Case of the Day – Wednesday, February 26, 2020


ralphie150930“I get slandered, libeled, I’ve heard words I never heard in the Bible …”

Oh, thank heaven for nosy and nasty neighbors. Because of them, we have a case today that started out as a tree problem, and ended up as a neighbor law problem.  And a dignatory tort, to boot. Forgive me, but I love this stuff.

Matters began between neighbors Joe Bouler and Linda McKeever Bullard when she claimed that he has trespassed on her land and cut down some trees. Things devolved from there. At one point, Joe was sure Linda was taking pictures of his wife – oh, the horror of it all! – and he complained to the cops. For good measure, he told the officer that Linda also had an anti-9/11 sign in the window.

The sign allegedly said, “9/11 F*** You.” Without the asterisks, of course. Pretty caustic stuff, huh?

If the report was something Joe made up in order to inflame the passions of the police officer, it fell short. It was hard for a police officer to be too fired up when he couldn’t really tell what the sign meant.

Not literally. The literal meaning of the Queen Mother word was clear enough. But not the context, a distinction that Ms. Bullard belatedly appreciated when she sued her big-mouthed neighbor for slandering her to the police by accusing her of posting such a scurrilous sign.

The court was puzzled, too. Did the sign indicate that Ms. Bullard was one of those conspiracy types? Maybe she figured America deserved to suffer 9/11. But maybe she meant to flip the bird (figuratively speaking) to Osama bin Laden. If so, she would hardly be the first person to use both the term “9/11” and the f-bomb together.

Now if Joe had said he'd seen any of these signs in Linda's window, the slander per se would probably have been complete.

Now if Joe had said he’d seen any of these signs in Linda’s window, the slander per se would probably have been complete.

That was a problem, the Court said. You can’t be slandered unless you’ve been damaged. Some slander is so bad that damages are presumed. That is called “slander per se” under Georgia law (a term fairly common among the states). But slander per se must meet a strict definition, and one element is that it must be clear without resorting to extrinsic facts.

The problem, the Court said, is that the “9/11 F*** you” sign wasn’t clearly pro-American, pro-Al Qaeda, pro-religious right, pro-wacko conspiracy, or pro-anything. Without more information, the sign didn’t suggest what — if anything — Ms. Bullard believed or was trying to convey. And because that information wasn’t a part of the sign she had allegedly put up, she had no case against her neighbor.

Bullard v. Bouler, 286 Ga.App. 218, 649 S.E.2d 311 (Ga.App. 2007). Linda McKeever Bullard and her neighbor, Joe Bouler, had quarreled previously in a trespass action in which she claimed Joe had caused trees to be cut down on her land. Bullard took pictures of the trees that had been cut down as evidence for the trespass suit.

SlanderShortly thereafter, a Fulton County Police officer came to her door and asked to speak to her. The officer said Bouler had complained that she was taking pictures of Bouler’s wife in the Bouler’s backyard, and that he also had said Bullard had been posting signs in her window that said, “9/11, F- – – You.” Bullard testified that the police officer reported these allegations “with a look of utter contempt.” Bullard vehemently denied she had posted such signs.

The police officer confirmed that Bouler had made the allegation about the signs, and that she had denied it. Bullard sued, alleging that Bouler’s statement damaged her by accusing her “of a debasing act that may exclude her from all of American society,” an allegation which tracked OCGA §51-5-4(a)(2).

Following discovery, the trial court granted Bouler’s motion for summary judgment. It held that the words spoken were not slanderous because they were “an expression of pure opinion, which is neither provable as true nor as false.”

Bullard appealed.

Held: The allegation Bouler made to the policeman was not slander. Bullard alleged a claim of slander or oral defamation under OCGA §51-5-4(a)(2), which defines one form of defamation as “charging a person … with being guilty of some debasing act which may exclude him from society.” For this form of defamation, damage is inferred, making this type of slander “slander per se.” In other words, malice is inferred from the character of the charge. In order to constitute slander per se, the words must be injurious on their face, extrinsic facts may not be considered, and the court may not rely on innuendo.

innuendo150930When words are defamatory per se, innuendo — which merely explains ambiguity where the precise meaning of terms used in the allegedly slanderous statement may require elucidation — is not needed. Here, the Court said, any slanderous meaning applicable to Bullard from a statement that she had posted a sign with the words “9-11 F— You” is not apparent in the plain meaning of Bouler’s statement. At most, the Court said, Bouler’s words mean that Linda Bullard was the type of person who would say to the public, “Nine-eleven, F— You.” But what the sign meant was ambiguous.

Bullard thought it meant Bouler was saying that she was the type of person who would disparage America’s loss on September 11, 2001 and that Bouler intended to inflame the police officer, a “first responder,” who might have taken offense at that thought. If that was what the words meant, Bouler’s words might very well constitute slander. But, the Court said, the words do not constitute slander per se here because what they really mean is not apparent from the plain meaning of the words.

In order to find the meaning, the viewer would have to rely on some extrinsic fact, and that takes the words out of the “slander per se” category.

– Tom Root

And Now The News …

Allentown, Pennsylvania, Morning Call, February 25, 2020: Forest fire at popular Delaware Water Gap hiking trail 95% contained; mostly gypsy moth-infested trees burned

A forest fire burning through a popular hiking area crossed by the Appalachian Trail and a major interstate highway was almost completely contained early Tuesday, New Jersey fire officials said. The fire began Sunday afternoon on Mount Tammany, a steep, rugged area of New Jersey’s Worthington State Forest and the Delaware Water Gap National Recreation Area on the New Jersey-Pennsylvania border. Fire officials said about 80 acres burned overall, but no injuries were reported. Of the 80 acres burned, 78 were in the state forest and two were in the national recreation area, which is separate from the state forest, Delaware Water Gap National Recreation Area spokeswoman Kathleen Sandt said. “The number of acres burned in each area may be revised after a final assessment,” Department of Environmental Protection spokesman Larry Hajna said. A cause for the fire had not been determined, officials said. Officials say it likely won’t be fully extinguished until expected rain showers pass through the area Tuesday and Wednesday that will soak any remaining hot spots. Chris Franek, the state forest fire service’s assistant division fire warden, has said fires on similar terrain usually burn upward. But he said Sunday’s fire, which started below a trail at an elevation of about 1,400 feet, burned downhill because the trail area is rocky and doesn’t have abundant vegetation…

Omaha, Nebraska, World-Telegram, February 25, 2020: What’s a ‘Tree Husker’? Students at UNL can now find out

College isn’t for everyone, but it can be for tree lovers. Students at the University of Nebraska-Lincoln can declare a new regional and community forestry major this fall. Students majoring in the program can specialize in urban forestry management and arboriculture. They will learn about tree management in rural and urban landscapes, dive deeper into tree biological systems and address natural resource challenges, such as the emerald ash borer and climate change, said Eric North, assistant professor of practice with the School of Natural Resources. The new bachelor’s degree, which will be a part of the College of Agricultural Science and Natural Resources, was approved with the unanimous vote by the Nebraska Coordinating Commission for Post-Secondary Education. Students will get to climb trees and call themselves “Tree Huskers,” he said. Before Nebraska became the state for “Cornhuskers,” he said it was known as the Tree Planter State. The old name reflected the early efforts of pioneers to plant millions of trees. “By calling themselves ‘Tree Huskers,’ they are contributing to the history of Nebraska and its agricultural system,” he said…

Los Angeles, California, La Cañada Valley Sun, February 25, 2020: City to add tree-trimming notification rules to franchise agreement with Edison

Members of the La Cañada Public Works and Traffic Commission recently considered the wisdom of revising the city’s franchise agreement with utility provider Southern California Edison to include procedures for notifying residents and officials of impending tree-trimming work. The discussion arose during a Feb. 19 meeting in which commissioners reviewed the original ordinance, signed into law on June 24, 1977. The four-page agreement makes no mention of tree trimming or providing advanced notification of work. “Is there some way to put a document together that all parties would agree to that would provide some basic conditions … not to limit Edison’s ability to maintain its facilities in a reliable way but to do it in a responsible way, so the city has notification and can work with Edison?” Commissioner Eldon Horst posed. At a Jan. 15 meeting, a group of residents spoke out against what they called Edison’s overly aggressive trimming practices. Hillard Avenue homeowner Susan Prager described a deodar cedar trimmed within an inch of its life one week earlier. “They chopped off most of the low-hanging branches of the deodars which gave the street much of its grace and beauty,” she told commissioners. “There are sickening examples all over the community…”

Denver, Colorado, KUSA-TV, February 25, 2020: Removing rat-infested trees final step to reopening Denver park

A state-owned park once infested with rats is close to reopening in Denver. “It should be in the near future,” Doug Platt, communication manager for the state Department of Personnel and Administration said of Lincoln Park. “We’re just about to the point where we think we’ve got the rodent infestation issue under control, we’re getting these trees, which are a safety issue, addressed and we’ve cleaned up the grounds.” Lincoln Park sits next to the Colorado State Capitol, across the street from Denver’s Civic Center Park. In January, the Denver Health Department shut Lincoln Park down in an emergency action, which also forced about 100 people who are experiencing homelessness to move out. “We need to completely clear the park,” Ann Cecchine-Williams with the Denver Department of Public Health & Environment told 9NEWS back in January. “We’re looking at the rats. We’re looking at animal and human waste. We are doing this because it is an egregious situation here. It is a threat to public health and safety. There’s been a rat issue here for more than just a few weeks or a few days,” Platt said Tuesday. “This has been ongoing for actually a number of years.” He said the rats are the reason the two trees need to be removed. “What we’ve observed, and we’ve had an exterminator come out and check the area, but they basically burrow into and underneath the root system of the tree and then they dig up into and under the tree,” Platt said. “Essentially, it ends up killing the tree from the inside out…”

Stanford, Connecticut, Advocate, February 24, 2020: Eversource $83M trimming program to face ‘crisis’ of dead, hazardous trees

Eversource has announced a $83 million tree-trimming program to deal with “the ongoing crisis of dead, dying and hazardous trees continues to plague communities across Connecticut and threaten electric reliability.” The energy company’s comprehensive tree maintenance program is already underway along roads in several communities around the state in an effort to fortify the electric distribution system and enhance reliability for customers. Eversource will be trimming trees along more than 4,200 miles of roadside overhead distribution lines around the state. Among the 131 communities where tree trimming will be performed this year, some of the most extensive work is scheduled to be done in Waterbury along nearly 170 miles of city streets. Trees will also be trimmed along 124 miles of roads in Greenwich, 107 miles in Woodbury, 105 miles in New Milford and 101 miles in Westport. Other communities where tree work will be completed include Torrington, Stamford, Middletown, Washington and Wolcott…

Mining Technology, February 24, 2020: Tree Guards

When establishing trees, the first two years are of crucial importance to the longevity and success of the project. Tree guards are vital during this establishment phase, ensuring the plant has the best chance of survival, under harsh Australian conditions. Tree guard products achieve this by providing shelter for the young plant, by means of extra shade from extreme heat, protection from strong wind, and reprieve from frost. Tree guard products also protect the plant by creating a physical barrier between the plant and browsing animals. Tree guards also aid in the ongoing maintenance of a planting project by protecting the plant from spray drift during weed control programs and serving as a marker for watering and monitoring purposes. Tree guards are easy to install and come in a range of sizes and materials. The most basic is the two-litre milk carton guard. This product is the quickest to install and most budget-friendly option, making it a popular choice for large scale revegetation projects. The corflute guard is a much larger and more robust product, made from UV stabilised, corflute plastic. This style of guard will not only protect the growing plant but improve growth rates by providing shelter from weather extremes and preventing evaporation…, February 24, 2020: Forest duff must be considered in controlled burning to avoid damaging trees

Many decades of forest fire prevention and suppression has resulted in a thick buildup of organic matter on the forest floor in many regions of the United States, according to a Penn State researcher, whose new study suggests that the peculiar way that these layers burn should be considered in plans for controlled burns. In both the eastern and western U.S., one of the consequences of avoiding fires for so long in fire-adapted pine forests is the build-up of forest floor”duff”—a deep, dense layer of partially decomposed pine needles—that would otherwise not accumulate under a frequent fire regime, explained Jesse Kreye, assistant research professor of fire and natural resources management in the College of Agricultural Sciences. That accumulation of organic debris can complicate efforts to use prescribed fire as a forest management tool, he explained, and this buildup of duff, particularly pronounced at the base of pines, is problematic if there is a wildfire…

Fargo, North Dakota KVRR-TV, February 24, 2020: Fargo city commissioners discuss proposed tree ordinances

Fargo’s forestry department is hoping to implement ordinances for preserving and protecting trees across the city. During a meeting with the mayor, they talked about the progress that’s been made and what the next steps are for the ordinances. Since October, two task forces have been created to help implement tree protection guidelines. A draft of the ordinance includes whether private property trees should be included in the guidelines and incorporating specific construction standards for tree removal. “I’ve got a great team of individuals that are working through this, and it’s going to take us a little more time but I think in the end we’ll have several different documents and direction on where to go,” says City Forester Scott Liudahl…

San Francisco, California Chronicle, February 23, 2020: If accidental fire damages someone else’s trees, owner escapes responsibility

A 19th century California law providing double or triple damages for destroying trees or timber on someone else’s property does not apply to fires started by accident, the state Supreme Court has ruled. The law, enacted in 1872, applies to “wrongful injuries to timber, trees or underwood upon the land of another, or removal thereof.” It provides triple damages for harm caused by a deliberate entry onto another person’s property, and double damages “where the trespass was casual or involuntary.” And it allows lawsuits up to five years after the damage occurred, compared with three years for ordinary negligence suits. The law was invoked by a Colusa County resident, Vincent Scholes, whose trees were damaged by a fire in May 2007 that started on neighboring land owned by Lambirth Trucking Co. Scholes said a grinder operated by the company spewed out wood chips and rice hulls that blew onto his property and spread the fire to his trees…

Bowling Green, Kentucky, Daily News, February 23, 2020: Kentuckians plant trees to heal mine-devastated mountaintops

It looked like a scene of wanton destruction on federal land under the watchful eye of a U.S. forester. Two bulldozers plowed up and down a hillside, pushing over anything in their path. Shrubs and small trees snapped under the dozers’ force like kindling. On the barren ground where the machines had been, December rain pooled in muddy tire tracks. A single young oak that had been spared seemed, if anything, to accent the mayhem. “You folks have boots? Want to get muddy?” That was Patrick Angel, leader of this tour. Angel is a scientist who has made his career with the U.S. Office of Surface Mining Reclamation and Enforcement, a little-celebrated unit in the Department of the Interior. For 25 years, he oversaw the process that may represent humans’ best attempt at total annihilation of land: strip mining and mountaintop-removal mining of coal. He told coal companies to do one thing when they were done with a site: Pack the remaining rubble as tightly as possible, and plant grass – the only type of plant he trusted to hold the ground in place. Then, in 2002, Angel realized something was wrong. The big, productive, life-nurturing forests of Appalachia weren’t just slow to come back; they weren’t coming back, period. Nearly 1.5 million acres, an area larger than Delaware, that should have had trees were little more than weedy fields. It was an ecological disaster, and Angel helped create it. “There is a tremendous amount of guilt,” he said…

Greeneville, South Carolina, News, February 19, 2020: ‘An ecological deadzone’: A Clemson professor wants to get rid of Bradford Pear Trees

A university professor wants to rid Clemson of Bradford Pear Trees, an invasive species that’s spread throughout the entire Upstate and most states east of the Mississippi. David Coyle, assistant professor of forest health and invasive species, is spearheading the Bradford Pear Bounty in partnership with the SC Forestry Commission and City of Clemson to replace hundreds of Bradford Pear Trees with native tree species in the Clemson area. Pre-registration is required and availability is limited to five trees per person and 400 trees total. The event will take place on Saturday, Feb. 29 in Nettles Park. Standing in the middle of a mud-drenched, three-acre field covered in dark, skeletal trees, Coyle explained the problem. The trees are Callery Pears, the wild version of Bradford Pear Tree. “It creates an ecological deadzone,” Coyle explained. “Even the grass is gone.” Ironically, the field, located in Pendleton, SC, sits next to a cemetery. The hardwood trees can grow up to 60 feet tall in thick copses and develop wicked-sharp thorns. Flora and fauna stay away from the copses – caterpillars don’t eat the leaves and the only birds who eat the fruit are starlings, Coyle said. The densely packed tree trunks block sunlight, making it near impossible for other vegetation to grow alongside it…

Las Cruces, New Mexico, Sun, February 23, 2020: When to prune trees in New Mexico

Question: When is the right time to prune ornamental and fruit trees?
Answer: Well, you’re not going to be surprised at this answer: It just depends. What are your reasons for pruning? Are your trees grown for their beautiful blooms? If so, do they bloom before leaves start to appear? Trees like redbuds and crabapples and shrubs like lilac and forsythia flower before they leaf out, and that’s a clue that the flowers emerge from buds growing on older growth. If you prune too much you’ll lose out on this season’s flush of color. It makes more sense to prune those just after they’ve bloomed. On the other hand, if you’re wanting to reduce the growth of a young tree because branches are getting awfully close to your gutter, pruning midsummer might make more sense than pruning in late February. As Ed Gilman explains in his wonderful book “An Illustrated Guide to Pruning:” “To retard growth and for a maximum dwarfing effect on all trees, prune just after each growth flush, when the leaves have fully expanded and turned dark green. Pruning at this time theoretically slows growth by reducing photosynthetic capacity and energy-storing wood (sapwood), which causes a dwarfing effect. Only healthy, vigorous, young or medium-aged trees should be pruned using this strategy. Pruning live branches from unhealthy old trees, including those impacted by construction activities, at a time of low energy reserves, during or just after the growth flush, could deplete them further of much-needed energy reserves and energy-producing tissue (i.e., leaves)…”

Palm Beach, Florida, Post, February 20, 2020: Goats chew their way through invasive Brazilian pepper trees in Indian River County

How do Brazilian pepper tree leaves taste? Not “ba-a-a-a-ad,” say goats blissfully munching on sprigs of the invasive plant. “They love this stuff,” said Steven Slatem of Melbourne, founder and chief executive manager of Invasive Plant Eradicators, as he chopped down a pepper tree limb with a machete and gave it to waiting goats. “It’s their favorite.” His company has a $24,000 contract with Indian River County to use his goats to help clear invasive plants, pepper trees in particular. Among the many benefits, it cuts down on the use of chemical weed killers that can pollute water and harm the environment. St. Lucie County is watching to see if goats are a good alternative before considering whether to follow suit, and Martin County is concerned about goats eating native plants. Indian River County has the goats working on two conservation areas: South Prong Slough west of Wabasso and Cypress Bend Community Preserve near Roseland. Both are former groves where invasive plants are replacing citrus trees faster than native species such as oak, maple, cypress and sabal palm trees can grow. The pepper trees are a scourge on Florida’s environment, pushing out native species on over 700,00 acres throughout the state, including sensitive habitats such as mangrove swamps along Everglades marshes and the Indian River Lagoon…, February 20, 2020: Over 100 eucalypt tree species newly recommended for threatened listing

The Threatened Species Recovery Hub has undertaken a conservation assessment of every Australian eucalypt tree species and found that over 190 species meet internationally recognised criteria for listing as threatened: most of these are not currently listed as threatened. Associate Professor Rod Fensham at the University of Queensland said the team assessed all 822 Australian eucalypt species against the criteria set by the International Union for the Conservation of Nature (IUCN) Red List of Threatened SpeciesTM. The results have just been published in the scientific journal Biological Conservation. “Our assessment found that 193 species, which is almost one quarter (23%) of all Australian eucalypt species, meet criteria for a threatened status of Vulnerable, Endangered or Critically Endangered,” said Associate Professor Fensham. “This is very concerning as eucalypts are arguably Australia’s most important plant group, and provide vital habitat to thousands of other species. Less than one third (62) of the species that we identified are currently listed as threatened under Australian environmental law, and less than half (87) are listed under state and territory laws…

Stamford, Connecticut, Advocate, February 20, 2020: Tree removal along Connecticut highways unsightly, but necessary, DOT says

Those traveling along Route 9 in Cromwell may have been surprised to see hundreds of cut trees, including some healthy specimens, lying along both sides of the highway and wondered what work the state is conducting there. In the Middletown / Cromwell area, work is being performed near exits 19 (Route 372 / West Street) and 20 in Cromwell (which leads to Interstate 91 north and south). Thirty feet of clearance on both shoulders is the minimum requirement, which is standard across the country, according to Kevin Nursick, spokesman for the Connecticut Department of Transportation. The statewide project is estimated at $40 million, and will continue for the next four to five years, he said. Routine maintenance — for safety as well as operational efficiency — stepped up recently after the state provided more funding. For decades, lack of adequate financial support prevented much of the tree work from progressing, Nursick said. “We’re playing a lot of catch-up at this point.” Not only could the public be endangered, but road crews, as well. Nursick acknowledged the view of hundreds of felled dead and decaying trees is an unsightly one. “It’s a big issue. We’ve been all over the map in Connecticut. You could throw a dart, and we’ve probably been there or we’re going to be there,” Nursick explained. During that process, wood chips abound. “It doesn’t really look good, and I don’t think anybody is going to disagree with that,” Nursick said…

Chicago, Illinois, WLS-TV, February 20, 2020: Chicago Water Dept. tests tree-saving technology in Andersonville

More than a dozen trees in Andersonville are saved, thanks to a new pilot program the city of Chicago’s Water Department is implementing. “These mature trees are one of the most valuable things that we have to keep us healthy,” said Lesley Ames, Andersonville tree committee member. Last year, the water department was scheduled to complete routine sewage maintenance and drain removal. To do that, they’d have to cut down trees around the neighborhood, some of them more than 100 years old. “It seemed to us to be an abnormal number of trees,” Tamara Schiller said. Schiller is also a member of the tree committee and has lived in the neighborhood for more than 30 years. “There were ten trees alone on my block, so we started looking into it and said, ‘Isn’t there something else that could be done?'” Schiller said. “The more people found out about it, the more people came out into the street and wanted to find out what was going on,” Ames added. People like Ames and Schiller talked to their neighbors, their alderman and the water department to find an alternative. After months of back and forth, they found one: a CIPP or cured-in-place-pipe. “This pilot program is actually going to give us an opportunity to come up with new technology to allow us to not remove all the trees,” Water Department Commissioner, Randy Conner said…

New York City, Wall Street Journal, February 19, 2020: Federal Judge Slams PG&E Efforts to Trim Trees Near Power Lines to Prevent Wildfires

A federal judge on Wednesday lambasted PG&E Corp. PCG 8.83% for falling behind on efforts to trim trees near power lines, which are designed to reduce the risk that its equipment will spark more California wildfires. U.S. District Judge William Alsup, who oversees PG&E’s criminal probation following its conviction of safety violations after a natural-gas pipeline exploded and killed eight people in 2010, said during a heated hearing that the company is once again in violation of that probation due to its handling of the fire threat. But he stopped short of imposing a new restriction he has warned he might decide to place on PG&E—forcing the company to tie an executive bonus program entirely to safety goals. Judge Alsup said he would make that decision at a later date. “I’m going to do everything I can to protect the people of California from more death and destruction from this convicted felon,” the judge said. PG&E sought federal bankruptcy protection last year, citing more than $30 billion in liability costs tied to a series of deadly wildfires in 2017 and 2018 that killed more than 100 people. It has so far agreed to pay more than $25 billion to settle claims from fire victims, insurers and local governments and agencies…

Detroit, Michigan, WDIV-TV, February 19, 2020: Developer takes city of Taylor to court after fines for removing trees without permit climb to $160K

A case involving vacant land in Taylor and the city is heading to federal court after a developer was fined thousands for removing trees without a permit. Murray Wikol owns a parcel of land at Superior and Pardee roads. He was working on developing the space. “We were cleaning up trees, refrigerators dumped there, dead trees, diseased trees, good forestry practice done by an arborist, and we went out and did the right thing and left 155 trees,” Wikol said. However, Wikol didn’t have a permit to remove the trees. He was fined $133,000. With interest, the amount reached more than $160,000. When he refused to pay the fines, the city put the property in foreclosure. Wikol called the city’s actions oppressive. “Selective enforcement — there’s a lot of other sites where hundreds, if not thousands of trees, are being cut down, and they just are allowing it in certain areas and not in others,” he said. Wikol pointed out a space at Inkster and Eureka roads where a developer was removing trees without a permit in 2017. He said that developer received a $250 fine, and there was no listing of how many trees were taken down…

Charleston, South Carolina, Post & Courier, February 19, 2020: Whether to cut SC beach town’s trees will go to trial, judge rules

How short trees must be trimmed to restore the ocean views of beachfront owners on Sullivan’s Island will go back to trial, the S.C. Supreme Court has ruled. That could bring out the shears again on the 100-acre maritime forest that has become a scenic controversy in this reserved upscale community. And it all comes down to Hurricane Hugo 30 years ago. The court ruled Wednesday that a 1991 deed the town executed with more than 80 property owners along the dunes obligated the town to maintain their ocean views, but didn’t specify just how high or low vegetation must be cut to do it. The deeds were signed in the aftermath of Hugo as the town bought properties that had formed in front of the owners from piled-up shore-flow sand. The west end of the island, near Charleston Harbor, accretes sand diverted by the shipping channel jetties. Those dunes have now grown into a forest. The town wanted the dunes strong, to stave off devastation by another storm like Hugo. The owners wanted views. Nobody really anticipated getting lost in the woods…

Dallas, Texas, KXAS-TV, February 19, 2020: ‘Unhealthy, Damaged’ Trees Removed Along White Rock Creek, City Says; Others Cast Doubt

Dozens of trees have been cut down along the banks of White Rock Creek in recent days. Work continued Wednesday near the Cottonwood Trail, with workers using chainsaws and heavy equipment to remove the trees. Some of the trees were visibly damaged by the high winds of the EF-3 tornado that sliced a path through the area in October, but local environmentalists worry healthy trees are being cut as well. “I was shocked because I didn’t realize it was as thoroughly cleared as I had heard about,” Becky Rader, a former Dallas Park Board member said. The Dallas Park and Recreation Department issued the following statement Wednesday. In the aftermath of the October 2019 tornado and subsequent storms that heavily damaged city parks and trails including Cottonwood Trail, Dallas Park and Recreation Department authorized a contractor to remove severely damaged and downed trees on park-owned property. The work plan presented to the contractor stressed the removal of unhealthy, dying and storm-ravished trees…


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Case of the Day – Tuesday, February 25, 2020


Buttercup:        Things are seldom what they seem,
                                Skim milk masquerades as cream;
                           Highlows pass as patent leathers;
                                Jackdaws strut in peacock’s feathers.

Captain:           Very true,
                                So they do.

Things are Seldom What They Seem
(duet with Buttercup and Capt. Corcoran)
Gilbert & Sullivan, H.M.S. Pinafore

Pinafore140317So property rights are as dry as toast? Well, maybe, depending on whether it’s your ox that’s getting gored. Consider Marvin Brandt. This hard-working son of a hard-working lumberman is a Wyoming rancher. His father, who started in the 1930s as a lowly sawmill worker, ended up owning the place. Marvin worked at his Dad’s mill as a youth, and he ended up running the mill himself.

The year of our Lord 1976 was an important year. It was the America’s Bicentennial. Marvin bought the sawmill from his father. Congress repealed the General Railroad Right-of-Way Act of 1875. And Marvin bought a nice chunk of land for his sawmill – not to mention plenty of standing timber – from the U.S. Forest Service. He obtained it through a procedure known as a land patent, in which the Government deeds its rights in land to private property holders.

It was a pretty good deal, sold to Marvin without many restrictions. There was an easement for the Laramie, Hahn’s Peak and Pacific Railroad, but that wasn’t much of a problem for him. Easements weren’t such an impediment, he thought. But then, things are seldom what they seem…

Buttercup:    Black sheep dwell in every fold;
                        All that glitters is not gold;
                     Storks turn out to be but logs;
                        Bulls are but inflated frogs.

Captain:     So they be,

The Union Pacific had tracks running through the property that Marvin bought. He wasn’t alone in this: some 30 other people bought Government land subject to the UP’s railroad right-of-way. The right of way originally was obtained by LHP&P in 1908, pursuant to the 1875 Act. The 200-foot wide right of way meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border.

After the railroad line was abandoned, the Government claimed that the land underlying the old track bed had reverted to Uncle Sam. The Washington bureaucrats had plans to turn the route into a hiking trail. When the Government sued to quiet title on the right-of-way, it named all 31 landowners as defendants. None of them owned more than 3 acres affected by the right-of-way, and none of them mounted a defense. They all threw up their hands, folded quietly, and let the U.S. of A. have its way.

Except Marvin.

Marvin may be one of your rugged Wyoming individualists. He may be ornery. But one thing was for sure – unlike the others, Marvin had over 85 acres affected by the old roadbed. Nearly a half-mile stretch of the right of way crossed Marvin’s land, covering ten acres of his parcel and affected 75 more. In other words, this wasn’t chump change.

The Government, as administrations of either political party are wont to do, tried to steamroll Marvin. The Feds claimed that the LHP&P had owned the land under its rails, subject only to a reversionary interest in the Government if it ever abandoned the line. Therefore, Uncle Sam claimed, when the tracks came out, ownership of the property reverted to the U.S. Forest Service.

The District Court agreed that the 1875 Act and the land patent were not models of clarity, but the Government won anyway. The Court of Appeals reversed. The Government, seeing its Golden Goose about to be slaughtered, appealed to the Supreme Court.

The Supremes, by a resounding 8-1 decision, held that “things are seldom what they seem.” The right-of-way granted to the railroad might seem like a transfer of the land in fee simple, subject only to being returned to the Government if the rail line was abandoned. But it really was only an easement, meaning that the land patent to Marvin had transferred all of the ownership to him, subject only to the easement. When the easement vanished, the land was all his.

Marvin stood to lose a big chunk of land to the Government.

Marvin stood to lose a big chunk of land – a 200′ wide strip along the north-south road on the west side of his property – to the Government.

The Government’s insurmountable hurdle was its own cuteness. Back in the 1920s, the railroad had planned to drill for oil along the right-of-way (remember Teapot Dome?). The Government had opposed it, claiming that it owned the oil. The railroad, Uncle Sam claimed, only owned an easement. The land (and the wealth under it) belonged to the Feds. The case ended up in the Supreme Court, where the Government won.

But now, the Government argued that things aren’t what they seem to be, and – for that matter – what they seemed to be back in 1942. The Forest Service never owned the land under the railroad when it gave Marvin the land patent. Instead, the railroad did, and the Government didn’t get it back until well after it had sold the rest to Marvin. The 1942 decision must be wrong, to the extent it applied to anything other than oil rights. Thus, the railroad right-of-way reverted to the U.S. Forest Service in 1988, 12 years after the rest of the land was sold to Marvin.

The Supreme Court was not amused. Applying the ancient legal principle that “you dance with the one that brung ya,” the Justices ruled that the Government persuaded the Court in 1942 that the railroad right-of-way was just an easement, and it wasn’t going let the Government change its position now just because it suited it to do so. Alas, the Justice Department (and this is a fault that has belonged to predecessor administrations, Republican or Democrat) all too often has no compunction about changing its arguments for convenience when it should adhere to them for principle. This time, it didn’t work.

Only Justice Sonia Sotomayor dissented, in an opinion that seemed peculiarly strained. Anxious to serve the back-to-nature folks who enjoyed Federally-funded hiking and biking trails, she argued that the 1942 case was only about subsurface rights – which seems to us to be a distinction without a difference – and, anyway, the Brandt decision would hurt the rails-to-trails movement and result in a lot of litigation as private landholders sought to get what was rightfully theirs. This may be so, but cost and inconvenience shouldn’t drive Supreme Court opinions. The law should.

So the right-of-way that the Government once said was an easement but now seemed be something else, really was just an easement … as it had been all along.

Buttercup:    Drops the wind and stops the mill;
                        Turbot is ambitious brill;
                    Gild the farthing if you will,
                        Yet it is a farthing still.

Captain:     Yes, I know.
                        That is so.

Marvin M. Brandt Revocable Trust v. United States
, ___ U.S. ___, 134 S.Ct. 48, 186 L.Ed.2d 962 (2014): The General Railroad Right-of-Way Act of 1875 provides railroad companies “right[s] of way through the public lands of the United States,” 43 U.S.C. § 934. One such right of way, created in 1908, crosses land that the Government conveyed to the Brandt family in a 1976 land patent. That patent stated that the land was granted subject to the right of way, but it did not specify what would occur if the railroad relinquished those rights.

Little Buttercup was right - things are seldom what they seem ...

Little Buttercup was right – things are seldom what they seem …

A successor railroad abandoned the right of way with federal approval. The Government sought a declaration of abandonment and an order quieting its title to the abandoned right of way, including the stretch across the Brandt patent. Brandt argued that the right of way was a mere easement that was extinguished upon abandonment.

The district court quieted title in the government. The Tenth Circuit affirmed.

The Supreme Court reversed.

It held that right of way was an easement that was terminated by abandonment, leaving Brandt’s land unburdened. The Court noted that in the 1942 Supreme Court decision in Great Northern R. Co. v. United States,  the Government had argued a position – that the right-of-way was an easement, not a grant of ownership in fee simple subject to a reversionary interest – which was exactly opposite to its position in this case. In Great Northern R. Co. v. United States, the Court found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest.

Thingsareseldom140317Now, the Government was asking the Court to limit Great Northern’s characterization of 1875 Act rights-of-way as easements to the question of who owns the oil and minerals beneath a right of way. But nothing in the 1875 Act’s text supports that reading, and the Government’s argument directly contravenes the very premise of Great Northern: that the 1875 Act granted a fundamentally different interest than did its predecessor statutes. Nor do the Court’s decisions in other cases support the Government’s position, and – to the extent that they could be read that way – the Court said clearly that any such implication did not survive its unequivocal statement to the contrary in Great Northern. Later enacted statutes, such 43 U.S.C. §§ 912 and 940, and 16 U.S.C. § 1248(c), do not define or shed light on the nature of the interest Congress granted to railroads in their rights-of-way in 1875. Instead, those statutes purport only to dispose of interests the United States already possesses.

The land patent Marvin Brandt obtained in 1976 included ownership of the land under the railroad company easement. When that easement was abandoned, Mr. Brandt obtained the exclusive right of possession to the land he already owned.

– Tom Root

Case of the Day – Monday, February 24, 2020


grasshopper140314Perhaps the problem with America these days is that too many people want something for nothing. President Trump still wants a wall. Bernie Sanders wants to give all Americans free medical care for $30 trillion. And we all want the people we disagree with – and face it, they’re all wrong – to shut the hell up.

Here’s a Vermont case about someone else who wanted something for nothing, a modern take on the grasshopper and the ant. About 50 years ago, the brothers Stanley partnered up to buy some woodland. But only industrious brother George, a busy little worker ant, ponied up the cash for the place, paid the taxes, paid the rent, and managed the affairs of the woodland. Grasshopper John was too busy doing whatever grasshoppers do.

After about 45 years of this, ant George started getting tired of grasshopper John never paying his fair share. Ant George was out a lot of investment, and he decided it was time to pay it back. So he sold the timber on the land for about $46,000.

Suddenly, grasshopper John was very interested in the goings-on, and he sued ant George. But he didn’t just want half of the proceeds. Surely that would be unfair. Instead grasshopper John hires three wise old owls as expert witnesses, and they opine that the timber was really worth anywhere from $60,000 to $80,000. Plus, he retained the services of a foxy old lawyer, who told him he could get treble damages for ant George’s wrongful cutting of the timber (plus a legal fee for the fox).

foxylawyer140314The trial court suspected that John was more snake than grasshopper, but it nevertheless didn’t have much choice but award him half the value of the timber. The court selected the lowest of the various estimates given by the several owls who testified as experts, still awarding the grasshopper one half of the $61,785 value of the timber. The court refused treble damages.

The grasshopper was furious! He had been denied what was fair, namely all of it! He wanted the timber valued at $80,000, with his one-half share trebled to $120,000. Fortunately, the wise Supreme Court upheld the trial court, finding that treble damages for wrongful cutting don’t apply where one owner of the land — even if he’s an industrious ant — gives permission. Still, the ant lost $31,000 of his $46,000 to his brother, the grasshopper, whose investment had never amounted to a farthing.

grasshopperb140314The moral, boys and girls, is that a slothful existence and a good lawyer beats hard work and careful investment any day.

Stanley v. Stanley, 928 A.2d 1194 (Sup.Ct. Vt., 2007). Some 50 years ago, brothers John and George Stanley bought a perpetual lease of a 100 acre wooded lot in Victory, Vermont. Defendant George paid the entire purchase price, but the brothers owned the lot as tenants-in-common. From the beginning of their ownership, George paid the annual rent as well as property taxes when they were assessed.

In 1965, he received money from Portland Pipe Company for the right to lay pipe across the property. In the spring of 2002, he hired a logging contractor to harvest and sell the trees from the lot. The logging operations were completed that summer. George didn’t discuss the logging operation with plaintiff John until after it was completed. George figured that “since he had been paying all the expenses relating to the property, he should be able to make the decisions relating to the land.” George got $45,803.32 for the timber removed from the lot. When John learned that timber was being cut, he took pictures of the operation and tried to reach George — who had neither an iPhone nor broadband — without success.

John didn’t try to stop the logging, but after it was over, he sued his brother, seeking an accounting, partition, treble damages under 13 V.S.A. §3606, costs of the action and attorney’s fees. While he couldn’t afford to share the expense of the land with his brother, John apparently found his checkbook when it came time to hire expert witnesses. He presented testimony from three experts on the value of the timber cut. Thomas Hahn, a private consulting forester, presented two different methods of determining the value of the timber cut from the property, the prevailing market price of a unit of wood in the summer of 2002 based on trade publications (using which he concluded that the value of the timber was $61,785.79), and the “timber cruising” or “sampling” method that would support a finding that the fair market value of the timber was $82,000. Stanley Robinson reviewed the logging contractor’s summary of mill slips and trip tickets, and Alan Bouthelier on his observations from visiting the property prior to the logging. The testimony of these two experts supported a finding that the fair market value of the timber cut was approximately $80,000.

woodpile140314The trial court refused to rely on Hahn’s “sampling” method, dismissing it as too speculative. Instead, it found that the fair market value of the timber cut was $61,785.79, and that plaintiff was entitled to half of this amount. It also ruled that the treble damage statute does not apply to actions between tenants-in-common for the sale of common property, and granted a request for partition. Following the hearing, George gave John $22,901.66, half of what he had been paid for the timber.

None of this was good enough for the rapacious John. So he appealed.

Held: The trial court was affirmed. The Supreme Court held that Vermont’s timber trespass statute — which reads in part that if a person cuts down trees belonging to another person “without leave from the owner,” the injured party can recover treble damages — is plain and unambiguous. The Court said that the statute’s language presupposed that the injured party had ownership rights to the exclusion of the party from whom treble damages are being sought.

The statute is a punitive one, intending to deter intentional trespass and wrongful taking of another’s timber. Because George had an undivided ownership interest in the trees at the time of the logging, the treble damages statute simply does not apply. He simply was not among the intended targets of the statute, those “‘tree pirates’ and ‘arboreal rustlers’ who trespass on another’s property and remove timber to which they have no right.”

John also argued that the trial court erred when it held that the “timber cruising” or “sampling” method of determining the quality and quantity was too speculative. The Supreme Court held that because the trial court, after evaluating several different methods, relied on testimony of the expert as to one of the methods to determine the fair market value of the timber cut and sold, the Supreme Court would not second-guess it on whether it could have used an alternative method.

– Tom Root

Case of the Day – Friday, February 21, 2020


Regular readers of know that many benefits usually flow to Harry and Harriet Homeowner from hiring an independent contractor to remove a tree. Primary among those advantages is that if (or maybe “when”) things go south on you – such as the tree falls on somebody’s house or a tree service employee takes a header from 100 feet up – you, the homeowner, aren’t liable.

Alas, this isn’t always true. If Harry and Harriet have superior knowledge of the particular latent danger which causes an injury to the contractor, they may be liable. Likewise, if Harry can’t keep his nose out of things, and starts participating in the tree removal, he may be liable for injuries resulting from injecting himself into the contractor’s work. Generally (and reasonably), however, the law protects people who hire the experts and then leave them alone to do their jobs.

So what was Tony Cox’s problem? First, he was a tightwad, not wanting to drop a grand on removing a hazardous tree. So instead hiring the experts, he decided to cut it down himself. After all, he had a saw and gravity to assist him. What could go wrong?

Then, there was Tony’s acrophobia. To solve this problem, he recruited his neighbor Dick Strayer. Dick wasn’t afraid of heights. He climbed radio towers for a living (usually using a safety rig that attached to the towers). Plus, he cut down trees on the side.

Hey, Dick, Oscar Wilde (or maybe Clare Booth Luce, who knows for sure?) said no good deed goes unpunished. What do you suppose he meant by that?

Dick and Tony began cutting. Dick was in the tree, because Tony, as we mentioned, was afraid of heights. Dick was sawing away on a limb when something happened. No one really saw the accident, but everyone saw Dick, as well as the decayed limb he had been sawing, on the ground.

Of course, a lawsuit ensued, because otherwise we would not be writing about this tragedy-in-a-teapot to begin with. Dick claimed Tony was liable for his injuries because Tony did not tell him the limb was rotten, and Tony was actively participating in the tree-removal job. Lucky for Tony, the court was convinced that Dick’s tree experience and his position astraddle the rotten branch made the hazard open and obvious to Dick. What’s more, the court held, Tony did not owe Dick any duty under the participation exception to a property owner’s general lack of duty to an independent contractor, because while Tony was on the crew, he did not “actively participate” by directing the activity that resulted in Dick’s injury.

Strayer v. Cox, 38 N.E.3d 1162 (Ohio Ct.App. Miami Co., 2015). Richard Strayer was injured while attempting to cut down a tree located on the property owned by his neighbor, Anthony Cox. Dick Strayer had some qualifications for the job: he been involved in various types of residential and commercial construction, and had been employed climbing cell phone towers. Prior to the accident, he had climbed trees 20 to 25 times to cut them down.

At some point, Tony decided that he wanted to remove a 25’ tall tree in his front yard. Tony presumed it was dead, and he balked at the $1,000 estimate from tree services to remove the tree. So he told Dick he wanted to take the tree down, and asked Dick to help because he was afraid of heights.

Dick first inspected the tree, and thought it looked “okay,” although he later admitted no one short of a tree expert could have told that any of the branches were rotting, and Tony would have had no way to determine if there was rotting or damage to any of the limbs.

At one point, Dick’s feet were on the base of the tree (where a branch met the trunk), and he was standing in the middle of a series of big limbs about 12 feet up. Dick began cutting a branch with his chainsaw. The next thing he knew, he had fallen to the ground, riding the rotted-out branch all the way down. As a result of the fall, Dick hurt his left ankle, which required surgery.

Dick sued, but the trial court granted summary judgment for Tony and his insurance carrier. Dick appealed.

Held: Dick’s lawsuit was thrown out. The appellate court ruled that  the trial court did not err in rendering summary judgment in Tony’s favor. The court held that the undisputed facts showed Tony had no duty to protect Dick from an open and obvious hazard on Tony’s property. Furthermore, Tony did not owe Dick any duty under an exception to a property owner’s general lack of duty to an employee of an independent contractor. Tony did not “actively participate” as required for application of this exception by directing the activity that resulted in Dick’s injury, by giving or denying permission for the critical acts that led to Dick’s injury, or by exercising sole exclusive control over a critical variable in the working environment.

The Court said, “It is fundamental that in order to establish a cause of action for negligence the plaintiff must show the existence of a duty, a breach of that duty, and an injury proximately resulting therefrom. The status of the person who enters upon the land of another ( i.e., trespasser, licensee, or invitee) defines the scope of the legal duty that the landowner owes the entrant.” Here, Dick was an invitee, someone who rightfully came onto Tony’s property by invitation, express or implied, for a purpose beneficial to Tony, to wit, the removal of the tree.

An owner owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that invitees are not unnecessarily and unreasonably exposed to danger. However, the Court observed, the owner does not act as an insurer of an invitee’s safety and owes no duty to protect invitees from open and obvious dangers on the property. Open and obvious hazards are those hazards that are neither hidden nor concealed from view and are discoverable by ordinary inspection. The question is always whether an invitee exercising ordinary care under the circumstances would have seen and been able to guard himself against the condition.

“Liability only attaches when an owner has ‘superior knowledge of the particular danger which caused the injury’,” the Court wrote, “as an ‘invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate’. The open and obvious doctrine is determinative of the threshold issue, the landowner’s duty. In the absence of duty, there is no negligence to compare.”

Dick was barred from recovery because the deteriorating tree was an open and obvious hazard that he freely ascended. He was in a better position to assess the safety of standing on the branch. Naturally, the Court held, Tony had no duty to warn Dick about dangers of which Tony was unaware, such as that the limb Dick was cutting was deteriorating from the inside, decay that was not observable from the outside. In addition, the court observed that Dick had significant experience with cutting trees and that the risk of encountering deteriorating branches was open and obvious.

Dick also argued that Tony should have contacted a certified arborist prior to removal to conduct a risk assessment of the tree. He claimed Tony’s failure to have a risk assessment conducted violated American National Standards Institute (ANSI) sections Z133 and A300, part 1 and 9, which require that any tree being worked on “undergo a tree risk assessment for tree worker safety.” But the court ruled that homeowners like Tony are not subject to the requirements of ANSI, even if the standards were not voluntary to begin with (which they are).

Even if the ANSI standards were somehow to apply to a Harry-Homeowner-tree-removal job, the court ruled, “Ohio courts have held that summary judgment may be granted in cases where building code violations are open and obvious ‘because the open-and-obvious nature of the defect obviates the premises owner’s duty to warn.” The hazard of climbing on the tree limb in a tree with dead branches was open and obvious.

Finally, Tony’s participation on the job did not make him liable to Dick. One who engages the services of an independent contractor, and who actually participates in the job operation performed by such contractor and thereby fails to eliminate a hazard which he, in the exercise of ordinary care, could have eliminated, can be held responsible for the injury or death of an employee of the independent contractor. Here, testimony of the parties indicated that if anyone directed the activities that day, it would have been Dick, who was the individual experienced in cutting down trees and using chain saws. The record was devoid of any indication that Tony directed Dick to do anything on the day of the accident, or even that Tony had any prior experience with chain saws or with cutting down trees.

Dick “directed the activity which resulted in the injury or gave or denied permission for the critical acts that led to the… injury.” The cause of Dick’s injury, in his own words, was that the limb on which he stood fell, taking him down with it, because the limb “was rotted.” Tony had no role in the injury, and thus no liability.

– Tom Root


Case of the Day – Thursday, February 20, 2020


odd150925What is it with some neighbors? These folks — an “odd couple” of neighbors if ever there were such — lived next to each other in a pretty good Iowa City neighborhood for over 20 years. And they were always at each other’s throats.

Ironically, it was the Felix Ungar neighbors who were the victims. Apparently the Oscar Madisons were unhappy with two trees that stood entirely in the Felix property, but had branches overhanging the Oscars. So what, you wonder, and for good reason. The Oscar property was such a mess that a couple leaves and twigs hardly mattered. However, all of you loyal readers know the answer: under the Massachusetts rule, the Oscars can trim the trees’ branches back to their property line. In fact, borrowing from Virginia and Hawaii, maybe the Oscars could sue the Felixes, alleging that the trees were a nuisance.

Nothing that subtle for our heroes. Instead, the Oscars came onto the Felix property and simply cut the trees down. There. That settled that!

Well, not really.

The Felixes sued. The trial court was clearly appalled at the brazenness of the Oscars. It observed with some amazement that in order to cut down the trees, the Oscars “had to intentionally trespass on [Felixes’] property to cut down the trees and that is exactly what they did.”

The Court rendered its opinion accordingly. What the Oscars did was a trespass, pure and simple, and the damages in a trespass are the costs to restore the property. Those costs were the cost to replant trees about as mature as the two 50-foot tall trees that were removed. On top of that, the Court imposed treble damages under Iowa Statute 658.4 for “willfully injuring any timber, tree, or shrub on the land of another.” The Court held it applied because the Oscars “willfully trespassed” in order to cut down the trees.

They're after your trees ...

They’re after your trees …

We don’t want to be critical, because the Oscars clearly were bad actors here and deserved what befell them. However, courts need to be careful not to get out in front of their statutes. The trial court, in its ire, focused on the wrong “willfully.” Treble damages applied when the Oscars “willfully injured” the trees, not when they “willfully” trespassed. Under the court’s mangled standard, the treble damage statute would have applied if the Oscars willfully sneaked onto the Felixes’ property to smash a jack-o-lantern, but accidentally trampled on Mrs. Felix’s prize rose bushes in their haste to run home. It’s not the willful trespass, it’s the willful chainsaw that matters.

Luckily for the Felixes, the error made no difference. Any way you apply the “willfully” here, the Oscars are liable. They willfully trespassed, willfully fired up their chainsaws, and willfully undertook arboreal mayhem. Game, set, match.

Wunder v. Jorgensen, Not Reported in N.W.2d, 2004 WL 3569694 (Iowa Dist., 2004) (unpublished). The Wunders and the Jorgensens lived next to each other in a wooded neighborhood on Iowa City’s west side for over 20 years. During this period, their relationship was acrimonious, with the Wunders continually upset about the debris, both natural and manufactured, which the Jorgensens allowed to build up on or over their common boundary. Among other complaints, the Wunders complained that the Jorgensens erected a lean-to next to an outbuilding, essentially on the property line, which the Jorgensens used to keep garden tools.

pos150925Two trees stood on the Wunders’ property, scotch pines or Canadian hemlocks, with branches that extended over the Jorgensen property. The Jorgensens knew the trees were on Wunders’ lot because they had built the lean-to roof around one of the trees. The trees disappeared one day, setting the Wunders to wondering. Suspecting the Jorgensens, the Wunders sued. And small wonder.

Held: The Jorgensens were liable. The Court found that the Jorgensens had knowingly and willfully cut down two mature trees which they knew to be on Wunders’ property. The Court found the conduct to be inexcusable, noting that the “Jorgensens had to intentionally trespass on Wunders’ property to cut down the trees and that is exactly what they did.”

The Court found that the replacement cost for the trees was $4,061.40. The measure of damages for trespass is replacement cost, and treble damages — awarded if trees are willfully cut down on another’s property — apply in this case, the Court said, because, Jorgensen willfully trespassed on Wunders’ property to cut down the Wunders’ trees.

The Court threw in an observation for the Jorgensens: if trees are replanted, the Jorgensens ought to be informed that the general rule is that an adjoining landowner may cut off growth which intrudes on his or her property … but not more.

– Tom RootTNLBGray

Case of the Day – Wednesday, February 19, 2020


Almost 15 years ago, my daughter Leslie – fresh out of college – was spending a year in Vladivostok, Russia, on a Fulbright Fellowship. Along with learning to play the balalaika and sampling dozens of varieties of vodka, she learned that your average Russian is a lot like your average American.

One evening, she and a friend were crossing the street at an intersection when a young Russian couple, in a hurry to pick up their son from daycare, were in a car waiting impatiently behind a driver turning left. The light changed, the left-turner turned, and – just like just about every driver in the world – the young Russian husband burst through the light, now red. Unfortunately, he collided with my daughter, who went up on the hood of the car, and then slid to the ground. At some point in Leslie’s unplanned flight, her leg was broken.

The driver and his wife were distraught at what their negligence had caused, and they bundled my daughter into the back seat of the car and drove her to an emergency unit. The next day, Leslie’s Russian friends visited her in the hospital, and during all of the talk about the accident, someone asked Leslie whether she had filed a police report. My daughter already knew from the State Department that she would have come back to the United States for treatment, American confidence in Russian medicine not being that high. So Leslie told her Russian friends it was just an accident, and thus there would be no point filing a report with the Primorsky Krai Directorate for Internal Affairs (you may know them as Управления МВД России по Приморскому краю). After all, a Russian hospital stay cost about $40.00 a night. Leslie reasonably figured that no Russian auto insurance company would have the stomach for what turned out to be a measly $20,000 in American medical bills.

So what was the point in filing a police report, Leslie wondered. But her Russian friends were appalled. She did not intend to demand prosecution of the driver? “But, but… ” one of them sputtered, “he must be punished!”

So, you see, those Far Eastern Russians are just like we are – when there is a terrible accident, any good plaintiff’s lawyer knows that you tell the jury the story with just the right amount of drama and pathos, and pretty soon, the jurors start looking around the courtroom for someone to blame. After all, there was injury and suffering and pain. Someone must pay! Someone must be punished!

But’s not the way real life is. You can ask Cassandre and Rachele, who are the young daughters of Joel Baudouin. Joel was driving his mother and the girls down New Jersey’s Garden State Parkway late one dark and stormy night, when an 80-foot tall hickory tree fell on his car. Joel and his mother perished. The girls were injured.

The girl’s mother sued on their behalf, naming a thundering herd of defendants, including the New Jersey Turnpike Authority (a public entity established in 2003 to operate the Garden State Parkway). Mom alleged the Turnpike Authority negligently failed to “properly maintain, remove, inspect, secure or otherwise properly care for the rotting, falling, dead and decaying trees adjacent to the roadway in the area of the accident.”

Everyone agreed the Turnpike Authority lacked actual notice the hickory tree was rotten (as it surely was). The only issue was whether the Authority had constructive notice of the tree’s deteriorated condition, and that turned on whether the Authority’s “drive by” inspection program was reasonable. And this is where governmental units, vulnerable to lawsuits only to the extent permitted by state tort claims act, need only show they have used their discretion in a reasonable way. Here, no matter how much Mom’s tree experts argued that a 360-degree walk-around was the only acceptable was to inspect a tree (and such an inspection would have discovered the dangerous hickory tree), the court agreed that the extent of the inspection task and the resources available to the Authority required that the Turnpike Authority be held to a lesser standard.

We are often adjured not to let the perfect become the enemy of the good. Under state tort claim statutes, that rarely happens.

Baudouin v. New Jersey Turnpike Authority, Case No. A-3903-13T2 (Super.Ct. N.J., Mar 1, 2017) 2017 N.J. Super. Unpub. LEXIS 1085, 2017 WL 1548708. Just after midnight on Christmas, 2008, Joel Baudouin was driving southbound on the Garden State Parkway. His mother sat next to him, while his two daughters sat in the backseat. A hickory tree, measuring eighty feet high and twenty-one inches wide, fell across the three southbound lanes of the Parkway and crushed the front passenger compartment of the car. Joel and his mother were killed. The children, who were initially trapped inside the backseat, were injured.

The kids’ mother filed a civil suit against a number of public entities and one private contractor. Finally, only the Turnpike Authority remained. The plaintiffs argued the Turnpike Authority negligently failed to “properly maintain, remove, inspect, secure or otherwise properly care for the rotting, falling, dead and decaying trees adjacent to the roadway in the area of the accident.”

The trial court granted summary judgment to the Turnpike Authority, holding the plaintiffs failed to produce evidence showing the Turnpike Authority had “actual or constructive notice” of the tree’s deteriorated condition.

Mom and the girls appealed.

Held: The Turnpike Authority was not liable. At the time of the accident, the Authority was responsible for inspecting the 172-mile long Parkway, which was tree-lined over much of its length both northbound and southbound and in the median and had more than 300 tree-lined shoulder miles to inspect. In order to accomplish this, the Authority employed what it called the Hazard Tree Inspection Program, which “consists of making periodic ‘windshield inspections’ of the trees that can impact the roadway,” according to the Authority’s witness. The Authority’s inspectors inspected Parkway trees while seated in the front passenger-seat of a car that drove at approximately ten to fifteen miles per hour along the shoulder of the Parkway. If something was spotted that indicated a potential serious problem with a tree, the driver was would stop the vehicle so that the tree could be inspected further. At that point, a determination would be made as to what, if anything, had to be done with the tree and at what priority based on the seriousness of the problem.

Of the 554 trees listed in the January 2007 Hazard Tree Inventory, only five trees were identified in the vicinity of where the accident occurred. Three trees were identified as high priority and two were marked as immediate priority.

Mom’s experts examined the fallen tree, and concluded it was rotten to the core. Both said the decay was only visible from the side of the tree away from the road, and they said a walk-around with a 360-degree close visual inspection of individual trees was the only method sanctioned by the industry. They did not address the Authority’s contention an individualized walk-around inspection was not applicable to a six-lane 172-mile long road with 300 miles of shoulder space.

The Superior Court noted that the Legislature intended the New Jersey Tort Claims Act “to serve as ‘a comprehensive scheme that seeks to provide compensation to tort victims without unduly interfering with governmental functions and without imposing an excessive burden on taxpayers.'” The purpose of the TCA is to shield public entities from liability, subject only to the TCA’s specific liability provisions. Thus, the Superior Court ruled, when a court is required to balance the liability and immunity provisions of the TCA, “immunity is the rule and liability the exception.”

The TCA defines a dangerous condition as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” The Superior Court said, “80-foot tall trees are not inherently dangerous. The Garden State Parkway is a three-lane wide highway, running 172 miles north and south, with 300 miles of shoulder. The eighty-foot tall hickory tree that fell at milepost 151.5 on December 25, 2008, is one of thousands, if not millions, of similar trees abutting or near both sides of the Parkway. Neither this record nor the Parkway’s history suggests that this tragedy occurs frequently.”

Given the length of the Parkway and the number of trees involved, the Court held, “it is patently unreasonable to expect the Turnpike Authority to conduct [walk-around] inspections. Therefore, as a matter of law, we conclude that, at the time of the accident, neither the Parkway nor the trees situated nearby constituted a dangerous condition under N.J.S.A. 59:4-1(a) because they were used with due care in a manner in which it is reasonably foreseeable that they would be used.”

Under the New Jersey TCA, a public entity has constructive notice of a dangerous condition “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” N.J.S.A 59:4-3(b).  The mere existence of an alleged dangerous condition is not constructive notice of it.

– Tom Root