Case of the Day – Thursday, January 4, 2018


We have previously reported the tale of homeowners who bought the house next door, planning to demolish it and turn the property into a playground for his kids. But the property manager for the homeowner’s association (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.” The grant of the injunction suggested to us that the court found their argument to be (as we put it at the time) 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, Not Reported in A.2d, 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


Case of the Day – Wednesday, January 3, 2018


journeyends140312A great philosopher perhaps put it best: a very long journey can sometimes end suddenly, and rather badly.

Howie Conine should have had the Despair, Inc., “Ambition” poster on his wall, where he could have contemplated its message. He surely could empathize with the hapless salmon. He and his wife had their journey end one rainy day on Washington State Route 524 – suddenly and very, very badly. A redwood tree on County of Snohomish land, the hazardousness of which was “readily apparent,” fell on their car with a readily apparent thump.

The law of the jungle gives the poor king salmon no right of appeal, no habeas corpus, no forum for damages suffered when her trip upstream ends so precipitously in the jaws of an ursus arctus horribilis . Fortunately for the Conines, the law of Washington State was more hospitable after the tree fell onto their passing car (with them in it). If anything, it was a perfect storm for them: they possessed evidence that the dangerous condition of the tree was “readily apparent,” they were in a notoriously friendly plaintiff-friendly, and they had two defendants to choose from, both of which were governments and thus “deep pockets.”

But who to collect from? The State of Washington, the government that, the Conines argued, had a duty to keep the highways safe from falling trees? Or perhaps the County of Snohomish, the government that, the Conines averred, had a duty to protect passers-by from dangers arising from trees on its land?

This is America – land of the free and home of the litigious! Why not sue both?

That is exactly what the Conines did.

angryjudge140312Unfortunately, they ran into an uncooperative trial court, one which held that neither Washington State nor Snohomish County had any obligation to inspect the trees along the road, even one with “this readily apparent hazard.” The trial judge threw the Conines out of court. They had more luck with the Court of Appeals, which reversed the trial court decision and sent the matter back for trial on the merits. There was enough evidence – chiefly from the Conines’ hired-gun expert – that the tree was obviously dangerous, that the case should go to trial.

The lesson: when you need a good expert, there’s just nothing else that will do.

Conine v. County of Snohomish, Not Reported in P.3d, 2007 WL 1398846 (Ct.App. Wash., May 14, 2007). Howard and Karen Conine were driving on State Route 524 when a red alder tree standing on an embankment on the west side of the road fell on their car. The tree had been located about 10 feet outside the State’s right of way on land owned by Snohomish County. The Conines sued the State of Washington for failure to maintain the state highways in a safe condition and the County for failure to remove an obvious hazard from its property.

The Conines’ arborist testified that during the 6-12 months immediately preceding the tree’s failure, the appearance of the tree should have put anyone looking at it on notice that it was dead and decaying. The arborist said the tree was probably leaning 10 to 15 degrees downhill toward the road, and would have been in the highest risk category because of its condition and proximity to the road. The DOT’s maintenance technician who removed the tree after the accident said the tree “had been a live tree and that its root ball had come loose from the soil owing to the very wet conditions we had in January 2003.”

The trial court held that neither the State nor the County had a “duty to look for this readily apparent hazard,” and granted summary judgment to the State. The Conines appealed.

Held: The summary judgment was reversed. The State’s liability to users of a road is predicated upon its having notice, either actual or constructive, of the dangerous condition which caused injury, unless the danger was one it should have foreseen and guarded against. The Conines conceded that the State did not have actual notice, but they argued that the tree’s visibly dangerous condition created constructive notice. The Court found that the question to be answered was whether, for constructive notice, the State had a duty to look for a readily apparent hazard. Although the Washington Supreme Court had held in another case that where the tree was on a remote, mountainous, sporadically traveled road, a high threshold for constructive notice of danger was needed to trigger a duty to inspect and remove a dangerous tree. But here, the road was a state highway in a populated area, and the risk to the traveling public shifted the risk analysis. What’s more, in the other case, the Supreme Court found that the tree that fell was no more dangerous than any one of the thousands of trees that lined mountain roads. By contrast, the Conines’ expert testified that the tree that fell was obviously a hazard. The differences, the Court said, precluded a finding that the State lacked constructive notice as a matter of law. Constructive notice that a tree was dangerous gives rise to a duty to inspect. Thus, summary judgment was improperly granted on the basis of no duty to inspect.

treefalloncar140212The Conines also contended that Snohomish County faced liability as the landowner of the property upon which the tree stood, because the owner of land located in or adjacent to an urban or residential area has a duty of reasonable care to prevent defective trees from posing a hazard to others on the adjacent land. The County argued that it had no such duty, because the tree was a “natural condition of the land.”

The Court held that when the land is located in or adjacent to an urban or residential area and when the landowner has actual or constructive knowledge of defects affecting his trees, he has a duty to take corrective action. The area in question was next to the City of Lynnwood and zoned urban residential. Thus, it was urban in character. The Conines produced expert evidence that the subject tree was obviously dead or dying and leaning for two years, that it looked like a forked snag and that it lacked fine or scaffold branches. This evidence, the Court said, created an issue of material fact as to whether the tree was in a defective condition and the condition was of sufficient visibility and duration to give the County constructive notice of a potential hazard.

– Tom Root


Case of the Day – Friday, December 29, 2017


Blink-182 – You have any daughters? Look what they could bring home ...

     Blink-182 – What fine-looking lads!  You have a daughter? Speaking of reckless, look what your she could bring home …

On and on, reckless abandon, something’s wrong, this is gonna shock them …” The velvet tones of Blink-182, so reminiscent of the Kingston Trio!

OK, not velvet tones, just teenage angst and a little toilet humor. But today’s protagonist might have had the punk rockers on his iPod while he was wielding his chainsaw with… well, with reckless abandon.

One day last winter, complains loyal reader Jeff of Maple Falls, Ohio, he went to work as usual. In the middle of the day, his neighbor called him to report that some tree cutters had cut the top 60 feet off his prize 75-foot tall silver maple tree. His neighbor, the kind of nice old lady who every kid in the ‘hood can’t stand, had carefully noted the name of the tree trimming service in a little spiral notebook. She gave the name to Jeff, and Jeff called them.

“Ha, ha,” the owner exclaimed, “what a gaffe! Boy, is our face red! We had an order to cut down a silver maple, and we went to the wrong house! Isn’t that just the funniest thing?”

Jeff didn’t think so. The owner sent a representative over to look at the forlorn 15-foot trunk still standing, admitted the crew had come to the wrong address, and offered $1,000 to forget the whole thing. But Jeff loved that tree, which shaded the house, nested squirrels and birds and provide a canopy for family picnics. Jeff’s arborist figured that replacement of the tree with the most comparable silver maple available would cost somewhere around $25,000.

Section 901.51 of the Ohio Revised Code lets an injured party collect treble damages from a party who “recklessly cut down, girdle, or otherwise injure a vine, bush, shrub, sapling, tree or crop growing on the land of another.” Jeff wondered whether the tree trimming service reckless, and whether his $25,000 might be tripled to $75,000. If it did, he might even afford a quick shopping trip through Whole Foods … that is, if he only buys 12 items or fewer.

The tree service owner was red-faced ... somehow, that didn't make Jeff feel much better.

The tree service owner was red-faced … but somehow, that didn’t make Jeff feel much better.

A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

In Collins v. Messer, a woman hired a tree trimmer to clear some of her land. She told the trimmer to only clear to a fencerow, which she later said she believed was the property line. It was not, and the other property owner was unhappy. Mrs. Messer tried to settle with him, but things broke down and he sued.

The trial court found Mrs. Messer’s testimony about her mistaken belief that the fence marked the boundaries credible, as well as her statement that she told the trimmers not to go beyond the fence. Based upon those findings, the trial court determined that Messer’s actions were not reckless and she was not liable in treble damages under the statute. In assessing damages for the trespass, the court held that the measure of damage is the cost of reasonable restoration of property to the pre-existing condition or to a condition as close as reasonably feasible without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

What does this mean for Jeff? Whether the tree trimmer was reckless depends on what led him to the wrong house, and what steps he might have taken to verify the address. Cutting down a healthy 75-foot tall hardwood shade tree is a pretty final act, and industry standard is for the tree trimming employee who performed the estimate and pre-work inspection to be on-site when the work is begun. The irrevocability of cutting down a large tree on a residential lot in the city is such that the trimming company had to have understood the known risk that if the work was performed at the wrong house, the consequences would not be pretty.

One might think that the tree trimming company would want to settle this one for the cost of restoration, rather than roll the dice on whether it will have to pay treble that amount. It is pretty clearly liable for the blunder. When its best hope is to convince a jury that the blunder was just negligence, there isn’t much up-side in litigation. As Ronald Reagan once said, “If you’re explaining, you’re losing.”

Collins v. Messer, Case No. CA 2003-06-149 (Ct.App. Butler Co., June 14 2004) unpublished, 2004 WL 1301393 – Collins sued his neighbor, Messer, for having trees and vegetation removed from Collins’ residential property.

The rear of Collins’ home abuts the rear of Messer’s property in a residential subdivision. Mrs. Messer hired Wilson Garden Center to clear vegetation to an old farm fence, which she thought was a property line. She was not present when the Garden Center employees cleared the vegetation. Mrs. Messer had never met Mr. Collins, and she didn’t speak to him before the Garden Center performed the work. The vegetation, with the exception of a few trees, was cleared up to and beyond the farm fence at a time when neither party was at home. It turned out that Messer’s property line did not extend to the old farm fence and that most of the vegetation cleared was on Collins’ property. Mr. Collins testified that he was “devastated” when he learned of the destruction of the vegetation.

Collins and Messer split the $1,647.91 cost of hiring a landscaper to plant some pine trees in the area between the properties, but the relationship between the parties deteriorated during the year that followed. Finally, Collins sued Messer in trespass, seeking treble damages under O.R.C. §901.51.

Treble damages ... when

Treble damages … when “uh-oh” just isn’t good enough.

Held: The Court found that the evidence was sufficient to support finding that Mrs. Messer’s actions were not reckless, and thus Mr. Collins was not entitled to treble damages. She testified that she was mistaken that the fence constituted the boundary, and she never told the Garden Center workers to go beyond it. Mr. Collins had no evidence to rebut Messer’s claim of mistake, and the trial court may have been swayed by Mrs. Messer’s willingness to share the cost of the mistake before things deteriorated into a lawsuit.

Also, because the parties already had agreed on splitting the costs of planting replacement trees, Mr. Collins wasn’t entitled to additional trespass damages for loss of vegetation. In assessing damages for the trespass, the trial court held that the measure of damage is the cost of reasonable restoration of property to the pre-existing condition or to a condition as close as reasonably feasible without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

The appeals court agreed with the trial court that Mrs. Messer compensated Mr. Collins for his damages by paying $823.00 for the pines planted on Mr. Collins’ land.

– Tom Root

Case of the Day – Thursday, December 28, 2017



For all of the Latin phrases, hidebound traditions and libraries full of precedent, the law at its essence is nothing more than a codification of policies generally accepted by society. The law doesn’t always get it right – some laws aren’t carefully drafted, others do exactly what the legislature intended but pursue foolish or even repugnant policies – but by and large, the law tries to lay out rules for conduct based on policies generally accepted to be important.

Keeping an eye on the prize – the societal goals to be achieved – often helps courts from going overboard. It’s how the camel’s nose can be allowed into the tent without getting the whole camel in the process.

A good example of this is the “wrongful life” lawsuit. States all allow a “wrongful death” action, in which the survivors of someone killed, say, in a car accident or from medical malpractice sue for damages. This makes good sense. But in the last decade or so, some “wrongful life” suits have been brought, where – for example – a physician misdiagnoses, and tells prospective parent that their fetus is healthy, but the doctor is wrong. The child is born with severe birth defects. The “wrongful life” suit claims that but for the physician’s negligence, the child would have been aborted.

Very few courts have permitted such a lawsuit, for several very good public policy reasons. The first is that society does not recognizes, as a matter of policy, that anyone is better off not having been born, no matter how severe the burdens of congenital disability. Second, the whole idea of tort law is to place the injured party in the same position as he or she would have been in had the negligence not occurred. But for the negligence, the injured party wouldn’t have been born. What can be done to put a living plaintiff in that position, or ­for that matter, to compensate for having been born instead of never being?

And what would have made Ms. Lewis happy? Perhaps if the Krussels had only clearcut their property ...

Just what would have made Ms. Lewis happy? Perhaps if the Krussels had clearcut their property …

All right, that’s pretty heady stuff, but what does that have to do with tree law? Simply this: in today’s case, the plaintiff, Ms. Lewis, suffered having neighbors Gary and Nancy Krussel’s tree fall on her house. Her suit simply claim this: the tree fell on her house, the neighbors knew that they had a tree, therefore, the tree was a nuisance, and the neighbors were negligent in not keeping the tree from falling on the house. There was no evidence the Krussels had any inkling this particular hemlock was going to fall. There was no evidence any reasonable person would have had such an inkling. In fact, there was no evidence the tree was diseased or damaged. Reduced to its essence, Lewis’s claim was that the tree existed and the tree later fell, and those facts made it a nuisance. The tree was alive, the argument seems to say, and that fact wronged Ms. Lewis.

Fortunately, the Washington state courts made short work of this claim. Ms. Lewis was trying to advance a negligence claim as a nuisance claim, probably because she had no evidence of negligence. But, the courts ruled, public policy was not ready to declare a tree a nuisance merely because it was growing, nor was it prepared to hold that property owners were liable for what became of any naturally-growing, healthy trees on their land.

Without keeping one eye on public policy, the courts’ development of the law might go like this: First, landowners are responsible for damage caused by trees on their property that are diseased or damaged, and about which condition they are actually aware or reasonably ought to be aware. The next step would be courts ruling that owners must inspect their trees to avoid liability. Finally, landowners would be strictly liable for any damage caused by their trees, whether they were aware of a problem or not.

camelnose140310Largely, the law has stopped short of such a draconian rule, because the courts recognize that public policy favors the natural growth of trees, and eschews requiring property owners to devote substantial time and money to inspect trees, where there is no concomitant benefit to the public. By and large, courts have enough policy sense to let the camel’s nose into the tent while keeping the rest of the dromedary outside.

It is this kind of analysis that is illustrated in today’s case.

Lewis v. Krussel, 101 Wash.App. 178, 2 P.3d 486 (Ct.App. Wash. 2000). During a windstorm, two large healthy hemlock trees fell on Dawn Lewis’s house. She sued Gary and Nancy Krussel, who owned the property on which the trees had been growing.

Krussel acknowledged that windstorms had knocked down other trees on his property and other property nearby in previous years. About a week after the windstorm at issue here, another windstorm knocked a tree onto his mother’s mobile home. But the trees that damaged the Lewis house were natural growth, and Krussel had no reason to believe that they were any more dangerous than any other trees on his property under normal conditions. After the damage to the Lewis house, Krussel cut down other hemlock trees located near his house upon the recommendation of the local utility district.

After Lewis sued for nuisance and negligence, Krussel moved for summary judgment. He supported the motion with evidence from a professional forester who inspected the stump of one of the fallen trees and found no evidence of rot. The forester concluded the tree that fell on the Lewis house was no more dangerous than any other tree standing on the Krussels’ property, and there was no way for the Krussels to determine beforehand whether any one of their trees would fall over. The trial court dismissed the Lewis claim, and Lewis appealed.

Held: The appeals court upheld the dismissal of Lewis’s claim.

Sure Ms. Lewis's house was crushed ... but gravity did not turn the healthy tree that toppled onto her roof into a nuisance.

Sure Ms. Lewis’s house was crushed … but gravity did not turn the healthy tree that toppled onto her roof into a nuisance.

A homeowner is not obligated to remove healthy trees because they might topple in a storm. The Court of Appeals said just because a negligence claim was disguised as a nuisance suit didn’t mean that the trial court had to consider it as such. Instead, in situations where the alleged nuisance is a result of what is claimed to be negligent conduct, the rules of negligence are applied.

The elements of a negligence cause of action, of course, are (1) the existence of a duty to the plaintiff, (2) a breach of the duty, and (3) injury to plaintiff flowing from the breach of duty. An owner of property located in an urban or residential area who has actual or constructive knowledge of defects affecting his or her trees has a duty to take corrective action. However, the same is not the case when the tree is healthy. In that case, the owner does not have a duty to remove healthy trees merely because the wind might knock them down.

In this case, the Court agreed, there was no evidence that Krussel had any reason to believe that the hemlock trees posed a hazard, and a professional forester who had inspected the stump of the fallen tree had found that the tree was free of defects. The mere possibility of harm does not mean probability of harm.

– Tom Root


Case of the Day – Wednesday, December 27, 2017


We’ve told you before to beware of what lurks in the dark and malevolent corners of your deed. Today, we’re going to look at a cautionary tale.

No one really thinks about the wording of easements when the power company or the gas folks come by with some standard form clipped to a dollar bill. The utility reps tell you that it’s no big deal, because the language is standard, no one can change it, and anyway, all your neighbors have signed off on the same form, so what’s the big deal?

We’re not a public utility, so we’ll tell you what the big deal is. Or, better yet, show you.

Consider New Jersey. Please. Just for right now. In East Brunswick, New Jersey (motto: “We’re located at Turnpike Exit 9”), a gas transmission company had acquired an easement for a 3-1/2 foot wide natural gas transmission pipe through some unimproved land back in 1967. The property, once used for only for mob hits and toxic waste dumping (just kidding), was sold sometime after the easement was granted. At some point, a housing development was over a 42” high-pressure gas line the company had buried inside the easement.

The utility had always patrolled its pipeline, and it was well aware of the 19 oak trees growing along the street 40 inches above the pipe. But when new evidence showed that tree roots could cause catastrophic pipeline failures, the gas utility announced it intended to cut down the trees.


And sometime, we retaliate by closing bridge lanes

The property owners, who probably had never bothered to read all of the boring stuff in their deeds that followed the “Know all Men by These Presents …” part, were outraged. They complained that the gas utility shouldn’t be allowed to cut the trees now, because it hadn’t ever bothered to before. This argument is called “laches,” based in the old legal maxim that “equity aids the vigilant.” Or, as some like to say, “Don’t sit on your rights.” The owners argued that the gas company had ever tried to remove the trees before, and – 40 years after obtaining the easement – it should not be allowed to do so now.

What’s more, the owners contended, the gas company couldn’t really prove the 19 trees were hurting anything.

Horrors! Imagine buying land subject to an easement, only to have the easement holder actually try to exercise the easement rights! As they say in New Jersey, “Oh, the humanity!” The gas utility carefully showed how new techniques had determined that tree roots could weaken high-pressure supply lines and in fact had caused some spectacular failures. The property owners could only muster an expert who opined that the tree roots in question probably wouldn’t grow that deep.

The Court of Appeals agreed with the trial judge. The gas company didn’t have to show that the tree roots were damaging the line, only that it had a reasonable basis for keeping roots away from its pipe. The evidence easily did that. As for the laches argument, the Court agreed that nonuse of an easement in New Jersey didn’t lead to loss of the right. Plus, the Court said, the gas company had a good reason for not seeking to remove the trees until it did, as science had only recently determined that tree roots and gas pipelines didn’t mix.

Township of East Brunswick v. Transcontinental Gas Pipeline Corp., Not Reported in A.2d, 2008 WL 2627688 (N.J.Super.A.D., July 7, 2008). Transcontinental (“Transco”) operates an interstate natural gas transmission system that runs from the southern Atlantic seaboard to New York City. One of its main lines, the Lower Bay Line, runs across East Brunswick and along Timber Road. This 42” high-pressure gas line was built in 1967.

When trees fall on power lines, the lights go off for a few hours. When gas transmission lines are breached by tree roots, the misadventure that follows is usually much more energetic.

When trees fall on power lines, the lights go off for a few hours. When gas transmission lines are breached by tree roots, the misadventure that follows is usually much more energetic.

Transco holds a 100’ wide easement for the pipeline pursuant to a right-of-way agreement “for the purposes of laying, constructing, maintaining, operating, repairing, altering, replacing and removing from time to time one or more pipelines … together with such other rights as may be necessary or convenient for the full enjoyment or use of the rights herein granted [including] the right to enter upon the right of way and easement … at such times as Grantee may elect … and the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation and maintenance of Grantee’s pipe lines[.]”

The owner sold the property subject to the easement, and in the 1980s it was developed into a residential community of single family homes. The width of the easement covers the width of Timber Road, the sidewalks and portions of the residents’ front yards. The pipeline is buried 40” deep and runs along one side of the street in the public space between the sidewalk and the curb.

Nineteen shade trees were planted some time during the 1980s between the sidewalk and the curb, so that they are growing directly above the pipeline. Transco knew of the existence of these shade trees because it regularly inspected and monitored the pipeline. Natural gas pipelines must be properly maintained and monitored because any rupture can cause serious damage. Transco monitors the pipeline and has an extensive program for on-site inspection of the Lower Bay Line pipeline right of way. An inspector walks directly over the pipeline at least once a year to perform ground tests to determine if natural gas is leaking. The right of way is patrolled almost daily by vehicle and it is inspected once a week by air to determine if any unauthorized excavation is occurring in the area and to detect early signs of leakage.

Concerned about damage to the pipeline’s protective coating by tree roots, maintaining a clear line of sight along the pipeline, and preventing any delays in reaching the pipeline in an emergency, Transco tried to remove the 19 trees above the pipeline as part of a larger effort to remove trees above all of its pipelines in the area. The residents sued for a temporary restraining order enjoining Transco from removing the trees. Transco argued it had an absolute legal right to remove the trees under the right-of-way easement. Plaintiffs argued there was a genuine issue of material fact whether the trees endangered the pipeline, and whether their removal was reasonably necessary for Transco’s enjoyment of its easement right. No evidence was adduced that the tree roots were currently damaging the pipeline but there was evidence of potential harm.

A 2004 investigation revealed metal losses in the pipe walls ranging from 6% to 15% at various locations along Timber Road. Additional testing in 2005 uncovered pipeline coating defects or interruptions at some of the same locations where the metal anomalies were discovered, but neither inspection definitively determined that tree roots were the cause of the damage. Finding that Transco need not wait for actual damage to its pipeline before exercising its express easement rights, the judge concluded, “the record indicates that tree roots may damage the protective coating of the pipeline …. [and][f]urther, efforts to keep the protective coating of the pipe intact [are] part of the necessary maintenance program for a pipeline.” The judge also reasoned that while the pipeline’s path is marked with yellow markers, the presence of the trees detracts from the area’s appearance as a right of way and may lead to third party interference with the pipeline, one of the biggest causes of pipeline accidents. The court granted summary judgment for Transco and the plaintiffs appealed.

easement150908Held: Transco had the right to remove the trees. The Court said the primary rule of construction is that the intent of the conveyor is normally determined by the language of the conveyance read as an entirety and in the light of the surrounding circumstances. Here, the easement plainly and expressly gave Transco the right to remove trees when they may endanger or interfere with the construction, operation or maintenance of the pipeline. The language specifically stated the grantee had “the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation and maintenance of Grantee’s pipe lines….” The easement also clearly gave Transco the right to remove trees if they interfere with Transco’s immediate access to the right of way. The plain language of the easement gave Transco the express right to remove trees and did not require actual damage to or interference with pipeline operations before the trees get cut. The easement permitted preventive action to avoid potential harm, disruption or interference with the operator’s pipeline.

The uncontroverted evidence showed that the pipeline and pipeline coating along Timber Road has been damaged, and although there was no proof the damage has been caused by tree roots, other sections of Transco pipelines and pipeline coating in New Jersey had been damaged by tree roots. The Plaintiff had no proof to the contrary, but instead their expert only posited that “the roots are not likely to interfere in any way with the pipeline;” the root systems are “generally non-invasive;” and root growth is “typically ” confined to the upper two to two-and-one-half feet beneath the ground surface. The proof didn’t foreclose the possibility that the tree roots may grow deep enough to interfere with the pipeline, as they had in other sections of Transco’s pipeline.

Plaintiffs also contended Transco was barred from taking affirmative action by the equitable doctrine of laches, because it waited so long to exercise its easement rights. But the mere non-use of an easement cannot destroy the rights granted by it. Rather, clear and convincing evidence of the intent to abandon the easement rights must be shown. In this case, there was no evidence that Transco intended to abandon its easement rights; therefore, any reliance placed by plaintiffs on Transco’s inaction was unreasonable. Also, there was reasonable justification for Transco’s inaction over the years, having been unaware of the potential danger of the tree roots at time of planting. The evidence showed that since the trees were planted, there have been three accidents nationwide related to the rupture of natural gas pipelines and three incidents in this State where Transco has discovered that tree roots have damaged pipelines. The Court said that the fact that action had not been taken earlier did not preclude preventive action now, nor require waiting for actual damage to occur.

Plaintiffs simply did not demonstrate how their interest in preventing the removal of the trees outweighed Transco’s taking preventive measures in the public interest.

– Tom Root


Case of the Day – Tuesday, December 26, 2017


It's hard to enjoy an idyllic sunset when you can't get to the lakeshore.

It’s hard to enjoy an idyllic sunset when you can’t get to the lakeshore. Recreational use statutes make it easier.

A landowner really has no natural incentive to let people freely enjoy his or her land. You have a nice pond and woods, and, being as you’re a nice person, you let the birdwatchers’ society wander around looking for the white-throated needletail. Next thing you know, one of them steps into a prairie dog hole, and you’re being sued.

But public policy is strongly in favor of getting people out to enjoy nature’s bounty (and to exercise, a good idea after yesterday’s multiple helpings of Christmas goose and figgie pudding). For that reason, virtually all states have passed some version of a recreational use statute. These statutes generally that a landowner only has a duty not to be grossly negligent to people using his or her unimproved land without charge for recreational activities. They are intended to encourage the opening of private land – unspoiled natural areas – for free recreational use by shielding landowners from liability for the most common forms of negligence.

Today’s case raises an interesting question under the Texas recreational use statute. In this case, the City of Waco had a park that included limestone cliffs. A boy was sitting on the cliffs when a portion collapsed, causing him to fall to his death.

A user might anticipate he could fall off a cliff – but not that it would give way.

A user might anticipate he could fall off a cliff – but not that it would give way.

The City argued it couldn’t be held liable under the statute, because it did nothing to cause the defect in the cliffs. The Court of Appeals agreed with the boy’s mother, however, that it wasn’t necessary for the landowner to cause the defect, if the defect was so latent, that is, hidden, that the recreational user would not reasonably be aware of it. That one might accidentally fall off a cliff was foreseeable, the court admitted. But it wasn’t open and obvious that the cliff one was sitting on would suddenly give way.

Because the defect wasn’t obvious, all the boy’s mother had to do was advance in her pleading some allegation of gross negligence. In her complaint, she argued that the City was aware others had been hurt by falling rocks, and it had reports warning of the danger of collapsing cliffs. Those reports recommended the City post warning signs, but it didn’t do so. The court said that those allegations were good enough to make out a claim under the recreational use statute.

Kirwan v. City of Waco, 249 S.W.3d 544 (Tex.App 2008). Debra Kirwan’s son, Brad McGehee, was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the City of Waco, when the ground beneath him gave way and he fell about 60 feet to his death. Kirwan brought a wrongful death suit against the City, alleging a premises defect.

A firefighter who responded to the scene of Brad’s fall testified that an average person would “probably not understand that the ground could give way underneath them.” The trial court threw out the suit, holding that Kirwan had not: (1) “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or (2) “raised a genuine issue of material fact. Kirwan appealed.

Held: The suit was reinstated and sent back for trial. Kirwan challenged whether Texas Civil Practice & Remedies Code § 75.002(c)the state recreational use statute –requires that all premises defect claims be based on a condition created by the defendant, thus barring any claim based on the existence of a natural condition that the defendant happened to know about. Under the recreational use statute – intended to encourage landowners to open their property to the public for recreational purposes – a landowner’s duty to a user is no greater than that owed to a trespasser, the very limited duty to not injure anyone willfully, wantonly, or through gross negligence.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy's life.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy’s life.

The law is clear that a landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, an owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But the appeals court held that the recreational use statute permits claims based on natural conditions as long as the condition is not open and obvious, and the plaintiff furnishes evidence of the defendant’s alleged gross negligence. Here, the court said, the crumbling rocks and cracks on the cliff that gave way did not conclusively prove that the danger of the unstable cliff rock was open and obvious. Crumbling rock may alert the average person to the risk of slipping and falling, but certainly not that the ground will simply fall apart beneath him. The court ruled that unstable cliff rock is not necessarily an open and obvious condition that a person might reasonably expect to encounter.

To state a claim under the Texas recreational use statute, Kirwan had to allege sufficient facts to show that the City of Waco was grossly negligent. The pleadings need only provide a plain and concise statement of the cause of action sufficient to give the defendant fair notice of the claim involved. In her pleading, Kirwan alleged that the City was actually aware of the dangerous condition on the cliff, that other park patrons had died or been seriously injured by the condition of the cliffs, that the City received a report from its own expert warning of dangerous rock falls and advising the City to post signs warning of potentially fatal rock falls, and the City’s failure to do so, in fact, to warn or guard against this danger at all amounted to gross negligence.

The court agreed that Kirwan plainly alleged the City’s conduct amounted to gross negligence. The City’s complaint that the pleading didn’t allege that the City had created the condition was meritless: where a claim is based on hidden natural conditions, such as the structurally unstable cliff rock in this case, a plaintiff need not plead that the City was grossly negligent in creating a condition.

– Tom Root