Lawyer Weekly USA

Tree Law: More complicated And Plentiful Than Many Lawyers Think
Lawyers Weekly USA, November 22, 2004

By Correy E. Stephenson

As the world has become increasingly specialized, lawyers have embraced the concept of a niche practice, but perhaps none so arcane as "tree law."

Barri Kaplan Bonapart, a sole practitioner in Sausalito, Calif., began her legal career at a large firm representing corporations in complex litigation. But when a friend's neighbor cut down trees without permission, Bonapart took the case.

"I figured, as most lawyers do with their first tree case, how hard could it be?" she laughed.

She quickly learned her lesson, noting that in California, tree law spans six different civil codes in addition to common law and local ordinances.

Between a jury award and insurance payments, her first client received a six-figure recovery.

"Pretty soon, the work I did concerning trees and tree-related issues began to eclipse everything else," she said.

Her specialty includes personal injury and real estate law, as well as defending a municipality or a tree care company.

Bonapart, who now handles tree-related cases exclusively, said the type of work that comes in her door varies according to the season.

"When the weather is good, there are view issues," she explained. "But when the storms come, tree hazard and personal injury cases become more common."

Victor D. Merullo, a tree law specialist in Columbus, Ohio, and author of "Arboriculture and the Law," has noticed an increase in tree-related cases during his nearly three decades as a lawyer.

Merullo's background--his family owned a landscaping business and he earned his undergraduate degree in horticulture--led to his interest in tree law.

Both attorneys emphasized the importance of expert teamwork in tree-related cases, specifically, registered certified arborists, or RCAs. Merullo said he always brings in an arborist.

"With tree cases, what the arborist tells you may totally determine your strategy," Bonapart explained.

And without an expert opinion, a case could be undervalued, or it may turn out that because of the species or condition of the tree, the case belongs in small claims court, she added.

In addition to expert testimony, RCAs can fill other roles in a tree case.

Joe McNeil, a RCA in Pleasant Hills, Calif., has testified in half a dozen cases and been deposed about 25 times, but he also worked as an arbitrator.

"I was the binding arbitrator in a case where the two attorneys didn't want to retain experts or hire an attorney as an arbitrator--they wanted the trier of fact to be an expert," he explained.

McNeil said he enjoyed the experience, despite the fact that the losing party never paid.

In another instance, McNeil was assigned by the court as a neutral third party in a particularly contentious dispute between neighbors. Although he drafted a settlement agreement the parties agreed upon, they eventually returned to court.

"They couldn't agree if it was executed correctly!" he said.

RCAs: Essential Experts

The RCA designation requires a background in arboriculture and extensive training.

Consulting arborists, a even higher level of training, are certified to be able to communicate that knowledge through extensive training in both written and oral skills--making them very useful to tree lawyers, according to David Hucker, a registered certified arborist in Valley Forge, Penn.

Hucker, who owned and operated a small tree maintenance company for 25 years, now consults full time. He described his expertise in two areas: valuation and hazard.

"Or how much is it worth and why did it fall on Mrs. Jones?" he said.

He estimated that half his cases involve utility companies, specifically their failure or zealousness to maintain wire space.

Jim Clark, a "frustrated college professor" turned RCA, said most lawyers initially turn to the world of academia when looking for an expert witness.

In tree law cases, however, academics may be "unfamiliar with the standard of care and the standard industry practices." He suggested hiring a RCA, "because you know that person has a level of educational achievement, as well as some practical experience and familiarity with what goes on in the field."

Clark said his typical procedure is to send his rate sheet ($200 per hour) and CV to attorneys after talking about the case over the phone. He doesn't require a retainer, but does have a four-hour minimum. After receiving documents from the attorney, he visits the tree.

"Usually I wait until after I read the material, because it will become clear to me what the issues are surrounding the matter," Clark said. "Why did the tree fail? Or, did the parties have notice it might fail? When the tree was pruned previously, did they follow standard procedure or did they create a hazard?"

Following his field consultation, Clark said he discusses his conclusions with the attorney to determine whether further work is necessary.

Hucker noted that prior to a site visit, certain permissions might be necessary from the property owner as well as surrounding neighbors. In addition, he said storage is often an issue in cases of tree failure.

"I'm working on a case right now where a tree went through a house and we want to retain it as a piece of evidence. It's seven tons and will require hydraulic cranes and trucks to move it to a secure storage facility," he explained.

And depending on the time it takes for a claim to be processed and/or a suit filed, "theoretically, that tree could sit under a tarp for seven years before I have to stand it up and put it back together," Hucker said.

Hucker also noted that until an attorney asks him to generate a report, he doesn't provide any written documentation to lawyers.

"Anything we write is potentially discoverable," he explained. So his initial on-site discussion with the attorney remains off the record until he generates his actual report.

Hucker said most tree law cases are over by the time they reach a courtroom, mainly because of a pre-trial battle of the experts.

"Realistically, it all takes place in the report," he explained.

Hucker agreed that RCAs need to be included early on in the process, but he also emphasized the need for "full disclosure."

"Give us all of the information," he said, from depositions to police reports to the complaint itself.

Hucker recalled a case where a huge tree limb fell from a large street tree owned by a government entity during a storm. The limb fell on the roof of a car and killed a young woman driving home from work.

"It was very clear to me that horribly improper pruning procedures done by the state years earlier caused decay and failure in a large part of the tree," he said. "But the defense argued that during the storm, lightning actually hit the tree, causing the branch to fall."

Because the plaintiff's attorney had retained him at an early date, Hucker was easily able to explain to the jury that the black on the tree wasn't a burn mark but decay.

But had he been hired closer to trial, or not provided with all of the lawyer's documentation, "it would have been a disaster for all of us," Hucker said.

Roots Of The Law

"Most of tree law comes from common law concepts," Merullo explained, the majority imported from England.

"Landowners have a duty to inspect their trees to determine if a tree is healthy or hazardous, and remove branches or an entire tree if it poses a hazard. If they fail to remove branches or the tree itself, and it falls and injures someone or damages property, they will be liable, and might even be personally liable, beyond the protections of their insurance policy, if they should have known to remove the dangerous part of the tree," he said.

Historically, the law made a distinction between trees in rural areas and urban areas, he said. But a 1994 Connecticut case reflects the changing trend of the urban/rural distinction. Toomey v. State, Docket No. CV-91-0057183S (unpublished).

In that case, a large tree next to a roadway in a rural area fell and killed two people in a car. The state of Connecticut had a policy of driving past trees to inspect them and hadn't noticed anything about the tree in question. The state argued that because the tree was in a rural area, they didn't have as high a duty to inspect as if the tree was in a more urban area.

But the court "blended" the urban/rural distinction, Merullo explained, and held that as the risk of harm increases, the duty to inspect increases. Because the tree posed a large danger and was located close to the road, the state should have done more than just a drive-by, he said.

But "every state takes a slightly different approach," Merullo said.

In addition to variations upon traditional common law, states, counties and even cities have legislated tree-specific law. For example, Bonapart said the town of Mill Valley, Calif., highly values redwood trees and declared them "heritage trees," giving them legal protection.

However, just one town over in Sausalito, the community chose to place a higher value on views, and redwoods, which are quick growing and large, have been designated as undesirable.

Bonapart noted that attorneys must be aware that tree regulations can be diametrically opposed, even in neighboring cities.

Sue Thy Neighbor

RCAs and tree lawyers alike agreed that neighbors provide the biggest source of litigation.

"I got a call last week from someone whose neighbor had taken over pruning for him," McNeil said. "The neighbor had completely whacked all of the Japanese maples in front of his house, so he warned him never to come onto his property again."

A few weeks later, he came home to find his 70-foot pine trees in the backyard cut down.

"So he calls the police and they go with him to talk to the neighbor," McNeil said. "He asks if the neighbor remembers their prior conversation and when the guy says yes, he asks about the trees missing from his backyard. And the neighbor says, 'Oh, I thought you were just talking about the front of the house.'"

"The weirdest, craziest disputes involve neighbors," San Francisco RCA Jim Clark said. "Neighbors will do just about anything."

A common assumption is that homeowners have an absolute right to cut offending branches or roots that encroach onto their property, Bonapart noted.

Merullo referenced a California case where the court ruled on a dispute regarding tree roots to explain tree law property rights. Although the court recognized a "full, contemplated use of property," it also held that use to a standard of reasonableness. Booksa v. Patel, 24 Cal.App.4th 1786 (1994).

In that case, a Monterey pine tree growing near a boundary line caused cracks in a neighbor's blacktop driveway with its roots. The neighbor dug three feet down to get rid of the roots and killed the tree.

To get the full use of his property, however, Merullo said the neighbor should have dug only six inches--a more reasonable standard.

McNeil said that in some instances, the neighbor who doesn't own a boundary line tree may receive more benefits under the law.

"If a tree comes straight out of the ground on party A's property but extends into the neighbor's yard, then party B has the right to prune or trim the tree at least on his own property. But, if the tree is jointly owned, then party B is restricted to what party B and party A can agree upon. So if party B has partial ownership, he may actually have fewer rights," he explained.

Hucker recalled an unusual boundary dispute based on an old, poorly written deed, which described a property boundary as running "down from the crick to the old black oak." To determine ownership and boundary lines, Hucker had to dig up the stump in question and test it to determine if it was the black oak cited in the old deed.

"It wasn't --but we sure tried, " he laughed.

Branches Of Specialty

Bonapart has also represented homeowners in fire cases, including what she said may be the largest private settlement for tree damage.

Recently, she resolved a case for a combination of $4 million in cash and remedial tree work for her clients after the local power company caused a fire that burned acres of trees. She argued the fire occurred when the defendant's tree-trimming contractor failed to trim trees that subsequently came into contact with a power line.

View disputes are also a huge area of litigation, Bonapart said.

Merullo explained that although the common law adopted English law, the United States did not accept the English common law right to a view.

Up and down the Pacific Coast, Clark said view disputes are a huge issue, with people arguing over the need to prune or how much view clearance is required.

McNeil agreed.

"It's a combination of hilly terrain, spectacular vistas and high disposable income," he joked.

Merullo said his largest cases have been for personal injury, where a tree failed and injured or killed the victim.

Clark agreed, noting that tree failures are the most common type of case he's worked on, including a recent failure into a power line, taking the line to the ground and starting a fire that burned 10 acres of prime producing chardonnay grapes.

McNeil recalled a case--ultimately settled--in which a limb dropped off a tree in a central California city and killed a 10-month-old baby in a stroller.

As he analyzed the tree, however, he found it healthy enough that even a RCA wouldn't have found the signs of the branch's impending failure. But the tree next to it was a "horror story," with problems detectable even from the ground.

Instead of relying simply on the conditions of the tree that failed, he said the attorney was able to use his findings about the tree next to it to argue that given the generally prevailing conditions, the city breached its duty to maintain the trees.

McNeil, whose work splits evenly between plaintiffs and defense work, said even the most common cases often pose complicated problems.

"Very often I'll be called one year after the accident occurred, and the sidewalk may have been torn up and replaced, or asphalt filled in, or the whole sidewalk could be gone," he said. "To find the conditions that actually caused the trip and fall takes a bit of investigation."

McNeil voiced a common RCA refrain when he urged lawyers to call an expert as soon as possible, "while conditions are still the same. Even if lawyers or their clients take pictures and provide them, they are almost never what the expert really needs."

How Much For The Blue Spruce?

Some cases are strictly valuation.

Clark worked on a case in which a company had gone onto private property and removed three trees. Liability was never in question, but value was another story.

"I established a value of about $12,000 and another expert for the defendant established a value at approximately $11,000," Clark said. "But the plaintiff's expert valued them at $170,000!"

Hucker said valuation can vary greatly from state to state.

"In Pennsylvania, the difference is real estate value pre- and post-occurrence," he explained.

For example, a suburban house with a flowering dogwood in the backyard might be worth $450,000. If the tree were removed by an unhappy neighbor, "it's probably still worth $450,000," Hucker said.

On the other hand, he just finished a case in which a homeowner claimed that a tree company took down the wrong tree, and said it would cost $35,000 to replace the tree.

"They were right about the value of the tree," Hucker said. "But there were 35 trees on that property, so does that mean the property is worth more than $1 million?"

Hucker said tree valuation poses the greatest challenge in the appraisal world.

"Just about everything else, from horses to irreplaceable works of art to collector cars, can be found and moved, but we can't move our stuff!" he said.

Bonapart said many lawyers may underestimate the value of a tree-related case. She recalled a client who was injured after a tree fell on her car while driving on the highway.

Her client had been rejected by five or six attorneys who felt that a tree failure during a storm could not result in liability on the part of the property owners.

"But I did just a minimal amount of investigation and because I had knowledge about the area, and the way in which the tree had been planted and maintained, I had a solid argument to defeat the act of God defense," she said.

Bonapart recovered approximately $650,000 for her client.

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