The Goose and The Gander, Revisited

The proverb “What’s good for the goose is good for the gander” suggests that what benefits one should benefit another in similar circumstances. Ms. Barbara Balzer found that this time-honored phrase was a perfect fit for her neighbor, Ms. Cindy Ryan.

A large pine tree stood on Ms. Balzer’s property near the boundary between her property and Ms. Ryan’s property. The tree’s roots encroached onto and into Ms. Ryan’s property, damaging the sewer line that ran under Ryan’s driveway. To fix the sewer line, the driveway had to be removed and replaced. While removing the driveway, some of the encroaching tree roots were cut or destroyed.

Although this did not kill the tree, a consulting arborist had the opinion that it undermined the tree’s structural integrity and increased the risk that the tree might someday fall on Balzer’s house. Accordingly, Balzer paid to have the tree removed.

Balzer sued Ryan in the county court to recover the costs of removing the tree. After a nonjury trial, the county court entered a final judgment awarding Balzer only a portion of the costs she incurred.

Balzer then appealed the judgment to the circuit court, arguing that the county court erred by not awarding all her costs. Ryan cross-appealed the judgment, arguing that the county court had erred in finding Ryan liable to Balzer for damaging the tree because Ms. Ryan had the right to cut the tree roots that encroached onto her property.

The circuit court reversed the county court judgment. The court reasoned that because Ms. Balzer could not be compelled to pay for the damage to Ms. Ryan’s sewer line caused by the encroaching tree roots, she likewise had no cause of action against Ms. Ryan if the tree was damaged when Ms. Ryan exercised her “privilege” to cut the roots encroaching onto her property (self-help).

Dissatisfied with the circuit court’s decision, Balzer then sought review by filing a petition for a writ of certiorari in the district court of appeals. A writ of certiorari is an order from a higher court to review a lower court’s decision. This is often used in cases when significant legal questions are present or when a potential new legal precedent might be set.

The judge of the district court of appeals stated that the circuit court had followed proper procedures. So the higher court’s review focused on whether the circuit court’s decision deviated from well-established legal standards. A deviation means more than just making a legal mistake.? It means going against a well-known legal principle in a way that leads to an unfair outcome. If there’s a previous case that sets a standard (controlling precedent), and the court goes against this, then it can be considered a deviation. However, if no such standard exists, the court can’t be said to have deviated since there’s no established rule to follow.

In this case, the circuit court did not violate any well-known legal principle, so the original ruling remained valid.

The takeaway lessons from this matter include but are not limited to:

1. If you are called on an assignment that requires a risk assessment, and you are qualified to conduct a risk assessment, then by all means possible inform your client of any likelihood of tree failure. Make certain that your opinion is in writing with a date for the report. Although this is not required by Tree Risk Assessment Qualification (TRAQ), you are your client’s best friend until a loss is incurred. At that time, you are fodder to be joined in a lawsuit.
2. Make no statements or opinions as to the likely legal repercussions should the subject tree fail in part or in whole. You are not an attorney. You are not qualified to give legal advice. You may think you know the answer to your client’s question and that you are extending to them your vast knowledge. However, you have no vast knowledge of legal matters. Your assignment is to render an opinion on risk—period. Stay in your lane.
3. The question of self-help and resultant damage while initiating that privilege varies from state to state. The law may seem straightforward to you in reviewing your geographical area of expertise, but only an attorney is qualified to interpret the nuances that are attached to not only a specific case but also cases that form a progeny.
4. There have been assignments where the arborist rendered an opinion of risk and, in a spirit of cooperation and good customer service, provided the name of an attorney who could manage the dispute for the client, only to be joined in the dispute itself because the attorney did not perform to the client’s expectations. Stay in your lane. Conduct a risk assessment in writing and exit as promptly as possible. If your client retains an attorney, that attorney will most likely utilize your services as an expert. Remember, no good deed goes unpunished.

?I do wish you well on your journey.

Please note: The author is not qualified to give legal advice. Nothing in this article represents legal advice. If you need legal advice, consult an attorney.

Joe is entering his 58th year of practice in the fields of arboriculture and horticulture. He is a recognized expert witness in small claims, civil, criminal, eminent domain, and federal courts of law. His representation of plaintiff /defendant is 50-50.

When you need a credentialed arborist in support of your case, reach out for assistance!