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

Remember the Tort of Trespass From Law School?

 

Perhaps you have not studied the law for the cause of action for a claim of Trespass but, should you need one, here is a recent decision by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas providing the current status of Pennsylvania law on the elements of proof and allowable damages.

In the case of LBM Scranton, LLC v. Richardson, No. 14-CV-5353 (C.P. Lacka. Co. Sept. 16, 2020 Nealon, J.), the court awarded a substantial amount of damages based, in part, on a Trespass claim relative to a defendant's failure to vacate certain premises purchased by another at a tax sale.

Anyone wishing to review this decision may click this LINK.

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.

Premises Liability Standard Towards Trespassers Reaffirmed by Pennsylvania Superior Court

In its recent "non-precedential" decision in the case of Fisher v. Mallard Contracting Co., Inc., No. 2249 MDA 2012 (Pa.Super. Nov. 25, 2013 Mundy, Olson, Strassburger, J.) (mem.op. by Strassburger)(Mundy, J., dissenting), the Pennsylvania Superior Court affirmed a trial court's granting of summary judgment in favor of a defendant landowner and lessee and against a trespasser in a premises liability case.

In Fisher, the plaintiff was allegedly trespassing on the defendants' land while riding an ATV.  The plaintiff rode the ATV over a berm and into a mining pit.

The Court reiterated the rule of law in Pennsylvania that a trespasser may recover for injuries sustained on land only if the possessor of land was guilty of wanton or willful negligence or misconduct.

The Superior Court in Fisher rejected the plaintiff's argument that, because they were foreseeable trespassers, that an ordinary negligence standard should have been applied.

The trial court in Fisher had ruled that the ordinary negligence standard applies when dangerous activity is being carried out on the land and not when, as here, the injuries were due to a dangerous condition existing on the land.

The court also  noted that, in any event, with respect to foreseeable trespassers, landowners and possessors of land are only liable for injuries sustained by the trespasser if the injured party establishes that the defendant had acted willfully or with wanton misconduct.

Despite plaintiffs' production of a mining expert opinion that the landowner defendants failed to correct hazardous conditions created by lack of guard rails or berms, the Superior Court in Fisher found that the plaintiffs encountered a mining pit that was generally made inaccessible to the public and was an obvious danger to anyone.

The appellate court found no evidence that the landowner and mining operator recklessly disregarded a risk to trespassers such that there was a willingness to inflict injury.

Anyone wishing to review the Majority Opinion in Fisher may click HERE.  Judge Mundy's Dissenting Opinion can be viewed HERE.

Third Circuit Court of Appeals Addresses Invasion of Privacy Suit Against Google Maps

On January 28, 2010, the Third Circuit Court of Appeals issued an Opinion that allowed a Pittsburgh couple's lawsuit to proceed against Google under allegations that agents of the internet company trespassed upon the couple's private property and posted photographs thereby secured of their home and swimming pool on the "street view" portion of Google Maps.

In Boring v. Google Inc., No. 09-2350 (3rd Cir. Jan. 28, 2010)(marked "Not Precedential" by the Court), the plaintiffs claimed that their 1,000-foot private driveway was clearly marked with a "No Trespassing" sign. Nevertheless, a Google driver allegedly disregarded the sign and entered their property in a vehicle equipped with a panoramic camera to take the photos that were uploaded onto Google Maps.

The suit was originally filed in the Allegheny County Court of Common Pleas but was removed to federal court by Google. There, a Western District Court Judge granted Google's motion to dismiss the case in which invasion of privacy, negligence, unjust enrichment, and trespass claims were asserted.

On appeal, the Third Circuit upheld most of the District Judge's dismissal but reversed the dismissal of the trespass claim. The trespass claim was remanded to the District Court for further proceedings.

A copy of the Third Circuit's Opinion can be viewed at http://www.ca3.uscourts.gov/opinarch/092350np.pdf.



Source: Shannon P. Duffy. Article: "Third Circuit Oks Homeowners' Trespass Suit Against Google," The Legal Intelligencer, http://www.law.com/jsp/article.jsp?id=1202439617714 (Jan. 29, 2010).