YOU CAN ALWAYS BE SAFER

The archetype of a prudent man … he wears both a belt and suspenders.

No matter how safe you try to be, there is always something else you could have done to be safer. We all make compromises when the utility of what we are doing to be safer becomes more burdensome than the incremental increase in safety our actions attain. On one hand, it’s safer to wear seat belts than not to wear them, and the cost of wearing them is exceedingly slight compared to the benefit derived. On the other hand, while it would be a lot safer for all traffic not to exceed 15 mph, the cost of such a rule far outweighs the benefits derived from enforcing it.

A similar situation applied in this landmark municipal liability case from Omaha. During a windstorm, a motorist pulled over because he couldn’t see to drive. A tree belonging to the City fell, hitting his car and paralyzing him. The tree, a silver maple, was badly decayed. The motorist sued the City, arguing that for a tree owner to permit a danger tree to stand violated the City’s own ordinances. At trial, the disabled plaintiff was awarded $5 million.

On appeal, however, the Supreme Court of Nebraska was more persuaded by the City’s argument that if every person in its arborist crew spent an entire work year inspecting silver maple trees, each tree would only receive a 12-minute inspection. The City had a tree inspection program in place, and the Court found it reasonably conceived and discharged. Could the City have done more? Certainly. Had it done more, would the damaged tree have been found? No one could say.

The City’s tree inspection program was reasonable, and that was all that was required. The verdict was reversed.

McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545 (S.Ct. Neb., 1984). Mr. McGinn was driving in the City of Omaha on a rainy, blustery afternoon when the inclement weather made him pull over to park. As he was doing so, a silver maple tree fell in front of him, and a branch struck his car, rendering him a quadriplegic.

Photographs taken after the accident revealed that the trunk of the tree was extensively decayed. McGinn sued the City, arguing it was negligent in failing to inspect the tree for disease, decay, and structural defects, and in violating a city ordinance making it unlawful for a landowner to permit a dangerous tree to stand. The City countered that McGinn was contributorily negligent and that the storm, which could not have been reasonably anticipated, caused the tree to fall. The trial court rendered judgment in favor of McGinn and awarded $5 million in damages.

The City appealed.

Held: The judgment was reversed. The Nebraska Supreme Court held that city was not negligent for having failed to remove the tree where there was no evidence that the inspection program conducted by the city was negligently designed or carried out, or that the tree had been found to be hazardous as a result of any inspection made by the city.

Normally, governmental units are liable under ordinary negligence principles for injuries or damages resulting from a tree falling onto a public road from land in the governmental unit’s possession. In this case, while McGinn was correct that the City had violated an ordinance that rendered it unlawful for any property owner to permit a diseased or structurally weak tree to stand on his property, the violation was at most evidence of negligence and did not impose strict liability on the City. Rather, negligence must be measured against a particular set of facts and circumstances present in each case, and the utility of the City’s conduct must be measured against the magnitude of the risk.

Here, the City had established an annual inspection program to check for hazardous trees. The program was neither negligently designed nor negligently carried out. Alternatives might have reduced the risk, such as cutting down any silver maple older than a certain age or conducting lengthy, individual tree inspections, but these remedies were expensive and unreasonable. There was no indication that the tree that fell on McGinn’s car during the severe storm had been found to be hazardous during any prior city inspection.

Thus, the Court said the city was not negligent for failing to have the tree removed and was not liable for personal injuries sustained by McGinn.

The takeaway here is that, in assessing the reasonableness of a defendant’s actions, courts traditionally consider the magnitude of the task. A homeowner with ten trees cannot reasonably fail to ascertain the condition of his or her trees. A municipality with 10,000 trees can get away with failing to ascertain the condition of any particular tree if it has an inspection program that strikes a reasonable balance between cost and efficacy.

– Tom Root

THE RESTATEMENT RULE FALLS AWAY, CHIP BY CHIP

In the development of liability law for danger trees, the “every-dog-for-himself” school of thought has reigned supreme for 150 years. The authoritative Restatement of Torts (2nd) rule says that “a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land, except in an urban area, where the possessor is liable to people using a public highway for physical harm resulting from his or her failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of his or her trees.”

A real mouthful, the Rule said in so many words, “If you live in the country, you owe nobody anything. If you live in the city, you owe a duty to someone on the highway, but no one else.”

The Restatement – which ideally states the law as it generally exists in the 50 states – has instead become the driver. The rule is followed almost everywhere, with the Restatement being cited as the authority. So instead of summarizing what the various state courts have held, the Restatement has made the law in many places. 

But times change, populations shift, and what was a workable (or at least an acceptable) rule suddenly makes little sense. That happened in today’s case from the Hoosier State, in which a neighboring landlord neglected a danger tree. After all, he was a landlord, and what landlord would spend a dime that wouldn’t increase his return?

So the neighbor pointed out the decaying tree, the City pointed out the decaying tree, and all the chattering passersby pointed out the decaying tree. And then, the landlord found a drive-by arborist who eyeballed the tree (without even being able to identify the species as a Basswood from his quick “look-see”), and pronounced it fit as a fiddle. A Basswood fiddle.

Except it was not so fit. When the tree fell on the neighbor’s house, her insurance paid for repairs and then (justifiably) came after the landlord. He said, “Tough luck. The Restatement rule says I’m only liable to people on the public street.”

That was what the rule said. So the Court changed the rule. And that, boys and girls, is how the law evolves.

Marshall v. Erie Insurance Exchange, 923 N.E.2d 18 (Ind.App. 2010). John and Marjorie Marshall owned many rental properties, which John supervised. One was a vacant lot next to Cindy Cain’s home.

A tree stood on Marjorie’s lot near the boundary of the two parcels. From the time that Cindy purchased the home, she worried about the tree’s health and the danger it might pose. Cindy talked to her neighbor about the tree but got nowhere. She talked to a City code enforcement officer about the tree. The officer told Marjorie’s property manager the tree had to come down. He also spoke to John, who said he would have the tree checked. Cindy told a guy who worked for the Marshalls’ maintenance worker and a woman who claimed her husband was the Marshalls’ new maintenance worker about the hazard tree. The man Cindy spoke to agreed that the tree should be taken down and said he would speak to John about it.

On New Year’s Eve, the tree fell onto Cindy’s house, knocking over her chimney and causing damage to the roof and frame. Cindy filed an insurance claim with Erie, which held her homeowner’s insurance policy. Erie reimbursed her for the necessary repairs to her home (minus her deductible, of course). Then, Erie sued the Marshalls for damages stemming from their negligent maintenance of the tree.

Jake Denlinger, a professional arborist, testified that before the tree fell, he had looked at the tree at John’s request. Jake inspected the tree but did not take any samples of the tree’s core. He testified he did not see enough evidence of decay in the tree to warrant removing the tree. His cross-examination must have been withering because Jake – filled with doubt –  Jake returned to the vacant lot after his testimony to look at the tree stump to determine what type of tree had fallen on Cindy’s house. He found it was a Basswood tree, and returned to testify that it is difficult to judge a Basswood’s health without internal sampling because the trees do not show many exterior signs of decay.

The trial court found for Erie, and the Marshalls appealed.

Held: The trial court’s decision in favor of Erie Insurance was upheld.

The Court said that to recover in negligence, a plaintiff must establish a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; a failure on the part of the defendant to conform his conduct to the standard of care; and (3) an injury to the plaintiff proximately caused by the breach.

Absent a duty, there can be no breach and, therefore, no recovery in negligence.

In Valinet v. Eskew, the Indiana Supreme Court adopted the rule in Restatement (Second) of Torts section 363, that a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land, except in an urban area, where the possessor is liable to people using a public highway for physical harm resulting from his or her failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of his or her trees.

The Court of Appeals observed that the Valinet rule seemed to foreclose the issue of whether the Marshalls owed a duty to protect Cindy from the fallen tree. The Court, however, was unwilling to “leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure an obviously decayed and dangerous tree simply because it was a natural condition of the land.”

The Court concluded that it should depart from “the strict application of the Restatement rule in the context of urban or residential property.” That Rule was adopted when the land was mostly unsettled and uncultivated. In urban or residential areas, however, the Court held, it should not be an undue burden for a landowner to inspect his or her property and take reasonable precautions against dangerous natural conditions. “Living in close quarters with one’s neighbors in an urban or residential setting substantially increases the risk that a falling tree will cause damage to property or injury to persons, and, similar to the problem relating to a highway, the reduced size of property lots in an urban or residential setting makes the burden of time and money to inspect and secure trees on one’s property relatively minor, especially as compared to the potential damage that could result from the tree’s fall.”

Thus, the Court said, an urban or residential landowner has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners, arising from the condition of trees on his or her property. Whether the land in question is of sufficient population density to invoke the rule is a factual question for the fact finder. In addition, in determining whether the landowner exercised the requisite reasonable care, the fact finder must weigh the seriousness of the danger against the ease with which it may have been prevented. In some circumstances, fulfilling this duty may require a landowner to conduct periodic inspections of his or her property.

In this case, the Court said, the trial court applied a duty of reasonable care to the Marshalls with respect to preventing the damage caused by the fallen tree. The trial court heard evidence that the code enforcement officer contacted the Marshalls to inform them of the dangerous tree and the need to remove it, and several witnesses testified to the physical state of the tree. True, the Marshalls provided some evidence they contacted a tree specialist, but he only performed a superficial examination of the tree and recommended its removal. Because reasonable minds could draw different conclusions from the facts in evidence, it was for the trial court to determine whether the Marshalls’ conduct breached the duty of reasonable care. Sufficient evidence supported the trial court’s judgment that the Marshalls did so, and that Cindy’s home was damaged as a result.

– Tom Root

WHAT DID THE GOVERNMENT KNOW, AND WHEN DID IT KNOW IT?

One of the enduring lines from the endless (or so it seemed at the time) Watergate investigation was Howard Baker’s famous question, “What did the president know and when did he know it?” On the answer to that question turned the culpability of the President for the high crimes and misdemeanors of his minions. It still does, despite the fact that we now know that the Watergate investigation timetable was a rocket ship compared to Whitewater-Lewinsky, Valerie Plame, Benghazi–Fast and Furious–IRS, January 6th, E. Jean Carroll, and the list goes on…

It’s a great question. Many plaintiffs have discovered that possessing or lacking the answer to it often is the difference between winning and losing a tort action.

We talked about strict liability yesterday, but that’s not generally the way we do things. Were it otherwise, commerce and society would screech to a halt, because any act — regardless of how responsibly it was performed — could lead to liability and financial ruin.

Consider today’s case. A tree branch cracked and settled so far down the tree that it dangled dangerously low over a road. Linda hit it, damaging her car. No one would disagree that the branch should not have been there. Nevertheless, the harm it caused did not mean Linda could pick the State of Ohio’s pocket for repairs itself unless the State had a duty to the motoring public which it failed to discharge.

Shouldn’t the Ohio Department of Transportation have known about the danger? Should it not have corrected the defect before Linda happened along? Shouldn’t those highway workers do something to justify their paychecks? That all depends on the State’s knowledge of the defect. Or, as the late Sen. Howard Baker might have put it, “What did ODOT know, and when did it know it?”

Coleman v. Ohio DOT, 2009-Ohio-6887 (Ct. Claims, Aug, 25, 2009), 2009 Ohio Misc. LEXIS 3. One February day, Linda Coleman was driving along a state highway a half mile outside of the village of Westville, Ohio, when her 2004 Honda Accord hit a very low tree branch overhanging the road. The impact broke the windshield and damaged the right side of her car.

Linda sued ODOT, theorizing that the damage to her car was proximately caused by ODOT’s negligence in failing to maintain the roadway free of hazardous conditions. She sought a paltry $745.01, the cost of fixing her Honda.

ODOT denied liability, contending that none of its employees or agents had any knowledge of the hazardous overhanging tree limb prior to Linda’s collision with it. ODOT denied receiving any reports about the limb prior to the accident from anyone. ODOT did receive a report after Linda struck the tree, and responded by dispatching two ODOT workers to remove the tree limb the same day Linda hit it. ODOT argued that the facts suggested that “it is likely the tree limb existed for only a short time before the incident.”

ODOT related that its manager for that county inspected all state roadways n the county at least twice a month. Apparently, no overhanging tree condition was discovered at Milepost 2.50 on State Route 560 the last time that section of the roadway was inspected.

Held: ODOT had no liability to Linda.

To be sure, ODOT has the duty to maintain its highways in a reasonably safe condition for the motoring public. However, the state agency is not an insurer of the safety of its highways. In order to prove a breach of ODOT’s duty to maintain the highways, Linda would have had to prove that ODOT had actual or constructive notice of the precise condition or defect alleged to have caused the accident. ODOT would only be liable for a roadway condition of which it had notice but failed to take reasonable steps to correct.

In order to recover on a claim of this type, the Court said, Linda had to show either that ODOT had actual or constructive notice of the low-hanging tree limb and failed to respond in a reasonable time or responded in a negligent manner, or that ODOT, in a general sense, maintains its highways negligently. For constructive notice to be proven, Linda would have had to show that sufficient time had passed after the dangerous nature of the tree limb came into being so that, under the circumstances, ODOT should have learned of its existence.

The court hearing the case may not infer that ODOT knew, unless Linda presented evidence of when the defective limb first appeared to be too low over the roadway. Here, Linda had no proof that ODOT had any notice, either actual or constructive, of the damage-causing tree limb.

Generally, to prove negligence, a plaintiff must prove that a defendant owed her a duty, that it breached that duty, and that the breach proximately caused her injuries. She must also show she suffered a loss, and that this loss was proximately caused by the defendant’s negligence.

Linda had no evidence that her injury was proximately caused by ODOT’s negligence because she could not show when the dangerous condition came into being. Therefore, she was unable to show that the damage-causing object was connected to any conduct under ODOT’s control, or to any ODOT negligence.

– Tom Root

STRICTLY SPEAKING

Strict liability statutes, also known as “liability without fault,” occupy the blameless end of the “mens rea” spectrum. Our traditional notions of fair play lead us to believe that people should not be held to blame for injury unless they are somehow at fault, whether negligent, grossly negligent, reckless, or acting with intent to bring about the harm they cause.

But at common law, some acts were considered to be so inherently dangerous – the classic case was a lion that escaped from a keeper of exotic animals – that courts let the res ipse loquitur, the “thing speak for itself,” and found the owner liable for whatever mayhem ensued from a force that had once been under the owner’s control. Negligence need not be shown.

Remember the radioactive spider that bit Peter Parker and made him super-powered Spiderman? Peter (or maybe Spidey) could have sued the lab that let the spider escape. Everyone knows that a radioactive spider is an inherently dangerous instrumentality, and whoever the last guy was to have the arachnid in captivity had better be prepared to pay big, regardless of whether he was at fault or not.

But should strict liability extend to dogs? Speaking as the owner/service human of a 40-lb. canine who is a terror to woodchucks but a marshmallow around humans, I don’t really see why they should. Nevertheless, many states have dog bite statutes that make owners strictly liable for their canines’ misdeeds, regardless of fault. To be sure, some of the statutes are hybrids, making the owner absolutely liable except for all the cases in which he or she is not. In today’s case, the statute at issue made an owner strictly liable for his or her dog’s bite, unless the person so bitten was engaged in criminal trespass or other criminal conduct, was tormenting or teasing or harassing the dog, or (in the case of my dog) engaged in the status crime of being a woodchuck. So the owner is absolutely liable… sort of.

Today’s case is the kind of tree law/neighbor law mashup that you have come to rely on us to deliver. The trial court here made the tree trimmer into a trespasser, despite the obvious fact that the power company had every right to enter its easement to prune back trees. The Court of Appeals could not swallow that but instead suggested that while not a trespasser, the employee owed the dog’s owner notice that he was entering the premises, so the owner had the chance to control his dog.

With certain Supreme Court justices disappointing activists everywhere by deciding cases according to their perception of the law rather than the politics (you can tell I’m a fan of the rule of law, whether I agree with the political effects or not), there will be a lot of talk over the next few months about “judge-made law.” Do you want to see judge-made law? Just look at the gyrations of the trial and appellate court in the case below.

The judges here clearly could not accept that the dog’s owner should have to pay when the dog had been contained in a yard behind a fence and a “no trespassing” sign. A stranger—regardless of intention and right—barged in anyway and complained because the dog chased him. And they found a way to bend the law to suit their sense of propriety.

Collins v. Bergman, 2010-Ohio-6213 (Ct.App. Montgomery Co., Dec. 17, 2010), 2010 Ohio App. LEXIS 5233, 2010 WL 5274. Jason Collins worked for Nelson Tree Service, which was under contract with the power company to remove trees that were too close to utility poles and lines. Jason’s job was to go from house to house inspecting all trees encroaching Dayton Power & Light utility lines and poles, so any trees too close could be trimmed back at a later time.

When Jason reached Jeff Bergman’s house, there was no answer when he knocked on the door. Jason left a courtesy card on the door, notifying Jeff that a tree trimming would occur in the future. Jason then went around the back of the house to count the trees. He could hear a dog barking. The dog was a Labrador-Rottweiler mix named Taz. Jason didn’t know Taz had a dog door giving him unfettered access to the back yard.

Jason could see that Jeff and his neighbor had built 6-foot privacy fences, which made it impossible for the power company to check its easement. Thinking that Taz was inside the house, Jason entered the fenced-in backyard through a gate marked “no trespassing.”

Taz was not inside. As Jason fled the barking dog, the cantankerous canine planted his fretwork in Jason’s pant leg. Jason tried to climb the privacy fence, but fell back, injuring his shoulder.

Jason sued Jeff under Ohio’s dog bite statute, O.R.C. § 955.28. Jeff filed for summary judgment. At the time, that statute provided that “the owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property… or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog …”

OK, there’s nothing in the statute about impersonating a woodchuck.

The issues in this case were whether Jason entered Jeff’s property pursuant to the utility easement and whether he was a trespasser within the meaning of the dog bite statute.

The trial court determined that Jason was injured within the easement, where he had a right to be. However, the court said, the easement did not provide a specific place for the utility to enter the property, and therefore, Jason was required to make use of the easement in a reasonable manner. The court found that Jason did not act reasonably in deciding to enter Jeff’s property without notice and through a latched gate and a fence with a posted “no trespassing” sign. The court also noted that Jason failed to follow his own company’s policy in entering a property when there is a dog barking in an enclosed area. Because Jason did not make reasonable use of the express easement granted to the utility company, he was a trespasser within the terms of O.R.C. § 955.28(B). The trial court granted Jeff’s summary judgment motion.

Jason appealed.

Held: Jason was a trespasser and not entitled to damages.

The Court of Appeals agreed with Jason that he had a right to enter the easement, and because entry to the easement was blocked, he took the only reasonable avenue open to him through the backyard fence.

However, in determining whether a person is a “harborer” under the statute, the Court said, “the focus shifts from possession or control over the dog to possession and control of the premises where the dog lives.” The hallmark of control is the ability to both prevent and exclude others from coming onto the property. Because Jason entered the property without permission, Jeff lost the ability to control his property at the time of the incident. Thus the trial court properly denied Jason’s motion for partial summary judgment and properly granted summary judgment to Jeff on the O.R.C. § 955.28 claim.

– Tom Root

WERE WE ALARMISTS?

Yesterday, I noted the incremental creep of the law toward imposing an affirmative duty to inspect trees. The Turner v. Ridley court suggested that it was no longer sufficient for an owner to lack actual or constructive knowledge of a defective tree. In some cases, he had a duty to inspect, and, in the absence of doing so, he was charged with knowing that his trees were dangerous.

Which one is Tilford E. Dudley?

Was I wrong in predicting that Turner portended the judicial application of a duty to inspect? Today’s case was decided only a few years after Turner by the same court, the District of Columbia Court of Appeals. In this case, a tree standing next to an apartment house fell across an alley onto Tilford E. Dudley’s place. Dudley’s name itself is classic – evocative of a titled cousin come to visit the Granthams at Downton Abbey.

Tilford sued the apartment owner, Meadowbrook, Inc. At trial, (land)lord Dudley showed that the tree, although quite alive when it fell, had a five-foot-long concrete patch on one side and was decayed from the inside out. It hadn’t been shedding branches, but because of the proximity of the apartments, soil had been banked several feet high around the tree, and a “well” had been dug at its base for the trunk.

The trial court threw out the suit after Tilford Dudley finished his direct case, holding that the defendants won as a matter of law because there was no evidence they were on notice that the tree was defective.

A concrete patch in a tree.

The Court of Appeals was apparently rather impressed that the tree had been patched with enough concrete to rebuild the 14^th Street Bridge. Concrete plugs in trees were a common enough treatment to fend off decay years ago, but – like physicians’ bloodletting as a cure for illness – it has fallen out of favor recently. But in this case, the Court said, such a big concrete patch – as well as, possibly, the banked soil and apartment building only four feet from the truck ­– ought to have caused the owner’s manager to do something to inspect the tree or, importantly, hire an arborist to inspect the tree. There may have been evidence she did so, but the Court of Appeals said that Meadowbrook couldn’t hide behind a general lack of obligation to inspect.

The Court thus nudged the standard a bit further along. If something in the tree’s history – and the concrete patch apparently was over 10 years old – might suggest that it was diseased or injured at one time, the Court seemed to say, an owner might have an affirmative duty to inspect, or even to hire an expert to inspect, her trees.

Of course, there’s no telling what condition might trigger such an affirmative obligation. Decayed trunk? Dead limbs? Bracing or cabling installed by a tree service? A surfeit of twigs shed by the tree? Insects clinging to the bark? No one can say, but you can be sure that a court will be more willing to Monday-morning quarterback a defect that results in collapse, holding that the property owner should have been inspecting for it.

Dudley v. Meadowbrook, Inc., 166 A.2d 743 (C.A.D.C. 1961). A large tree on Meadowbrook’s property fell across an alley and onto Dudley’s premises, damaging his garage and other property. Dudley sued for his damages. At the end of Dud’s case, the trial court found for Meadowbrook, ruling that it was unnecessary for the defense to put on any answering evidence.

Dudley appealed.

Held: The holding was vacated, and the case returned to the trial court.

The tree, which had been growing since before 1942, fell when no strong wind was blowing. When an apartment house was built there, the soil had been banked 2 or 3 feet deep on two sides of the tree, and a concrete well was built around the tree trunk. The apartment building was about 4 feet from the tree well, and a paved parking area was about a foot away. Dudley testified that the tree was about 75 feet tall and 2.5 feet wide at the base. Where it broke off at ground level, there were indentations extending about 6 inches below the ground and into the base of the tree trunk, and an area of about 2 feet inside the trunk appeared “spongy, decayed and soft,” although no decay was visible on the outside of the trunk. Dudley said the tree was in full foliage with no dead branches but that on one side of the trunk, there was a strip of concrete extending from near the base to a height of about 5 feet. The cement had been there for at least 12 years before the tree fell.

No longer part of an arborist’s bag of remedies …

The Court admitted that the law was muddled, but held that “the sound and practical rule is that liability in such cases is to be determined by the test of negligence and that a landowner should be held to the duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor’s property.” It then opined that “[a] healthy tree does not ordinarily fall of its own weight without some exterior force being directed against it. Though some evidence suggested the tree looked sound, it was, in fact, full of rot. At least 13 years earlier, it had been subjected to surgery and a large area filled with concrete. We think it cannot be said as a matter of law that during all the intervening years the owners were under no duty to inspect it or have it examined by an expert to see whether it required further attention and whether it was safe to let it remain standing.”

Without any evidence other than its own sense that something didn’t seem right that the tree had fallen without any apparent external factor and that it had once had surgery, the court substituted its judgment for the evidence in the record. Some of its holding can be ascribed to courts’ natural bias in favor of letting a jury decide rather than having the case taken from the factfinder by a trial judge. But if evidence of surgery more than 13 years prior is sufficient to “require … [the owners] to produce evidence as to what they knew about it or what examinations they made during the many years since the tree was last treated,” then a generalized rule that requires urban owners to inspect their trees cannot be far behind.

Here, the case was sent back for a new trial.

– Tom Root

YEAH, LITERALLY

One of the many badges that marks me as a curmudgeon, according to a recent book, is my preoccupation with proper language. OMG! Am I ever!  I suppose people use slang because YOLO. But since this blog aspires to be the GOAT of tree-and-neighbor law sites, I’m going to stay frosty and keep it real.

I trust you recognize irony when it smacks you in the face.

I am not ashamed to admit that my gorge rises when people say “irregardless” when they mean “regardless,” say “affect” when they mean “effect,” or use “like” every third word or so. And don’t get me started about made-up nonsense like “ze” or “Mx” or “Latinx.” As far as we’re concerned, “ze” should always precede the word “plane” and be shouted by Tattoo. “MX” will always be a missile program. As for “Latinx,” it’s just wrong. Ask 97% of Latinos what they think.

But what drives me nuts (metaphorically) is the casual and improper use of the word “literally.” The word means “actually” or “without exaggeration.” Believing as I do that the widespread devaluation of like every corner of the English language is like literally going to send us to hell in a handcart, I was surprised to see that today’s case ­– well over 50 years old – featured a witness describing “literally thousands of bees inside the trunk” of the decayed tree.

I was fascinated that, with such a swarm pursuing him, the witness took the time to count the bees, at least until he passed 2,000. That took nerves of steel. Literally.

Beyond my disquiet over the witness’s imprecise and flawed language, I was interested in the application of both Hay v. Norwalk Lodge No. 730, B.P.O.E., 92 Ohio App. 14, 109 N.E.2d 481 (Supreme Court, Ohio, 1951) and Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231 (3rd Cir. 1951). While those decisions – which I’ve discussed recently here and here – relate to injury to passing motorists, the court here couldn’t see any practical difference between the landowner’s duty to a motorist and to a parked car. Furthermore, it found that the tree was so obviously dead and dangerous that the landowner was chargeable with knowing about its condition, although he’d only owned the property for a few weeks.

How many bees? Literally thousands …

The court said that a few weeks was not so legally insufficient a period of time for him to have gotten over and inspected the place that the factfinder was wrong for finding him liable.

The trend here is clear: the law was moving toward holding that a property owner had an affirmative duty to inspect the land. Actual or constructive knowledge wasn’t enough. The absentee owner should have done a drive-by, the court decided by implication. Thus the evolution of a requirement that an owner affirmatively care for his or her property continued.

Turner v. Ridley, 144 A.2d 269 (Ct.App.D.C. 1958). Turner owned a house facing a street on which automobiles were regularly parked. The small front yard featured a single large tree. On a fall evening, Ridley’s friend parked Ridley’s car at the curb in from of Turner’s house. Early the next morning, with no inclement weather to blame for the event, the tree toppled and fell across the sidewalk, striking Ridley’s car.

At the time the tree fell, according to the man who had parked Ridley’s car – a man named Reid ­– the tree ‘was rotten and looked like it was dead and had very few leaves on it.’ and on the night before it fell he had remarked to a friend ‘that tree looks like it is going to fall someday.’ As it fell, the tree broke off even with the ground, and then it was observed that the tree was hollow and badly decayed with ‘literally thousands of bees inside the trunk.’

Turner testified he had purchased the property through an agent at a foreclosure sale a month before the mishap, that the property had been vacant since he purchased it, that he had never seen the property or the tree, and that he had no notice or knowledge that the tree was in a dangerous or rotten condition. The trial court awarded judgment to Ridley for the damages he sustained.

Turner appealed.

Held: Turner was liable for the damage to Ridley’s car. While prior cases diverge somewhat, the Court found the Ohio decision in Hay v. Norwalk Lodge No. 730, B. P. O. E., instructive, holding that “an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway.”

Knowledge could either be actual or, as held in Brandywine Hundred Realty Co. v. Cotillo, constructive, “if such condition was known or by the exercise of ordinary care could have been known by the defendant.”

The car was the first casualty … but not the only one.

The Court admitted that Hay and Brandywine dealt with personal injuries to travelers on the highway, but it observed that there is “no distinction in principle between the case of personal injury to one lawfully traveling on a highway and the case of property damage to a vehicle lawfully parked on the highway.” The issue was whether the owner – who had only owned the property for a few weeks and who had never seen it before – could be charged with constructive knowledge of the tree’s condition. There was no question that the tree was obviously dangerous and quite dead. The Court acknowledged that “[a] three-week period is no great length of time, but we cannot rule that such period was legally insufficient time for appellant to look over his property and observe the condition of the tree and take steps to prevent its fall. We think the evidence presented a factual question as to notice and lack of care.”

“Hard cases are the quicksands of the law,” as an old maxim put it. Here, the intersection of an absentee owner, an obviously defective tree, a fairly minor damage bill, a colorful witness and lack of any defense by Turner, combined to bring about a holding that imposed additional duties on a landowner.

– Tom Root