Case of the Day – Tuesday, February 25, 2025

Posted on February 25, 2025 by TLRoot tagged.

THIS ONE IS FOR MY WONDERFUL WIFE

Years ago, our neighbor Olwen – who, if she had not passed away (meaning, of course, that we cannot speak ill of her), we would have described as a battleaxe – surrounded two sides of her property with 2-3’ arborvitae. It didn’t really look that bad, but… well, they grew.

And grew, and grew and grew. Our neighbor never trimmed them before she departed this mortal coil. And the two families who lived there subsequently never trimmed the trees/shrubs/whatever-the-hell-they-are, either.

Consequently, the arborvitae are 25 feet tall and still growing. We finally had to move our vegetable garden about 20 yards to the west because of the shade they were throwing. Exercising our Massachusetts Rule rights last fall, we hacked about ten of them back to the property line in order to install a new shed. We then built a fence to try to keep the monsters in check.

My wife mutters about the arborvitae daily. I have no problem understanding Nancy – the protagonist in today’s case – who must have loved neighbor Pnita’s arborvitae as much as my wife loves Olwen’s. But while my wife just glowers at the arborvitae, Nancy – a woman of action – did something. She brought in a trimming crew and topped the neighbor’s trees.

She didn’t kill them, just sort of knee-capped them. Who knew that so much visceral pleasure could end up being so expensive?

So this post is for my wife, a cautionary tale lest she decides to take matters into her own hands on the next-door arborvitae. Take a deep breath, honey…

Joseph v. Nathanson, 87 Mass. App. Ct. 1102, 23 N.E.3d 151, 2015 Mass. App. Unpub. LEXIS 37 (Ct.App. Mass. Jan. 16, 2015). Pnina Joseph and Nancy Ellen Nathanson owned abutting properties and shared a property line. Pnina planted thirty-five arborvitae trees on her property close to the property line to serve as a privacy screen. In October 2012, Nancy directed her landscaper to go onto Pnina’s property and “prune” the trees. The landscaper “topped” the trees by cutting about five to six feet from the tops.

Pnina sued under Massachusett’s tree-cutting statute, G. L. c. 242, § 7, and a jury returned a verdict in Pnina’s favor, awarding her $35,000. The award was trebled under the statute. Nancy appealed, arguing that her actions did not violate the tree statute because the trees were not “cut down” or “destroyed” as required by the statute.

Held: “Topping” the trees so that they would no longer grow any higher justified application of the Massachusetts wrongful-cutting statute.

General Law c. 242, § 7 provides for liability on the part of anyone who “without license willfully cuts down, carries away, girdles or otherwise destroys trees.” Nancy asserts that under the tree statute, Pnina’s trees had to be completely destroyed or cut down in order for the plaintiff to recover. She argues that the evidence showed that the trees were alive, growing, and healthy after the topping of the trees and, therefore, could not possibly have been “destroyed.”

The Court said it would interpret a statute to give effect “to all its provisions, so that no part will be inoperative or superfluous.” The statute here requires that the trees be “cut down, carried away, girdled or otherwise destroyed.” G. L. c. 242, § 7. “The phrase “otherwise destroyed” includes,” the Court said, “but is not limited to, the preceding phrases including ‘cut down’.” In other words, “cut down, carried away,” and “girdled” are examples of how a tree may be destroyed; they are not exclusive.

The judge instructed the jury that the word “destroy” has a commonly understood meaning, which includes “to ruin completely, to ruin the structure, organic existence or condition of a thing, to demolish, to injure or mutilate beyond the possibility of use.” The Court held that this definition given to the jury correctly provided a broader meaning to the term destroy than the examples in the statute.

Pnina’s expert testified that the “topping” of the trees meant that they would never grow vertically again and were no longer functional as a privacy screen. The jury was entitled to credit that testimony, to agree with Pnina that the trees were “mutilated beyond the possibility of use” as a privacy screen, and therefore to find in Pnina’s favor.

– Tom Root

Case of the Day – Wednesday, January 22, 2025

Posted on January 22, 2025 by TLRoot tagged.

TOPPER

We have seen our share of “obstructed view” cases, in which landowners were not liable because their vegetation obscured traffic signs.

But what if the landowner does something to the tree or vegetation to exacerbate the situation? Is that even possible? More to the point for a negligence calculus, does a landowner owe a duty to motorists?

Today’s case asks just that question. A utility company that took the easy way out, and simply topped a pine tree standing under one of its lines. Topping is a lousy way to trim a tree. No self-respecting arborist would have anything to do with it. And, it turns out, that topping did not stop the tree from growing. It simply forced the tree to grow out instead of up.

Iglehart v. Bd. of County Comm’rs, 60 P.3d 497 (Supreme Ct. Okla. 2002). Brenda Iglehart failed to stop at a county road intersection where crossing traffic had the right-of-way. She was broadsided. She sued everyone she could think of, including the Board of County Commissioners for negligent maintenance of the road, and – relevant to this appeal – Verdigris Valley Electric Cooperative. She alleged Verdigris, which owned an easement alongside the road, contending it negligently maintained a white pine tree by “topping” it in order to keep the tree limbs from interfering with electric lines. By so doing, Brenda said, Verdigras caused the tree to grow laterally and more densely, obscuring the stop sign. According to plaintiffs, Verdigras owed a duty of care to motorists traveling on the adjoining roadway, or at least a duty to warn of a hazardous condition within its control, and that its breach of this duty directly caused Brenda’s injuries.

The trial court granted summary judgment to Verdigris and the Commissioners). The Court of Civil Appeals reversed the summary judgment for the Board but upheld summary judgment in favor of Verdigris. The appellate court held that a utility company does not owe a duty of care to travelers on roads adjacent to its power lines which are under its maintenance.

Brenda appealed to the Oklahoma Supreme Court.

Held: A utility company owes a duty of care to traveling motorists on adjoining roads when its substandard maintenance of trees could foreseeably cause danger to the public.

The Court observed that to establish negligence liability for an injury, Brenda must prove that (1) Verdigris owed her a duty to protect her from injury, (2) Verdigris breached that duty, and (3) its breach was a proximate cause of Brenda’s injuries. The burden is not cast upon Brenda to establish that Verdigris was negligent in order to escape its motion for summary judgment. Rather, to avoid trial for negligence, Verdigris must establish through unchallenged evidentiary materials that, even when viewed in a light most favorable to Brenda, no disputed material facts exist as to any material issues and that the law favors Verdigris.

Verdigris contends that (1) no duty existed; that (2) if a duty existed, the company did not breach it, and that even if it had, (3) its actions were not a proximate cause of Brenda’s injuries.

The threshold question for negligence suits is whether a defendant owes a plaintiff a duty of care. “We recognize,” the Court said, “the traditional common-law rule that whenever one person is by circumstances placed in such a position with regard to another, that, if he (she) did not use ordinary care and skill in his (her) own conduct, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” Among a number of factors used to determine the existence of a duty of care, the most important consideration is foreseeability. Generally, a defendant owes a duty of care to all persons foreseeably endangered by his conduct concerning all risks which make the conduct unreasonably dangerous. Foreseeability establishes a “zone of risk,” which is to say that it forms a basis for assessing whether the conduct creates a generalized and foreseeable risk of harming others.

The question of whether a duty is owed by a defendant is one of law; a breach of that duty is a question of fact for the trier. Here, the Court held that a utility company indeed owes a duty of care to traveling motorists on adjoining roads when its substandard maintenance of trees could foreseeably cause danger to the public. Citing the Oregon Supreme Court’s decision in Slogowski v. Lyness, the Court ruled it was potentially foreseeable to a utility company that a tree it maintained could cause a hazardous condition to motorists on an adjacent roadway. Once having undertaken the task of trimming and inspecting trees within its easement, a party must act reasonably in the exercise of that task.

In this case, the Court said, Brenda has raised a disputed issue of fact regarding the foreseeability of the injuries she suffered, sufficient to avoid summary process. According to the affidavit of her expert witness, James R. Morgan, the white pine tree in question had been “topped.” The main tree trunk has been cut off in the upper quadrant of the tree. Once this occurs, the upward growth is halted, and the tree instead increases density and limb growth. These results, the affidavit stated, are particularly true for the type of pine tree in question and are common knowledge among those who cut trees.

Verdigris challenged the certainty with which the expert made his determination, but at this stage of summary process review, the Court said, “We must view facts in the light most favorable to the plaintiff. Mindful of this rule, we hold that – given the proximity of the tree to the stop sign and the common-sense notion that without a visible stop sign, an intersection, such as that here in question, poses an obvious hazard” Brenda had raised a disputed issue of material fact as to the foreseeability of the accident arising from the action of Verdigris. “Foreseeability must hence be left for a jury evaluation.”

– Tom Root

Case of the Day – Monday, January 13, 2025

Posted on January 13, 2025 by TLRoot tagged.

CONNECT THE DOTS

A negligence action is a lot like a child’s “connect-the-dots” game. If you want to win, you have to connect the dots of “duty” to “breach of duty” to “proximate cause of damages” to “amount of loss.”

Skip a step, and you can walk away empty-handed, or – like the couple in today’s case – with a lot less.

We find it a bit unsettling that a tree service was not alerted to a bigger problem by the 100-lb. concrete plug stuck in the bottom of a tree it was to trim, and that the trimming crew proceeded to “top” the tree in order to make it healthier. Perhaps using animal magnetism on the tree or dousing the roots in snake oil might have helped.

This case has cautionary tales aplenty. First, with digital film as cheap as it is (as in, 80% of Americans have smartphones), take pictures of the trees before and right after trimming. This is true whether you’re Harry and Harriet Homeowner or whether you run Paul Bunyan’s Tree Service.

Second, do not ignore warning signs that a tree has significant problems. Pretending that a concrete plug was not poured into a tree by a former owner and that some simple shaping will keep it strong and healthy, is confusing a dangerous conflation of wishes and facts.

Third, both the homeowners and the tree service should insist on a detailed contract, one that spells out the obligations and expectations of both parties.

Finally, if litigation ensues, take a serious look at your expert’s analysis. Try to poke holes in the expert’s report. Be your own “tiger team.” When you read in the decision that the expert was unable to testify to a crucial element, it’s already too late.

Sandblom v. Timber Tree Service, Inc., 2009 R.I. Super. LEXIS 126, (Super. Ct. Rhode Island, Oct. 27, 2009). Steve and Terri Sandblom hired Timber Tree Services, Inc., to provide tree services to five trees located on their Arlington Street property. Steve told Timber Tree that he and his wife wanted one tree removed and the other four trimmed – two in the backyard and two in the front yard, one of which was a mature silver maple tree.

A concrete patch in a tree… never a good idea.

Even before work commenced, Timber Tree told Steve that total removal of the silver maple tree was an option, due to the fact that the tree appeared to be damaged, with a basketball-sized cement plug in the base of the tree. The concrete suggested rot, which was later confirmed by Timber Tree workers. The plug had been in the tree when the Sandbloms bought the property in 2004. Steve elected to have the tree “topped” instead because Timber Tree’s owner told Steve that after “topping off,” the tree would be healthy and regain a healthy condition similar to a neighbor’s fully-grown silver maple.

Timber Tree gave the Sandbloms a written estimate of the charges for the work to be performed, a total charge of $1,400.00 without itemization. Work began in April 2005.

Late in the day, a Timber Tree worker asked Steve whether he wanted the silver maple tree cut down entirely. Steve examined the tree, and testified later that so much growth had been cut from the silver maple that it only could be described immediately after the work as two bare trunks, totally denuded of any vegetation.

The Sandbloms sued, claiming that as a result of Timber Tree’s negligent services, the silver maple tree in the front yard suffered permanent and irreversible damage, thereby reducing the value of their property as a whole. Pursuant to G.L. 1956 § 34-20-1, they sought twice the value of the tree and three times the value of the wood. Timber Tree counterclaimed for the outstanding balance due for services rendered.

Held: The Court, rejecting Steve’s testimony that the tree was healthy, found that the silver maple was already a diseased tree when it was topped. Steve’s expert was unable to quantify how much of the tree’s condition was caused by existing rot or prior improper pruning. The expert’s damage calculation thus was rejected.

Steve testified that before Timber Tree’s work, the silver maple was “overgrown” with vegetation and needed trimming, but was otherwise healthy. The Court found the testimony not credible in light of the observations of rot made by Timber Tree’s owner and workers. The placement of a cement plug sometime before suggested that rot may have been present for a considerable period of time.

Despite Timber Tree’s suggestion that perhaps the tree was not worth further substantial investment, Steve chose to proceed with the request to “top off” the maple. Steve said he expected the silver maple would be “topped” to get tree growth away from electrical wires. Timber Tree’s owner described the work to be performed as the removal of “sucker growth.”

Instead, Timber Tree trimmed so much growth from the silver maple that was nothing but two bare trunks. However, because there was no photographic evidence of the condition of the silver maple prior to the trimming, the Court could only conclude from the evidence that the silver maple was not healthy before it was topped.

Steve’s expert, John Campanini, testified that Timber Tree’s work was contrary to industry standards in that its workers removed more than 20% of the live wood from the tree. He also testified that Timber Tree failed to adhere to industry standards by pruning or cutting known nodes of the tree, which he found by observing the “cuts” made to the tree.

As for Timber Tree’s other work, John Campanini said some of the work appeared improper in that Timber Tree failed to remove all of the dead wood on one of the trees. On a second tree in the backyard, Timber Tree did not complete the job of thinning out the crown of the tree, in that many branches on the lower canopy were not removed. This, John Campanini described, was “sub-par performance.” John Campanini supplied no testimony to quantify the damage caused by Timber Tree’s errors and omissions.

Mr. Campanini used a formula called the “trunk formula,” whereby the calculation of loss starts with the circumference of the trunk near the ground and continues based on certain objective and subjective factors relative to the tree’s location and condition. According to Mr. Campanini, this mode of calculation is approved by the International Society of Arboriculture. The result of the calculation is to determine an “appraised” value of the tree before Timber Tree’s work, which he concluded to be $5,100.00.

Although it found his testimony credible, the Court declined to rely on Mr. Campanini’s analysis. It noted that, for example, the formula failed to account for the apparent rot of the tree, as evidenced by the concrete plug. Also, the photographic evidence of the current condition of the tree undercut any claim that the silver maple was “totally lost” as a result of Timber Tree’s work. On the contrary, the evidence of the tree’s current condition showed that the silver maple had returned to a tree lush with foliage; indeed, even Mr. Campanini testified that the Silver Maple was not dead and did not need to be replaced.

Mr. Campanini said that damage to the silver maple could be cured by four or five subsequent remedial prunings at $750.00 apiece, to select branches that may develop good supporting unions and help regain the form and shape of a natural silver maple. The tree was about 80 years old, making replacement almost impossible. Such a mature tree would not be available from a nursery for transplantation, leaving the only replacement alternative as a young sapling that would take many years to develop into the stature of the silver maple prior to Timber Tree’s work.

In order to establish a negligence claim against Timber Tree, the Sandbloms had to prove by a preponderance of the credible evidence that Timber Tree was negligent, by showing that Timber Tree owed the Sandbloms a legally cognizable duty, a breach of that duty, proximate causation between the conduct and the resulting injury, and the actual loss or damage. Then, the Sandbloms had to prove that Timber Tree’s negligence caused loss or damage to their property and demonstrate the value of those damages as determined by the reasonable value of the loss or damage. Although mathematical exactitude is not required, the damages must be based on reasonable and probable estimates.

The Rhode Island Supreme Court has held that “the general rule is that where the damage to realty is temporary, the cost of repair measure is proper, and where the damage is permanent, the diminution in value measure is most appropriate.”

Looks good to me…

Although the Court found that Steve proved negligence by Mr. Campanini’s testimony, his evidence on the issues of whether the negligence caused damage and how much those damages were was “somewhat shaky.” The evidence showed that the silver maple was not healthy when it was pruned, meaning that the evidence did not show that Timber Tree’s negligence damaged the tree beyond where it was before the topping. What’s more, the evidence did not show that the silver maple was completely destroyed, such that replacement would be the proper measure of damages. Good thing, too, because an actual replacement cost would be very difficult to calculate, “due to the fact that a similar mature maple would not be available at a nursery for transplantation.”

Because the evidence showed that the tree had made a considerable recovery since it was pruned, the damage it suffered was temporary and the cost of repair would be the appropriate measure of the damages. The only credible testimony concerning the cost remedial measures was Mr. Campanini’s testimony that the silver maple could be restored with four to five remedial prunings, at a cost of $ 750.00 per pruning. The Court awarded the Sandbloms $ 3,750.00 in damages.

The Sandbloms asked for double damages under § 34-20-1. But that section only provides such damages where the cutting or destruction of a tree occurred “without leave of the owner thereof.” Here, Timber Tree performed its services with Steve’s permission. “While the services may not have been to Mr. Sandblom’s satisfaction, “ the Court said, “the Legislature did not intend double damages for negligent services that were performed at Plaintiffs’ request.”

– Tom Root