Case of the Day – Friday, May 25, 2018

GETTING BULLDOZED

bulldoze161229Yesterday, we tackled the first of several inter-related questions raised by an Iowa reader. She wrote that a neighbor planned to bulldoze a driveway along a steep grade right next to her land. She feared that the bulldozing would destroy root systems of hertrees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away her land.

We identified four questions in our reader’s inquiry. We tacked the first question yesterday, about trees that might be exactly on the boundary line, and we concluded that Iowa law would not let her neighbor take steps that would destroy them (such as wiping out the root systems) without our reader’s OK.

But that answer begs the question of what will happen to trees which are growing entirely on our questioner’s land but extend their branches or root systems onto the neighbor’s place. (The third question — what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well — and the final question about whether our reader could get an injunction to stop the harm before it starts, will be addressed tomorrow.)

The short answer to today’s question is found in the century-old case of Harndon v. Stultz. That decision adopted what years later would be called the “Massachusetts Rule,” specifically that a landowner has no right to judicial help in stopping an encroaching tree from his or her neighbors, but he or she may trim its branches and roots back to the property line. Under the rule of Harndon, it would appear that the neighbor could bulldoze out the root systems which have grown onto his land without liability.

But we’re not entirely satisfied that this would be the answer. Remember first that the plaintiff in Harndon complained that the trees in question were damaging her land, the roots tying up the ground and the trees shading what otherwise would be cropland. The court didn’t have a lot of sympathy for her, but it did recognize that she was suffering because the tree was just doing what trees are doing.

The United States been moving inexorably toward the Hawaii Rule, which provides a landowner judicial relief where the trees are nuisances, and not merely being trees. Witness the Virginia decision of Fancher v. Fagella, in which the tree was causing substantial damage to the plaintiff’s home. The obverse of this coin is illustrated in the question posed here: what happens when the neighbor is suffering absolute no damage whatsoever from the trees in question? As our reader explained it, the neighbor merely wants to bulldoze a road on a steep slope along a very narrow piece of property. During the bulldozing, it’s likely that root systems will be severed and trees badly damaged or killed.

Our suggestion that there may be more to it than a century-old case suggests isn’t that far off. A California decision, Booksa v. Patel, already has held that a neighbor must act reasonably in exercising his or her self-help rights, and “reasonable” is expressed in terms of taking steps which are no greater than those needed to ameliorate the harm. And Professors Prosser and Keeton, in their seminal work The Law of Torts (5th ed. 1984) §57, say that a landowner has a privilege to make use of the land for his own benefit, and according to his own desires, which is an integral part of our whole system of private property; but it has been said many times that this privilege is qualified by a due regard for the interests of others who may be affected by it. The possessor’s right is therefore bounded by principles of reasonableness, so as to cause no unreasonable risks of harm to others in the vicinity.”

Remember, no one said our neighbor's roots are invasive.

Remember, no one said our neighbor’s roots are invasive.

In the case our reader has raised, it may well be that the time is ripe not to reverse Harndon v. Stultz, but rather to add to the body of law it represents by finding that a neighbor’s right of self-help is circumscribed by reasonableness. Under that standard, where a neighbor kills a tree by removing a root system, where the tree admittedly has caused no sensible harm to him, might be unreasonable.

It’s certainly something our reader’s Iowa attorney might want to consider.

Next Monday, we’re off for Memorial Day, but on Tuesday: What if the bulldozing causes landslides on our reader’s property?

Harndon v. Stultz, 124 Iowa 440, 100 N.W. 329 (S.Ct. Iowa, 1904). Harndon and her husband owned and farmed an 80-acre tract of land. Stultz had 160 acres just to the south of the Harndon farm. Many years before, the Harndons planted a willow hedge along the entire south line of the farm, and later, Stultz extended the hedge eastward. The Harndons claimed that Stultz had agreed with them to maintain the west half of the hedgeline and the Harnsons would maintain the east half. Some years later, the Harndons dug up the east half of the hedge, replacing it with a fence. Mrs. Harndon then demanded that Stultz do the same. Stultz refused, and she sued for an order finding the hedge to be a nuisance and requiring Stultz to cut it down. She argued that the willow had spread through the soil, and so much shade was cast by willows that it rendered a portion of the Harndons’ land unusable. As alternative, the Harndons asked that, if Stultz had no duty to remove the hedge, they be allowed to do so at their expense. The trial court dismissed the petition, and the Harndons appealed.

Tomorrow - Could our reader's neighbor cause a landslide?

Tuesday – Could our reader’s neighbor cause a landslide?

Held: The Court adopted what was essentially the Massachusetts rule years ahead of its time. Nothing in the law, the Court said, made it a defendant’s duty to cut down a hedge or tree simply because over a passage of time, the owner’s neighbor found the roots and the shade of the growing trees injured the productiveness of his land. The raising of trees, the Court held, is a legitimate use to which an owner may put his land. If the limbs of such trees overhang the land of a neighbor, he may cut them off at the line, and, if the roots penetrate the neighbor’s soil, he may dig them out, but that is the extent to which he may carry his objection.

The Court said that an adjoining property owner may cut off the overhanging branches of trees at the property line, and dig out the roots penetrating the soil on his land. However, that property owner is not entitled to compel the owner of the tree to cut it down, regardless of whether the care and maintenance was provided by the owner or by the adjoining property owner. On the other hand, the Court said, trees standing on the boundary line between lands of adjoining owners are the common property of both parties, which neither may destroy without the consent of the other. The Court upheld the trial court, but modified the decree to let the Harndons remove the hedge at their cost, based on Stultz’s statement at argument that she didn’t object to its removal.

– Tom Root

TNLBGray

And Now The News …

St. Louis, Missouri, STL News, May 24, 2018: Missouri news: MDC reminds landowners to check large trees for safety issues

Large trees are an important and beautiful part of the landscape, but landowners should keep an eye on trees to ensure they are a benefit and don’t pose a danger. Jennifer Behnken, a community forester with the Missouri Department of Conservation (MDC), says there are important signs to look for to determine if a tree is safe. “The last thing anyone wants is for someone to get hurt by a falling limb, or even a whole tree that simply gives out and falls,” Behnken said. “Also, a dying tree in the woods has its benefits for decomposers and cavity nesters, but by your house or in your background poses a hazard.” Behnken said when considering what to do about dying trees in communities and urban areas, safety is the bigger priority. When evaluating the safety of a tree, first look at it from a distance and take note if it is leaning, has any dead branches, has sections missing leaves, or if the tree has thin leaf cover. If it has any of these symptoms, it could be dying and at risk of falling. “Next, look at the base of the tree from up close and check to see if the soil is raised or cracked, or if there’s an abundance of fungus,” she said. “These can be signs of root decay, which can put the tree in danger of falling over…

Moline, Illinois, WQAD-TV, May 24, 2018: Homeowners don’t recommend using this tree service

Some Quad City homeowners say they have been left hanging by a local tree guy. They say has not delivered what they paid for.
“We were hustled. As careful as we are at getting bids, we reacted so quickly because of his fast talk, that it was over. He had us,” said Bonnie Engelman of Rock Island. The Engelmans say Scott Evans knocked on their door and said one of the trees in their front yard was “diseased” and should be taken down. They paid him $1,200 with the promise of taking down the tree and removing the stump. He also said he would be planting another new tree for an additional $400. “Immediately, his truck came and immediately, he started cutting it down. Before we could change our minds. When the tree was down he wanted his check and he said he’d be back in a week to remove the stump and plant a new tree. We wrote the check, he cashed it in an hour, and never came back,” Engelman said…

Mongabay.com, May 24, 2018: Illegal loggers ‘cook the books’ to harvest Amazon’s most valuable tree

Brazil’s Ipê tree is one of the most valuable tree species in the world, and a chief target for illicit deforestation, with primary export markets for its illegally harvested timber especially found in the U.S. and Europe. In the past, a weak licensing system, along with continued indiscriminate, illicit logging of Ipê (formerly Tabebuia spp., but reclassified as Handroanthus spp.), has caused serious damage to the Amazon rainforest according to a Greenpeace Brazil investigation. The high value of Ipê wood — which made into flooring or decking can sell for up to US $2,500 per cubic meter at Brazilian export terminals — makes it very profitable for loggers, even though they must penetrate deep into forests to harvest the trees.mThe resulting environmental harm is severely impacting the Brazilian Amazon, says the report, with deep encroachment by illegal roads, increased forest degradation and fragmentation, harm to biodiversity, and intensification of violence in rural areas…

Madison, Georgia, Morgan County Citizen, May 24, 2018: Permit may be needed to cut down tree in Madison

Madison’s Greenspace Commission is hoping to finalize a new tree ordinance proposal, which may call for private property owners to obtain a permit before cutting down or removing trees, by the next regular meeting in June. The Greenspace Commissioners discussed the evolving ordinance proposal at the May regular meeting last week.  “Our hope is to have a few more committee meetings before the next Greenspace Commission meeting in June and iron out all the details and tweak it at that meeting to firm it all up and have everything in place so we can send it on to the Mayor and City Council,” said Rick Crown, Greenspace Commission member. According to Crown, the Greenspace Commission has been working for years off and on to come up with a new ordinance to enhance tree protection and educate the public on desired and undesired new tree plantings. “There are concerns and some trepidation of regulating people’s private property with this, but we really want to protect the green canopy and our urban forest that we all benefit from so much,” explained Crown. Some of the ideas for the new ordinance include requiring a permit to cut down or remove trees on residential properties and for property owners to maintain a minimum tree count on their property. The minimum tree count would require every lot to maintain one canopy tree and one understory tree per quarter acre…

Hartford, Connecticut, WFSB-TV, May 23, 2018: Wallingford family questions town after tree falls on their property

There’s still a long way to go before things get back to normal after last week’s deadly storms. In Wallingford, one family is living with a huge tree on the side of their home and they’re blaming the town, saying they’ve been given the run-around when it comes to the cleanup. The family knows that once the tree went into their property, it became their problem. They’re upset they didn’t get a clear message from the town communicating that to them. Eight days after dangerous storms rolled through Wallingford, Jeffrey Baker’s home on union street looks exactly the way it did last week. “There’s some visible damage to the exterior, the roof,” said Baker. Wallingford’s Engineering Department confirms the tree belongs to the town, but as Channel 3 reported Tuesday night, even if the tree doesn’t belong to you, once it falls on your property, it becomes your problem and the responsibility for the cleanup falls on your shoulders. Baker is familiar with the rule now, but he doesn’t agree with it. “In my life experience, that’s not how responsibility works. The town was responsible for planting that tree, maintaining that tree,” said Baker…

Dallas, Texas, KXAS-TV, May 23, 2018: Dallas neighborhood questions tree trimming tactics

Some Oak Cliff homeowners say the character of their neighborhood is being damaged by overly aggressive tree trimming. “One of the great things about our neighborhood is we have beautiful old trees that go with our beautiful old houses,” Dottie Brashear, who lives in Winnetka Heights, said. Brashear moderates the North Oak Cliff Neighbors Facebook page, which was recently flooded with complaints about Oncor tree trimming. “It was a problem for multiple homes,” Brashear explained. One of those was Dallas City Councilman Scott Griggs, who in a Facebook post, questioned Oncor’s tactics and notifications. Some of us got notices in January. Some people got no notice,” Vivan Yates Skinner, who also lives in Winnetka Heights, said. “There was no date given. They show up four months later.” NBC 5 asked arborist, Burton Knight, to walk a Winnetka Heights alley to assess whether the trees were trimmed properly.  “It’s kind of a thankless job,” Knight said. “Sometimes the trees have just gotten so big that it’s gotta be drastic and that’s unfortunate…”

Victoria, Texas, Advocate, May 23, 2018: Trees poisoned at office complex; $10,000 reward offered by owner

The owner of Heritage Mark office building is offering a $10,000 reward for information leading to the arrest of whoever is responsible for poisoning several 25-year-old live oak trees on the property. Four trees are completely dead and three others appear to be poisoned as well, according to a news release from the Heritage Mark, 5606 N. Navarro St. Police have been notified. Property management first noticed the trees in distress on March 1 during a routine grounds check. Three trees had brown leaves and circles of dead grass around the trunks with soil that smelled like diesel. Property management questioned groundskeepers, consulted local specialists and sent soil samples to Analytical Pesticide Technology Laboratories in Pennsylvania to identify the chemical used, according to the news release…

Baton Rouge, Louisiana, WAFB-TV, May 23, 2018: Baton Rouge to crack down on tree services that leave waste behind

East Baton Rouge Parish leaders plan to start identifying and cracking down on tree services that fail to haul away the trees and limbs they cut down, instead passing on the expensive disposal cost to the city-parish. Some tree services are leaving the “woody waste” by the curbs of the homes of their customers, hoping the city-parish will haul the debris away and pay the hefty fee to have a landfill accept the waste. That disposal fee, for just one large tree, can often be “several hundred dollars,” a representative of Republic Services said during Wednesday’s metro council meeting. Republic is contracted by the city-parish to haul away woody waste left in front of homes in the parish. Richard Speer, director of environmental services for the city-parish, said during Wednesday’s metro council meeting he gets reports “daily” of professional tree services leaving cut trees and limbs behind. Speer said when it’s suspected debris has been left behind by a professional service, an inspector is sent out to investigate. However, he admits it’s often hard to prove otherwise when homeowners say they cut the trees themselves. Professional tree services often tell customers to falsely claim they personally cut the trees in order to lower the cost of the job, the Republic representative told the council…

Hartford, Connecticut, WFSB-TV, May 22, 2018: Neighbors question who downed tree belongs to


It’s been a week since deadly storms moved through the state, knocking down many trees in the process. Now, many homeowners have questions about the cleanup, especially when it comes to trees that don’t belong to them. In Naugatuck, a resident had a tree come down, causing damage in her yard. “I saw the tree crack. I heard it, it fell down and all I could say was ‘please don’t put a hole in my roof, please don’t put a hole in my roof’,” said Kim DiMarco, of Naugatuck. It didn’t damage her home, but the force from the pine during last week’s deadly storms crushed the mailbox and came several feet from her front door on Brook Street. The tree is on the boundary between her property and her neighbor’s, and it’s close enough to the road where it might belong to the town. She didn’t know who would be responsible for removal, so she called the town of Naugatuck. “Why shell out the money if it’s not my tree,” she said…

Salt Lake City, Utah, Salt Lake Tribune, May 22, 2018: Beware, Utah tree trimmers, what you cut could kill baby birds

For the sake of trimmed trees, many Utahns are unintentionally killing a lot of baby birds and leaving “oodles” homeless.
Screech owls have a reason to screech when a careless tree trimmer cuts down their nest. “This is exactly the wrong time of year to be doing this,” said DaLyn Marthaler, executive director of the Wildlife Rehabilitation Center of Northern Utah, a nonprofit based in Ogden. “This is very bad for the baby birds.” A lot of the baby birds (and squirrels) don’t survive the impact when their nests hit the ground. But the center has been receiving up to 40 birds a day, which “feels like more this year than other years,” she said. “And it doesn’t have to be happening. This is not the right time of year to be trimming trees.” That’s a chore best left for the fall, long after baby birds have flown their nests…

Georgetown, South Carolina, South Strand News, May 22, 2018: Georgetown County planners consider ‘significant’ changes to tree ordinance

If proposed changes to the county’s tree ordinance go forward, county officials say more types of trees will be protected and developers and some residents may have to get permission from the county to remove large trees on their own property. The county Planning Commission heard proposed changes to the tree ordinance, in draft form, from planning staff during its May 17 meeting. The Planning Commission will consider a recommendation for the ordinance changes at its next meeting on June 21 and then County Council will consider the changes in three readings, starting at its June 26 or July 10 meeting. Planning Director Boyd Johnson told the commission the changes to the tree protection ordinance are significant, including regulations against developers clear cutting trees, protecting trees mostly based on size rather than type and creating overlay zones where different rules apply. “We are actually recommending two overlay zones: one for the urban area, on the Waccamaw Neck, and one for the rural area, which is on this side along the river,” Johnson said. “Basically, occupied has been exempt, so if someone lives in the house, the tree ordinance does not apply. What we are proposing in the Waccamaw Neck overlay zone is that it now does (apply), but only to protect the ‘grand trees…'”

Great Bend, Kansas, Tribune, May 22, 2018: Who pays for damage caused by downed trees?

Strong spring storms across Kansas can bring high winds, toppling trees onto homes and vehicles. But, once the storm passes and clean up begins, what may not be clear is who pays for repairs.  “The wild weather we often face in Kansas this time of the year is an important reminder that anyone in any part of the state may be vulnerable to wind-related damages to their home or vehicle,” says Alex Greig, Insurance Manager for AAA Kansas. “It is important to understand what your insurance policy does and does not cover to avoid unexpected financial hardship.” AAA Kansas tips on insurance coverage for vehicles and homes vehicles:
• Physical damage to a car caused by heavy wind or fallen tree limbs is covered under the optional comprehensive portion of an auto policy.

• If your car is damaged by a fallen tree or limbs, you would need to file a claim using your vehicle policy’s comprehensive coverage.

• If your tree falls on your house, your insurance will cover removal of the tree and home repairs due to damage.
• If your tree falls on your neighbor’s house, your neighbor’s homeowner’s policy would provide insurance coverage. The same holds true if your neighbor’s tree falls on your home; you would file a claim with your own insurance company.
• If a tree falls in your yard, but doesn’t hit anything, you would pay for its removal in most cases. Additionally, if a tree on your property is weak, damaged, or decayed, but you do nothing about it, and it crashes down on a neighbor’s home (or vehicle), you could be held liable for damages…

Ft. Myers, Florida, WINK-TV, May 21, 2018: Officials urging homeowners to avoid giving trees the ‘hurricane haircut’ ahead of storm season

Collier County issued a warning to residents to manage their palm trees ahead of hurricane season. Many neighbors in Regent Park do their own landscaping. Steve Watts—who caught a lucky break before Irma—noticed trees dangling too close to power lines in his backyard. “I got my ladder out and cut those down. After the hurricane, most of that tree landed on those wires and it was almost down to the fence line,” Watts said. Dealing with trees during storms is a part of life in SWFL. But if you’re over-pruning palm trees, Collier County says you’re doing it wrong. “It’s a double edged sword. You want to protect yourself but also not have it be a damaging situation,” Watts said. Tree experts say what you’re looking to avoid is what they call the “hurricane haircut.” It’s what happens when you cut the palm fronds too sparsely, leaving the trunks thin. Many people think this will save their homes during a strong storm, but it actually makes the trees themselves weaker…” 

Eureka, California, Times-Standard, May 21, 2018: Miserly neighbors and dangerous trees

…Our next-door neighbors who inherited the house from their parents. Soon after moving in, their lack of respect for a lovely old home, its well-maintained yard and several tall eucalyptus trees which had always been carefully trimmed became all too evident. The trees are in a straight row — leaning toward our property, with large branches coming over our fence, which is on the property line. We both have horses and corrals near the property line. When it is windy, the trees bend over, and we have been afraid that one will snap and crash down. To address this issue, we paid a licensed arborist who met with all of us and gave her opinion as to the danger presented by the eucalyptus trees. Her written report — which our neighbors have — stated that the trees are top-heavy; many show evidence of disease which weakens them, so that even a modest storm creates an imminent risk of splitting in two, crashing down on both of our homes and should be trimmed or removed immediately. Even though the dangerous trees are on their property, we offered to pay half to eliminate the risk, but they didn’t want to spend the money…

Montpelier, Vermont, VTDigger, May 21, 2018: Tent caterpillars on sugar makers’ minds, if not in their trees

A decennial pest species called the forest tent caterpillar is midway through an outbreak in Vermont this year, and egg masses have just begun to hatch, according to state officials. The caterpillar is native to Vermont and every 10 years or so an outbreak of the species will defoliate large areas of deciduous trees. The last big outbreak in Vermont began in 2004 and continued for about three years, stripping foliage from more than 300,000 acres of forest. Maple sugar makers are among those keeping a wary eye out for the bugs as summer fast approaches. “Everything looks good right now — the leaves look fantastic,” said Peter Purinton, owner of Purinton Maple in Huntington. But, as is the case in any agricultural operation, he said, “when you think things look good, look out, because something’s after you.” Purinton said he’s been hit more than once by forest tent caterpillar outbreaks since he began his sugarbush in the late 1970s. The most recent infestation before this one was around 2010. “They just eat the leaves and leave the trees with no leaves,” he said. “The first of July, it’s like it’s January…”

Missoula, Montana, KPAX-TV, May 21, 2018: Dead trees pose real threat to people

There are many dangers that Montanans may face in the wilderness. Bringing enough water, supplies and bear spray all steps people can take to make sure they’re safe though. But what does a person do when the threat in the forest is the very trees themselves? A tree snag is defined as any standing tree that is dead or dying. Snags are a natural part of a forest’s life cycle and provide habitats for many wildlife. However, by being a snag it means that the tree’s structure is compromised and will eventually fall. When a tree falls, depending on its size, it can bring hundreds or even thousands of pounds of force with it. Jay Hedrick is a 10 year veteran forester who works for the USDA Forest Service. Hedrick says he’s seen firsthand just how dangerous a tree snag can be. “No matter how long you’ve been doing it, it is a pretty frightening situation especially if you’re witnessing these trees come down,” says Hedrick…

Hagerstown, Maryland, Herald Mail, May 20, 2018: Potomac Edison tree-trimming crews branch out across area

Potomac Edison will be sending crews this summer to trim more trees near power lines in Western Maryland and the Eastern Panhandle of West Virginia as part of its parent company’s $33.7 million vegetation-management program for 2018. The trees are being cut back because “branches coming in contact with lines is one of the top causes of (power) outages,” said FirstEnergy spokesman Todd Meyers. FirstEnergy is the parent company of Potomac Edison… “In Maryland, we do the cycle once every five years, so we get about 20 percent of the system per year,” Meyers said. “It’s like painting a battleship; it’s never done…”

Elko, Nevada, Daily Free Press, May 20, 2018: The science of elm trees

Trees in Elko County are a rarity. When lucky enough to have a few on your property you pamper them like children, hoping they make something of themselves someday. As the leaves begin budding out this time of year you say keep going and growing – do your job. Here in Ryndon a tree is something one is not careless about. Settling down from California 20 years ago I was determined, by gum, to make this barren landscape into a fruited plain. With the precision of a passionate architect I dug holes that first spring of my arrival and began seriously planting as many different types of trees as possible. Buying stock of all kinds from the old Builders Mart (now Ross, Petco and JoAnn) I forged a grand experiment that taught a deep yet sad lesson in dendrology – the study of trees. I don’t want you to think that I willy-nilly planted any tree that was offered. In researching the “Hardiness Zone” listed on description tags I made a rule that as a minimum the plant would have to withstand at least negative 30 degrees Fahrenheit, a rarity yet a potential possibility. Although the list became shorter with such a specification, I purchased willow, apple, pear, cherry, ash, locust, birch, maple, cottonwoods and quaking aspens. All eventually died except the last two, and now after two decades the cottonwoods are slowly giving up their ghosts…

St. Augustine, Florida, Record, May 20, 2018: UF study: Termites can weaken trees before hurricanes

Nobody likes a termite. Except for mongooses. And bats. And other predators. But termites aren’t loved in Florida. The Asian subterranean termite, though, as made a home for itself in the southeast part of the state by way of human maritime operations. And they’re taking down and killing trees, according to a study done by a University of Florida assistant professor. Thomas Chouvenc, an assistant professor of urban entomology, with former UF student Jeremiah Foley published in the journal Florida Entomologist that the Asian subterranean termite, originally from India, can hollow out oak trees and stress pine trees from the outside. The hollowed oak trees then become at risk for falling during hurricanes. During Hurricane Irma last year, Chouvenc said, some trees that had fallen had been eaten from the inside by these termites. Slash pine trees have a hard, sappy core, Chouvenc said, so it’s hard for termites to get into. Instead, the research found, the termites stay along the outer ring of the tree, in dead bark, and eat around the tree, girdling and eventually killing it. The termite, the article states, has the potential to “irreversibly alter the urban forest composition…”

San Francisco, California, Chronicle, May 17, 2018: Please Don’t Plant That There! 8 Epic Mistakes People Make With Trees and Shrubs

Have a home with a yard? Then you might be pining to plant something to make it lush. Only problem is, many homeowners are at sea in big-box garden centers, selecting species that just won’t thrive—or even survive—in their yards. To the rescue, we’ve asked some green thumb experts for the biggest mistakes people make planting (and caring for) trees and shrubs. Read up on these bloopers to avoid before you dig in! Swaying palm trees channel a vacation vibe, and you’ll see them everywhere in Los Angeles, Florida, and other warm-weather areas, but here’s a little secret: They aren’t native to these areas—and can even be dangerous if you plant them near your home. “I wish homeowners would not plant this tree,” laments Cassy Aoyagi, president of FormLA Landscaping. Many palms, particularly the Washington fan variety, are highly flammable, so when brush fires pass nearby, they can bake these plants from down below and cause them to burst and rain fiery embers underneath…

Los Angeles, California, Times, May 17, 2018: $700,000 for family of San Diego musician killed by falling tree

The parents of a San Diego musician who died after a giant tree fell on her car settled their lawsuit against the city for $700,000, officials confirmed Thursday. The tree, estimated to be 100 feet tall, 6 feet wide and more than 50 years old, fell across Ingraham Street near Fortuna Avenue during a powerful storm on Jan. 31, 2016. It crushed three parked vehicles and a passing car driven by Nicki Lyn Carano. She died before she could be taken to a hospital. Her parents,  filed a wrongful death lawsuit alleging city authorities had “actual and/or constructive knowledge” that there was a defect in the tree that caused their daughter’s death. They also claimed the city had a duty to inspect trees near the roadway for flaws and have a hazardous tree management plan in place. They contended the city failed in its duties to keep the area safe and warn the public of any hidden danger…

Westchester, New York, Journal News, May 17, 2018: When a tree falls, who’s responsible?

Tuesday’s storm hit the Lower Hudson Valley hard. It wasn’t particularly wet, but wind gusts were as high as 63 miles per hour and two tornadoes, with winds of 100 mph, touched down in Putnam County. The winds knocked down trees, caused widespread power outages and even temporarily shut down Metro-North. And the cleanup? Here’s what you need to know about trees felled by a storm. It’s up to you to get rid of it. Whether it started on your property or not. “Basically, it’s the homeowner’s responsibility,” said Greenburgh Town Supervisor Paul Feiner. Feiner said sometimes the town will recommend a resident get rid of a tree, but on private property they can’t force anybody to remove anything. Your homeowner’s insurance could cover a portion of removal and replacement, according to the Insurance Information Institute…

Pittsburgh, Pennsylvania, NEXT Pittsburgh, May 17, 2018: With thousands of trees lost, Pittsburgh fights to preserve and improve its tree canopy

From tree-lined streets to our beautiful parks, Pittsburgh has its share of leafy shade. In fact, in 2013, we were cited by National Geographic for the city’s impressive amount of urban tree cover, coming out ahead of cities including Portland, Austin and New York. But a disturbing report from Tree Pittsburgh shows that the tree canopy in our region is suffering. Allegheny County lost 10,000 acres of its tree canopy between 2011-2015, according to the report. A two percent change from 2010 (56 percent canopy coverage) to 2015 (54 percent) may not sound like much, and yet it is. In more vivid terms, our county lost the equivalent of more than 7,500 football fields of trees. The city alone lost six percent of its canopy coverage. Some trees were lost to the emerald ash borer, a non-native pest that arrived in Pittsburgh around 2009. Others died in an oak wilt fungus outbreak that spread in Schenley Park. Around 3 to 5 percent was due to the removal of trees that were naturally aging and dying. But much of the loss is man-made…

Washington, D.C., WTOP Radio, May 17, 2018: Why some trees are more likely to topple than others

Much like it’s easy for you to slip on a wet floor — tree roots can slip out of the ground when there’s wet soil. And, some species are more susceptible than others. Trees with shallow root systems that are more likely to topple include the tulip poplar, magnolias, some maples and Bradford pears, according to an expert arborist. “They have strange, ropy root systems that don’t have a lot of root hairs and because they don’t have as much surface area, they sometimes are not as well anchored as some other species,” head of horticulture and education at the U.S. National Arboretum Scott Aker said. Trees that are more likely to come down also include those that are unbalanced from the loss of branches on one side, that are leaning from recent wind storms or have damaged roots…

Miami, Florida, Herald, May 16, 2018: It’s invasive and filled with bugs. It’s also pretty, and now Key West’s official tree

What’s invasive, notoriously messy and prone to termite infestations? The new official tree of Key West: the Royal Poinciana, known for its fiery orange-red blooms that dapple across the island this time of year with their wide-spreading branches. The Royal Poinciana has its problems and its detractors, but it also has a strong fan base in Key West, where locals and tourists enjoy its beauty. “The Royal Poinciana is perfect for Key West,” said local photographer Ralph De Palma. “It’s one of the first trees that stunned me with its natural beauty.” “My parents loved this tree. My grandparents loved this tree,” said Mayor Craig Cates, who presented the item to the City Commission on Tuesday night. “The whole idea is to preserve the tree and encourage people to replant this tree.” Cates said he knows hundreds of locals who support naming the Royal Poinciana Key West’s official tree. If the city continues its rate of replanting the tree, there are local children who will never get to see one, Cates added…

Fremont, Nebraska, Tribune, May 16, 2018: Mulch volcanoes compromise tree health

You’ve seen this before—mulch piled so high around a tree that it resembles a volcano with a stick coming out of the center. So goes the plight of trees trying to survive under such conditions. Despite the research indicating how bad this is for trees, we see it time and again. Exactly how do mulch volcanoes compromise tree health? There are two compelling reasons. First, tree roots need oxygen to survive. In most soils, oxygen is found in the top 18 inches or so of the soil. It’s no accident, then, that roots readily exist, thrive and grow in the top 18 inches of soil. When mulch is heaped around trees, this puts the lowest tree roots out of the range of oxygen penetration. Under these conditions, roots begin to die back, slowing tree growth and potentially causing tree death. The second reason mulch volcanoes are a bad thing has to do with the tree trunk itself. To explain this, a better understanding of plant function is necessary…

Science Daily, May 16, 2018: Whole-tree logging may not hinder plant biodiversity

As much as we love our two-by-fours and toilet paper, many of us have mixed feelings about logging. Those feelings can morph into straight-out hostility when it comes to removing the branches and treetops, which are increasingly chipped and burned for electrical power generation. “People think, ‘It’s bad enough to log, and now you are going to take away the branches that decay and then nurture the ecosystem?'” says Robert Froese, a forest scientist at Michigan Technological University. “But we wondered, what really is the role of branches?” So, with funding from the National Council for Air and Stream Improvement and Weyerhauser, Froese’s team decided to find out. What they discovered surprised them: when it comes to plant diversity, harvesting the whole tree does not have dire consequences. The results of their study have been published in the journal Forest Ecology and Management…

Westchester, New York, Journal News, May 16, 2018: Storm: What to do with fallen trees and how to prepare

As homeowners clean up after Tuesday’s devastating storm that brought tree-toppling winds to the lower Hudson Valley, many are left to assess the risk of trees on their own property. “We live in a county where there are a lot of trees that are bigger than the houses that they’re around,” said Jerry Giordano, a senior horticulture consultant at the Cornell Cooperative Extension’s office in Westchester County. “Are we going to take all those trees down? Probably not, people like trees, but you have to decide the degree of risk you’re willing to live with,” he said. If a tree is injured by a storm, the next step is to call a professional to gauge the damage and come up with a plan, Giordano said. Hanging or cracked branches can be a hazard. Giordano said cabling, or tying an injured branch to a healthy limb, is a viable option to reinforce a damaged tree — although experts debate whether this contributes to the long-term health of the injured branch…

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 – Thursday, May 24, 2018

ALL EYES ARE ON IOWA

A loyal reader from the home of the greatest state fair in the land — and we need more of those, not just from Des Moines — wrote to ask some incisive questions about a rather boorish neighbor. Her questions had to do with the neighbor’s plans to bulldoze a driveway along a steep grade right next to our interrogator’s land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away his land.

We found four questions, not just one, in our reader’s letter. The first question: what about trees right on the boundary line? The second question: what about trees on our reader’s land, but with roots extending into the neighbor’s land? The third question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well? And last, if our reader has rights here, can she get an injunction to stop the harm before it starts, or is her only option to collect money damages later?

All good questions. Today we’ll answer the question about those boundary trees. Boundary trees are trees growing on the legal boundary between properties. In Iowa, the case governing boundary trees is Musch v. Burkhart. Musch valued the cottonwood trees growing along the boundary of his land and the adjacent property belonging to Burkhart; his neighbor, however, thought the cottonwoods were a pain in the neck. Musch had cut some of them down — after all, there was about 500 yards of the tree line — leading Burkhart to conclude that he, too, could cut some down, in fact, cut down as many as he wanted.

The court’s analysis was interesting, in that whatever agreement the prior owners of the two parcels — who had apparently agreed to some arrangement on ownership, care and use of the tree line — may have made had been lost to history. The court said that absent some evidence to the contrary, it would assume that trees growing on a boundary line were owned by the two owners as tenants in common because they grew on both properties and “drew sustenance” from both properties. It almost suggests that trees which are provably drawing sustenance from root systems spread pretty much equally from two properties must be owned by both owners as tenants in common.

The importance is that ownership of the tree by both property owners as tenants in common establishes what essentially is a 50-50 partnership with each partner given a veto. As tenants in common, both must agree before anything happens to the tree.

The other holding of significance in this case is that the court found that damage to trees is, for all legal purposes, irreparable harm. Nothing is irreparable in a geologic time sense. Trees that are destroyed can be replaced, and the seedlings becoming just as majestic in 50 or 100 years. The Musch decision takes a much shorter view, however, suggesting that if it will require a half century to heal, it’s irreparable harm.

That’s significant, because a showing of irreparable harm is necessary to obtain injunctions to stop tree cutting. Musch, like the rest of us, would rather keep the tree than get a few bucks later, after a century tree is gone. Maybe not gone forever, but to us humans, gone for a century might as well be.

So our reader has a couple answers here. If the trees are boundary trees, an Iowa plaintiff has the right to get an injunction to save them.

Tomorrow: what if the trees aren’t on the boundary?

A lot of drama going on in Iowa, it seems… Stay tuned.

Musch v. Burkhart, 12 L.R.A. 484, 83 Iowa 301, 48 N.W. 1025, 32 Am.St.Rep. 305 (S.Ct. Iowa, 1891). Musch lived next to Burkhart in rural Black Hawk county. His house, barn, and other buildings are on the northwest corner of his property. Burkhart’s south boundary line is the north boundary line of Musch’s place.

About 20 years before, Jeffers — who owned the land before Musch — planted a line of cottonwood trees for about 500 yards along the north boundary of his land. The trees had grown to a height of from 30 to 60 feet, and their trunks had diameters of from 1 to 2 feet. The average space between them is about three feet. Musch attached barbed wires to the north side of the trees, making a wire fence. Musch used the fence to contain his cattle and relied on the trees as protection from storm and winter winds to his buildings and stock.

Burkhart threatened to cut the trees down. He claimed he and Musch had an agreement to maintain a common fence, but that the trees had thrown out roots extending for many feet into his land; that by reason of such roots, and the shade of the trees, a strip of his land 50-65 feet wide, immediately north of the trees, was unproductive. Burkhart argued the trees were of no value to Musch and that he had a right to remove them. What’s more, Burkhart argued that Musch had cut down some of the trees originally planted there, and he should have a right to do the same.

The trial court found that the trees had value to Musch, but that their roots had damaged Burkhart. Clearly, they stood on the common boundary line. The trees were planted before Burkhart bought his land. The trial court wasn’t able to discern the nature of the agreement between the prior owners of the two tracts of land, but it nevertheless found for Musch, and enjoined Burkhart from cutting down the trees.

Burkhart appealed.

boundary151111Held: Musch was entitled to have the trees protected. The Court found that because the trees stood on and drew sustenance from both tracts of land, in the absence of a showing to the contrary, they were considered to be owned by the parties as tenants in common.

When one tenant in common destroys the subject of the tenancy, he is liable to the co-tenant for the damages he thereby sustains. A court, by injunction, may restrain one tenant in common from doing a serious injury to the common estate. While an injunction will not be allowed to restrain a trespass where damages are an adequate remedy, where the injury will be irreparable, an injunction is appropriate.

The Iowa Supreme Court held that the destruction of trees and shrubbery growing upon premises occupied by Musch would be, “in a legal sense,” an irreparable injury to him. The trees served to shelter and protect Musch’s buildings, and thus Burkhart could be enjoined from cutting them down despite the fact that their presence caused damage to his land.

– Tom Root

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Case of the Day – Wednesday, May 23, 2018

SHORT AND SWEET

There have been more than a few recurring themes in our posts over the past decade plus. Some of the most-repeated are (1) hire a lawyer when you should have one, such as anytime you feel the need to sue someone; (2) courts follow prior decisions – called stare decisis – so as to bring certainty to the law; and (3) the Massachusetts Rule has traditionally been the law of the land, and while that has been changing, it is still the “go to” rule in most places.

Alas, Virginia Scott is not one of our regular readers. Had she been back in 2010, she would have consulted a lawyer about the mess that trees belonging to her neighbor, Julie, were making in her yard. She would have told the lawyer that she wanted damages for the dropped leaves and twigs, and she wanted to be compensated for what she paid tree trimmers to cut the offending branches and roots back to her property line.

The lawyer would have said, “Nothing doing,” or words to that effect, which would have saved Virginia the cost and aggravation of trying a do-it-yourself lawsuit against Julie. As well as having her hat handed to her by the trial court and the court of appeals.

“But,” Virginia wailed, “the law is stupid. It should be changed.” Notably, that argument has worked some places – Virginia, Hawaii, North Dakota – but Virginia had no idea how to press for modification of the rule, and the Court was unimpressed.

At least the Court of Appeals kept is short and sweet. As we will be…

Scott v. McCarty, 41 So.3d 989 (Fla.App. 4 Dist. 2010). Virginia Scott owned property next to Julie McCarty’s place. Dr. Julie had some pretty lush trees – this being Florida, plants like to grow there – and eventually some of the branches were overhanging Virginia’s place, and the roots were intruding underground.

Virginia sued the Doc for the damages Julie’s trees caused her property, as well as for what it cost her to trim the branches back to the property line and dig up the intruding roots. Having apparently spent so much on damage repair and tree trimming, Virginia decided to save money on a lawyer. She represented herself.

The trial court dismissed her complaint forthwith, citing the Florida common law rule that “a possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner’s own expense, any encroaching tree roots or branches and other vegetation which has grown onto his property.”

This rule not seeming right to Virginia, she appealed.

Held: Virginia’s case was properly dismissed. The Court of Appeals said that the reason for Florida’s common law rule “was that it was wiser to leave the individual to protect himself than to subject the other to the annoyance of actions at law which would likely be innumerable.”

On appeal, Virginia acknowledged that the common-law rule, first adopted in the 1987 Florida appellate case Gallo v. Heller, was the prevailing law, but she asked the Court to “take a different course.” The Court refused to do so, saying that “the Gallo view is the predominant view in the country… [and] departing from the precedent would invite further litigation between neighbors on this issue, which as a public policy matter should be avoided.”

– Thomas L. Root

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Case of the Day – Tuesday, May 22, 2018

MOVING THE CHEESE

There’s a great old adage in the law that goes something like “When your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on the law and the facts, pound on the table.” Today’s case is one in which an inventive lawyer tried just that, albeit without much result.

We’ve worked a lot with the old Restatement rule, now on its way out, that a landowner is not liable for physical harm caused to others outside of the land by a natural condition of the land. That rule, when it was a rule, came with a proviso. If the person possessing the land was in an urban area, he or she was liable for physical harm resulting from failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

In today’s case, a tree in the lush tropical paradise fell onto a road and crushed a ’77 Mercedes – a pretty nice ride – leaving the plaintiff’s lawyer with a problem. The evidence showed the collapsed tree was rotten, all right, but that none of the decay was visible from the exterior. So arguing that the tree’s owner should have inspected the tree was a loser, because even if he had done so, the owner would not have seen the decay and recognized the danger.

The plaintiff’s lawyer recognized that to win this one, he’d have to move the cheese on the defendant. So he quickly rolled out a second argument: Even if the common law (and more specifically here, the Restatement on Torts) did not imposes liability without fault (that is strict liability), the court should impose it here simply as a matter of public policy. “Public policy” is a fancy way of saying something should or should not be done because, well, because it is just common sense. So, the argument went, it did not matter if tree owner Al followed the rules as they existed now, because the rules needed to be changed retroactively, all the way back to the day the tree fell.

It’s sound public policy, the plaintiff’s lawyer argued, that is, good common sense.

“Common sense?” the Court asked incredulously. If urban owners are strictly liable for any tree that falls, it responded, then their reaction to the rule will simply be to cut down all of their trees. And where would be then? Sorry about the Mercedes, the Court said, but we’d be even sorrier about the trees.

Marrero v. Gerard, Civil No. 249/1989 (Terr.Ct. V.I., Dec. 12, 1989) 24 V.I. 275. Vic Marrero was driving his Mercedes along the East End Road in Estate St. Peters, Virgin Islands. Suddenly a tree stood on property owned by Al Gerard fell on Vic’s car. Vic claimed the car was damaged (not hard to believe) as was his psyche (harder to believe).

Norm Nielsen, who was Al’s neighbor and worked with Vic, was first on the scene. The base of the tree was inside Al’s fence, but the rest was on the road. Norm said the tree was “dry” where it broke off, “kind of rotten but green on top.” The evidence, which included photos taken by the traumatized Vic failed to establish that a visual inspection of the tree would have disclosed that it was rotten at its base and in danger of toppling.

Held: The Court held that the facts did not show Al as negligent, because he appeared to have no reason to know that the tree was unstable and would fall.

Vic, however, argued that even if Al was not negligent, he should be held strictly liable for any damage the caused. Vic cited the Restatement of Torts (Second), which provided at section 363 that:

(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

Vic relied on subsection 2, arguing that Al – owning trees in an urban setting – had a duty to Vic to inspect the trees. The Court ruled that whether the property on which the tree was located was urban or rural might be debatable, but ultimately was irrelevant. Even if the urban standard applied, the Court said, and even if Al had adhered to the standard, “the weakened condition of the tree was not apparent upon a visual inspection, so that it matters [not whether the area was urban or rural. Perhaps a core sampling of the tree would have disclosed the problem, but such an effort, particularly when weighed against the likely risk, is far too onerous a burden to place upon a landowner.”

The Court held that the Restatement did not impose strict liability, that is, liability without fault, in circumstances like these. All Sec. 362(2) does it to apply a more specific standard of care to an urban landowner, but still within a negligence realm.

Unfazed, Vic argued that the Court should apply its own strict liability standard to this case, as a matter of public policy. The Court demurred, saying that in its view sound public policy was reflected the Restatement’s standard. The Court said that a landowner should have the duty to inspect for, discover and remedy patently hazardous natural conditions on his or her property which may cause harm to others outside the land. But where the decay is internal, and therefore not discoverable upon reasonable inspection, to “impose a rule of strict liability would be to declare, in effect, that any tree which is large enough to fall over the boundary of one’s land will subject its owner to liability in the event that a hidden weakness causes it to topple and cause damages off the land.” That would just lead prudent landowners to cut down their trees, the Court concluded, “thereby accelerating the already lamentable deforestation of the territory.”

The Court agreed that the community should be protected from reasonably foreseeable dangers, but the community – both local and worldwide – “also has a compelling interest in the protection and preservation of the environment. The same concern and sensitivity which we are just beginning to bring to the massive problem of the destruction of the Amazon rain forest, for example, should also apply to the relatively minute and particular circumstances of this case. No reasonable gain would be derived from adopting a rule of strict liability here, particularly when weighed against the potential ecological and aesthetic implications of such a decision.”

– Thomas Root

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Case of the Day – Monday, May 21, 2018

RECREATIONAL USE STATUTE AND NATURAL DEFECTS

It's hard to enjoy an idyllic sunset when you can't get to the lakeshore.

It’s hard to enjoy an idyllic sunset when you can’t get to the lakeshore. Recreational use statutes make it easier.

A landowner really has no natural incentive to let people freely enjoy his or her land. You have a nice pond and woods, and, being as you’re a nice person, you let the birdwatchers’ society wander around looking for the white-throated needletail. Next thing you know, one of them steps into a prairie dog hole, and you’re being sued.

But public policy is strongly in favor of getting people out to enjoy nature’s bounty. For that reason, virtually all states have passed some version of a recreational use statute. These statutes hold generally that a landowner only has a duty not to be grossly negligent to people using his or her unimproved land without charge for recreational activities. They are intended to encourage the opening of private land – unspoiled natural areas – for free recreational use by shielding landowners from liability for the most common forms of negligence.

Today’s case raises an interesting question under the Texas recreational use statute. In this case, the City of Waco had a park that included limestone cliffs. A boy was sitting on the cliffs when a portion collapsed, causing him to fall to his death.

A user might anticipate he could fall off a cliff – but not that it would give way.

A user might anticipate he could fall off a cliff – but not that it would give way.

The City argued it couldn’t be held liable under the statute, because it did nothing to cause the defect in the cliffs. The Court of Appeals agreed with the boy’s mother, however, that it wasn’t necessary for the landowner to cause the defect, if the defect was so latent, that is, hidden, that the recreational user would not reasonably be aware of it. That one might accidentally fall off a cliff was foreseeable, the court admitted. But it wasn’t open and obvious that the cliff one was sitting on would suddenly give way.

Because the defect wasn’t obvious, all the boy’s mother had to do was advance in her pleading some allegation of gross negligence. In her complaint, she argued that the City was aware others had been hurt by falling rocks, and it had reports warning of the danger of collapsing cliffs. Those reports recommended the City post warning signs, but it didn’t do so. The court said that those allegations were good enough to make out a claim under the recreational use statute.

Kirwan v. City of Waco, 249 S.W.3d 544 (Tex.App 2008). Debra Kirwan’s son, Brad McGehee, was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the City of Waco, when the ground beneath him gave way and he fell about 60 feet to his death. Kirwan brought a wrongful death suit against the City, alleging a premises defect.

A firefighter who responded to the scene of Brad’s fall testified that an average person would “probably not understand that the ground could give way underneath them.” The trial court threw out the suit, holding that Kirwan had not: (1) “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or (2) “raised a genuine issue of material fact.” Kirwan appealed.

Held: The suit was reinstated and sent back for trial. Kirwan challenged whether Texas Civil Practice & Remedies Code § 75.002(c)the state recreational use statute – requires that all premises defect claims be based on a condition created by the defendant, thus barring any claim based on the existence of a natural condition that the defendant happened to know about. Under the recreational use statute – intended to encourage landowners to open their property to the public for recreational purposes – a landowner’s duty to a user is no greater than that owed to a trespasser, the very limited duty to not injure anyone willfully, wantonly, or through gross negligence.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy's life.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy’s life.

The law is clear that a landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, an owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But the appeals court held that the recreational use statute permits claims based on natural conditions as long as the condition is not open and obvious, and the plaintiff furnishes evidence of the defendant’s alleged gross negligence. Here, the court said, the crumbling rocks and cracks on the cliff that gave way did not conclusively prove that the danger of the unstable cliff rock was open and obvious. Crumbling rock may alert the average person to the risk of slipping and falling, but certainly not that the ground will simply fall apart beneath him. The court ruled that unstable cliff rock is not necessarily an open and obvious condition that a person might reasonably expect to encounter.

To state a claim under the Texas recreational use statute, Kirwan had to allege sufficient facts to show that the City of Waco was grossly negligent. The pleadings need only provide a plain and concise statement of the cause of action sufficient to give the defendant fair notice of the claim involved. In her pleading, Kirwan alleged that the City was actually aware of the dangerous condition on the cliff, that other park patrons had died or been seriously injured by the condition of the cliffs, that the City received a report from its own expert warning of dangerous rock falls and advising the City to post signs warning of potentially fatal rock falls, and the City’s failure to do so, in fact, to warn or guard against this danger at all amounted to gross negligence.

The court agreed that Kirwan plainly alleged the City’s conduct amounted to gross negligence. The City’s complaint that the pleading didn’t allege that the City had created the condition was meritless: where a claim is based on hidden natural conditions, such as the structurally unstable cliff rock in this case, a plaintiff need not plead that the City was grossly negligent in creating a condition.

– Tom Root

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Case of the Day – Friday, May 18, 2018

THE RV LIFE

Fun ... but not that sturdy ...

Fun … but not that sturdy …

Carefree RV living. Groovin’ on the high life in your boyfriend’s parents’ backyard, roughing it in a Coleman camper… what fun!

At least it’s fun until an unexpected storm blows through, and a devastating derecho lays waste to your suburban Buffalo neighborhood (I’m guessing this was the well-documented Labor Day 1998 Derecho event). A branch broke off a tree in during the blow, and it fell on the camper, injuring Mary Simet and apparently writing the final chapter of her relationship with beau Randy Newman (no, not that Randy Newman).

Mary sued Coleman. Its flimsy camper couldn’t absorb the impact of a massive tree branch in a windstorm, imagine that! And for good measure, Mary named her soon-to-be-ex-boyfriend and his parents, claiming that the branch was rotten and they should have cut it off, or not put the camper there, or warned her, or prevented the storm, or… or something. You know the drill. I’ve been injured. Therefore, someone’s gotta pay! And that’s when your lawyers start looking around for defendants who have insurance.

dumped140404

It’s worse than that, Bucko – she sued you, too. Relationships often end badly, but seldom this badly.

After the storm, of course, the Lehmans and their neighbors cleaned up. Mary’s alert and well-read lawyer complained that the cleanup wasn’t done because waste had been laid to the neighborhood or any reason so pedestrian as that. Instead, he bloviated, the cleanup was a grand conspiracy to destroy evidence his client needed for her lawsuit, a disreputable legal maneuver known as “spoliation of evidence.” The trial court, amazingly enough, agreed, but nevertheless concluded that because the evidence that had not been spoliated showed that any rot on the limb was not clearly observable, the Lehmans (and the broken-hearted Randy) were off the hook. And the whole derecho event was an act of God for which the Lehmans ­– including the Facebook-relationship-status “single” Randy – could not be blamed.

Wow. Sued by your own girlfriend. Now that’s what I call getting dumped.

Simet v. Coleman Co., Inc., 839 N.Y.S.2d 667 (N.Y.A.D. 4 Dept. 2007). Mary Simet suffered catastrophic injuries during a severe storm, when a tree limb blew onto the camper in which she was sleeping with her boyfriend at that time, Randy Newman.

The camper was owned by Linda (Randy’s mother) and her husband, David, and was located in their back yard. The limb, located approximately 30 feet from the camper, broke during an unusually intense storm with high winds, known as a “derecho.” Mary and Randy were unaware of the approaching severe storms when they retired to the camper and, indeed, the first severe storm warning wasn’t issued until after the storms had passed through the area.

The Lehmans had no notice that the tree from which the limb broke was decayed or defective. Mary’s expert opined that, regardless of whether the tree appeared to be healthy, the Lehmans would have been advised by an arborist to secure the limb if they had retained an arborist to inspect their trees.

On the advice of their insurance carrier and as part of a neighborhood cleanup after the storm, the Lehmans removed the branch and the camper remains, after photographic evidence was collected.

Mary sued Randy and his parents, and then she moved to strike their answer based on their alleged spoliation of that evidence. The trial court struck the Lehman’s answer because of the spoliation, but then granted summary judgment for them anyway, and threw out Mary’s case.

Mary appealed, and so did the Lehmans.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998. “Derecho” is a term derived from Spanish for “straight,” and is characterized by intense straight-line winds.

Held: The Court of Appeals held that striking the Lehmans’ answer based on spoliation was not warranted, that the Lehmans were entitled to summary judgment, and the limb falling was an act of God that precluded Randy’s liability.

The Court found that the Lehmans removed the limb and camper not to frustrate the plaintiff’s but only after their insurer gave permission and as part of a neighborhood effort. They had carefully photographed it before disposing of it. At most, the spoliation of the evidence was negligent, and the remedy striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence deprives the moving party of the ability to establish his or her case. That wasn’t the situation here.

Furthermore, the Lehmans weren’t liable to Mary Simet. The Court held that they did not create the dangerous condition with respect to her presence in the camper, and did not have constructive notice that the tree from which the limb broke was decayed or defective. No one was on notice a storm was coming. The fact that an arborist, if one had been hired, might have advised the Lehmans to secure the limb is irrelevant. New York law requires that the manifestation of tree decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.

Finally, the falling of the tree limb during the storm was an act of God that precluded Randy’s liability, with whom Mary was staying in camper at the time.

– Tom Root

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