Case of the Day – Wednesday, September 26, 2018


Cute ... but varmints

Cute … but varmints

It seems that the furry little critters called marmots dig holes and generally make pests of themselves. At least, that what Pam Tessman would tell you.

She spent July 4th one year at a Wyoming RV park with her son, where at one point in the day she walked through a field and saw a marmot hole, the very one she later tripped on in the dark.

Of course, the fact she knew the hole was there and that the marmot probably wasn’t in the employ of the park owner, didn’t matter to the limping and litigious Pam — she sued park owner Mary Berry anyway. The alliteratively named Ms. Berry might tell you that Pam was something of a varmint herself. Nevertheless, the jury awarded Pam a cool quarter million dollars at trial (reduced by 25% because the jury figured that she should have remembered the hole in the grassy field from earlier that day).

But the Supreme Court of Wyoming had other ideas. Before there can be liability, the Court said, there has to be a duty. And in Wyoming, a landowner isn’t responsible to protect guests from dangers that were known and obvious. Little furry burrowing animals tend to leave holes that are completely natural, the Court said, as well as open and obvious. There was no reason to hold the RV park owner liable for Pam’s clumsy misfortune, or to sting Mary Berry to line Pam’s pocket.

trip150112Berry v. Tessman, 170 P.3d 1243, 2007 WY 175 (Sup. Ct. Wyo., 2007). Pam Tessman was staying at Mary Berry’s RV park. At check-in, Pam asked Mary Berry where she could take her son fishing. Mary Berry pointed Pam to a river just off the property, and Pam followed the directions. She and her son cut behind a bathhouse across several fields, over a broken-down fence and over a set of railroad tracks, to the fishing hole.

Pam saw a lot of adults and kids using the “grassy area” behind the bathhouse to get to and from the river. In fact, on the way back, Pam saw several boys playing by a marmot hole in the field behind the bathhouse. That evening, Pam was watching fireworks when she saw her son was up by the railroad tracks with some children who appeared to be setting off fireworks. Concerned for his safety, Pam left the lit pool area and went out into the grassy area behind the bathhouse to call him back. She stepped in the marmot hole she had seen earlier that day, twisting her ankle.

Pam sued to recover for her injuries. The trial court found in Pam’s favor and awarded her $259,000, which it reduced by 25% for her own negligence.

Pam appealed.

Held: The Wyoming Supreme Court reversed the trial court, and Pam got nothing.

The elements of a negligence action are a duty owed the plaintiff by defendant to conform to a specified standard of care, a breach of the duty by defendant, and that the breach of the duty of care proximately caused injury to the plaintiff. A landowner in Wyoming owes a general duty to act reasonably in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Landowners have no duty to protect from known and obvious dangers, even those resulting from natural causes.

However, a plaintiff may show that an otherwise naturally occurring condition does not fall within this rule by showing that the defendant created or aggravated the hazard, that the defendant knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Even a naturally occurring, known and obvious hazard that the landowner has not aggravated could result in liability if the landowner were to create an expectation of heightened safety for people on the premises. The Court saw no reason the known and obvious danger rule should not apply to the ubiquitous hazard posed by the holes of burrowing animals.

slip_and_fall150112However, Pam Tessman hadn’t shown that her circumstances warranted a finding that the marmot hole she stepped in was anything other than a naturally occurring, known and obvious danger, from which Mary Berry had no duty to protect her. She made no showing that Mary Berry owed her any other duty that would support a finding of negligence here. The marmot hole was not a hazard she had created. The marmots weren’t domestic animals or pets but wild animals present in the surrounding area, as well as on the property itself.

Simply enough, the record evidence didn’t suggest that Mary aggravated the danger posed by the marmot hole. To the contrary, the trial court found that Mary tried to minimize the danger from such holes on her property by filling them regularly and by having the animals trapped whenever they became a nuisance. A landowner does not have a duty to protect a guest on her property from a naturally occurring, known and obvious hazard she has not aggravated if she has not, through her own undertaking, created an expectation in her guests that they will be protected from such a hazard.

Mary didn’t create or aggravate the marmot hole that caused Pam Tessman’s injuries, nor did Mary undertake any act that could have caused Pam to rely reasonably on a heightened expectation of safety or special protection from marmot holes on her property. Thus, Pam gets nothing.

– Tom Root


Case of the Day – Tuesday, September 25, 2018


I do not know,” wrote Robert Frost in Stopping in the Woods on a Snowy Evening. That appears to have been precisely the problem for neighboring rural landowners in Kentucky, one the titleholder to pasture and the other owning a large glade of trees.

The neighbors, Marv and Gene, had a common boundary on the edge of the forest, populated by some pretty nice hardwood specimens. When Gene decided he wanted to cut down and sell some of the timber, he asked Marv for permission to come onto his land to cut down the first of some eight trees he wanted to sell. Marv thought the trees all straddled the boundary, and so belonged to the both of them. He let Gene cut them down and haul them away, naturally believing that Gene would come back around to hand Marv a share of the cash.

Marv may have been the kind of guy who went through junior high school with a “kick me” sign taped to his back. It turned out, of course, that while there may be a Santa Claus, it wasn’t Gene. Gene came back from selling the trees, asking for permission to come onto Marv’s to cut down some more trees, all without offering Marv a farthing. Still, Gene cut down four more trees before Marv gave him the heave-ho.

Unwilling to be fooled again, and unwilling to let Gene get away with selling commonly-owned trees as his own, Marv sued. And here’s where he let his fury get ahead of his common sense (which was his lawyer’s job, by the way, to talk his client off the ledge when prudence dictated he get his facts straight first).

It turned out that the first four trees Gene cut down were in fact completely on Gene’s property, but the second four were not. After the dust settled and Marv had a definitive survey done, Gene had to pay Marv $7,168.15. That was not a lot of money in 2008, at least for all of the litigation that ensued. The legal bills alone were probably bigger than that.

Gene’s attorney, however, might have been worth it. He was pretty crafty, throwing plenty of legal roadblocks in the way of the courts. The appellate panel, sad to say for Gene, swept them all away, and – rather piqued at Gene’s attempts to limit his liability after selling trees that only half belonged to him – said treble damages were only Gene’s due for selling the neighbor’s trees, especially when he had just been told not to cut them.

Smith v. Unger, Case No. 2007-CA-000318-MR (Ct.App. Kentucky, June 6, 2008). Marv Unger and Gene Smith owned adjacent properties in Lincoln County, Kentucky. Unger bought his place in 1997, and Smith purchased his in 2003. Marv’s property was primarily pastureland, while Gene owned some prime woodland.

Gene removed eight trees from the area of the common boundary line, in which Marv asserted part ownership. Gene said he believed the trees were on his land when he cut them down. Marv sued Gene for trespass, and demanded treble damages for wrongful cutting under KRS 364.130.

A lot of the dispute arose from the presence of a fence running along the boundary between the properties. Gene and Marv agreed the fence in question has been there as long as Marv had owned his land, but they disagree as to how many years prior to that time the fence had been there. Everyone agreed neither Marv’s nor Gene’s deed referenced the fence. Gene admitted he did not have the boundary line surveyed before cutting, but he said Marv told him the fence was the boundary. Marv says he never told Gene any such thing, and that he always determined the boundary line by some stakes that had been there at least since Gene bought his place.

Just before Marv purchased his property in 1997, the former owner had a survey of what became the Unger property performed. The surveyor placed stakes in the ground to mark the boundaries, and those stakes his property extended beyond the fence.

Gene never questioned the location of the boundary from the time he bought his land in 2003. However, Marv said that about a month after Gene bought his woods, the two men discussed the trees located near the fence line between the properties. Marv said he understood the true boundary line between the properties to run according to the stakes, and not according to the fence. Gene disagreed, believing the fence to be the boundary line between the properties.

Marv testified he told Gene before the trees were cut they were “line trees” and, as such, he deserved a portion of any money made from their sale. Marv admitted that after the conversation, he allowed Gene and his assistant onto his property for the purpose of removing the first four of the eight trees. After the first four trees were removed, Marv waited for Gene to share the wealth, When Gene offered nothing, but instead tried to come back onto the property to cut more trees, Marv told him to leave, and Gene did, but not before cutting four more trees.

Marv then had the property resurveyed. The survey showed that the prior survey was somewhat off, and that Gene in fact owned four of the eight of the trees that had been cut.

A master logger valued the four trees that were not Gene’s “on the stump” and “at the market,” which was twice the stumpage value. The trial court entered a judgment for Marv for $4,614.90 plus, consisting of $1,538.40 in compensatory damages (representing the stump value of the trees) trebled (as set forth in KRS 364.130(1) and (2)), costs in the amount of $1,399.25, and attorneys’ fees in the amount of $1,154.00, for a total of $7,168.15.

Gene appealed.

Held: Judgment in favor of Marv was upheld.

Gene argued that KRS 372.070(1) declared Marv’s deed void to the extent that it purported to convey land within Gene’s boundary, including the timber upon it. That statute provided that any conveyance of any land of which any other person has adverse possession at the time of the sale or conveyance, is void. Here, the Court said, Gene never disputed Marv’s proof of the boundary and never sought to quiet title. It was too late for Gene to argue that he had all along been claiming to hold the land up to the fence by adverse possession.

Under Kentucky law, land held by adverse possession only ripens into title when it has been held by 15 years openly, hostilely and notoriously to a well-defined boundary, giving others who may claim an interest notice of the adverse claim. The adverse holder’s intent at the time the possession begins is key: where one through ignorance, inadvertence, or mistake as to true location of his boundary line enters into neighboring land up to a certain line in belief that it is the true line, the occupancy is deemed amicable, mistaken perhaps, but not hostile.

In this case, Gene did not intend to possess land beyond his true boundary. He never formally disputed or questioned the boundaries as they existed, and at no time did he approach Marv to request the survey stakes be moved to establish what Gene believed to be the correct boundary between the two properties. The Court said it was clear Gene did not intend to establish actual adverse possession.

Gene also complained about the award of treble damages. The Court disagreed.

KRS 364.130 governs damages for cutting timber from another person’s land. The statute provides that a person is liable for treble damages for cutting timber from another person’s land only if the person cutting the timber did not have at least color of title to the land. So, in order for Marv to receive treble damages, the evidence must show that Gene did not have color of title to the disputed property from which the timber was cut. Color of title is “that which gives the semblance or appearance of title, but which is not title….” It is color of title in appearance only and not title in fact.

Any deed or instrument that purports to convey land and shows the extent of the grantee’s claim may afford color of title. Thus, even a deed or instrument of conveyance that is defective or invalid is sufficient to afford color of title. But in this case, Gene conceded that his deed makes no mention of the fence as the appropriate boundary line, and the survey stakes marking Marv’s boundary were in place at the time Gene purchased the land.

Ultimately, the question, the Court said, was whether the jury determined that the trees themselves were on the boundary, as opposed to whether or not the trees were entirely on one property or the other. If the jury decided that the trees were boundary line trees and that notice had been given to both parties that they were boundary line trees, then the taking of the trees by either party would be against the basic title held by either property owner and constitute the unlawful taking of timber from “the land of another”.

Here, the jury found that at least four of the trees at issue were boundary line trees taken by Gene without color of title. This the case, it is clear that the statute entitles Marv to treble damages. We therefore affirm the ruling of the trial court on this issue.

The Court said the jury’s function was to determine whether or not Gene damaged Marv’s land, and, if so, what amount of money would compensate Marv up to the amount of the stump value. After that determination was made, the duty fell to the trial court to enter a judgment for triple the amount assessed by the jury.

The jury did not award Marv the entire value of the trees. The value of the trees was twice the stump value. The jury award of “stump value” actually amounted to only half the value of the standing trees. However, the Court reasoned, the jury awarded a sum of money to Marv, and implicit in that award was the finding that Gene was a tortfeasor while Marv was in the right. Gene removed the trees and, thereby, the physical evidence of the location of the trunk, the limbs, the shade the tree produced and any other benefit the tree would have had to the landowners that were provable by the physical presence of each individual tree. Certainly, there is no dispute that where each of these trees once stood, only stumps remain.

Gene, the Court said, was trying to benefit from the value of the trees both as landowner and as tortfeasor, but could not have it both ways. Based on the testimony of the logger, it is custom that one who cuts and removes trees is paid at the rate of one-half the value of the trees, which is equal to the stump value. Gene was seeking to acquire half the values of the trees on the basis of his tortious conduct, namely, cutting and removing the trees without permission. Further, as a landowner, Gene attempts to assert that he is entitled to a proportional share of the stump value. As a matter of policy, a tortfeasor should not be allowed to benefit from his wrong to the detriment of the injured party.

– Tom Root


And Now The News …

Las Vegas, Nevada, Review-Journal, Sept. 24, 2018: Amid tree deaths, Mount Charleston residents want to ‘halt the salt’

It sprouted from the rocky soil of Mount Charleston before the birth of George Washington and grew to the height of a 10-story building. Rose Meranto can hardly believe it’s gone. For the past 30 years, Meranto lived in the shade of the towering ponderosa. It filled the small yard of her cabin on Yellow Pine Avenue, where its lowest branches cradled lights and ornaments at Christmastime. All that’s left of it now is a stack of wood along the street and a 6-foot-tall stump a few steps from her front door. “I’m sorry that I get emotional over the tree, but this was no insignificant thing that took place,” the 87-year-old said, fighting back tears. “It breaks my heart to see this tree gone.” Meranto isn’t alone. All around the Old Town neighborhood, people are lashing out over the loss of their trees. Signs nailed to some of the still-standing trunks identify the suspected culprit: “This tree was killed by Clark County Public Works.” Mount Charleston residents blame salt-based, road de-icing chemicals used by county crews for poisoning their trees. If the salt doesn’t kill them outright, it weakens them, leaving them susceptible to beetles and disease. Other signs posted around Old Town urge the county to “Halt the salt…”

Washington, D.C., Washington Post, Sept. 24, 2018: Child dies in Loudoun after a tree falls on her, sheriff’s office says

A 7-year-old Loudoun County girl was killed over the weekend after a tree fell on her, according to authorities and a relative. Two children were swinging in a hammock tied to a tree when the tree fell on both, according to the county sheriff’s office. The incident, which the sheriff’s office called “a tragic accident,” occurred about 6 p.m. Saturday at a family gathering at a house on St. Francis Court in the Purcellville area. It was not clear why the tree fell. No explanation was available. After the accident, the girl was flown to Inova Fairfax Hospital, where she died, the sheriff’s office said. The second child, an 8-year-old boy, suffered injuries described as minor, the sheriff’s office said…

Minneapolis, Minnesota, Star-Tribune, Sept. 24, 2018: As ash trees succumb, conservationists rebuild a forest along the Mississippi River

As Minnesota’s ash trees fall to the invasion of emerald ash borer in the next decade, the forest that borders the 72-mile stretch of the Mississippi River in the Twin Cities metro area is expected to lose one-fifth of its canopy. Tums out that’s not all bad. Conservation groups that work in the 54, 000-acre Mississippi National River and Recreation Area are using that environmental disaster to thwart a much larger one on the way – climate change. By replacing ash with other kinds of trees, as well as bushes and other plants, they hope to establish a for est that is more likely to thrive in a future of higher average temperatures and much more erratic precipitation. “We thought we could stack the deck,” said Katie Nyberg, executive director of the Mississippi Park Connection, the nonprofit advocacy and fundraising partner with the federal recreation area. “Rather than waiting for the [ash] trees to die and the buckthorn to come in, and saying ‘Oh, what do we do now?'” In fact, the impending ash borer crisis has brought together government land managers and conservation groups all along the river to share resources and think about the for est of the future, she said…

Manchester, New Hampshire, Union Leader, Sept. 24, 2018: Falling tree kills Rochester man at Exeter job site

A Rochester man was killed Friday when he was struck by a tree while working at a job site, police said. Urban Tree Service employee Keith Hussey, 44, died at the 11 Garrison Lane scene, police said. Emergency workers were called to the home about 11:30 a.m. The Occupational Safety and Health Administration was notified and is investigating. A representative of Urban Tree Service issued a statement on the death, but did not comment on the investigation or the details of the accident.  “On Friday we did lose an important and valued member of our family at Urban Tree Service and right now we are mourning his passing and offering condolences to his family and loved ones. At this moment we are not commenting beyond this,” the representative said…

Victoria, British Columbia, Sept. 23, 2018: High-value theft target: trees

This year, a resident of the Olympic Peninsula was sentenced to 30 days in jail for felling and stealing a bigleaf maple on federal land near Olympic National Park. The theft was one of many tree thefts in Washington state since demand for the shimmering, curly-grain pattern found in some bigleaf maple wood skyrocketed about 15 years ago. The patterned wood, called ripple or flame maple, is sought by makers of fine furniture and of guitars, mandolins, violins and other wooden musical instruments. The highest-quality wood can sell for as much as $200 for a half-meter-square, 10-centimeter-thick slab. British Columbia sees its own share of such thefts from parks, Crown lands and private property. The problem was getting so bad that, in 2007, police started cracking down on mills that accepted and processed curly maple wood. By educating mill owners and managers, the police made it difficult for tree poachers to move and process the wood. Once cut, the trees must be processed within two days or the wood loses its valuable characteristics…

Atlanta, Georgia, Saporta Report, Sept. 23, 2018: A wake-up call in effort to strengthen Atlanta’s tree ordinance

As I drove home one summer night down West Wesley Road, a large dark shadow swooped in front of our car. “Wow!” shrieked my 5- and 6 year-old boys from the backseat. “Did you see that?” It was a huge owl – probably with a wingspan of 6 feet or more. We added it to the animal bingo board game we play, not realizing not realizing that some of the bird’s habitat in our neighborhood was about to be obliterated. In our neighborhood of Margaret Mitchell, it’s not uncommon to see deer, foxes, owls, snakes, hawks and more – sometimes all in the same day. This is what makes Atlanta special and unique – the lush tree canopy that is home to these beautiful creatures within just miles of a major metropolitan center. I admit, growing up here, this is something I took for granted and never really thought about. Out-of-town friends always marveled at the lush vegetation, and I just assumed all cities were like ours until I started traveling and lived elsewhere – now I know it’s unique – but also in grave danger of disappearing. My rude awakening from this oblivion was two months ago. Driving to drop the boys at summer camp early one morning, the three of us witnessed a sight I’ll never forget: A wooded lot, of 2 acres or more, on West Wesley being bulldozed out of the blue. Huge, healthy oak and pine trees crashed to the ground one after another. By the time I picked the kids up that afternoon, every tree was gone. The stretch of forest we passed every day and assumed would always be there was now a huge gaping hole of red clay. It was shocking, devastating and left us all speechless…

Denver, Colorado, KDVR-TV, Sept. 23, 2018: Customers complain tree removal company scamming customers to get more cash

A homeowner said a tree removal company tried to scam her into paying more money to remove a tree from her yard after she already paid for the job up front. A FOX31 investigation found customers reporting similar complaints to the Better Business Bureau. Virginia Schneck said Bernard’s Landscaping and Tree Removal was going door-to-door in her neighborhood. She was interested in getting branches removed from the silver maple tree in her front yard and agreed to hire the company. According to her contract, Schneck paid $1,400 for the tree’s removal. It said in the contract that there would be no additional costs outside the specified amount in the contract. The document shows both Schneck and the company’s owner, Anthony Bernard, signed the contract. Schneck took pictures as the crew began cutting down the tree in her front yard. Schneck said about 10 feet of the tree are still planted in the ground and logs are piled up on the grass, Bernard checked back in and said he didn’t have the right saw for the job. She said he asked her to pay an additional $200 and he’d return in a few weeks to complete the work…

Crystal Lake, Illinois, Northwest Herald, Sept. 23, 2018: Man’s leg amputated in tree removal incident in Nunda Township

A man’s leg was partially amputated in an incident with tree removal equipment Saturday. At 1:54 p.m., the Crystal Lake Fire Rescue Department responded to the 6900 block of New Hampshire Trail in Nunda Township, where someone reported that a man had suffered a traumatic injury, Battalion Chief Chris Kopera said. McHenry County Sheriff’s Deputy Sandra Rogers said one person had been using a stump grinder while another was holding a tension rope as a tree was cut down. The man holding the rope moved, and the slack from the line got pulled from the grinder. The rope then wrapped around the man’s leg, which got pulled into the grinder, causing the lower part of the leg to be amputated, Rogers said…, Sept. 20, 2018: Why are so many trees dropping their leaves already?

Yes, it’s almost officially autumn, but no, our trees shouldn’t be dropping their leaves yet. The falling leaves and baring trees aren’t a case of Mother Nature confusing September with October. Blame it on this season’s rain-fueled diseases that have caused leaves to discolor and drop prematurely. Fungal diseases such as rust, leaf spot, mildew, and anthracnose thrive in warm, humid summer weather. They cause leaves to spot, splotch, and yellow, and when the damage is bad enough, the trees shed the useless leaves. Crabapples, serviceberries, birch, cherries, sycamore, and oaks are among those that have been shedding lots of leaves since August. Many dogwoods and some pears aren’t looking the greatest either…

New Jersey Spotlight, Sept. 21, 2018: Utilities in NJ to be let get more aggressive trimming trees, clearing vegetation?

Last March, falling trees toppled more than 2,000 utility poles and over 100,000 miles of power lines in New Jersey, leaving more than 1 million customers without power, some for up to 11 days. It led the state Board of Public Utilities to recommend in a post-storm analysis a more proactive approach to cutting down and trimming trees to avert widespread outages, typically the primary reason that customers lose power. Yesterday, the Assembly Telecommunications and Utilities Committee took action to achieve that goal by approving a bill (A-2558) to allow more aggressive tree-trimming and vegetation management by the state’s four electric utilities. “We can’t do everything to prevent storm damage, but we can do what’s smart to protect our energy infrastructure,’’ said Assemblyman Wayne DeAngelo (D-Mercer), chairman of the panel and sponsor of the bill. “Making sure our trees and shrubs are properly maintained around energy infrastructure is quite simply common sense.’’ It also, however, is quite controversial. Homeowners and local shade-tree commissions often try to block vegetation management, particularly when utilities try to trim trees outside their rights of way…

Homer, Alaska, KBBI Radio, Sept. 20, 2018: Homer residents experiment with a tree from Alaska’s prehistoric past

Could climate change take forests back in time? Kenai Peninsula residents and scientists see evidence that warmer weather is bringing back at least one tree that hasn’t populated Alaska for millions of years. Across the street from Homer’s Pratt Museum, there’s a small tree growing on the side of the road. You’d probably miss it if it wasn’t for the wooden placard proclaiming it a “metasequoia.” “Just for your listeners, right now it looks 11 inches high,” Geoff Cobal said as he stood next to the tree off Bartlett street. Cobal planted the sapling about three years ago. It’s also known as a dawn redwood and can grow to be 100 feet tall. “But it looks like it might be 1 inch higher then when I planted it. Well, it looks like it’s about the same height as when I planted it. So, it’s not like doing great,” Cobal said as he laughed…

Richmond, Kentucky, Register, Sept. 20, 2018: Tips to properly maintain trees

David Seals has been as busy as a bee the entire year taking care of trees, and there are several tips he has for area homeowners to stay ahead of the game. “From early spring to early winter, it’s a busy time,” said Seals, of Absolute Tree Service. “We have, you know, ups and downs through summer, but it stays pretty steady. “This year, it’s been primarily storm damage stuff, and the other thing is, once you have a few storms that we’ve had and severe weather, then people really start to notice their trees, especially ones that are really big or really close to structures, or ones that have some kind of compromise, like a rotten limb.” And in order to take care of trees when they do become compromised, there are two things Seals said are important to do. One is for people who have trees in their yards to always be aware. “If they have big trees in their yard, just having someone inspecting them, making sure there’s nothing abnormal or issues with the tree, like if they see a lot of insects on them … or they maybe notice discoloring or the leaves are dying too soon,” Seals said…

Cleveland, Ohio, WOIO-TV, Sept. 19, 2018: North Ridgeville resident flummoxed over city’s threat to press charges over tree

A North Ridgeville woman says she’s getting conflicting messages from the city about a tree in her yard. First, a city worker told her it had to come down, but that the city would pay for it. Now, she’s gotten a certified letter in the mail, telling her she has to foot the bill, and threatening her with a crime if she doesn’t get it done quickly. It started in August, after Kathryn Corbin says a storm caused some branches from a large tree in her yard to fall onto Lorain Road. Before she could have them removed, the city did it, and then placed a note on her door. When Corbin called City Hall, she says a city worker informed her they were condemning the tree, and it would have to come down. “I said, ‘Well, how much is it going to cost me?’ He said, ‘Nothing. The city will take care of it…”

Portland, Oregon, The Oregonian, Sept. 19, 2018: Tree crushes man in Columbia Gorge; Oregon pays out $150k

The state has paid $150,000 to the estate of a man who died instantly when a tree fell across the Historic Columbia River Highway and onto his car. Jorge Figueroa, 27, had been visiting the Columbia River Gorge from the Seattle area on June 28, 2015, when the tree came crashing down onto the Saturn sedan he was driving. A lawsuit filed by Figueroa’s family said the tree was decaying and its trunk was marred by woodpecker holes that were “easily visible” from the scenic highway. The family faulted the Oregon Department of Transportation for failing to remove the tree, saying it posed a significant risk to the public at the “busy tourist destination” just east of Latourell Falls near Corbett. The case had been scheduled to go to trial this week in Multnomah County Circuit Court, but was dismissed last month after Figueroa’s family and the state reached a settlement…

Bridgeport, Connecticut, Connecticut Post, Sept. 19, 2018: DCP, DEEP urge residents to assess oak, ash trees

Homeowners should make tree health assessments now, while those trees still have their leaves, officials said Wednesday. After several years of drought and invasive forest pests, Connecticut’s oak and ash trees have taken a toll. The Department of Consumer Protection and the Department of Energy and Environmental Protection put out a news release explaining what residents can do to ensure the areas around their homes are safe from any possible falling trees in the future. Homeowners will notice a hardwood tree is dead or dying if it loses its leaves before the end of September or if it never produced any this season. “The lack of greenery during the growing season is clear indication a tree is dead and should be removed if it a threat to property,” the news release said. “Now is the time to identify and make a plan for those dead trees that may pose a risk to your home and yard,” said Chris Martin, the director of DEEP’s Forestry Division. “Tree removal contractors are very busy these days and you could be place on a long waiting list…”

Philadelphia, Pennsylvania, WCAU-TV, Sept. 19, 2018: Mom dies after being crushed by tree that her son cut down

A woman living in a tent at a Bucks County, Pennsylvania homeless camp died when her son cut down a tree that fell on her, Bristol Township police said. The woman was lying face down in her tent Tuesday at 6:40 p.m. when her son began trying to cut down a dead tree and send it away from the camp, which is  in the wooded area between Bristol Pike and Dixon Avenue.  Instead, the 50-foot-tall tree fell the opposite way, bouncing off a nearby tree on the way down and landing on his mother’s tent. The woman died due to blunt trauma to her chest. Police called the death accidental…

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Case of the Day – Monday, September 24, 2018


Every good trial lawyer knows how to employ the Chewbacca Defense.

Every good trial lawyer knows how to employ the Chewbacca Defense.

Sometimes you wonder when you read a decision, “What were they thinking? That does not make sense.”

Today’s case is something like that. The facts are straightforward enough. Smith sold a gas station-restaurant-bar to Mendonsa, but carefully secured Mendonsa’s promise that he wouldn’t let the trees on the plot get so high that they shaded Smith’s adjacent orchard. Wouldn’t you know it, Mendonsa at some point decided he liked tall trees, or he didn’t like trimming tree, or he couldn’t find his clippers, or something. He let the trees grow, and they shaded four of Smith’s something-berry trees (we have no idea what he was raising in the orchard, but this being California, they probably weren’t plantain trees).

Anyway, Smith sued, and Mendonsa, for some foolish reason, fought the action. The trial court found for Smith in due course, and then worked some rump math, figuring the past damages were about $140.00 a year (this was 1952, when a dollar was worth a bit more than now), and multiplied over three years, the damages were $420.00 (or $3,907.17 in 2018 dollars). The Court also enjoined Mendonsa from maintaining trees over 15 feet or branches which were hanging over on Smith’s land.

On appeal, Mendonsa complained that the damage calculations were too imprecise, and that the injunction was unduly burdensome on him. The Court of Appeals disagreed, finding the calculations pretty good for an uncertain case, and anyway complaining that “[t]he wrong was that of the appellants and they are not in a favored position to urge the technical rules governing awards of damages.”

This case may be the legal equivalent of this - what were they thinking?

This case may be the legal equivalent of this – what were they thinking?

Huh? In the words of South Park’s parody of Johnnie Cochran in the legendary Chewbacca defense: “that does not make sense.” If the wrongdoer isn’t entitled to argue that the court has to follow the “technical rules” of assessing damages, then who is? It’s a cinch the plaintiff isn’t going to do anything to restrain the court in calculating damages. This is probably one of those “hard cases make bad law” kind of decisions … but even so, it’s difficult to feel much sorrow for Mr. Mendonsa, who should have been enjoined and been made to pay damages.

A deal’s a deal, after all.

Smith v. Mendonsa, 108 Cal.App.2d 540, 238 P.2d 1039 (Ct.App. Cal. 1952). Smith entered into an agreement with Mendonsa concerning the use of a gas station, restaurant and bar he had sold to him. Mendonsa agreed that he would permit no trees to remain on the site which exceeded a height of 15 feet;, and that if any tree got taller than that height, Smith would have the right to remove the same. The purpose of the agreement was to prevent the shading of Smith’s orchard next door. land and to prevent trees on the appellants’ property from overhanging it. Mendonsa let the trees get too tall, and Smith sued to enforce the deal. The trial court agreed with Smith, and awarded him money damages for past violation as well as an injunction prohibiting Mendonsa from maintaining any tree in excess of 15 feet in height or from permitting branches of any tree to overhang the orchard. Mendonsa appealed, complaining that the damages awarded weren’t supported by the record and that the injunction was too harsh.

Mendonsa let the trees get a little too tall …

Held: The damages and injunction were upheld. The Court observed that the record showed that the shading of the orchard trees near  Smith’s property line was detrimental to the growth of the trees themselves and would, during some seasons, decrease the yield of fruit on the affected trees. Four trees were affected, the evidence showed, and while the proof of damage was not exact, it nonetheless gave some fairly definite basis for computation.

With respect to growing crops, the measure of damages is the market value of the probable yield without detriment, minus the cost of producing and marketing, and minus the return actually received. The damages awarded amounted to about $140.00 per year, and the period of the damage was three years. Additionally, there was damage in that the trees themselves were retarded in growth by the shade.

The Court concluded that the record furnished adequate support for the award made. Anyway, the Court said, Mendonsa was in the wrong, and thus he was not in any position to demand application of the technical rules governing awards of damages. Where a party has suffered damage, the Court held, a liberal rule should be applied in allowing a court or jury to determine the amount, and that, given proof of damage, uncertainty as to the exact amount is no reason for denying recovery.

As for the injunction, the Court held, in cases involving promises as to use of property, injunctive relief — depending upon inadequacy of damages — may be granted. A deal is a deal, the Court seemed to say, and where Mendonsa made the promise to keep the trees trimmed back and then violated it, the award of a perpetual injunction from maintaining any tree in excess of the agreed-upon height and from permitting branches to overhang was not an abuse of the trial court’s discretion.

It is, after all, the duty of the court to encourage the keeping of agreements properly made and to give adequate remedy for breach thereof when it occurs, particularly where breach is deliberate and wrong is willful.

– Tom Root


Case of the Day – Friday, September 21, 2018


We suspect that imagining a world without frivolous lawsuits would be an impossible dream.

We suspect that imagining a world without frivolous lawsuits would be an impossible dream.

We suspect neighborhood grocer Jerald Walker won’t try to save a few bucks like this anymore. When he had odd jobs to be done around the store, he would offer the work to casual laborer Gene Moser and his sometimes-sidekick Paul McCubbin. Gene and Paul (think “Stan and Ollie,” if you like), would paint walls, repair doors, rake leaves or perform other menial tasks, and Jerald would pay them an agreed-upon price for the work.

As lawyers like to say, there came a time when Jerald needed some trees trimmed. He called Gene and offered $30.00 for the project. Gene, apparently daunted by the scope of work to be performed, recruited his swamper Paul, agreeing to split the fee 50-50. Instead, the only thing that was split was Paul’s noggin.

Gene and Paul finally showed up to do the job, and Jerald provided them with the saws they needed. They had only trimmed a couple branches when a limb being cut by Gene fell and hit Paul.

Would Pancho sue the Cisco Kid? Tonto file against the Lone Ranger? Sancho allege a tort against Don Quixote? Such weighty questions may never be answered, but we do know that Paul would sue Gene. And he did.

For good measure, Paul McCubbin also went after Jerald Walker, arguing that he deserved workers’ compensation because he had been the store’s employee and, in the alternative, contending that the tree trimming work was inherently dangerous. An “inherently dangerous” occupation provides an exception to the rule that an independent contractor cannot collect against a hiring party.

The Workers’ Compensation hearing officer ruled that Paul McCubbin was not an employee of the store, a position agreed with by the trial. For good measure, the trial court also held that tree trimming was not an inherently dangerous occupation. Paul McCubbin’s guardian – necessary because his head injuries were severe and permanent – had more luck in the Court of Appeals. That tribunal ruled that material questions of fact had been raised both as to whether McCubbin was an employee and whether the work he had been hired to do was inherently dangerous. The parties appealed to the Kansas Supreme Court.

The Supreme Court ruled that nothing in the record permitted a holding that McCubbin was Jerald Walker’s employee. The fact that Walker provided the tools and pointed out the trees to be trimmed was not determinative, because the price was set for a complete job, Walker had no control over when the job was done or how it was done, or even over how McCubbin and Moser would split the payment for the work. Thus, Paul McCubbin was the grocery store’s independent contractor, and Walker was not liable for the accident.

Sure you do ... but does that make you a tree trimmer?

Sure you do … but does that make you a tree trimmer?

What’s more, the Court said, no work is “inherently dangerous” if it can be performed safely. Tree trimming can be done safely and without accident (although maybe not by McCubbin and Moser). Thus, the “inherently dangerous” exception to nonliability did not apply here.

McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (S.Ct. Kan. 1994). Jerald and Carol Walker own Valley Market, a small, neighborhood grocery store in Kansas City, Kansa. Jerald often hired Gene Moser and Paul McCubbin, two local men, to perform odd jobs at the market, such as painting, light carpentry, and other general maintenance duties. Walker viewed the two as ‘contract labor’ rather than as traditional employees. Walker would decide on whatever job he needed to be done and then negotiate with them about the cost of performance.

In April 1989, Walker contacted Moser about trimming dead tree branches from some trees in front of the market. Moser agreed to do the job for $30.00. Moser contacted McCubbin to help him trim the trees, and the two agreed to split the money, with Moser providing all of the equipment. The two trimmed two branches from one tree and had moved onto a second tree, when a trimmed branch struck McCubbin as it fell, causing him severe and permanent injuries.

McCubbin’s guardian filed a workers compensation claim, arguing that McCubbin was Walker’s employee. The Worker’s Compensation administrative law judge held that the parties did not come under the Kansas Workers Compensation Act, as Walker did not meet the statutory definition of an employer and McCubbin did not meet the statutory definition of an employee. The ALJ found instead that both Moser and McCubbin were independent contractors.

McCubbin’s guardian next sued Walker and Moser, alleging that McCubbin’s injuries were the direct and proximate result of their negligence. Walker moved for summary judgment, arguing that McCubbin was an independent contractor and that tree trimming was not an inherently dangerous activity which would require Walker to equip, supervise, or warn McCubbin of the obvious dangers involved in the trimming of trees. The trial court held that even assuming the greatest possible duty that could be owed by Walker to McCubbin, there was no breach. The court found that McCubbin was an independent contractor, and his injuries were caused by his own and Moser’s actions, not by a condition of the premises.

The Court of Appeals reversed, holding that whether McCubbin was an employee or an independent contractor, and whether tree trimming was an inherently dangerous activity, should be determined by a jury.

Walker appealed to the Kansas Supreme Court.

He performed odd jobs, too ... did that make him Auric Goldfinger's independent contractor?

He performed odd jobs, too … did that make him Auric Goldfinger’s independent contractor?

Held: Moser was an independent contractor, and the work he had undertaken was not inherently dangerous so as to impose any special duty on Walker. The Court observed that an independent contractor is someone who contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of the work. The single most important factor in determining a worker’s status as an employee or independent contractor, the Court said, is whether the employer controls – or has the right to control – the manner and methods of the worker in doing the particular task. As a general rule, when a person lets out work to another and reserves no control over the work or workers, the relation of contractee and independent contractor exists, and not that of employer and employee, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor.

The Supreme Court agreed that an exception to the general rule of nonliability of an employer for the negligence of an independent contractor is the “inherently dangerous activity” doctrine. Under that doctrine, one who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which the employer contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the independent contractor’s failure to take reasonable precautions against such dangers. However, an activity cannot be termed inherently dangerous merely because it may possibly produce injury; instead, the intrinsic danger of the work on which the doctrine is based must result from the performance of the work, and not from the collateral negligence of the contractor.

Here, the Court said, Moser and McCubbin were independent contractors. Walker hired Moser to produce a result, and did not recruit McCubbin. Walker did not provide the equipment, and – although he specified which trees he wanted trimmed – did not direct how the work was to be performed. Furthermore, payment was based on the completed task, and was a single sum regardless of the time and effort expended. Finally, it was relevant that Moser and McCubbin provided general maintenance and odd job services for a number of people, not just Walker.

As for the work itself, the Court held, tree trimming is an everyday activity that can be accomplished safely and, when done so, is an activity in which danger is not inherent in the activity itself. Tree trimming generally does not constitute an inherently dangerous activity.

Thus, McCubbin was not entitled to recover damages from the Walkers.

– Tom Root


Case of the Day – Thursday, September 20, 2018


Baseball, they say, is a game of inches. So are boundary trees, called “line trees” in the State of Pennsylvania (which, by the way, also calls itself a “Commonwealth” instead of a “State”).

Life imitates art, I guess. Last weekend, I hauled away our 25-year old shed. I am  replacing it with a newer, larger shed – complete with electricity, windows, and (if I have anything to do with it) a beer refrigerator. Behind the shed on or near our property line stands a line of arborvitae trees. They were tiny little shrubs when our next-door neighbor (two owners ago) planted them. Now, they’re monsters.

I need to trim back a few of the arborvitae before the concrete pad for the new shed gets poured. Having read some of what I have written about boundary trees over the past few weeks, I figured I had better be sure I was dealing with some good old-fashioned Massachusetts Rule trimming of branches overhanging my property, and not with some oversize arborvitae that had grown across the property line to become boundary trees.

I found the iron pin on one end of the property line and the post on the other, and ran a line through the trees. Sure enough, two of them have grown across the property line. Lucky for me, the ones I need to trim are still solidly anchored completely on my neighbor’s land. Those I can trim back, exercising both my Massachusetts Rule rights and my ratcheting loppers.

It seems strange that a matter of inches differentiates the trees I can trim with abandon and the trees that I cannot touch without my neighbor’s permission. (I have a great neighbor, by the way, so it is probably not a problem).  Nevertheless, the perverseness of the interplay between boundary trees and encroaching trees that stand completely on land other than one’s own is puzzling and irritating to me in an academic and legalistic way.

My situation is similar to the one in today’s case, which pits a car wash against a restaurant over a row of pine trees that may or may not be on the boundary. Because of the vagaries of how the pine trees at the root of the lawsuit grew along the property line, no one really won: the restauranteur wanted the trees gone, and the car wash owner wanted the trees to remain.

In the end, some of the trees stayed, some did not. And it was all a game of inches…

Wolfinger v. Moates, 7 Pa. D. & C.4th 220 (Pa.Com.Pl. 1990). A line of pine trees separated the Wolfinger Car Wash property from the Moats Restaurant property. Bill Moats received complaints from his patrons about the pine trees, that encroached on his parking lot, scratched diners’ cars and dropped pine cones everywhere (even damaging his lawnmower).

Bill decided to cut down the trees. He told his neighbor, “Suds” Wolfinger, what he planned. Suds was shocked. He liked the trees, because they served as a barrier between his business and the restaurant. Plus, his customers liked parking under them, using the shade while they wiped down their cars. He asked Bill not to cut them down.

Bill did anyway, taking down four of the 13 trees on his first day wielding a chainsaw. Suds raced to his lawyer, and together they raced to the courthouse for a temporary injunction. After Bill was forced to stop, Suds tried to make the injunction permanent.

The court found that the two tracts of real estate shared a common boundary line, and 13 trees stood on or near the line. A survey showed that the first five trees, including the four Bill had cut down, were all on his property. Lucky Bill. The next three, however, straddled the boundary. The  Court referred to them as “line trees.” Tree No. 9 was on Bill’s land, but some bark on the flare touched the boundary line. The last four trees were all on Bill’s land.

Held: Bill was not allowed to cut the three trees that straddled the boundary.

Pennsylvania law made it unlawful “for any owner or owners of any undivided interest in timber land within this Commonwealth to cut or to remove, or to cause to be cut or removed, from the said land, any timber trees, without first obtaining the written consent of all co-tenants in said premises.”

The Court held that the statute dictated its holding that the owners of adjacent tracts of real estate own all trees growing on their common boundary line as tenants in common. Tenants in common are prohibited from unilaterally cutting down or removing such commonly owned line trees.

Applying the general rules of law governing tenancy in common, the Court held, “we conclude neither adjoining real estate owner may remove a tree growing on a common boundary line. Consequently, in the case at bar, notwithstanding the fact that only inches of the trunks of trees 6, 7 and 8 are on the boundary line between the properties of the plaintiffs and defendants, those trees are jointly owned by plaintiffs and defendants. Therefore, defendants may not remove them.”

Suds was not satisfied. He argued that Tree No. 9 was commonly owned as well, because the bark of the tree’s trunk touched the boundary line. Citing the Illinois case Ridge v. Blaha, the Court held that the critical question was “whether any portion of the trunk of the elm tree grows on plaintiff’s property… The law… is determined by the exact location of the trunk of the tree at the point it emerges from the ground.” The fact that the bark of Tree No. 9 touched the line, the Court said, was insufficient to create a tenancy in common.

Trees 1 through 5 and 9 through 13, therefore, were Bill’s sole property. He could cut them down as he wished. But the injunction would become permanent on Trees No. 6 through 8, leaving them to provide both shade and pine cones.

– Tom Root


Case of the Day – Wednesday, September 19, 2018


You wonder how a kerfluffle over some lilac bushes and a bridal wreath bush in a backyard can end up in the state supreme court. I mean, even back in 1983, legal fees were not insignificant. These bushes were on the back boundary of a couple of properties, so we’re not even talking curb appeal.

Regardless, Raymond Oye did not like the shrubs on the property line. He and his wife thought they were ugly. Neighbor Lou Ann Patterson did not. But Ray started tearing them out anyway. When Lou Ann protested, Mr. Oye said ‘Nay’.

There ensued a trial, an appeal and a trip to the Supreme Court in Lincoln, Nebraska, the principal purposes of which seemed to have been to enrich some lawyers and reach a result Mr. Oye should have seen coming like a freight train through a tunnel. Now mind you, we have no problem with enriching lawyers. We sort of see it as a happy ending. But not everyone feels that way, nor should they.

More than once, we’ve told would-be clients to save their money and suck it up, because they weren’t going to win. We often quote the old legal saw, “A bad settlement is better than a good lawsuit.” It’s an enduring aphorism, probably because it’s true.

In this case, the Oyes didn’t have it, and never did. Compromise with Ms. Patterson would have been much cheaper.

Patterson v. Oye, 214 Neb. 167, 333 N.W.2d 389 (Supreme Ct. Neb. 1983). Lou Ann Patterson owned a piece of property next to Ray and Jeanette Oye’s place. Their backyards abutted on a 132-foot north-south line, with Lou Ann’s property being slightly higher at the boundary line. Lou Ann’s house was built by Truman Clare in 1955, and she bought it in 1972. The Oyes’ residence was built in 1956 by Elmer Larsen, who planted lilac bushes and some beautiful bridal wreath on the south third of the boundary line.

Both Elmer and Truman said the bushes contributed to their privacy and improved the general appearance of their backyards. When Elmer sold the property to Lou Ann, the bushes were at least six feet high and had spread out by natural growth. Some other bushes grew on the property line, and Elmer trimmed them, but he never claimed to own the bushes.

Between 1973 and 1977, Lou Ann and the Oyes both maintained the bushes, although the Oyes performed more work than did Lou Ann. Nevertheless, Lou Ann considered the bushes to be growing on the boundary line and to be common property. She said that they provided her privacy and added to the aesthetic value of the property. The Oyes claimed that they owned the bushes inasmuch as Elmer had planted them and they had done most of the caring for the bushes. In fact, Ray Oye claimed that in 1973, Lou Ann told him she thought the hedge belonged to him.

The Oyes considered the brilliant purple of the lilacs and delicate whites of the bridal wreath to be ugly. Ray wanted to remove the hedge and build a rock wall, partly to divert runoff from his land. So Ray started to work, removing about 48 feet of bushes at the north end of the boundary line before Lou Ann objected. The neighbors’ efforts at compromise failed, so Lou Ann sued, alleging trespass and asking for damages and an injunction.

As of the time of trial, the remaining bushes were 12 to 18 inches wide at their base, growing on the boundary line, and were untrimmed, spread out and intermingled with other growth. The cost of replacing the bushes Ray had torn out was from $300 to $1,500.

The trial court found the  shrubs were on the boundary line, and issued an injunction against Ray and Jeanette cutting any more of the bushes. The court further ruled the Oyes owed Lou Ann $400.00 in trespass damages.

The Oyes appealed.

Held: A tree, standing directly upon the line between adjoining owners so that the line passes through it, is the common property of both parties, and neither owner may cut and destroy it without the consent of the other. When one common owner threatens damage to a commonly-owned tree or shrub, a court may issue an injunction to prevent the damage.

Traditionally, where the tree trunk impinges upon the lot line, “and when the respective owners have for years jointly cared for the tree, and divided the expenses of protecting it… then each has an interest in the tree sufficient to demand that the owner of the other portion shall not destroy the tree.” The equities in a boundary tree favors the shade and other benefits of a tree.

The Supreme Court of Nebraska found that Lou Ann and the Oyes owned the bushes growing on their common boundary line as tenants in common, and that the Oyes wrongfully removed and destroyed about 48 feet of those bushes, for which the trial court properly assessed $400 in damages. The Court found that if the Oyes continued on their course of conduct, they might “harm, damage, or destroy some or all of the remaining bushes growing on the boundary line, which would cause irreparable damage to plaintiff and unnecessary litigation, and that the terms of the trial court’s injunction are equitable.”

The Oyes argued that the injunction would impose years of unreasonable future hardship on them, and invite abuse from Lou Ann. The Court was unmoved: “Defendants are reminded that the law provides avenues of relief in the event they feel aggrieved. Where there is a change of circumstances they may apply to the court to vacate or modify the decree.”

To channel the late Rodney King, Mr. and Mrs. Oye, can’t we all just get along?

– Tom Root