Case of the Day – Friday, March 23, 2018


Filthy_animal140324Any fan of the Christmas comedy hit of the 1990s, Home Alone, remembers Angels with Dirty Wings. It was the film noir movie that the kid protagonist played repeatedly, the mobster’s taunt – “Keep the change, ya filthy animal” – punctuated with a spray of .45 cal. bullets from a Model 1928 Thompson submachine gun, being used as part of the boy’s plot to keep the bad guys at bay.

In today’s case, the angel is Angel’s Path, a developer, and the dirt on its wings slid off a big mound the company put right on its property line as it built houses. The neighbors didn’t much like the dirt sliding into their back yard, and weren’t big fans of the stagnant water that collected after every rainstorm. But when Angel’s Path asked for summary judgment on the trespass and nuisance claims the Peters brought, for some reason they opposed it on the cheap, with an affidavit from Mr. Peters and a bare letter from their engineer.

It’s seldom a good idea, saving money at the most crucial moment in the litigation. Better to adhere to the old law school maxim, “too much is not enough.” You have affidavits from five experts? Use ’em all. You have five boxes of documents? Attach ’em. Opposing a motion for summary judgment is no time to spare the horses. Here, Mr. Peters should have had an affidavit from his engineer, his own survey done by a registered surveyor and recorded down at the county building, and enough pictures of shifting dirt piles and standing water to start his own Instagram site.

angelsfight140324But he didn’t. The trial court granted summary judgment to Angel’s Path, finding the survey of property lines — showing the dirt piles on its own land — more persuasive than Mr. Peters’ affidavit claim that the dirt had sloughed over the line. Peters’ affidavit was “self-serving,” the trial judge complained.

The Court of Appeals reversed. Sure the affidavit may be a little self-serving, the Court said, but for purposes of summary judgment — a fairly high bar for a defendant to leap — the Court had little problem believing that a property owner knew where his own boundary lay. The summary judgment test, after all, is whether the evidence, taken in the light most favorable to the party against whom summary judgment is sought, shows there’s no material question of fact.

This standard required that the trial court assume that any reasonably detailed facts Mr. Peters raised in his affidavit were true. If after doing this, the court still believes that Peters was not entitled to a judgment, then summary judgment could go for Angel’s Path. It was pretty clear that Mr. Peters was going to need a whole lot more persuasion at trial to pull the halo off Angel’s Path, but for now – at the summary judgment stage– his showing was enough to stay in the hunt. Just barely.

Incidentally, this case was brought with a companion case from the Kramers, who sued Angel’s Path, too. That decision is an interesting study in nuisance and trespass. We’ll consider that decision tomorrow.

angelspath140324Peters v. Angel’s Path, L.L.C., Slip Copy, 2007 WL 4563472 (Ohio App. 6 Dist., 2007). Clarence and Nanette Peters said that Angel’s Path, LLC, a developer, damaged their two residential properties. As a result of residential property development by Angel’s Path, dirt mounds at the edge of the development property caused water run-off and flooding on their adjacent land. They sought restraining orders to prevent Angel’s Path from trespassing on their properties or continuing to alter the natural flow of water, as well as damages.

Angel Path filed a motion for summary judgment, arguing that the earth mounds did not cause run-off to appellants’ property or any sinkhole conditions, and therefore, were not a nuisance; and that their surveyor said that the mounds did not encroach upon appellants’ property, so no trespass had occurred. The trial court also granted summary judgment against the Peters on both their nuisance and trespass claims. The Peters appealed.

Held: Summary judgment was reversed. A “nuisance” is the wrongful invasion of a legal right or interest. A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. In order for a private nuisance to be actionable, the invasion must be either intentional and unreasonable, or unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

If the private nuisance is absolute, strict liability will be applied. By contrast, a qualified nuisance is premised upon negligence, essentially a negligent maintenance of a condition that creates an unreasonable risk of harm. To recover damages for a qualified nuisance, negligence must be averred and proven. A qualified nuisance is a lawful act so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.

Where damage to one property by water run-off from an adjacent property is alleged, Ohio has adopted a reasonable-use rule. A landowner isn’t allowed to deal with surface water as he or she pleases, nor is the owner absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Instead, each landowner over whose property water flows is allowed to make a reasonable use of the land, even though the flow of surface waters is altered thereby and causes some harm to others. He or she incurs liability only when the harmful interference with the flow of surface water is unreasonable.

nuisance151019In answer to Angel’s Path’s motion for summary judgment, Mr. Peters provided an affidavit along with referenced photos that claimed the mounds created by Angel’s Path had slid across the common property onto his property. Peters’ affidavit also said that Angel’s Path workers entered onto his property to cut the weeds because the slope of the mounds didn’t allow appropriate maintenance without entering onto his land. Finally, the Peters affidavit stated that the back portion of his property now flooded and would not dry out, preventing his use of the land for a rental or for farming. Peters also included as a letter from his expert stating the mounds blocked the natural flow of the water, creating a “permanent pond,” and suggesting possible ways to eliminate the problem.

The Court said that Mr. Peters’ testimony about the location of his property lines, although perhaps not the best evidence to rebut a commercially prepared survey, was something presumably within the property owner’s personal knowledge. Therefore, despite the fact that he had not yet had a separate survey done, the Court would not disregard the affidavit. At the same time, the Court criticized the trial judge for placing too much weight on the fact that Angel’s Path plans had been approved by the local county engineers. The Court of Appeals said that while the county engineer and other agencies approved the Angel’s Path development plans, including the projected effects that it might have on surrounding properties, “such facts are of little consequence and comfort when examining the real-world results of the construction…”

Here, for the purposes of summary judgment, the Court concluded that the Peters had presented prima facie evidence to establish causes of action for private nuisance and trespass. Whether Angel Path’s actions were reasonable, intentional, or negligent, the Court said, are decisions to be made in a trial, not on summary judgment.

– Tom Root


And Now The News …

Richmond, Virginia, WRIC-TV, March 22, 2018: Documents: City tree that fell on Richmond home was scheduled to be removed

New documents show a city tree that fell onto a Richmond home was scheduled to be removed. “I let them know that this elm tree was dying and that it was dropping large branches onto the fence and the yard, the footpath here and this heavily trafficked Bainbridge,” said Lisa Williamson, the property owner. Williamson called the city back in November reporting issues with the tree. New documents obtained by 8News confirm the City of Richmond hired Davey Tree Expert to remove the trees and repair the utility pole. According to the documents, including the purchase order submitted to Davey Tree Expert Co., the tree removal list and service request, the trees were put on a removal list on December 8, 2017, by City Arborist Janine Lester. Williamson says Lester came to the property and inspected the trees herself last year. “She concurred that they did need to come down…”

Fresno, California, KFSN-TV, March 22, 2018: How to tell if your tree is about to fall over

There has been a lot of rain lately which is good for our environment, but too much could be dangerous, causing trees to fall over. Robert Willmott, Orchard Technician at Fresno State, explained some of the warning signs. “If the tree starts to lean excessively and the weight is on one side, that is going to increase the probability of it falling,” said Willmott. Willmott says that’s only one of the warning signs of a falling tree. Excessive rain could mean over-saturated soil, which can weaken the roots of a tree. “Trees with a… shallow root systems are probably going to be more affected, especially when all that ground is saturated,” said Willmott. Add strong winds and it can push a tree over. Willmott says similar situations could be prevented through proper drainage…

Cleveland, Ohio, Plain Dealer, 250-year-old Moses Cleaveland tree cut down in Lakewood due to decay

Lakewood lost a part of history today. A 250-year-old Moses Cleaveland tree was cut down by the city due to increasing amounts of decay. Reports say city officials have been watching the White Oak tree on Summit Avenue for decades, and had to make the tough decision to cut it down after the decay worsened over the past few years, creating a safety hazard. Moses Cleaveland trees mark the time his party landed at the mouth of the Cuyahoga River on July 22, 1796. In 1946, the Cleveland Sesquicentennial Commission sought to discover and label 150 native trees over the age of 150 years growing in Cuyahoga County. The committee chair was Arthur B. Williams, curator of education at the Cleveland Museum of Natural History. The Cleveland Sesquicentennial Commission hosted local ceremonies, where trees were labeled with a 5-inch by 10-inch aluminum plaque reading “This is a Moses Cleaveland Tree. It was standing here as part of the original forest when Moses Cleaveland landed at the Mouth of the Cuyahoga River, July 22, 1796. Let us preserve it as a living memorial to the first settlers of the Western Reserve…”

Jacksonville, Florida, WTLV-TV, March 22, 2018: Close neighbors need help removing tree that threaten home

Sandy Oxley and Shirley Sanders have been best friends since they became neighbors 15 years ago. They consider each other family and say they’ve been through it all. Shirley, 81, lives alone after losing her husband a few years ago. Sandy lost her boyfriend and has been by Shirley’s side through both of their losses. Despite this, they both have the best disposition and outlook on life. Shirley is an active woman with no plans of letting age slow her down. Back in the day, she borrowed her husband’s table saw to build cabinets and closet spaces. Today, Shirley uses her industrial sewing machine. She has enough colored spool to make Martha Stewart quit her day job. Sandy is a handy-woman herself and keeps busy with outside projects, including mowing, raking and gathering leaves in Shirley’s backyard. That’s when she discovered something alarming. “There’s this big oak tree that’s uprooting and experts have told me it could fall at any moment,” Oxley said. “I’m worried because it will fall directly on her house and it could kill her, I need to keep her around.” Unfortunately, Shirley couldn’t afford the $4,500 to $6,200 price tag to remove the century-old oak. She lives on a fixed-income. That’s why Sandy enlisted her daughter to create a GoFundMe account and reached out to different local tree removal businesses for help. “I managed to find a company, Watt’s Tree Removal Services, they’re going to take down the tree at however much we raise,” she said…

Atlas Obscura, March 21, 2018: Where will palm trees grow in a warming world?

FIFTY-THREE MILLION YEARS AGO, ANTARCTICA wasn’t an unpleasant place for a midwinter sojourn. Back then, its shores and hills were ruffled with palm trees, beeches, and conifers. Winter temperatures hovered near 50 degrees Fahrenheit, so the region wasn’t frost-nipped, even if it was blanketed by near-constant darkness. Today, of course, the landscape is harsher and notably empty of palms. The trees’ notorious intolerance to chilly conditions makes them useful proxies for estimating historical temperatures. The places fanned by fronds have varied over time. When they turn up in the fossil record, researchers can infer that the region’s temperatures probably once fluctuated within a fairly specific range. In a new paper published in Nature Scientific Reports, researchers from Columbia University’s Lamont-Doherty Earth Observatory, Brandon University, and the University of Saskatchewan sifted through thousands of data points to untangle the relationship between temperature and distribution of palm trees, and offer hints about where the trees could put down roots in a warming world…

Los Angeles, California, Times, March 21, 2018: City works compromise with homeowner trying to remove protected oak tree

A resident seeking a compromise with the city about a large oak tree leaning significantly onto his property received just that during Tuesday night’s regular meeting of the La Cañada Flintridge City Council. Eric Rustigan, who lives at 4843 Hampton Road, applied last year for a permit to remove his neighbor’s protected oak tree at 4847 Hampton Road. The Planning Commission denied the permit request in November and Rustigan appealed that decision to the City Council. The oak tree has a 36-inch trunk, is tall, in good health and, according to officials, represents low risk. However, Rustigan said the significant lean of the tree from his neighbor’s property onto his still potentially targets his home and presents a future safety hazard. “This is a unique situation with my neighbor and myself,” Rustigan told the council during the appeal hearing. “My neighbor and I are both in agreement to remove the tree.” An arborist’s report submitted with Rustigan’s application cited concerns about limbs breaking off and falling on his newly remodeled home, cars or his children who play in the driveway. Even though the oak tree was rated by the arborist as “low risk,” there is still a possibility of the tree falling. City staff conducted a site visit prior to the Planning Commission’s decision and found the tree to be healthy and strong enough to warrant denying its removal…

Carpinteria, California, Coastal View News, March 21, 2018: Public pleads to save the trees at sanitary district office

The fate of three blue gum eucalyptus trees might stand in the way of Carpinteria Sanitary District’s proposal to build a new office to replace the trailers the special district has occupied at 5300 6th Street since 1991. While the city’s architectural review board voted on March 15 to advance the sanitary district’s proposal to the planning commission (4-0, boardmember Jim Reginato recusal), the ARB attached its own comments and lengthy public comment to its recommendation for approval. The planning commission will now have to contend with public opposition to removing the trees and neighbor demand to scale down the 4,118-square-foot office building. The March 15 ARB hearing followed a similarly contentious meeting on Jan. 25, during which the board continued its decision in order to allow the sanitary district and Blackbird Architects to consider comments. In response to those comments, the applicants reoriented the building to be parallel with the street, rather than its originally askance position, but maintained that removal of the three eucalyptuses, along with four palms and two sycamore sucklings, was necessary due to liability. The towering eucalyptus trees pose a risk of sudden limb drop, but according to numerous members of the public they are critical habitat for raptors and butterflies…

Richmond, Kentucky, Register, March 21, 2018: What should I do with my trees?

After the heavy snow last week, many of our trees and shrubs are looking pretty rough. I have seen countless Bradford pears which have split! Below are some first aid tips for your landscape. First, don’t try to do it all yourself. If large limbs are broken or hanging, or if high climbing or overhead chainsaw work is needed, hire a professional arborist. Second, take safety precautions. Look up and down. Be on the alert for downed power lines, hanging branches and broken limbs. Stay away from any downed utility lines, low-voltage telephone and cable lines. Fence wires can also become electrically charged. Third, remove any broken branches still attached to the tree. Removing the jagged remains of smaller-sized broken limbs is a common repair that, if done properly, reduces the risk of tree decay. Smaller branches should be pruned at the point where they join larger ones. Fourth, repair torn bark. Carefully use a chisel or sharp knife to smooth the edges of wounds where bark has been torn away. Limit cambium (greenish inner bark) exposure, as these fragile layers contain food and water lifelines between roots and leaves…

Trenton, New Jersey, WKXW-FM, March 20, 2018: Tree care workers have a sometimes-deadly job

As another big storm hits New Jersey, with the possibility of trees falling and causing damage, a new Rutgers study done after Superstorm Sandy underscores the importance of safety training and protective equipment for tree-care workers. Elizabeth Marshall, an environmental and occupational epidemiologist with the Rutgers School of Public Health, says many in the industry do a great job with safety training and equipment. “There are, for example, over 800 landscaping companies in New Jersey. It is a large workforce that may be involved in tree care, either as part of the tree care industry, where you have people licensed to do tree trimming and removal, and then also some landscapers may end up working in this field, especially under storm conditions, when consumers are desperate for somebody to cut their tree down,” she said. Marshall says even with good training and the proper equipment, tree care is still a dangerous job. After Sandy, seven workers died. She does worry about workers who are brought in as “extra helpers.” who “may or may not have had much training or experience in this field.” The study found about 80 workers are killed and there are 23,000 chainsaw injuries in the industry annually…

San Jose, California, Mercury News, March 20, 2018: Jury convicts man in fatal tree-trimming spat with neighbor

Vick Malone didn’t flinch when the courtroom clerk read that he was found guilty of killing his neighbor’s boyfriend and the attempted murder of another man. The jury of seven women and five men found Malone, 66, guilty Tuesday morning of first-degree murder for the death of Ernest H. McMurry Jr., 50, who was killed Nov. 21, 2016, in the 2300 block of 80th Avenue. Malone also was found guilty of the attempted murder of the man’s uncle. The jury deliberated for about a day and a half. The three men got into an argument over tree trimmings, ending when McMurry was shot in the head by Malone. McMurry had parked his car in his girlfriend’s driveway next to Malone’s property. Malone began doing yard work, using a hedge trimmer to trim a tree, the clippings of which fell onto McMurry’s car…, March 20, 2018: Certain species of trees retain stored water, limit root growth to survive three months without water

Why do some tropical trees survive extensive droughts and others do not? Scientists took up this question in a three-month study of various tropical saplings. Their results suggest that species that avoid dehydration have traits that favor water storage, allowing them to retain a water reservoir during the drought. Further, the trees reduce their root surface area, suggesting a role for root abscission in preventing water loss from roots to soil during severe drought. Tropical trees are part of globally vital, climatically sensitive, and poorly understood ecosystems. This study offers insights into how these trees respond to droughts. It highlights mechanisms and processes that control tree survival, which influences carbon dioxide levels. To test the ability of different species of tropical tree saplings to avoid dehydration during severe droughts, scientists subjected potted saplings to three months without water. The response of the saplings was compared to that of well-watered trees. After the simulated drought, some species had a 100 percent survival rate. These trees had a water status similar to well-watered plants…

Ventura, California, Ventura County Star, March 20, 2018: Officials identify man electrocuted while trimming tree in Camarillo

A 29-year-old from Oxnard was identified as the man who died Friday while trimming a palm tree in Camarillo. The Ventura County Medical Examiner’s Office said Tuesday that Eduardo Sampayo Jimenez was electrocuted while working near power lines in the 500 block of McLeod Rondo. The incident occurred at approximately 2:30 p.m., and power needed to be cut in the area to allow public safety crews to reach Jimenez. Power was cut and rerouted by 6 p.m., at which time crews reached the man, who was pronounced dead at the scene…

Charleston, South Carolina, Post & Courier, March 19, 2018: Summerville man awarded more than $1.25 million after dead tree falls on truck at traffic light

If you have a dead tree on your property in a high-traffic area, you might want to take note. A Dorchester County jury recently awarded Summerville veterinarian Donald Gamble more than $1.25 million after a dead pine tree collapsed onto his pickup truck nearly three years ago while he was stopped at a traffic light adjacent to rental property. The tree on West Carolina Avenue had been dead three to five years before the incident, according to Gamble’s attorneys, Douglas Jennings and David Lail of Charleston. Property owner and defendant David Beal claimed to be unaware the tree was dead and said the tenant never reported it to him, according to Gamble’s attorneys. Beal’s attorneys, Morgan Templeton and Tommy Boger, said in court documents that the tree’s demise was an act of nature for which the property owner was not responsible…

Associated Press, March 19, 2018: Researchers: Tree removal could spread invasive grasses

A recent study by an Oregon State University researcher questions the effectiveness of some juniper removal and suggests it could be contributing to the spread of non-native grass species. The Argus Observer reports postdoctoral researcher Jacob Dittel, in a story written by Chris Branam, of the Oregon State Extension Service, says his concern is instead of reducing competition to native shrubs and grasses with juniper by cutting it, removal may be swapping competitors by increasing invasive grasses. Branam wrote the spread of juniper has pushed sagebrush out of rangeland across the Northern Great Basin, as the trees have taken up water to the loss of sagebrush…

State College, Pennsylvania, Penn State University Extension Service, March 19, 2018: Prevent ‘moweritis’ from killing your young trees and shrubs

Some might think it is being caused by a new disease infecting the root systems. Others think it could be another invasive insect boring into the wood or chewing the leaves that make food for the plant. The real culprit is us and our wonderful power tools that are used to cut grass. If there is grass growing close to your young tree, then there is the potential for your tree to become inflicted with “moweritis”. Whenever we use string trimmers or weed whackers to cut grass around trees, those flailing blades or plastic strings repeatedly wound the trunk of a young tree, tearing bark away that protects the important vascular, or water and food conducting tissues found just under the bark. I know we all think of tree trunks as wood, a very tough material, but trees are very vulnerable to wounds because their most important growth tissue, called cambium is just under the young thin bark. As the string trimmer nicks and beats off the bark in a circle around the circumference of the trunk, the tree will become girdled and the vascular tissue in the stem will die. Once the vascular tissue and the cambium (the thin layer of growth cells that creates new wood) is dead, the tree can no longer get water up to the leaves there it is needed to make food, or transport food down to the roots where it is needed to grow new roots. In essence, the tree dies because we wounded its trunk while cutting grass…

Salt Lake City, Utah, KSL-TV, March 19, 2018: Disgruntled arborist chopped down Springdale trees he planted, police say

After a yearlong investigation, the former arborist for Springdale has been arrested and accused of cutting down more than a dozen trees around the town’s hall and causing more than $10,000 in damage to town property in an apparent disgruntled rage. Shane Curtis Lowery, 52, of Hurricane, was arrested Monday for investigation of criminal mischief. Another man, Steven James Stone, 41, of Hurricane, was charged Monday with criminal mischief, a second-degree felony, for allegedly driving Lowery that night. The investigation began on March 12, 2017, when Springdale police discovered more than $10,000 in vandalism at several locations near the town hall, according to a search warrant affidavit filed a year ago in 5th District Court. Among the damage found by police, 18 trees had been chopped down, the warrant states…

Yahoo News, March 18, 2018: Latin America’s ‘magic tree’ slowly coming back to life

The guaimaro, a highly prized tree bearing nutritious fruit, once abundant throughout South America, is slowly being coaxed back from near extinction in Colombia. Widely adaptable, the tree is resistant to drought — though not, sadly, to man. Deforestation has decimated the bountiful tree, whose leaves and fruit have for centuries sustained animals and humans alike. “Without trees, there is no water, and without water, there are no trees. People cut it, burn it for cultivation, for their livestock. Wood is scarce and the rivers are drying up,” lamented Manuel Duran. With a weary hand, the 61-year-old farmer raised his straw hat and wiped the sweat from his brow. A searing sun beat down on the dry forest near Duran’s home outside Dibulla, in the foothills of the majestic Sierra Nevada de Santa Marta mountains. Here, in Colombia’s northeastern Guajira region, new life is being breathed back into stocks of the beloved tree. More than 900 kilometers (560 miles) away, in Medellin, hundreds of global experts are gathered around the planet’s sickbed this week. The Intergovernmental Platform on Biodiversity and Ecosystem Services (IPBES) will make its diagnosis later this month on the health of the world’s fauna, flora and soil…

Norfolk, Virginia, Pilot, March 18, 2018: Developers want more time for pipeline tree clearing

Developers of the proposed Atlantic Coast Pipeline have asked federal regulators for more time to cut down trees along the project’s route, saying they likely can’t finish the work under an initial deadline designed to protect birds and bats. The request, which drew criticism from pipeline opponents, was made in a letter to the Federal Energy Regulatory Commission posted online Friday. “Despite their best efforts, it now appears that Atlantic and (Dominion Energy Transmission Inc.) will be unable to complete the scheduled tree felling” in West Virginia, Virginia and North Carolina on time, the letter said. It seeks approval to continue cutting trees to clear the way for construction of the 600-mile natural gas pipeline until May 15, with certain exceptions. The proposed modification would still provide “equal or greater” environmental protection, the letter said. Developers initially agreed to the tree-felling restrictions to protect migratory birds, and threatened and endangered species – two types of bats, in this case. The time restrictions vary from state to state but generally prohibit tree cutting between mid-March or early April through mid-September or mid-November…

Ewing, New Jersey, WKXW-FM, March 18, 2018: NJ needs your help keeping out tree-killing lantern fly

New Jersey agriculture officials continue to keep a wary eye out for the spotted lantern fly, a pest from Asia that has found its way to nearby Pennsylvania counties. Joe Zolkowski, director of the Division of Plant Industry at the New Jersey Department of Agriculture, says the bug destroys crops and trees by sucking out their sap. “There is a nymphal stage: They are really distinctive looking when they first hatch out, they are black, jet black, with white spots on their back. Then as they get older, they become red with white spots on the back. Around June/July, as they become adults with wings, they are plant hoppers. “They do not chew on things, but they suck the sap out of trees and vegetables and crops, especially grapes. Besides degrading the crop, they also produce large amounts of honey dew, which acts as a source for sooty mold to grow on.” Zolkowski says they are trying to proactively spot the little hitchhiker before it arrives here…

West Palm Beach, Florida, WPBF-TV, March 18, 2018: Thousands of Florida homeowners will be paid for lost trees

Thousands of Florida homeowners who had healthy citrus trees cut down by the state are finally going to get paid for their losses. Gov. Rick Scott on Friday approved a new state budget that includes more than $52 million to pay homeowners in Broward and Palm Beach counties whose trees were removed more than a decade ago in a failed attempt to eradicate citrus canker. The homeowners were part of class action lawsuits against the state. Scott’s decision was surprising since last year he vetoed more than $37 million in payments that legislators had approved for homeowners in Broward and Lee counties. In a last-ditch attempt to battle contamination, the state in 2000 ordered the destruction of even healthy citrus trees within 1,900 feet of an infected tree with or without the owner’s permission…

Gwinnett, Georgia, Daily Post, March 15, 2018: Tripp Halstead, 7, dies five years after being struck by tree limb, severe brain injury

Tripp Halstead, the toddler whose story captured the hearts and prayers of people near and far after he was seriously injured when a tree limb fell on him at his daycare center five years ago, has died. He was 7-years-old. “There are no words to express how Bill and I are feeling at this moment,” Tripp’s mother Stacy said on the ‘Tripp Halstead Updates’ Facebook page Thursday night. “We are beyond devastated and honestly I believe I am in shock. Our amazing, perfect, beautiful miracle of a son, Tripp Hughes Halstead passed away at 5:47 pm today. He was our whole world.” Tripp was outside his Winder daycare center when winds from Hurricane Sandy caused a limb from a tree fell, hitting him in the head. He suffered severe brain injuries and spent months recovering at Children’s Healthcare of Atlanta. He also underwent several surgeries over the ensuing years. “The world as we knew it stopped on Oct 29, 2012,” Stacy said in a Facebook post last year…

Associated Press, March 15, 2018: Lumberjack Beaver Chews Tree, Turns Out Lights in Kentucky

An electric utility says a beaver had gnawed a tree that fell on a power line and caused an outage affecting roughly 1,000 customers in Kentucky. Kentucky Power says in a statement that the customers’ electricity was out for roughly half an hour Thursday after the tree fell near Pippa Passes in Knott County. The company’s reliability manager, Mike Lasslo, says animals cause outages often but that snakes, birds and squirrels are more frequent culprits than beavers. Kentucky Power says animal guards have been placed atop transformers and also behind fencing at some substations to protect equipment and limit outages, but that not much can be done to deter beavers…

Queens, New York, Queens Chronicle, March 15, 2018: Activist: Dead trees on Union should go

According to Hollis Hills activist Louis Lapolla, the city has got to remove the dead trees on the median of Union Turnpike between Main Street and Winchester Boulevard. “A tree is not coming back,” he told the Chronicle. “And they have the machinery, they have the manpower.” Lapolla, who is on the board of directors of the Hollis Hills Civic Association, estimates that 80 trees are dead on the turnpike’s median between Main and Winchester. He says that after the now-dead trees were planted, “they never really took root” and “died almost immediately.” State Sen. Tony Avella (D-Bayside), a longtime critic of the Parks Department, agrees with the Hollis Hills activist about the need for action. “If there are dead trees, they should be removed,” he said. “The Parks Department used to remove dead trees within, I remember, 60 days, and they were pretty good about that…”

Vancouver, British Columbia, CBC News, March 15, 2018: Concerns raised about trees falling years before woman died, sons say in lawsuit

Vancouver Water District and two B.C. arborists, alleging they were negligent in dealing with dangerous trees near their property. Jill Calder was asleep in her Alpine Drive home at around 6:30 a.m. on March 10, 2016 when a powerful windstorm sent a hemlock tree crashing through the roof and into the master bedroom, killing the 57-year-old. Now, Calder’s sons are suing the district and VanArbor Vegetation Consulting Ltd.—a company that provides advice on how to manage forested landscapes—saying they could have done more to protect residents in the wooded area. The second arborist is not named in the suit. In the lawsuit, they allege their father had raised concerns at least twice about the trees nearby, including the hemlock, before it fell onto the house. The suit alleges the district sent crews to examine the trees on both occasions, but none was felled…

Dallas, Texas, WFAA-TV, March 14, 2018: Why the beautiful Bradford Pear is the ‘Worst Tree in the World’

They are everywhere this week. Beautiful white blooms sprouting out of trees, but don’t be fooled by this short-term sight. Many say the tree that’s now blooming is, in fact, the worst tree in the world. Bradford Pear trees are prolific, but their spring blooms also bring out a chorus of committed haters. “We don’t have any Bradford Pears here,” said Dave Forehand, the vice president of gardens at the Dallas Arboretum. Forehand is a person who loves plants, but even he has no love for the dreaded Bradford. “No! ‘Cause I like success, and this tree is prone with troubles,” he said. What kind of troubles? Well, for one, they’re an invasive variety that hurts other pear species and other native plants. They also are known for their foul smell, which many say smells like rotten fish. They don’t even produce pears. And worst of all? Their brittle branches and strange growing structure make them a big hazard. “It’s a tree that’s notorious for breaking apart in a windstorm,” said Forehand. “Ice storms? Almost guaranteed to split…”

Evansville, Indiana, WEHT-TV, March 14, 2018: Tree canopy will come down in Newburgh

The Newburgh Town Council made a tough decision Wednesday, voting to take down some historic trees. It’s a vote some council members say is devastating, but needed to be done.  When you drive into Newburgh, it’s the first thing you might see. “When you come into the town of Newburgh going through the tree canopy kind of brings you like you’re back home,” Melinda Mitchell says. The branches and stumps, something the town has become very attached to. But the tree canopy standing on the North side of State Road 662 will not be standing for much longer. The trees were topped by Vectren last fall because the limbs were getting tangled in transmission lines. Now there is a concern about the trees falling in the roadway, causing a public safety hazard…

University of California Dept. of Agriculture and Natural Resources, March 14, 2018: Landscape Tree Damage: It’s Not Always a Pest Issue

Most disorders impacting landscape trees result from abiotic (non-living) disorders rather than attacks from biotic (living) pests like plant pathogens, insects, and vertebrates. Damage caused by abiotic and biotic disorders can appear similar, making diagnosis difficult at times. For example, discolored leaves on a Ficus nitida tree could be due to drought stress, a fungus, or a nutrient toxicity or deficiency. In some cases, biotic injury may be obvious and abiotic disorders can be ruled out. For instance, many insects and diseases are often restricted to a single plant species and will not affect multiple plant species in the area. To determine if damage is the result of an abiotic disorder, look at the landscape as a whole. Are symptoms exhibited by a single plant species or by a wide array of species? Usually, uniform damage to multiple species within a limited area of the landscape signifies one or more abiotic factors are to blame. Below are several common landscape disorders encountered around home landscapes and ways to prevent them or remedy problems once they occur…

Lynchburg, Virginia, News Advance, March 14, 2018: For Love of Nature: Urban trees suffer shortened lifespans

When it comes to the health of trees, what happens in the soil is more important than what happens aboveground. That was the message last week at the Trees Virginia, Virginia Urban Forest Council, workshop at Virginia Western Community College in Roanoke. Lindsey Purcell, an urban forestry specialist for Purdue University, said humans have been planting trees for more than 2,000 years, but we still aren’t very good at it. In urban areas, the soil is often poisoned, compacted, too alkaline or filled with all kinds of solid waste including bricks, concrete, glass and trash. Soil should be a mixture of sand, loam and clay. “In urban areas, it’s called crap,” Purcell said…

T&D World, March 13, 2018: Complacency rather than ignorance likely cause of tree care incidents

The Tree Care Industry Association has released its report on tree care-related occupational incidents* for 2017.  The association reported that it had learned about 129 incidents. Seventy-two of them were fatal. Comparing 2017 to previous years, TCIA reported 81, 92 and 92 occupational fatalities in 2014, 2015 and 2016 respectively. The youngest victim recorded was 20, the oldest was 71. The average age of the victim (all incidents) was 43. This relatively high average age suggests that complacency rather than ignorance plays a significant role in these incidents. Supporting this claim: The typical fall victim was unsecured; The typical struck-by victim remained in the drop zone; The typical electrocution victim violated MAD and made contact through a conductive tool/object. For those accounts in which an employer was identified, 22 percent of all incidents occurred with TCIA member companies, and 78 percent occurred with non-members…

Houston, Texas, Houston Heights patch, March 13, 2018: Houston tree pollen worst in the nation

Good news for Houston is that the breathing comfort is good. The not-so-good news is that tree pollen in the Bayou City is wickedly off the charts. According to The Weather Channel, Houston has the highest tree pollen count in the country, almost double that of Waco, which is No. 2 in America. Whereas the national TV channel calls Houston’s pollen count “very high,” the City of Houston Health Department calls it “extremely heavy” with 3,483 cubic meter air. Oak tops the count with pine right behind it…

Longview, Texas, News-Journal, March 13, 2018: Homeowners can limit storm damage with tree care

Trees can improve the aesthetics for homes along with shedding their leaves for the sun to warm houses in winter and shade from the summer heat. However, if left untended, they can fall down on houses, become entangled with power lines, block emergency vehicles and smash cars if a storm blows them over. And in worst cases, a fallen tree can be fatal, such as what happened early Sunday when a tree blew over a Longview mobile home and killed its owner, Angel Rocha, 41, of Henderson. Also on Sunday, Mary Pinney, 40, of Mont Belvieu died at a campground in Lake O’ the Pines when high winds toppled trees onto her campsite. While people cannot control Mother Nature, they can take steps to lessen the dangers of trees crashing through their roofs, according to the owner of a tree service company and a contractor who repairs storm damage…

Associated Press, March 14, 2018: Volunteer firefighter killed, wind toppled tree on his truck

A Georgia volunteer firefighter was killed when winds toppled a tree onto his truck. Fannin County Fire Chief Larry Thomas tells news outlets that 47-year-old Stanley Henson had been driving his personal truck in Dawson County to his other job Monday afternoon. State Patrol Trooper Chris Jones says Henson died at the scene and that his death was an accident based on the weather. Thomas says Henson worked with him at a car crash hours before he died. Henson was with the department for several years and was set to be promoted as a lieutenant next month…

Looking for an older news story we featured on this page? Check our Prior News Links page.


Case of the Day – Thursday, March 22, 2018


leakybucket151016Law students learn in first-year civil procedure that it’s entirely proper to file utterly inconsistent pleadings. For example, if a complaint is that the defendant borrowed plaintiff’s bucket and broke it, the defendant can answer that (1) he never borrowed it; (2) when he returned it, it wasn’t broken; and (3) it was broken when he borrowed it. And lawyers wonder why there are so many attorney jokes …

But there are limits, and complaints in civil actions should not be completely mindless in their allegations. In today’s case, landowner Fischer changed the slope of his land, rebuilt a driveway and installed a retaining wall. His neighbor Christiana complained that the effect of his neighbor’s construction project was to send unwanted drainage onto his property. Fischer was unimpressed. “Cry me a river,” you can imagine him saying. Christiana’s lawyer – who perhaps was charging his client by the word – obliged, tearfully filing a four-count complaint claiming negligence, recklessness, nuisance and trespass.

crymeariver140326Fischer filed a motion to strike the recklessness and trespass counts. He argued that the complaint — even assuming everything Christiana has alleged was true — simply didn’t state a claim. Christiana depended on pretty much the same facts for recklessness as he did for negligence, except in the recklessness count, he charged that on top of everything else, Fischer hadn’t gotten permits from the town for the project. Well, maybe that was a little sloppy, at least as far as paperwork goes, but the Court held that Fischer’s lack of a few permits didn’t constitute recklessness towards Christiana. The recklessness count was bounced.

Fischer argued that the trespass count should be dismissed, because there was no allegation that he intended for the water to flow onto Christiana’s land. The Court disagreed with Fisher’s novel interpretation of trespass, holding that Fischer didn’t have to intend that the water trespass on Fischer’s land, just intend the act – that is, the diversion of the water – that resulted in the trespass. The distinction is subtle but crucial.

Thus, the trespass count remained, an important holding: the Court said in essence that without ever stepping foot on Christiana’s property, Fischer could have trespassed, just by being negligent in the way he altered water flow.

Christiana was upset because Fischer's retaining wall left his place a little soggier than it had been before ,,,

Christiana was upset because Fischer’s retaining wall left his place a little soggier than it had been before …

Christiana v. Fischer, Not Reported in A.2d, 2007 WL 3173949 (Conn. Super.Ct., Oct. 17, 2007). Christiana sued Fischer after Fischer altered the slope of his land and built a retaining wall. Christiana sued for negligence, recklessness, nuisance, and trespass. Fischer moved to strike the recklessness and trespass counts as insufficient to state a cause of action.

Held: The court split its holding, striking the count for recklessness but not the trespass count. Recklessness is a state of consciousness with reference to the consequences of someone’s acts, more than negligence, more than gross negligence. While the actor’s state of mind amounting to recklessness may be inferred from conduct, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

In Count 2, Christiana repeated his allegations of negligence and additionally alleged that Fischer rebuilt a driveway without a building permit and in violation of the town’s zoning regulations. Christiana, however, made no allegation that Fischer was made aware prior to completion of the alteration and construction work of any problems that he was causing that would drain water onto Christiana’s property. The Court found that the allegations failed to support a cause of action for recklessness.

As for the trespass count, Fischer argued that Christiana failed to allege any intentional conduct essential to state a cause of action for trespass, pointing out that there was no allegation that the defendants intended to direct water or other debris onto the plaintiffs’ property or that they acted with knowledge to a substantial certainty that the water or other debris would enter the plaintiffs’ property. But the Court held that to make out a trespass, a plaintiff had to have ownership or possessory interest in the land; there had to be an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; the act had to be done intentionally; and the act had to cause direct injury.

trespass140326However, a trespass need not be inflicted directly on another’s land, but may be committed by discharging water at a point beyond the boundary of such land. In determining “intent” for trespass purposes, the issue was not whether Fischer had intended the water to enter the Christiana’s land, but whether he had intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect that subterranean and other conditions would cause the flow.

Christiana alleged in his complaint that he had notified Fischer that he was having severe drainage problems as a result of the land alteration and construction on several occasions, and that Fischer failed to take corrective action. The Court found that Christiana’s allegations were sufficient to establish a cause of action for trespass.

– Tom Root

Case of the Day – Wednesday, March 21, 2018


Greed may be good ... but it doesn't get a lot of love from the court.

Greed may be good … but it doesn’t get a lot of love from the court.

Gloria Lane was a down-on-her-luck middle-aged woman who managed to just eke out an existence with her disabled brother in an old house. Their place was next to a rental property, a house equally as old, but owned by a corporate slumlord, W.J. Curry & Sons. You see where this one is going? Hard cases can make bad law. And even where the result isn’t necessarily wrong – and we’re not hard-hearted enough to criticize people who were too poor to afford to fix the bathroom – cases are fact-driven.

We can imagine the scenario: a faceless corporation rolling in dough, too chary to keep up its properties and too avaricious to pay damages inflicted on the impoverished neighbors. That, at least, is the innuendo.

The Curry property included three large, healthy oak trees near the boundary with the Lane homestead. The trees are much taller than the either of the houses, and featured limbs that protruded over Gloria Lane’s house and caused manifold problems. First, the court said, she had to replace her roof 15 years before the lawsuit “because the overhanging branches did not allow the roof to ever dry, causing it to rot.” She complained that prior to replacing the roof, “[e]very roof and wall in [her] house had turned brown and the ceiling was just falling down. We would be in bed at nighttime and the ceiling would just fall down and hit the floor.”

In 1997, one of the oaks shed a large limb, which fell through the Lanes’ roof, attic, and kitchen ceiling. Rain then ruined her ceilings, floor, and the stove in her kitchen. The Lanes were physically unable to cut the limbs back that were hanging over the house, and they couldn’t afford to hire it done. For that matter, Gloria couldn’t even afford to fix the hole in her roof.

flush151015If that weren’t enough, the oaks’ roots clogged the Lane’s sewer line, causing severe plumbing problems. Gloria tried to chop the encroaching roots away from the sewer over the years, but they kept growing back and causing more plumbing problems. At the time of the lawsuit, she hadn’t been able to use her toilet, bathtub, or sink in two years because of the clogs. Instead, she went to the neighbors’ house (presumably not the Curry rental) to use the toilet. Meanwhile, raw sewage was bubbling into her bathtub, and the bathroom floor has had to be replaced because of toilet back-ups and water spills onto the floor.

Gloria told the trial court that “everything is all messed up. I can’t bathe. I can’t cook. I don’t want people coming to my house because it has odors in it, fleas, flies, bugs. It’s just been awful for me.” Ms. Lane, already under a psychiatrist’s care, said she “just can’t take too much more.”

After the branch punched a hole in her roof, Gloria asked the owner of W.J. Curry – one Judith Harris, a corporate minion who was neither W.J. nor any of his sons – to do something. She had a tree service trim the lower branches, but not the ones that would have been more expensive to reach. This didn’t solve the problems. When Gloria complained again, Ms. Harris told Gloria that she was on her own.

Now, boys and girls, these are hard facts. We aren’t dealing with the Schwalbachs, who were perfectly fit and reasonably flush, complaining about a few twigs and leaves to an underfunded cemetery association. Here, we have a dramatis personae that includes, as protagonist, a pathos-inducing poor woman caring for an invalid, and as antagonist, a soulless corporation destroying her happy home, dropped limb by dropped limb by rotten roof by clogged sewer. And we’ve got some real damages, too. You try knocking on the neighbor’s door eight times a day and night to use the ‘loo, and see how you feel. Did the Massachusetts Rule have any chance of survival in the face of this heart-wrenching tale?

punch151015Of course not. The evil slumlord defendant (and we don’t know that to be true, but the story has a life of its own) argued that Tennessee followed the Massachusetts Rule. After all, it pointed out, Gloria was free to fire up her Husqvarna and clamber out onto her roof herself to cut down the offending limbs. Tennessee law firmly established that her remedies were limited to Massachusetts-style “self help.” That means Gloria should get nothing for the hole in her roof, nothing for her falling plaster, nothing for her waterlogged stove, and nothing for the sewage bubbling in her bathtub.

The trial court agreed with W.J. Curry. It held that while it was “certainly a serious situation that the plaintiff has not been able to use her bathroom for two years … these three trees are alive and living and they do what trees normally do. They produce branches and grow and they produce a root system. And even though you trim the branches back or you trim the roots back, they are going to produce more branches and more roots.”

Spoken like a judge whose own toilet flushes just fine. The three-judge appellate panel – a trio of jurists who also were not worrying about the efficacy of their respective commodes – agreed. They observed that, after all, the trees were not “noxious” (which was a quaint notion championed by Smith v. Holt but since abandoned in Fancher v. Fagella).

The Tennessee Supreme Court reversed, adopting the Hawaii Rule, holding that living trees and plants are ordinarily not nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. When that happens, the Court said, the owner of the tree had some responsibility to clean up the mess. No doubt swayed by the extensive record of travail propounded by Ms. Lane, the Court held that W.J. Curry’s trees clearly satisfied the definition of a “private nuisance.” It sent the case back to the trial court for a remedy to be crafted, one that no doubt included money damages and probably an order that the landlord cut down the oversized trees.

Sure, Gloria ... get up there and trim those branches yourself.

Sure, Gloria … get up there and trim those branches yourself.

Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002). The long-suffering Gloria Lane sued W.J. Curry and Sons, Inc. a landlord owning a rental property next to her house. Over the years, her roof was damaged by branches overhanging from oaks growing on the Curry property, a branch fell, smashing into the home and causing extensive damage, and the root system substantially damaged her sewer system, rendering her home almost uninhabitable.

Gloria sued, asserting that encroaching branches and roots from the Curry trees constituted a nuisance for which she was entitled to seek damages. W.J. Curry responded that Ms. Lane’s sole remedy was Massachusetts Rule-style self-help, and she could not recover for any harm caused by the trees.

The trial court and Court of Appeals agreed with W.J. Curry and Sons, holding that an adjoining landowner’s only remedy in a case like this one was self-help, and that a nuisance action could not be brought to recover for harm caused by encroaching tree branches and roots.

Ms. Lane appealed top the Tennessee Supreme Court.

Held: Self-help is not an adjoining landowner’s sole remedy when tree branches and roots encroach. A nuisance action may be brought when the encroaching branches and roots damage the neighboring landowner’s property.

The Supreme Court held that although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.

Thumb's down to the Massachusetts Rule.

Thumb’s down to the Massachusetts Rule.

The Court engaged in a lengthy discussion of the various theories of liability adopted in various states, including the Massachusetts Rule, the Hawaii Rule, and the old, pre-Fancher Virginia Rule. The Court decided that the Hawaii Rule should be followed, because it “voices a rational and fair solution, permitting a landowner to grow and nurture trees and other plants on his land, balanced against the correlative duty of a landowner to ensure that the use of his property does not materially harm his neighbor,” while being “stringent enough to discourage trivial suits, but not so restrictive that it precludes a recovery where one is warranted.” The Court criticized the Massachusetts Rule, agreeing with the notion that limiting a plaintiff’s remedy to self-help encourages a “law of the jungle” mentality by replacing the law of orderly judicial process with the doctrine of “self-help.” Yet, the Court said, the Hawaii Rule was consistent with the principle of self-help Tennessee courts had previously enunciated.

The Court was careful to note that it was not altering existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property.

– Tom Root


Case of the Day – Tuesday, March 20, 2018


We had some great trees in our backyard when I was a kid. My parents let each of the four of us children “claim” one of the trees as our own, although I must now confess that the utility of doing so is no longer obvious to me. My sister staked out the sugar maple on the north side of the house, my brothers had a box elder and a red maple, respectively, and I got a magnolia that stood outside the kitchen window.

It’s not like we children had any responsibilities for our trees, either trimming them or raking up their leaves or even pulling suckers off their trunks. We had ownership but no responsibility, which is a great segue into today’s classic case from New Jersey.

I bring up our “claimed” trees because of the young rascal Rick, an ornery kid who lived next door. One warm rainy day in the spring, when intelligent people were inside to avoid getting wet (and you can see what that implies), young Rick was outside playing in the downpour. He somehow decided that conditions were perfect for climbing my magnolia. However, when his foot slipped on a wet branch, gravity ensued. Rick was treated to what would have been a jarring but harmless fall, except for his chin making rather sharp contact with the branch on the way down.

We were blissfully unaware of the life-and-death drama occurring beyond our kitchen window until the next day, when Rick – with chin stitched and bandaged – told my siblings and me what had happened. He matter-of-factly announced that because of the accident, “My Dad’s gonna sue your Dad!”

I recall being shocked that an injury so directly resulting from Rick’s own knuckleheadedness could somehow strip us of all possessions and leave us living in a cardboard refrigerator carton in the back lot of Brown & Miller’s Hardware. Of course, Rick’s appreciation for the finer points of tort law matched his understanding of gravity, and no suit ever resulted. But I found the idea alarming that merely owning a tree, and letting it be a tree, could make us liable for injury to others.

But notion is not so ridiculous that people aren’t still trying to sell it to trial courts. Today’s case resulted from a perfectly healthy tree falling from one property onto a garage on another property. The aggrieved property owner argued that the tree was a nuisance because it fell – for whatever reason – and because it was a nuisance, the tree’s owner was liable. When I read the case, I felt that alarm young Rick engendered in me all over again. Fortunately, the appellate court was not so cowed by the premise that it could not make short work of such a foolish claim.

So what is the standard to be applied to determine liability of a landowner for a tree which falls from his property onto his neighbor’s property for no apparent reason?

Burke v. Briggs, 571 A2d 296 (N.J. Super.Ct. 1990). Robert Briggs and the Burkes owned adjoining properties. One June evening, a large white oak tree growing on Bob’s property suddenly fell over onto the Burkes’ property, crushing their garage. The tree appeared to be perfectly healthy, and no one could assign a reason for its falling.

That hardly stopped the Burkes, who sued Bob for negligence but later added a count citing the elements of a nuisance. The Burkes argued Bob was “strictly liable” for the damages caused by the fallen tree because it amounted to a nuisance. Bob countered that liability should be determined on the basis of traditional negligence principles of tort liability. The trial judge agreed with the Burkes that reasoned the fallen tree constituted a “nuisance” because Bob had failed to use his property in a manner that did “not damage or unreasonably interfere with the use of an adjacent land owner’s property.” The judge said that a private nuisance “imposes a strict liability” on the responsible party, and summarily found for the Burkes without the need for a trial.

Bob appealed.

Held: A nuisance can only be created by unreasonable use of land, meaning that the trial court must look at the circumstances of the case to decide whether Bob was unreasonable in permitting the tree to grow as it did. Thus, the lower court was wrong to decide the matter without a trial.

The appellate court noted the distinction that had arisen in tree law over the years between conditions of land artificially created as opposed to those which come into existence naturally. Historically, if Bob’s tree had been growing there on its own, he would not have been liable for any damage it caused, but if he had planted it or nurtured it, he would be accountable. The appellate panel concluded that the natural-artificial distinction makes little sense in modern life.

The appellate court admitted that “there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance’,” but it nonetheless held that the law was clear enough that a private nuisance must based on the defendant’s interference with another’s use and enjoyment of his or her own land. The superior court fell back on the Restatement, Torts 2d for the general rule that

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

The appellate court held that liability without fault should not be imposed “whether that activity be classified as a nuisance or a trespass, absent intentional or hazardous activity requiring a higher standard of care or, as a result of some compelling policy reason.”

In other words, the appellate court said, regardless of whether the falling tree was a nuisance, trespass or negligence, “the issue here should logically depend on whether the offending landowner somehow has made a negligent or unreasonable use of his land when compared with the rights of the party injured on the adjoining lands.”

So, the court concluded, the focus in the case should be on whether Bob was negligent in some way. To figure this out, the trial court should have considered the nature of the incident, the danger presented by the presence of the tree, whether by making inspections, Bob could or should have known of the tree’s condition, and what steps Bob could have taken to prevent it from falling onto the Burke’s garage.

Tom Root


Case of the Day – Monday, March 19, 2018


love151014The other day, we had a faithful reader ask us whether he could use the Massachusetts Rule to trim a neighbor’s pesky oak tree back to the property line. Of course, we said, with some important caveats.

The question got us thinking last night about the Massachusetts Rule, as we sat groaning from too much madness this March. It’s good sport these days to criticize the Massachusetts Rule — that landowners are limited to trimming tree roots and branches back to the property as the exclusive remedy for encroachment by a neighbor’s tree — as being a relic of a time gone by, when everyone lived in a rural or semi-rural area and times were simpler. The more modern Hawaii Rule — that permits a landowner to sue for damages and injunctive relief when the encroachment causes “sensible harm” — makes more sense in urban environments and in our modern-day (and, dare we say, litigious) society.

The Virginia Supreme Court said as much in Fancher v. Fagella. And North Dakota weighed in with Herring v. Lisbon Partners Credit Fund. When it comes to the old Massachusetts Rule, it’s pretty much “you hold him down, and we’ll kick him.”

Call us apostates, but we’re skeptical that’s the Massachusetts Rule’s demise is such a good thing. So today, we sing a love song to the Massachusetts Rule. And a reprise of Kentucky’s leading encroachment case provides the perfect illustration. Schwalbach’s neighbor, Forest Lawn Memorial Park, had trees that were dropping leaves and twigs that were as dead as the cemetery’s patrons. When Schwalbach sued, the Court held that the only remedy when branches behave like normal trees – specifically, by dropping twigs and leaves – is Massachusetts-style self-help.

Tennessee criticized the approach 17 years later as old fashioned in Lane v. W.J. Curry Sons, but the plain fact is that the Hawaii Rule would have had precisely the same outcome: under that rule, branches dropping a normal load of twigs and leaves were not causing actual, sensible harm. No court would have intervened to order any outcome other than the one found in the Schwalbach case.

apostate151014The case is a perfect example of how the facts of the case — be they extreme (such as in Virginia’s Fancher case or North Dakota’s Herring case) or slight annoyance (such as in today’s case) — drive the decisions. It’s not just that hard cases make bad law, as we pointed out yesterday: the law is always driven by the facts of the case. A careful comparison of the decisions establishing the Massachusetts Rule to the decisions favoring the Hawaii Rule suggests that the rules may not be very far apart at all.

Schwalbach v. Forest Lawn Memorial Park, 687 S.W.2d 551 (Ct.App.Ky. 1985). The Schwalbachs owned an apartment building located next to the Forest Lawn Cemetery. They bought the property in 1969. By 1972, they were whining that overhanging limbs from some of Forest Lawn’s trees dropped twigs and leaves and other detritus. What a shocking indignity.

Forest Lawn trimmed some of the branches, but the problem persisted. The Schwalbachs were more into brickbats than chainsaws. They never trimmed any of the overhanging branches themselves, but were content to let their mouthpiece do their work for the in court.

Forest Lawn will handle the dead people ... but the Schwalbachs are responsible for the dead leaves.

Forest Lawn will handle the dead people … but the Schwalbachs are responsible for the dead leaves.

The Schwalbachs replaced their flat roof with a pitched one, at the cost of $14,300, a result of damage done by an accumulation of leaves and twigs. The trial court found that the damages resulted from normal deadfall of leaves and snall debris from the trees. It applied the Massachusetts Rule set forth in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931), concluding that the Schwalbachs should have removed the offending limbs back to the boundary line.

The Schwalbachs appealed.

Held: Kentucky follows the Massachusetts Rule. The Court rejected the Schwalbachs’ argument that Kentucky should follow the rule that every owner should be held responsible for private nuisances on real estate, essentially an ordinary negligence rule. The Court observed that “[i]mposing liability upon a landowner for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees.”

The Court did suggest that were the tree in question dead and likely to fall and cause serious injury, “[a] claim for damages or removal of such a tree might be based on the theory of negligence for damages or nuisance for removal.”

This decision was criticized by the Tennessee Supreme Court in Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn., 2002) as among those antiquated cases that didn’t permit any remedy for encroaching branches and roots beyond self-help.

– Tom Root


Case of the Day – Friday, March 16, 2018


It’s easy to dismiss the belly-aching of people who claim that their view of the ocean, the mountains, the lake, whatever, has been ruined by someone else’s construction, or even – as we have seen all too often – by trees that grow too tall. But it’s a different matter when your own 0x is the one being gored.

Thanks to the nosy people at Google Earth, we can clearly see the problem that resulted in today’s case from 435 miles out in space. The parties to the kerfuffle – the Ceynars and the Barths – are clearly more than one  missed paycheck away from a cardboard box. And for a lot of people, it’s hard to muster up a lot of sympathy for someone who claims a diminished view of the prairie reduced their home value by an amount that would buy more than half the average U.S. home.

Still, it’s easy enough to understand – if not to empathize – with the consternation you must feel when you spend a big chunk of money in expectation that you’re going to enjoy watching the sun set on the prairie while you sip Mai Tais, or whatever the 1% in North Dakota like to sip.

Clearly, the Ceynars were sufficiently exercised about this that they spent lavishly on lawyers, all the way through the North Dakota Supreme Court. It did not do them much good, because it turns out that a property owner’s right to perpetually enjoy the view that existed on his and her property on move-in day is simply too contingent, too mushy, too prone to generate litigation rather than progress, for any court  to infer its existence – at least absent a well-written easement signed by everyone involved that establishes the right.

Ceynar v. Barth, 904 N.W.2d 469 (N.D. 2017). The Ceynars and the Barths are neighbors at The Ridge at Hawktree, a Bismarck subdivision (that appears not to be Section 8 housing) near a golf course. Both families are members of the homeowners’ association. Before the Ceynars purchased their home, Mr. Barth won approval from the Association to build a “pool house” on his property, connected to his house with a breezeway. After the Ceynars occupied their place, the Barths commenced construction, whereupon the Ceynars complained to the Association. They claimed the pool house would block their view to the north and west toward the Hawktree Golf Club.

After the Association did nothing, the Ceynars sued the Barths and the Association, alleging breach of contract and nuisance. They claimed the pool house violated restrictive covenants and unreasonably interfered with the enjoyment of their property and diminished its value. Mr. Barth and the Association moved for summary judgment dismissing the action. The district court granted the motion, concluding the pool house did not violate any of the Association’s restrictive covenants. As well, the trial judge said, under N.D.C.C. § 42-01-01 “a nuisance consists in unlawfully doing an act or omitting to perform a duty,” and the Barths’ construction of the pool house was completely lawful.

The Ceynars appealed.

Held: It’s party time at the Barths’ pool house.

The Ceynars argued that the “pool house” violated the restrictive covenants governing the Hawktree development, because Section 4 of those rules – entitled Nuisances: Construction Activities, stated that “no other nuisance shall be permitted to exist or operate upon any Lot or other property so as to be offensive or detrimental to any other Lot in the vicinity thereof or to its occupants.” The Supreme Court, however, found that the restrictive covenant clearly related in context to construction activities “rather than the finished product.” At any rate, the Court said, the homeowners association has the authority in its sole discretion to determine whether a nuisance exists for purposes of the covenant. The Association approved the Barths’ construction plans and found no nuisance exists.

But, the Ceynars complained, there was an implied covenant that prohibited the pool house because it “destroys the open prairie look and overall theme of the community in the subdivision.” The Ceynars relied on a text message sent by, and deposition testimony of, the Association’s secretary indicating fences, outbuildings, and trees were not allowed in order to preserve an “open prairie look” in the subdivision, and on the Association president’s deposition testimony that the covenants require an “overall theme of the community.”

The Court made short work of that claim, holding that implied covenants are not favored by the courts and that, at any rate, the Ceynars could point to no evidence that these vague statements had anything to do with the plans of the developer or that the Barths were aware of a policy favoring the “open prairie look.” North Dakota precedent clearly holds that covenants will be given effect only “when clearly established,” and this implied covenant was as solid as Jello.

The meat of the Ceynars’ claim was that the district court erred in dismissing their statutory private nuisance claim against the Barths. Section 42-01-01, N.D.C.C., defines a nuisance as “unlawfully doing an act or omitting to perform a duty, which act or omission… annoys, injures, or endangers the comfort, repose, health, or safety of others; or in any way renders other persons insecure in life or in the use of property.” The Ceynars complained that before the pool house, “we enjoyed the open prairie look and feel. Not only have we also lost views of the Burnt Creek Valley and the golf course because of the pool house, the size and scope of the pool house and breezeway towers over our property, depriving us of anything that could be considered an open prairie look.” In fact, they presented an appraisal of their property indicating the obstructed view lowered its value by $140,000. They also presented photographs taken before and after construction of the pool house demonstrating their obstructed view.

The district court dismissed the statutory nuisance claim, reasoning that construction of the Barths’ pool house was lawful, so there could be no statutory nuisance. The Supreme Court agreed with the Ceynars that this holding was wrong, but any sense of victory they experienced was short-lived.

The Ceynars argued the district court failed to engage in the required balancing test, “a balancing of the utility of defendant’s conduct against the harm to the plaintiff, plaintiff’s attempts to accommodate defendant’s use before bringing the nuisance action, and plaintiff’s lack of diligence in seeking relief.” The Supreme Court acknowledged that while “scenic views may enhance the value of a tract of land… [and] such a benefit, while intangible may enhance market value, with buyers willing to pay extra for the view,” that did not translate to a legally protectable interest. “Traditional American property law fails to protect access to light over neighboring land,” the Court held, at least “in the absence of an express easement or covenant, advantageous views are unprotected.” Because a landowner has no right to an unobstructed view, the size and shape of a neighboring structure cannot be a nuisance even if it effects material reduction in market value.

This rule is necessary, the Court observed, because

extending the law of nuisance to encompass obstruction of view caused by lawful construction of a neighboring building would unduly restrict a landowner’s right to the free use of property, interfere with established zoning ordinances, and result in a flood of litigation. Because every new construction project is bound to block someone’s view of something, every landowner would be open to a claim of nuisance. If the first property owner on the block were given an enforceable right to unobstructed view over adjoining property, that person would fix the setback line for future neighbors, no matter what zoning ordinances provide. The practical implication of such a right would be the need of every ‘servient’ owner to obtain a waiver of the easement of view created in the “dominant” landowner. Such obstacles to land ownership and development, for the sake of a clear view, hardly commend themselves.”

Inasmuch as the Ceynars had no cognizable right to an unobstructed view from their property, the Barths’ construction of the pool house as a matter of law did not unreasonably interfere with the Ceynars’ use and enjoyment of their property.

– Tom Root