No Duty of Care Created by Simply Giving a Thumbs Up To Proceed With Cutting Down a Tree

In the case of Miller v. Kinley, No. 22-00349 (C.P. Lyc. Co. June 18, 2024 Carlucci, J.), the court granted a Defendant summary judgment based on a finding that simply given a Plaintiff a “thumbs up” signal during the course of cutting down a tree did not create a duty of care by that Defendant when the tree that the Plaintiff was cutting fell on the Plaintiff.

In this case, the Plaintiff alleged that the Defendants had granted him permission to cut down trees on their property. The Plaintiff alleged that one Defendant, who had transported the Plaintiff to the property, agreed to assist in the removal of the trees by acting as a spotter and a safety coordinator.

The court noted that the Plaintiff failed to support this allegation with his deposition testimony.

The Defendant at issue filed a Motion for Summary Judgment. The court found that the Defendant was entitled to summary judgment because there was no genuine issue of material fact as to any duty owed by that Defendant to the Plaintiff. The court found that no reasonable jury could find that, by giving the Plaintiff a “thumbs up” signal, that Defendant assumed as duty of care to ensure that the Plaintiff safely cut down the tree and stay out of its way as it fell.

Judge Carlucci noted that, under the common law of Pennsylvania, absent a special relationship between the parties, there is no duty to control the conduct of a third party to protect another from harm.


Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer Common Pleas Case Alert” Law.com (Aug. 22, 2024).

Encroachment By Trees Determined to Be a Continuing Trespass for Statute of Limitations Purposes

In the case of Long v. Reccek, No. 3458 EDA 2019 (Pa. Super. Nov. 25, 2020 McLaughlin, J., Pannella, J., McCaffery, J.) (Op. by McLaughlin, J.), the Superior Court reversed the entry of summary judgment in a trespass/nuisance case involving a neighborly dispute regarding overhanging trees. 

The appellate court ruled that the alleged encroachment upon the Plaintiff’s property by trees growing on the Defendant’s property constituted a continuing trespass and nuisance such that the statute of limitations had not yet run on the Plaintiff’s claim.

The court noted that, under Pennsylvania law, whether a trespass or a nuisance is permanent or continuing involves an analysis of the character or what produced the injury, whether the consequences will continue indefinitely, and whether past and future damages may be reliably ascertained.

The court noted that the trespass/nuisance in the form of overhanging trees is a continuing wrong given that trees would obviously continue to grow such that any encroachments are bound to continue to occur.

As noted, the appellate court reversed the trial court’s entry of summary judgment.


Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  www.aboristsnearme.com

Standards for Damages in a Civil Trespass Action Reviewed by Judge Nealon of Lackawanna County

In the case of Huffsmith v. PPL Electric Utilities Corp., No. 11-CV-1012 (C.P. Lacka. Co. Nov. 3, 2018 Nealon, J.), the court addressed the appropriate standard for the assessment of damages in a trespass action.  

This case arose out of a trespass action filed by the Plaintiff against various Defendants seeking to recover damages for the allegedly intentional removal of fully-grown evergreen trees along the Plaintiffs’ property.   In this decision, the court addressed various Motions In Limine filed by the Defendant, PPL, which motions were joined in by the certain other Defendants as well.

In his Opinion, Judge Nealon reaffirmed the rule of law in Pennsylvania that a person is subject to liability for trespass on land in accordance with the provisions of the Restate (Second) of Torts §158.

Under that Restatement (Second) of Torts §158, a party is subject to liability to another for trespass if that party intentionally enters another’s land or causes a thing or a third person to do so.  

The court also noted that a person who authorizes or directs another to trespass upon another person’s land is also liable himself or herself as a trespasser to the extent if the trespass was committed directly by the person directing the activity.   Judge Nealon noted that this rule of law applies even if the authority or direction is given to one who is an independent contractor.   

Based upon the allegations of the Plaintiff that the subcontractor intentionally entered their land and unlawfully removed trees at the direction of PPL, the court found that liability for trespass may also be imposed upon PPL under the circumstances presented.   The court also rejected the contention of PPL that the Plaintiffs were barred from offering evidence of damages at trial as the Plaintiff’s never produced an expert report to document their damages.   The Plaintiffs countered with an argument that all landowners are competent to testify as to the value of their property.

In ruling on this issue, Judge Nealon noted that the proper measure of damages in trespass actions seeking to recover damages to injuries for land is well settled.   Under this settled rule of law, if the land is repairable, the measure of damage is the lesser of: (1) the cost of repair, or (2) the market value of the damage property (before it suffered the damage, of course).  

If the land is not repairable, the measure of damages is the decline in market value as a result of the harm.  

In this Huffsmith case, the trees removed were at least 70 feet tall and that it would take several decades before newly planted trees could become full grown to that height.   Given that the Plaintiffs were unable to find comparable affordable replacement for the twelve (12) trees that were removed that were 60-70 feet in height, the court found that the claimed damage to the Plaintiffs’ property by the removal of the trees was irreparable and that the proper measure of damages would be the decline in the market value as a result of the harm.   Judge Nealon additionally ordered that the Plaintiffs would be allowed to offer their lay opinions at trial as to the decline in the value of their property that was allegedly caused by the removal of the trees.  

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon noted that any objection to that testimony by the Defendants would relate to the weight of that testimony rather than its competency or admissibility.  

On another issue, the court also ruled that, under Pennsylvania law, a tortfeasor’s actions in intentionally removing another party’s trees has been deemed sufficient to warrant the imposition of punitive damages in a trespass case.   Moreover, in this matter, the Plaintiffs allege that PPL directed the removal of their trees in retaliation for the Plaintiffs’ earlier objections to a PPL project, thereby arguably evidencing a state of mind to support a claim for punitive damages. 

Therefore, based upon the record before the court, Judge Nealon allowed the Plaintiffs’ punitive damages claims to proceed.  

This decision can be viewed online at this LINK.