nuisance

POUND ON THE TABLE

The sun setting in the east?

Will Mark and Elizabeth Heil be having their neighbors Stewart and Christina Hines over to enjoy margaritas and the sun set over the ocean? Don’t bet on it for two reasons, neither of which is more likely than the other: First, the Heils and Hines are neighbors on beautiful Hilton Head Island, South Carolina, and thus, it’s physically impossible for them to watch the sun set in the east over the Atlantic. The second reason is that they’re pretty clearly NILOs (neighbors in location only). They may have homes next to each other, but there’s no love lost between them.

The Heils had a vacation home on the Island, next to a house owned by the Hines (who, being more frugal, perhaps, rented it out to tourists). One November, the Heils visited their Shangri-La, only to notice branches from one of the Hines’ healthy oak trees overhanging the house’s roof. They observed no roof damage and saw nothing to suggest the tree was diseased or failing. Nevertheless, the Heils asked the Hines to do something about it.

The Hines were good neighbors, albeit thrifty ones. They asked the Heils to get some bids from tree services, and the Heils complied with bids in the thousands. The Hines found Sam’s Tree Service, a guy with no insurance, an undocumented worker (guess Biden should have built that wall, right?), and probably a beat-up truck, too, for all we know. But he was properly licensed and had no record of complaints. More importantly for the Hines, Sam did the job for a mere $500.00.

Just a little hole…

Many months later, when the Heils next visited their house, they found a hole in the roof and water damage everywhere. Their insurance carrier denied coverage because inspectors determined that the Hines’ tree had rubbed against the roof, causing the hole. (That alone is worth a whole blog, but we’ll pass on that issue). The Heils demanded that the Hines and Sam pay for the damage, but both declined.

Sam said his climber performed the limb removal while he supervised from the ground, and never stood on the roof. Instead, he was suspended above the roof on a safety harness. The encroaching limbs were tied off, cut and lowered down to the ground. While performing the trimming, Sam’s man noticed only a dented shingle, nothing that would affect the roof’s integrity, so he did not pass on the information about the shingle.

The Heils, of course, sued. They fired a negligence blunderbuss at the Hines, saying they were negligent for not inspecting the tree, for hiring Sam, for paying so little to have the work done, and even for letting an undocumented worker do the trimming. The trial court found no evidence that the Hines had breached any duty to the Heils by failing to inspect and maintain their tree, and by negligently hired Sam’s Tree Service.

The court gave Heils short shrift, upholding the standard that homeowners have no duty to repair damage caused by their healthy trees of which they are not aware. The Hines hired a tree service within a month of being asked to do so, and no evidence explained why – let alone showed that – Sam’s low price, lack of insurance, or undocumented worker status led to the hole that the Heils found in their roof.

The real problem here was that the Heils, apparently unaware of the Massachusetts Rule or too chary to care, left it to well-meaning neighbors to remedy a problem that belonged to them. The Hines’ principal mistake was in not telling the Heils to pound sand to begin with, and to trim the branch themselves.

Sure, you say, but how about the Hawaii Rule? Fancher v. Fagella? To that we say, even if the Heils could have shown that the tree was a nuisance – which on verdant Hilton Head Island (where the vegetation grows prodigiously) might be a real stretch – the costs borne by both parties probably would have been less. The branch was healthy, the cost of remediation was slight, and the Heils were consenting adults who should look after the integrity of their own house.

There’s an old legal aphorism that when your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on both the law and the facts, pound on the table.

The Heils broke the table.

Heil v. Hines, Case No. 2015-001988 (Court of Appeals of South Carolina, Nov. 9, 2016). Mark and Elizabeth Heil had a vacation home on Hilton Head Island, next to a rental house owned by the Stewart and Christina Hines. One fall, the Heils observed branches from a healthy oak tree owned by the Hines overhanging their house roof. They saw no roof damage, and no disease or decay on the tree. The Heils asked the Hines to trim the tree.

At the Hines’s request, the Heils provided bids from tree services, but the Heils hired a local company, Sam’s Tree Service. Sam’s was licensed but not insured, and he had used a worker who was (horrors of horrors!) an illegal alien. Sam’s charged $500.00 to trim the tree.

The following spring, the Heils found substantial water damage in their home from a hole in the roof. Their insurance company denied them coverage because inspectors found the damage was from a roof hole caused by the Hines’ tree.

The blunderbuss – a crude but destructive weapon. Likewise, the blunderbuss complaint… Sam’s was negligent because its trimmer lacked a green card? Really?

The Heils sued, contending that the Hines were negligent for not inspecting the tree and for hiring Sam’s, who must have caused the damage and was too cheap, too uninsured and too willing to hire people who were in the country illegally). The trial court granted summary judgment to the Hines, finding that the Heils lacked evidence either that the Hines had neglected their healthy tree or that Sam’s removed the branch in a negligent manner.

The Heils, of course, appealed.

Held: The Court of Appeals ruled that the Heils “produced no evidence from which an inference could be made that [the Hines] breached their duty of care.” The Court held that to make out a claim for negligence, the Heils had to allege facts showed (1) a duty of care owed by the defendant; (2) a breach of the duty by a negligent act or omission; and (3) damage proximately caused by the breach.

Here, the Court said, the oak tree was a live, healthy tree, and the Heils – who didn’t see any roof damage themselves – presented no evidence that the Hines “could have observed, by reasonable inspection, the damage possibly caused by the tree limb.” Note the word “possibly” – the plain fact was that the Heils had no evidence that the tree limb caused the hole, or even when the hole was formed.

What’s more, the Court said, when the Hines were notified the tree needed to be trimmed because it was encroaching on the Heils’ roof, the Hines hired Sam’s Tree Service and the work was completed within a month of notice. The Heils had no explanation – let alone evidence – for their claim that Sam’s Tree Service’s use of an undocumented worker and its low fee somehow constituted a breach of the Hines’ duty to the Heils.

The Heils had no proof that Sam’s Tree Service performed its work in a negligent way or that “another tree service company would have known or communicated that a single dented shingle was cause for structural concern – if the dented shingle was the cause of the damage.”

– Tom Root

TREES GONE WILD

Emily Dickinson had something to say about today’s case. The Belle of Amherst wrote,

The Wind does not require the Grass
To answer Wherefore when He pass
She cannot keep Her place.

Today’s problem was slow to develop, but like a winter storm undergoing bombagenesis, it just got bigger and bigger. Marie’s property was separated from her charming neighbor Ed’s by a 100-foot long cinder block retaining wall. In about 2004, “a mulberry tree and some shrubs began growing” – note the passive voice, as though the growth was mere happenstance, not brought on by anyone’s actions – in Marie’s property near the retaining wall.

Everyone agreed that Marie had nothing to do with the mulberry tree. She didn’t plant it, mulch it, stake it, or fertilize it. It just grew. And grew. And grew. About eight years later, its roots began toppling Ed’s beautiful wall.

To be sure, Marie diligently trimmed the mulberry branches every year, but unsurprisingly, she did not excavate around it so she could trim the tree’s roots. Who does that? When the wall began showing damage in 2012, Ed wrote Marie a letter (evidence enough that their relationship must have been too frosty for him just to mosey on over and say something), expressing concern about the damage. Marie, ever the good neighbor, hired some guys to trim back the trees and bushes. That wasn’t good enough for Ed, who then sent Marie a certified letter complaining that her tree was tipping over his wall but warning that she better not let any of her workers step on his property in an attempt to fix it unless they were insured and had permits.

At this point, Marie’s interest in jumping through Ed’s hoops appeared to have waned. She did nothing more, and Ed sued.

He accused Marie of carelessness, negligence, and gross negligence, complaining that the “maintenance of her property” – which is to say, suffering the tree to grow – caused the damage to the retaining wall. Of course, he wanted money.

At trial, Marie said Ed’s wall had been installed by morons and thus was falling down of its own accord. Ed said Marie should have taken care of the tree to ensure that it did not crumble his wall. The court, it turns out, did not care about either argument: instead, it held that a tree growing near the wall is a naturally occurring condition. As such, Marie is not liable for what the tree does.

We are constrained to note that this is not the law everywhere. The Hawaii Rule, as brought up to date by decisions such as Fancher v. Fagella, holds that when a naturally occurring tree becomes too much of a nuisance, the owner can be forced to do something, regardless of how the tree got there or how little the owner’s role in nurturing it. But not in New Jersey.

Like Emily’s grass, Marie’s mulberry could not keep its place. And the court, like Emily’s wind, did not require Marie to answer for the tree’s peripatetic roots. Oh, the poetry of it…

Scannavino v. Walsh, 445 N.J. Super. 162 (Superior Ct. N.J., 2016). Marie’s naturally-growing mulberry tree got big enough that its roots started causing her neighbor’s retaining wall to tilt and collapse. Neighbor Ed sued her for damages the tree caused the wall, but the trial court held she was not responsible for the naturally occurring growth of a tree she had not planted.

Ed appealed.

Held: The Superior Court sided with Marie. It held that a cause of action for private nuisance derives from the defendant’s “unreasonable interference with the use and enjoyment of the plaintiff’s property.” Under the Restatement (Second) of Torts, “neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land,” which includes the natural growth of trees, weeds, and other vegetation “upon land not artificially made receptive to them.” Similarly, “a possessor of land is not liable to persons outside the land for a nuisance resulting solely from a natural condition of the land,” including “trees, weeds, and other vegetation on land that has not been made artificially receptive to it by act of man.”

New Jersey courts have held that injury to an adjoining property caused by the roots of a planted tree can be actionable as a nuisance. The rationale for the property owner’s liability in that case was not because of the natural process of the growth of the tree roots, but instead due to the affirmative act of the property owner in planting the tree that caused the damage. But here, Marie did not plant the tree, and while she trimmed it from time to time, she engaged in no positive acts like fertilizing or maintenance to encourage growth. Had she done so, that might have converted a naturally growing tree into one for which the landowner was liable. However, the Court said, “simply cut[ting] back the trees above the ground” was not a positive act to encourage growth.

The record contained no evidence that Marie’s trimming had improved the tree’s health or accelerated the growth of the roots. As well, the trial court found that Ed had failed “to demonstrate that any actions undertaken by [Marie] or her agent caused the damage to the wall.” Finally, even Ed himself told the Court he was not asking the judges to infer that cutting back the trees had increased root growth.

Instead, all Ed argued was that by cutting back the trees, Marie became liable for the damage caused by the roots. That is contrary to the law, the Court said, and seeks unfairly to “impose liability upon a property owner for hazardous conditions of his land which he did nothing to bring about just because he happens to live there.” Because Marie’s cutting back of the tree did nothing to “bring about” the root growth, neither the trees nor the damage was “brought about” or “precipitated by the property owner’s affirmative act.”

The Court observed that Ed’s argument would lead “to the anomaly of imposing liability upon one who cuts back wild growth while precluding liability of an adjacent landowner who allows the natural condition of his property to ‘run wild’.” What’s more, some of Marie’s trimming was in response to Ed’s belly-aching, and the Court was not about to sandbag Marie because she tried to be a good neighbor.

Ed suggested that if Marie was not held to be liable, then landowners like Ed might have to use self-help, and trespass on her land to cut down the tree himself. The Court dismissed the argument. Ed’s own letter suggested he could abate the nuisance from his side of the property line, which is consistent with the Massachusetts Rule (which fully applies in New Jersey). At any rate, the Restatement (Second) of Torts provides that “entry onto a neighboring property to abate a private nuisance is permissible under certain circumstances.”

Interestingly enough, the Restatement (Third) of Torts might have held Marie liable if she failed to exercise reasonable care in allowing the tree’s roots to damage the retaining wall. But the Supreme Court of New Jersey has directed that the Restatement (Second) of Torts is the law, and until that changes, Marie’s tree is on its own.

– Tom Root

Case of the Day – Wednesday, March 6, 2024

POUND ON THE TABLE

Case of the Day – Thursday, January 4, 2024

TREES GONE WILD