Case of the Day – Friday, January 10, 2020


busek150915We read a lot of newspapers. Some are truly excellent. Some are pretty good. A few are so-so.

Then there’s the Norwalk, Ohio, Reflector, which we read for reasons too complex to explore here. Suffice it to say, if you have a parakeet, the Reflector is all the newspaper you’ll ever need. 

A few years ago, Reflector columnist Jim Busek complained about the city’s plan to axe 62 trees that are accused of wreaking havoc with sidewalks. Jim bemoaned the fact the City had removed a number of ash trees 10 years ago (which he admitted was a “smart ash policy”). Jim was pleading for the 62 targeted trees, publicly and plaintively asking Norwalk Safety Director Josh Snyder whether there wasn’t an alternative to cutting down these old trees. Surely, Jim hypothesized, these at-risk trees are so mature that if the offending roots were cut, no new ones would dare grow, and the sidewalks would thus remain in place. Right?

Maybe if we cut the trees' roots, but ask it real nicely, it won't grow any new ones ...

Maybe if we cut the trees’ roots, but ask them real nicely not to grow any new ones, our problems will be solved …

Sure thing, Jim. While Norwalk arborists are busy looking for the pixie dust that Jim figures will prevent new root growth, let’s consider the strange legal limbo in which property owners find themselves when tussling with municipalities over trees located on tree lawns.

It turns out that Norwalk – known as the Maple City – didn’t rid itself of all of its ash trees. A few still stand on city streets, and ash borers haven’t overlooked them. So who’s responsible for those dead trees? Ironically, we’ve seen the issue arise before, as cities – operating under tight budgets – lean on homeowners to pay for the removal of tree lawn trees. So exactly whose problem is it?

An interesting question… actually, two questions, and we’ll pick on Jim in order to answer them. Let’s say for example, that the dead ash on Jim Busek’s tree lawn falls on a motorist. Is Jim’s ash in a sling? And might the Maple City be liable as well?

So someone’s gotta do something about the tree. But who – Jim or the Mayor?

The infestation on this ash is pretty obvious.

The infestation on this ash is pretty obvious.

Let’s consider Jim’s liability. There’s no doubt that the tree lawn is Jim’s property, despite the fact it is subject to the City’s highway dedication. There’s a lot an owner can’t do with a tree lawn because of the City’s highway rights, but it’s still his or her property. Generally, the owner can plant and take down trees. And the fact that an owner has the right to add or remove trees suggests that he or she has a duty to as well.

And what is that duty? In Wertz v. Cooper, one of Cooper’s trees fell onto Wertz’s fence during a storm. When Wertz sued her, she countered that she had no idea the tree was diseased, and that the tree’s falling over was an act of God. The Court agreed. It held that in order for a landowner to have a duty, the evidence must establish that he or she had actual or constructive notice of a patent danger that the tree would fall.

There is an exception. Where the tree overhangs the street in an urban area, an owner may be held liable on negligence principles under certain circumstances for injuries or damages resulting from the tree or a limb falling onto the highway. Generally, an urban owner has a duty of reasonable care relative to his or her trees, including inspection to make sure that they are safe.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

So Jim may have a problem, beyond the fact that he’ll find no tree-root pixie dust at the nearby Home Depot. The duty to inspect isn’t an issue here. If Jim owns that dead ash tree, he already has notice that the tree’s dead. The bare branches in mid summer, the sloughing bark, and the borer tracks looking like spaghetti done in bas relief, is more than enough constructive notice anyone ever had. Whether the City does something about the dead tree or not, Jim would do well to hire an arborist to inspect the tree. If the tree should go for safety’s sake, Jim shouldn’t wait for the City to do it.

Would the same apply if tree roots damaged the sidewalk, making pedestrian passage dangerous? Absent any municipal code relieving property owners of liability for condition of the sidewalks, it would hardly be a stretch for an unfortunate passerby suing under the law of nuisance. Need an illustration? Look no further than Fancher v. Fagella.

Our next question: Would the Maple City be liable to remove the tree, independent of Jim’s obligation as a landowner?

Wertz v. Cooper, Case No. 06CA3077 (Ct.App. Scioto Co., Dec. 13, 2006), 2006 WL 3759831. Following heavy rains, a tree that sat on Cooper’s property tore loose from its roots, and leaned into Wertz’s fence and into a Shriner Colorado Blue Spruce tree that sat upon Wertz’s property. Wertz sued Cooper, complaining that Cooper failed to timely remove her tree. Wertz sought damages, including the cost of removing the fallen tree, the expenses to replace the damaged Blue Spruce, and other incidental damages.

Cooper argued that she had no knowledge of a defective condition of the tree, that she could not have been negligent in failing to maintain the tree, and that she could not be liable for the damage when an “act of God” caused the tree to uproot. The trial court agreed that there was no evidence that the tree was deteriorating, and that Cooper was not liable for an Act of God.

Wertz appealed.

If the dead tree falls n a car, watch the scramble to avoid liability begin ...

If the dead ash tree falls on a car, watch the scramble to avoid liability begin …

Held: Judgment for Cooper was upheld. A negligence action in Ohio requires a plaintiff to establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered injury. In order for a plaintiff to establish the duty element in a negligence action arising from a fallen tree, the evidence must establish that the landowner had actual or constructive notice of a patent danger that the tree would fall.

There is an exception to the general rule, however, concerning the duty of a property owner relating to growing trees with limbs overhanging a public street or highway. An owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property. In addition, there appears to have developed a distinction throughout the United States that there is a lesser standard of care with reference to rural, farm, timber, or little used land as opposed to strictly urban property. Generally, an urban owner has a duty of reasonable care relative to the tree, including inspection to make sure that it is safe. The duty placed upon the urban landowner, who has only a few trees, is not a heavy burden. This is in contrast to the rural landowner who may have a forest full of trees, which would impose a duty of immense proportions, and constitute an onerous burden on the owner.

Despite the heightened standard to be applied to an urban tree, Wertz had no evidence in this record to establish that Cooper had either actual or constructive notice of a defective condition of the tree. While Wertz advanced her belief that the tree was dead or dying, her allegation was conclusory. She presented no evidence to support her claim. What’s more, even if Wertz were right that she believed that the tree was dead or dying hardly establishes that Cooper knew or should have known that the tree was dead or dying.

– Tom Root


Case of the Day – Thursday, January 9, 2020


This day and age, when so many people do the bare minimum needed to get by, it’s refreshing to read about a pair of go-getters like Bob and Ted. When the Weisslers built their dream home on the Finger Lakes in Palmer, Alaska, they arranged for electric coop Matanuska Electric Association for power. They signed off on an easement with MEA for a 4-foot wide easement, a matter of some importance to the Weisslers, who wanted the maintain their privacy by cutting as small a swath through the trees as possible.

A work order was drawn up for the electric installation, noting “R2-4, 80 ft,” which in MEA-speak meant a four foot right of way, 80 feet long. MEA dispatched Bob and Ted to clear the path on Weissler’s property. Ted admitted that they knew the clearing was to be four feet wide, 80 feet long, but the boys were energetic and looking for a chainsaw adventure. They cleared the stately pines from the road all the way to the northeast corner of the house and then, spying the meter box on the southeast corner of the building, decided to continue to clear to that corner as well. Ted knew the Weisslers wanted electrical service as soon as possible, and he and Bob figured they were exceeding expectations by enlarging the clearance, so as to get the lights turned on that much quicker.

Their enthusiasm was as unbridled as their chainsaws were sharp. Bob and Ted cut a swath that, instead of being four feet wide, was up to 21 feet wide. The cutting cleared about 1,200 square feet, some four times what the work order called for and the Weisslers wanted.

The Weisslers sued MEA for breach of contract and trespass, claiming treble damages for loss of timber under Alaska Statute 09.45.730. Punitive statutes mandating double or triple damages for wrongful cutting of timber are common in virtually all states, the thinking being that merely requiring a wrongdoer to pay the value of the tree was insufficient deterrence where the cutting was reckless or intentional.

There is always a tension in calculating damages when the trees cut were not for commercial timber. It’s easy where the stand of timber is kept for sale. The plaintiff does some timber cruising, and the stumpage value is set. The trial court then trebles it, and sometimes (depending on the state) dumps in attorneys’ fees, too. But when the loss is of trees that lack much commercial value but are of great value to the homeowner – say, like the Weisslers did, the homeowner loves the privacy a stand of trees affords. Here, the court chose, as the proper measure of damages, the cost of restoring the property to the approximate condition that existed before the cutting. The judge awarded compensatory damages of $5,250.00 ($4,050.00 restoration costs and $1,200.00 for maintenance), and then applied the treble damages provision of AS 09.45.730 and ultimately awarded $15,750.00, as well as attorney’s fees of $2,200.00 and interest of $6,300.00 for a total judgment of about $25,000.00.

MEA argued vigorously that the treble damages statute did not apply to cases like this one, where it was lawfully on the property but just sort of exceeded its brief. The statute provides that treble damages apply unless “the trespass was casual … or the defendant had probable cause,” in which case, only actual damages may be recovered. But the appellate court said nothing doing. “Casual” means, essentially, negligent entry onto the property, such as if a car swerved off the road and hit a tree. MEA’s crew intentionally went beyond the easement and meant to cut down the trees.

As for probable cause, the court said that means “an honest and reasonable belief.” Ted and Bob knew the easement limits. They went beyond them, and – good intentions aside – they were trespassers, and not casual ones, either.

Matanuska Electric Association v. Weissler, 723 P.2d 600 (Alaska 1986). A couple of overzealous electric utility workers cleared a swath of up to 21 feet wide to bring electric service to a new home, despite the fact that the homeowner had given the utility only a 4-foot wide easement. The homeowners sued for trespass, and asked that Alaska’s treble damages statute for wrongful timber cutting be applied.

The trial court agreed, and trebled the damages, which for restoration of the property. The homeowners won a $25,000 judgment. The utility, MEA, appealed.

Held: MEA was liable for treble damages. The utility argued that the treble damage statute’s primary purpose was to deter those who pursue their own objectives on a public right of way from disregarding the adjacent landowner’s interest. The Alaska Supreme Court rejected that argument, pointing out that “MEA’s construction of the statute would allow the most willful of trespassers, i.e. those who enter onto timber land to cut and sell another’s merchantable timber, to be liable for only single damages.”

MEA also argued that urges the court to apply common law principles governing punitive damages. Punitive damages require malice, MEA argued, and there was none here. The Supreme Court looked to Oregon’s treble damages statute (the law on which Alaska’s version was based), and there the courts had held that the legislature exercised its prerogative to define when single damages applied and when treble damages applied. The legislature abrogated common law here, and the statute is reasonable.

The statute requires that the trespass be without lawful authority, and MEA argued that it did not trespass because it had the Weisslers’ permission to be there. But, harkening to the Restatement (Second) of Torts § 168 comment d (1965), the Court held that the rule is well recognized that “one who has a private easement of way becomes a trespasser when he goes beyond its boundaries.” MEA exceeded the scope of the easement that the Weisslers granted, and thus trespassed without lawful authority.

But, MEA asserted, any trespass it committed was “casual,” and hence only single damages should be awarded. MEA contended the trial court “found MEA’s excessive cutting to be the result of negligence and mistake,” but the Alaska Supreme Court disagreed: while the trial judge said that this was not a case where people were “recklessly cutting down other people’s trees without regard for them,” she nevertheless, described MEA’s conduct as negligence “verg[ing] on recklessness.” At any rate, “casual” does not mean negligent. Rather, it comes from a 19th century New York statute, in which “casual” meant “casualty” or “involuntarily,” contrasted with “designedly and under a claim of right.”

“Casual,” the Court said, “does not include a mistaken belief in the authority to cut trees.” A trespass committed under a negligently mistaken belief in the right to cut would not be “casual,” the Court said, because “the trespasser intends to cut.” Only where the trespass is unintended is it “casual.” Once a trespasser forms an intent to enter the land, the trespass becomes “willful” and the plaintiff may recover treble damages.

The Court said “MEA’s negligent decision to exceed the scope of the Weisslers’ permission to cut cannot qualify as “casual” negligence. MEA’s agents intended to cut the trees under a mistaken belief that Weissler would approve. Since MEA’s agents intended to cut, their actions were not ‘casual’.”

Finally, MEA lacked probable cause to cut the Weisslers’ trees. The statute awards only single damages where a defendant had probable cause to believe that the land on which the trespass was committed was the defendant’s own or that of the person in whose service or by whose direction the act was done. The Court said that probable cause means “an honest and reasonable belief.” By definition, the Court ruled, “a negligent mistake as to authority cannot qualify as probable cause since negligence involves unreasonable conduct.

The Alaska Supreme Court concluded that the tree damages statute “mandates treble damages unless the trespasser exempts him or herself” by proving, as an affirmative defense, that single damages apply.

– Tom Root


Case of the Day – Wednesday, January 8, 2020


One fall day a few years ago, a 9-year old boy named Julian Terry – who was busy being a 9-year old boy – decided to climb a utility pole. Why did he want to do this? He was a 9-year old boy… What more reason did he need?

The utility pole was one of those older styles with metal foot pegs that began more than seven feet up the pole, high enough that trespassers (such as young boys) could not reach them. Unfortunately, the utility company did not reckon with the determination of Julian Terry. The intrepid young man climbed a tree next to the pole until he got high enough to reach the iron pegs on a utility pole, then climbed using the pegs and tree branches together.

Alas, it was an accident looking for a place to happen. Julian’s foot slipped off a peg. He grabbed a tree branch, which broke beneath him. Julian seriously injured his arm on the iron rod that stopped his fall.

Julian’s mom wasted little time suing the electric company and two phone companies, all of which were using the pole. She argued the utilities created a dangerous condition when they allowed a tree to grow near the utility pole, because the tree made it possible for little urchins like Julian to climb 8 feet up to the iron pegs.

Come on, man… There’s a reason the law requires that defendants actually have a duty to the plaintiff before they have to pull out their checkbooks. As we all learned back law school when we read Palsgraf v. Long Island Railroad, “the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” (Regular readers know how I love Palsgraf).

And so it is here. If the tree was too close to the utility pole, and fell in the wind, causing a short that set a house afire, the homeowner would have a point. Risks to the power grid from a tree too close to the utility pole is reasonably perceived, and the utilities had a duty to maintain the lines by keeping the easement clear.

I recall going down the basement once to discover that my then 8-year old son and his cousin had coated the concrete floor with WD-40, and were gleefully sliding around the room on pieces of cardboard. Should I have sued The WD-40 Company?

There was a lesson there for me, just as there was for Mrs. Terry. No adult has sufficient capacity for imagination to reasonably foresee what kids might do.

Terry v. Consumers Energy Company, 2016 Mich. App. LEXIS 303 (Ct.App. Michigan, 2016). Nine-year-old Julian was injured after he fell while climbing in a tree next to a utility pole. His goal was to climb high enough to reach the iron climbing pegs on the pole, which started at over 7 feet off the ground precisely to keep curious kids from using them to climb the pole.

Julian’s foot slipped from a metal peg, so he grabbed a tree branch to break his fall. The branch broke instead, and Julian seriously injured his arm on an iron peg on the way down. His mother sued, alleging the defendant power company and telephone carriers using the pole had created a dangerous condition when they allowed a tree to grow nearby. The defendants moved for summary judgment, arguing that they had acted reasonably in placing the pegs on the pole. Mrs. Terry responded that the defendants had a duty to reasonably inspect the pole and trim the tree to prevent the hazard.

The trial court granted summary judgment, holding that, “Quite frankly, I cannot find a duty that would have been owed to this young man that would have been breached.”

Mrs. Terry appealed.

Held: The defendant utility companies owed no duty to curious Julian. To prove negligence, a plaintiff must show that the defendant owed the plaintiff a duty of care, the defendant breached that duty, the plaintiff was injured, and the defendant’s breach caused the plaintiff’s injury. Generally, a plaintiff proves a defendant breached the duty of care by establishing that the defendant’s actions fell below the general standard of care to act reasonably to prevent harm to others.

Here, no one disputed that climbing pegs on the pole were over 7 feet off the ground, and that nothing about the pole itself was unreasonably dangerous. In fact, the Court said, the Defendants exercised reasonable care when they placed the pegs higher than even an adult could reach.

But Mrs. Terry claimed the defendants had a duty to inspect the nearby trees to ensure that they did not provide access to the power line. This case is different from one where a defect in the pole or wires caused the electrocution of someone holding a ladder nearby: there, the power company had “an obligation to reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects.”

Here, by contrast, Mrs. Terry sought to hold the defendants liable “for a condition of land aris[ing] solely from a defendant’s status as an owner, possessor, or occupier of the land.” She offered no evidence that the utilities owned or controlled the tree that Julian used to circumvent their safety precautions. The Court said, “Defendants are no more responsible for the tree that Julian used to circumvent that precaution than they would be had Julian used a ladder to reach the rods.”

We have to admit that we’re a bit confused by the holding’s failure to consider the location of the tree. Presumably, if it was close enough to the pole for young Julian to use it to gain access to the climbing pegs, it was within the utilities’ easement (and was probably too close to the wires). We question whether the utilities did not “control” the tree. But, as old Judge Miller used to tell us when we were young lawyers (a long time ago), you dance with the girl who brung you. If Mrs. Terry offered no evidence about an easement that permitted the utilities to trim (or even remove) trees, the trial court was not free to imagine it.

– Tom Root


Case of the Day – Tuesday, January 7, 2020


We write a lot about trespass and the wrongful cutting of trees as a civil matter, where courts award money damages and occasionally injunctive relief. So much so, perhaps, that it’s easy sometimes to forget that trespass is also an offense against the public peace that is punishable in every state as a criminal offense.

Darlene Gall’s nickname could have been “Unmitigated.” There is pretty clearly a backstory of neighbor animosity here, but all we get are the facts of the offense: one summer day, while her neighbor Gloria was at work, Darlene drove onto Gloria’s yard and lopped a 20-foot long branch off an apple tree. She then dragged it back to her place behind her pickup truck.

Darlene already had a driveway, meaning that the easement was not essential to get from her house to the road. But rather than use her Massachusetts Rule rights to trim the tree limb back to the edge of her easement, Darlene went next door and took a bough – the whole bough. Darlene said she did this because the branch scratched her truck cab when she drove by on her easement. And because someday an ambulance might have to get to her house by means other than her driveway. And because Gloria’s people dumped dirt in the easement once. And so on.

When another neighbor saw Darlene cut the branch and tow it away, he reported it, and Darlene got charged with criminal trespass, a misdemeanor. She admitted cutting the branch, but tried to convince the judge she thought she had the right to walk onto Gloria’s land with her chainsaw whirring. Her lawyer argued that it is “a well-settled principle in the civil law that a non-owner of vegetative property, like a tree, is privileged to physically damage the property when it is intruding onto her property.”

Well, not exactly. The Massachusetts Rule lets a landowner cut off boughs and roots of neighbor’s trees which intrude into his or her land when the tree causes “sensible harm.” Darlene could have cut the apple tree branch back to the edge of the easement. But the branch’s encroachments were not a license for her to enter her neighbor’s yard and cut the encroaching limbs all the way back to the trunk.

Commonwealth v. Gall, 2017 Pa. Super. Unpub. LEXIS 1709 (Pa. Superior Ct. 2017). Darlene Gall drove onto her land owned by her neighbor, Gloria Hieter, and used an electric chain saw to cut down a 20-foot limb from an apple tree. She then threw a rope around it and dragged it behind her truck back to her own property. She did so without ever asking Gloria’s permission, claiming the limb was blocking her use of an easement, making it impossible for her to drive past without scratching the roof of her vehicle. She also rather disingenuously claimed she was concerned about the possibility of an ambulance being able to reach her property by means other than her driveway.

Darlene was charged with the crime of simple trespass, which makes it a misdemeanor for a person, knowing that he or she is not licensed or privileged to do so, to enter or remain in any place for the purpose of, among other things, defacing or damaging the premises. She was found guilty, and sentenced to pay a $50.00 fine and costs of prosecution.

Darlene appealed.

Uh… but then, it’s not trespassing.

Held: Darlene was guilty of criminal trespass. She complained there was no evidence to show she knew she was not allowed to go on to Gloria’s land to cut the branch that was interfering with the use of her easement. But the Superior Court agreed with the trial judge that Darlene knew that the base of the apple tree was on her neighbor’s property, that she knew she was entering Gloria’s property, and that she intended to enter the property in order to cut the tree branch.

The trial court found from circumstantial evidence that Darlene knew she was not privileged to be on her neighbors’ property to cut down the apple tree branch. But she argued on appeal that the evidence was insufficient, and anyway, the law permitted her to be on the property for the purpose of removing a personal hazard to her health, and that she did not have the specific intent of defacing or damaging the premises.

The Superior Court, however, observed that intent can be proven by circumstantial evidence, and that it can inferred from timing. Here, Gloria testified that she drives past the easement, which is on her left, to go to work. A neighbor, Mr. Goldman, heard the chainsaw and the large cracking sound and saw Darlene’s truck going by, towing this huge branch around 11:30 am on a Tuesday. The Superior Court said it was permissible to infer from Darlene’s choosing to cut down the branch at a time Gloria would not be at home that Darlene knew she was not privileged to enter Gloria’s land to cut down the branch. Gloria confirmed that Darlene never asked her about the tree branch.

Darlene took a bough… but not like this.

Mostly, Darlene was heisted by her own petard. She whined that “there was nothing there to say I couldn’t go up there. There was nothing there, no signs or nothing. They posted, actually, their signs into my easement, in other words, with the — may I say something? There was time when they encroached on my easement there, trying to take it on me, and it cost me thousands of dollars in court to establish that I had the right to that road. They were pushing dirt on my — they built a shed a foot over their property line without a permit, and I have no… other way to explain the need to go on there and just take care of it myself.”

The trial court said Darlene “seems all too aware of where the easement line is and where her property is and where her property isn’t. She acknowledges that she went four steps onto her neighbor’s property.” The Superior Court concluded that Darlene “knew that she was not licensed or privileged to enter onto her neighbor’s property to cut down the apple tree branch. Furthermore, as has already been stated above, [Darlene] has been quite forthright about her entry onto [Gloria’s] land having the sole destructive purpose of removing the apple tree branch that was hanging in the easement.” What’s more, the fact that Gloria’s property was not posted with “No Trespassing” signs was irrelevant for the crime of simple trespass. It was enough that Darlene knew she was trespassing.

Darlene tried to raise necessity as a defense of justification, but the trial court held that “the necessity would be as to why she had to go onto the property as opposed to cutting the limb at the edge of the easement, and that’s not what’s in front of us today.” In other words, for necessity to work, Darlene had to show why exercising her rights under the Massachusetts Rule – that is, to trim the apple tree branch to the edge of her easement – was not good enough.

On appeal, Darlene argued that cutting the limb “was to avoid a ‘harm or evil,’ namely the harm of not being able to receive emergency services at her home,” and therefore, she “was privileged to enter upon [Gloria’s] property to cut the potentially harmful branch.” But before the trial court, all she said was that her “entry upon the alleged victim’s premises was for the sole purpose of maintaining the right-of-way, and not to intentionally deface or damage the alleged victim’s property.” When the issue is not raised in front of the trial court, the appellate court will not entertain it.

Darlene’s conviction was upheld.

– Tom Root


Case of the Day – Monday, January 6, 2020


The balmy weather this past weekend (25º with high wind and blowing snow) made me long for the warm days of August, when I could bask in the pool at the local pool. This fond memory of hot fun in the summertime is not shared by Maryann Dunlap.

No question Maryann enjoyed her time bobbing in the pool at the Ridley Park Swim Club. But as she crossed the parking lot to leave, a tree in the tangled thicket on an undeveloped lot next door fell on her, writing a quick finis to her pleasant day.

The case that ensued raised interesting questions of when a party needs an expert to establish whether a defendant had a duty to inspect trees, as well as the extent of the duty when the property on which the tree stands is – as the trial court put it – an undeveloped “jungle” but is next to property that is not.

There has long been a distinction made between the nature and extent of the duty to inspect trees on urban property (where the risk of harm from hazard trees is much greater) and rural property (where if the tree falls in the forest, it may not even make a noise if no one is around to hear it). Today’s case hones that duty a bit finer, relying on the same policy considerations – the risk from falling timber – but implicitly rejecting the rather coarse distinctions of urban versus rural.

Decay is not always this obvious.

Dunlap v. Ridley Park Swim Club, 133 A.3d 64 (Pa. Superior Ct., 2015): One hot summer day in 2009, Maryann Dunlap was swimming at Ridley Park’s pool. While she was walking through the parking lot to leave, a tree located on property owned by Harper Associates – about 25 feet from the property line – fell on her. No part of the tree overhung Ridley Park’s property. The tree was dead and decaying, and had enough vines growing on it to warm Tarzan’s heart.

Harper Associates did not examine the tree or take any other action to ascertain if the tree posed a hazard to people on either on its land or on Ridley Park’s property.

Dunlap sued Ridley Park and Harper Associates. Ridley Park argued that Harper Associates was negligent, and thus liable for Maryann’s injuries. Maryann’s expert witnesses provided reports concluding the same.

Nevertheless, the trial court granted summary judgment to Harper Associates, finding that Ridley Park could not prove its case against codefendant Harper Associates because it did not call an expert witness to testify as to Harper Associates’ negligence. The trial court also concluded that the area in question was a “jungle” and, therefore, there was no legal duty for Harper Associates to inspect the tree. Therefore, the case was thrown out without a jury ever hearing it.

Ridley Park appealed.

Held: The Superior Court held that Ridley Park was entitled to a trial on its claims.

Negligence is established by proving (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages. Expert testimony is required when the subject matter of the negligence is outside the skill and knowledge of an ordinary person.

The Court held that Harper Associates had a duty to visually inspect the tree, and Ridley Park Swim Club did not need an expert to prove it. In Pennsylvania, a possessor of land in or next to a developed or residential area is liable for harm caused to others outside of the land by a defect in a tree on the property if, in the exercise of reasonable care, the possessor would have discovered the defect and the risk it caused, and could have made it reasonably safe by taking action. The reasonable care standard encompasses, the Court said, includes at least “a duty to make a visual inspection. Under some circumstances it may encompass more. If the possessor of land in or adjacent to a developed area knows, or should know, through inspection or otherwise, that a defect in one of his trees poses an unreasonable danger to others outside of the land, he is under a duty to eliminate that danger.”

Bad things can happen in the jungle.

It did not matter, either, that the area in which the tree was growing was a “jungle.” The focus is on the adjacent land. A tree, the Court noted, “once growing in the midst of a forest, is no longer the same ‘natural object’ when a city grows around it or residential areas are developed in proximity to it.”

Because Ridley Park Swim Club’s parking lot, where Maryann was hurt, was developed land, Harper Associates had a duty to visually inspect the subject tree.

Even if expert testimony had been needed, the Court said, (and it was not), Maryann’s experts testified that the fallen tree was one that needed “to be regularly observed. It’s on a boundary between two properties. Both owners would have a responsibility to see what’s going on at that location. And when you have a situation where grapevines are beginning to load up the plants then there becomes a real responsibility to care for the trees in a way that they’re not being – people have to circulate on the site.” Even where expert testimony is needed, the Court held, it does not have to come from witnesses presented by the party with the burden of proof. Any competent expert will do.

At trial, one of Harper Associates’ principals testified that no one had ever visually inspected the subject tree. From that testimony alone, the Court held, a jury could have determined that Harper Associates breached its duty to inspect. But as to whether the failure to inspect was the proximate cause of the tree falling (and Maryann being clobbered), the Court agreed that expert testimony was required. “It requires specialized knowledge and training to determine if the tree, when it fell, was in such condition that visual inspection alone should have revealed a problem.”

Maryann’s expert admitted that “if a non-professional looked at the tree the tree itself might have looked alive. But you have to take it in context with the whole site. And if you look at photograph 90 where it shows that the vines are already pulling down another part of the tree, I think even to a lay-person that does not look normal.” Although a Ridley Park’s witness said he believed that the tree looked like a “live, healthy tree with tree branches and green leaves all over the parking lot” and a Harper Associates’ principal contended he inspected the jungle monthly, the Court held that “the jury could have reasonably found, that even if Harper Associates visually inspected the subject tree it would not have noticed the tree was a danger to individuals on Ridley Park’s property. The conflict in the testimony, however, was a factual question that must be decided by the jury… Thus, Ridley Park is entitled to a new trial.”

– Tom Root


Case of the Day – Friday, January 3, 2020


Emily Dickinson had something to say about today’s case. The Belle of Amherst wrote,

The Wind does not require the Grass
To answer Wherefore when He pass
She cannot keep Her place.

Today’s problem was slow to develop, but like a winter storm undergoing bombagenesis, it just got bigger and bigger. Marie’s property was separated from her charming neighbor Ed’s by a 100-foot long cinder block retaining wall. In about 2004, “a mulberry tree and some shrubs began growing” – note the passive voice, as though the growth was mere happenstance, not brought on by anyone’s actions – in Marie’s property near the retaining wall.

Everyone agreed that Marie had nothing to do with the mulberry tree. She didn’t pant it, mulch it, stake it or fertilize it. It just grew. And grew. And grew. About eight years later, its roots began toppling Ed’s beautiful wall.

To be sure, Marie diligently trimmed the mulberry branches every year, but unsurprisingly, she did not excavate around it so she could trim the tree’s roots. Who does that? When the wall began showing damage in 2012, Ed wrote Marie a letter (evidence enough that their relationship must have been too frosty for him just to mosey on over and say something), expressing concern about the damage. Marie, ever the good neighbor, hired some guys to trim back the trees and bushes. That wasn’t good enough for Ed, who then sent Marie a certified letter complaining that her tree was tipping over his wall but warning that she better not let any of her workers step on his property in an attempt to fix it unless they were insured and had permits.

At this point, Marie’s interest in jumping through Ed’s hoops appeared to have waned. She did nothing more, and Ed sued.

He accused Marie of carelessness, negligence and gross negligence, complaining that the “maintenance of her property” – which is to say, suffering the tree to grow – caused the damage to the retaining wall. Of course, he wanted money.

At trial, Marie said Ed’s wall had been installed by morons and thus was falling down of its own accord. Ed said Marie should have taken care of the tree to ensure that it did not crumble his wall. The court, it turns out, did not care about either argument: instead, it held that a tree growing near the wall is a naturally occurring condition. As such, Marie is not liable for what the tree does.

We are constrained to note that this is not the law everywhere. The Hawaii Rule, as brought up to date by decisions such as Fancher v. Fagella, holds that when a naturally-occurring tree becomes too much of a nuisance, the owner can be forced to do something, regardless of how the tree got there or how little the owner’s role in nurturing it. But not in New Jersey.

Like Emily’s grass, Marie’s mulberry could not keep its place. And the court, like Emily’s wind, did not require Marie to answer for the tree’s peripatetic roots. Oh, the poetry of it…

Scannavino v. Walsh, 445 N.J. Super. 162 (Superior Ct. N.J., 2016). Marie’s naturally-growing mulberry tree got big enough that its roots started causing her neighbor’s retaining wall to tilt and collapse. Neighbor Ed sued her for damages the tree caused the wall, but the trial court held she was not responsible for the naturally-occurring growth of a tree she had not planted.

Ed appealed.

Held:  The Superior Court sided with Marie. It held that a cause of action for private nuisance derives from the defendant’s “unreasonable interference with the use and enjoyment’ of the plaintiff’s property.” Under the Restatement (Second) of Torts, “neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land,” which includes the natural growth of trees, weeds, and other vegetation “upon land not artificially made receptive to them.” Similarly, “a possessor of land is not liable to persons outside the land for a nuisance resulting solely from a natural condition of the land,” including “trees, weeds, and other vegetation on land that has not been made artificially receptive to it by act of man.”

New Jersey court have held that injury to an adjoining property caused by the roots of a planted tree can be actionable as a nuisance. The rationale for the property owner’s liability in that case was not because of the natural process of the growth of the tree roots, but instead due to the affirmative act of the property owner in planting the tree that caused the damage. But here, Marie did not plant the tree, and while she trimmed it from time to time, she engaged in no positive acts like fertilizing or maintenance to encourage growth. Had she done so, that might have converted a natural growing tree into one for which the landowner was liable. However, the Court said, “simply cut[ting] back the trees above the ground” was not a positive act to encourage growth.

The record contained no evidence that Marie’s trimming had improved the tree’s health or accelerated the growth of the roots. As well, the trial court found that Ed had failed “to demonstrate that any actions undertaken by [Marie] or her agent caused the damage to the wall.” Finally, even Ed himself told the Court he was not asking the judges to infer that cutting back the trees had increased root growth.

Instead, all Ed argued was that by cutting back the trees, Marie became liable for the damage caused by the roots. That is contrary to the law, the Court said, and seeks unfairly to “impose liability upon a property owner for hazardous conditions of his land which he did nothing to bring about just because he happens to live there.” Because Marie’s cutting back of the tree did nothing to “bring about” the root growth, neither the trees nor the damage was “brought about” or “precipitated by the property owner’s affirmative act.”

The Court observed that Ed’s argument would lead “to the anomaly of imposing liability upon one who cuts back wild growth while precluding liability of an adjacent landowner who allows the natural condition of his property to ‘run wild’.” What’s more, some of Marie’s trimming was in response to Ed’s belly-aching, and the Court was not about to sandbag Marie because she tried to be a good neighbor.

Ed suggested that if Marie was not held to be liable, then landowners like Ed might have to use self-help, and trespass on her land to cut down the tree himself. The Court dismissed the argument. Ed’s own letter suggested he could abate the nuisance from his side of the property line, which is consistent with the Massachusetts Rule (which fully applies in New Jersey). At any rate, the Restatement (Second) of Torts provides that “entry onto a neighboring property to abate a private nuisance is permissible under certain circumstances.”

Interestingly enough, the Restatement (Third) of Torts might have held Marie liable if she failed to exercise reasonable care in allowing the tree’s roots to damage the retaining wall. But the Supreme Court of New Jersey has directed that the Restatement (Second) of Torts is the law, and until that changes, Marie’s tree is on its own.

– Tom Root


Case of the Day – Thursday, January 2, 2020


I have previously reported harrowing tales of homeowner woe at the hands of a homeowners association. You remember the kind of officious, annoying kid in junior high school who was on student council? Well, he grew up and is on the HOA board.

In today’s case, well-heeled homeowners bought the house next door, planning to demolish it and turn the property into a playground for their kids. And to think the best you could this Christmas was a 75th Anniversary Barbie and the Legos Death Star Final Duel set for your offspring.

But the property manager for the HOA that oversaw the development – seeking to enforce a deed restriction that required prior approval before “changes or alterations” – got a court to issue an injunction.

Injunctions aren’t easy to come by. The biggest hurdle is that the HOA had to convince the judge that it was likely to win the case. The homeowners, Bob and Kathy Guzzetta, argued that “change and alteration” was different from “demolition.” They had not changed anything that existed. Instead, they had simply taken away something, leaving nothing.

The grant of the injunction suggested to us that the court found their argument to be a “dead-bang loser.” It seemed like game, set and match for the HOA – well before the first day of trial.

But trials have a way of turning losers into winners. The Guzzettas, undeterred by the pall of imminent defeat a preliminary injunction cast over their case, put their evidence on anyway. And they won.

The court, it seems, was no fan of restrictive covenants. Such covenants, the court rightly observed, “implicate contractual rights, such as the right of a buyer and seller to enter into a binding contract, but they also implicate property rights, such as one’s right to the free use of her land. In situations where these two rights conflict, the law favors the free use of land.”

Applying that standard, the court said, the analysis was simple. “Changes and alterations” required prior consent, but the Guzzettas were right: taking something away was not the same thing as changing or altering. After all, nothing else in the covenants required that a house even be on the lot. It was just that if there was a house on the lot, the HOA had to approve it. Requiring prior approval of something did not imply that prior approval of nothing was required as well.

Just a little something for the kiddies…

Service Corp. of Westover Hills v. Guzzetta, 2009 Del. Ch. LEXIS 221 (Del.Ch., 2009). The Guzzettas had been homeowners in Westover Hills for 11 years, when they bought the property next to theirs. The adjoining property included a 1943 colonial-style house and mature maple and oak trees. The Guzzettas intended to raze the house in order to expand their backyard for their children.

Properties in Westover Hills, however, are subject to deed restrictions which are binding on all owners within the development. One of the restrictions provides that “no building, fence, wall or other structure shall be commenced, erected, or maintained, nor shall any addition to or change or alteration therein be made, until the plans and specifications, showing the nature, kind, shape, height, materials, floor plans, color scheme, location and frontage on the lot and approximate cost of such structure shall have been submitted to and approved in writing by…” Service Corp., the property manager.

Service Corp. had the right to refuse to approve any such plans or specifications that it found not suitable or desirable for aesthetic or other reasons. Since 2004, Service Corp. has used an Architectural Review Committee to initially review proposals, request additional information as necessary, and make recommendations to the Service Corp. board. Service Corp. had approved demolitions before, as well as landscape plans.

The Guzzettas went ahead with their plans without obtaining approval, and Service Corp. sued for an injunction prohibiting the demolition of the home and landscaping. The trial court granted a preliminary injunction until a trial on the merits could be held, but at trial, it reversed course, finding in favor of the Guzzettas. 

Held: The Guzzettas didn’t need HOA approval to demolish the house next door. The restrictive covenant at issue held that “no building, fence, or wall or other structure shall be commenced, erected or maintained, nor shall any addition to or change or alteration therein be made” until the plans and specifications were approved by the HOA. Service Corporation argued that the Guzzettas’ planned demolition was a “change” within the plain meaning of that word. But the court, resorting to the dictionary, concluded that an “alteration” to a structure might encompass a new paint scheme, while a “change” was more radical, such as the gutting of a house followed by a complete refurbishment. While either of these terms might conceivably include a demolition, that interpretation made no sense when read with the requirement in the same covenant that the HOA must approve “the plans and specifications, showing the nature, kind, shape, height, materials, floor plans, color scheme, location and frontage on the lot and approximate cost of such structure…”

The court held that “the complete demolition of a structure so that it is replaced only by a grassy field would result, by necessity, in a change that has no ‘height, shape, materials, floor plans, color scheme, location or frontage’.” After all, how can the HOA approve plans for a grassy field? The third clause, the court held, “narrows the broad coverage of the second clause. Read together, the second and third clauses only apply to ‘changes’ to an existing structure where some structure will remain afterward. Accordingly, because the Guzzettas do not propose to leave any structure on the Property following demolition, the second and third clauses of Article V do not require them to submit their plans for the complete demolition of the adjacent house to Service Corporation for approval.”

Service Corporation argued that the drafters obviously intended to prevent homeowners from making such a radical change to a property as the Guzzettas proposed without the consent of the organization representing the community. But the Court responded that the restrictive covenants did not require that a structure be erected on every plot, but rather only that if a building were built, the plans be approved. “Presumably,” the Court drily observed, “vacant lots could thus exist in Westover Hills.” In fact, one of the covenants provided that “free or open spaces shall be left on every plot built upon, on both sides of every residence erected thereon, which free spaces shall extend the full depth of the plot.” 

The lesson here is that because restrictive covenants tie a property owner’s hands, limiting what he or she can do with property that is bought and paid for, a court is likely to construe such covenants strictly against the organization that imposed them. It’s a fair bet that if the writers of the covenants had ever imagined that homeowners like the Guzzettas would tear down a house in favor of – horrors! – green open space, the restrictive covenants would have required the hobnail boots of the HOA to march over the plans ahead of time. But no one imagined such a matter would arise, and the court was not about to rewrite the covenant to pull the HOA’s chestnuts out of the fire.

The game may have gone to the HOA. But the set and match belonged to the Guzzettas.

– Tom Root