held:  The case was properly dismissed. Superficially, the Court acknowledged, the decision was clear. Lower property was obligated accept the flow of water discharged by the higher property, meaning that the increased flow through Poole Hollow was not a condition for which a court would grant relief. But, the Court halfway complained, “if this were all, it would seem that the case must be at an end. But counsel for appellant go farther and invoke the maxim sic utere tuo ut alienum non lædas — “so use your own property as not to injure that of your neighbor,” and insist that the case, in view of the peculiar circumstances, is brought within the operation thereof.”

The principle is that no property has greater right than the other, and that each owner is obligated to use his or her property in such a way as not to injure the property of his or her neighbor. The Court acknowledge that there existed a right of lateral and subjacent support, and the theory being advanced by Pohlman was that “to all intents and purposes the situation presents a case of the removal by an adjoining proprietor of the lateral support to the soil of his neighbor.”

bulldoze151113The Court acknowledged that the right was a natural one, and was predicated upon necessity. “As the term itself implies, it has relation to the support which in a state of nature the soil of one owner receives at the boundary line from the soil of his neighbor.” But, warned the Court, the doctrine could not be extended to embrace cases of trespass generally. “It goes no further than to inveigh against an interference within the zone of the natural support afforded by the soil conditions at the boundary line.” This case had nothing to do with boundary line support. Instead, the essence of the complaint was that by the accelerated flow of the surface water more soil had been carried away from the general surface of Pohlman’s land than otherwise would have occurred.

The point of the case is that a right of lateral and subjacent support exists, and — as of 1906 — that was about as far as sic utere tuo ut alienum non lædas extended.

TNLBGray

Case of the Day – Friday, May 22, 2020

GETTING BULLDOZED

bulldoze161229Yesterday, we tackled the first of several inter-related questions raised by an Iowa reader. She wrote that a neighbor planned to bulldoze a driveway along a steep grade right next to her land. She feared that the bulldozing would destroy root systems of hertrees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away her land.

We identified four questions in our reader’s inquiry. We tackled the first question yesterday, about trees that might be exactly on the boundary line, and we concluded that Iowa law would not let her neighbor take steps that would destroy them (such as wiping out the root systems) without our reader’s OK.

But that answer begs the question of what will happen to trees which are growing entirely on our questioner’s land but extend their branches or root systems onto the neighbor’s place. (The third question — what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well — and the final question about whether our reader could get an injunction to stop the harm before it starts, will be addressed tomorrow.)

The short answer to today’s question is found in the century-old case of Harndon v. Stultz. That decision adopted what years later would be called the “Massachusetts Rule,” specifically that a landowner has no right to judicial help in stopping an encroaching tree from his or her neighbors, but he or she may trim its branches and roots back to the property line. Under the rule of Harndon, it would appear that the neighbor could bulldoze out the root systems which have grown onto his land without liability.

But we’re not entirely satisfied that this would be the answer. Remember first that the plaintiff in Harndon complained that the trees in question were damaging her land, the roots tying up the ground and the trees shading what otherwise would be cropland. The court didn’t have a lot of sympathy for her, but it did recognize that she was suffering because the tree was just doing what trees are doing.

The United States been moving inexorably toward the Hawaii Rule, which provides a landowner judicial relief where the trees are nuisances, and not merely being trees. Witness the Virginia decision of Fancher v. Fagella, in which the tree was causing substantial damage to the plaintiff’s home. The obverse of this coin is illustrated in the question posed here: what happens when the neighbor is suffering absolute no damage whatsoever from the trees in question? As our reader explained it, the neighbor merely wants to bulldoze a road on a steep slope along a very narrow piece of property. During the bulldozing, it’s likely that root systems will be severed and trees badly damaged or killed.

Our suggestion that there may be more to it than a century-old case suggests isn’t that far off. A California decision, Booksa v. Patel, already has held that a neighbor must act reasonably in exercising his or her self-help rights, and “reasonable” is expressed in terms of taking steps which are no greater than those needed to ameliorate the harm. And Professors Prosser and Keeton, in their seminal work The Law of Torts (5th ed. 1984) §57, say that a landowner has a privilege to make use of the land for his own benefit, and according to his own desires, which is an integral part of our whole system of private property; but it has been said many times that this privilege is qualified by a due regard for the interests of others who may be affected by it. The possessor’s right is therefore bounded by principles of reasonableness, so as to cause no unreasonable risks of harm to others in the vicinity.”

Remember, no one said our neighbor's roots are invasive.

Remember, no one said our neighbor’s roots are invasive.

In the case our reader has raised, it may well be that the time is ripe not to reverse Harndon v. Stultz, but rather to add to the body of law it represents by finding that a neighbor’s right of self-help is circumscribed by reasonableness. Under that standard, where a neighbor kills a tree by removing a root system, where the tree admittedly has caused no sensible harm to him, might be unreasonable.

It’s certainly something our reader’s Iowa attorney might want to consider.

Next Monday, we’re off for Memorial Day, but on Tuesday: What if the bulldozing causes landslides on our reader’s property?

Harndon v. Stultz, 124 Iowa 440, 100 N.W. 329 (S.Ct. Iowa, 1904). Harndon and her husband owned and farmed an 80-acre tract of land. Stultz had 160 acres just to the south of the Harndon farm. Many years before, the Harndons planted a willow hedge along the entire south line of the farm, and later, Stultz extended the hedge eastward. The Harndons claimed that Stultz had agreed with them to maintain the west half of the hedgeline and the Harnsons would maintain the east half. Some years later, the Harndons dug up the east half of the hedge, replacing it with a fence. Mrs. Harndon then demanded that Stultz do the same. Stultz refused, and she sued for an order finding the hedge to be a nuisance and requiring Stultz to cut it down. She argued that the willow had spread through the soil, and so much shade was cast by willows that it rendered a portion of the Harndons’ land unusable. As alternative, the Harndons asked that, if Stultz had no duty to remove the hedge, they be allowed to do so at their expense. The trial court dismissed the petition, and the Harndons appealed.

Tomorrow - Could our reader's neighbor cause a landslide?

Tuesday – Could our reader’s neighbor cause a landslide?

Held: The Court adopted what was essentially the Massachusetts rule years ahead of its time. Nothing in the law, the Court said, made it a defendant’s duty to cut down a hedge or tree simply because over a passage of time, the owner’s neighbor found the roots and the shade of the growing trees injured the productiveness of his land. The raising of trees, the Court held, is a legitimate use to which an owner may put his land. If the limbs of such trees overhang the land of a neighbor, he may cut them off at the line, and, if the roots penetrate the neighbor’s soil, he may dig them out, but that is the extent to which he may carry his objection.

The Court said that an adjoining property owner may cut off the overhanging branches of trees at the property line, and dig out the roots penetrating the soil on his land. However, that property owner is not entitled to compel the owner of the tree to cut it down, regardless of whether the care and maintenance was provided by the owner or by the adjoining property owner. On the other hand, the Court said, trees standing on the boundary line between lands of adjoining owners are the common property of both parties, which neither may destroy without the consent of the other. The Court upheld the trial court, but modified the decree to let the Harndons remove the hedge at their cost, based on Stultz’s statement at argument that she didn’t object to its removal.

– Tom Root

TNLBGray