Case of the Day – Wednesday, May 22, 2019


It’s easy enough to imagine the liability headaches a political subdivision might face operating parks. There are so many ways to get into trouble in a park: There are ponds to drown in, gopher holes to step in, cliffs to fall over, and the occasional falling tree.

Most states have recreational use statutes that limit public and private liability for the noncommercial use of land in its natural state. Before one can sue a sovereign – not just a king, but the federal government, state government or a political subdivision, permission to do so (these days, in the form of federal and state tort claims acts) must give permission to sue.

In California, for instance, an injured park user must show that a dangerous condition of public property existed. This is not your average gopher hole: instead Government Code § 830(a) says it “means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” To win money from the State of California, which (despite the legislature’s best efforts, still has some left), one must show 1) a dangerous condition of public property; (2) a foreseeable risk arising from the dangerous condition of the kind of injury the victim suffered; (3) either negligence on the part of a public employee in creating the danger or failure by the political subdivision to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the victim’s injuries; and (5) actual injury suffered by the victim.

That’s a pretty tall order for a victim to fill. And if that were not enough, the State has granted itself “trail immunity.” Section 831.4 of the Government Code holds that a political subdivision “is not liable for an injury caused by a condition of… [a]ny unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas… [and] any trail used for the above purposes.”

You may see where this is headed. A 10-foot-long eucalyptus branch split off from a tree in July 2013 and fell on Lorin Toeppe while she was walking with her boyfriend. Lorin, a physical therapist, suffered a crushed leg, fractured spine and lacerations to her face.

She sued the City, alleging its workers negligently maintained eucalyptus tree that dropped its branch on her. The City countered that she was walking on a park trail when it happened, so the City had “trail immunity.”

Lorin appealed, and – even in the face of dire predictions that parks would close – the court held that things were not quite as cut and dried as the City argued they were.

Toeppe v. City of San Diego, 13 Cal. App. 5th 921, 220 Cal. Rptr. 3d 608 (Ct.App. 4th Dist. 2017). While Lorin Toeppe was walking through Mission Bay Park with her boyfriend, a branch fell off a eucalyptus tree and struck her. She was badly hurt.

Lorin sued, claiming the tree constituted a dangerous condition of public property under Gov. Code 830(a). The City moved for summary judgment, arguing it was immune from liability under Gov. Code § 831.4, because Lorin was on a trail when she was injured. The trial court agreed, holding “[t]he evidence shows the injuries to Toeppe were caused when she was walking on the trail. Although it is disputed whether she was actually on the physical paved trail or just off of it, Toeppe’s contention is that the trail immunity does not apply to the other condition (failure to adequately maintain a tree next to the trail). Even if… the tree’s condition was a dangerous condition – and… substantially contributed to the accident, it does not create liability to fulfill its purpose, the immunity should apply to the tree (and its condition) because of the location of the tree to the trail.”

Lorin appealed.

Held: The City’s tree maintenance is not immune from negligence claims just because the trees are near a trail.

Lorin argued that between 2004 and 2013, a City employee negligently trimmed the eucalyptus tree. She claimed the City created and was aware of a dangerous condition of the tree, and as such, the City is liable for the harm caused by the falling branch.

The Court noted that trail immunity “is afforded ‘to encourage public entities to open their property for public recreational use, because the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.

     That’s what the City thought… but the Court saw it differently.

Lorin argued that trail immunity applied to the condition of the trail, not the fact that she may have been on the trail. She claimed that the negligently maintained eucalyptus tree was the dangerous condition giving rise to the City’s liability and her damages, not the trail. The City countered that Lorin was on the trail when she was struck by the branch, and the dangerous condition at issue here was thus connected to the trail.

In short, the Court said, “this is not a case about trails. It is about trees. Trees that were planted and maintained by the City. Trees that were not naturally occurring in Mission Bay Park. This is not a case where Toeppe was injured walking on a City trail in a naturally occurring forest. This is not a case where Toeppe had to walk on a trail to reach a dangerous condition or a dangerous condition was part of the design of the trail. Instead, Toeppe was injured when a tree branch struck her. She maintains the branch fell on her because the City was negligent in maintaining the eucalyptus trees in the park. There are no allegations that she was harmed based on a condition of the trail. There are no allegations that she was injured because of the location or design of the trail. On the record before us, we find no basis on which to apply trail immunity.”

The Court was not persuaded by the City’s argument that finding trail immunity does not apply here could result in the closing of City parks in which trees exist. “Although it might be prudent for the City to evaluate its maintenance of trees in its parks,” the Court said, “we do not foresee several park closures based on this opinion. Here, we merely conclude trail immunity is not applicable based on Toeppe’s allegations and the evidence submitted in support of and in opposition to the City’s motion for summary judgment. This case does not establish that the City is liable for Toeppe’s injuries.”

– Tom RootTNLBGray

And Now The News …

New York City, WCBS-TV, May 21, 2019: Tourist critically injured after being hit in the head by falling tree branch in Washington Square Park

A tourist from Virginia was hit in the head by a falling tree branch in Washington Square Park Monday evening. Police identified the victim as Penny Chang, 55. She was sitting on one of the benches on the west side of the park at around 7:30 p.m. when the 30-foot branch broke off and slammed into her head. Her 19-year-old son Jacob was sitting with her and wasn’t injured. Chang was rushed to Bellevue Hospital in critical but stable condition. She has a fractured skull and spine. Savage says there may have been a few seconds of warning before the 30 foot branch broke off and slammed into Chang’s head. “I heard a cracking sound and I didn’t know what it was. I looked around scared,” Manhattan resident Betty Savage told CBS2’s Marc Liverman. When Savage looked around, she saw a woman lying on the pavement right in front of some benches. “People were running over to her, screaming ‘Get a doctor! Get a doctor!’ She was not moving at all,” Savage said. “I was very shaken up. It was horrible. I was scared to death.” Another witness told Liverman that warning sound may have been the only reason no one else was hurt. “People were trying to get away, and she was trying to get away too, but the tree hit her, boom, right on the head and she fell on the floor,” Lower East Side resident Tyrone Taylor said…

Do It Yourself, May 21, 2019: How to Combat Blight on Trees

Blight is a quick and deadly tree disease that can potentially affect almost any tree in the U.S., which makes it a huge problem. Knowing how to combat blight is essential. If you don’t treat this problem as soon as it strikes, it can kill not just one tree but entire tree populations. There are several types of tree blight, but the treatment is generally the same for all these different diseases. Fire blight causes discoloration, usually on the bark of trees, though it can also affect blossoms and roots. There is no cure for fire blight. Once it affects your trees, your only hope is to completely eliminate the blight by pruning it off the tree. To successfully remove fire blight, you actually have to over-prune. You need to cut 12 to 18 inches above and below the areas of the tree that are visibly affected…

Derby, UK, Telegraph, May 21, 2019: How Brexit could make these two types of tree extinct in Britain

Palm and olive trees could be at risk of extinction on British shores post-Brexit, claims a leading online garden centre. Experts from have claimed that plants of Mediterranean origin are at risk of supply shortages should import restrictions be tightened after the UK finally leaves the EU. Gardeners’ warm weather favourites such as palms and olives are susceptible to plant diseases that are only found in that region of South Europe and North Africa. With a natural range from Portugal and Morocco to the Levant, the olive tree has been popular since prehistory and its branches are a symbol of peace. Palm trees, meanwhile, are one of the most cultivated species worldwide and can bring a touch of tropical greenery to UK gardens. Currently their quantity and quality is monitored before potential quarantine, with importation regulated by EU laws…

New York City, WPIX-TV, May 21, 2019: Property owners and city disagree about tree ownership on Staten Island street

Three trees off Taylor Street on the North Shore of Staten Island are growing into a controversy. An abandoned house was recently demolished and the property owner has new plans for the corner lot. Frank Martarella with thinkDESIGN Architecture is working on the new multi-family, residential building on the property. Zoning regulates the number of off-street parking spaces and the placement of driveways and curbs. “Based on numerous regulations required for curb-cut locations, we are forced to remove several trees,” Martarella said. They say the permit for tree removal would be $592,000. “Nobody is against trees. We have been planting within the property, at the street and the curb, for decades. We understand the importance,” Martarella said. Some Staten Island property owners have filed a lawsuit to challenge the NYC Parks Department process. Attorney Robert Fishler represents some of the owners and developers and calls it a case of property rights…

Asheville, North Carolina, Mountain Express, May 20, 2019: From CPP: To cut or not to cut? Disagreement over US Forest Service’s plans for trees

The U.S. Forest Service plans to harvest the majority of trees at 16 sites in Nantahala National Forest beginning next year as part of its Southside Project. Conservation organizations argue the trees at several of these sites represent exceptionally older and rarer growth than the Forest Service has recognized and are calling for the project to be withdrawn or revised after the Forest Service completes the revision of its land management plan for the Pisgah and Nantahala national forests in Western North Carolina, a draft of which is expected later this year. “Only one-half of 1 percent of the forest is old growth in the Southeast,” Buzz Williams of the Chattooga Conservancy told Carolina Public Press. “That is the reason within itself to leave it alone.” Williams recently visited a 23-acre site on a ridge below Round Mountain, near the headwaters of the Whitewater River in Jackson County. He removed a sample of wood with the diameter of a chopstick from the core of a towering chestnut oak growing on the ridge. By viewing the rings that are visible in the sample, Williams estimated that the tree is nearly two centuries old. And it’s not alone: Scattered on the ridgeline are aging white oaks and other tree species that eluded the heavy logging of the region a century ago…

Los Angeles, California, KNBC-TV, May 20, 2019: Judge OKs Trial For Family’s Suit Over Woman’s Death From Fallen Tree

Family members of a 61-year-old woman who died when an 80-foot tree fell on her at her daughter’s wedding party in Whittier in 2016 can take their lawsuit against the city to trial, a judge ruled. Norwalk Superior Court Judge Kristin S. Escalante heard arguments on the city of Whittier’s dismissal motion on Thursday, then took the case under submission before issuing a final ruling Friday. Trial is scheduled Sept. 30. The relatives of the late Margarita Mojarro filed the lawsuit in Los Angeles Superior Court in April 2017, alleging wrongful death and that a dangerous condition of public property existed. The case was later transferred to Norwalk Superior Court. The plaintiffs include the woman’s husband, Feliciano Mojarro; and four of her children, including the bride, Patricia Mojarro…, May 20, 2019: Native plants amazingly resilient when invasives removed, says Penn State study

When invasive shrubs are removed from the forest, native plants can rebound more strongly than expected, according to researchers at Penn State. The native plants demonstrated unexpected ability and vigor to recolonize spots from which invasive shrubs were removed. “The regeneration of native plants that we saw where invasive shrubs had been removed exceeds what we expected from looking at uninvaded parts of the forest,” said researcher Erynn Maynard-Bean, who recently earned her doctoral degree in ecology. “We believe that’s because invasive shrubs take up residence in the best spots in the forest. They are most successful where there are the most resources — sunlight, soil nutrients and water. Then, when invasive shrubs are removed, the growth of native plants in those locations beats expectations.” Maynard-Bean arrived at that conclusion through a long-term project that spanned 7 years in the Arboretum at Penn State. Researchers repeatedly removed 18 species of invasive shrubs and then monitoring the response by native plants…, May 20, 2019: Can a hands-on model help forest stakeholders fight tree disease?

When a new, more aggressive strain of the pathogen that causes sudden oak death turned up in Oregon, scientists and stakeholders banded together to try to protect susceptible trees and the region’s valuable timber industry. Sudden oak death is a serious threat. Since 1994, the disease has killed millions of trees in California and Oregon. If the disease spreads from an isolated outbreak in Curry County, Oregon, to neighboring Coos County, the impact could be severe: a 15% reduction in timber harvest, loss of 1,200 jobs and about $58 million in lost wages, according to an Oregon Department of Forestry report. Researchers with North Carolina State University’s Center for Geospatial Analytics reached out to help in Oregon, offering Tangible Landscape, an interactive model that allows people of all skill levels to control complex simulation models with their hands and collaboratively explore scenarios of management decisions…

Couer d’Alene, Idaho, Press, May 19, 2019: The mighty oak tree has long been revered in history, with 600 different kinds around the world — but none native to Idaho

After starting as a small acorn, oak trees can grow to a huge size and survive life facing torrential rains, bitter winters, drought, disease and raging fires — but not man’s ax. The oak is a treasure to humans and animals and is well recorded in history since ancient times — not really surprising because people are like oak trees: “The acorn does not know that it will become a sapling. The sapling does not remember when it was an acorn, and only dimly senses that it will become a mighty oak. The oak recalls fondly when it was a sapling, loves being a mighty oak, and joyfully creates new acorns,” says writer J. Earp. Idaho’s biggest oak tree is a bur oak (Quercus macrocarp) in the Julia Davis Park in Boise, standing 105 feet tall with a trunk waist just over 14 feet. Sadly, it receives little mention by Boise Parks & Recreation. Oaks are not native to Idaho, but in addition to the Boise bur oak, there is at least one English oak and one northern red oak…

Oakland, California, KNTV, May 17, 2019: Vandals rip out 2,000 cherry trees out of Former 49er Newberry’s Brentwood orchard

A former San Francisco 49ers player turned cherry farmer is now experiencing a sour note. Jeremy Newberry was set to start his first Brentwood cherry harvest season, but instead he arrived this week to find thousands of his newly-planted cherry trees ripped from the ground. “Literally this whole area was ransacked,” Newberry said. “I was sick to my stomach.” Newberry discovered Wednesday someone vandalized his orchard, ripping out 2,000 newly-planted cherry trees. “They yanked them out of the ground at the root and snapped them in half so you can’t replant them,” he said. Newberry plans to sleep in a trailer on the property to keep watch over his new field of dreams…

Virtual Strategy, May 20, 2019: A massive willow tree fell in Richboro, and Giroud Tree and Lawn saves it by…

April showers bring May flowers, but heavy showers can bring big problems for trees with compromised root systems! That was the case with a beautiful Willow Tree in Richboro, Pa. when it crashed down during a windy storm. The homeowners were worried the tree would have to be removed. Thankfully, Vice President and ISA Certified Arborist, Drew Slousky, from Giroud Tree and Lawn determined that the tree could be saved and stood up again. Check out the incredible video showing how Giroud Tree Crew Leader, Leonardo Marquez worked with the Giroud Crew to stand up the Willow Tree. Disasters such as this one can leave homeowners wondering what could have been done to prevent such a big problem on the property. “Sometimes when Mother Nature calls, there are tragedies that just can’t be prevented,” explains ISA Certified Giroud Arborist, Rob Nagy. “When conditions are the perfect mix of saturated soil with too much wind, trees can just uproot. But there are many things you can do strengthen your trees so they are better prepared for these situations…”

Canadian Broadcasting Corporation, May 20, 2019: To save the species, conservationists work to build a tougher butternut tree

Conservationists in southwestern Ontario are working to fight back against an insidious, tree-killing canker that threatens butternut trees across Eastern Canada. Never an overly abundant species, butternuts are revered by woodworkers and were an important food source for Indigenous people. But a canker first found in Wisconsin in 1967 had, by the early 1990s, taken root in Ontario. Butternuts are found throughout Ontario and as far east as New Brunswick. John Enright is a forester with the Upper Thames River Conservation Authority (UTRCA). He’s also a big fan of the butternut tree. One reason? He believes the nuts they drop in the fall exceed walnuts when it comes to flavor. “I know most people haven’t had a chance to eat a butternut but if you ever do get one, they are excellent, much better and sweeter than walnuts,” he said. “They’re a good nut for human consumption but also for wildlife…”

New York City, Wall Street Journal, May 15, 2019: G&E Caused Fire That Killed 85, California Concludes

California investigators found that PG&E Corp.’s equipment sparked the deadliest wildfire in state history, putting additional pressure on a company already facing billions of dollars in fire-related liability costs. The California Department of Forestry and Fire Protection said on Wednesday it had determined that a PG&E electric-transmission line near the town of Pulga, Calif., ignited last year’s Camp Fire, which spread quickly across dry vegetation in the forested foothills of the Sierra Nevada, killing 85 people and destroying the town of Paradise. State fire investigators also said they identified a second point of ignition where vegetation blew into the company’s electric-distribution lines, starting another fire that was consumed by the first one. Cal Fire sent its investigative report to the Butte County District Attorney’s office, which will determine whether the company will face criminal charges. The findings—which end months of speculation about the utility’s role in the massive wildfire—raise the likelihood that PG&E could face billions of dollars in liability costs related to its role in the November fire. PG&E sought bankruptcy protection in January in anticipation of more than $30 billion in potential liability costs. It said earlier this year that its equipment was probably the cause of the Camp Fire. State fire investigators previously determined that the company’s equipment contributed to sparking 18 blazes that together killed 22 people in 2017…

Chatham, New Jersey, Patch, May 16, 2019: Cutting Down Trees Could Cost Chatham Property Owner $25K

A Chatham property owner could face upwards of $25,000 in fines for clearing too many trees from a property located at the corner of Mountainview Road and Fairmount Avenue, according to Chatham Township Administrator Robert Hoffman. There were a total of 29 summonses issued to the property owner that are related to the illegal removal of trees. “They were issued to both the property owner and Tree Service,” Hoffman told Patch. According to Hoffman, the property owner attempted to use the fact that he is not a native speaker of English and that English is his second language as a reason for the additional tree removal. Hoffman noted there was a permit issued to authorize the removal of eight trees and that the tree service used understands English. “Math is international,” Hoffman said. “Numbers don’t change from one language to another.” Hoffman said the homeowner will have to appear in court and will have to explain to the judge why he took down three times as many trees as he was allowed…

Shelton, Connecticut, Herald, May 16, 2019: Eversource rights of way: Tree, brush removal has some residents seeing red

Darlene Masciola and her husband bought their Dickinson Drive home 15 years ago knowing an Eversource right of way — with a transmission tower at the property’s rear left corner — traversed the lot. While the Masciolas own the land, Eversource must maintain these rights of way by trimming or removing trees and shrubs to help protect the towers and lines. But what happens when this work leaves unhappy residents? Just ask the Masciolas and another nearby homeowner, the Fernandeses on Webster Drive. “This is just ugly,” said Masciola as she stood in her backyard, looking at what she termed a mess left behind from subcontractors who clear cut the entire section of the right of way on her property, leading back to adjoining lots, late last year. This is view Darlene Masciola sees when looking at her yard, which sits in an Eversource right of way. Eversource subcontractors trimmed trees in January, and Masciola has been unsuccessful in attempts to get the area cleaned up with new shrubs planted for screening. “I work hard on the rest of my property. Now I look out from my backyard, and I am just sick,” she said. “What I see makes me sick.” “I was shocked, devastated,” said Kathy Fernandes. “I was so depressed, I cried. What was worse was that I could not get in touch with anyone. I wanted them to see what was done. I understand they can do work in the right of way, but I did not sign up for them to destroy my backyard…”

Whittier, California, Daily News, May 16, 2019: Lawsuit filed after a falling park tree killed a grandmother may survive Whittier’s request to dismiss it

A Norwalk Superior Court judge said she’s likely to allow the lawsuit against the city of Whittier, brought by family members of a 61-year-old grandmother killed when a Penn Park tree toppled onto her, to continue. Margarita Mojarro of San Pedro was attending a wedding in December 2016 when a massive eucalyptus fell on the the party as it was posing for photos. Twenty people were injured in the injured in the tree collapse, but Mojarro was the only person killed. The city of Whittier had asked Judge Kristin S. Escalante to dismiss the case. But on Thursday, she said she’s inclined not to grant that wish. Escalante, who is expected to make a final ruling in the next couple of days, said she based her tentative decision on opinions of experts who examined the remains of the 80-foot tree and concluded the city should’ve known its poor condition. In a declaration filed by the Mojarros’ attorney, Matteo Garbelotto, who holds a doctorate in forest pathology and microbiology, said it was obvious the tree was compromised…


Case of the Day – Tuesday, May 21, 2019


Delaware Water Gap National Park

Delaware Water Gap National Park

Ms. Merando and a friend had been enjoying the scenery of Delaware Water Gap National Park – a beautiful place – one summer day, when a tree (which had previously been topped) fell from an embankment and crushed the car, killing Ms. Merando and her young daughter, Kaylyn.

It was a tragedy, and sometimes tragedies drive the bereaved to push harder than makes sense. That happened here, where Ms. Merando’s husband sued the National Park Service for not having removed this topped tree before it fell. The tree was a disaster waiting to happen, a dead, previously-butchered hulk leaning over the road like an ogre waiting to pounce.

A legal tradition – dating back to the days of knights and knaves and peasants and ogres – holds that no one may sue the king without the king’s permission. The doctrine is known as “Sovereign Immunity.” To address the unfairness of this rule, the U.S. government and virtually all states have passed tort claim acts, which give permission in certain circumstances to sue the sovereign (here, the sovereign is an Uncle named Sam, not a King or Queen).

The federal statute is called the Federal Tort Claims Act. Under the FTCA, an individual may sue the government in some cases but not others. There are limitations. One of those limitations is that you can’t sue the government if it failed to perform a discretionary act. Whether hazard tree removal is a discretionary function is at the heart of this case.

The Court of Appeals upheld the lower court, dismissing Mr. Merando’s case. The National Park Service, it appears, had written guidelines that essentially directed every park to adopt a hazard tree removal policy that makes sense for the individual park. The result is a patchwork of unwritten policies. That sounds like a prescription for chaos.

Actually, it’s a prescription to avoid liability. If the Service had a written hazard tree removal policy and the local rangers hadn’t adhered to it with the tree in questions, then liability on the part of the government would be pretty clear. But, as some sharp National Park Service lawyer undoubtedly figured out — and yes, even Smokey the Bear has his own mouthpiece — if you don’t write it down, it’s that much harder for a plaintiff to prove that you failed to follow it.

The Delaware Water Gap National Park had a rather amorphous “drive-by” inspection policy, and Mr. Merando was unable to demonstrate that anyone had violated it. The lesson seems to be that “the less you do, the safer you are.”

Some hazard trees are easier to spot than others ...

Some hazard trees are easier to spot than others …

Merando v. United States, 517 F.3d 160 (3rd Cir., 2008). Janine Noyes, Kathleen Merando and Kathleen’ daughter, Kaylyn, were sightseeing in Delaware Water Gap National Recreation Area. While traveling in Ms. Noyes’s car along the New Jersey side of the Park, a large dead oak tree fell from an embankment and crushed the vehicle. Mrs. Merando and her daughter were killed instantly. The tree was approximately 27 feet in length, and had been had “topped” and delimbed, leaving it standing in a “Y” shape with no bark or branches and with the dead tree pole leaning toward the roadway.

The 63,000-acre Park lies along four miles of the Delaware River in Pennsylvania and New Jersey. It is mainly forested land, and is accessed by approximately 169 miles of roadways, 68 miles of trails, and several streams. As with other national parks throughout the country, the National Park Service, an agency within the U.S. Department of the Interior, is responsible for maintaining the Park, including the area where the accident in question occurred. The Government took title to the land where the oak tree was situated in 1969 and to the roadway itself in 1996.

Plaintiff, as administrator of the estates of Ms. Merando and her daughter, sued the Government for negligence, alleging that the Government negligently pruned the tree causing it to die and eventually collapse, and that the tree constituted a hazardous and extremely dangerous condition of which the Government knew or should have known and that it negligently failed to act to remove the tree. The Government moved to dismiss the complaint on the basis of the discretionary function exception to the Federal Tort Claims Act (“FTCA”). The Government also argued that the New Jersey Landowner Liability Act barred the action. The trial court dismissed on the basis that the FTCA stripped the court of jurisdiction to hear the case. Mr. Merando appealed.

Held: The district court’s dismissal was affirmed. The federal, as a sovereign, is immune from suit unless it consents to be sued. That consent, and the extent of the consent, is set out in the FTCA. It is the  plaintiff’ burden to prove that the FTCA has waived the immunity. Generally, the government is immune from a suit claiming negligence in the discharge of a discretionary function.

car150518The purpose of the discretionary function exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. In determining whether the discretionary function exception applies in any particular case, a court must first determine whether the act giving rise to the alleged injury involves an element of judgment or choice. The requirement of judgment or choice is not satisfied if the law, a regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive. – But even if the challenged government conduct involves an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The focus of the inquiry is on the nature of the actions taken and on whether they are susceptible to policy analysis.

In this case, determining whether the discretionary function exception applied to a tort action arising when the dead tree fell on the passing car, the relevant conduct was not the National Park Service’s alleged violation of its mandatory policy not to “top” trees, because there was no evidence that the Government was involved in or consent to the topping of the tree. Instead, the relevant conduct was the Service’s decisions that comprised its hazardous tree management plan and its execution of that plan. The issue was whether the controlling statutes, regulations, and administrative policies required the Park Service to locate and manage hazardous trees in any specific manner. The Court concluded that the Service’s unwritten tree management plan did not mandate any particular methods of hazardous tree management, and its choice to use “windshield inspections” in low usage areas of the park was a discretionary decision — driven by limited resources — not to individually inspect every potentially hazardous tree in the park.

– Tom Root


Case of the Day – Monday, May 20, 2019


This bunch is pretty happy ... The Wongs? Not so much.

This bunch is pretty happy … The Wongs? Not so much.

The Wong family, through their company Happy Bunch, LLC, was quite happy indeed with the nice piece of property the family occupied. The Wongs especially liked the 10 trees that lined one boundary. They had planted and nurtured them for 20 years or so, and the trees had gotten big enough that eight of them actually straddled the boundary line with their neighbor.

But what a hot dog the neighbor turned out to be! Grandview North was a developer, and planned a Wienerschnitzel franchise on the lot next door. The City required that Grandview add about four feet of fill to the lot, and Grandview was afraid the Wongs’ boundary trees would get in the way. Grandview had a survey done, and the company knew the trees were on the boundary line, with most of the trunks on the Happy Bunch land (two were entirely on the Happy Bunch side of the boundary). So what? After finding itself unsuccessful at getting Mr. Wong to consent to the trees being cut down, Grandview made its view grander by taking out the trees itself. Mr. Wong was done wrong …

Happy Bunch sued. The trial court ruled that Grandview owed $32,000 or so for the trespass to timber, but it refused to impose statutory treble damages, finding them not applicable to boundary trees.

The Court of Appeals, in a case of first impression, disagreed. It ruled that boundary trees in Washington State are owned by both landowners as common property, and neither may cut them down without the consent of the other. The Court ruled that damages when a boundary tree is cut down is the replacement value of the tree, apportioned by the percentage of the trunk on the injured landowner’s property, a method that strikes us as rather artificial and likely to undervalue the tree to the injured property owner. What, Happy Bunch gets half a tree back? There was a little justice, however: the Court of Appeals ruled that the treble damage statute for trespass to timber applied to boundary trees as well as other trees.

Happy Bunch, LLC v. Grandview North, LLC, 173 P.3d 959 (Wash.App. Div. 1, 2007). The Wong family owned land through its limited liability company, Happy Bunch LLC. Grandview, was a property development company that purchased a parcel of property next door the Happy Bunch property to build a Wienerschnitzel drive-through restaurant. The City of Mount Vernon required that four feet of fill be placed on the Grandview property as part of the planned development.

cutdownTwelve mature trees stood either on or near the boundary line between the Happy Bunch and Grandview properties. Some portion of the trunks of 10 of the trees — all originally planted by the Wongs some years before — extended from the Happy Bunch property onto the Grandview property. Grandview believed it couldn’t meet the city’s fill requirement without putting a retaining wall on the Happy Bunch/Grandview property line. Because the roots and trunks of the trees extended onto Grandview’s property, Grandview believed that they would interfere with the construction of the retaining wall and decided to move them, even though Grandview knew a survey showed the trees’ true location on the property line.

The Happy Bunch was not happy, not agreeing with the plan, and found through its own survey that the trees were either on the boundary line or entirely on the Happy Bunch land. Despite Happy Bunch’s opposition, Grandview cut down all ten trees. Happy Bunch sued, claiming that it had acquired title to the land under and around the trees by adverse possession due to the Wongs’ maintenance of the trees and surrounding area. It also sought damages for both the value of the cut trees and the estimated $15,065 cost of digging up the trees’ root systems and repairing damage to the Wongs’ driveway likely to be sustained as a result. Happy Bunch also requested that the entire award be trebled pursuant to Washington law because of Section 64.12.030 of the Revised Code of Washington, the state’s timber trespass statute, thus seeking a total damage award of $168,294.

Hotdogg160610The trial court ruled that Grandview committed timber trespass by cutting the trees on the Wong/Grandview property line. The trial court took the damage figure to the trees of $40,033, and multiplied it by the percentage of the cut trees that had been growing on Happy Bunch’s property, resulting in damages of $32,519.22 to Happy Bunch on its timber trespass claim, as well as $2,500 for the cost of grinding out the remainder of the stumps. The court denied the damages of $15,065 for completely removing the trees’ root systems and repairing the resulting damage. Finally, the trial court ruled that Happy Bunch was not entitled to treble damages as provided by the timber trespass statute “[b]ecause the trees that were cut straddled the common property line.”

Happy Bunch appealed.

Held: Judgment was reversed on most counts. The Court of Appeals concluded that Happy Bunch was only entitled to recover damages for injury to those portions of the trees growing on its land. However, the Court found that RCW § 64.12.030’s treble damages provision did apply.

In most jurisdictions, a tree standing on a common property line is considered the property of both landowners as tenants in common. Although Happy Bunch admitted that courts commonly calculate damages based on the value of each cut tree, apportioned according to the percentage of the tree that was located on the injured landowner’s property, it contended that the proper approach here was the one applied in the Colorado case, Rhodig v Keck. Rhodig held that absent a showing of an agreement to the contrary, a boundary line tree belongs entirely to the party on whose land the tree was originally planted, with damages calculated accordingly.

The Court of Appeals rejected Rhodig, holding that adoption of its rule would enable Washington landowners to effect boundary line adjustments with trees, creating “an entirely new theory of adverse possession without a basis in either the statutory or common law of this state.” The Court said the Rhodig holding would mean that Happy Bunch acquired title to the land under the trees simply because had once had planted the trees. Therefore, the Court held, a tree standing directly upon the line between adjoining owners so that the line passes through it is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other. Grandview had an interest in the trees proportionate to the percentage of their trunks growing on Grandview’s property, and thus, the trial court correctly awarded Happy Bunch only that portion of the trees’ value reflecting Happy Bunch’s property interest in them.

Happy Bunch contended that an award of treble damages was mandatory pursuant to RCW § 64.12.030, unless Grandview proved one of the mitigating factors listed in the statute. The Court agreed, holding that the trespasser must allege and prove mitigation, and absent such a showing, treble damages will be imposed. The Court rejected Grandview’s argument that it believed it had a right to remove the trees, noting that Grandview possessed a survey that indicated that the majority of the trees were predominantly located on Happy Bunch’s property, and that at least two of the trees were not located on Grandview’s property at all. The Court said that where a person has been given notice that another has an ownership interest in trees, and the person nonetheless cuts them down, the actor will be liable for treble damages under the statute. Both the punitive and compensatory policies underlying the statute are implicated with respect to boundary line trees, the Court reasoned, and for that reason, the statute must be applied.

– Tom Root


Case of the Day – Friday, May 17, 2019


Think how much litigation a talking horse might have saved ...

Think how much litigation a talking horse might have saved …

A horse is a horse, of course, of course…

Sherri Ann Konieczny — and we’ll just call her Sherri Ann — was horseback riding at the Dmytros’ farm. Sadly, her horse, who was neither named “Mr. Ed” nor could talk, was unable to warn her about the pile of timber hidden in the tall grass. Instead, the horse struck the pile of wood left by Mr. Dmytros along a fenceline, and then tripped and fell. Sherri Ann fell, too, and the Dmyrtos’ insurer got sued.

But Sherri Ann was a non-paying guest of the Dmytros. Their insurer thought her claim was… well, was the kind of stuff you find falling from the south end of a northbound horse, if you get our allusion. The insurance company defended under the recreational user immunity statute.

That statute hardly applies, the grievously injured Sherri Ann argued, because Wisconsin’s recreational user immunity law only relates to the condition or maintenance of the land. A stack of timbers, she said, aren’t related to the condition or maintenance of the land.

Maybe Sherri Ann’s horse couldn’t talk, but the Court of Appeals could: it said “neigh.” The Court ruled that the intent of the recreational use law was to encourage landowners to open their lands to the public. The Dmytros’ act of storing lumber on their land was the kind of thing a landowner would normally do. Clearly, if the courts started drawing such artificial lines – such as holding that a landowner’s typical use of his or her land might negate recreational user protection – then landowners would be unable to  trust the recreational use statutes, and they simply wouldn’t open their lands to recreational users at all.

It’s a constant balancing act between giving injured people the right to collect for injuries caused by the negligence of others and encouraging a socially useful end like public access to recreational opportunities. The Court did it well in this case.

Konieczny v. Wausau-Stettin Mut. Ins. Co., 740 N.W.2d 902 (Wis.App. 2007). Sherri Ann Konieczny was injured while horseback riding on William and Cecilia Dmytro’s property. According to Konieczny, her horse struck a piece of timber that was lying next to a fence line, causing the horse to lunge forward and throw her to the ground.

The Dmytros had obtained the timbers about five months earlier when William Dmytro helped a neighbor demolish a barn. The timbers had been stored by the fencerow ever since.

Konieczny sued the Dmytros’ insurer, Wausau-Stettin, which moved for summary judgment under Wis. Stat. §895.52, the recreational immunity statute. Konieczny argued the recreational immunity statute did not apply because the storage of the timber on the Dmytros’ property was unrelated to the condition or maintenance of the land. The trial court ruled that Konieczny’s claim was barred, and she appealed.

Held: Konieczny’s claim was properly rejected under the Wiconsin recreational use statute.

So an owner's clutter might constitute a "condition of the land?"

So an owner’s clutter might constitute a “condition of the land?”

Horseback riding is explicitly included within the statutory definition of “recreational activity.” A plain reading of the statutory language, the Court said, appeared to bar Konieczny’s claim because the Dmytros had no duty to keep the property safe or to warn Konieczny about the timbers. Konieczny claimed the statute did not apply where a landowner’s conduct causes injury and that conduct is not directly connected to the condition of the land. But, the Court noted, the recreational immunity statute was designed to immunize people in their capacity as landowners to encourage them to open their land for public use.

Here, the Dmytros’ act of storing timber along their fence line is not distinct from their capacity as landowners. The timber constituted a condition on the Dmytros’ land and their act of putting it there created that condition. Contrary to Konieczny’s assertion, the timber was not unrelated to the condition or maintenance of the land. This situation fits squarely within the parameters of the recreational immunity statute, the Court held.

– Tom Root

Case of the Day – Thursday, May 16, 2019


If you were not following Internet culture (as oxymoronic as that phrase may be) back in 2001, you might not recognize the badly-mangled taunt “All your base are belong to us,” derived from the poorly-translated Japanese video game, Zero Wing. It became a cult classic in 2001, and the melodious strains of the techno dance hit Invasion of the Gabber Robots can be heard in some of the goofier corners of the ‘Net – and there are plenty of those – to this very day.

allyourbaseIn today’s case, an elm tree stood on the boundary line between the Ridges and the Blahas. One can almost imagine Mr. Blaha — who was tired of the mess the elm made every fall — announcing to the tree that “you are on the way to destruction!” But the problem was that, contrary to Mr. Blaha’s belief, all the tree’s base did not belong to him, at least not just to him. Rather, the base of the tree straddled the property line between the Blaha homestead and the Ridges’ house.

Unlike the Colorado decision of Rhodig v. Keck, the Illinois court did not require that the plaintiff show who had planted or cared for the tree. Instead, its analysis was simple: the tree grew in both yards, and thus, the Ridges had an interest in the tree, as did the Blahas. This made the landowners “tenants in common,” and prohibited either from damaging the tree without permission of the other.

The Illinois view, which is the more common approach that Colorado’s “husbandry” test, is the prevailing view in the United States. In this case, the Court issued an injunction against Mr. Blaha prohibiting him from cutting down the tree. For great justice.forgreatjustice

Ridge v. Blaha, 166 Ill.App.3d 662, 520 N.E.2d 980 (Ct.App. Ill. 1988). The Ridges sought an injunction against the Blahas to prevent them from damaging an elm tree growing on the boundary line between their respective properties. After living with the elm for many years, the Blahas tired of the tree’s unwanted effects and decided to remove it with the help of an arborist. The Ridges were not consulted, however, and when arborist Berquist came to remove the tree, plaintiffs objected that the tree belonged to them and that they did not want it destroyed.

Growing_TreeThe evidence showed that the base of the tree extended about 5 inches onto the Ridges’ property, but that the tree trunk narrows as it rises so that at a height of 1.25 feet, the trunk is entirely on Blahas’ side of the line. Photographs were also introduced which showed the tree interrupting the boundary line fence. The trial court found that no substantial portion of the elm’s trunk extended onto the Ridges’ property and that, as such, they did not have a protectable ownership interest in the tree. The Ridges appealed.

Held: The Ridges had a protectable interest. The Court held that the fact that a tree’s roots across the boundary line, acting alone, is insufficient to create common ownership, even though a tree thereby drives part of its nourishment from both parcels. However, where a portion of the trunk extends over the boundary line, a landowner into whose land the tree trunk extends had protectable interest even though greater portion of trunk lied on the adjoining landowners’ side of boundary. That interest makes the two landowners tenants in common, and is sufficient to permit the grant of an injunction against the adjoining landowner from removing the tree.

Move Zig.

– Tom Root


Case of the Day – Wednesday, May 15, 2019


Ah, Cleveland! Renowned for the Rock and Roll Hall of Fame, world leader in the manufacture of duct tape, home to some really good beer and some really bad teams.  Sure, the Best Location in the Nation has the Indians (stinking out the house, as my bride likes to put it) and the Cavs (lost LeBron to LA last year, like that’s done anything for the Lakers), but it does have the Browns. And maybe this is the year

Cleveland's gift to the world

Cleveland’s gift to the world.

Add to that impressive string of achievements one more jewel: Cleveland gave the United States its first small claims court in 1913. The People’s Court was not far behind.

Small claims courts exist in every state of the country, informal courts of very limited jurisdiction (awards of a few hundreds or few thousands of dollars), places where lawyers and formality are rare indeed. It was to just such a place that Mr. Iny dragged Mr. Collom. It seems the roots of Mr. Collom’s tree were breaking up the walls of his neighbor’s garage. Now, any fan of the Massachusetts Rule would have told the neighbor to get out there with a shovel and ax, and cut the offending roots at the property line. Self-help is, after all, as American as … well, as the Massachusetts Rule.

Of course, self-help doesn’t mean you can go onto your neighbor’s property, and it seems the homes and garages in this Long Island town were packed together like sardines. Mr. Iny couldn’t dig up the attacking roots without going onto Mr. Collom’s place, and we’re suspecting from the decision that these two guys were not the best of friends. So Mr. Iny took him to court.

The small claims court awarded him $2,100 for damages. Being of limited jurisdiction, the court couldn’t order Mr. Collom to cut down the tree or dig up the roots, so money was all that was available. Mr. Collom appealed (something you never see happening on TV).

Great Lakes' American pale ale, named for that embarrassing episode in 1969 when the Cuyahoga River burned.

Great Lakes’ American pale ale, named for that embarrassing episode in 1969 when the Cuyahoga River burned – not for the first time – and ended up as an icon for the nascent environ-mental movement. Incidentally, the river’s quite clean these days, and the brew’s a pretty fine pale ale.

The Supreme Court (which in New York State is not the state’s high court, but rather in this case just a court of appeals) reversed. The remedy here, the court said, shouldn’t have been money. It should have been to cut down the tree. But the small claims court lacked jurisdiction to do that. The Supreme Court itself didn’t have such constraints, so it reversed the money damages and instead ordered Mr. Collom to get rid of the tree.

The most interesting part of the decision is the lengthy and well-written dissent arguing that Mr. Iny’s tree claim was in fact a nuisance claim, and that money damages should have been awarded as well. The dissenting judge argued that New York has adopted its own tree encroachment rule, a hybrid of the Massachusetts Rule and Virginia Rule (which itself has since this case been abandoned by Virginia). In New York, the judge concluded, a complainant has to resort to self-help first. If that fails, the courts will intervene if the tree can be shown to be a nuisance — that is, if the tree “is causing substantial interference with the use and enjoyment of plaintiff’s land, that defendant’s conduct is intentional or negligent.”

Of course, the discussion is found in a dissent to a fairly low-level, unreported decision, but it’s a thoughtful analysis of the encroachment rule in a state where precedent on the subject is sparse. Good reading on cold winter night … unless, of course, another episode of Judge Judy is on.

Iny v. Collom, 827 N.Y.S.2d 416, 13 Misc.3d 75 (Sup.Ct. N.Y., 2006). The roots of a tree situated on defendant’s property damaged the wall of a garage on plaintiff’s property. Plaintiff lacked the room to cut the roots out himself without trespassing on his neighbor’s land. He sought to get his neighbor to remove the objectionable tree, which he felt would have been the best way to fix the problem, but the defendant refused. Plaintiff sued in small claims to recover $2,100. The trial court awarded him this sum. Defendant appealed.

Held: The decision was reversed. The Supreme Court noted that a New York small claims court is a court of limited jurisdiction and lacks the authority to grant any equitable remedy, such as directing the removal of a tree. Under the circumstances presented, the Court ruled, “substantial justice would have been most completely rendered had the court awarded judgment in favor of defendant dismissing the action on condition that he remove the subject tree within a specified period of time”. But the trial court couldn’t do that. The Supreme Court could, however, and ordered the case dismissed, conditioned on defendant removing the tree within 60 days.

One justice dissented. He believed that the trial court’s judgment awarding plaintiff $2,100 in damages was based on a nuisance claim, and should have been affirmed. The dissent said the issue faced in the case was whether under New York law, a property owner whose property is being encroached upon and damaged by the roots of a neighboring property owner’s tree may successfully assert a cause of action sounding in private nuisance if the property owner’s resort to self-help is unworkable, and the property owner’s attempts at obtaining assistance from the neighboring property owner to abate the roots’ encroachment have been unsuccessful.

The dissent argued that to establish a cause of action for private nuisance, the plaintiff must show that the defendant’s conduct causes substantial interference with the use and enjoyment of plaintiff’s land and that defendant’s conduct is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the laws governing liability for abnormally dangerous conditions or activities. The interference can be caused by an individual’s actions or failure to act. Where a defendant has been put on notice that his activity is interfering with plaintiff’s use and enjoyment of his land and defendant fails to remedy the situation, the defendant ought to be found to have acted intentionally and unreasonably.

Remember - the dissent is the opinion of the losers

Remember – the dissent is the only the opinion of the losers, amusing but inconsequential.

Furthermore, the dissent argued, “[u]nder New York law, a party is liable for failing to abate a nuisance [under a theory of negligence] upon learning of it and having a reasonable opportunity to abate it.” The question of whether there has been a substantial interference with plaintiff’s use and enjoyment of his/her property is one to be resolved by the trier of fact and involves a review of the totality of the circumstances based upon a balancing of the rights of the defendant to use his or her property against the rights of the plaintiff to enjoy his or her property. The balancing amounts to a risk-utility analysis weighing the social value of the conduct involved against the harm to private interests.

The dissent admitted that while the elements of a nuisance action appear straightforward, in New York there is a paucity of case law addressing nuisances arising from trees or other plant life. Nevertheless, the justice argued, there is substantial case law from jurisdictions outside New York, and he describes in detail the Massachusetts Rule, the Virginia Rule and the Hawaii Rule. The dissent concludes New York has “in large measure, adopted a hybrid approach somewhere between the Hawaii and Virginia Rules in determining the issue of nuisance liability. To sustain a cause of action for nuisance, a plaintiff must resort to self-help in the first instance, which does not appear to be a prerequisite under the Hawaii Rule. Once a plaintiff establishes that self-help failed or self-help was impracticable, he or she must (1) show sensible damage (this kind of “sensible” has nothing to do with common sense, but rather is an injury that can be perceived by the senses), (2) that defendant’s conduct is causing substantial interference with the use and enjoyment of plaintiff’s land, (3) that defendant’s conduct is intentional or negligent, and (4) that the continued interference with the use and enjoyment of plaintiff’s property is unreasonable.

Where a defendant has been notified that a tree was causing damage to plaintiff’s property and refuses to assist plaintiff in taking measures designed to abate the nuisance, the defendant should be found to have acted intentionally or negligently with regard to the nuisance. The unreasonableness of the interference will depend upon an overall balancing of the equities: the injuries to plaintiff and to defendant, the character of the neighborhood, the ongoing nature of the injury, and the nature of defendant’s actions.

Remember, the foregoing – while it may be eminently “sensible” in the meaning of the term – was the opinion of a lone judge, one who was outvoted. It makes for thoughtful reading. But don’t mistake it for the law.

– Tom Root