Case of the Day – Tuesday, March 19, 2019



When is a tree not a tree?

Today’s case has nothing to do with trees, unless you count those awful faux-tree cellphone towers many cities are requiring cellphone carriers to erect. While not arboriculture related, today’s decision illustrates the danger of stretching causation, a risk that has reared its ugly head in tree liability cases before (as we shall see tomorrow).

Captain Robert Johnson was a jailer at the Lee Correctional Institution in South Carolina. As a correctional officer, Mr. Johnson was responsible – among other duties – for seizing cellphones and other contraband from inmates.

In March 2010, an assailant entered Mr. Johnson’s home and shot him six times in the chest and stomach. His wife, Mary Johnson, witnessed the attack. Mr. Johnson survived but underwent many surgeries and months of rehabilitation.

The U.S. Attorney for the District of South Carolina concluded after a thorough investigation that a group of inmates ordered the attack in retaliation for Mr. Johnson’s confiscation of their contraband cellphones and other goods. The U.S. Attorney found that an unnamed inmate had used a cellphone to communicate with the shooter, Sean Echols. That inmate also paid Echols. Echols eventually pled guilty to conspiracy to use interstate facilities in murder-for-hire under federal law.

This is where the case begins to provide a lesson for those of us interested in negligence. One would think that the wrongdoers would be sued – the conspirators, the shooter – but the Johnsons knew full well that the inmates didn’t have anything, and the shooter, who’s now serving 20 years, was unlikely to have much of a pocketbook, either. The challenge for the Johnsons’ attorney was to find someone with a deep pocket.

He found someone (or several someones). Let’s shoot the messenger, or – in this case – the people who owned the medium used to delivered the conspirators’ messages. Using a “but for” analysis that would have impressed Mrs. Palsgraf, the Johnsons’ lawyer figured that but for the fact that cellphone towers were located near the prison, there wouldn’t have been any cellphone calls from the prison, and thus, no one could have called the shooter to importune him to shoot Capt. Johnson. For that matter, without cellphones, the prisoners wouldn’t have been stirred up to begin with. So who should we sue? The cellphone companies, of course, as well as the guy who owns the land the cell towers are sitting on, just for good measure.

Of course, this kind of attenuated reasoning is what makes fat people sue McDonalds for selling Big Macs (no Big Macs, no temptation, no overeating, no fat people), or why a man sued Walmart because a plastic bag of groceries split in the parking lot, a can of LaChoy chow mein fell on his wife’s foot, the foot became infected and she died. Really.

It’s too bad Capt. Johnson got shot, and we’re all glad he recovered. But to conclude that cell carriers should pay is to stretch causation to the absurd. I blame the Johnsons’ lawyer, who should have known better.  Perhaps a copy of Prosser on Torts should fall out of his briefcase onto his foot, and… well, you get it.

Johnson v. American Towers, LLC, Case No 13-1872 (4th Cir., Mar. 25, 2015). Robert Johnson, a prison guard in Bishopville, South Carolina, was shot multiple times in his home. The ensuing investigation revealed that the attack was ordered by an inmate at the prison where Mr. Johnson worked, using a contraband cellphone. Mr. Johnson survived the attack and, with his wife, later brought suit. The Johnsons did not, however, sue the typical defendants – the shooter, a prison inmate or an employee. Rather, the Johnsons sued several cellular phone service providers and owners of cell phone towers, seeking to recover under state-law negligence and loss of consortium theories. The Johnsons alleged that the cell providers “were aware of the illegal use of cellphones by inmates using signals emitted and received at the defendants’ towers” and that “this use created an unreasonable risk of harm.” According to the Johnsons, the defendants failed to take steps to curb illegal cellphone use.

In the district court’s view, “the Johnsons’ argument suggests only a desire to conduct a fishing expedition to determine if there is any factual basis for asserting claims against any Defendants… This is not enough.” Thus, the trial court dismissed the case on several technical issues, the most significant of which was that the complaint, even if true, could not make the cellphone companies liable.

The Johnsons appealed.

messenger150330Held: The Johnsons’ claims fail due to the “speculative nature of their allegations.”

The Court of Appeals reviews rulings on motions to dismiss de novo, accepting all the factual allegations in the complaint as true, and drawing all reasonable inferences in the Johnsons’ favor.

Even reviewing the lower court’s decision according to this relaxed standard, the Court concluded that “the Johnsons have failed to allege sufficient facts to set forth a plausible claim for relief.” A complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face. A properly pleaded complaint must offer more than “’naked assertions’ devoid of ‘further factual enhancement.’” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. In other words, a complaint must include “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

The Johnsons’ complaint contained the bare assertion that “an inmate at the prison using a cellphone ordered a coconspirator outside of the prison to kill Captain Johnson.” The Fourth Circuit Court of Appeals held that the Johnsons had failed to offer “any further factual enhancement to support their claims against the Defendants. For example, the Johnsons’ complaint does not identify the wireless service provider who carried the alleged call or when the alleged call occurred. Without more factual allegations, it is impossible for a district court to assess the Johnsons’ claims.”

The Court said that the complaint would leave the cellphone carriers unable to determine whether it carried the alleged call without more identifying information.

The appellate court said that the Johnsons were free to file a new lawsuit if they could come up with additional information, because the district court dismissed the complaint without prejudice. However, “as currently drafted… the complaint resembles a prohibited fishing expedition rather than a properly pleaded complaint.”

– Tom Root


And Now The News …

Washington, DC, WTTV, March 18, 2019: Tracking the weather’s impact on the cherry blossom trees

Thanks to that warm-up last week, green buds are sprouting on cherry blossom trees around the Tidal Basin on the National Mall! But the first sign of spring has some people barking up the wrong tree. If you’ve seen budding blossoms, National Park Service officials say they were likely magnolia blooms because the cherry trees have little green buds that will reach peak bloom during the first week of April. On Monday, FOX 5 talked to some tourists who say they are disappointed they won’t be here to see the iconic cherry blossoms. The NPS says the buds are a bit behind last year and this current cold spell is slowing things down a little bit more, but officials say not to worry because this is totally normal. The trees have reached Stage 2 of the six bloom cycles, which means florets are visible, whereas magnolias are almost at full bloom, but that’s the only thing that sets these two flowers apart…

Charlestown, South Carolina, WCSC-TV, March 18, 2019: James Island homeowners frustrated over tree trimmings

James Island homeowners are frustrated with SCE&G after two years of fighting over their tree trimmings. Neighbors living on Riverland Terrace say it’s an ongoing issue. Teresa Gill said she felt threatened when an SCE&G worker told her they were going to tow her car. Gill said SCE&G workers showed up to her neighborhood to trim the trees as part of maintenance they do every five years so they’re not in the way of power lines, but she said they showed up unannounced and her car was parked right under a tree. She said they went up to her property around 3 or 4 times telling her to move the car and they had permission from the Charleston County Sheriff’s Office to do so. “I called the police, the sheriff’s office, and someone came out and told them they didn’t have the right to tow my car. It wasn’t parked illegally, and asked me if I can have it moved by morning,” said Gill. Gill said this time she wasn’t trying to block the trees, but other people in the area are trying to protect the trees by parking in front of them…

Pasadena, California, KPCC Radio, March 18, 2019: New Edison tree-trimming campaign to reduce fire risk is getting local pushback

When work crews hired by Southern California Edison cut back the canopy of shade trees in unincorporated Altadena last month, many residents of the foothill community were angered that their trees were left unsightly and mangled. Altadena residents’ startled and angry responses to the cutting could be repeated in the other fire-vulnerable parts of Edison’s vast service area — because over the next two years, the utility is mounting a massive new tree-trimming campaign. It’s aimed at reducing the risk that its power lines might spark new fires — in which case, Edison could have to pay billions of dollars in liabilities…

Los Angeles, California, KCBS-TV, March 18, 2019: Woman Plans To Save 400-Year-Old Oak Tree That Fell Down In Her Yard

Pasadena homeowner, Betty Lujon, says the centuries old oak tree had been coming down gradually when it finally touched down in her backyard last week. To her surprise, the tree remained rooted and alive and she intends on keeping it that way. “I would never kill it. In a million years, I wouldn’t let it die. The roots are all there. I think, and they think too, the arborist says it will live and do alright,” Lujon told CBS’ Hermela Aregawi. According to the 82-year-old, the oak tree has provided shade and joy for parties and weddings for nearly 50 years, and she wants to save it for future generations to enjoy…

Portland, Oregon, Oregon Public Broadcasting, March 17, 2019: Feds Investigate Oregon Company’s African Rainforest Hardwood Products

Roseburg Forest Products, one of the country’s leading manufacturers of particleboard and plywood, has ended production and sales of certain lumber products in the midst of a federal investigation into whether the wood came from the illegal logging of African rainforests. U.S. Immigration and Customs Enforcement confirmed to OPB that its Homeland Security Investigations division has an ongoing investigation into illegal imports of okoumé, a wood used for plywood and veneer siding. The Lacey Act prohibits the trade of plants and wildlife taken, stored or transported illegally. Okoumé hardwood trees grow in the rainforests of west-central Africa, where the deforestation of habitat for endangered species is drawing the concern of conservationists and scientists alike. Okoumé is used in some of Roseburg’s Real Wood Siding products, which are sold by major retailers including Home Depot and marketed as “environmentally friendly…”

Seattle, Washington, KIRO-FM, March 17, 2019: UW cherry trees close to blossoming

A short burst of spring-like weather may have you wondering about the cherry blossoms at University of Washington. Short answer: they’re not quite ready ready. The school said on Tuesday that peak blossom time is about a weekend away. That said, a trip to UW’s Quad this weekend won’t disappoint. The blossoms are close. Historically, the blossoms usually peak the third week in March, but heavy snow in February may have contributed to a later showtime. “Temperature and amount of sunlight are the big factors that determine bloom timing,” campus arborist Sara Shores said in a news release. “Once the trees reach peak bloom, then we hope that the temperatures drop and the air is fully still for two or three weeks. That will help the blossoms last longer…”

Redding, California, KHSL-TV, March 17, 2019: Concern grows about trees damaged during Camp Fire

The tree pictured above is marked ‘P2’ by PG&E tree crews, meaning it is supposed to be taken down. The property owners are conflicted. The lot it is on is a small one off of the Paradise Memorial Trailway. There was a large house on one side of the large oak, and a smaller “granny” house on the other side. Both homes burned, so the tree has obviously been damaged. Is the tree dead? Is it too close to the power lines? Should it be left standing for a few years just in case it can survive? Many people who lost homes during the Camp Fire are now complaining that their properties have been clearcut. Others complain that damaged trees on a neighbor’s property might fall and destroy their homes that are still standing, and they want the trees removed. Some tree advocates are lobbying for some of the trees to be left standing until they can really determine their viability. The suggestion has been three years for oaks and two years for conifers. Arbor Day is usually celebrated in early April with the planting of trees, but it’s too early for that on many burned properties scarred by the Camp Fire…

Save Delete, March 17, 2019: The importance of tree removal for a beautiful home

Trees are nature’s gift to heal, protect and add beauty where they are. However, when a tree is past its prime and nears the end of its life, or it undergoes unsupervised growth or sustains damage, it becomes a liability. Tree removal becomes a necessity when you want to safely remove a tree without causing harm to it or the surroundings. Arborists or professional tree removal service providers render their service for tree removals. They can also assess the tree for its overall condition, and its requirements such as nutrients and alternative solutions. Tree removal, especially in an urban environment involves careful planning and execution. Professionals can do so by carefully removing the plant without any disturbance to the human as well as the tree population in its proximity. Apart from human expertise, highly sophisticated technology is an essential requirement to execute the removal successfully. It is quite possible that an established company conducts the removal using state of the art and expensive tools and equipment. This is why any random person driving around in a pickup truck plastered with posters and flyers and saw will not do. Any adult with a saw can cut a tree easily, but is it safe for the tree as well as its surroundings? You do not buy fertilizer from any one who has not tested your soil. Why should trees be treated differently?

Richmond, Virginia, WWBT-TV, March 14, 2019: Tree woman was worried about falls on her deck; who foots the bill?

A common legal question played out in a real-life drama in Henrico County. Nakita Lynch had been complaining about a tree in her neighbor’s yard she was worried would fall and cause damage. Well, Thursday, that’s exactly what happened. “I’m so glad I wasn’t outside because I usually come out on the deck just to look around,” Lynch said. “The way it hit, it probably would have hurt us. The way it fell it probably would have hurt us very bad, very bad.” Lynch had not complained to her neighbor about the tree because a different tree in that same neighbor’s yard had fallen two years ago and bad blood over that incident has led them to no longer speak with one another. “She just stopped speaking to me so that’s why I never said anything to her about the tree,” Lynch said. There is recourse for homeowners who suffer damage from a neighbor’s tree, but they have to be proactive and document their concerns before the damage occurs. “Had she given notice to the other property owner that the tree posed a risk to her property and had it documented, potentially she could collect under that lady’s liability insurance or be reimbursed for her damages,” State Farm Insurance agent Michael Fisher said…

Raleigh, North Carolina, WRAL-TV, March 14, 2019: Missouri man practices patience with family walnut tree farm

On a February weekend, in freezing temperatures, 72-year-old Mike Trial is dressed in work boots and jeans sawing his trees into boards. The 200 acres he owns west of Columbia are full of rolling hills, wooded patches and 50 acres of eastern black walnut trees planted in neat rows. The trees will be dormant until April or May, but there’s still plenty to do. For 50-plus years, the Trial family has spent the winter months painstakingly preparing their tree farm for spring, the Columbia Missourian reported. “The work never ends on a tree farm,” he said. Trial knew when he took control of his family’s farm in 2007 that it would be an exercise in patience. His father, George Trial, started planting eastern black walnuts in 1966 at the age of 56. It wasn’t until 2016 — years after his father died — that Trial finally harvested the first of his father’s walnut trees. Of the 25 trees he cut, only 10 were of high enough quality to be sawed into boards…

Cleveland, Ohio, WOIO-TV, March 14, 2019: Here’s how to inspect your trees to see if they’re strong enough for Northeast Ohio’s severe weather season

Winter in Northeast Ohio was a windy, and as we head into severe weather season, you may want to do a visual inspection of your trees to make sure they don’t crash onto your home. Experts warn to be on the look out for a particular beetle. “The ash trees have been getting killed off by the emerald ash borer,” according to Jeff Mueller, the Lawn and Garden Manager at the Petitti Garden Center in Strongsville. Experts warn to be on the look out for a particular beetle. “The ash trees have been getting killed off by the emerald ash borer,” according to Jeff Mueller, the Lawn and Garden Manager at the Petitti Garden Center in Strongsville. Here’s what to look for in the case of the ash borer: • Dead branches on the top of the tree; • Branches that didn’t leaf out last year; • Split bark on the trunk; • “D” shaped holes where bark has split and usually sap oozing out…

Oreno, Maine, University of Maine, March 14, 2019: As climate continues to warm, study finds several barriers to northward tree migration

Extensive land development, invasive species and too many deer may make it difficult for tree migration to keep pace with climate change in the Northeast, according to newly published research. The study, led by Kathryn Miller, a plant ecologist with the National Park Service Inventory and Monitoring Division, and Brian McGill, a University of Maine professor of ecological modeling, analyzed U.S. Forest Service data covering 18 states from Tennessee to Maine. The researchers found a large swath of land in the mid-Atlantic states that was severely lacking in forest regeneration. Even where present, species regenerating on the forest floor were different than those making up the forest canopy. Earlier studies have raised concern about regional regeneration, but this is the first to document the sheer extent and severity of the problem, according to Miller, who recently earned a Ph.D. from the UMaine School of Biology and Ecology. Coining the term “regeneration debt” to describe this phenomenon, the researchers found the region simultaneously faces challenges of increasing invasive plants, deer overabundance and heavy land development by humans…

Hartford, Connecticut, WFSB-TV, March 13, 2019: Eversource invests millions to trim trees along 4,000 miles of electric lines

Eversource said it is investing millions of dollars to trim trees near power lines. The power company said it is investing $83 million to trim trees along 4,000 miles worth of electric lines. It cited last year’s back-to-back nor’easters and spring tornadoes as the reason to fortify its electric distribution system. That wasn’t all. “The long-lasting effects of the drought that plagued the region over the last several years, coupled with consecutive infestations by the gypsy moth and the emerald ash borer have weakened trees around the state,” said Alan Carey, Eversource vegetation management manager. “Removing hazardous trees is vital to ensuring our customers have energy for every moment of their lives. Our team of licensed arborists are experts at identifying vulnerable trees that threaten the electric system and they work closely with community leaders to carefully balance the aesthetics of neighborhoods and the need for reliability…”

London, UK, Daily Mail, March 13, 2019: Golf club greenkeeper, 35, was found dead by his girlfriend after a poplar tree he was cutting fell on top of him and fractured his skull, inquest hears

A golf club greenkeeper died after a poplar tree he was cutting fell on his head and fractured his skull, with his girlfriend and her father later finding his body. Father-of-one Martin Davenport, 35, most likely died instantly when the tree hit him in Christleton, Cheshire on January 7 last year. A jury inquest at Warrington Coroner’s Court yesterday was told that Mr Davenport suffered a fractured skull and brain haemorrhage. His body was later discovered by his girlfriend Megan Grindley and her father when they went to search for him. A jury inquest is required by law if a death occurs following an accident at work. Mr Davenport, from Kelsall, Cheshire, worked as a greenkeeper at Eaton Golf Club in Waverton but was acting as a self-employed contractor when he was hired to cut down poplar trees. Health and Safety Executive inspector Simon Bland said the tree involved was leaning, causing it to act like a ‘spring’ with compression on one side and tension on the side nearest Mr Davenport…

Washington, Indiana, Times Herald, March 13, 2019: Tree harvest at Glendale is about habitat

Visitors to the Glendale Fish and Wildlife area have noticed something unusual lately. The area, which is about woods and water, has had some trees coming down. State officials say they have some good reasons for the work. “The trees were taken down to create wildlife habitat,” said Tara Wolfe, communications director with the Indiana Department of Natural Resources. “We also had some specific trees cut down to ease the transition from forest to field.” By taking out the trees and putting in some shrubbery, state officials say they are improving the habitat for a lot of small game and birds. In particular, the move is considered beneficial for rabbits, quail and song birds. Wild turkeys also benefit from the improved habitat. Besides improving the habitat the removal of some of the less desirable trees improves the forest. “When we take the trees out it allows the sunlight to reach the forest floor,” said Wolfe. “That gives us an opportunity to grow more oak and hickory trees in the woods.” Officials say the work at Glendale is not unusual. They call it part of the regular land management to improve the quality of wildlife habitat…

San Diego, California, KSWB-TV, March 13, 2019: Family of motorcyclist injured by fallen tree seeks answers

The family of a Vista man involved in a crash with a fallen tree in Fallbrook Friday are seeking answers about what happened as the man remains in critical condition. California Highway Patrol officers say a fallen tree near South Mission Road and West Elder Street led to a horrible crash involving 41-year-old Sergio Mendez, who was on his motorcycle. Investigators believe the tree fell right in front of Mendez rather than right on top of him but can’t determine exactly how the crash happened. Mendez’s family is also struggling to put the pieces together. “We do want answers because we really don’t know other than a tree filling up on my brother but we don’t know how it happened, why it happened, or if it could’ve been prevented, or anything,” said Ali Saad, Mendez’s brother. Strong winds had already caused more than one downed tree in the area the same day. “Maybe 10 minutes prior he did call my sister-in-law to tell her I’m going to be a little bit late because there’s a tree down,” said Saad…


Case of the Day – Monday, March 18, 2019


We don't know him ... but he's reputed to be good at what he does.

We don’t know him … but he’s reputed to be good at what he does.

Anyone who has suffered through more than an hour of daytime television is familiar with personal injury lawyers’ ads. One of Ohio’s PI stars is Tim Misny, whose bald pate is immediately recognizable to any Buckeye State dweller with a TV set, along with his trademarked slogan, “I’ll make them pay.”

Tim cautions his would-be clients that the slogan isn’t a guarantee. It’s too bad that Sara Burnett’s Colorado attorney – who was not Tim Misny, and for that matter, may not even have been bald – didn’t tell her as much. Sadly for her, after five years of litigation, she got nothing.

Sad for her, but not for the public, whose pain in the pocketbook is all too often forgotten. It seems that Sara and her friend Mackenzie went camping at a suburban Denver state park, just a pleasant July evening under the cottonwoods. Unfortunately for Sara, one of the cottonwoods she camped under picked that same night to shed a branch. A big branch. The falling limb demolished Sara’s tent and badly hurt her head and back. Fortunately, Mackenzie was able to drive both of the young women to the hospital.

For Sara, under the cottonwoods – unlike the book – did not have a happy ending.

     For Sara, “under the cottonwoods” – unlike the book – did not have a happy ending.

Sara then embarked on a campaign to make the State of Colorado pay for her injuries. The State defended on the grounds that it was immune from suit.

The notion of governmental immunity, fully known as “sovereign immunity,” traces its origins from early English law. Back then, the sovereign – that is, the king – was deemed incapable of committing a legal wrong. Thus, his majesty (and by extension his entire government of officials, ministers, clerks and knaves) was immune from civil suit or criminal prosecution.

The doctrine survives today in the United States. The Federal government, all state governments and most political subdivisions thereof are immune from liability for the conduct of their officers, agents and employees acting within the scope of their employment. Unsurprisingly, there are exceptions, cases in which the government has permitted itself to be sued. A good example is the Federal Tort Claims Act, which permits certain types of actions (such as negligence) to be brought against Uncle Sam, subject to some limitations.

Colorado has a statute similar to the FTCA, known as the Colorado Governmental Immunity Act. Generally, courts require that statutes like the FTCA and CGIA be strictly construed in favor of the sovereign and may not be enlarged beyond the waiver its language expressly requires.

In Sara’s case, the Colorado Supreme Court observed at the outset that “governmental immunity is sometimes inequitable, but … governmental  entities provide many essential services that unlimited liability could disrupt or make prohibitively expensive … The balance between these two competing interests ‘is for the legislature alone to reach’.”

The CGIA held that the State retains immunity for “an injury caused by the natural condition of any unimproved property.” This seems to pretty much slam the door of Sara claiming that a branch falling out of a tree should open the Colorado treasury to her. But her lawyer was crafty. He learned that the Park employees sometimes trimmed trees that required it. Thus, he argued, the trees ceased being in “natural condition” because the State altered that condition through incidental maintenance. Plus, because the State built the campsite next to and under the trees, those trees became “incorporated” into improved property.

Works in real estate ... for tort claims against the State – not so well.

Works in real estate … But for tort claims against the State?  Not so well.

The Colorado Supreme Court rejected Sara’s claims. Parsing the voluminous history of the CGIA, the Court concluded that the Act did not permit the “spatial analysis” she proposed. In other words, it doesn’t matter how close to the improved facilities an unimproved natural object – like a cottonwood – might be. What matters is what caused the injury. Here, it was a branch from an unimproved tree in its natural condition. Its location next to a campground did not alter its natural state.

For that matter, neither did the State’s occasional cleanup of that tree and others like it when dangling limbs caused Park employees to trim and haul away detritus. The State had no duty to do so, the Court said, and the fact that it may trim on a volunteer basis did not convert what was not a duty into a legal obligation.

The Court’s decision is a interesting tutorial on governmental immunity, and on the balancing of competing interests in making unimproved land available for recreation and protecting the public from hazards created by governmental action. As well, it’s a reminder that sometimes, no lawyer is good enough to “make them pay.”

Burnett v. Dept. of Natural Resources, 346 P.3d 1005 (Supreme Court of Colorado, March 23, 2015). One summer night, Denver area residents Sara Burnett and Mackenzie Brady were camping at suburban Cherry Creek Park. The pair chose a campsite which included a utility hookup, a parking area, a picnic table, and a level dirt pad, pitching their tent under a canopy of four mature cottonwood trees that flanked the campground. Early the next morning, while Burnett and Brady were sleeping inside their tent, a tree limb from one of the cottonwoods fell on their tent. The blow seriously injured Sara. Mackenzie suffered minor injuries, but was able to drive Burnett to the hospital.

Due to the density of the canopy, Park employees who subsequently investigated the accident could not determine the source of the fallen tree limb.

Sara sued the State of Colorado Department of Natural Resources, Division of Parks and Outdoor Recreation for negligence. She relied on section 24-10-106(1)(e) of the Colorado Government Immunity Act to argue that the Park was a “public facility” and the branches overhanging the campsite constituted a “dangerous condition” of it. The State moved to dismiss, asserting sovereign immunity under a separate provision of the CGIA, by which a public entity retains immunity for “an injury caused by the natural condition of any unimproved property.” The parties agreed that the improved campsite was a “public facility” under the CGIA, and that the trees adjacent to it originated on unimproved property.

The trial court applied Rosales v. City & County of Denver, 89 P.3d 507, 510 (Colo. App. 2004), determining that the sole issue was whether the trees adjacent to Sara’s campsite constituted a “public facility.” The trial court conducted a two-part Rosales analysis, concluding that the trees were not integral or essential to the campsite and thus could not constitute part of a “public facility” under § 24-10-106(1)(e). The court of appeals agreed, holding as well that because the trees were a “natural condition of … unimproved property,” § 24-10-106(1)(e) precluded Sara’s suit.

The suburban Denver state park where the mishap occurred.

The suburban Denver state park where the mishap occurred.

Sara appealed to the Supreme Court of Colorado.

Held: The State is immune from liability under the CGIA.

In the CGIA, a public entity waives its immunity to suit for an injury arising from a “dangerous condition of any .. public facility located in any park” it maintains. But the public entity retains immunity for injuries “caused by the natural condition of any unimproved property, whether or not such property is located in a park …” Therefore, the Supreme Court said, “irrespective of what constitutes a public facility, the government retains immunity here if the tree at issue falls within the ambit of the natural condition of unimproved property limitation.”

The CGIA does not define “natural condition of any unimproved property.” Sara argued that, the trees were in their “natural condition” until the State altered their condition through incidental maintenance. Plus, because the State built the campsite next to and under the trees, the State “incorporated” the trees into improved property. Therefore, she argued, the trees ceased to be a natural condition of unimproved property. The State, on the other hand, reasoned that where trees are native flora to property, their character as a “natural condition of unimproved property” remains regardless of incidental maintenance or their proximity to improvements on the land. Because the statute lacked a definition, the Court looked at the substantial amount of CGIA legislative history.

Prior to 1971, Colorado had no governmental immunity statute. Rather, immunity existed only as a court-made doctrine. That year, the Colorado Supreme Court “held that judicially imposed sovereign immunity was inappropriate and abolished such immunity at every level of government.” The legislature responded the next year with the CGIA. Fourteen years later, municipal insurance rates had skyrocketed. In response, the General Assembly rewrote the statute to afford the government greater protection against liability. A report supporting the amended law illustrated the legislative intent: first, it distinguished between dangerous conditions arising from man-made objects and natural objects; second, it explained that immunity should turn on the precise mechanism of the injury; third, it expressed the intent to exempt public entities from a duty to maintain any natural conditions; and fourth, it stated the policy goal of encouraging public entities to make unimproved, government-owned property open to the public without exposing those entities to the expense of defending claims brought by people injured while using the property.

Cottonwoods in the park ... If you know cottonwoods, you know how they like to shed.

Cottonwoods in the Park … If you know cottonwoods, you know how they like to shed.

Based on the CGIA’s legislative history, the Court concluded that “the legislature intended to retain immunity for injuries caused by native trees originating on unimproved property regardless of their proximity to a public facility …” Applying its interpretation to this case, the Court concluded that because a branch from trees originating on unimproved property caused Sara’s injuries, the natural condition provision of the CGIA precludes her suit. As for Sara’s argument that the statute can be interpreted that the State waives immunity for injuries caused by natural objects that are contiguous to improved property, the Court concluded that nothing in the legislative history indicated that the General Assembly intended the “spatial analysis” for which she was advocating. A rule that a public entity waives immunity for injuries that are caused by natural conditions and occur on improved property would create “a literal line drawing problem,” requiring courts to adopt an arbitrary rule to determine when natural objects – such as trees – sit on improved property and when they do not. The Court tersely noted, “We are not at liberty to create this third category.”

Because the CGIA retains immunity for injuries caused by a “natural condition of … unimproved property,” immunity turns on the mechanism of Sara’s injuries, not her location when the injuries occurred. The Court found that the cottonwoods bordering Sara’s campsite were “native vegetation of the unimproved property,” and the branch at issue fell from one of those cottonwoods. “Thus,” the Court held, Sara’s “injuries were caused by a natural condition of unimproved property, such that the natural condition provision precludes her suit.”

In reaching that holding, the Court rejected Sara’s argument that the State altered the natural condition of the trees by having previously pruned them. “Under the CGIA,” the Court ruled, “the State did not have any duty to prune the limbs, nor did it assume a duty to continue to prune them once it chose to do so … An assumed duty would be contrary to the public health and safety, as it would discourage the State from undertaking any pruning whatsoever.” The Court refused to create a rule “that would transform natural conditions of unimproved property into improved property where, for the public health and safety, a public entity performs such incidental maintenance.”

In what was little more than a footnote at the end of the decision, the Colorado Supreme Court observed that “the trial court and court of appeals relied upon the two-part analysis delineated in Rosales … first, was the tree an “integral” part of the public facility …” and “second, was the tree “essential” for the public facility’s intended use?” Noting that “these questions do not originate in the CGIA,” the Court overruled its 11-year old Rosales rule.

The Court admitted that Sara’s “injuries are tragic,” but it concluded that “eliminating governmental immunity in this case would only compound the tragedy by sidestepping legislative intent and providing a disincentive for the government to facilitate access to public lands.”

– Tom Root


Case of the Day – Friday, March 15, 2019


Once the skunk lands in the jury box, the smell tends to follow ... no matter what the judge may say.

Once the skunk lands in the jury box, the smell tends to follow … no matter what the judge may say.

Trial courts often must give juries instructions to disregard certain evidence they have heard in reaching their verdicts. As a court once described it, “if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.

Today’s case starts out to be pure California … a landslide, a muddy pool, emotional distress because of a dirty carpet. Oh, the humanity! The injured Ms. Rahmanian claimed that her neighbor Nelson had suffered a water leak, and the leak damaged her property. The extent of the damage was grievous, Ms. Rahmanian pled, well over $200,000. Her house was a mess, carpets ruined, pool filled with mud … she demanded justice!

But it turns out that Ms. Rahmanian had already gotten twenty grand from her insurance company, and she hadn’t used a penny of it to dry out carpets, clean walls, empty the pool — the usual cleanup performed to keep a bad mess from becoming worse. The defendant managed to sneak that piece of evidence into the record, and as a result, the plaintiff only collected about $110,000, just about half of what she wanted. How could she ever clean the drapes on that?

People damaged by the negligence of others have a duty to mitigate. That means that they are expected to take reasonable steps to minimize the damage. It only stands to reason. The courts will try to put the innocent injured back in the position they occupied before the damage. But the innocent aren’t expected to sit on their hands, either … or spend money intended to clean up the damage on mimosas at the Beverly Wilshire.

Ms. Rahmanian complained on appeal that the jury shouldn’t have heard about the insurance money. She was literally correct. Who got what from their insurers is irrelevant to whether a party was negligent, and whether that negligence caused damage. But the Court of Appeals clearly lacked sympathy for her. It held that — while the evidence about the insurance money shouldn’t have come in — Ms. Rahmanian didn’t suffer for it, because the trial court told the jury to disregard it.

Never mind that it might be hard for the jurors to ignore the fact that a poor pool-deprived supplicant like Ms. Rahmanian already had collected some dough from her insurance company and spent it on … well, pedicures, poodles in purses, whatever Californians fritter money away on when they don’t mitigate. The Court did some rough justice here, something that happens more often than you might think.

To hear Ms. Rahmanian tell it, her bungalow was fouled beyond salvation.

To hear Ms. Rahmanian tell it, her bungalow was fouled beyond salvation.

Rahmanian v. Nelson, Not Reported in Cal.Rptr.3d, 2007 WL 1123983, 2007 Cal. App. Unpub. LEXIS 3060 (Cal.App. 2 Dist., Apr. 17, 2007). Nelson’s house is located above the house owned by Sharon Rahmanian. A water leak on Nelson’s property caused the slope located at the back of her land to collapse, leading to a mudslide that covered her pool and patio area. She sued Nelson for negligence and trespass.

Nelson did not dispute liability. The primary issue at trial was the amount of damages. Rahmanian’s witnesses testified that the mudslide caused damage to the pool and patio, and to the French doors at the back of the house. In addition, mud or muddy water entered the house, causing damage to everything located near the doors, including carpets and drapes. Rahmanian’s expert testified that to repair the slope would cost about $75,000, plus $24,440 to re-landscape the slope. The cost to repair the pool and house would added another $134,000, and she lost use of the pool to the tune of $1,153 a month. For good measure, she complained of damages from physical symptoms and mental suffering she had experienced since the mudslide.

Nelson’s witnesses said the mudslide could not have caused much damage to the patio or pool. They also questioned whether water or mud caused any damage to the interior of the house. Nelson’s experts estimated it would cost $89,371 for repairs and re-landscaping. During the trial, there were three references to $20,000 Rahmanian had already received from her insurance carrier, but had not used to repair any damage.

The jury awarded Rahmanian $80,000 for slope repair; $21,000 for other property damage; $5,000 for loss of use; and $4,000 for emotional distress. Not satisfied with this amount, Rahmanian moved for a new trial, which the court refused. She appealed.

Held: The trial court shouldn’t have let testimony about the $20,000 in insurance money in, but that wasn’t enough to give Ms. Rahmanian a new trial. Under California’s collateral source rule, if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.

Too many mimosas, too little cleanup.

Too many mimosas, too little cleanup.

In order to permit such evidence to be introduced, the trial court must first weigh the relevance and probative value of evidence of plaintiff’s receipt of collateral benefits against the inevitable prejudicial impact such evidence is likely to have on the jury’s deliberations. Here, that advance weighing was not done. But, the Court said, Rahmanian was not prejudiced. The jury asked the court for guidance on the impact of the $20,000 during deliberations, and the court instructed the jury to ignore what it had heard repeatedly. Ms. Rahmanian did not object to the language of the court’s instruction: in fact, her counsel supplied the key wording used by the court, so she was not allowed later to raise an objection concerning its clarity.

Because the court, with the assistance of counsel, was able to intervene during deliberations to prevent the jury from acting on the misleading information it received concerning the $20,000, the jury’s verdict could not have represented an improperly discounted award. Thus, the appellate court said, no miscarriage of justice occurred.

The trial court also gave an instruction to the jury that Ms. Rahmanian had a duty to mitigate the damage, that is, to take immediate steps after the landslide to minimize the long-term effects. Ms. Rahmanian maintained that the only evidence to support the instruction was the improperly admitted evidence of the $20,000 insurance money. The Court said that because the trial court had given a curative instruction about the insurance money, the appellate court presumed the jury followed the court’s final directive to “not consider” the $20,000 in calculating damages.

– Tom Root


Case of the Day – Thursday, March 14, 2019


One of the back room perks of running a tree law website is that we can see what kinds of searches lead readers to our little patch of the Internet. Probably the top search is some kind of encroachment issue, where neighbor’s tree is overhanging the searcher’s property, or a dead tree next door is about to fall on the searcher’s roof… that kind of thing.

But a perennial also-ran is the irate homeowner or tree-hugger complaining about a swarm of cretins wielding chainsaws, trimming trees for the benefit of power lines exercising the same care and restraint William T. Sherman showed when he toured Georgia in the fall of 1864.

There are two immutable truisms to remember when the power company tree-trimming contractors come around. First, the odds are very high that the power company does own an easement across your property that lets Leatherface and his buddies butcher your trees. Second, if you want to stop the sylvan massacre, you will soon discovery that – as the Borg liked to say – resistance is futile.

Today’s case, from California, illustrates just how immune utilities and their contractors are to the entreaties of the homeowners whose lands the easements cross. The Sarales, who ran a walnut farm, sued to stop Pacific Gas & Electric from excessively trimming their walnut trees. The California Court of Appeals agreed with them that it had jurisdiction to determine whether PG&E’s easements across their lands were valid. But once the easements were held to be valid, the courts’ inquiry ended. Any complaint that PG&E was being unreasonable in its use of the easement, that is, in how enthusiastically it was hacking up the trees within the easement, could only be done in a proceeding before the California Public Utilities Commission.

Cutting a swath through Georgia prepared General Sherman for a career as a tree trimming contractor for an electric company.

Such a hearing with the Commission, pitting a homeowner against a public utility before a government agency that regulates that utility is akin to putting a mouse between two cats. But such is the law almost everywhere.

Sarale v. Pacific Gas & Electric Co., 117 Cal.Rptr.3d 24, 189 Cal.App.4th 225 (Ct.App. 3rd Dist., 2010). The Sarales own farmland across which PG&E claimed an easement land for electric transmission lines pursuant to a 1915 written grant. The right-of-way gave PG&E “the right of erecting, constructing, reconstructing, replacing, repairing, maintaining and using for the transmission and distribution of electricity… and also a right of way [giving PG&E] full right and liberty of cutting and clearing away all trees and brush on either side of said center line whenever necessary or proper for the convenient use and enjoyment of the said line of towers and wires and right of way…”

Until November 2004, PG&E periodically trimmed the Sarales’ walnut trees for about 10 feet on either side of the lines. After November 2004, however, over the Sarales’ protest, PG&E began trimming the walnut trees up to 20 feet away from the lines, rendering unproductive what had been “producing trees.”

The Sarales sued PG&E, which defended by saying it was “legally mandated to take appropriate measures to maintain vegetation clearances and, accordingly, we have trimmed and continue to trim all trees that may interfere with our electric power lines-pursuant to both our rights under our easement/ right of way as well as the rules and regulations under which we are required to operate.”

The Sarales denied the existence of a utility easement on their land, but said if the easement were found to exist, PG&E should be “authorized by law to trim no further than the distance established by the court, radially measured at time of trimming, and not further, without [the Sarales’] permission.” They sought an injunction preventing PG&E from “destroying vegetation or trimming crops under cultivation…” and demanded damages for trespass.

PG&E responded that California Public Utilities Code § 1759 barred the court from exercising jurisdiction over the Sarales’ claims because to do so would interfere with “an ongoing supervisory or regulatory program over which the public utilities commission has sole jurisdiction.”

PG&E’s contractors were only reasonably managing the easement.

The trial court agreed with PG&E, reasoning that the acts alleged by the Sarales “involving and related to… PG&E’s vegetation management practices under and around its power lines, fall within the commission’s regulatory jurisdiction. This court therefore has no jurisdiction over the Sarales’ first amended complaint… Before proceeding against PG&E in superior court… the Sarales must first seek a finding from the public utilities commission that PG&E’s vegetation management practices are excessive or otherwise out of conformance with regulations.’

Held: The Court of Appeals agreed with the trial court. The California Public Utilities Commission holds the “broad authority to ‘supervise and regulate every public utility in the State’.” Section 1759 of the Public Utilities Code bars any court action that hinders or interferes with the exercise of regulatory authority by the Commission.

This broad authority authorizes the commission to “‘do all things, whether specifically designated in the Public Utilities Act or in addition thereto, which are necessary and convenient’ in the exercise of its jurisdiction over public utilities.”

No court in the state, except the Supreme Court and the court of appeals, has jurisdiction to reverse a Public Utilities Commission order. Nevertheless, the state legislature has provided for a private right of action against utilities for unlawful activities and conduct. The right of action is limited to those situations in which an award of damages would not hinder or frustrate the commission’s declared supervisory and regulatory policies.

The California Supreme Court has a three-part test to determine whether an action is barred by § 1759: (1) whether the commission had the authority to adopt a regulatory policy; (2) whether the commission had exercised that authority; and (3) whether the superior court action would hinder or interfere with the commission’s exercise of regulatory authority.

Here, the Sarales conceded the commission had authority to regulate trimming distances around power lines. The commission’s authority to “supervise and regulate every public utility in the State” included the authority to require utilities to maintain its systems and equipment “in a manner so as to promote and safeguard the health and safety of its employees, passengers, customers, and the public.” The court said regulating tree trimming distances around power lines effectuated this purpose.

The commission had clearly exercised its authority. Its General Order No. 95 provided rules governing the construction of overhead electric lines. Rule 35 of General Order No. 95 specifically governed tree trimming, and had been changed in 1997 to require wider trimming margins from power lines.

The court held that for purposes of applying the test, “what matters is that the commission has exercised its authority to adopt a regulatory policy relating to tree trimming around power lines…”

Finally, the court held that an action for damages against a public utility is barred by § 1759 “not only when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would ‘reverse, correct, or annul’ that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would ‘hinder’ or ‘frustrate’ or ‘interfere with’ or ‘obstruct’ that policy.”

Here, the Sarales’ suit against PG&E essentially advance claims of “excessive” tree pruning based on past vegetation management practices. Section 1759 saves the commission and utility companies from defending against lawsuits every time adjustments are made to protocols for vegetation management around power lines. The record in this case indicates that the standards for vegetation management surrounding power lines had been revised by the commission 13 times in 57 years. “Allowing owners of land containing overhead power lines to seek individualized judicial determinations of what might be ‘necessary’ or ‘proper’ vegetation,” the court said, “would cause a regulatory nightmare for the commission that § 1759 was intended to prevent.”

– Tom Root

Case of the Day – Wednesday, March 13, 2019


We’ve all heard of adverse possession, that weird and perhaps outdated legal doctrine that lets people with sufficient chutzpah get title to real property they don’t own. Want your neighbor’s house (and you know coveting it is not allowed), all you have to do is take possession of the place, and ensure that your possession is open, notorious, exclusive and hostile continuously for a period set by statute (from five to 21 years, depending on state law).

Easy for us to say, you might be thinking. But what does it mean?

Let’s take it in steps. Today, let’s consider hostility.

We all have notions of what “hostile” means, but for purposes of adverse possession, that’s not it. In today’s case, a small cemetery association had been using a gravel road it had gotten the right to by a poorly drafted easement in an 1880 deed (the year James Garfield became president). The people who remembered the Association had an easement were still around, although about 6 feet deeper than they had been back then.

The cemetery association members had been dumping dirt on the land next to their easement, but they stopped when Calvin Coyer, the neighbor, asked them to, because they wanted to be “good neighbors.” No hostility there. But they still parked cars on the Cal’s land, while giving Cal “permission” to graze his herds there. But at last there came a time when the Association wanted to clean up its property lines, and – discovering it did not own the land its people had been parking on – the Association sued Cal for ownership under the doctrine of adverse possession.

Nice guys finish last. Because the Association always thought it owned the property, Cal argued, it couldn’t have possibly possessed the land with any hostility. Not so, the Court of Appeals said. The “hostility” element of the doctrine of adverse possession is satisfied where the possessor thinks he or she owns it, or where he or she knows someone else owns it but intends to possess it anyway. Malcolm Forbes was right! “Contrary to the cliché, genuinely nice guys most often finish first or very near it.”

Union Cemetery Ass’n of Crawfordsville, Linn County, Oregon v. Coyer, 214 Or.App. 24, 162 P.3d 1072 (Ct.App. Oregon, 2007). The Union Cemetary Association operated a 3.69-acre cemetery surrounded by Calvin Coyer’s 81 acres of grazing land. Coyer’s land connected the cemetery to a 28-foot wide roadway that, in turn, connected to a public road by means of a 14-foot wide gravel road. The 100-year old gravel road provides the only access from the public road to the cemetery.

The Association received a deed in 1880 for a “right of way for a wagon road” as to a portion of the gravel road in 1880 and to another parcel of property. In the final sentence of the deed, the grantors stated that they “hereby relinquish and quitclaim all our right, title and interest in said premises.” However, the sentence did not specify whether the described “premises” just included the “right of way” which became the gravel road or whether the “premises” consisted solely of the other property conveyed under the deed.

Before Coyer acquired his land in 1991, the Association piled dirt on the lot. Coyer asked the Association to stop doing so, and the Association complied, even posting a sign that prohibited dumping. Association members believed the Association owned the subject property and, as a good neighbor, the Association gave Coyer permission to corral cattle and park farm equipment on the property in a way that did not conflict with the use of the road by cemetery traffic.

Finally, when a dispute arose, the Association filed an action for quiet title, seeking a declaration that it owned the entire subject property in fee simple based on either a conveyance or adverse possession. After trial, the court found that, by virtue of the 1880 deed, the Association held title to an 18-foot roadway, and owned the remaining 22-foot width of the subject property by adverse possession or, in the alternative, that plaintiff had established an easement by prescription over the entire subject property.

Coyer appealed, challenging the conclusion that the Association’s possession of the land was hostile.

Held: The Association owned the land by adverse possession. The Court noted that in an adverse possession action, a party seeking to establish ownership by adverse possession must prove by clear and convincing evidence that, for a 10-year period, it or its predecessors maintained actual, open, notorious, exclusive, hostile, and continuous possession of the property.

The requirement for actual use is satisfied if the plaintiff establishes a use of the land that would be made by an owner of the same type of land, taking into account the uses for which the land is suited. A use is “open and notorious” if it is of such character as to afford the owner the means of knowing of the use and the adverse claim. A use is “hostile” if the plaintiff demonstrates a subjective intent to possess the property, intending to be its owner and not in subordination to the true owner.

To establish hostility, an adverse possession claimant must show either that its possession of the disputed property was under an honest but mistaken belief of ownership, or that the possessor subjectively intended to possess the property intending to be its owner. Here, the Court ruled, the testimony of the Association’s board members that they believed the Association owned the 40-foot strip of land, but as a good neighbor, gave Coyer permission to corral his cattle and park farm equipment on the strip in a way that didn’t conflict with the Association’s use of the road for cemetery traffic, was sufficient to show that the Association believed — even if mistakenly — that it owned the property. That established hostility for purposes of the adverse possession claim.

Tom RootTNLBGray140407

Case of the Day – Tuesday, March 12, 2019



I recall once enjoying the spectacle of a young lawyer squirming during a pretrial hearing. I couldn’t help myself – he represented the opposing party and generally was insufferable. The judge picked through the sharp young attorney’s pleadings liked he was sorting a pile of smelly socks, and then demanded to know “what is this case doing in my courtroom?”

schadenfreude150311Ah, schadenfreude! Such a guilty pleasure, chiefly because I have no doubt that I myself have on many occasions given other lawyers opportunities to enjoy schadenfreude at myexpense.

Still, there are a lot of cases that ought to never see the inside of a courtroom. Today’s case is a good example. A man named Klemme burned some brush one day. He carefully tended the burn pile, kept water and a phone handy lest the fire get out of control, and checked for burning embers before he went home that night. He was on the scene the next day, too, and saw no smoldering debris. The next day, however, the wind came up and somehow fire burned about 400 young seedlings planted in the neighboring unimproved property, owned by the widow Zech.

The seedlings were fewer than one percent of the 62,000 seedlings planted by the Zechs pursuant to a deal they had made with a federal conservation program. They had bought seedlings for about 30¢ apiece and planted them over a period of years. Then Mr. Zech died, and after that, Mrs. Zech never visited the property. She admitted she couldn’t say for sure that it had been Klemme’s burn pile that had started the fire. She admitted that a lot of other seedlings had died of natural causes, and that she hadn’t replaced the seedlings allegedly killed by the fire or the ones that had simply died. Finally, she was unable to show that the fair market value of the real estate had fallen because of the damage to about 0.66% of the seedlings on the premises.

This case was not, to use as Latin phrase, a “slam dunker” for Mrs. Zech. If she felt she had been damaged, why didn’t she spend $120.00 for 400 new seedlings? If she permitted many of the 62,000 seedlings to die without replacement, how seriously had her enjoyment of the property – which she didn’t visit because of the amount of snowfall and because it apparently evoked memories of her late husband – been compromised?

Mr. Klemme’s lawyer filed a motion for summary judgment, asking the Court to grant judgment for the defendant without a trial. Summary judgment is a useful device for economically ridding the court of a dog of a case, where there is no genuine issue of fact, and where one side is entitled to judgment as a matter of law. The trial court obliged him, holding that the proper measure of damages was decrease in value of the property, and because Mrs. Zech could not show any evidence that the value of the premises had fallen.

Mrs. Zech appealed, arguing that the measure of damages should have been the replacement value of the seedlings. What, we’re talking $120.00 here? As little sense as that made, the trial court held that the seedlings were “special purpose” trees, because the Zechs were required to plant them as a condition of having the land enrolled in the CRP. Because they were special purpose, the proper measure was decrease in fair market value, the Court of Appeals held, thus agreeing with the defendant.

A priceless Ming vase (note the clear label)

A priceless Ming vase (note the clear label)

This is a peculiarity of the law of negligence. Not only must there be a departure from the standard of care (someone has to be a klutz), but there must be harm flowing from the klutziness. If I drop your priceless Ming vase, but it bounces without breaking, you have no claim against me for negligence. If it breaks … that’s another story.

Was Mr. Klemme negligent? Did his burn pile spontaneously combust? We’ll never know, because – whatever caused the fire – Mrs. Zech didn’t suffer any loss.

Zech v. Klemme, 803 N.W.2d 128 (Iowa App. 2011). One spring day, strong winds rekindled an ember in a burn pile located on Klemme’s property, and started a grass fire that damaged trees on Zech’s property. Several days before, Klemme had burned brush and tree limbs in a burn pile located about 300 feet from the Zech property.

Klemme kept a water hose nearby and used the hose to wet down the adjacent area to prevent the fire from spreading. He also had a cellular telephone available to contact the local fire department if necessary. Klemme said he stopped burning at about 11 a.m. on April 2, and when he left his property at the end of the day, the burn pile had subsided to ashes. He worked on his property on April 3, and observed the pile throughout the day, noting no sign of any smoldering embers. Klemme also said he had no knowledge there would be any strong or sudden gusts of wind on April 4th.

fire150311Zech had enrolled the land where the fire occurred in the federal Conservation Reserve Program (CRP). The CRP required Zech to prevent erosion and provide wildlife habitat on the acreage, and prohibited her from harvesting the trees or using the land for livestock or crop fanning. In exchange for her enrollment in CRP, Zech received an annual payment starting in 2002 and continuing through 2006. For conservation purposes, Zech and her late husband planted between 2,000 and 3,000 bare root seedling trees each year. At the time of the fire, about 62,500 trees of various species had been planted on the CRP land.

The Zechs purchased the bare root seedlings from the Iowa State Forest Nursery at about $0.30 each. Zech asserted that over 400 trees were damaged in the fire. In the ordinary course of nature, wildlife, insects, disease and climatic conditions have also damaged or destroyed some of the trees on the CRP land. Zech has not removed, replaced, treated, repaired, pruned, trimmed, or cut down any of the trees that have been damaged or destroyed by the fire or by natural causes. She does not live on the CRP property and the fire did not change her use of the land.

Zech contended in her complaint the appearance of the burned branches on the trees she planted with her late husband has diminished her emotional enjoyment of the land. However, she did not argue the fire has diminished the fair market value of the land. The fire did not cause Zech to incur a loss of income, nor did it cause her to incur any additional expense. She also did not argue that the damaged trees had any historic value.

Zech had no personal knowledge as to the cause or origin of the fire, and she did not contend Klemme acted intentionally to harm the trees.

The trial court held that the trees on the land were special purpose trees, and that the measure of damages was the decrease in the fair market value of Zech’s property. Because there was no proof of any loss of market value, there were no damages, and Klemme was granted summary judgment.

Zech appealed.

Held: The trial court properly determined what damages should be considered, and correctly concluded that Zech had not been damaged.

The Court of Appeals observed that Laube had noted 25 years before that “[i]t is impossible to state a simple, all-purpose measure of recovery for loss of trees.” Therefore, trial courts are granted a degree of discretion to select how to assess damages based on the facts of each case.

seedlings150311Zech argued the appropriate calculation for damages should be the replacement cost of the seedling trees damaged or destroyed by the fire. Where trees can be replaced, a reasonable cost of replacement is the appropriate measurement of damages. Laube, the Court noted, involved removal of about 100 walnut trees. The Laube court decided that the replacement cost measure “would obviously be inappropriate,” and the trial court in this case – which was dealing with about 400 trees, was likewise right that a replacement calculation would be not work. Compounding the problem, Zech admitted she has not replaced or treated any of the damaged trees since the fire in 2005, nor has she expressed an intent to do so in the future.

Instead, the trial court concluded that the appropriate measure of damages for Zech’s loss should be the “special purpose” or “special use” calculation used in Laube. Where trees are put to a “special purpose” or have a “special use” – such as for windbreaks, shade or ornamental use – damages are based upon the difference between the market value of the land before and after the destruction of the trees. The trial court viewed the conservation use of the trees as required by CRP to be a special purpose, and thus concluded that any enjoyment Zech derived from the trees was incidental to the primary purpose of the CRP land. Besides, the Court of Appeals noted, while Zech herself had testified that the burned trees reduced her enjoyment of the land, she admitted she no longer regularly walks on the CRP land, citing the fact that “there has been too much snow for one thing.” She also admitted that she had ceased her custom of walking the land after her late husband passed away.

Zech also admitted that the fire did not cause her to change her use of the land. The trial court concluded that Zech’s deposition testimony did not establish a special use relating to her enjoyment of the land, nor a diminution in her enjoyment due to the fire. Using the ” special purpose” market value calculation, the trial court concluded that the issue of damages entitled Klemme to summary judgment because the record did not demonstrate a loss in market value of the land.

The Court of Appeals approved of these findings, and left them undisturbed. Because Zech has not sustained any compensable economic loss as a result of the fire, the Court affirmed the trial court’s summary judgment ruling on damages.

– Tom Root