Case of the Day – Tuesday, July 17, 2018

I WOULD WALK 500 MILES …

proclaimers140502The Kentucky Department of Highways has a lot to do. Besides keeping up the state’s highways, the DOH has the duty to inspect roadside trees. And there are a lot of trees in Kentucky.

So many, in fact, that – like its habit with parking spaces (see yesterday’s decision) – the DOH favored drive-by inspections. You can see a lot of trees from the passenger seat of a Silverado. There are Proclaimers who would say it was better than walking 500 miles, and then walking 500 more, just to see the back side of some right-of-way trees.

Ioseb Besarionis Dze Jugashvili – you might have known him as “Papa Joe” Stalin – is reputed to have had a favorite saying, “Quantity has a quality all its own.” All right, he probably didn’t say it … after all, he spoke Russian with a strong Georgian accent, and “quality” and “quantity” probably are not especially alliterative in that tongue. But when it came to the Kentucky DOH, the fact that its inspectors could inspect miles of trees every hour didn’t necessarily mean that they were getting it right.

When old Cecil Callebs came up on the bottom side of a sycamore tree that fell on his car during a windstorm, his widow sued the Department of Highways, arguing that if its inspectors had only gotten out of the car and walked a little, they would have known that the tree was rotten and a threat to passing motorists.

The case went to a state Board of Claims first. No one suggested that the DOH knew that the tree was decayed, but the widow Callebs argued that its employees would have known if they had only gotten out of the truck to inspect the tree. The Board disagreed, but when she appealed to a trial court, it sided with her. The DOH, it held, should have done a “walkaround.”

Whenever the analysis is focused on whether someone should have known something, rather than whether he or she actually knew it, the courts employ a balancing test (whether they call it that or not). The test considers how critical to its duty discovering the particular information was, and weighs that against how difficult discovering the fact would have been.

Here, the omission was a slight one, although the late Mr. Callebs might have disagreed. The tree had plenty of green leaves, and no defect was obvious from the highway. The DOH had a generalized duty to inspect and maintain trees along the highway. It missed one of the millions in its charge, but the error wasn’t an obvious one.

treeoncar140502The Court of Appeals agreed that a “walk-around” would probably have discovered the defect. But such a “walk-around” would have been infeasible. Even if the DOH had the personnel to conduct such inspections, it probably would have had to get permission from private landowners to enter onto their property to see the back side of the tree. Multiply the permission process by thousands of trees, and the unreasonableness of expecting walking inspections is obvious.

Commonwealth v. Callebs, 381 S.W.2d 623 (Ky. 1964). Cecil Callebs was killed when a large sycamore tree, standing on the edge of the right of way some 12 feet from the edge of the pavement, fell across the highway and hit is car. Callebs’ estate filed a claim against the Kentucky Department of Highways for wrongful death with the Commonwealth’s Board of Claims. The board, after hearing evidence, found no negligence on the part of the DOH. The circuit court reversed, holding the DOH negligent. The DOH appealed.

Held: The Department of Highways was not negligent.

The Court of Appeals agreed that DOH lacked actual notice of the defective condition of the tree. The issue in the case, rather, was whether the department had constructive notice of the defective condition, or, stated another way, whether a reasonable inspection would have disclosed the condition. This involved, the Court said, “the question of how close an inspection was reasonably required.”

californiasycamore140502The leaves on the sycamore tree were green, and the defective condition of the trunk was on the side away from the highway. The defect could have “been discovered only by walking around behind the tree, which perhaps would have involved an entry upon private land abutting the highway.” The Court of Appeals observed that “[i]n order to affirm the circuit court judgment … we would be required to hold that as a matter of law the Department of Highways had a duty to make a ‘walk-around’ inspection of the tree, involving perhaps an entry on private lands. We do not believe that such is the law.”

The Court considered it important that the area around the tree was rural, and that the burden “of a walk-around inspection of each tree near the highway (perhaps requiring the obtaining of entry permission from the abutting landowners)” would be unreasonable in comparison with the risk. Note again in this case the distinction drawn by the Court between in-town and countryside. The Court concluded that highway authorities “under conditions such as existed in the instant case” do not have a duty as a matter of law to make the kind of inspection that would have been required here in order to keep the tree away from Mr. Callebs.

The Court reversed the trial court’s judgment, and let DOH off the hook.

– Tom Root

TNLBGray140407

And Now The News …

Canadian Broadcasting Corporation, July 16, 2018: ‘Jumping tree lice’ threaten more than 14,000 Winnipeg ash trees

Beleaguered Winnipeg trees are under a fresh attack from a new foe this season: the cottony ash psyllid, also known as jumping tree lice. The tiny, yellow-and-black bugs were first spotted in city trees last year, but their impact was considered low at the time, said city forester Martha Barwinsky. That changed this year thanks to a dry season, she said, although city tree experts are still determining the extent of the infestation. “This spring, of course, a lot of the black ash trees were very late to leaf out, much like last year. But as they started to leaf out, the impact was even greater,” she said. “We’re finding, actually, much more advanced stages of the cottony ash psyllid this year…”

Quincy, Massachusetts, Patriot-Ledger, July 16, 2018: State’s highest court weigh in Randolph neighbor’s tree dispute

The state’s high court has weighed in on what it calls a “distinctly neighborly” dispute over a 100-foot-tall sugar oak tree near the property line of a Randolph home. The Supreme Judicial Court on Monday upheld the decision of a lower court that had dismissed a lawsuit filed by Mary Shiel against her neighbors, Keli-Jo and John Rowell, claiming that the couple’s tree had caused algae build up on her home. Shiel had demanded money to pay for the damage to her roof and an injunction requiring that branches overhanging her property be removed. The court said in its decision that it saw no reason to “uproot” long-established Massachusetts law that prevents landowners from holding their neighbors legally responsible for damage caused by their healthy trees. It also noted that the law allows property owners like Shield to remove any part of a tree that hangs over their property…

Portland, Oregon, The Oregonian, July 16, 2018: Beware voracious borers picking off birch trees

A voracious insect – the bronze birch borer – is picking off beloved birch trees throughout Oregon. Common for many years in Eastern Oregon, the hard-to-control beetle first showed up west of the Cascades in 2003 in Portland, where it has killed hundreds of trees. It slowly migrated and is now found in abundance as far south as Klamath Falls, according to Nicole Sanchez, a horticulturist with Oregon State University Extension Service. Sanchez has cowritten a detailed fact sheet on the problem called Homeowner Guide to Managing Bronze Birch Borer in the Upper Klamath Basin. The information is relevant for the entire state. The first sign of infestation is flagging branches with sparse, stunted and yellowing leaves at the tree canopy, she said. Twigs will fall and eventually the branches lose their leaves. Ultimately – often before a homeowner notices – the tree will have so much damage it’s impossible to save. Caught in early stages, death can be averted. “If you don’t know you have an infestation, it’s usually too late,” said Sanchez. “Then you have to take the tree out, which is expensive…”

Miami, Florida, WSVN-TV, July 16, 2018: Tree Trouble

Government officials tell us to prepare our homes for hurricane season, but storm preps got residents of one South Florida in big trouble with city hall. 7’s Brian Entin has more on the “Tree Trouble. Richard Masone makes a point to stroll around his neighborhood to keep an eye on things. He is the president of the Hallandale Village Homeowners Association. Richard Masone, Hallandale Village HOA: “Pretty much managing, yes. I want to see where all our money is going towards, want to keep the place up, so our property value stays up.” The association’s insurance company told him to get the trees trimmed to protect the property from hurricanes, so he hired the same licensed company the community has used for years. Richard Masone: “They came, they trimmed the trees beautifully. Our insurance company is happy.” But Hallandale Beach Code Enforcement officers weren’t so happy with the tree trimming. Roger Carlton, City of Hallandale Beach: “We are on this. It’s unacceptable behavior. They enormously exceeded any reasonable amount of trimming…”

Eugene, Oregon, Register-Guard, July 13, 2018: Southwest Eugene neighbors settle tall tree lawsuit

A long-running legal dispute among neighbors over view-obstructing tall trees in southwest Eugene is over. The two sides reached a settlement earlier this week that requires two homeowners to cut down at their expense about half of the 23 trees that were at issue in the case. Following a 2½-day trial in February, Lane County Circuit Judge Mustafa Kasubhai had ruled that homeowners Jeff Bauer and Tom Heyler violated a Hawkins Heights subdivision covenant — unique in Eugene — that prohibits owners from allowing trees and shrubbery to “unreasonably interfere with the view from other lots.” The neighborhood is south of West 18th Avenue and east of Bailey Hill Road. Heyler had attempted to exempt his property from the view covenant by securing signatures from surrounding homeowners. But Heyler said he decided that the cost wasn’t worth the fight. “We did what we had to do,” said Heyler, who estimated that he and Bauer have incurred a total of about $60,000 in legal fees. Heyler said he’s glad the case is over but other than that, “I have no good things to say about it.” Todd Johnston, the lawyer for the uphill neighbors, said they appreciated “all of the court’s effort in analyzing this issue and are obviously happy with the result…”

Sacramento, California, KOVR-TV, July 15, 2018: 40-Foot Tree Limb Falls On Person At Elk Grove Summerfest

A 40-foot tree limb came crashing down onto a man at the Elk Grove Summerfest. He was rushed into emergency surgery. It happened at the Elk Grove Park Saturday in a grove of oak trees. “It’s like getting struck by lightning. You can’t really prevent it,” said Scott Shipley, who was just 10 feet away when it happened. Shipley was in the crowd enjoying live music when the branch snapped. “I hear a crack behind me and I turned around and there’s a big old tree branch right on the ground with a gentleman laying next to it,” he said. “He was just flat on his back, out cold.” Shipley was a medic in the Air Force and stabilized the victim until paramedics arrived…

New York City, The New York Times, July 15, 2018: California Is Preparing for Extreme Weather. It’s Time to Plant Some Trees.

For years, there has been a movement in California to restore floodplains, by moving levees back from rivers and planting trees, shrubs and grasses in the low-lying land between. The goal has been to go back in time, to bring back some of the habitat for birds, animals and fish that existed before the state was developed. But in addition to recreating the past, floodplain restoration is increasingly seen as a way of coping with the future — one of human-induced climate change. The reclaimed lands will flood more readily, and that will help protect cities and towns from the more frequent and larger inundations that scientists say are likely as California continues to warm. “We thought we were just going to plant some trees out here and get some birds to move in,” said Julie Rentner, executive vice president of River Partners, a conservation group that is restoring hundreds of acres of farmland on the outskirts of Modesto in the Central Valley, where agriculture has overwhelmed the natural environment. “Now we’ve got this whole much larger public benefit thing going on.” Researchers say it is unclear whether climate change will make California drier or wetter on average. What is more certain is that the state will increasingly whipsaw between extremes, with drier dry years, wetter wet ones and a rising frequency of intense periods of precipitation…

Redding, California, Record Searchlight, July 13, 2018: Redding needs a tree ordinance now

The City of Redding needs a tree ordinance that will protect many of our native trees which are currently being cut with little regard to alternatives that would save them or require planting replacement trees elsewhere.  Many people think Redding has a tree ordinance, but it doesn’t. Instead, it has a tree management ordinance which is basically a series of guidelines with no enforcement powers to prevent clear-cutting of every native oak tree on every undeveloped parcel in Redding should a developer so choose, and the Redding Planning Department agrees. Our current ordinance was put together in 2006 with a committee of real estate developers, city staff and a minority of just two members representing the public. The result is a toothless ordinance with many loopholes allowing tree protections to be waived or ignored. The result has been devastating for preserving our native trees, especially native oaks. Last year, 700 oak trees on Churn Creek Road at South Bonnyview Road were cut down, with only three oak trees being spared… 

NPR, July 12, 2018: A company cut trees for a pipeline that hasn’t been approved. The landowners just filed for compensation

A Pennsylvania family that lost more than 500 trees to make way for the stalled Constitution Pipeline project asked a court on Thursday to dissolve an injunction that gave the company access to their property, and to determine compensation that remains unpaid. The Hollerans of New Milford Township in Susquehanna County argue that the pipeline will never be built after it was blocked by New York state environmental regulators, and say they have not received compensation more than two years after chain-saw crews felled the trees before the natural gas pipeline received all its needed permits. The family received widespread media attention when federal marshals armed with semi-automatic weapons and wearing bulletproof vests patrolled the isolated 23-acre farm in early March 2016 in an attempt to protect the tree-cutting crews from a handful of protesters. Twenty-eight months later, the Hollerans are asking a judge to overturn the injunction that allowed Constitution, operated by the Williams Companies, possession of about five acres of their property on which to build the pipeline…

Tampa, Florida, WTSP-TV, July 12, 2018: Tampa residents complain utility contractors making mess out of their trees

As we all know, trees falling on power lines is very common during storms. It’s why TECO does year-round tree trimming, but several people in one Tampa neighborhood are complaining their trees are being “butchered,” comparing contractors hired by TECO to trim trees to a bad hairdresser. “You want it trimmed, but you don’t want to take off too much,” one neighbor said. “I’m all for it because my electricity goes out when the storm comes, but the power is at the top and my tree is now gone at the sides.” Bill Rogers said he liked his trees blocking his neighbors’ view of his yard. Now it’s left in an odd shape with hardly any branches. He says his palm tree looks more like a skeleton. “I didn’t particularly like how they butchered up the palm trees. It didn’t look like they trimmed them carefully,” he said…

New York City, Queens Chronicle, July 12, 2018: Problematic tree has to go, Avella says

In his many years as an elected official, state Sen. Tony Avella (D-Bayside) hasn’t seen another arbor-related situation like the invasive roots from a tree on 13th Avenue just feet west of 162nd Street in Beechhurst. “We’ve always come across situations where city tree roots, obviously, uplift the sidewalk and then go on to the private property, which the city refuses to address,” the senator said during a press conference at the site Monday. “In this case though, the roots of this tree have literally taken over the property of these two houses.” The tree roots have caused problems for the yards of adjacent homes at 12-44 162 St. and 160-37 13 Ave. And a property across the street has started to experience its own problems from the roots. They’re visible on much of the ground around the homes — including a lawn and a garden, which has a fountain that’s off-balance because of the roots. Those are far from the only problems. “Our sewer was crushed from the tree roots,” Virginia Centrillo, who lives in the 13th Avenue home, said at Avella’s press conference in reference to her home’s private sewer system. She said she’s already spent tens of thousands of dollars getting her sewer system fixed, and she expects it to cost her as much as $60,000…

Phys.org, July 12, 2018: Study forecasts growth rates of loblolly pine trees

The ability to predict weather patterns has helped us make clothing choices and travel plans, and even saved lives. Now, researchers in Virginia Tech’s College of Natural Resources and Environment are using similar predictive methods to forecast the growth of trees. In a study published in Ecological Applications, researchers used ecological forecasting to predict how changes in temperature, water, and concentrations of carbon in the atmosphere in the Southeastern United States may affect the future growth rates of trees. The paper brings together efforts from two projects funded by the U.S. Department of Agriculture. In the first, known as PINEMAP, hundreds of researchers collected forest growth data from the past 35 years and developed mathematical models to quantify how pine forests may respond to climate change. The second project, led by R. Quinn Thomas, assistant professor of forest dynamics and ecosystem modeling in Virginia Tech’s Department of Forest Resources and Environmental Conservation, focused on quantifying uncertainties in how climate models predict how forest and agricultural ecosystems, along with decisions like the timing of crop or forest harvest rotations, influence climate temperature and precipitation patterns…

Sacramento, California, KCRA-TV, July 11, 2018: Heads Up: Summertime tree limb drop is here

As temperatures hover in the mid-90s for the foreseeable future, arborists say you can bank on more tree limbs to drop suddenly. The phenomenon is likely to occur more in the days ahead, according to Stacy Barker, an arborist with Bud’s Tree Service. “We absolutely can bank on it,” he said. “Whenever we see the temperatures rise above 90-95 (degrees), especially for consecutive days as we’re seeing next week, we can just about bank on we’re going to be answering emergency calls like this.” In West Sacramento, a 30-foot eucalyptus branch toppled a fence at the U.S. Army Corps of Engineers construction field office. It fell from a height of about 12 feet, Barker estimated. “We do know that the phenomenon is particularly common in several different species of trees, eucalyptus being one of them. Oaks, ash, willow and elm to name a few [more]…

Tampa, Florida, WFLA-TV, July 11, 2018: Tree safety tips after massive oak trees damage property in Tampa Bay area

Strong storms are the norm in the Tampa Bay area and large Live oak trees fell recently, causing significant damage, but a local arborist said there are key signs help spot unhealthy trees.  Two massive Live oaks came crashing down in Clearwater Tuesday and in Seminole Heights on the 4th of July, damaging homes and smashing vehicles. Frank Roder, owner of the home that was damaged in Seminole Heights said he believes lightning struck the tree, which is one of the largest in the neighborhood. “We found some paperwork when the house was built 100 years ago, there was talk about it being built under this grand ole oak tree, so God knows how old that tree was,” Roder said. He isn’t 100 percent sure that lightning was the sole cause but he said the tree appeared to be healthy. Landscapers in Clearwater said the tree that toppled over there likely fell due to unseen issues with the root system rooting away. “They decay through age, disease or really a lot of rain and soft soil,” said Greg Chew with Good Views Garden and Landscape. Hillsborough County forester Rob Northrop is encouraging homeowners to hire a certified arborist to check large trees…

Denton, Texas, Record-Chronicle, July 11, 2018: Scientist finds beauty in dusty oak trees

University of North Texas geography professor Alexandra Ponette-González sees oak trees as big dust collectors. As it turns out, they are pretty good at it. Two years ago, Ponette-González began a major research project to figure out just how well some of the city’s trees could filter soot from the air. She received a five-year grant from the National Science Foundation to help pay for the work. “It’s been a topic in the [scientific] literature and the general conversation for a while,” she said. But until now, few scientists have set out to measure how much soot trees actually take out of the air and send back in the ground. The idea is important because doctors know that it’s bad for people and animals to breathe in soot, or more specifically, black carbon. The compound sticks to lung tissue and damages it. Coal miners, for example, can get deadly black lung disease from breathing black carbon. Most soot in the atmosphere comes from vehicle exhaust, cooking fires and other burning…

Mumbai, India, Speakingtree, July 12, 2018: Mission possible: Bringing a tree back to life doable but initial hours hold key to survival

While the entire attention has been on the trees earmarked to be chopped down to facilitate redevelopment of colonies, no one has paid much attention to trees falling during the gales the capital has recently seen. A small group of NGOS, RWAs and green activists are, however, making it their mission to “rescue” such trees and replant them — a task blighted by low survival rates. On Monday, NGO Greencircle of Delhi and the New Delhi Municipal Council used ropes and a JCB truck to replant a rohida tree (Tecomella undulata)uprooted by a storm in Lodhi Garden. The NDMC staff dug a pit close to the fallen tree and a JCB and tractor move the tree into the pit. Precautionary spraying of insecticides and pesticides was followed by the erection of two supporting wooden legs on the tree trunk. The staff carried out a similar procedure last month to save an Amaltas. Suhas Borker, founding member of Greencircle of Delhi, said the idea was to send a message that each tree counted and efforts had to be made to save every single one of them. “The rohida is considered a community tree. People bathe under it in the belief that it will rid your skin of diseases. People even hang their clothes on the tree for its medicinal properties,” said Borker, who has long been working to save these trees in Lodhi Garden. NDMC officials pointed at the new leaves that the replanted Amaltas was sprouting, symbol of success in reviving uprooted trees. Saving trees, however, is not an activity that can be planned at leisure. Experts point out that there is a window of a few hours after which the chances of survival of a replanted tree goes down drastically…

T&D World, July 11, 2018: Five things to know about tree growth regulators

Tree growth regulators (TGRs) increasingly are being integrated into vegetation management programs across the U.S. and changing the way trees are cared for under power lines, around them, and along rights-of-way. For those who are not familiar with TGRs — and even for those who are — there may be a few things about them that are surprising to learn. From reducing maintenance costs to improving crew safety to creating better customer relationships, TGRs do more than just regulate tree growth. While they are becoming more commonplace in utility vegetation management programs, there are some aspects of TGRs even professionals may not know… Broadly defined, a growth regulator is simply any chemical used to alter the growth of a plant or a part of the plant. While one could technically argue water and nutrients are chemicals that alter the growth of plants, growth regulators more specifically work with plant hormones to achieve their result. There are growth regulators that can stimulate accelerated growth by promoting the formation of auxins, decrease fruit production by affecting the formation of cytokinins and ripen fruit by increasing ethylene…

Dallas, Texas, KXAS-TV, July 10, 2018: East Dallas effort succeeds in stalling tree removal

In East Dallas, a movement to stop the removal of decades old trees has stalled a developer’s plans. A petition now has more than 1,200 signatures asking EDENS, the developers of Casa Linda Plaza, not to move forward with a plan to remove five trees that have shaded the land for nearly 60 years. According to Dallas City Councilman Mark Clayton, EDENS requested permits to do so in May in order to pave more parking. He said they told him they planned to do so in order to widen the current sidewalks to make them more pedestrian friendly. In addition, he said, EDENS already had a plan in place to more than replace what was scheduled to be removed. “There is always the fear when a tree is removed that everything is going to be scraped and the only thing left is concrete. The city has a tree mitigation plan and they are doing more than the city even requires them to do,” wrote Clayton…

Associated Press, July 11, 2018: Pollution controls help red spruce rebound from acid rain

The gray trunks of red spruce trees killed by acid rain once heavily scarred the mountain forests of the Northeast. Now those forests are mostly green, with the crowns of red spruce peeking out of the canopy and saplings thriving below. A main reason, scientists say, is a government-enforced reduction in the kind of air pollution that triggers acid rain. “We’ve seen it go full arc from declining for some unknown reason, to figuring out the reason, to them doing something about the cause and then the tree responding and rebounding again,” said Paul Schaberg, a plant physiologist with the U.S. Forest Service and a co-author of a new study on red spruce who has been researching the species since the 1980s. “It’s just an amazing science arc.” In the 1960s through the 1980s, pollution — mostly from coal-powered plants in the Midwest and car emissions carried by the wind and deposited as acidic rain, snow and fog — devastated Northeast forests and lakes, leaching nutrients from soil and killing aquatic life. Red spruce are particularly sensitive to acid rain and, at the height of the die-off, some forests lost 50 percent of them. But decades later, not all the environmental damage is turning around at the pace of the red spruce…

Providence, Rhode Island, WPRI-TV, July 10, 2018: Homeowner double-billed after wrong trees are cut down

Susan Stone planted a cedar tree a few years ago and it grew to be taller than she is. “I’ve been watching it grow for three to four years, and now it’s gone,” Stone told Call 12 for Action. “It just made me sad.” The tree was mistakenly removed by a local tree service Stone hired to trim a different tree and remove four shrubs. The company got rid of the shrubs months ago but left three of the stumps. “I asked her when they would be back out,” Stone recalled. “[An employee of the tree service] said they completed the job and I said no, that they hadn’t.” Stone said she marked the stumps with red ribbons so when the crew returned, they would know exactly what to remove. But instead of grinding the stumps, the tree service cut down Stone’s cedar tree, a small fir tree and another shrub. “I was pretty much hysterical,” Stone said. Then Stone was double-billed for the work. The invoice totaled $900. “I don’t believe it’s my responsibility to pay for work that they messed up,” she said…

Kingsport, Tennessee, Times-News, July 9, 2018: Bloomingdale couple upset about tree trimming debris

American Electric Power kicked off a new program in Kingsport earlier this year whereby trees, limbs and brush near and under power lines would be trimmed every four years. The idea is this type of routine maintenance would increase AEP’s reliability and decrease the number of outages due to high winds and storms. But for one Bloomingdale couple, the tree trimming work that recently took place on their property has not been the most pleasant of experiences. Jerry and Vickie Foulk live on Bancroft Chapel Road. In early June, a private company — hired by AEP — came to their home to trim the trees away from the power line that ran across their backyard. The Foulks’ home sits on about six acres. The backyard slopes down an embankment and is mostly wooded and undeveloped. When the trimming was done, the company left all the cut limbs and logs lying in the backyard…

Chicago, Illinois, Tribune, July 9, 2018: Tree cut down after branch kills 2 men at Rock Island fireworks show

A towering oak tree has been cut down in western Illinois after a huge branch fell and killed two men watching a fireworks show. Sixty-one-year-old Daniel Mendoza Sr. of Rock Island and 72-year-old Lawrence Anderson of Moline were killed July 3 outside the county courthouse in Rock Island. Rock Island County Sheriff Gerry Bustos gave part of the tree to family members Saturday. He says the tree was considered dangerous after the deaths and needed to come down. Witnesses said they heard a cracking sound; some assumed it was fireworks from the show. Daniela Mendoza says her family plans to use wood from the tree to make memorials for her father and Anderson…

Oakland, California, KTVU-TV, July 9, 2018: Parents concerned about aging and distressed trees at city parks

Over the weekend, part of a tree crash landed on a San Jose playground. And while no one was injured, plenty of parents were panicked.  It happened early Saturday at River Glen Park. A Chinese Pistache tree split and fell, landing right on a children’s playground. “You want to believe that the trees that are at the park which are so beautiful (it’s what makes this park so great) that they’re safe. So it’s alarming,” said parent Bonnie Hennum. It may be alarming, but it’s not uncommon.  Witnesses say a large tree branch fell next to the playground at Fleming Park two months ago. And in October of 2016 a tree limb fell at Happy Hollow Park and Zoo crushing a bunch of empty strollers. San Jose’s arborist estimates there are about 1000 limb failures on city trees each year. “We know we are underfunded. We just do not have enough to do all the tree work we would need to do on an annual basis,” said Russell Hansen, the San Jose City arborist…

Riverside, California, University of California, July 9, 2018: Can dwarfed citrus trees help us save water and money?

UC Riverside scientists are investigating whether dwarfed citrus trees can help citrus growers to save time, money, fertilizers, pesticides, water and labor. In 1998, as part of a series of preliminary Citrus Research Board (CRB)-supported trials, navel orange trees treated with a dwarfing agent were planted at the Lindcove Research and Extension Research Center (LREC). The dwarfing agent used in these trials, a small RNA molecule named “Transmissible small nuclear Ribonucleic acid” (TsnRNA”) resulted in a dramatic reduction in tree size.  Most importantly for citrus growers, fruit yield per canopy volume and fruit quality (size, color, sugar/acid ratio) of these TsnRNA-treated trees was not affected while double number of trees could be planted in the same land surface (up to 400 trees per acre). Almost 20 years after planting, the threat of HLB brought about a renewed interest in this potential technology. When growers saw the dramatic reduction in size of these trees during a visit to LREC in November 2014, they expressed a strong desire to explore this technology. Production of commercial dwarfed trees is key to the successful development of high-density plantings (potentially under protected screens – CUPS), which will be critical to meet future citrus production challenges. To assess the potential savings offered by the employment of this application, UC Riverside scientists are investigating nitrogen fertilizer requirements, nutrient uptake efficiency, water-use efficiency, pesticide application efficiency and savings in labor time for several horticultural operations such as hedging, spraying, fruit harvesting, and tree inspections…

New York City, WABC-TV, July 5, 2018: Tree branch almost falls on Wisconsin newlyweds

A newlywed couple in Wisconsin was sharing how they fell in love when a tree almost fell on them. Taping an interview while sitting at a picnic, Cheyenne and Lucas Kopeschka barely escaped as a tree branch came crashing down onto their table. The new bride suffered minor injuries, but was able to finish the interview and later said that “our love is forever going to be stronger than that tree… ”

Denver, Colorado, KDVR-TV, July 5, 2018: Tree trimmer dies following chainsaw injury in Thornton

A man trimming trees in Thornton who was injured by a chainsaw Thursday afternoon has died from his injuries, according to a spokesperson with St. Anthony Hospital in Lakewood. Authorities dispatched a medical helicopter to the 9200 block of High Street in Thornton in an effort to save the man’s life. Some of the accounts of the incident might be considered graphic for some readers. The man was stuck in a tree just behind a home. Witnesses described injuries to his arm and midsection as severe. Much of what happened in the tree is a bit of a mystery to the public and news media. Authorities in Thornton remained mum on details. “I heard somebody screaming hit me, hit me again,” neighbor Ron Miller said. “I assumed they were down there fighting.” Whether it was a fight or a tragic accident– witnesses say a chainsaw was involved. A medical helicopter was needed to get the injured man to a hospital…

Pittsburgh Tribune-Review, July 2, 2018: Giant Bell Township oak may be one of the biggest in the state

For a forester in Pennsylvania, finding a red oak tree with a circumference of about 26 feet and a height of 120 feet is about as likely as seeing Bigfoot. But a giant does exist just beyond the fields of a Bell Township farm, rivaling some of the largest red oaks in the state, according to preliminary measurements. And it probably has been there for 400 years. Tom McQuaide of Torrance, a forester with Pennsylvania Forest Management, is in the process of submitting the tree’s measurements for inclusion in the Champion Trees of Pennsylvania, a registry of the state’s largest trees measured by several factors, including height and girth. The largest red oak in the state is in Delaware County. It has an 18-foot circumference, smaller than the Bell Township specimen’s, but it is 145 feet tall, according to the Champion Trees website. “Let’s just say, 100 years ago, there wasn’t equipment in the state to cut down this tree — it was too big to handle,” said McQuaide, a burly man who looks diminutive next to the base of the red oak, which could hide half a dozen men McQuaide’s size. Not that he is looking to cut it down…

Terre Haute, Indiana, WTHI-TV, July 5, 2018: People aren’t the only ones who struggle in intense heat during the summer, trees do as well.

Young trees are very fragile and intense heat like the Wabash Valley has been dealing with can damage trees soon after you plant them. Tree experts say taking care of a tree begins with how you plant it. They say nearby plants can take much-needed water away from the tree you are trying to grow. “It is important to be sure that the root zone is free of competitive plants that are going to take away the water even grass takes away water from your tree. Trees don’t really prefer grass they like mulch like they have in the forest.” ISU grounds manager Stephanie Krull says. A Vigo County Parks Department tree expert showed me how to properly situate a healthy tree and what its surroundings should look like. “So we’ve planted this tree and unfortunately we didn’t get to mulching the tree immediately and so what we wanted to do and what we’ve done here is strip the sod layer off around the tree so we don’t have any competition growing and we’re not throwing that mulch on top of the sod or grass layer” Adam Grossman with Vigo County Parks Department says…

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

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Case of the Day – Monday, July 16, 2018

DUTY

lee140501Robert E. Lee (if we are still allowed to write favorably about him in this #metoo and BLM era) adjured us all to “do your duty in all things. You cannot do more, you should never wish to do less.” Today’s case is about duty, which as far as we’re concerned is more the basis for determining legal liability than a moral concept.

In Kentucky, the Commonwealth (that’s what they call themselves, and who are we to dispute it?) is liable when it has notice of a defect in a highway. The defect in this case was a hole in the pavement, located at the curb end of a parking space. The Department of Highways people inspected that stretch of urban street regularly, but always by driving by. That area of town was teeming with commerce, so the parking spaces were always full and the hole went unseen.

When Mary Maiden fell by stepping in the hole, she sued. The Board of Claims, Kentucky’s tribunal for hearing claims against the Commonwealth, figured that the DOH employees had done all they could do to inspect the street. Thus, it found that DOH wasn’t on notice of the hole.

But the Court of Appeals reversed. In a two-to-one decision, it decided that a drive-by inspection that couldn’t see the whole street wasn’t a reasonable inspection. The case is interesting to us because the Court contrasted this situation to the decision in Commonwealth v. Callebs, a case we’ll look at tomorrow. There, when a tree in the right-of-way fell on a driver, the court found that requiring a “walkaround” inspection was unreasonable.

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A maiden … but not Ms. Maiden

But Ms. Maiden’s Court said that Callebs was different: it placed an unreasonable demand on the DOH to require it to inspect every tree in a rural setting. Besides, to have seen the defect in the tree that fell on Mr. Callebs, the DOH workers would have to gone behind the tree onto private property in order to see the defect.

This case — and the one we’ll consider next — together illustrate the “touchy-feely” nature of some determinations of what is and is not “reasonable.”

Commonwealth v. Maiden, 411 S.W.2d 312 (Ct.App. Ky. 1966). Mary Maiden fell and was hurt when she stepped into a hole in Cumberland Avenue in Middlesboro. This being America, she sued.

Unfortunately for the Commonwealth, not every hole in the street is this obvious.

Unfortunately for the Commonwealth, not every hole in the street is quite this obvious.

The Kentucky Department of Highways had agreed to maintain the street as a part of the state road system. The block in which the accident occurred is in a busy commercial area with diagonal parking on both sides of the street which is usually full during business hours. The hole was about 24 inches long, 9 inches wide and 3 inches deep and was located almost entirely at the back end of a parking space, substantially concealed from view when a car occupied the space. It had been there for some six months.

It was the statutory duty of the DOH to inspect all state-maintained roads. A foreman inspected Cumberland Avenue at least every two weeks by driving along the street in a pick-up truck during business hours. It would have been impossible to see the hole in question if there had been a car parked there, and no DOH employee had ever made a ‘walk-around’ inspection, looking under the parked cars along the street. The Board of Claims rejected Ms. Maiden’s claim, but the trial court reversed the decision, entering judgment for Mrs. Maiden. The DOH appealed.

Held: The judgment for Ms. Maiden was upheld.

The Court said the law in Kentucky is that if a defect in a highway existed for such a period of time that the authorities, by exercise of ordinary care and diligence, should have discovered it, notice will be imputed. A “drive-along” inspection of a busy city street during business hours when parking areas normally were fully occupied – so that defects in the parking spaces cannot be seen – is not a reasonable inspection. Thus, the law assumed that the Department knew of the defect which caused her fall.

Kentucky, of course, is famous for unexpected holes, like the one that swallowed eight vintage Corvettes at a Bowling Green museum earlier this year.

Kentucky, of course, is famous for unexpected holes, like the one that swallowed eight vintage Corvettes at a Bowling Green museum in early 2014.

The Court acknowledged that while the burden of inspection may be a serious problem to the DOH, it was not too great a burden to require an inspection of streets in commercial areas to be made in ‘off’ hours when the parking spaces are not occupied. The Court distinguished the facts from the Callebs case (which we’ll look at tomorrow). In Callebs, the Court had held that DOH did not have a duty to make a ‘walk-around’ inspection of trees along the edge of the right of way. That defect, however, was not in the street itself but rather in the side of the road, and the area was a rural one with light travel rather than an urban one with heavy traffic. Besides, the Court observed, an effective inspection of the trees would have required the use of a considerable amount of time, whereas in this case, an effective inspection would not have involved more time but only the selection of a different hour in which to make it.

One judge dissented, arguing that there was really no distinction between this case and the Callebs case. A lone dissent, however, is an interesting footnote and little more. You can ask the ghosts of Robert E. Lee and the leaders of the Confederacy about being mere footnotes.

– Tom Root

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Case of the Day – Friday, July 13, 2018

YOU CAN ALWAYS BE SAFER

The archetype of a safe man ... he wears both a belt and suspenders.

The archetype of a prudent man … he wears both a belt and suspenders.

No matter how safe you try to be, there is always something else you could have done to be safer. We all make compromises when the utility of what we are doing to be safer becomes more burdensome than the incremental increase in safety our act attains. On one hand, it’s safer to wear seat belts than not to wear them, and the cost of wearing them is exceedingly slight compared to the benefit derived. On the other hand, while it would be a lot safer for all traffic not to exceed 15 mph, the cost of such an act far outweighs the benefits derived from enforcing such a rule.

A similar situation applied in this landmark municipal liability case from Omaha. During a windstorm, a motorist pulled over because he couldn’t see to drive. A tree belonging to the City fell, hitting his car and paralyzing him. The tree, a silver maple, was badly decayed. The motorist sued the City, arguing that for a tree owner to permit a danger tree to stand violated the City’s own ordinances. At trial, the disabled plaintiff was awarded $5 million.

On appeal, however, the Supreme Court of Nebraska was more persuaded by the City’s argument that if every person in its arborist crew spent an entire work year inspecting silver maple trees, each tree would only receive a 12-minute inspection. The City had a tree inspection program in place, and the Court found it reasonably conceived and discharged. Could the City have done more? Certainly. Had it done so, would the damaged tree have been found? No one could say.

The City’s tree inspection program was reasonable, and that was all that was required. The verdict was reversed.

treecar140425McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545 (S.Ct. Neb., 1984). Mr. McGinn was driving in the City of Omaha on a rainy, blustery afternoon, when the inclement weather made him pull over to park. As he was doing so, a silver maple tree fell in front of him, and a branch struck his car, rendering him a quadriplegic.

Photographs taken after the accident revealed that the trunk of the tree was extensively decayed. McGinn sued the City, arguing it was negligent in failing to inspect the tree for disease, decay, and structural defects, and in violating a city ordinance making it unlawful for a landowner to permit a dangerous tree to stand. The City countered that McGinn was contributorily negligent and that the storm, which could not have been reasonably anticipated, caused the tree to fall. The trial court rendered judgment in favor of McGinn and awarded $5 million in damages.

The City appealed.

Held: The judgment was reversed. The Nebraska Supreme Court held that city was not negligent for having failed to remove the tree where there was no evidence that inspection program conducted by city was negligently designed or carried out, or that the tree had been found to be hazardous as a result of any inspection made by the city.

Normally, governmental units are liable under ordinary negligence principles for injuries or damages which result from a tree falling onto a public road from land in possession of a governmental unit. In this case, while McGinn was correct that the City had violated an ordinance rendering it unlawful for any property owner to permit diseased or structurally weak tree from standing upon his property, the violation was at most evidence of negligence, and did not impose strict liability upon the City. Rather, negligence must be measured against particular set of facts and circumstances present in each case, and the utility of the City’s conduct has to be measured against the magnitude of the risk.


Here, the City had established an annual inspection program to check for hazardous trees. The program was neither negligently designed nor negligently carried out. Alternatives might have reduced the risk, such as cutting down any silver maple older than a certain age or conducting lengthy, individual tree inspections, but these remedies were expensive and unreasonable. There was no indication that the tree which fell on McGinn’s car during the severe storm had been found to be hazardous during any inspection made by the city.

Thus, the Court said, the city was not negligent in not having had the tree removed, and thus was not liable for personal injuries sustained by McGinn.

The takeaway here is that in a proper weighing of the reasonableness of a defendant’s actions, courts traditionally weigh the magnitude of the task. A homeowner with ten trees cannot reasonably fail to ascertain the condition of his or her trees. A municipality with 10,000 trees can get away with failing to ascertain the condition of any particular one of those trees if it has an inspection program that is a reasonable balance of cost and efficacy.

– Tom Root

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Case of the Day – Thursday, July 12, 2018

THE RESTATEMENT RULE FALLS AWAY, CHIP BY CHIP

In the development of liability law for danger trees, the “every-dog-for-himself” school of thought has reigned supreme for 150 years. The authoritative Restatement of Torts (2nd) rule says that “a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land, except in an urban area, where the possessor is liable to people using a public highway for physical harm resulting from his or her failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of his or her trees.”

A real mouthful, the Rule said in so many words, “if you live in the country, you owe nobody anything. If you live in the city, you owe a duty to someone on the highway, but no one else.”

The Restatement – which ideally states the law as it generally exists in the 50 states – has instead become the driver. The rule is followed almost everywhere, with the Restatement being cited as the authority. So instead of summarizing what the various state court have held, the Restatement has made the law in many places. 

But times change, populations shift, and what was a workable (or at least an acceptable) rule suddenly makes little sense. That happened in today’s case from the Hoosier State, in which a neighboring landlord neglected a danger tree. After all, he was a landlord, and what landlord will spend a dime that won’t increase his return?

So the neighbor pointed out the decaying tree, the City pointed out the decaying tree, and all the chattering passersby pointed out the decaying tree. And then, the landlord found a drive-by arborist who eyeballed the tree (without even being able to identify the species as a Basswood from his quick “look-see”), and pronounced it fit as a fiddle. A Basswood fiddle.

Except it was not so fit. When the tree fell on the neighbor’s house, her insurance paid for repairs and then (justifiably) came after the landlord. He said, “Tough luck. The Restatement rule says I’m only liable to people on the public street.”

And that was what the rule said. So the Court changed the rule. And that, boys and girls, is how the law evolves.

Marshall v. Erie Insurance Exchange, 923 N.E.2d 18 (Ind.App. 2010). John and Marjorie Marshall owned many rental properties, which John supervised. One was a vacant lot next to Cindy Cain’s home.

A tree stood on Marjorie’s lot near the boundary of the two parcels. From the time Cindy purchased the home, she worried about the tree’s health and the danger it might pose. Cindy talked to her neighbor about the tree, but got nowhere. She talked to a City code enforcement officer about the tree. The officer told Marjorie’s property manager the tree had to come down. He also spoke to John, who said he would have the tree checked. Cindy told a guy who worked for the Marshalls’ maintenance worker and a woman who claimed her husband was the Marshalls’ new maintenance worker about the hazard tree. The man Cindy spoke to agreed that the tree should be taken down and said he would speak to John about it.

On New Year’s Eve, the tree fell onto Cindy’s house, knocking over her chimney and causing damage to the roof and frame. Cindy filed an insurance claim with Erie, which held her homeowner’s insurance policy. Erie reimbursed her for the necessary repairs to her home (minus her deductible, of course). Then, Erie sued the Marshalls for damages stemming from their negligent maintenance of the tree.

Jake Denlinger, a professional arborist, testified that before the tree fell, he had looked at the tree at John’s request. Jake inspected the tree but did not take any samples of the tree’s core. He testified he did not see enough evidence of decay in the tree to warrant removing the tree. His cross-examination must have been withering, because Jake – filled with doubt –  Jake returned to the vacant lot after his testimony to look at the tree stump to determine what type of tree had fallen on Cindy’s house. He found it was a Basswood tree, and returned to testify that it is difficult to judge a Basswood’s health without internal sampling, because the trees do not show many exterior signs of decay.

The trial court found for Erie, and the Marshalls appealed.

Held: The trial court’s decision in favor of Erie Insurance was upheld.

The Court said that to recover in negligence, a plaintiff must establish a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; a failure on the part of the defendant to conform his conduct to the standard of care; and (3) an injury to the plaintiff proximately caused by the breach.

Absent a duty, there can be no breach and, therefore, no recovery in negligence.

In Valinet v. Eskew, the Indiana Supreme Court adopted the rule in Restatement (Second) of Torts section 363, that a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land, except in an urban area, where the possessor is liable to people using a public highway for physical harm resulting from his or her failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of his or her trees.

The Court of Appeals observed that the Valinet rule seemed to foreclose the issue of whether the Marshalls owed a duty to protect Cindy from the fallen tree. The Court, however, was unwilling to “leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure an obviously decayed and dangerous tree simply because it was a natural condition of the land.”

The Court concluded that it should depart from “the strict application of the Restatement rule in the context of urban or residential property.” That Rule was adopted when land was mostly unsettled and uncultivated. In urban or residential areas, however, the Court held, it should not be an undue burden for a landowner to inspect his or her property and take reasonable precautions against dangerous natural conditions. “Living in close quarters with one’s neighbors in an urban or residential setting substantially increases the risk that a falling tree will cause damage to property or injury to persons, and, similar to the problem relating to a highway, the reduced size of property lots in an urban or residential setting makes the burden of time and money to inspect and secure trees on one’s property relatively minor especially as compared to the potential damage that could result from the tree’s fall.”

Thus, the Court said, an urban or residential landowner has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners, arising from the condition of trees on his or her property. Whether the land in question is of sufficient population density to invoke the rule is a factual question for the fact finder. In addition, in determining whether the landowner exercised the requisite reasonable care, the fact finder must weigh the seriousness of the danger against the ease with which it may have been prevented. In some circumstances, fulfilling this duty may require a landowner to conduct periodic inspections of his or her property.

In this case, the Court said, the trial court applied a duty of reasonable care to the Marshalls with respect to preventing the damage caused by the fallen tree. The trial court heard evidence that the code enforcement officer contacted the Marshalls to inform them of the dangerous tree and the need to remove it, and several witnesses testified to the physical state of the tree. True, the Marshalls provided some evidence they contacted a tree specialist, but he only performed a superficial examination of the tree and did recommend its removal. Because reasonable minds could draw different conclusions from the facts in evidence, it was for the trial court to determine whether the Marshalls’ conduct breached the duty of reasonable care. Sufficient evidence supported the trial court’s judgment that the Marshalls did so, and that Cindy’s home was damaged as a result.

– Tom Root

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Case of the Day – Wednesday, July 11, 2018

WHAT DID THE GOVERNMENT KNOW, AND WHEN DID IT KNOW IT?

One of the enduring lines from the endless (or so it seemed at the time) Watergate investigation was Howard Baker’s famous question, “What did the president know and when did he know it?” On the answer to that question turned the culpability of the President for the high crimes and misdemeanors of his minions. It still does, despite the fact that we now know that the Watergate investigation timetable was a rocket ship compared to Whitewater-Lewinsky, Valerie Plame, BenghaziFast and FuriousIRS, and Trump-Russia.

It’s a great question. Many plaintiffs have discovered that possessing or lacking the answer to it often is the difference between winning and losing a tort action.

We talked about strict liability yesterday, but that’s not generally the way we do things. Were it otherwise, commerce and society would screech to a halt, because anything act, regardless of how responsibly it was performed, could lead to liability and financial ruin.

Consider today’s case. A tree branch cracked and settled so far down the tree that it dangled dangerously low over a road. Linda hit it, damaging her car. No one would disagree that the branch should not have been there. Nevertheless, the harm it caused did not mean Linda could pick the State of Ohio’s pocket for repairs itself unless the State had a duty to the motoring public which it failed to discharge.

Shouldn’t the Ohio Department of Transportation have known about the danger? Should it not have corrected the defect before Linda happened along? Shouldn’t those highway workers do something to justify their paychecks? That all depends on the State’s knowledge of the defect. Or, as the late Sen. Howard Baker might have put it, “What did ODOT know, and when did it know it?”

Coleman v. Ohio DOT, 2009-Ohio-6887 (Ct. Claims, Aug, 25, 2009), 2009 Ohio Misc. LEXIS 3. One February day, Linda Coleman was driving along a state highway a half mile outside of the village of Westville, Ohio, when her 2004 Honda Accord hit a very low tree branch overhanging the road. The impact broke the windshield and damaged the right side of her car.

Linda sued ODOT, theorizing that the damage to her car was proximately caused by ODOT’s negligence in failing to maintain the roadway free of hazardous conditions. She sought a paltry $745.01, the cost of fixing her Honda.

ODOT denied liability, contending that none of its employees or agents had any knowledge of the hazardous overhanging tree limb prior to Linda’s collision with it. ODOT denied receiving any reports about the limb prior to the accident from anyone. ODOT did receive a report after Linda struck the tree, and responded by dispatching two ODOT workers to remove the tree limb the same day Linda hit it. ODOT argued that the facts suggested that “it is likely the tree limb existed for only a short time before the incident.”

ODOT related that its manager for that county inspected all state roadways n the county at least twice a month. Apparently, no overhanging tree condition was discovered at Milepost 2.50 on State Route 560 the last time that section of roadway was inspected.

Held: ODOT had no liability to Linda.

To be sure, ODOT has the duty to maintain its highways in a reasonably safe condition for the motoring public. However, the state agency is not an insurer of the safety of its highways. In order to prove a breach of ODOT’s duty to maintain the highways, Linda would have had to prove that ODOT had actual or constructive notice of the precise condition or defect alleged to have caused the accident. ODOT would only be liable for a roadway condition of which it has notice but failed to take reasonable steps to correct.

In order to recover on a claim of this type, the Court said, Linda had to show either that ODOT had actual or constructive notice of the low-hanging tree limb and failed to respond in a reasonable time or responded in a negligent manner, or that ODOT in a general sense maintains its highways negligently. For constructive notice to be proven, Linda would have had to show that sufficient time has passed after the dangerous nature of the tree limb came into being, so that under the circumstances, ODOT should have learned of its existence.

The court hearing the case may not infer that ODOT knew, unless Linda presented evidence of when the defective limb first appeared to be too low over the roadway. Here, Linda had no proof that ODOT had any notice, either actual or constructive, of the damage-causing tree limb.

Generally, to prove negligence, a plaintiff must prove that a defendant owed her a duty, that it breached that duty, and that the breach proximately caused her injuries. She must also show she suffered a loss, and that this loss was proximately caused by the defendant’s negligence.

Linda had no evidence that her injury was proximately caused by ODOT’s negligence, because she could not show when the dangerous condition came into being. Therefore, she was unable to show that the damage-causing object was connected to any conduct under ODOT’s control, or to any ODOT negligence.

– Tom Root

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Case of the Day – Tuesday, July 10, 2018

STRICTLY SPEAKING

Strict liability statutes, also known as “liability without fault,” occupy the blameless end of the “mens rea” spectrum. Our traditional notions of fair play lead us to believe that people should not be held to blame for injury unless they are somehow at fault, either being negligent, grossly negligent, reckless, or just plain acting with intent to bring about the harm they cause.

But at common law, some acts were considered to be so inherently dangerous – the classic case was a lion that escaped from a keeper of exotic animals – that courts let the res ipse loquitur, the “thing speak for itself,” and found the owner liable for whatever mayhem ensued from a force that had once been under the owner’s control. Negligence need not be shown.

Remember the radioactive spider that bit Peter Parker and made him super-powered Spiderman? Peter (or maybe Spidey) could have sued the lab that let the spider escape. Everyone knows that a radioactive spider is an inherently dangerous instrumentality, and whoever the last guy was to have the arachnid in captivity had better be prepared to pay big, regardless of whether he was at fault or not.

But should strict liability extend to dogs? Speaking as the owner of a 40-lb. canine terror to woodchucks but a marshmallow around humans, we don’t really see why they should. Nevertheless, many states have dog bite statutes that make owners strictly liable for their canines’ misdeeds, regardless of fault. To be sure, some of the statutes are hybrids, making the owner absolutely liable except for all the cases in which he is not. In today’s case, the statute at issue made an owner strictly liable for his or her dog’s bite, unless the person so bitten was engaged in criminal trespass or other criminal conduct, or was tormenting or teasing or harassing the dog. So the owner is absolutely liable… sort of.

Today’s case is the kind of tree law/neighbor law mashup that you have come to rely on us to deliver. The trial court here made the tree trimmer into a trespasser, despite the obvious fact that the power company had every right to enter its easement to prune back trees. The Court of Appeals could not swallow that, but instead suggested that while not a trespasser, the employee owed the dog’s owner notice that he was entering the premises, so the owner had the chance to control his dog.

With Brett Kavanaugh nominated to the Supreme Court, there will be a lot of talk over the next few months about “judge-made law.” You want to see judge-made law? Just look at the gyrations of the trial and appellate court in the case below.

The judges here clearly could not accept that the dog’s owner should have to pay, when the dog had been contained in a yard behind a fence and a “no trespassing” sign, but a stranger – regardless of intention and right – barged in anyway, and complained because the dog chased him. And they found a way to bend the law to suit their sense of propriety.

Collins v. Bergman, 2010-Ohio-6213 (Ct.App. Montgomery Co., Dec. 17, 2010), 2010 Ohio App. LEXIS 5233, 2010 WL 5274. Jason Collins worked for Nelson Tree Service, which was under contract with the power company to remove trees that were too close to utility poles and lines. Jason’s job was go from house to house inspecting inspect all trees encroaching DP&L utility lines and poles, so any trees too close could be trimmed back at a later time.

When Jason reached Jeff Bergman’s house, there was no answer when he knocked on the door. Jason left a courtesy card on the door, notifying Jeff that a tree trimming would occur in the future. Jason then went around the back of the house to count the trees. He could hear a dog barking. The dog was a Labrador-Rottweiler mix named Taz. Jason didn’t know Taz had a dog door giving him unfettered access to the back yard.

Jason could see that Jeff and his neighbor had built 6-foot privacy fences, which made it impossible for the power company to check its easement. Thinking that Taz was inside, Jason entered the fenced-in back yard through a gate marked “no trespassing.”

Taz was not inside. As Jason fled the barking dog, the cantankerous canine planted his fretwork in Jason’s pant leg. Jason tried to climb the privacy fence, but fell back, injuring his shoulder.

Jason sued Jeff under Ohio’s dog bite statute, O.R.C. 955.28. Jeff filed for summary judgment. At the time, that statute provided that “the owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property… or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog …”

The issues in this case were whether Jason entered Jeff’s property pursuant to the utility easement, and whether he was a trespasser within the meaning of the dog bite statute.

The court determined that Jason was injured within the easement, where he had a right to be. However, the court said, the easement did not provide a specific place for the utility to enter the property, and therefore Jason was required to make use of the easement in a reasonable manner. The court found that Jason did not act reasonably in deciding to enter Jeff’s property without notice and through a latched gate and a fence with a posted “no trespassing” sign. The court also noted that Jason failed to follow his own company’s policy in entering a property when there is a dog barking in an enclosed area. Because Jason did not make reasonable use of the express easement granted the utility company, he was a trespasser within the terms of O.R.C. 955.28(B). The trial court granted Jeff’s summary judgment motion.

Held: Jason was a trespasser and not entitled to damages.

The Court of Appeals agreed with Jason that he had a right to enter the easement, and because it was blocked, he the only reasonable avenue open to him through the backyard fence.

However, in determining whether a person is a “harborer” under the statute, the Court said, “the focus shifts from possession or control over the dog to possession and control of the premises where the dog lives.” The hallmark of control is the ability to both prevent and exclude others from coming onto the property. Because Jason entered the property without permission, Jeff lost the ability to control his property at the time of the incident. Thus the trial court properly denied Jason’s motion for partial summary judgment and properly granted summary judgment to Jeff on the O.R.C. 955.28 claim.

– Tom Root

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