Case of the Day – Friday, October 20, 2017



Island Realty’s coffers were as empty as a Venezuela grocery store’s shelves.

Taking a philosophical bend, a New York trial court asked “[i]f trees are cut in a forest that were going to be removed anyway does the owner have compensable damages?”

The Mottas couldn’t stand the overgrown and scrubby condition of unimproved land next door to their place, property owned by Island Realty. When another neighbor took matters into his own hands and cut back some of the offending saplings on the vacant land, the Mottas — bothered by falling leaves and insects, not to mention fears of West Nile virus — hired their own landscaper to cut back some other trees and vegetation on the Island Realty property.

The landscaper attacked the job with enthusiasm, and a neighbor — worried about the cutting because the Mottas weren’t home — called the cops. The police came and — this being New York City — everyone got a ticket because no permits to cut trees or park dumpsters had been obtained. One of the police reported the matter to Island Realty, too.

Island Realty had a case of the “shorts.” It wanted to develop the lot for housing, but its bank account was emptier than a supermarket in Caracas. So it sued the Mottas for treble damages under New York law, and brought in an expert who tried to sell the Court the amazing woof story that the one-third acre of cut saplings would cost $190,000 to replace.

The Mottas’ expert pointed out that the Island Realty development plan called for removal of the trees that the Mottas had cut. In other words, far from damaging Island Realty, the Mottas had saved the developer a few bucks by doing what the developer would have had to have paid to have done.

The Court was a bit vexed. It didn’t much cotton to the Mottas’ form of self help in clear cutting the neighboring land, but it couldn’t really find any damage, either. It ruled that under New York law, the lesser of diminution of value of the land or restoration costs was used to set damages. The Mottas had pretty well shown that the land wasn’t worth a dime less with the scrub cut. In fact, an aerial picture taken during the litigation (three years after the cutting) showed that the scrub was nearly all back.

show150714The Court held that because Island Realty intended to cut the trees itself, damages were nominal, and it ordered the Mottas to pay $100, trebled to $300. In fact, the Court gave credence to the Mottas’ suggestion that the whole reason Island Realty sued to begin with was to raise a pot of money to start the development that it was too cash-starved to pull off by itself.

333, Island Realty Assoc., LLC v. Motta, 21 Misc.3d 554, 863 N.Y.S.2d 866 (Sup.Ct., Aug. 22, 2008). Island Realty was a land developer that owned a large tract of unimproved wooded land in the south shore on Staten Island. Joseph and Joan Motta owned a house next door. The Mottas had often complained that the unattended trees on the Island Realty land had created a nuisance, because some of the trees hung over their property and fallen leaves had clogged their pool drains.

Motta’s neighbor – whose property also abutted the Island Realty land – exercised a little self-help by cutting a swath of Island Realty trees to create a 100 foot buffer zone between his backyard and the tree line. He did so without any permission or objection from the real estate firm. Seeking to create a similar buffer zone to safeguard his own property, Joseph Motta had a landscaper cut the trees that overhung his land and create a buffer zone away from the unattended trees for fear of insects and West Nile Virus, which was prevalent in Staten Island around the time of the cutting of the trees.

While the Mottas were not home, the landscaper and his crew went to work but became overzealous, cutting down various trees without Island Realty’s consent and with any supervision from the Mottas. A nosy neighbor called the police to inform them that trees were being cut while the Mottas were not home. Because the complaint involved tree cutting, police officers from the New York City Department of Environmental Protection responded to the premises and observed a wood chipper feeding into an open container. Upon confronting the landscaper, the police officers learned that Joseph Motta authorized him to clear out some trees. The police officers originally estimated that 100 to 200 trees were cut in an area about half the size of a football field, but later admitted they were not certain how many trees were cut down. The police issued Motta five summonses for cutting down trees without permission and for placing a container on the street without a permit. All of those charges were dismissed by the criminal court, except for the container charge, wherein the defendants paid a $250 fine.

Officer Friendly responded to a call from a nosy neighbor ... and stopped by the Mottas for a chat.

Officer Friendly responded to a call from a nosy neighbor … and stopped by the Mottas for a chat.

Island Realty was not immediately aware of the cut trees, but learned of it from the police. The company had planned to develop the wooded tract into a large development of houses, and in order to do so, it would have had to clear large sections of trees to comply with an approved plan. Ironically the Mottas argued that they rendered a benefit to Island Realty in removing trees at no expense that ultimately would have to have been removed in order to complete the building project.

Nevertheless, Island Realty sued Motta under New York Real Property Actions and Proceeding Law § 861, which authorizes treble damages for wrongful cutting of trees.

Held: Motta was liable for damages, but the damages awarded were nominal, $100 trebled to $300. The Island Realty expert estimated that 483 saplings would have to be planted to replace what was cut, at a price of $190,000. The trial court rejected the estimate as “incredible” and “preposterous.” Motta’s expert, on the other hand, testified that Island Realty was under no legal requirement to replace the trees, which it was going to cut down itself anyway. The Court accepted this opinion.

The Court followed the New York law principle that the measure of damages for permanent injury to real property is the lesser of the decline in market value or the cost of restoration. A plaintiff may demonstrate the costs of restoration, but then it becomes the defendant’s burden to prove that a lesser amount than that claimed by the plaintiff will compensate for the loss.

Here, the Court said, Island Realty only presented speculative testimony of the value of the restoration and disregarded balancing that testimony with the other evidence in this case, namely, that there was no decrease in the value of the land, especially when it was to be cleared for development anyway.

The Court warned that it did not condone the Mottas’ actions in cutting down Island Realty’s trees without permission. However, applying the rule of taking the lesser of the values between restoration —which was most speculative — and no diminution of the value of the land, the Court held it was clear that there was no diminution in the value of the land.

It was noteworthy, the Court said, that Mottas tried to buy the land from Island Realty after the cutting, and Island Realty wouldn’t adjust the price downward because the trees were gone. This suggested, the Court said, that even Island Realty didn’t think the land was worth less with the trees gone. Instead, it suggested that Island Realty’s lawsuit was only about getting startup capital for a building project from the Mottas instead of being about the value of the lost trees that would never be replanted.

– Tom Root


And Now The News …

Houston, Texas, KHOU-TV, October 19, 2017: Residents, business owner fight to save 100-year-old oak tree

Slowpokes coffee shop in Oak Forest is the perfect spot to sit back and get that daily caffeine kick. “We were named by the Houston Press Best Coffee Shop in Houston last week,” said JC Rubiralta. Rubiralta is the owner at Slowpokes. He opened the shop almost one year ago. He’s the only other tenant in this dilapidated strip center of West 34th Street. “We did a lot of improvements when we came in. We showed it a lot of love,” Rubiralta said. Since then, business has been brewing along. Their brand new patio and green space brings in customers every afternoon. “This part of the low was overgrown. They cleaned it. Now families love coming here, adults love coming here,” said Kerin Mayne. They come for the coffee, but stay for the 100-year-old oak tree. It’s a tree slated to be chopped down Saturday. The landlord wants to turn this wants to turn this patio space into more parking for his property. “Everybody is very disappointed that this may go through,” Rubiralta said…

Grand Forks, North Dakota, Herald, October 19, 2017: Minnesota tree removal company banned in N.D.

A Becker, Minn., tree removal company has been banned from “engaging in contracting” in North Dakota, Attorney General Wayne Stenehjem’s office said Thursday, Oct. 19. The attorney general’s office received a complaint from a North Dakota homeowner regarding Chris Gustafson, doing business as Nature’s Way Tree and Landscape, and started an investigation in August. The homeowner said he paid Gustafson $7,000 to remove trees and other work, but he didn’t complete the work and damaged the home. Investigators found that Gustafson wasn’t a licensed contractor in North Dakota and appeared to be engaging in false advertising. He responded to initial communications from investigators but ignored subsequent efforts to contact him…

Los Angeles, California, KCBS-TV, October 19, 2017: Several suspicious tree fires break out in North Hollywood

Firefighters Thursday morning extinguished a series of tree fires that erupted in a North Hollywood neighborhood. Four fires were reported in the area of Irvine Avenue and Califa Street, near Oxnard Street, between 5:35 a.m. and 5:53 a.m., according to a Los Angeles Fire Department spokesman. The fires spread to six cars before crews knocked down the flames. There were no reported injuries. Security video obtained from a neighbor appeared to show a person setting one of the fires and then fleeing. LAPD and LAFD arson detectives were investigating…

Bensenville, Illinois, Daily Herald, October 19, 2017: Bensenville’s tree program aims for bigger, stronger canopy

In the wake of the Emerald Ash Borer beetle invasion that claimed more than 1,200 trees in Bensenville, the village is in the midst of a long-term project to both restore its urban canopy and make it bigger and stronger. The village next week will continue its ongoing program to plant 60 to 70 parkway trees each spring and fall to offset the loss of all those ash trees that fell victim to the borer. The tiny bug left a giant path of destruction in every community where ash trees — with their resistance to road salt and ability to withstand the toughest weather conditions — had become a go-to choice for parkway plantings. Now, as Bensenville moves to replenish its canopy, officials say the village is working smarter to ensure a wider variety of parkway plantings that won’t fall prey to a single plague like Dutch Elm Disease in the 1970s or, more recently, the ash borer…

Cleveland, Ohio, Plain Dealer, October 18, 2017: Like Honeycrisp? Check out next generation EverCrisp apple

Heads-up Honeycrisp apple fans. There’s a new temptation on the tree. It’s called EverCrisp, born of a wildly popular Honeycrisp mother and Fuji father, and inheriting the fabulously explosive taste and texture of each. It’s taken 20 years of painstaking breeding in Midwest orchards just to get EverCrisp into stores. “It’s like raising a child,” says Bill Dodd of Hillcrest Orchards in Amherst. The Lorain County grower is head of the Midwest Apple Improvement Association, a group so keen on finding a more perfect apple, each member coughed up $100 seed money, hand-pollinated hundreds of trees, and shipped saplings out to test growers in six nearby states. “Ninety percent of the apples that resulted were terrible,” said Dodd. “You just have to find the perfect child…”

Minneapolis, Minnesota, Star-Tribune, October 18, 2017: Boy, 5, playing in hammock dies when tree falls on him in Sherburne County

A 5-year-old boy died Tuesday evening in Sherburne County when a tree fell on him as he was playing in his back yard, authorities said Wednesday. Edward Joseph Michalek was playing on a hammock with other children in Big Lake Township when a 7-foot-tall tree to which one end of the hammock was tied uprooted, fell and hit the boy on the head, according to Sheriff Joel Brott. Edward died at the scene. “This was a freak accident that led to the tragic loss of a young life,” Brott said. “Our thoughts are with Edward’s family during this difficult time.” Friends have set up a GoFundMe page to help the family with the child’s funeral expenses…

Detroit, Michigan, WXYZ-TV, October 18, 2017: Trees wreaks havoc on Detroit neighborhood twice in less than one week

“It’s basically a hazard to this whole entire block,” said Sheila Martin of a branches that have fallen from the same tree for the second time in a week. The first time, it completely blocked off Blackstone, near i-96 and outer drive, making it so cars couldn’t pass.  But what really alarmed neighbors is the fact that it almost struck a man who had been riding nearby on a bike. The city came out the first time and cleaned up the mess. At that point, they were told the city would return and pull the entire tree down two weeks later. But the tree didn’t make it a full week without falling again. Neighbors say they reached out to Channel 7 out of concern for safety after being unable to get through to the city…

Ask Metafilter, October 18, 2017: Neighbor’s tree on utilities- no one cares

Our neighbor has a huge cedar tree right next to the property line. This tree has been topped in the past, is rotten inside, and subsequently has a heavy broken branch being held up by the telephone line. I can’t get anyone to take action- what can I do to get this cleared up? I’ve sent messages to AT&T, to PG&E, to Oakland DPW, to my city council member. The agencies all say they’ve checked it out and either that it is fine-which it’s clearly not- or that it is not their problem because the tree is on private property. We’re talking about a heavy mass of branches from at least a 12″ diameter main branch, split from the tree but still growing (ie getting heavier).  Our neighbor is not a particularly nice person, and when we brought it up to him he said something like “well who knows whose property it’s on?” (it’s on theirs.) He doesn’t live in the house and is currently doing work to sell it, which complicates things- we’d like to try to buy the house and don’t want to antagonize him. However my limited, and possibly incorrect, reading of California law is that utilities are ultimately responsible for keeping trees away. In light of the recent fires I’m trying to get this solved again. How can I escalate this problem so that someone pays attention…

Brookings, Oregon, Oregon Public Broadcasting, October 17, 2017: Southern Oregon megafire may help suppress devastating tree disease

Usually the parking lot at Brookings’ harbor is filled with boat trailers, rusty pickup trucks and tourists.  But this day in late August is not a usual day. There’s a wildfire burning five miles from town – and the vehicles coming through are much, much larger. Jesse Dubuque, a resource advisor for the Chetco Bar Fire, directs the driver of a fire truck to a large shallow pool, about 6-inches deep with metal tracks leading in and out. “Vehicles that have been up on the fire or going up to the fire, they come and they drive up on to it,” she says. It’s called a weed wash. “There’s a pressurized water system that sprays all the contaminants (and) dirt,” Dubuque says. This is the front line in preventing the spread of sudden oak death, a plant disease that is killing trees by the thousands along Oregon’s south coast.  Tanoaks are the primary species affected, although there are dozens of the plants and shrubs that can be carriers…

Chico, California, Fox News, October 1, 2017: Chico State frat members sentenced after cutting down trees, report says

Members of the California State Chico chapter of fraternity Pi Kappa Alpha have been sentenced for illegally cutting down 32 trees and damaging 15 in Lassen National Forest. The trees were allegedly cut down as part of an initiation ceremony around April 21 at the Deer Creek Trailhead campground, the San Francisco Chronicle reported, citing a criminal complaint. Evan Clinton Jossey, the chapter’s former president, was sentenced to court probation and issued a $1,000 fine. The chapter must also pay $4,400 in restitution to the national forest. The group also must perform 9,800 hours of community service. The student newspaper, the Orion, published a photo from social media that showed scattered trash and damaged trees. About 80 students were present at the time of the photo…

Scientific American, October 17, 2017: Treating toxins with tree microbes

Groundwater pollution might have a new nemesis: trees with a boosted microbiome. Scientists recently harvested a particularly effective strain of toxin-degrading bacteria from a specific poplar tree and transferred it to others. This improved the trees’ natural ability to break down the carcinogen trichloroethylene (TCE)—an industrial solvent that has leached into underground sources near waste sites across the U.S. Study results, published in September in Environmental Science & Technology, suggest such trees could be planted over areas of heavily tainted groundwater as an efficient and affordable cleanup method. Ordinary poplars are sometimes planted to help remove TCE from lightly contaminated groundwater. But that does not always degrade the chemical fully, and heavier cleanups may require bioremediation machines that involve often prohibitive sums between $700,000 and $3 million for installation alone. In earlier research, Sharon Doty, a plant microbiologist at the University of Washington, and her colleagues had genetically modified a poplar to cope with high TCE levels. Like all GM plants, however, it required lengthy environmental impact testing that deterred potential planters…

Sonora, California, Union-Democrat, October 17, 2017: Tree worker dies in accident east of Groveland

A tree worker died Monday morning in an accident outside a home east of Groveland. Jason Alan Stuart, 35, was a resident of Bay Point, an East Bay community in Contra Costa County, according to staff at Terzich & Wilson Funeral Home of Sonora. A call about the incident came in at 10:45 a.m. and the accident location was 21925 Big Creek Shaft Road, a residence, said Sgt. Andrea Benson with the Tuolumne County Sheriff’s Office. The company is local, from Groveland, and it’s called Down to Earth Construction. Workers were doing tree work and according to the company owner, Stuart was about 80 to 100 feet up a large Ponderosa tree.

Bangor, Maine, WABI-TV, October 16, 2017: Black tar fungus affects trees in the State of Maine

Allison Kanoti, Forest Entomologist said, “The leaves are the energy factories of the trees, so when those energy factors are impacted, it impacts the tree’s ability to maintain itself.” In the fall season, most folks are looking at how beautiful the foliage is…but if you ever looked closely at the leaves, some have black blotches. The culprit? The Black Tar Fungus. “The black tar is a structure that is created by the fungus. The fungus affects the leaf tissue and then creates the black stoma on the leaf surface. It’s part of the fungal body” The fungus is native to our region…the disease is severe in many places in Maine. We’re told Bangor is worse than most areas.  “Could be something to do with the early spring weather, really cool, wet, may really foster the infection of the leaves as they developed and really by the end of July you’re starting to see the leaves brown and curl.” The Norway Maple came from Europe…that’s why the tree is most susceptible to the fungus. Some have probably noticed more leaves on the ground…

Long Island, New York, News 12, October 16, 2017: Pine beetles remain continued threat to Long Island trees

A frantic effort is underway to stop what’s being called the greatest threat ever facing Long Island’s Pine Barrens. The Southern pine beetle is responsible for destroying 5,000 acres of pine trees of the Pine Barrens’ 100,000 acres. Another 6 acres of infested trees were recently discovered in East Hampton. The beetle burrows into tree bark, causing “bullet holes” and killing the trees within a matter of months. Forest specialist John Wernet is an environmental conservation officer for the state who has been working with a DEC team for the past three years, cutting down infected trees. He says warmer temperatures caused by climate change have caused the Southern pine beetle to migrate up the Atlantic Coast.  “The only thing that really does kill the beetle is by cutting the tree down. We increase the likelihood it will be killed by either cold or heat,” Wernet says…

Bob Vila, October 16, 2017: Solved! What to do when a tree falls on the house

Q: We just experienced a strong thunderstorm, during which a tree blew over on our house! We have no experience with this sort of thing. What should we do now? Help!
A: A tree falling on a home—for any reason, whether due to high winds, an ice storm, or a rotted tree simply toppling—can cause extensive structural damage. Immediately get your family out of harm’s way, and then focus on minimizing additional damage and having the damage repaired. Call 911 and the electrical company if power lines are down. When a tree falls on the house, there’s always a chance it’ll take electrical power lines down with it. This creates a hazardous situation with an increased risk of fire or deadly electrical shock. Signs that a power line is down include no electrical power in the house or flickering lights. From outside, you may be able to actually see if a power line is trapped in the fallen tree. In some cases, a downed line may still be functioning, but it still creates a risk, so shut off the power at your breaker box if you know or even suspect that the tree took a line down with it. Call the authorities and your local electrical company. If you smell smoke, get your family out of the house and call from your neighbor’s. The electrical company will dispatch technicians to repair the lines. Local law enforcement may need to block traffic on your street, and the fire department may send a unit to stand by as a precaution until safety is restored…

Cincinnati, Ohio, WLWT-TV, October 16, 2017: Bridesmaid killed, maid of honor injured by falling tree in NKY

A tree towering near a Ft. Wright reception hall fell, without warning, killing a bridesmaid and severely injuring the maid of honor Friday. Heather McNamara, a bridesmaid, was pronounced dead on the scene. Rebecca Wright, the maid of honor and sister of the bride, was pinned under the tree, but survived. The bride and groom said after decorating the Lookout Heights Civic club, some members of the wedding party walked outside to take a break. With no warning, a tree on a hillside behind the hall, towering eight to 10 stories above it, suddenly cracked and came crashing to the ground. McNamara and Wright were sitting under a canopy and we’re told that even if they had heard the noise, they couldn’t have seen the tree coming…

Cleveland, Ohio, Plain Dealer, October 15, 2017: Neighborhoods stepping up to save their ash trees, preserving their shade, green beauty 

The emerald ash borer, a metallic green beetle from Asia, has devastated Ohio’s native ash trees over the past decade, killing millions of them in the state. But some neighborhood groups in Northeast Ohio aren’t surrendering without a fight. Other cities are beginning to calculate the value of their ash trees, and the economic benefits of saving them with insecticide treatments, versus chopping them down. Scientific studies have shown that healthy landscape trees typically increase property values; provide shade and reduce air-conditioning bills; and contribute to the quality of life in a neighborhood. The larger the trees, the greater the economic benefits Neighborhoods across Ohio are facing this dilemma: Should they spend the money to save their ash trees, or spend the money to cut them down? The emerald ash borer has no natural predators, and ash species in North America have no defense against it. If left alone, there is nothing to prevent the beetles from burrowing into every ash tree in North America, causing certain death in three to five years…

Davenport, Iowa, Quad City Times, October 15, 2017: Newly planted trees need care through winter

Newly planted trees need care over winter to make sure their growth isn’t delayed or derailed. Here are some questions about new trees with answers from horticulturists at Iowa State University Extension & Outreach. To have additional questions answered, contact the ISU Hortline at 515-294-3108 or
Q: How long should I continue to water newly planted trees?
A: The roots of trees continue to grow until the ground freezes in winter. If the weather is dry, continue to water newly planted trees until the soil freezes. Small trees usually require watering for one or two growing seasons. It may be necessary to periodically water large trees for three or four years…

Normal, Illinois, The Pantagraph, October 15, 2017: Taking root: Sapling from last Johnny Appleseed tree planted in Normal

Johnny Appleseed has taken root in Normal. A sapling grafted from the last known surviving tree planted by John Chapman, or Johnny Appleseed, was planted Friday in the Refuge Food Forest in Normal. The Illinois State Historical Society acquired enough saplings for each county in the state. The McLean County Museum of History purchased a tree to commemorate the state’s bicentennial anniversary in 2018. “Johnny Appleseed is sort of an iconic character. We assume oftentimes he’s just legend and lore, but he was an actual, historical character and he did come through Illinois,” said Bill Kemp, archivist and librarian at the museum. According to the Starhill Forest Arboretum, Chapman planted apple nurseries in the early 19th century in Illinois, Indiana and Ohio, using apple seeds from a cider mill near his hometown in Pennsylvania. He sold trees to settlers and planted seeds during his travels across the Midwest. The last known surviving tree planted by Johnny Appleseed was in Nova, Ohio, which is where the Normal sapling was grafted…

Bangshift XL, October 15, 2017: Watch a team of expert arborists remove massive trees in California with no margin for error

This is an interesting video because there are two very stark sides to it. The first side is a rough one and it becomes immediately apparent within about 15 seconds of the video starting. Something is killing lots of pine trees in California. The drone shot over looking lots of the very tall trees reveals a sea of browned out trees and that’s bad. Those are dead and they aren’t coming back. We’re not sure if it is disease, a pest, or what but it is a pretty sorry state of affairs. The other side of the story is the amazing work being done by the crews of arborists highlighted in the video working for a customer who is having them remove some trees. These things are very, very tall and there is very little room for these guys to operate in. They cannot fell the trees in the traditional manner and they are not using helicopters to top them and remove the pieces. Nope, these guys are hardcore, they use rigging techniques and the other trees they are taking down to get the chunks to the ground. One of the most awesome cuts in the whole video is when one of the climbers is way up on the tree and he cuts about 20-30ft out of it and just lets the whole thing drop to the ground where it falls tightly to the trunk… Watch the video, October 12, 2017: Tropical tree roots represent an underappreciated carbon pool

Ask someone to draw a tree and he or she will invariably draw a trunk and branches—leaving the roots out of the picture. In a unique study of tropical tree roots at the Smithsonian Tropical Research Institute published in PLOS ONE, roots accounted for almost 30 percent of the total biomass of young trees. The authors hope that future estimates of carbon storage and water-use by tropical forests will include information on root biomass and architecture. “Studies like the article published by Baccini et al in the Sept. 28 issue of Science use satellite data to measure aboveground carbon density,” said Jefferson Hall, director of the Smithsonian’s Panama Canal Watershed (Agua Salud) experiment. “It is fairly common practice to calculate forest carbon storage either incorporating root mass via a fudge-factor, or leaving it out altogether. What percentage of a tree is underground? How does this change with climate, soil fertility, and over time? The answers to these questions will refine our ability to understand how forests respond to global change…”

San Francisco, California, Chronicle, October 12, 2017: California Supreme Court: Boy hurt by fallen tree can sue San Mateo County

The state Supreme Court has cleared the way for a 12-year-old boy, who was nearly killed when a 72-foot tree fell on his tent at a San Mateo County park, to sue the county for road-building and construction activities that allegedly helped to cause the collapse. The court denied review Wednesday of the county’s appeal of a lower-court ruling allowing the suit to proceed. Justices Ming Chin and Carol Corrigan removed themselves from the case, for unstated reasons, and none of the other five Supreme Court justices voted to take up the appeal. The tan oak tree toppled onto a tent where Zachary Rowe was sleeping on a camping trip with his family at Memorial Park, east of Pescadero, in July 2012. The boy’s pelvis was crushed, his internal organs were injured, and his right leg had to be amputated. Investigators later found that a fungal disease had weakened the tree and caused it to fall…

Hilton Head Island, South Carolina, The Island Packet, October 12, 2017: Police: DNA links Hilton Head tree service owner to vandalized, stolen property

The owner of a Hilton Head Island tree service company has been charged with grand larceny and malicious injury to property after DNA evidence linked him to the scene of an incident in June where property of a competing tree service company was damaged. Leonard Mink, 38, was charged on Monday and taken to the Beaufort County Detention Center, according to detention center records, in connection with an incident that happened between 7 p.m. on June 21 and 7:45 a.m. on June 22 near Hilton Head Island Town Hall. According to a Beaufort County Sheriff’s Office report, on June 22, the owner of a competing tree service company reported that his employees arrived to work around 7:30 a.m. and found that multiple chainsaws were missing and that the work vehicles and trailers the company owned had flattened tires and other damage. The vehicles had been locked and left in their normal storage location on Town Center Court overnight, the report said…

Atlanta, Georgia, WXIA-TV, October 12, 2017: Grant Park neighbors concerned about tree cutting

Kevin Ward loves living in the city in the forest. “It’s old growth, it’s lots of shade, big trees, spaces between the trees,” said Ward. “It’s a real treasure for the city of Atlanta.” His Grant Park neighborhood offers all of that and more, but fences, caution tape, and trees with “X”s put the community on alert of what they could lose. Ward and others are concerned that two projects will mean the removal of some 250 trees in the area that he says are mature and healthy…

Atlanta, Georgia, WABE Radio, October 11, 2017: In Atlanta, it’s more complicated than trees versus developers

There used to be trees across the street from Portia Webb’s house. She’s lived in the Atlanta neighborhood of Reynoldstown for 50 years, she says. There was a big old house on the lot across the street. And up until a few years ago a ministry that was around the corner would bring kids to the lot to play. “When they’d get out of school. Plant little veggie gardens over there,” she says. “A lot of habitat lived over there. The squirrels and the hawks.” The ministry that worked with the kids has moved; now there are townhomes on that spot around the corner. And the trees in the lot across the street are gone, too…

Columbia, Missouri, KBIA Radio, October 11, 2017: Weed killer Dicamba eyed in oak tree damage across Iowa, Illinois and Tennessee

As soybean and cotton farmers across the Midwest and South continue to see their crops ravaged from the weed killer dicamba, new complaints have pointed to the herbicide as a factor in widespread damage to oak trees. Monsanto and BASF, two of agriculture’s largest seed and pesticide providers, released versions of the dicamba this growing season. The new versions came several months after Monsanto released its latest cotton and soybean seeds genetically engineered to resist dicamba in 2016. Since then, farmers across the Midwest and South have blamed drift from dicamba for ruining millions of acres of soybeans and cotton produced by older versions of seeds. Now, complaints have emerged that the misuse of dicamba may be responsible for damage to oak trees in Iowa, Illinois and Tennessee…

Washington, D.C., WRC-TV, October 11, 2017: Virginia tree-cutting company investigated for alleged fraud

Fairfax County Police are investigating a company accused of targeting elderly homeowners and using scare tactics to get them to buy services they don’t need. Rose Mikus, of Reston, Virginia, and Deborah Deutschendorf, of Springfield, got unsolicited visits from a company called Savannah’s Tree & Yard Experts. Both said a person identifying himself as Johnny Walker told them he noticed they had dead trees in their yard and said he and his crew could remove them. “Starting at $3,800,” Mikus said. “The whole amount was almost $10,000,” Deutschendorf said…

Brooklyn, New York, News 12, October 11, 2017: Dyker Heights businesses claim tree is affecting sales

Two Dyker Heights businesses claim that a tree is affecting their sales. Joseph Caria would love to show off his 13th Avenue shop, Luca Salon, after spending a month renovating it, but he says that’s not quite possible. “We can’t because we have this tree in front of our store,” he says. “It’s actually blocking the awning; people don’t know we’re here.” “It totally blocks both of our stores, the names, you can’t see the signs,” says Trudy Wisner, owner of also-affected shop Paws R Us. “And now it’s hanging down so low you can’t even see in from the outside.” The city Parks Department tells News 12 that “risk is determined by the likelihood of a branch hitting a target and the consequence of that impact. This tree was found to be low risk and in good condition following two recent inspections…”

Greensboro, North Carolina, WFMY-TV, October 10, 2017: Tree troubles: When you have them thanks to your neighbor

A Monroe family says they’re afraid of a large tree behind their property, which is splitting. They’re convinced the tree will come down at some point and they are asking the developer who owns the land behind them to step in and take care of the tree he owns. The family was so worried, they decided to “Get McGinty” to help remedy this issue. Noelle Brockway said, “every day that crack gets larger.” Noelle says that huge tree used to provide plenty of beauty and shade, then one calm quiet non-stormy night, it split with thunderous force at 4 a.m. Noelle’s husband went to investigate the crash and said, “it wasn’t until he went behind the fence he saw the tree had just busted apart.” Since then, the Brockway’s have noticed what looks like a split in the tree’s center. They’re not arborists but added this doesn’t look good or bodes well for what might happen…

Tampa, Florida, WFLA-TV, October 10, 2017: Massive tree still looming over St. Pete home after mobile home park makes promise to fix

A St. Petersburg mobile home park, Sawgrass Lake Estates, promised Better Call Behnken two weeks ago that it would take down a massive tree looming over a home. That still hasn’t happened and Kimberly Lyle says management told her it might not come down at all, even after a local tree company offered to take it down for free. “Why would you turn down free?” Lyle asked. “What’s the problem?” Lyle says Hurricane Irma caused the tree to lean. She says an arborist estimated the tree at near 100 feet tall. “A big wind and that tree’s coming down,” Lyle said. Lyle owns her home at Sawgrass Lake Estates. She rents the land and the tree is the responsibility of management. Lyle claims she’s never seen anyone maintain the tree and it just grew out of control…

York, Pennsylvania, WPMT-TV, October 10, 2017: Dead tree on utility wires leads to dispute between Mt. Gretna residents and Verizon

A dead tree hanging on Verizon cables along Butler Road has led to a dispute between Mount Gretna emergency personnel and Verizon, according to West Cornwall Township police. The tree is sagging against wires just north of Old Mine Road, police say. West Cornwall police say they’ve called Verizon several times to alert them about the tree, as have members of the Mount Gretna Fire Department and local residents. But, police say, Verizon has told them it will not remove the tree unless it brings down the wires. The Mount Gretna Fire Department says it can’t remove the tree because it’s touching the utility lines. Police say the tree is a safety hazard to motorists along Butler Road, but efforts to resolve the situation “have so far been futile…”

Tulsa, Oklahoma, World, October 9, 2017: About two-thirds of ash trees in city parks targeted for removal in anticipation of insect infestation

Dave Zucconi knows he isn’t going to make everyone happy. Check that: He knows he probably won’t make anyone happy. His job, after all, is to determine which ash trees in the city’s park system live, and which ones get the ax. “I’ll probably face a lot of criticism at different points in this project,” said Zucconi, who is the city of Tulsa’s urban forester. The city is preparing for the arrival of the emerald ash borer, a tiny, tenacious bug that kills ash trees. According to the preliminary findings in Up With Trees’ Urban Forest Master Plan, Tulsa has about 200,000 ash trees. Zucconi has identified a total 947 ash trees in 80 of the city’s 134 parks and two city-owned golf courses. The figure includes only those ash trees within the “mowed and maintained” areas of the parks. In total, the park system has about 14,000 trees in its mowed and maintained areas, according to a 2004-2005 survey…


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Case of the Day – Thursday, October 19, 2017


It’s baseball playoff season, where a team can have an off night or two, but still take the Series. First, there were the four best-of-five division playoffs (where our beloved Cleveland Indians won the first two games only to crater in the next three). Now, we’re in the middle of the best-of-seven league championships, to be followed by the World Series, which is another seven games.

Maybe we’re simple people, but we like the football playoffs, where a single game determines who goes on and who goes home. One and done. All you get. Single elimination.

That’s how the judicial system works. If you’re sued and win, the loser does get not another bite of the apple. No do-overs. No mulligans. Of course, if you’re sued and lose, the same is true.

Mary Shiel and her neighbors, Keli Jo and John Rowell, enjoyed what the court called “an uncomplicated and pleasant relationship; throughout the years, there would be soirees, weddings, and the usual and customary events that form the bonds of comity in the community.” All was not placid, however. There was a tree, you see…

Mary and the Rowells shared a property line on which a tree grew. And grew and grew. The tree seemed to favor Mary, because it did most of its growing in her direction. The limbs bothered Mary, and as the tree grew, so did her aggravation. The friendship frayed, and the police were called more than once. Finally, the Rowells had to get protective orders from their now-manic neighbor.

Any reader of this column knows the Massachusetts Rule. Like Dorothy, Mary had her own ruby slippers, or maybe a ruby-encrusted chainsaw. She had the power to remove those offending branches any time she wanted to. Except Mary didn’t want to. She wanted the Rowells to trim it for her.

Finally, she sued in Small Claims Court. Uncharacteristically for Small Claims Court, the magistrate conducted a full hearing, where Mary was remonstrated repeatedly not only by the magistrate but by her own lawyer. After testimony that consumed 68 pages of transcript, the Small Claims Court unsurprisingly found for the Rowells, holding that Massachusetts follows the Massachusetts Rule. If Mary didn’t like the branches, she could remove them herself.

Unsatisfied with the result, Mary hired another attorney and had him file a complaint in the Quincy District Court, alleging nuisance and trespass. That’s when Mary found out she was playing football, not baseball.

Shiel v. Rowell, 2017 Mass.App.Div. LEXIS 30 (Ct.App. Massachusetts, August 9, 2017). It is well established in Massachusetts that an individual whose property is damaged by an overhanging tree has no cause of action against a landowner of the property upon which the tree lies. The Massachusetts Rule empowers the aggrieved neighbor to engage in self-help and lop off the trespassing. After losing in Small Claims Court, Mary Shiel sued the Rowells, asking the court to adopt the Hawaii Rule, permitting her to hold the Rowells liable for nuisance and trespass because of the encroaching tree.

Mary sued in Small Claims Court, raising her nuisance and trespass claims. The Court ruled that the Rowells were not responsible for the branches overhanging Mary’s place. Mary did not much like the result, so she hired a new lawyer, and sued the Rowells in Quincy District Court, alleging the same causes of action litigated in the small claims hearing.

The Rowells filed a motion to dismiss the case, claiming both res judicata – a legal doctrine that literally means “the thing has been adjudicated” – and that the Massachusetts Rule required dismissal. The District Court judge ruled that the Massachusetts Rule claim was directly on point, so it was not necessary to reach the res judicata question, and dismissed Mary’s lawsuit.

Mary appealed.

Held: Mary had no right to force the Rowells to trim the tree.

The appellate court made short work of Mary’s appeal, observing that she did not “ascribe fault to the trial court’s decision other than that the judge should have disregarded the settled law and applied a different standard.” Mary wanted the court to adopt the Hawaii Rule, which the court called “a deciduously dissimilar state, which rejected the Massachusetts Rule for one providing a homeowner with a cause of action against a neighbor’s tree encroachment. We decline to fell judicial precedent.”

Litigation is football. When the trial is over, it is over. Single elimination. Sudden death. Mary thought she was in the baseball post-season, and had multiple games. She only needed one win, and in the end, reverted to football with a “Hail Mary,” asking a court in the home of the Massachusetts Rule to go Hawaiian.

Your season’s over, Mary. Now go trim those branches.

– Tom Root


Case of the Day – Wednesday, October 18, 2017


The tree was just doing what trees do.

The tree was just doing what trees do.

Your tree is growing, man. Do something!

That was Ed Chandler’s lament to his neighbors, the Larsons. The nerve of those Larson people, owning a tree growing near the boundary with Ed’s place. What’s worse, they had the unmitigated gall to permit the tree to drop its leaves on Ed’s property, and to let the tree’s roots to grow up to his garage foundation. Ed complained mightily, but to no avail.

Ed could have stood for merely mitigated gall, but not this unmitigated kind. Oh, the humanity! So, this being America in general and Illinois in particular, Ed sued. He claimed that “as a consequence of the growth of that tree plaintiff’s garage had been severely and greatly damaged from the roots of the tree so that ‘the foundation has been broken, walls damaged and the roof coming apart’.”

The trial judge, being a flinty, self-reliant sort, threw out the suit, holding that the tree was doing what trees do – growing – and the Larsons weren’t responsible for that. The Court of Appeals disagreed, citing Professor William L. Prosser’s gold-standard treatise on tort law:

“[I]t is scarcely suited to cities, to say that a landowner may escape all liability for serious damage to his neighbors, merely by allowing nature to take its course. A different rule accordingly has been developing as to urban centers. * * * [W]hen the tree is in an urban area, * * * the landowner now has a duty of reasonable care, including inspection to make sure that the tree is safe. Recent decisions have extended the right to reasonable protection from travelers on the street to adjoining landowners as well.”

Like it or not, the Massachusetts Rule increasingly seems to be a relic of a bygone era. The Illinois courts still seem to discount normal tree problems – falling leaves, sap and the like – but when genuine harm (we call it “sensible harm”) results to an adjoining landowner from a tree’s natural development, the tree’s owner may be liable for repairs and removal of the tree.

eviltree160815Chandler v. Larson, 148 Ill.App.3d 1032, 500 N.E.2d 584 (Ct.App. Ill. 1986). Chandler complained that his next-door neighbor, Larson, had a tree that for some time had been growing over and onto Chandler’s property, with the roots growing under his garage and the leaves growing above his property. As a result of the tree’s growth, Chandler’s garage foundation has been broken, with the walls damaged and the roof coming apart. Chandler asked the Larsons to cut down their tree, but they refused. Chandler asked for an injunction ordering that the tree be destroyed. The trial court refused.

Held: The appeals court ruled that an urban property owner owed his adjoining landowner the duty of reasonable care, which necessarily would include taking reasonable steps to prevent damage to the adjoining landowner’s garage caused by roots of the urban property owner’s trees. A complaint which alleged that the adjoining landowner had placed the urban property owner on notice that the roots from his trees were causing considerable damage to adjoining landowner’s garage and which alleged that although urban property owner had received the notice, he refused to uproot the tree or to use other methods which would prevent further harm, stated a good cause of action for negligence.

The ruling is substantially at odds with the traditional Massachusetts Rule that an owner of land is entitled to grow trees on any or all of his land and that their natural growth reasonably will result in the extension of roots and branches onto adjoining property, and the adjoining landowner’s only remedy is to trim back the roots and branches. The appeals court in this case held urban landowner Larson to a higher “city dweller” standard. This standard is generally known as the Hawaii Rule, which imposes liability upon the adjoining landowner if the trees, plants, roots, or vines cause harm in ways other than by casting shade or dropping leaves, flowers, or fruit.

– Tom Root


Case of the Day – Tuesday, October 17, 2017


You have to appreciate the careful prose of an appellate court. Today’s case was brought in 1999, but was still sputtering along eight years later. The Rhode Island Supreme Court thought it knew why.

Never-ending litigation ... Rhode Island style

Never-ending litigation … Rhode Island style …

After a few pointed comparisons of the case to Jarndyce v. Jarndyce, the Supreme Court asked the trial court what the Dickens was going on. The trial judge took his dear sweet time writing a decision — about five years — leading the Supreme Court to mention in a note, “We are mindful of the inordinate delay of the decision of the trial justice, which this Court does not favor.”

Beautiful understatement! The Supremes were saying to the trial judge, “Hey, dude, you’re lazy!” Of course, in the decision, the high court also implicitly said, “Hey, dude, you’re incompetent, too.” The reason for that was the trial judge’s failure to make the findings the Supreme Court needed to adequately review the decision.

A court speaks through its opinions, and when the trial court doesn’t make findings of fact, no one wins. The winner doesn’t know why he won, the loser doesn’t know why he lost, and the rest of us can’t derive any useful guidance from the case. In this case, an unusual argument arose in the battle over the location of an easement. The easement holder claimed the prior owner had obstructed the easement — a driveway — and demanded that the easement and everything on it be shifted a few feet to the south. This is called an easement by substitution. Some testimony suggested that an easement by substitution had been created. But the trial court couldn’t be bothered to make any findings on the issue, leaving everyone to puzzle whether something hadn’t been proven, some witness hadn’t been believed, or just what?

Perhaps a little burninating in the Ocean State?

Perhaps a little burninating of indolent trial judges was called for in the Ocean State?

So after eight years, the case landed back in the trial court’s lap. Maybe the judge was waiting for the owners to tire of it all and settle, or to die or move to Florida… or for Rhode Island to be swallowed by the rising seas, or be consumed by an angry dragon… anything that would spare this poor trial judge from having to do his duty.

Nardone v. Ritacco, 936 A.2d 200 (Sup.Ct. R.I., Dec. 3, 2007). Nardone’s property bordered Lawton Foster Road. Ritacco owned an adjacent parcel of land behind Nardone’s property, with no frontage on Lawton Foster Road. In 1965, Nardone’s predecessor-in-interest, Ralph C. James, Sr., granted Ritacco a 50-foot right-of-way along the northern boundary line of what is now Nardone’s property. The right-of-way for ingress from and egress to Lawton Foster Road, has been the subject of many years of litigation.

On Memorial Day 1999, Ritacco cut trees and vegetation within the right-of-way. Nardone sued for a temporary and permanent injunctive relief to prohibit Ritacco from cutting the trees and from trespassing on Nardone’s land. The trial court entered a preliminary injunction and later found Ritacco in contempt of the order by cutting trees and vegetation outside the right-of-way. A key issue was the location of the right-of-way. In addition to arguing that the right-of-way was not originally located along the northern boundary of Nardone’s property but rather inside the boundaries of the land, Ritacco also asserted two alternative claims for relief: the existence of an easement by prescription as well as an easement by substitution over plaintiffs’ driveway. The trial court decided for Nardone, clarifying that the right-of-way was located along the northern boundary of Nardone’s property. Nardone appealed.

Held: A remand was necessary to determine whether Rotacco had acquired an easement by prescription or by substitution over Nardone’s driveway. The Supreme Court held that the trial court had properly found that the right-of-way over Nardone’s land was located on northern boundary of the land. The deed itself placed right-of-way “along the northerly boundary line” of the premises, and Nardone’s expert witness testified that, upon examining property, the boundaries were clear and right-of-way was located along the northern boundary of property. Ritacco’s expert had said that the deeds were not clear, but he hadn’t inspected the property itself, and the trial court’s discounting of his testimony was therefore reasonable.

Does this pass for judicial garb in Rhode Island?

Does this pass for judicial garb in Rhode Island?

However, Ritacco had also claimed that he had acquired an easement on land inside the Nardone boundaries by prescriptive easement. The trial court had ruled against him without a trial, but the Supreme Court ordered a remand for trial on the issues. The Supreme Court held that the trial court hadn’t addressed the issue of Ritacco’s permissive use of driveway, let alone determine whether sufficient factual support existed to conclude that permission to use driveway was given by Nardone or his predecessors-in-interest. A party who claims an easement by prescription bears the burden of establishing by clear and convincing evidence actual, open, notorious, hostile, and continuous use under a claim of right for at least ten years. In this case, the Court ruled, the trial judge had failed to make the specific findings of fact upon which he based his decision. When that happens, the trial court risks reversal or remand unless the record yields a full understanding and resolution of the controlling and essential factual and legal issues.

Here, there were unaddressed issues that were raised in pleadings and testified to at trial, including Ritacco’s testimony that perhaps Nardone’s predecessor-in-interest had granted him an easement by substitution. When the owner of a servient estate closes with a wall or other structure the original easement and points out another way which is accepted by the owner of the dominant estate, the new way may become the easement by substitution. The Supreme Court said that testimony indicated that James may have granted Ritacco an easement by substitution. However, the trial court failed to determine whether sufficient factual support existed to conclude that an easement by substitution was granted.

– Tom Root

Case of the Day – Monday, October 16, 2017



… that confounded sodbuster neighbor just done cut our power line with his plow. In the ensuing fire that swept across the plain, the trees planted in our windbreak went up like Roman candles, and the ranch hands couldn’t stop the conflagration. Sure, the farmer was negligent, but to what extent?

One of the first things new law students learn is the lesson of Hawkins v. McGee, the “case of the hairy hand,” in which we find that the measure of damages is the difference between the value before the breach or the negligence, and the difference after the breach. Nebraska law in this case held that if the trees were used for residential or recreational purposes, the damages are the replacement cost of the trees up to the value of the real estate. But if they were just used for agricultural purposes, the Hawkins v. McGee formulation is fine.

hairyhandHere, replacement of the trees would cost over $270,000, but the reduction in value of the farmland was only $30,000. David Spicer, owner of the ranch, tried to bootstrap himself into qualifying for the “recreational” formulation by arguing that not only did he use the windbreak for the usual agricultural purposes, but he relied on it for recreational purposes as well, including for his kids’ 4-H projects. The 4-H projects argument was especially touching, except that David Spicer’s youngest kid was 25 years old. And we thought the President and the “fake news” media twisted the facts occasionally

The trial court granted summary judgment on the damages question, holding that the replacement cost exceeded the value of the land, and that $30,000 was adequate to compensate for the loss of the trees. The Court of Appeals ruled, however, that whether the trees were recreational in nature or agricultural in nature was a question of fact, and the trial court was wrong to resolve that question without a trial.

The issue of how to value the loss of trees – especially where the value of the tree to the homeowner is due to noneconomic reasons such as beauty, sentimentality or recreational value, arises often, and for good reason. The aphorism in real estate is that value of a home depends on location, location, location. Much could be said of trees as well. The mighty oak that shades the plantation house is worth far more than its identical twin standing a quarter mile into the woods behind the fields. Determining exactly how much more may require juries to consider not so much stumpage prices as the quality of 4-H projects.

Spicer Ranch v. Schilke, 734 N.W.2d 314 (Neb.App., 2007). Schilke farmed leased land next to the Spicer Ranch. While he was plowing one day, he cut a power line leading to some irrigation pumps. A fire resulted, which — before it burned out – destroyed a windbreak on Spicer Ranch consisting of red cedar and juniper trees, and located about five hundred yards from the ranch house. Spicers used the windbreak, which was on a 110-acre tract of land, in the normal fashion of slowing the wind, providing shelter for cattle, for calving, for horses and for general farm use. David Spicer – mindful of how damages were figured in cases such as these – also maintained that he used the trees for recreational purposes including his kids’ cataloging the trees for 4-H projects (except it turned out that his youngest child was 25 years old). Spicer sued for negligence, which was pretty much conceded.

Claiming the windbreak was worth $270,000 was just so much puffery ...

The Court found that Spicer’s claim that the windbreak was worth $270,000 was just puffery …

In an affidavit to the trial court, Spicers’ expert valued the windbreak at $270,000 for replacement of the trees. But the trial court granted summary judgment to Schilke, finding that to value the trees on the 110-acre tract at $270,000 far exceeded the value of the real estate involved. The trees included only made up a small percentage of the tract, the Court found, and that small percentage of land likewise would not be permanently damaged because of the loss of the trees. The trial court awarded Spicer Ranch $30,000 as the highest amount of damages suffered by Spicer Ranch.

The sodbuster was relieved. The rancher was not, and appealed.

Held: Summary judgment was reversed on the damages issue. Spicer Ranch argued the district court erred in using a “before and after” measurement of damages. Instead, it said, to determine compensatory damages for destroying trees and for related damage to the land – where the owner of land intends to use the property for residential or recreational purposes – the owner is not limited to the difference in value of the property before and after the damage or to the stumpage or other commercial value of the timber, but instead may recover the cost of reasonable restoration of the property to its preexisting condition or to a condition as close as reasonably feasible.

The Court of Appeals noted that the trial court’s implicit rationale for its calculation of damages is that the land was used for the farming business, not for any recreational purposes, apparently because of the age of the youngest child was then 25 years old. The trial court’s finding failed to account for the material question of fact as to whether the windbreak was used for residential and recreational purposes, as stated in David’s affidavit, or whether the windbreak was simply a “normal and average farm windbreak,” as could be implied from David’s deposition testimony and as stated in the affidavit of a real estate appraiser. The Court of Appeals noted that measure of a plaintiff’s damages would depend upon the evidence presented at trial and might require alternative instructions, depending upon the jury’s determination of contested factual issues. Because a material issue of fact existed, the Court of Appeals held, summary judgment with respect to damages was improper.

Even under the “before and after” theory of damages used by the trial court, the evidence revealed a range of damages — not just a fixed, undisputed figure of $30,000. The trial judge made a factual finding when he awarded Spicer Ranch $30,000, which he said “is the highest amount of damages suffered by the Ranch according to the before and after damage appraisal.” He should have simply determined whether a material issue of fact existed with respect to damages, and – if one did – set the case for trial. The matter had to be returned to the trial court.

– Tom Root

Case of the Day – Friday, October 13, 2017


Bernie may have left the political stage, but with Antifa around, we still are reminded daily of those corporation-hating New Radicals, whose work is still hanging around on YouTube warning us that “you only get what we give.” The defendants in today’s case found that out a bit too late.

McCammon's excuse - the dog chewed off the boughs - didn't cut it with the jury.

McCammon’s excuse – an arboriculture version of “the dog ate my homework” – didn’t really resonate with the jury.

In many ways, a civil action is little more than a gladiatorial contest, with the court sitting to referee according to procedural rules, to apply the law when needed, and to correct inequities only in egregious circumstances. That’s sort of what happened when the McCammons – garden center owners who were buying tree boughs wholesale from “Trees 4U” – cut the boughs they needed not only from the trees Reicosky had designated but also from some landscape trees they had been told not to damage (sounds kind of like Adam and Eve and the tree of knowledge, doesn’t it?).

The owners of “Trees 4U” — the Reicoskys — told McCammon that those trees were definitely not for him, and sued. They claimed McCammon had destroyed $35,000 in trees, and they wanted treble damages under Ohio law. McCammon claimed that Mr. Reicosky had given him permission to cut boughs from the landscape trees. Mr. Reicosky denied it. It was up to the jury to decide whose story to believe, and it believed Mr. Reicosky.

There may not have been any compelling basis for believing the one story over the other, but when the jury makes its decision, it has pretty much settled things. It’s sort of how pro football was before instant replay: what the official said happened was what had happened. (Cursed instant replay … but that’s a rant for another day, )

The other problem the McCammons faced came with jury instructions. A trial court gives a jury detailed instructions on what the law is, so that jurors can decide how the facts they find (such as determining that McCammon cut boughs from Reicosky’s landscape trees after Reicosky said not to) leads to the legal outcome (McCammon thereby committed a trespass and was reckless). Both sides may suggest jury instructions to the Court. Here, McCammon didn’t think things through, and agreed with an instruction that the jury figure up damages by adding the market value of the tree times the number of trees. Later on, McCammon realized that the real measure of damages should be lost profits, that is, the market value of the trees minus the cost of producing and selling them. After all, even kids running a lemonade stand know that you only get to keep the money you’re paid minus what it cost you to buy the lemonade and handmade sign. McCammon complained that he should get a new trial, because the jury hadn’t considered the costs of production when it calculated damages.

The Court of Appeals said McCammon was out of luck. The jury had made its decision on his liability, and whether it’s what the Court agreed with or not, there was evidence enough for a rational jury to reach its finding. And as for the damages, well, Mr. McCammon, “we get what we give.” The instruction might have been flawed, even unfair to the McCammons, but the McCammons were happy enough with it when it was given. A party can’t make a mistake, and then cry foul that the mistake happened.

Bough? Wow.

Bough? Wow.

Reicosky v. McCammon, Case No. 2006 CA 00342 (Ct.App. Ohio, Feb. 19, 2008), 2008 WL 442567 (unpublished). The McCammons ran a garden center, from which they sold, among other things, tree boughs to cover gravesites. They had trouble getting enough boughs, and began buying them from the Reicoskys, who operated “Trees 4U.” The Reicoskys delivered them one year, but in subsequent years, let the McCammons come to the “Trees 4U” tree farm and cut the boughs they needed. The first year the McCammons did so, the Reicoskys instructed them not to take any boughs from trees east of a particular drainage ditch, because those were landscape trees to be resold.

The McCammons limited their cutting to the west side of the ditch one year, but the next year came back, and this time cut boughs from the landscape trees on the east side of the ditch as well. The McCammons said Mr. Reicosky had given them permission to do so on trees taller than 16 feet east of the ditch. Mr. Reicosky denied doing so, and claimed he lost 211 trees, worth over $35,000. The Reicoskys sued.

There's an old legal aphorism - never trust the judgment of twelve people who aren't smart enough to know how to get out of jury duty.

There’s an old legal aphorism – never trust the judgment of twelve people who aren’t smart enough to know how to get out of jury duty.

At trial, the jury heard both sides, and then found for Reicosky, holding that he had suffered $35,000 in damage. The trial court trebled this under Ohio’s treble damages statute. The McCammons’ motion for a directed verdict – in which they argued that no evidence supported the finding of recklessness was needed for treble damages – was denied by the trial court. Likewise, the McCammons’ motion for a new trial – based on the fact that the jury considered the market value of the destroyed trees without deducting any of the costs associated with selling the trees — was turned down. The McCammons appealed.

Held: The treble damages were upheld. The Court of Appeals observed that it was limited to determining whether there was any evidence that could have convinced a rational juror the McCammons had been reckless. The evidence, because the Reicoskys were the winner, had to be construed in favor of the Reicoskys.

The Court concluded that the jury simply chose to believe Mr. Reicosky’s version of what happened — that he had never given permission to cut east of the ditch and had previously made clear that the trees there were off limits — and to reject Mr. McCammon’s version. The jury is the fact finder, and its determinations as to who to believe are entitled to great deference by reviewing courts. The jury having accepted that the McCammons trespassed on the east side of the ditch without permission, the Court of Appeals was not entitled to decide that it may like Mr. McCammon’s recitation of events better.

As for the faulty calculation of damages, the Court said McCammons’ complaint was too little, too late. The McCammons had an opportunity to make sure the jury instructions accurately described how to deduct costs from the market price to determine lost profits. Instead, they submitted a jury instruction that was the same as the one the Court used, which omitted any direction as to how to calculate damages by deducting costs from market price. The Court found that “any error in the jury’s determining of damages was invited by [the McCammons]. Under the invited error doctrine, ‘a party will not be permitted to take advantage of an error which he himself invited or induced’.”

– Tom Root